The DIGEST Of Equal Employment Opportunity Law

Volume XVIII, No.3

Office of Federal Operations

Summer Quarter 2007

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Inside

Selected EEOC Decisions on:

Article

A CASE UPDATE: MISUSE OF THE EEO PROCESS

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SELECTED EEOC DECISIONS

Attorney's Fees

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

Compensatory Damages

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

EEOC Awards $35,000.00 in Damages. The Commission affirmed the Administrative Judge's finding that the agency denied complainant reasonable accommodation for a period of approximately one year. In connection with that finding, the Commission awarded complainant $35,000.00 in compensatory damages. The record included statements from complainant, as well as his wife and doctor, concerning the emotional pain he suffered from being denied accommodation. The Commission noted that the amount awarded was not monstrously excessive and is consistent with awards in similar cases. Michael B. Halperin v. Department of Homeland Security, EEOC Appeal No. 0120051983 (May 31, 2007).

EEOC Awards $40,000.00 in Damages. The Commission awarded complainant $40,000.00 in compensatory damages following an earlier finding that he was subjected to retaliation when a supervisor moved his office multiple times, transferred him out of her service, and expressed discriminatory animus for serving as an EEO Counselor. The supervisor's public complaints about complainant became known to high-level officials at the facility. According to the documentation submitted, complainant was diagnosed with an adjustment disorder, generalized anxiety and depressed mood, which complainant related to his workplace. The Commission noted that the supervisor's treatment of complainant extended beyond her actual supervision, and damaged his reputation in the agency. Daniel Tramontozzi v. Department of Veterans Affairs, EEOC Appeal No. 0120053114 (May 10, 2007).

EEOC Denies Award of Damages. Following a determination that complainant had been subjected to gender and age discrimination, the agency requested that complainant submit evidence in support of her claim for compensatory damages. After complainant submitted statements allegedly in support of her claim, the agency requested further information, explaining to complainant that it was her burden to submit objective evidence in support of her claim and to show that the harm she experienced was causally related to the discriminatory non-selection. On appeal, the Commission affirmed the agency's finding that complainant failed to submit documentation showing that she suffered any damages related to the discrimination. The Commission noted that the agency fully explained to complainant what information and supporting documentation were required. Complainant, however, did not show that her medical conditions were caused by or a result of the agency's discriminatory action. Thus, the Commission concluded that complainant was not entitled to an award of compensatory damages. Sandra S. Johnson v. National Aeronautics and Space Administration, EEOC Appeal No. 0120053146 (April 5, 2007), request for reconsideration denied, EEOC Request No. 0520070586 (June 26, 2007).

Dismissals

(See by category, this issue.—Ed.)

Failure to Cooperate

Failure to Cooperate Not Found: Commission Informs Agency of Requirement to Guide Complainant Through the EEO Process. On July 19, 2004, complainant filed a claim of discrimination on the bases of race (African-American), color (Black), and reprisal. He submitted a "Statement of Claims" ("SOC") on August 3, 2004, documenting the claimed instances of discrimination. On September 9, 2005, the agency issued two decisions, dismissing his complaint. The first decision stated that complainant elected to pursue his claims through the negotiated grievance process. The agency also averred that complainant had failed to provide necessary documentation. In the second decision, the agency again dismissed the complaint for complainant's purported filing in two forums and for alleged failure to cooperate. The agency noted that the SOC was not presented to the EEO Office until May 6, 2005. The agency also provided complainant with two written requests to provide relevant information or to otherwise proceed with the complainant, and that the requests included notice of the proposed dismissal for failure to respond. The agency suggested to complainant that he was using the EEO process and race for "self-aggrandizement"; and that his emails demonstrated that he was seeking special treatment because of his minority identification. The agency asserted that its "EEO office is not here to lead you or anyone else."

On appeal, the EEOC found that a portion of complainant's complaint had been raised in a negotiated grievance procedure that permitted claims of discrimination to be raised. Therefore, the EEOC affirmed the dismissal of that portion of the complaint since complainant had first filed that matter in a grievance and could therefore not proceed in the EEO forum. As for the issue of complainant's alleged lack of cooperation, the record revealed that complainant sent emails to the EEO Manager in which he repeatedly asked whether more information was needed to process his complaint. However, the EEO Manager failed to request additional information. The Commission further found that, while the agency asserted that it did not receive the SOC until May 6, 2006, the August 3, 2004 date affixed to the SOC, as well as complainant's emails to the agency, inquiring into the agency's need for further information, were sufficient to show that the complainant timely provided sufficient information to the agency to allow for the processing of his claims. Moreover, there was no clear record of delay or contumacious conduct by complainant in the adjudication of his complaint. The EEOC also informed the agency of the obligation to guide a complainant through the EEO process in that the EEO Counselor must advise an aggrieved person of their rights and responsibilities in the EEO process. Melton F. Eason, Jr. v. Department of the Air Force, EEOC Appeal No. 0120060558 (February 7, 2007).

Findings on the Merits

--Under the ADEA—

Age Discrimination Found in Abolition of Position. Following a hearing, an Administrative Judge found that complainant was discriminated against on the basis of his age when the agency abolished his position. The Judge found, however, that complainant failed to prove his claim of gender discrimination. On appeal, the Commission affirmed the Judge's findings. Specifically, the Commission rejected complainant's assertion that a finding of gender discrimination is reasonable given management's failure to articulate a legitimate reason for its action. The Commission noted that the Judge's finding of age discrimination was based on a combination of disbelief of the agency's reasons for the action, and evidence of age animus such as age-related comments made by an employee in reorganization planning. There was no similar evidence of animus based on gender. The agency was ordered to offer complainant reinstatement to his former position or an equivalent position, with appropriate benefits and back pay. James Murphy v. Department of the Army, EEOC Appeal No. 0120061062 (April 26, 2007).

--Under the Rehabilitation Act—

Failure to Accommodate. The Commission found that the agency failed to reasonably accommodate complainant, who is hearing impaired, when it denied him an interpreter. The record showed that complainant uses sign language for communication. The agency failed to provide an interpreter during a step 1 grievance meeting and during a meeting with his supervisor to discuss a disciplinary action. The Commission found that the grievance meeting was a work-related activity during which a hearing impaired employee could be expected to be present. In rejecting the agency's argument that the step 1 meeting involved the union and management and, as such, the agency was not required to provide complainant with an interpreter, the Commission declared that employers must ensure that employees with disabilities have access to information that is provided to other similarly situated employees without disabilities. The Commission concluded that there was no evidence that it would have been an undue hardship for the agency to have provided complainant with an interpreter. The agency was ordered to conduct a supplemental investigation with regard to the issue of compensatory damages, and provide training for the responsible management officials. Maurice Gunn v. United States Postal Service, EEOC Appeal No. 0120053293 (June 15, 2007).

Discriminatory Reassignment. According to the record, complainant was being provided with various limited duty assignments in order to accommodate her physical restrictions resulting from a right shoulder impairment, which, among other restrictions, limited her ability to lift 20 to 30 pounds, intermittently, as tolerated. At the time of the reassignment at issue, complainant was performing clerk-type work during normal business hours. The record showed that all of the workers assigned to the 2:30 a.m. shift were limited duty employees or "rehab" employees in modified carrier positions. The Commission found that complainant was discriminated against on the basis of her disability (substantially limited in the major life activity of lifting) when she was reassigned to a shift beginning at 2:30 a.m. Further, the Commission noted that complainant had successfully performed the duties of her modified position for approximately four years. The Commission found that complainant and other disabled employees were treated differently when they were assigned to the new shift. While the agency asserted that it needed to reduce the amount of clerk craft work performed by limited duty employees, only a small fraction of employees were assigned to the new shift. In addition, the record showed that if the employee rejected the offer, the only other option was to resign or take disability retirement. The agency was ordered to pay complainant out-of-schedule premium pay, as well as compensatory damages. Sandra Pruneda v. United States Postal Service, EEOC Appeal No. 0720050014 (June 4, 2007).

--Under Title VII--

Gender Discrimination Found in Nonselection. The Commission found that complainant was subjected to discrimination based on her gender when she was not selected for the position of Air Traffic Control Specialist, and a temporary Operations Supervisor position. While the selecting official stated, during the investigation, that he used only two criteria to make the selection decision, he testified at the hearing that he considered many other factors. Further, the record showed that the individuals who assessed the candidates, the managers at the facility, and the vast majority of professional employees, were male. In addition, all three female applicants placed at the bottom of the ranking list. The agency was ordered to offer complainant the Operations Supervisor position, with back pay, attorney's fees in the amount of $56,010.00 for 186.7 hours of work at $300.00 per hour, and compensatory damages. Denise Bergren v. Department of Transportation, EEOC Appeal No. 0720060007 (June 12, 2007).

Sexual Harassment Found in Supervisor's Actions and Remarks. The Commission found that complainant was subjected to sexual harassment by her supervisor. The Commission noted that the supervisor's actions, including speaking to complainant about her romantic life, standing too close to her, pressing against her, and spreading his hand or leg too close to her were unwelcome, and caused by complainant's rejection of the supervisor's attempts to be inappropriately familiar with her. Further, the agency failed to demonstrate that it took sufficient action to prevent or remedy the harassment. The agency was ordered to pay complainant $15,000.00 in compensatory damages, based upon evidence that the supervisor's actions caused complainant to experience stress, seek counseling for a period, feel sad, and have disturbed sleep. Jean Page-Sanchez v. United States Postal Service, EEOC Appeal No. 0720050080 (June 12, 2007, request to reconsider denied, EEOC Request No. 0520070800 (September 7, 2007).

Sexual Harassment Found in Supervisor's Actions and Comments. Complainant, a City Carrier, alleged that she was subjected to sexual harassment by her supervisor. Specifically, complainant stated that the supervisor repeatedly called her at home and made sexually suggestive comments. In addition, the supervisor would ask to touch her hair at work and follow her on her route. Complainant also received a letter of warning for using approximately 30 minutes of overtime without permission. Complainant contacted an EEO Counselor about the harassment, and approximately one week later, received a letter of removal. On appeal, the Commission found that complainant was subjected to a hostile work environment. Further, the Commission found that the harassment culminated in a tangible employment action in the form of the letter of warning and notice of removal. The record showed that both actions occurred after complainant's supervisor confronted her because he heard she intended to file a complaint of harassment. Finally, a co-worker testified that the supervisor also called her and asked her to lunch. Thus, the Commission concluded that the agency was liable for the supervisor's conduct. The agency was ordered to provide training to employees at the facility in question, and conduct a supplemental investigation with regard to compensatory damages. Margie B. Smalls v. United States Postal Service, EEOC Appeal No. 0120053018 (April 5, 2007).

National Origin Discrimination Found in Nonselection. The Commission found that complainant was subjected to discrimination based on her national origin (Hispanic) when she was not selected for an Administrative Support Specialist position. The Commission rejected the agency's assertion that complainant had performance problems in her prior position, and lacked contracting and purchasing experience. While one of the panel members who recommended the selectee stated that he heard complainant failed to adequately track invoices, and left unfinished work, the co-worker who took over complainant's job denied those assertions. Further, complainant's prior supervisor stated that complainant's work was outstanding, and denied that there was any unfinished work. In addition, complainant's application clearly stated that she had purchasing and contracting experience. Thus, the Commission concluded that the record showed that complainant was more qualified than the selectee. Finally, three witnesses suggested that one of the panel members had difficulty working with Hispanics. Therefore, the Commission found that complainant was discriminated against based upon her national origin. The agency was ordered to promote complainant to the position in question, with back pay and benefits. Cecilia Villarruel v. Department of Justice, EEOC Appeal No. 0120053427 (March 30, 2007), request to reconsider denied, EEOC Request No. 0520070472 (September 27, 2007).

Racial Harassment Found in Remarks. The Commission found that complainant, who is Caucasian, was subjected to racial harassment over a period of two years. Specifically, both managers and co-workers used various racially derogatory terms when referring to complainant. Further, the evidence showed that management generally condoned racially related comments made by African-American supervisors and co-workers of a "black versus white" mentality frequently voiced at the work place. Complainant presented voluminous and detailed contemporaneous notes that reflected a pervasive hostile work environment. The Commission noted that the agency made no attempt to show that it should not be held liable for the actions of its supervisors. The agency was ordered to pay complainant $10,000.00 in compensatory damages, based, for example, on complainant's testimony that he took anxiety medication, which he had previously never needed. He further testified that his work life was stressful; that it made him upset; and that he took his frustrations out on his family. The agency was also ordered to provide training to all management and staff at the facility. Mark Brown v. United States Postal Service, EEOC Appeal No. 0720060042 (April 11, 2007).

--Under Multiple Bases—

Race and Gender Discrimination Found With Regard to Denial of Detail. Complainant filed a formal EEO complaint alleging, among other things, that he was discriminated against when he was denied a detail assignment to Labor Relations. The Commission found that, while the agency articulated a legitimate, nondiscriminatory reason for the action, that is, complainant lacked the knowledge that certain other candidates possessed and that it was not appropriate to detail a bargaining unit employee to Labor Relations, complainant showed that those reasons were a pretext for race (Caucasian) and gender discrimination. Specifically, the record showed that several bargaining unit employees, all of whom were African-American, were detailed into positions in Labor Relations both before and after complainant's request. Further, complainant was particularly qualified for the detail based upon his experience as a Step 2 Designee and union steward, experience which the other candidates lacked. Thus, the Commission found that complainant was subjected to race and gender discrimination when he was denied a detail assignment. The agency was ordered to offer complainant the detail assignment, with appropriate back pay and benefits, and pay him compensatory damages. Michael Stewart v. USPS, EEOC Appeal No. 0720050002 (May 16, 2007).

Race, Gender and Age discrimination Found in Nonselection. Complainant worked for the agency as a Supervisory Deputy with the U.S. Marshals Service. After he applied and was not selected for the position of Assistant Chief Deputy U.S. Marshal, he filed a formal EEO complainant, alleging race (African-American), gender, and age (48) discrimination. Both complainant and the selectee were placed on the best qualified list, and the Career Board recommended the selectee (a 34-year old Caucasian female) based upon her experience at the training academy, her experience as a Supervisory Deputy and Acting Chief Deputy, collateral duties, and the results of an interview. The Commission, however, found that the record showed that complainant's qualifications were observably superior to those of the selectee. Specifically, complainant had far more experience acting as the Chief Deputy U.S. Marshal. In addition, while the Recommending Official stated that complainant had leadership deficiencies and took no new initiatives, the former Chief Deputy described complainant as a good supervisor, and complainant received two quality step increases for his superior leadership. Thus, the Commission concluded that the agency's stated reasons for not selecting complainant for the position in question were a pretext for discrimination. The agency was ordered to appoint complainant to the position of Assistant Chief Deputy U.S. Marshal, with back pay and benefits, and pay complainant $50,000.00 in compensatory damages for emotional distress and humiliation, as well as injury to complainant's character, reputation, and professional standing. The agency was also ordered to pay attorney's fees. James Washington v. Department of Justice, EEOC Appeal No. 0720060092 (February 8, 2007), request for reconsideration denied, EEOC Request No. 0520070324 (June 15, 2007).

National Origin and Disability Discrimination Found in Denial of Overtime, Promotion, and Reasonable Accommodation. The Commission affirmed the Administrative Judge's finding that complainant was discriminated against on the bases of his national origin (Iranian), and disability (ruptured lumbar vertebrae and discs) when he was denied overtime, not promoted to the position of Director, Resources and denied an ergonomic chair. While the agency cancelled the vacancy announcement for the Director position, the record showed that complainant received the highest score on the certificate of eligibles. Further, complainant repeatedly requested overtime and an ergonomic chair, but his requests were either ignored or denied while others outside of his protected groups were provided with overtime and/or ergonomic chairs. Thus, the Commission concluded that complainant was subjected to discrimination with regard to those matters. The agency was ordered to revise complainant's Official Personnel File to reflect a promotion to the Director position, and pay complainant back pay and $25,000 in compensatory damages. Heshmat Ansari v. Department of the Treasury, EEOC Appeal Nos. 0720070054, 0120070238 (June 15, 2007).

Retaliation Found

(In the decisions summarized below, the Commission found that complainants had been retaliated against for their prior EEO activities. –Ed.)

Denial of Sick Leave. Complainant filed a formal complaint alleging, among other things, that she was subjected to reprisal discrimination when she was denied sick leave and required to submit a medical clearance to return to work. According to the record, complainant represented another employee in an EEO complaint, and the actions at issue occurred approximately two months later. In addition, the Administrative Judge found the statement of the responsible official to be contradictory. For example, the official vehemently testified that he had no connection with to the postal facility at the time of complainant's protective activity (representing another employee in an EEO case against the official's friend), evidence showed that he did have frequent contact with the facility. Thus, the Commission concluded that complainant was subjected to reprisal discrimination. The agency was ordered to pay complainant $40,000.00 in compensatory damages based on complainant's own credible testimony regarding her stress and health issues during the subject period. The agency was also ordered to expunge all references to leave restriction in its personnel records, and restore the sick leave complainant used. Linda Dickerson v. United States Postal Service, EEOC Appeal No. 0720060043 (April 20, 2007).

Publicizing EEO Activity. The Commission found that complainant was subjected to reprisal when an Administrative Law Judge discussed her EEO activity during a meeting with office staff, and when the agency documented several performance expectations on her performance appraisal form. Complainant, who worked as a Group Supervisor, filed a prior EEO complaint. According to the record, the Judge held three meetings with employees, Administrative Law Judges and managers during which he announced that that a Group Supervisor had filed an EEO complaint and was disrupting office operations. The Judge implied that an EEO Counselor indicated that the complaint was unfounded. Two witnesses stated that the attendees at the meetings were well aware that the Judge was referring to complainant. The Commission found that the Judge's conduct was likely to deter protected activity, and constituted reprisal discrimination. Further, the record showed that while the agency stated that complainant failed to adhere to on-going discussions regarding her performance, complainant received successful appraisals during the previous two years, and there was no evidence that complainant's performance had been declining for "some time" as management asserted. The Commission found it significant that the agency documented several performance expectations only days after the Judge discussed complainant's EEO complaint during the staff meeting. The agency was ordered to conduct a supplemental investigation with regard to the issue of compensatory damages and provide training to the appropriate management officials. Elaine Jenkins v. Social Security Administration, EEOC Appeal No. 0120053328 (March 30, 2007).

Termination From Casual Appointment. The Commission found that complainant was subjected to reprisal when the agency terminated his temporary casual appointment. Complainant told the Postmaster that he believed the supervisor disfavored him and changed his work schedule because he is Chinese. The Commission found that complainant engaged in protected activity (opposing in good faith alleged national origin discrimination) during the meeting with the Postmaster, and was terminated three months later. Further, the Commission found that the agency failed to articulate a legitimate, nondiscriminatory reason for the action. Although complainant was a temporary employee, the agency failed to explain why it chose to terminate complainant at the time it did, when it had renewed his employment each term for approximately five years. The agency was ordered to reinstate complainant to his casual position, with back pay. Ken Leung v. United States Postal Service, EEOC Appeal No. 0120063435 (June 8, 2007).

Termination From Probationary EOA Position. Complainant filed a formal EEO complainant alleging that she was subjected to reprisal when she was terminated from her probationary Equal Opportunity Assistant (EOA) position. Complainant's supervisor maintained that he terminated complainant because he received notification that her probationary period was coming to an end. The record, however, showed that only after complainant indicated in an e-mail that she had no choice but to file a "grievance or EEO" against the Lead Equal Opportunity Specialist was she notified of any performance and conduct issues. Further, complainant's supervisor rated her as "Highly Successful." In addition, the supervisor stated that he never observed complainant behaving in an unprofessional manner. Thus, the Commission found that the agency's articulated reasons for the action were a pretext for reprisal discrimination. The agency was ordered to provide complainant with back pay from the date of her termination to the date she began working for another employer, and pay her compensatory damages. Sabrina Embrey v. Department of Housing & Urban Development, EEOC Appeal No. 0720060090 (April 24, 2007), request for reconsideration denied, EEOC Request No. 0520070579 (June 25, 2007).

Denial of Promotion. Complainant filed a formal EEO complaint alleging that she was denied a promotion because of her prior EEO activity. The Commission found that complainant established a prima facie case, in that the nonselection occurred approximately four months after complainant engaged in EEO activity, and the selecting official was aware thereof. The Administrative Judge further found the testimony of the selecting official was not credible. The Judge noted that the selecting official demonstrated that she not only listened to rumors, but repeated them in the workplace. In addition, the selecting official's demeanor and manner in testifying left the impression that she was hiding something. Specifically, the selecting official was overly emotional while testifying, and at times evasive and hostile. Finally, the evidence showed that the selecting official did not in fact believe that the selectee was the best qualified candidate. The record showed a change in the selection criteria with regard to complainant's application, and two of the three panel members who reviewed the applications recommended complainant for selection. Thus, the Commission concluded that complainant was subjected to reprisal with regard to the nonselection in question. The agency was ordered to retroactively promote complainant, with appropriate back pay and interest, and pay her $5,000.00 in compensatory damages. Veronica Drummond-Irving v. Department of Homeland Security, EEOC Appeal No. 0720060051 (May 17, 2007).

Grievances

(See also, "Failure to Cooperate," this issue. –Ed.)

Complainant May Not Bifurcate the Same Claim in the EEO and Grievance Process. In this case, the EEOC determined that complainant's choice not to raise his claim of discrimination in the grievance process, when he could do so, and indeed was required to do so as a matter of election in choosing between the grievance process and the EEO process, precluded him from filing an EEO complaint on the same matter. Thomas M. Panowicz v. Department of Veterans Affairs, EEOC Appeal No. 0120070633 (March 6, 2007).

Jurisdiction

(Cf. "Stating a Claim," this issue. –Ed.)

Commission Has Jurisdiction Over Long term Care Insurance. The Commission held that the provision of long term care insurance (LTC) like health insurance, is a fringe benefit of employment for which the agency has responsibilities under EEO laws. Therefore, such a complaint, alleging discrimination in the provision of such a fringe benefit, falls within the Commission's jurisdiction under the Rehabilitation Act. Complainant claimed that he was denied long term care insurance benefits because of his disability and stated a valid claim. The Commission noted that complaints alleging the discriminatory denial of health benefits are not collateral attacks on an insurance-based decision, but are valid claims of discrimination. Further, the Office of Personnel Management (OPM), in its contractual relationship with the Long Term Care Partners for the provision of this insurance, is the proper party responsible for ensuring that its contract adheres to non-discrimination statutes. Thus, complainant's claim that he was denied long term care insurance benefits because of his disability states a valid claim. Kenneth E. James v. Officer of Personnel Management, EEOC Appeal Nos. 0120054026 & 0120060237 (May 3, 2007) request to reconsider denied, EEOC Request No. 0520070615 (August 16, 2007). See also, Carmine Fornaro, Jr. v. Office of Personnel Management, EEOC Request No. 0520060303 (May 24, 2007) (rejecting the argument that LTC is not available to federal employees "by virtue of employment" because certain federal employees are not automatically eligible for LTC insurance).

Mixed Cases

MSPB Dismissal for Lack of Jurisdiction Renders Case "Unmixed". Complainant filed a formal complaint claiming that he was discriminated against on the bases of disability and age when the agency denied his request to return to work in a light duty position. The agency dismissed the complaint on the grounds that it addressed the same matter that had previously been raised before the Merit Systems Protection Board (MSPB). The EEOC found the agency's dismissal improper because where, as here, MSPB dismisses a matter for lack of jurisdiction, and thus does not address issues of discrimination, it has rendered the matter "unmixed." As such, the claims are amenable to disposition in the EEO process. Roosevelt Mason v. Department of the Army, EEOC Appeal No. 0120070412 (February 21, 2007) .

Petitions For Enforcement

(See also, "Remedies," this issue. –Ed.)

Petition For Enforcement Granted. In a prior decision, the Commission found that petitioner was subjected to discrimination when his temporary appointment to the position of Staff Physician was terminated, and ordered the agency to, among other things, place petitioner back into the position. Petitioner subsequently filed a petition for enforcement, alleging that the agency only extended his appointment through its original ending date. The Commission noted that, in its original decision, it had found evidence that the agency's stated reason for terminating petitioner's appointment, that is, budgetary concerns, was a pretext for discrimination. Specifically, no other physician was ever terminated for budgetary reasons despite the fact that the facility had experienced such problems in the past. The Commission stated that petitioner was to have been placed into the Staff Physician position at the facility where the act of discrimination occurred, unless petitioner declined the offer. In addition, the prior Order did not state that the agency could place petitioner in a temporary position with a not to exceed date that could not be extended as a means of terminating him from the agency. Thus, the Commission determined that the agency failed to fully comply with the prior Order, and instructed the agency to place petitioner back into the Staff Physician position. Rudranath Talukdar v. Department of Veterans Affairs, EEOC Petition No. 0420060042 (April 12, 2007).

Remedies

Commission Finds AJ Abuse of Discretion. Following a finding of gender discrimination, the agency filed an appeal with the Commission challenging the relief ordered by the Administrative Judge. The Judge, after finding that complainant was subjected to gender discrimination when he was not selected for a Program Support Clerk position, ordered that complainant's future applications be processed by a different Human Resources Office. On appeal, the Commission found that the Judge abused her discretion with regard to that portion of the order. The Commission stated that the payment of damages, offer of a similar position, posting notice of the discrimination, EEO training, and consideration of disciplinary action against the responsible management officials constitutes corrective action necessary to remedy the finding of discrimination. In addition, the Judge's requirement that the agency conduct a thorough investigation by managers outside of the facility as to operations is beyond the Judge's discretion in the case. The Commission noted that a thorough investigation had been done in connection with the EEO process. Pierre Sampedro v. Department of Veterans Affairs, EEOC Appeal No. 0720060072 (April 25, 2007).

Commission Finds Agency Engaged in an Interactive Process Consistent with AJ's Order. Complainant filed a formal complaint alleging that she was subjected to disability discrimination when the agency failed to provide her with reasonable accommodation resulting in her discharge, and an Administrative Judge ultimately found in complainant's favor. The Judge ordered the agency, among other things, to engage in an interactive process to determine whether complainant could perform the essential functions of her prior position. Believing that the agency failed to comply with that provision of the Order, complainant filed an appeal with the Commission. On appeal, the Commission found that the agency had in fact complied with the Order by engaging in the interactive process. Specifically, the agency requested pertinent documentation from complainant, and made an evaluation of complainant's ability to perform the position based upon medical assessments contained in the documentation provided by complainant. The agency then considered various accommodations and assessed how effective each would be in enabling complainant to complete necessary training. The Commission noted that complainant failed to provide various medical documentation to the facility's District Manager. The Commission also noted that there was no evidence that the agency failed to comply with the remaining portions of the Order. Melinda Locke v. Social Security Administration, EEOC Appeal No. 0120053174 (March 30, 2007).

Sanctions

Sanctions Upheld. The Commission upheld the decision by the Administrative Judge to exclude the agency from presenting witnesses at the hearing. Previously, the parties had entered into a settlement agreement with regard to the underlying claim of sex and age discrimination. After complainant notified the agency of an alleged breach, the agency forwarded the case to the AJ for a hearing. The agency representative then indicated, during pre-hearing discussions, that the agency might contest the AJ's jurisdiction. The AJ ordered the agency to produce an official response to the breach allegation. Subsequently, despite conceding that the AJ had jurisdiction, in response to the Order to Show Cause, the agency filed a summary judgment motion contending that the AJ lacked jurisdiction. The AJ found the motion, which was filed 15 days before the scheduled hearing, to be "grossly untimely and totally inconsistent with the response to the Order to Show Cause." Denying the motion, the AJ imposed sanctions by excluding the agency's witnesses from testifying at the hearing, and ultimately found discrimination in the underlying matter. On appeal, the Commission found that the AJ acted within his discretion in imposing sanctions in the case, given the underlying circumstances surrounding the agency's actions. Kenneth Fleming v. USPS, EEOC Appeal No. 0720050083 (April 3, 2007), request for reconsideration denied, EEOC Request No. 0520070505 (June 20, 2007).

Settlement Agreements

Breach of Settlement Found: Complainant Ordered to Return Benefits if Complaint Reinstated. Complainant and the agency entered into a settlement agreement, which provided that the agency's Office of Civil Rights (OCR) would not allude to complainant's previous involvement with a sexual harassment incident during training sessions. The Commission found that the agency breached the settlement when, during a sexual harassment training session, a member of the OCR provided information that allowed other employees to sufficiently identify several individuals—including complainant—involved with past incidents of harassment. In this case, complainant chose to seek reinstatement of his underlying complaint,. The Commission directed that if he wished to pursue his underlying complaint, instead of obtaining specific enforcement of the agreement, complainant would have to return any benefits—such as restoration of sick leave used and the payment of attorney's fees—that he may have received pursuant to the agreement. Norbert C. Tagge v. Department of State, EEOC Appeal No. 0120070848 (January 4, 2007).

Stating A Claim

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

Steven D. Cook v. Department of State, EEOC Appeal No. 0120070554 (March 7, 2007) (complainant's allegation that he resigned after allegedly told he might lose position if he filed EEO claimed based on race, sets forth claim of retaliation)

Roosevelt Mason v. Department of the Army, EEOC Appeal No. 0120070412 (February 21, 2007) (claim that agency denied complainant's request to return to work in a light duty position, allegedly based on age and disability, while other employees were provided with light duty, alleges harm to a term, condition or privilege of employment and thus raises a claim within the purview of the EEO regulations)

Brad E. Sturman v. Department of Transportation, EEOC Appeal No. 0120070036 (March 9, 2007) (claim that agency facility manager placed religious literature in the main office, allowed her staff to hang Christmas decorations during business hours, but did not hang Chanukah decorations, sufficient to set forth claim of hostile or abusive work environment based on religion (Jewish))

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

Estate of Richard M. Krinsky v. United States Postal Service, EEOC Appeal No. 0120070431 (March 2, 2007) (wife who was executrix of decedent's estate has no standing to file a complaint on decedent's behalf where he had not initiated the EEO process prior to his death)

Aleta L. Walker v. Department of Agriculture, EEOC Appeal No. 0120072882 (October 15, 2007) (allegation that Special Agent created a hostile work environment on several protected bases, including retaliation, by implicitly accusing complainant, a Law Enforcement Officer who was working with the Special Agent in a criminal trial, of mishandling evidence failed to state a claim of an adverse employment action; nor was the complained of action reasonably likely to deter complainant or others from engaging in protected activity)

Michael Delabar v. United States Postal Service, EEOC Appeal No. 0120073551, (October 15, 2007) (an independent contractor's claim of sex and reprisal discrimination based on the agency's termination of his highway contract route with the agency not cognizable where he was neither a federal employee nor applicant for federal employment)

Timeliness

EEO Counselor Contact Timely Where Aggrieved Person Reasonably Relies on Request of Agency Official for Time to Take Corrective Action. Complainant's claim that she was subjected to discrimination on the basis of sex (female) when she was sexually harassed by a coworker was dismissed for untimely EEO counselor contact. Complainant argued that her counselor contact was untimely due to the fact that she first contacted the Director of Security and Counterintelligence in a timely manner and he requested 30 days to resolve the issue. The Commission found that it was reasonable for complainant to believe that she had to wait the 30 days requested by the Director to see if he would take corrective action. Once she learned that he was not going to move the coworker to another location, complainant promptly sought EEO counseling. The Commission found that the counseling was timely—finding no indication that complainant rested on her rights-- and remanded the claim to the agency. Paula G. James v. Department of Defense, EEOC No. 0120072143 (June 21, 2007).

Withdrawal of Complaint

Complaint Deemed Abandoned Where Withdrawal Knowing and Voluntary. The EEOC rejected complainant's argument that the withdrawal of his complaint was a mistake. The withdrawal notices were succinctly worded, and there was no evidence that the agency mislead complainant into signing the withdrawal of his EEO claims. Clinton Bowers v. Department of Veterans Affairs, EEOC Appeal No. 0120063919 (March 7, 2007).

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A CASE UPDATE: MISUSE OF THE EEO PROCESS

EEOC regulations provide for the dismissal of a complaint for misuse of the EEO process.¹ Misuse of process is defined as a clear pattern of using the EEO process for purposes other than the prevention and elimination of employment discrimination.² The Commission strongly favors preserving a complainant's EEO rights whenever possible. Therefore, the dismissal of a complaint should be made only in cases where there is a clear misuse of the administrative process.³

Standards for Dismissal

In determining whether a complaint, or group of consolidated complaints, should be dismissed for misuse of the EEO process, the agency or Administrative Judge must strictly apply the criteria established by the Commission.⁴ Specifically, a clear pattern of misuse of the EEO process requires: (1) evidence of multiple complaint filings; and (2) allegations that are similar or identical, lack specificity or involve matters previously resolved, or evidence of circumventing other administrative processes, retaliating against the agency's in-house administrative process, or overburdening the EEO complaint system.⁵ Evidence of numerous complaint filings, alone, will not support a dismissal for misuse of the process. Nevertheless, when determining whether a complainant has engaged in a pattern of misusing the EEO process, the Commission will consider whether there are multiple filings on the same issues, or a lack of specificity in the allegations, and whether complaints are filed which raise allegations previously raised in prior complaints.⁶

A Case Overview

Misuse of the EEO Process Found

In Aleksandr J. Stoyanov v. Department of the Navy,⁷ complainant filed six complaints alleging that he was discriminated against when he was not referred or selected for various positions and assignments within the agency. On appeal, the Commission determined that the complaints were properly dismissed for misuse of the process. According to the record, complainant had previously been removed from the agency, and both the Commission and the Merit Systems Protection Board found that the removal was not discriminatory. Nevertheless, complainant continued to apply for positions with the agency, stating in his application that he was a current employee. Complainant acknowledged filing more than 25 complaints over approximately four and one-half years. While the Commission noted that filing numerous complaints alone is not a sufficient basis for dismissal, in this case complainant continued to argue that his removal was wrongful and that he was a current agency employee. In addition, complainant continued to apply for positions despite knowing that he was not qualified, and subsequently filed EEO complaints when he was not selected. The Commission concluded that complainant's only objective in applying for these positions and continuing to raise arguments that had been decided by two administrative tribunals was to file a futile EEO complaint in order to retaliate against the agency. The Commission stated that it would not permit complainant to utilize the EEO process to circumvent the administrative process and overburden the system.

In a subsequent decision, Aleksandr J. Stoyanov v. Department of the Navy,⁸ the Commission again found that complainant was misusing the EEO process. In this case, complainant filed eight formal complaints alleging that he was not referred or selected for various positions within the agency. The Commission reiterated that, because he knew he was not a current employee, complainant was aware that he would not be selected even before applying for the jobs. The record did not show that complainant's circumstances had changed, and he did not show that he had either gained employment with the agency or that others who were not currently employed were considered for the positions. Thus, the Commission determined that complainant's only objective in applying for the positions was to contest his removal and retaliate against the management officials he believed had wronged him.

In Arthur Abell v. Department of the Interior,⁹ the Commission affirmed the dismissal of the underlying complaints, finding that complainant had engaged in the misuse of the EEO process. Complainant was removed from the agency in 1993. Subsequently, he applied for numerous positions, and, following each nonselection, complainant filed a complaint alleging gender, age, race, and reprisal discrimination. In all, complainant filed at least 43 complaints, the most recent concerning his nonselection for ¹⁰ Administrative Officer positions at various locations.

Prior to a hearing being held in the underlying complaint, an Administrative Judge dismissed the claim for misuse of the process. The Judge noted that none of complainant's approximately 43 complaints had resulted in a finding of discrimination by the Commission, the U.S. Court of Appeals, or the Merit Systems Protection Board. In addition, the Judge stated that the complaints were frequently untimely, duplicative, and meritless, used the same allegations, and lacked specificity regarding the exact action complained of. The Judge described the complaints as "templates," in that they involved identical, nonspecific allegations regardless of the facts of the specific complaint. The Judge also noted that complainant's request to present 72 witnesses at the hearing, including the Chair of the Commission, the former Chair of the Commission, and the head of the agency, evidenced an intent to create unnecessary expense for the agency and overburden the EEO process. Finally, the Judge stated that complainant intended to continue to apply for positions with the agency that he had no intention of accepting, for the sole purpose of filing EEO complaints.

The Commission ultimately concurred with the Judge's findings, stating that the evidence showed that complainant used the EEO process for the purpose of overburdening the EEO system. Citing Love v. Pullman, Inc., 404 U.S. 522 (1972), the Commission noted that occasions in which the application of the abuse of process standards are appropriate must be rare, because of the strong policy in favor of preserving a complainant's EEO rights. In this case, however, complainant's multiple EEO filings evidenced a clear intent to overburden the EEO system with duplicate and redundant complaints. Specifically, complainant applied for multiple positions, some of which he likely had no interest in other than as a vehicle to file an EEO complaint, with the intent to "clog" the EEO system.

Subsequently, in Arthur J. Abell, Jr. v. Department of the Interior,¹¹ the Commission affirmed the agency's dismissal of six complaints of nonselection on the grounds that complainant misused the EEO process. On appeal, the Commission again found that complainant pursued a scheme involving the misuse of the administrative process. The Commission noted that complainant's filings consisted of "template" complaints, in which he merely changed the job title and location of the vacancies. The allegations in the complaints were nearly identical and duplicative. In addition, the Commission noted that complainant continued to apply for positions for which he was not qualified, thereby evidencing a pattern of abuse. Finally, the Commission noted that complainant had filed 39 appeals subsequent to his removal from the agency, which also indicated an intent to overburden the EEO complaint process.

The Commission found that the complainant in Walker v. United States Postal Service,11 also engaged in an misuse of the EEO process such as would warrant dismissal of his complaint. Complainant asserted that he was subjected to discrimination when he was not considered for employment. According to the record, complainant initially filed a formal complaint in 1993, with regard to the denial of his requests for reinstatement. The Commission noted that, since that time, complainant has received 30 appeal decisions regarding the denial of reinstatement, and the issue was considered by the United States District Court, and the Court of Appeals for the Eighth Circuit. The Commission found that, rather than seeking relief from discrimination, complainant made a concerted attempt to retaliate against agency officials when he filed the instant complaint. Specifically, complainant filed repeated complaints against the same agency officials, raising claims similar or identical to those on which he had already received a decision. In addition, the Commission found that complainant was overburdening the EEO process.

Misuse of the EEO Process Not Found

In Richard Gong v. Department of the Interior,¹² complainant filed four EEO complaints after he was not selected for Park Ranger positions. On appeal, the Commission found no evidence that complainant misused the EEO process when he filed the complaints. The Commission noted that complainant applied for numerous positions with the agency at various locations. Further, the record showed that complainant believed the selecting officials were able to determine his protected classes from the paperwork he submitted, and made their decisions accordingly. Despite complainant's having filed approximately 40 prior complaints, the Commission found nothing to indicate that complainant had a clear intent to use the EEO process for impermissible purposes.

The Commission also found no evidence that the complainant misused the EEO process in Cort P. Mitchell v. Department of the Air Force.¹³ Complainant filed two formal EEO complaints alleging discrimination with regard to his performance appraisal, an oral admonishment, a new position description, and a suspension. Prior to a hearing being held, the Administrative Judge issued "Mandatory Interrogatories" to both parties. When complainant failed to respond, the Judge issued an Order to Show Cause why sanctions should not be imposed on complainant. Complainant then responded, stating that he was "distraught and apprehensive" from dealing with the agency's lack of accountability with regard to EEO matters. Complainant also provided brief answers to the interrogatories. Further, in response to a second Order to Show Cause, complainant provided factual correction regarding the nature of his complaint and scope of the proposed witness list. Following the dismissal of the matter for misuse of the process, complainant filed an appeal with the Commission. The Commission, upon reviewing the record, concluded that complainant's actions did not rise to the level of contumacious conduct such as to support the dismissal of his complaints. The Commission noted that complainant provided answers, albeit late and non-responsive, to the interrogatories. In addition, there was no evidence that complainant had exhibited a clear pattern of misuse of the EEO process. The Commission determined, however, that the Administrative Judge's decision to cancel the hearing was an appropriate sanction.

In Wilfredo Romero v. Department of Defense,¹⁴ complainant filed a formal complainant alleging that he was discriminated against when he was not selected for an Auditor position. Complainant subsequently submitted additional information as background evidence with regard to his complaint. The agency dismissed the complaint, stating that complainant had filed multiple complaints alleging identical or similar issues, and that the matter was resolved in a prior settlement agreement. In addition, the agency asserted that complainant had previously challenged the suspension of his security clearance, which was a requirement for the position, and was attempting to use the EEO process to circumvent the revocation of his clearance. On appeal, the Commission rejected these assertions, and found that the evidence failed to show that complainant misused the EEO process. The Commission noted that the agency failed to identify the cited multiple complaints alleging the same or similar issues, or provide a copy of the settlement agreement to which it referred. Thus, the Commission concluded that the dismissal of the complaint was improper.

In Mark Kessinger v. United States Postal Service,¹⁵ the Commission found the evidence insufficient to support a dismissal of the complaint for misuse of the EEO process. Complainant filed two complaints alleging that he was subjected to discrimination when he was suspended, denied overtime, yelled at and shoved by his supervisor, and given unfavorable assignments. On appeal, the Commission noted that it had previously found that complainant had a history of abusing the EEO process with multiple duplicative filings.¹⁶ The Commission stated, however, that it does not automatically follow that any subsequent filings constitute misuse of the EEO process. In this case, there were only two complaints filed, each of which concerned legitimate claims of discrimination. While complainant also raised concerns regard the processing of his prior complaints, the Commission found that those matters were properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(8).

The complainant in Claudio A. Castillo v. Broadcasting Board of Governors,¹⁷ filed a formal complaint raising an issue of discrimination with regard to instructions he received for using an editing room. The agency dismissed the complaint, indicating that complainant had filed two prior complaints concerning the scheduling of the room. On appeal, the Commission found, however, that the record did not show that complainant misused the EEO process. Although complainant filed two prior complaints which were related to the present issue, the current complaint concerned a distinct, separate matter. The Commission also noted that neither the number nor the subject matter of the claims evidenced a clear intent by complainant to circumvent the administrative process or overburden the EEO system.

In Debbie R. Tipler v. United States Postal Service,¹⁸ the complainant filed a complaint in which she stated that she was subjected to disability and reprisal discrimination and harassment from May 2001 through June 2001. Complainant later requested that her complaint be amended to include additional incidents of harassment. The Commission concluded that the complaint did not constitute an abuse of process, and that there was insufficient evidence to show that complainant used the EEO process for the purpose of circumventing other administrative processes or overburdening the EEO system. While complainant included multiple claims in her complaint, the claims concerned distinct issues, and were not duplicative claims on the same matters.

In Delores Lambert v. Social Security Administration,¹⁹ the Commission also found the evidence insufficient to support a dismissal for misuse of the EEO process. Complainant filed seven complaints from 1994 through 1996, which raised various claims of discriminatory nonselection, religious compensatory time, and reasonable accommodation. In addition, complainant made numerous allegations regarding her union activity, the representation of others in the EEO process, and her workers' compensation claim. An Administrative Judge recommended that the majority of the claims be dismissed for misuse of the process, noting that complainant filed 41 prior EEO complaints, many involving identical union and EEO representation issues. The Commission found that, although complainant raised similar issues in her prior complaints, the claims at issue involved different dates, and were, therefore, not identical in every respect. In addition, complainant raised the issues before learning, by way of the prior dismissals, that the matters were not properly raised in the EEO process.

Conclusion

As stated, the Commission has a strong policy favoring the preservation of an individual's EEO rights whenever possible. Nevertheless, the EEOC regulations provide for the dismissal of complaints when there is evidence of a misuse of the EEO process. Such dismissals, while rare, will be made when there is a clear pattern of misuse of the process for purposes other than the elimination of employment discrimination.

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Footnotes

¹ 29 C.F.R. § 1614.107(a)(9).

² See, Buren v. United States Postal Service, EEOC Request No. 05850299 (November 18, 1985); Kleinman v. United States Postal Service, EEOC Appeal No. 01943637 (September 22, 1994).

³ See, Wrenn v. EEOC, EEOC Appeal No. 01932105 (August 19, 1993).

⁴ 29 C.F.R. § 1614.107(a)(9).

⁵ 29 C.F.R. § 1614.107(a)(9)(i)-(iii).

⁶ Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO Md-110),

⁷ EEOC Appeal Nos. 01A60843, et al. (August 31, 2006), request for reconsideration denied, EEOC Request No. 0520061084 (October 31, 2006).

⁸ EEOC Appeal Nos. 0120063475, et al. (April 20, 2007).

⁹ EEOC Appeal No. 01A33023 (May 13, 2004).

¹⁰ EEOC Appeal No. 01A50288 (July 28, 2005).

¹¹ EEOC Appeal No. 01A05028 (July 20, 2001), request for reconsideration denied, EEOC Request No. 05A11062 (March 4, 2002).

¹² EEOC Appeal No. 0120061551 (February 28, 2007).

¹³ EEOC Appeal No. 01A52723 (July 18, 2006).

¹⁴ EEOC Appeal No. 01A61973 (June 20, 2006).

¹⁵ EEOC Appeal No. 01A50004 (November 22, 2005).

¹⁶ See, Kessinger v. USPS, EEOC Appeal Nos. 01986948, et al. (August 10, 2000).

¹⁷ EEOC Appeal No. 01A53843 (September 12, 2005).

¹⁸ EEOC Appeal No. 01A22373 (April 1, 2003), request for reconsideration denied, EEOC Request No. 05A31156 (September 17, 2003).

¹⁹ EEOC Appeal No. 01992071 (July 11, 2002), request for reconsideration denied, EEOC Request No. 05A21071 (August 21, 2003).