The DIGEST Of Equal Employment Opportunity Law

Volume XIX, No. 2

Office of Federal Operations

Spring 2008

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Inside

Selected EEOC Decisions on:

Article

A CASE UPDATE: RETALIATION

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SELECTED EEOC DECISIONS

Attorney's Fees

(See also, "Findings on the Merits," and "Settlement Agreements, this issue. – Ed.)

Complainant's Retention of Out of Town Counsel Reasonable. The Commission found that complainant was entitled to an award of attorney's fees representing the hourly rate in the geographic area in which the attorney practiced. The agency failed to show that complainant's decision to retain an out of town counsel to represent her during the appeals stage of her complaint was unreasonable. In this case, the agency located only one local attorney who practiced employment law, and complainant submitted declarations showing that she unsuccessfully searched for a local attorney with the proper expertise to handle her case. Further, the issues on appeal were not fractionable, but related to the damages complainant endured and the various remedies needed to compensate her for the discrimination. Thus, complainant was due attorney's fees for all hours spent on pursuing the underlying appeal. Zula Moore v. Department of Justice, EEOC Appeal No. 0120072439 (July 31, 2007).

Compensatory Damages

(What follows is a review of selected nonpecuniary compensatory damages awards issued by the Commission this year for unlawful employment discrimination. See, also, "Findings on the Merits," this issue. – Ed.)

$130,000.00 Awarded for Termination Based on Disability. The Commission affirmed the EEOC Administrative Judge's (AJ's) award of $130,000.00 in compensatory damages due to her discriminatory (disability) termination. According to the record, she began to cut herself, and was hospitalized for suicidal behavior. Complainant was forced to seek public assistance for food and housing because of financial problems precipitated by the discrimination, and felt shame and embarrassment. She also had to move to a remote location because it was all she could afford. Further, a friend described complainant, who had an active social life and hobbies prior to the termination, as a "hermit." Finally, the record supported a finding that complainant's pre-existing anxiety and depression were significantly exacerbated by the discrimination. Jo Fellows-Gilder v. Department of Homeland Security, EEOC Appeal No. 0720070046 (January 31, 2008).

$130,000.00 Awarded for Race-based Harassment and Constructive Discharge. The Commission affirmed an AJ's award of $130,000.00 following a finding that complainant was subjected to race-based harassment and constructively discharged. Complainant experienced a serious deterioration of his relationship with his young children, and became withdrawn, moody, and depressed. He was hospitalized, considered suicide, subjected to electroshock treatment, and continued to take medication and saw a psychiatrist. Paul L. Terban v. Department of Energy, EEOC Appeal No. 0720040117 (April 3, 2008).

$55,000.00 Awarded for Disability–based Harassment, as Commission Increases Agency Award of $5,000.00. The Commission increased to $55,000.00, from $5,000.00, an agency award for emotional harm suffered as a result of complainant's being subjected to a hostile work environment based on disability. Complainant submitted evidence of the emotional distress and resulting physical debilitation from stress caused by the agency's discriminatory harassment. The stress disrupted complainant's home life, brought on feelings of depression and loss of self-esteem, and worsened his psoriatic arthritis, impairing his physical independence. Michael A. Rainbolt v. Department of Transportation, EEOC Appeal No. 0120080503 (March 26, 2008).

$50,000.00 Awarded for Race-based Nonselection. The Commission affirmed an AJ's award of $50,000.00 for a race-based nonselection involving the position of a specified medical program director. The award was based upon two declarations from psychologists, as well as a statement from complainant's husband, a co-worker, and complainant herself that she suffered from depression, stress and anxiety. In addition, complainant, a nurse, suffered weight loss, crying, a strained marital relationship, social withdrawal, and an inability to sleep. Anesia Okezie v. Department of Veterans Affairs, EEOC Appeal No. 0720070005 (March 19, 2008).

$50,000.00 Awarded for Hostile Environment Based on Race and National Origin. The Commission affirmed an AJ's award of $50,000.00 following a finding that complainant was subjected to a hostile work environment based on race and national origin. The record showed that complainant suffered emotional distress, depression, and anxiety, and complainant submitted medical evidence in support of his claim. Testimony of complainant's wife and co-workers further confirmed his condition. Marty Hern v. Department of Agriculture, EEOC Appeal No. 0720060012 (March 10, 2008).

$40,000.00 Awarded for Disability Discrimination and Retaliation Regarding Medical Examinations and an Unsatisfactory Performance Rating. The Commission affirmed an AJ's award of $40,000.00, subsequent to a 2002 finding by EEOC of disability discrimination when the agency required complainant to submit to additional medical examinations after being declared fit for duty; and retaliation when he was issued an unsatisfactory performance rating. Complainant's physician and others testified that complainant's post traumatic stress disorder and depression were exacerbated by the discrimination. Steven F. Meeker v. United States Postal Service, EEOC Appeal No. 0120080625 (May 12, 2008), request for reconsideration denied, EEOC Request No. 0520080591 (July 16, 2008).

$15,000.00 Awarded for Discriminatory Denial of Hardship Transfer. Complainant was awarded $15,000.00 for distress suffered as a result of the discriminatory (multiple bases)denial of a hardship transfer. Complainant stated that he was greatly humiliated, and made to feel like less of a person. Adrian R. Mask, Sr. v. Department of Transportation, EEOC Appeal No. 0120080856 (June 6, 2008).

$8,000.00 Awarded as Commission Increases Agency Award from $2,500.00 for Failure to Provide Interpreter to Hearing-Impaired Employee. The Commission increased to $8,000.00 from $2,500.00 an agency award, following a finding that complainant was subjected to disability discrimination when the agency failed to accommodate complainant's hearing impairment by not providing him with a sign language interpreter or alternative means of participating in agency employee meetings. Complainant stated that he was frustrated and upset by the agency's failure to provide him a sign language interpreter on various occasions. Donley B. Bratsch v. USPS, EEOC Appeal No. 0120071942 (August 22, 2007).

$1,500.00 Awarded for Disability-based Termination. Following the agency's finding that complainant was subjected to disability discrimination with regard to her termination, the agency conducted a supplement investigation into complainant's entitlement to compensatory damages. The agency subsequently awarded complainant $1,500.00. On appeal, the Commission affirmed the agency's award, noting that the medical documentation and testimonial evidence showed that much of the emotional distress complainant suffered was due to factors other than the discrimination. Cynthia S. Martinelli v. Department of Veterans Affairs, EEOC Appeal No. 0120072930 (March 7, 2008).

$1,000.00 Awarded for Denial of Reasonable Accommodation. The Commission awarded complainant $1,000.00 in non-pecuniary compensatory damages based upon evidence showing that the discriminatory denial of reasonable accommodation caused him to suffer mental anguish. Although complainant's mental health care provider indicated that his interpersonal relationships were affected, the health care provider did not explain the nature or duration of these problems. James N. Degnan v. United States Postal Service, EEOC Appeal No. 0120065106 (May 29, 2008).

Dismissals

(See by category, this issue.—Ed.)

Findings on the Merits and Related Decisions

--Under the ADEA—

Age Discrimination Found in Nonselection Case. The Commission found that complainant was subjected to age discrimination when he was not selected for a position with the agency. According to the record, complainant was one of four candidates interviewed for the position. The agency, however, chose a candidate under the age of 40. The selecting officials' notes indicated that they liked the selectee's energy, and that she was "young" and "flexible." In addition, they testified that she was "from the younger generation" and could "speak with the talk of new veterans." Complainant, on the other hand, was described as a "long term counselor" with a "solid background," who would "probably not fit our model." The Commission noted that the record was replete with references and stereotypes of age, and complainant's alleged inability to relate to newer veterans. Further, while the agency stated that it chose the selectee because of her outreach skills and ability to relate to recent veterans, the record showed that complainant and the selectee received almost identical scores in relation to interview questions addressing those areas. The Commission rejected the agency's assertion that it would have chosen one of the other candidates over complainant. The agency was ordered to offer complainant retroactive placement into the position in question, with back pay. Allen Bedynek-Stumm v. Department of Veterans Affairs, EEOC Appeal No. 0720060054 (February 20, 2008).

--Under the Rehabilitation Act—

Impermissible Dissemination of Medical Information. The Commission found that the agency violated the Rehabilitation Act when complainant's supervisor disseminated information regarding his medical condition. According to the record, complainant's supervisor lectured him in front of co-workers about the dangers of smoking while having heart disease. The Commission found the dissemination of this information constituted a violation of the Rehabilitation Act since the medical condition or history of any employee must be treated as a confidential medical record. The agency was ordered to provide training for the supervisor in question, and investigate complainant's claim for compensatory damages. Danny L. Price v. USPS, EEOC Appeal No. 0120070997 (May 22, 2008).

Unlawful Disability Related Inquiry. Complainant, who had previously been diagnosed with back pain, sciatica, and lumbar strain, submitted a note from his physician to his immediate supervisor asking that he be excused from work due to an examination for chronic lumbar problems, as well as diabetes, high blood pressure, and depression. Complainant was then told to clock out and go home because the note indicated he was seen for depression. The agency subsequently made several attempts to contact complainant's physician, and complainant remained off of work. After several months, complainant's physician submitted correspondence to the agency diagnosing complainant with adjustment disorder and depression, and the agency's medical director determined that complainant could return to work without limitations. Complainant, however, did not return to work, and later applied for disability retirement. In the interim, complainant filed an EEO complaint and requested a hearing. An AJ found a violation of the Rehabilitation Act when the agency made a disability-related inquiry and by not allowing complainant to return to work because the inquiry had not been responded to by his physician. On appeal, the Commission affirmed the AJ's finding of disability discrimination. The Commission noted that complainant's supervisor and the postmaster testified that they did not believe complainant's medical condition impaired his ability to perform the essential functions of his modified position, or posed a direct threat to the health and safety of complainant or any other employees. Instead, the agency made the inquiry solely because the word "depression" was used by complainant's physician. The agency was ordered to pay complainant all pay and benefits he would have received during the period he was not permitted to return to work. Rogelio A. Bernal v. USPS, EEOC Appeal No. 0720080038 (June 17, 2008).

Reasonable Accommodation in the Appellate Process. The Commission issued an interim order requiring the agency to provide complainant, who was visually impaired, the hearings record on audio cassette or CD-ROM in order for her to prepare her brief in support of her appeal. Complainant sought a reasonable accommodation during the hearing process, and the AJ ordered the agency to provide the complaint file in an audible format. The Commission did not require the agency to reproduce complainant's exhibits, stating that it was not necessary to do so in order for complainant to produce an appellate brief. Carin C. Memmer v. Environmental Protection Agency, EEOC Appeal No. 0120071285 (July 27, 2007), request for reconsideration denied, EEOC Request No. 0520080151 (January 16, 2008).

--Under Title VII—

Race Discrimination in Nonselection. Complainant, a Clinical Nurse, applied for the position of Instructional Systems Specialist. According to the record, the selectee would be responsible for planning and developing accredited nurse training, and was required to have completed various educational coursework. Of the sixteen applicants for the position, two were referred as qualified. Complainant was informed that she failed to document four of the additional five educational requirements for the position. On appeal, the Commission found that complainant was subjected to race (African-American) discrimination when she was not referred for the position. While the agency stated that the two candidates who were referred met four of the five additional requirements, the record showed that the candidates met only two to three of the criteria. Further, neither the complainant nor the two referred candidates submitted information with their applications to clarify the courses listed on their transcripts, and the agency official who reviewed the applications did not testify at the hearing to explain any discrepancies in the application screening process. Thus, the Commission concluded that the agency's articulated reason for the action was a pretext for race discrimination. The agency was ordered to offer complainant the position in question or a substantially equivalent position, with back pay. Jacqueline McCarroll v. Department of Veterans Affairs, EEOC Appeal No. 0720070060 (February 12, 2008).

Race-based Harassment. The Commission found that the agency failed to take any corrective action when management harassed and undermined the supervisory management of complainant because of her race (African-American). Among other relief, complainant was awarded $62,795.00 in compensatory damages, and the agency was ordered to reassign the discriminating officials. Melene Richardson v. Department of Homeland Security, EEOC Appeal No. 0120070003 (May 22, 2008).

Sexual Harassment. The Commission found that complainant was subjected to sexual harassment by her supervisor, including inappropriate touching, jokes, and innuendo. Further, after complainant complained about the supervisor's conduct to a co-worker, the co-worker informed a manager about the matter. The agency, however, failed to show that it took prompt and effective action to prevent or remedy the harassment. The agency was ordered to pay $15,000 in compensatory damages, based upon evidence that the supervisor's conduct caused complainant to dread going to work, feel sad, have disturbed sleep, and seek counseling. Jean Page-Sanchez v. USPS, EEOC Appeal No. 0720050080 (June 12, 2007), request for reconsideration denied, EEOC Request No. 0520070800 (September 7, 2007).

Sex Discrimination. The Commission found that complainant was subjected to sex (female) discrimination when she was issued a notice of removal for unsatisfactory attendance. According to the record, a comparative male employee had more severe and numerous absences and tardiness during the same period but was not disciplined. While complainant received progressive discipline, the agency treated her differently than the comparative male employee by imposing discipline for minor instances of tardiness in a much more aggressive manner. Further, when questioned about the disparity, the responsible official had difficulty responding. The agency was ordered to retroactively reinstate complainant, with benefits and back pay. Connie L. Bridgewater v. United States Postal Service, EEOC Appeal No. 0720070028 (September 13, 2007).

National Origin Harassment. The Commission found that complainant was subjected to harassment because of his national origin (Filipino). Specifically, a co-worker addressed complainant using derogatory language and profanity. In addition, two supervisors treated complainant rudely and disrespectfully, and repeatedly gave him "documented discussions." The Commission noted that the evidence established that the harassment resulted in considerable mental distress to complainant. Further, the Commission found the agency liable for the conduct of the supervisors. In this case, complainant was ultimately removed from the agency. Further, while the agency was placed on notice of the harassment when complainant reported the incidents to upper-level management, the agency failed to show that it exercised reasonable care to prevent and promptly correct the harassing behavior. The agency was ordered to offer complainant reinstatement to his position, with back pay, and pay him $5,000.00 in compensatory damages. Romulo E. Arcinue v. Department of the Navy, EEOC Request No. 0520051034 (April 15, 2008).

--Under Multiple Bases—

Harassment Based on Race and National Origin. The Commission affirmed an AJ's finding that the agency discriminated against complainant on the bases of race (Native American) and national origin (Cherokee Nation) when it had knowledge of the harassment but failed to take prompt and corrective action to remedy and prevent the hostile work environment created by an agency customer. Among other relief, complainant was awarded $50,000.00 in compensatory damages and restoration of leave. Marty Hern v. Department of Agriculture, EEOC Appeal No. 0720060012 (March 10, 2008).

Termination Based on Race and Color. The Commission upheld an AJ's finding of race (African-American) and color (Black) discrimination when complainant was terminated from his position as a Part-Time Flexible Letter Carrier. Although complainant was a probationary employee, the record reflected that he worked at the same—or better—level as other full-time carriers. In part, the agency was ordered to offer complainant the position and calculate his back pay entitlement. Alonzo Artis v. United States Postal Service, EEOC Appeal No. 0720070032 (February 4, 2008).

Race-based Harassment and Retaliation. The Commission found that complainant was subjected to racial (African-American) harassment and retaliation for reporting racial hostility based on numerous instances of race-based animosity. It was determined that the agency failed to take any corrective action to end co-worker harassment as no employees were disciplined, and managers never communicated that the behavior was not to be tolerated. The Commission also found that the agency retaliated by terminating complainant's training, an action which resulted in complainant's failure to become certified as an air traffic controller. The agency was ordered to offer complainant reinstatement with back pay, expunge relevant agency records, and provide training for responsible managers. Pamela Coopwood v. Department of Transportation (FAA) EEOC Appeal No. 0120054544 (July 10, 2007).

Hostile Work Environment based on Disability and Retaliation. The Commission found that complainant was subjected to a hostile work environment due to her disability and prior EEO activity, and constructively discharged. According to the record, complainant's first line supervisor gave her a strict schedule, ordered her to carry heavy boxes, accused her of lying and placed her on a performance improvement plan. Complainant had a five-pound lifting restriction due to injuries to her right arm. The AJ found that complainant's supervisor was not a credible witness, in that she was often unresponsive and not believable. The AJ concluded that the supervisor's actions were directly attributable to her desire to get rid of complainant because she believed complainant was not pulling her weight, and that a reasonable person would have found the working conditions to be intolerable. The agency was ordered to pay complainant $150,000.00 in compensatory damages, based upon evidence in the record, including statements from her daughter and a psychiatrist, that she suffered from depression and anxiety related to the discrimination. The agency was also ordered to appoint complainant to a Social Worker position with back pay. Karen Solomon v. Department of the Navy, EEOC Appeal No. 0720070071 (March 3, 2008).

National Origin Discrimination and Reprisal Found in Reassignment. Following his reassignment, complainant filed a formal complainant alleging that he was subjected to national origin (Ghana) and reprisal discrimination with regard to that action. In addition, complainant stated that, although he was reassigned at the same pay level, the position involved higher-level duties. On appeal, the Commission found that complainant was subjected to discrimination as alleged. With regard to the reassignment, the Commission stated that the agency failed to provide any legitimate, nondiscriminatory reason for that action. Complainant's file did not contain any documentation or notes as to the reason for the reassignment, and the named official stated only that he did not remember assigning complainant to a new unit. Further, while the agency asserted that the pay levels of managers are based upon the number of junior managers supervised, management officials provided contradictory information regarding this matter. The agency was ordered to retroactively reinstate complainant to his former position, with back pay at the higher level. Michael Opare-Addo v. United States Postal Service, EEOC Appeal No. 0120060802 (November 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008).

Hostile Work Environment Based on Race, National Origin. Color, and Prior EEO Activity. The Commission affirmed the Administrative Judge's finding that complainant was subjected to a hostile work environment based on race (African-American), national origin (African-American), color (black), and retaliation. Despite the fact that two years had passed since complainant's prior EEO activity, the record as a whole reflected a retaliatory motive against complainant. Specifically, the responsible official took a special interest in complainant after she accused him of creating a hostile work environment, and purposely stayed apprised of issues concerning complainant even after she left his supervision. Further, the official made it a point to be actively involved in the adverse actions cited in the complaint. The agency was ordered to purge complainant's records of a letter of warning and performance improvement plan reference, and pay complainant $50,000.00 in compensatory damages. Marilyn M. Howard v. United States Postal Service, EEOC Appeal No. 0720060026 (May 2, 2008).

--Retaliation—

(See also article, this issue. –Ed.)

Retaliation Found in Agency's Sending Complainant Home for a Month. The Commission found that complainant was subjected to reprisal discrimination when she was sent home after working approximately four hours, and not allowed to return to work for one month. The Commission initially noted that, inasmuch as the agency's decision to send complainant home affected her compensation, she was subjected to an adverse employment action. Further, complainant requested an on-going accommodation, and was sent home after providing additional medical documentation, despite the agency having work within her restrictions. The Commission then found that the agency failed to articulate a legitimate, nondiscriminatory reason for its actions. Neither complainant's supervisor nor the Manager timely responded to the Investigator's request for affidavits. While the supervisor ultimately submitted an affidavit, he indicated that complainant was able to perform the essential functions of her position with or without reasonable accommodation, and that he was not aware of having sent complainant home because of her disability. The agency was ordered to pay complainant back pay, and conduct a supplemental investigation with regard to compensatory damages. Robyn J. Thompson v. USPS, EEOC Appeal No. 0120063745 (March 12, 2008).

Retaliation in Nonselection. Complainant filed a formal complaint alleging that he was subjected to reprisal when he was not selected for a Supervisory Realty Specialist position. According to the record, complainant testified at the EEO hearing of another employee, which also involved the named management official in complainant's case. While the agency asserted that the selectee was chosen because of his work experience and references, the record showed that complainant had more job-related experience, and supervisory training than the selectee, who did not have any supervisory experience. Further, during the hearing, the selecting official acknowledged that complainant's objective qualifications were superior to those of the selectee. Finally, there was no documentation in complainant's evaluations to support the selecting official's claim that complainant had poor people skills. The agency was ordered to pay complainant $10,000.00 in compensatory damages for stress and anxiety, as well as promote him to the Supervisory position. Norman E. Logan v. Department of the Interior, EEOC Appeal No. 0720060093 (September 10, 2007).

Retaliation in Reprimand and Termination. The Commission found that complainant was subjected to reprisal discrimination when the agency reprimanded him and terminated his employment. Complainant raised the issue of race discrimination approximately two months previously, and the agency cited complainant's claims of racism in upholding the Letter of Reprimand. In addition, the Proposed Letter of Termination cited complainant's accusations of bigotry and racial motivations against his supervisor, and the agency again mentioned those reasons in upholding the termination. The record failed to show that the agency would have taken the same actions absent the discrimination. The agency was ordered to reinstate complainant, with back pay. The agency was also ordered to pay complainant $15,000.00 in compensatory damages, based upon evidence that complainant suffered emotional distress, humiliation, and loss of social life as a result of the discrimination. Theodore McGary v. Peace Corps, EEOC Appeal No. 0720060027 (March 7, 2007), request for reconsideration denied, EEOC Request No. 0520070500 (September 21, 2007).

Hostile Environment Based on Retaliation. The Commission found that the agency discriminated against complainant when it subjected her to heightened scrutiny due to her prior EEO activity. The Commission initially rejected the agency's assertion that certain claims were untimely discrete acts. The Commission noted that complainant initially alleged that she was subjected to reprisal and a hostile environment, including being yelled at and criticized, and having the responsible official say derogatory things about her, and, as such, her claim was timely. The Commission then found that complainant was subjected to reprisal. While the agency articulated legitimate reasons for its actions, the Commission found that reprisal was a motivating factor. Specifically, the responsible official stated that complainant filed frivolous EEO claims, and boasted that he had successfully written a negative performance conduct letter after complainant had gotten a similar letter expunged through a prior EEO complaint. The record supported a finding that the responsible official would have taken the same actions even absent the discrimination. The agency was ordered to provide training to the responsible official, and consider disciplinary action. Deborah A. de Armas v. Department of the Treasury, EEOC Appeal No. 0720060085 (July 26, 2007), request for reconsideration denied, EEOC Request No. 0520070873 (September 27, 2007).

Petitions For Enforcement

EEOC Order to Reinstate Complainant was Independent of Back Pay Order. Following a finding that petitioner was subjected to retaliation when he was not selected for a position with the agency, the Commission ordered the agency to retroactively promote petitioner with back pay. Subsequently, petitioner asserted that the agency failed to comply with the Commission's order. Upon review, the Commission concurred with petitioner. Specifically, the Commission noted that while the agency initially offered to reinstate complainant, the agency later "nullified" the offer because the parties were unable to agree on the appropriate amount of back pay. The Commission, however, stated that the order to reinstate petitioner was clearly independent of the duty to resolve any issues arising from the back pay award. Further, petitioner was entitled to a back pay award representing the difference between his GS-12 salary and the GS-13 salary he would have earned between the date of the discrimination and the date of his retirement. Nicholas R. McKinley v. Department of Homeland Security, EEOC Petition No. 0420070020 (February 21, 2008).

Petitioner Entitled to Reimbursement for Additional Tax Liability. In the underlying appellate decision, the Commission found that petitioner was subjected to sex discrimination, and ordered the agency to, among other things, provide petitioner with back pay and compensation. Petitioner subsequently filed a petition for enforcement, asserting that she was entitled to additional compensation for the increased tax burden she incurred from receiving a lump sum back pay award. The Commission concluded that, because petitioner submitted evidence of additional tax liability stemming from the lump sum payment, she was entitled to reimbursement for the amount of additional tax liability. In addition, petitioner was entitled to $500.00 spent on CPA services to calculate the tax liability. Deborah A. Ulloa v. USPS, EEOC Petition No. 0420080001 (February 22, 2008).

Sanctions

Commission Affirms Administrative Judge's Finding in Favor of Complainant as Sanction Against Agency. Following complainant's request for a hearing, the agency forwarded the complaint file to the AJ without the report of investigation. The agency ultimately submitted the report beyond the 180 day limitation period for completing the investigation specified in the EEOC Regulations. The AJ, at complainant's request, issued an Interim Decision imposing sanctions against the agency by finding that it discriminated against complainant. On appeal, the Commission found that the AJ did not abuse her discretion in finding for complainant as a form of sanctions for the agency's failure to conduct a timely investigation. Lawrence S. Lomax v. Department of Veterans Affairs, EEOC Appeal No. 0720070039 (October 2, 2007), request for reconsideration denied, EEOC Request No. 0520080115 (December 26, 2007).

Settlement Agreements

Settlement Agreement Knowingly and Voluntarily Agreed to Will Be Binding on the Parties Upon Signing. A settlement agreement acknowledged by the agency to have been reached by an agency director who had actual and apparent authority to settle complainant's informal complaint was not invalidated by the agency's attempt to immediately repudiate it less than 20 minutes after the signing. The Commission found that the settlement agreement was a voluntary, valid contract as soon as it was signed by both parties. Likewise, the complainant's filing of a complaint after the issuance of a notice of right to file did not invalidate the settlement agreement. The Commission ordered the agency to implement the terms of the settlement agreement and pay complainant back pay and other benefits. Libby D. Madar v. Department of the Army, EEOC Appeal No. 0120081295 (April 22, 2008).

Settlement Agreement Fails for Lack of Consideration. The settlement agreement provided that the agency agreed to review the complainant's updated medicals and provide the complainant with work, if possible, in conjunction with her updated medicals and medical restrictions. The complainant provided the necessary information. The Commission held that the agreement contained no consideration from the agency in that the agency appears to have undertaken no legal detriment and the agency merely agreed to review complainant's updated medical documentation and provide her with work. The Commission found that the agency provided complainant nothing more than that to which she was entitled to as a matter of law, and accordingly, she received no consideration for her agreement to withdraw her EEO matter. The agency was ordered to reinstate complainant's complaint and resume processing the matter from the point at which processing ceased. Ruby M. Ollivierre v. United States Postal Service, EEOC Appeal No. 0120081608 (May 2, 2008).

No Evidence of Coercion Found in Execution of Settlement Agreement. The settlement agreement provided, in part, for the payment of attorney fees not to exceed $10,000.00 in accordance with the Laffey Matrix.¹ Complainant submitted to the agency a verified fee petition requesting $154,204.00 for attorney's fees and costs, which was denied by the agency. Complainant claimed that the settlement agreement was executed while complainant was under severe distress and that she was coerced into signing it. The Commission noted that it examines coercion claims with close scrutiny and the party raising the defense must show that there was an improper threat of sufficient gravity to induce assent to the agreement and that the assent was in fact induced by the threat. The Commission found that at the time of the agreement complainant was represented by counsel and that there was no evidence of coercion surrounding the entering of the agreement. The Commission affirmed the agency's final order regarding the award of attorney's fees and costs in the amount of $10,000.00. Ava Marshall v. Department of Agriculture, EEOC Appeal No. 0120062971 (May 5, 2008).

Stating A Claim

(In the following cases, the Commission found complainant's claims to be cognizable. –Ed.)

Warren K. Gladden v. Department of Commerce, EEOC Appeal No. 0120081616 (May 5, 2008) (nonselection for a specified managerial position based on race and age).

Scott P. Sinkhorn v. Department of Transportation, EEOC Appeal No. 0120081331 (May 5, 2008), request to reconsider denied, EEOC Request No. 0520080559 (June 23, 2008) (harassment/hostile work environment based on sex, religion, and retaliation involving offensive language and disciplinary threats over a period of years).

(In the following cases, the Commission affirmed the agency determination that the complainant failed to state a claim. –Ed.)

William T Traylor v. Department of Agriculture, EEOC Appeal No. 0120063833 (April 25, 2008) (volunteer not aggrieved person: individual must receive benefits which constitute significant remuneration or be required to work as a volunteer in order to obtain or lead to regular employment; in this case, complainant alleged that he was subjected to discrimination on the basis of reprisal when the agency issued his final check for incidental expenses three weeks late. Complainant was a Day Use Host Volunteer at an agency recreational area and had signed an Agreement for Individual Voluntary Services, stating that the work would be non-compensable. The decision noted that, generally, only an individual who is an employee or applicant for employment is covered by the EEO statutes. Here, the only forms of compensation that complainant received were reimbursement for incidental expenses and a transportation allowance.)

Tonya A. Hackney v. Department of Justice, EEOC Appeal No. 0120072779 (August 20, 2007). (unpaid intern not covered by EEOC regulations: complainant was essentially a volunteer, and was not covered by the EEO statutes that protect against employment discrimination.)

Timeliness

Agency's Appeal Untimely.

According to the record, the agency's Office of Civil Rights received the Administrative Judge's decision on March 30, 2007. The agency, however, did not file its notice of final order and appeal until May 10, 2007, that is, beyond the 40-day filing period. The agency asserted that period for filing an appeal should begin to run on April 2, 2007, the date on which its designated representative received the Judge's decision. The Commission noted, however, that its policy is to send correspondence relating to the disposition of a case to the agency's headquarters office that is designated to handle such matters. The Commission also rejected the agency's claim that the Office of Civil Rights assumed the representative received the decision 5 days after it was issued, stating that the 5-day presumption applies only to documents that do not bear a legible postmark or have no proof of the date of receipt. In this case, the record showed that the Office of Civil Rights actually received the decision on March 30, 2007. Thus, the Administrative Judge's decision was final. Estella Sugawara-Adams v. EPA, EEOC Appeal No. 0720070050 (September 10, 2007).

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A CASE UPDATE: RETALIATION

The following article is not intended to be an exhaustive or definitive discussion of a complex area of law. For more detailed information and additional resources, the reader is advised to consult the Commission's website at www.eeoc.gov. In addition, the reader may consult the EEOC's Compliance Manual on Retaliation (May 20, 1998). The Digest appreciates the contributions of Natalie Nelson to this article. –The Editor

Retaliation Following a Claim of Age Discrimination:
A Review of the Supreme Court's Decision in
Gomez-Perez v. Potter

Retaliation serves as one of the nine bases for an equal employment action. Recently, the United States Supreme Court addressed whether an individual can raise the issue of retaliation following a claim of age discrimination. The Court granted certiorari in Gomez-Perez v. Potter ² to address the appropriateness of a retaliation claim. The basic question presented by the case is whether the Age Discrimination in Employment Act³ encompasses a complaint of retaliation. In Gomez, the Court determined that retaliation claims were protected following a claim of age discrimination.

THE GOMEZ COURT

Myrna Gomez-Perez (complainant) was employed by the United States Postal Service (agency). In 2002, she requested a transfer to be closer to her ill mother. She accepted a "part-time flexible" position which did not guarantee her 40 hours of work per week in order to obtain the transfer. Approximately one month later, complainant requested a transfer back to her old position, but her request was denied. The agency asserted that the position had been converted to part-time and filled by another employee. Following this denial of transfer, complainant, then 45 years of age, filed a formal complaint of age discrimination under the ADEA. Subsequently, complainant alleged that, as a result of filing the complaint, she was subjected to various forms of retaliation, including being harassed and having her work hours reduced. Complainant filed a civil action, claiming that the agency violated the federal sector provision of the ADEA by retaliating against her for filing a complaint of age discrimination. The District Court granted summary judgment in favor of the agency on the basis of sovereign immunity, and the Court of Appeals subsequently affirmed on alternative grounds.

The Supreme Court, in a 6-3 decision, held that the ADEA does prohibit retaliation against federal employees who file a complaint of age discrimination. The Court followed the reasoning of two prior decisions Sullivan v. Little Hunting Park, Inc., ⁴ and Jackson v. Birmingham Board of Education,⁵ in determining that the ADEA's provision prohibiting "discrimination based on age" includes retaliation based on an age discrimination complaint. Both Sullivan (which interpreted 42 U.S.C. § 1982) and Jackson (which interpreted Title IX of the Education Amendments⁶) held that broadly worded prohibitions against discrimination on the basis of race and sex, respectively, included a prohibition against retaliation. The Supreme Court noted that the ADEA language at issue in Gomez was not materially different from the language at issue in Jackson, and was the functional equivalent of the language at issue in Sullivan. Further, in all three statutes, the language appears in the context of a remedial provision aimed a prohibiting discrimination.

The Supreme Court was not persuaded by the argument that the ADEA expressly creates a private cause of action for retaliation, but fails to expressly provide the same prohibition when outlining the provisions for the federal sector. The Court of Appeals had determined that, unlike the private sector provisions of the ADEA, § 633a did not explicitly mention retaliation, and, therefore, Congress intended that the ADEA prohibition against retaliation apply to private employers but not federal employers. The Supreme Court noted, however, that the prohibition against retaliation in the federal sector derives from the text of § 633a itself and not from the ADEA private sector provisions. Thus, the Supreme Court found it insignificant that the private sector provisions of the ADEA explicitly mention retaliation. The Supreme Court noted that the private and federal sector provisions of the ADEA were drafted at different times, and are couched in very different terms. Specifically, the ADEA federal sector provision was patterned directly after the broad federal sector provisions of Title VII. Further, the Court noted that Congress was presumably familiar with the decision in Sullivan at the time it enacted a broad, general ban on age discrimination, and had reason to expect that this ban would be interpreted in conformity with that precedent.

The Supreme Court also rejected the agency's historical argument that, when it enacted the ADEA, Congress intended for the Civil Service Commission to extend its regulations regarding retaliation to cover age discrimination complaints. The Court found no direct evidence that Congress actually took this approach. Thus, the argument lacked any support in the legislative history.

Finally, the Supreme Court considered whether the principles of sovereign immunity require that the federal sector provisions of the ADEA be read narrowly, prohibiting discrimination based on age but not retaliation. While the Court conceded that a waiver of sovereign immunity must be expressly stated in the text of the statute, it found that the waiver of sovereign immunity in § 633a(c) of the ADEA includes § 633a(a) where the language in question is found.

THE RESULT

The EEOC Regulations have long provided that no person shall be subject to retaliation for opposing any practice made unlawful by the ADEA.⁷ Further, the Commission has stated that federal employees are protected against retaliation under each of the employment discrimination statutes, including the ADEA.⁸ The Supreme Court's decision in Gomez confirms that federal employees are protected from retaliation for filing a discrimination claim under the ADEA.

The Supreme Court had generally established that federal discrimination statutes prohibit retaliation, whether explicitly stated or not. In Gomez, the Court turned to its decisions in Sullivan and Jackson as the basis for its opinion. In those cases, the Court held that a broad prohibition against race and sex discrimination, respectively, also provided for claims of retaliation. Following this precedent, the Court found that similar language examined in Gomez allows for the same freedom for retaliation claims under the ADEA. The decision in Gomez is consistent with precedent established in both Sullivan and Jackson, with the Supreme Court holding that the language of "discrimination based on age" includes a prohibition of retaliation in response to a claim of age discrimination.

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Footnotes

¹ This matrix of hourly rates for attorneys of varying experience levels and paralegals/law clerks has been prepared by the Civil Division of the United States Attorney's Office for the District of Columbia. The matrix is intended to be used in cases in which a "fee.shifting" statute permits the prevailing party to recover "reasonable" attorney's fees. See, e.g., 42 U.S.C. § 2000e.5(k) (Title VII of the 1964 Civil Rights Act); 5 U.S.C. § 552(a)(4)(E) (Freedom of Information Act); 28 U.S.C. § 2412 (b) (Equal Access to Justice Act). The matrix does not apply in cases in which the hourly rate is limited by statute. See 28 U.S.C. § 2412(d).

² 128 S.Ct. 1931 (2008).

³ The Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

⁴ 396 U.S. 229 (1969).

⁵ 544 U.S. 167 (2005).

⁶ 20 U.S.C. § 1681 (2000).

⁷ 29 C.F.R. § 1614.101(b).

⁸ EEOC Compliance Manual, Section 8 (Retaliation), Footnote 5, No. 915.003 (May 20, 1998).