The DIGEST Of Equal Employment Opportunity Law

Volume XVI, No.4

Office of Federal Operations

Fall Quarter 2005

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Inside

Selected EEOC Decisions on:

Article

A CASE UPDATE: RECENT DECISIONS ON CONSTRUCTIVE DEMOTION

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SELECTED EEOC DECISIONS

Age/Disparate Impact Discrimination

Age Claim Fails for Lack of Evidence, Not Because of Invalid Theory. The Commission concurred with the finding of the Merit Systems Protection Board (MSPB) that petitioners failed to show age discrimination. EEOC found that petitioners had failed to establish a prima facie case of disparate impact discrimination because of insufficient statistical evidence showing that the practice identified had a disproportionate impact on older workers. The Commission further found, however, that MSPB's determination that claims of disparate impact discrimination could not be brought under the Age Discrimination in Employment Act (ADEA) was contrary to the Commission's position, and that of the Supreme Court in its decision, Smith v. City of Jackson, 125 S.Ct. 1536 (2005). Brown and Hill v. Department of Defense (Defense Commissary Agency), EEOC Petition Nos. 03A50040 and 03A50041 (September 15, 2005).

Attorney's Fees

Party Seeking to Deviate From the "Lodestar" Has Burden of Justifying Deviation. Complainant's attorney filed a petition with the agency seeking $25,532.50 in attorney's fees for 134 hours of service. The agency's final decision (FAD) reduced the amount to $4,137.60, for 17 hours of service. The Commission disagreed and noted that where, as here, a party seeks to reduce the "lodestar," i.e., the number of hours reasonably expended by the attorney in question multiplied by a reasonable hourly rate, the party seeking to deviate from the lodestar has the burden of justifying the propriety of such a deviation (citing Management Directive-110, at 11-8). The Commission stated that there is a strong presumption that this amount represents the reasonable fee, though in limited circumstances this amount may be reduced or increased in consideration of the degree of success, quality of representation, or delay. The Commission found that the billable hours claimed by complainant's attorney were not excessive or duplicative, but rather were reasonable in view of the complexity of the factual and legal matters at issue, the extent and intensity of the litigation efforts on the part of both parties, and the voluminous record generated by the case on appeal. The Commission also noted that, given the extent and duration of the litigation, it was not unusual that some of the pleadings contained overlapping facts and arguments. EEOC ordered the agency to pay $26,657 in attorney's fees, including $1,125 for services rendered in connection with the appeal. Hendley v. Department of Justice, EEOC Appeal No. 01A43034 (March 30, 2005).

Attorney's Fees Not Available in Age Discrimination Cases; Intertwining of Facts With Title VII Permits Award of Attorney's Fees. An EEOC Administrative Judge (AJ) found that the agency had violated both Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), and the ADEA, when it did not select complainant for the position of Taxpayer Resolution Representative. On appeal, the Commission affirmed the AJ's decision. The Commission noted that attorney's fees are not available under the ADEA at the administrative level, and that complainant's entitlement to such relief resulted from the Commission's conclusion that the agency also violated Title VII. Because the discriminatory action at issue was inextricably intertwined with the two bases (race and age), EEOC determined that a reduction in the amount of attorney's fees would not be appropriate. The Commission ordered the agency to retroactively promote complainant and pay $1,700 attorney's fees. Casey v. Department of the Treasury (Internal Revenue Service), EEOC Appeal No. 07A40103 (March 17, 2005).

Attorney's Fee Award Proper. Pursuant to a prior Commission decision finding breach of settlement and ordering the agency to comply with the agreement, complainant's attorney filed a petition for attorney's fees in connection with the appeal. On appeal from the agency's denial of the petition, the Commission found that complainant was a prevailing party, and that he was entitled to an award of attorney's fees in connection with his prior appeal. The Commission found that securing a change in job title was not de minimis, as the agency had argued, noting that the agency did not challenge complainant's assertion that the change in job assignments would involve additional supervisory and managerial duties. Thus, complainant was entitled to an award of attorney's fees and costs, which the Commission found to be $5,639. Burns v. Department of Commerce, EEOC Appeal No. 01A40530 (August 2, 2005).

Civil Actions

Complaint Not Subject to Dismissal on the Grounds that a Civil Action was Filed. Complainant filed a formal complaint alleging that she was subjected to race, national origin, sex, religion, and reprisal discrimination. In addition, complainant filed a request for injunctive relief in a United States District Court. The Commission found that the filing in District Court, which was made under the Administrative Procedures Act, the Mandamus and Venue Act, and the Declaratory Judgment Act, did not raise claims of discrimination under Title VII. Thus, the civil action did not allege violations of the same statute which was the basis of the administrative complaint, and dismissal of the complaint was therefore improper. Renier-Dow v. Department of Veterans Affairs, EEOC Appeal No. 01A53706 (August 24, 2005).

Class Actions

(In the following decisions, the Commission affirmed the EEOC AJ's determination that the putative class should not be certified.)

Class Agent Fails to Show Commonality and Typicality. The AJ found that complainant presented an "across-the-board" complaint, without sufficient evidence to show the existence of common facts, policy, or practice resulting in the discrimination claimed. The AJ found that complainant merely asserted a variety of harms from a range of policies and practices. The AJ determined that the only common element established by complainant was the race of the putative class, and found that this was insufficient to permit certification. The agency adopted the AJ's decision. In its affirmance, the Commission found that the class agent's request for class certification failed because it did not meet the requirement of commonality or typicality. Thus it was not necessary to reach the questions of adequacy of representation and numerosity. Mitchell, Jr., et al., v. Department of the Air Force, EEOC Appeal No. 01A42828 (September 1, 2005).

Class Complaint Fails to Satisfy Requirements of Commonality, Typicality, and Numerosity. The Commission agreed with the AJ's conclusion that complainant failed to satisfy the commonality and typicality elements. Regarding complainant's assertions pertaining to alleged discrimination under the agency's Affirmative Employment Plan (AEP), the Commission found that complainant, an external applicant, failed to submit evidence showing that his interest in being selected for the position at issue (an accounting position at the named activity), was the same interest as the employees in the unrelated job categories identified on the AEP. Complainant presented no evidence that any current or former minority employee of the agency, reflected in the AEP statistical profile, was qualified for the same accounting positions for which complainant had applied. Nor, declared the Commission, was there evidence that these individuals (i.e., qualified, current employees) underwent the same selection process as complainant, an external candidate. Further, even if there were non-white employee applicants, the record contained no statement from any such individual asserting that their nonselection was discriminatory in the same manner as claimed by complainant. The Commission concurred with the AJ's primary reason that complainant (race, African-American) failed to establish commonality or typicality in his failure to provide evidence identifying the race of the proposed class members. The Commission disagreed with complainant's contention that he did not have to identify the race of the class members to demonstrate commonality and typicality. Aside from speculation, the Commission found no evidence regarding the race of the non-selected applicants, or whether they considered themselves aggrieved in the same manner as claimed by complainant. The Commission also concluded that complainant could not demonstrate numerosity absent a showing of the race of the nonselectees. White, et al., v. Department of the Air Force, EEOC Appeal No. 01A42449 (September 1, 2005).

Class Certification Denial Affirmed. The class agent alleged unlawful retaliation with regard to detail assignments and overtime. The Commission initially noted that, with regard to detail assignments, the only protected EEO activity cited occurred after the actions at issue. Further, there was no information regarding the protected EEO activity of the members of the class. As for the overtime issue, the Commission found that the class agent failed to satisfy the typicality requirement, when she failed to show that she possessed the same interest and suffered the same injury as members of the proposed class. Finally, given the representative's failure to respond to the AJ's Order or provide a statement on appeal, the Commission determined that the proposed class also failed to meet the requirement of adequacy of representation. Grigsby, et al., v. United States Postal Service, EEOC Appeal No. 01A31931 (August 2, 2005).

Collateral Estoppel

Collateral Estoppel Applied. Complainant filed a formal complaint alleging retaliation with regard to his termination. Previously, complainant had filed a civil action with regard to the finding that he was unfit for duty, and the District Court granted the agency's motion for summary judgment, finding that complainant had engaged in disruptive behavior sufficient to justify sending him for a fitness for duty examination. The Commission noted that collateral estoppel, or "issue preclusion," bars the relitigation of issues actually adjudicated and necessary to the judgment in a prior litigation between the parties. The Commission found that complainant was collaterally estopped from raising the fitness for duty examination, which was adjudicated in the civil action, and was necessary to a determination on the termination issue. Thus, the complaint was properly dismissed. Kuracina v. United States Postal Service, EEOC Appeal No. 01A42911 (July 29, 2005).

Compensatory Damages

In the following decisions, the Commission ordered the respondent agencies to pay the following awards in compensatory damages to complainants.

$100,000 Awarded in Rehabilitation Act Violation. The Commission upheld an AJ's summary judgment decision finding that complainant was discriminated against on the basis of disability when she was denied a reasonable accommodation, and sustained an award of $29,011 in pecuniary damages. With regard to the award of $100,000 in non-pecuniary compensatory damages, the Commission noted complainant's assertions that, as a result of the agency's failure to provide a reasonable accommodation for more than 18 months, she incurred extreme distress, irritable bowel syndrome, depression, loss of self esteem, and deteriorating health requiring emergency medical care on several occasions. The Commission also ordered the agency to pay complainant $8,767 in attorney's fees and costs. Dildy v. Department of Veterans Affairs, EEOC Appeal No. 07A40115 (March 24, 2005), request to reconsider denied, EEOC Request No. 05A50787 (July 22, 2005).

$25,000 Awarded in Title VII Violation. The Commission sustained the AJ's award of $25,000 in non-pecuniary compensatory damages for emotional distress, after the AJ found that complainant had been discriminated against on the bases of sex (male) and race (African-American) when he was not selected for the position at issue. The AJ noted that complainant was crying during portions of the testimony and was clearly emotionally distraught. Complainant testified that people constantly questioned him about why he did not get the job, that he experienced stress and sleeplessness as a result of the nonselection, and that he had to deal with the nonselection every day. The Commission noted that evidence from a health care professional is not a mandatory prerequisite for recovery of compensatory damages for emotional distress. Brown v. Department of Veterans Affairs, EEOC Appeal No. 07A50013 (March 23, 2005).

$25,000 Awarded for Non-Pecuniary Damages in Retaliation Case Under Title VII. In this matter involving nonselection, the Commission found the AJ's award to be appropriate, rejecting the agency's contention that complainant's pre-existing condition of major depressive disorder rendered the award excessive. The Commission noted that the agency acknowledged that there was other evidence in the record to support complainant's assertion that he suffered emotional harm as a result of the nonselection, including complainant's own statement and statements from other witnesses. In his statement, complainant detailed that he suffered from anxiety, irritability, mood swings, had fluctuating periods of energy and motivation levels and appetite, had problems sleeping, and had difficulty concentrating. Letters from complainant's co-workers supported his claim of mental anguish and his depressive state. The agency conceded that complainant's evidence was sufficient to show that the nonselection exacerbated his pre-existing condition of major depressive disorder. However, the agency argued that complainant failed to establish the severity of the exacerbation. The AJ noted that complainant had to endure embarrassment and humiliation for over a two-year period, and the Commission found that a psychiatrist had diagnosed complainant with major depressive disorder due to multiple stressors. The Commission noted that it had awarded similar amounts of compensatory damages in cases similar to complainant's. Washington v. Department of Veterans Affairs, EEOC Appeal No. 07A50033 (March 25, 2005).

$20,000 Award of Non-Pecuniary Damages Upheld by the Commission. EEOC found that the evidence supported the agency's award. This amount, stated the Commission, took into account the severity and duration of the harm done to complainant by the agency's action, as well as the fact that that a portion of complainant's emotional harm pre-dated the agency's action (race-based discrimination when her position as Geriatric Clinical Coordinator was abolished in conjunction with the abolishment of the Geriatrics and Community Service Line; and she was required to apply for another position with the same qualifications as her former position). Mayfield v. Department of Veterans Affairs, EEOC Appeal No. 01A44178 (March 23, 2005).

$15,000 Awarded for Non-Pecuniary Damages for Religious Discrimination. In a prior appeal, the Commission found that the agency discriminated against complainant by failing to provide her with an accommodation for her religious beliefs when it denied her request for annual leave to observe Good Friday. The Commission remanded the case for a determination of compensatory damages. Following an investigation, the agency awarded no compensatory damages, asserting no nexus between the alleged harm and the discrimination at issue. The Commission noted its application of the principle that a tortfeasor takes its victims as it finds them, and that evidence from a health-care provider or other expert is not a mandatory pre-requisite for recovery of compensatory damages for emotional harm. Complainant, a devout Catholic, stated that her supervisors, who had denied her request for leave, "destroyed her faith and beliefs," and that the denial of her leave request and questioning of her truthfulness in taking the day for religious purposes emotionally tormented her. EEOC found that the record supported the fact that complainant had an extreme reaction to the questioning of the sincerity of her religious beliefs in denying her leave request. The Commission determined that both complainant's treating physician and psychiatrist related her symptoms and diagnosis of post-traumatic stress disorder to the actions of her supervisors. Since one of the actions for which her supervisors were responsible was the discriminatory denial of leave for a religious observance, the Commission concluded that their statements provided a connection to complainant's medical condition. Comparing similar cases and considering the severity and duration of the harm, the Commission found that $15,000 was reasonable to compensate complainant for her extreme emotional distress. Manalo v. Department of the Navy, EEOC Appeal No. 01A42334 (May 17, 2005).

$10,000 Awarded in Non-Pecuniary Damages for Exacerbation of Preexisting Conditions in Violation of Rehabilitation Act. In this case, the agency agreed to award complainant $10,000 in compensatory damages after the EEOC found that the agency had discriminated against her on the basis of her disability (multiple sclerosis) when her shift was changed, she was ordered to undergo a fitness-for-duty examination, and she was terminated. Complainant challenged the award on appeal as insufficient. After comparing the severity and duration of complainant's harm to individuals in other cases, the Commission found that the award was sufficient to compensate complainant for the worsening of her preexisting condition (depression and back pain). Massengill v. Department of Veterans Affairs, EEOC Appeal No. 01A41801 (May 18, 2005),

$7,500 Agency Award of Non-Pecuniary Damages Sustained in Harassment Case. The agency awarded complainant $7,500 for sexual harassment by her supervisor, based upon the evidence that the harassment caused her to seek medical attention for anxiety reaction. The Commission affirmed, finding the amount adequate to compensate complainant for the harm shown to be causally related to the discriminatory conduct. Further, the amount of the award met the goals of not being "monstrously excessive," standing alone, not being the product of passion or prejudice, and being consistent with the amount awarded in similar cases. Jones v. United States Postal Service, EEOC Appeal No. 01A34377 (March 25, 2005).

$5,000 Award Appropriate Given Preexisting Condition and Other Contributing Factors. The agency noted in its decision that complainant submitted evidence that he was receiving psychological treatment and medication before the incident for which he requested damages (denial of training). Further, the agency found that other incidents, such as the death of complainant's father and denial of flexiplace as a reasonable accommodation, contributed to complainant's emotional distress. The agency argued that it was only liable for non-pecuniary compensatory damages to the extent that discriminatory conduct at issue caused harm. The Commission agreed and found the award of $5,000 sufficient. In this regard, the Commission noted that it strives to make damage awards for emotional harm consistent with awards in similar cases. Woods v. Department of Labor, EEOC Appeal No. 01A51695 (March 23, 2005).

Compliance

Commission Finds Agency in Compliance With Remedy Ordered by AJ. An AJ found that the agency discriminated against complainant based on race and sex and ordered the agency to return complainant to the unit she occupied prior to her discriminatory reassignment. The agency did not issue a Final Order. However, it did advise complainant that, in the absence of its own order, the AJ's decision had become the agency's final action. On appeal, complainant contended that the agency failed to return her to her original compressed work schedule. EEOC found that the agency complied with the remedy in the AJ's decision and that the complainant had failed to present evidence to refute the agency's showing that she had been returned to compressed work schedule, albeit with some delay for which the agency had provided an explanation. Further, the Commission found that complainant had failed to provide documentary evidence to support her apparent claim that she incurred child care expenses occasioned by the agency's delay in returning her to her prior schedule, in addition to the $5,000.00 in child care expenses initially ordered by the AJ. Mallard v. Department of Justice, EEOC Appeal No. 01A43663 (April 13, 2005).

EEO Process – Grievances

Complaint Properly Dismissed When Grievance Filed on the Same Matter. Complainant, who had previously filed and withdrawn a written grievance, alleged that she was subjected to national origin and age discrimination when she was not selected for a Claims Representative position. The Commission found that the agency's dismissal of the complaint was proper. Specifically, the Commission noted that complainant raised the same issue in her grievance and was covered by a collective bargaining agreement (CBA) that allowed for claims of discrimination. Further, the Commission noted that withdrawing a timely-filed grievance does not abrogate its effect for purposes of an election. Sieczkowski v. Social Security Administration, EEOC Appeal No. 01A45859 (August 29, 2005).

EEO Process – Issue Related to One Counseled

Issue Related to Matter Raised With An EEO Counselor. Complainant contacted an EEO Counselor concerning a Leave Without Pay (LWOP) issue. Although the disputed hours (and pay) were subsequently restored to complainant, he nevertheless filed a complaint, alleging that overtime was not included in the adjustment. The agency dismissed the complaint, noting that complainant had not sought counseling on the allegation of denial of overtime pay. The Commission found that the issue of overtime was sufficiently linked to the restoration of hours following the LWOP charge, on which he did receive counseling. The complaint was remanded for processing. Redice v. United States Postal Service, EEOC Appeal No. 01A53008 (July 28, 2005).

EEO Process – Separate Claim Stated

Claim Not Same as One Previously Raised. Complainant alleged race, age, and reprisal discrimination when the agency denied his 2004 request for reinstatement based on his past criminal record. The Commission found that the agency's dismissal of the claim on the grounds that it stated the same claim as that raised previously was improper. While complainant filed a prior complaint concerning denials of reinstatement in 1992 and 2000, the most recent denial in 2004 was a separate incident, since the circumstances surrounding complainant's request had changed. Rainer v. United States Postal Service, EEOC Appeal No. 01A52974 (July 19, 2005).

EEO Process – Withdrawal Of Complaint

Complainant Did Not Intend to Withdraw From the EEO Process—Dismissal Reversed. Complainant contacted the EEO Office on November 4, 2004, and received a Notice of Right to File a Discrimination Complaint on December 7, 2004. On December 10, 2004, complainant faxed the following note, in relevant part, to the EEO Counselor: "will you please withdraw my complaint." However, on December 22, 2004, complainant filed a formal complaint, claiming discrimination based on race and religion. The agency dismissed the complaint for failure to state a claim, as a result of the withdrawal. On appeal, complainant argued that she no longer wanted that particular EEO Counselor to assist her. Complainant contended that she thought she had a choice between filing with the EEO Counselor or dismissing the Counselor and choosing a formal filing. The Commission found that the record supported complainant's assertion that it was not her true intent to withdraw from the EEO process, since within two weeks after faxing the note to the EEO Counselor, complainant filed her formal complaint. Further, the Commission determined that the subject matter of the complaint, complainant's termination, addressed a loss or harm regarding a term, condition, or privilege of complainant's employment. Accordingly, the Commission reversed the agency's dismissal and remanded the matter for further processing. Walker v. Department of Veterans Affairs, EEOC Appeal No. 01A52243 (May 18, 2005), request to reconsider denied, EEOC Request No. 05A50993 (July 6, 2005).

Findings on the Merits

In the following decisions, the Commission found no discrimination:

--Under Disability Law--

Complainant Not an Individual With a Disability. The Commission affirmed the AJ's finding that complainant, who injured her ankle and back and experienced nerve root pain, failed to show that she was an individual with a disability within the meaning of the Rehabilitation Act. While complainant asserted that she had difficulty sleeping and walking, she did not provide any evidence sufficient to prove that the impairments prevented her, or significantly restricted her, from performing a major life activity. Complainant stated only that she was unable to walk for as long as she used to, and could not sleep on her left side or cross her legs due to pain. Further, statements from complainant's physician indicated only that she was restricted to working 8 hours a day and lifting no more than 50 pounds. Grant v. United States Postal Service, EEOC Appeal No. 01A35136 (July 28, 2005), request to reconsider denied, EEOC Request No. 05A51231 (September 21, 2005).

Complainant Not Substantially Limited in Major Life Activity of Working. The complainant, who had tendonitis in his left shoulder, failed to show that he was an individual with a disability. While complainant submitted three notes from his doctor, all of the documents indicated that complainant could perform the essential functions of his Grounds Keeper position. The only limitation cited by the physician was that complainant should work a compressed 4/10 schedule. The Commission stated that such a recommendation did not rise to the level of a substantial limitation in the major life activity of working. As complainant failed to indicate any additional limitations which substantially limited him in any other major life activity, he did not establish that he was subjected to disability discrimination. Meadows v. Department of Veterans Affairs, EEOC Appeal No. 01A34612 (August 4, 2005), request to reconsider denied, EEOC Request No. 05A51243 (October 5, 2005).

Complainant Not Substantially Limited in Major Life Activity of Lifting. The Commission affirmed the AJ's finding that complainant, who sustained a prior back injury, was not an individual with a disability. The Commission noted that, while complainant's physician indicated that she was restricted from lifting over 35 pounds, such a restriction did not constitute a substantial limitation in the major life activity of lifting. Further, complainant herself testified that she contributed to household chores, walked a minimum of two miles a day, went swimming, and had no neurological or balance problems. Finally, there was no evidence that the agency regarded complainant as limited in a major life activity, or that complainant had a record of such an impairment. Willard v. United States Postal Service, EEOC Appeal No. 01A40595 (August 4, 2005).

Complainant's Allergies Not Disabling. Complainant claimed discrimination on the basis of her disability (allergic reaction) when she was exposed to an aerosol and management failed to provide her with a reasonable accommodation. The Commission noted that the record was devoid of evidence that would establish that complainant's allergic reaction substantially limited any major life activities. While complainant stated that she had two allergic reactions in the past, she noted that she returned to work with no restrictions and required no further treatment. Haswell v. Department of Veterans Affairs, EEOC Appeal No. 01A42658 (August 4, 2005).

In the following decisions, the Commission found discrimination:

--Under the ADEA--

Age Discrimination Found in Nonselection. The Commission affirmed the AJ's finding that complainant was subjected to age discrimination when he was not selected for an Assistant U.S. Attorney (AUSA) position. The Commission noted that, while the agency asserted that complainant was not selected because of his performance during an interview with the selecting official (SO), the AJ found that SO's testimony was not credible. Specifically, complainant had previously worked for several years as an AUSA, including several years with members of the hiring committee and nearly an entire year with SO. The Commission also noted that SO had indicated a desire to create a "junior varsity" category of attorneys who were not close to retirement, and described attorneys in the unit where the position was located as having "lengthy tenures; being "too slow"'; and having "done their work in a particular way for a long time." The Commission noted that the selectee, who was 13 years younger than complainant and had considerably less experience, clearly fell into the SO's "junior varsity" category. Thus, the Commission found that the complainant established that he was subjected to age discrimination when he was not selected for the stated position. The agency was ordered to retroactively place complainant into the position, with back pay and benefits. Carver v. Department of Justice, EEOC Appeal No. 07A30025 (August 8, 2005).

--Under Disability Law—

Disability Discrimination Found in Failure to Hire. The Commission affirmed the AJ's finding that complainant, who had monocular vision, was subjected to disability discrimination when he was not hired for a Customs Inspector position. The Commission discussed, in detail, the effects of mitigating measures on complainant's ability to perform the major life activity of seeing. Specifically, the Commission noted that, while complainant stated that he used his sense of hearing to ameliorate the loss of vision in his left eye, the measure did not compensate for the loss of visual ability, as it did not allow him to see peripherally or mitigate the loss of depth perception. Further, the Commission noted that, while the agency cited the Supreme Court's decision, in Toyota Manufacturing, Kentucky, Inc., v. Williams, 534 U.S. 184 (2002), in support of its assertion that complainant's mitigation techniques were sufficient to allow him to perform all daily life tasks, that decision was concerned only with the performance of manual tasks, and did not apply to a substantial limitation in the major life activity of seeing. Finally, the Commission concluded that the agency failed to show that its decision not to hire complainant was justified by a direct threat to safety. The Commission noted that the agency found complainant unacceptable for employment, not based on an individualized assessment of how complainant would perform elements of the job, but on a general supposition of what could happen under hypothetical circumstances. The agency met none of the requirements in the Commission's regulations when considering whether complainant's employment would pose a high probability of substantial harm. Thus, the agency was ordered to retroactively place the complainant into the Customs Inspector position, and provide him with appropriate back pay and benefits, as well as $5,000 in compensatory damages. Spencer v. Department of Homeland Security, EEOC Request No. 05A30898 (August 29, 2005).

Denial of Reasonable Accommodation Improper. Complainant, who suffered from systemic lupus erythematosus, was restricted to two hours of standing, consisting of 30-minute intervals of standing followed by sitting. She was also prone to seizures and suffered altered mental status. Further, her physician stated that she must work daytime hours so that she could experience regular sleep-wake cycles. The Commission found that the agency failed to accommodate complainant when it assigned her to work the night shift and did not allow her to transfer to a vacant funded position on the day shift for which she was qualified. Further, the Commission noted that the agency failed to engage in good faith in the interactive process when it did not act on complainant's request for accommodation for nearly one year. Thus, the agency was ordered to pay complainant $35,000 in compensatory damages and provide her with reasonable accommodation. Baillow v. United States Postal Service, EEOC Appeal No. 07A40111 (June 28, 2005).

—Under Title VII—

Race Discrimination Found. The Commission found that complainant, a Veterans Service Representative, established a prima facie case of race discrimination with regard to his nonpromotion and placement on a pre-Performance Improvement Plan (PIP) and PIP. Complainant showed that he was not granted promotion on his anniversary date and that two similarly situated Caucasian co-workers were promoted on their anniversary dates. With regard to the pre-PIP and PIP claims, complainant was placed on the pre-PIP plan while others, not of his race who had performance problems, were not placed on a pre-PIP or PIP. Further, the delay in promotion and placement on the PIP changed the conditions of his employment and disadvantaged complainant. (In this regard, the Commission noted that, by itself, placement on a PIP may not state a claim, but, in the instant case, EEOC found it to be intertwined with the nonpromotion claim.) The Commission found that the agency's articulated reason (quantity of work) was a pretext for discriminatory race-based animus. The Commission noted that "quantity" was not part of complainant's performance standard, and that the only documentary evidence submitted by the agency showed that complainant had received a prior "successful" evaluation.

In addition, the Commission found that complainant was performing at a higher level than the level credited to him by his supervisor. Further, the team coach did not have any issue with the quantity of complainant's work, and that the responsible management official (RMO) was not providing complainant with the kinds of assignments that would be reported. The Commission also found no legitimate basis for denying complainant a career-ladder promotion, and that the RMO had promoted Caucasian employees with known performance problems. In finding discrimination, the Commission noted that the stated reason (productivity) used to justify the delayed career ladder promotion only arose as an issue after the anniversary date had passed. The RMO conceded that she had not counseled complainant regarding her perception of poor production and that she had not provided the complainant with the level of training provided to others not of his race. The Commission also noted that the agency's stated reasons lacked credibility because of the supervisor's prior history. Several witnesses confirmed that the RMO had a reputation for treating African-American employees less favorably than Caucasian or Hispanic employees. The agency itself, in its final decision, conceded that there had been prior complaints against the same supervisor in recent years.

The Commission concluded, therefore, that, taken in its totality, the evidence demonstrated that the agency, through its manager, had subjected complainant, over a sustained period of time, to race discrimination that tainted and motivated the actions taken by agency officials towards complainant because he was a Black male and because he objected to the discrimination. As part of the relief awarded, EEOC ordered the agency to retroactively promote complainant, with back pay, to consider disciplining the RMO, to rescind the personnel actions at issue, and to investigate complainant's entitlement to compensatory damages. Stansbury v. Department of Veterans Affairs, EEOC Appeal No. 01A33842 (January 26, 2005), request to reconsider denied, EEOC Request No. 05A50958 (March 25, 2005).

--Under Multiple Bases--

Age, Disability, and Reprisal Discrimination Found. The Commission affirmed the AJ's finding that complainant was subjected to age, disability, and reprisal discrimination when she was not selected for a promotion to the position of Address Management Systems Specialist. The Commission noted that complainant had superior detail experience in the position when compared to the selectee. Further, selecting official's (SO's) testimony that the selectee's six weeks of experience being detailed to the position was rated higher than complainant's three years of detail experience was not credible. In addition, SO's articulation, that complainant was unprofessional and possessed an overall negative demeanor, was not supported by the evidence. Specifically, the number and duration of detail assignments given to complainant strongly supported the conclusion that she possessed a professional demeanor. EEOC ordered the agency to offer complainant the position in question, with appropriate back pay and benefits, and pay her $25,000 in compensatory damages. Neal v. United States Postal Service, EEOC Appeal No. 07A40059 (August 29, 2005).

Age and Race Discrimination Found. The Commission affirmed the AJ's finding that complainant, a Mail Processing Equipment Mechanic, was subjected to age and race discrimination when he was denied training. Specifically, while complainant established a prima facie case of discrimination, the agency failed to articulate a legitimate, nondiscriminatory reason for denying complainant the training. While the responsible management official (RMO) averred that the course was only for Building Equipment Mechanics and Area Maintenance Technicians, the record showed that a Painter was allowed to take the training. In addition, others in complainant's position received this training. Further, the RMO failed to testify at the hearing to explain the testimony even though she was approved as a witness. The agency was ordered to offer the complainant the training and pay him $600 in compensatory damages. Colbert v. United States Postal Service, EEOC Appeal No. 07A40107 (August 5, 2005).

Race and Sex Discrimination Found. The Commission found that complainant was discriminated against when: (1) a White male coworker was temporarily promoted to the GS-14 position of Chief, Cost Analysis Branch in the Precision, Fires, Rockets, and Missiles Systems (PFR&MS) Project Office, a position for which complainant was highly qualified; and (2) a White female coworker had received a temporary promotion to the GS-14 position of Acting Chief, Financial Management Branch in the PFR&MS Project Office, for which complainant was highly qualified. In finding discrimination in both instances, the Commission noted that the agency had failed to sufficiently rebut complainant's prima facie case of discrimination based on race and sex. The Commission found that, in both instances, the agency offered only speculation for complainant's not being selected. The Commission pointed out that, while an agency's burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded the affected employee, such that a complainant has a full and fair opportunity to demonstrate pretext.

The Commission rejected the agency's argument on appeal that complainant could only compare herself to similarly situated Competitive Development Group (CDG) graduates in order to establish a prima facie case and that such evidence was lacking. The Commission stated that such evidence was not strictly necessary and that any employee involved in, and competing against complainant in, the same process of selection or evaluation, such that it was reasonable to expect that they would receive the same treatment, was similarly situated to complainant. Complainant's CDG certification was probative of her qualifications and potentially went to show that she was treated differently. As part of the relief awarded (complainant did not request compensatory damages), EEOC ordered the agency to offer complainant temporary promotions in the positions of Chief, Cost Analysis Branch in the PFR&MS Project Office GS-14, and Chief, Financial Management Branch in the PFR&MS Project Office. The Commission declared that complainant could accept both promotions separately, for 120 days, unless both parties agreed otherwise. Lucas v. Department of the Army, EEOC Appeal No. 01A43697 (March 30, 2005).

National Origin and Reprisal Discrimination Found. The Commission found the agency's articulated legitimate reason, i.e., budgetary constraints, for not renewing complainant's contract as a Staff Physician at its medical facility (VAMC), to be a pretext for national origin discrimination. The complainant had engaged in prior EEO activity (appearing as a witness in a co-worker's EEO hearing), barely one week before being issued a non-renewal letter. Further, neither agency management officials, nor the VAMC Chief Financial Officer, could identify any other physician who had ever been terminated or had not had their appointment renewed for budgetary reasons, despite the fact that the facility had experienced prior budget crises. In addition, the Commission found that the only two doctors terminated by the agency, at about the time of complainant's nonrenewal, were both Indian nationals who had engaged in prior EEO activity. EEOC also found that the agency's credibility was undermined, regarding the nonrenewal at issue, by prior disparaging remarks complainant claimed were made by the VAMC Director about foreign doctors.

Finally, the Commission noted that the VAMC was purportedly under order by the Department of Labor, Wage and Hour Division, and enforcement proceedings had been initiated, to pay $203,000 in back wages to foreign doctors, including complainant, who were paid significantly less than their domestic counterparts. As part of the relief awarded, EEOC ordered the agency to place complainant back into the position of Staff Physician, with back pay, benefits and seniority rights. The Commission also remanded the matter on the issue of compensatory damages and directed the agency to consider disciplining the RMOs. Talukdar v. Department of Veterans Affairs, EEOC Appeal No. 01A40738 (March 30, 2005), request to reconsider denied, EEOC Request No. 05A50829 (October 7, 2005).

Settlement Agreements

Breach Found. Complainant and the agency entered into a settlement agreement whereby complainant would not be required to perform overtime. He was subsequently required to work overtime. While the agency asserted that complainant was required to work overtime according to the collective bargaining agreement (CBA), mandatory overtime violated the terms of the settlement agreement. The Commission noted that the agency failed to include language regarding compliance with the CBA in the agreement. Thus, breach was found, and the agency was instructed to reinstate complainant's EEO complaint for processing. Hart v. United States Postal Service, EEOC Appeal No. 01A52094 (July 11, 2005).

Reformation of Agreement. The Commission found that one of the provisions of a settlement agreement, which provided for complainant to submit a request for light duty assignment, merely required the agency to do that which it was already required to do, i.e., conduct a review and determine whether or not it would grant complainant's request. Therefore, the Commission found that the provision was invalid as lacking adequate legal consideration. However, because other consideration was exchanged through other provisions of the agreement, the Commission determined that the entire agreement was not invalid, but rather reformed without the provision in question. Jett v. United States Postal Service, EEOC Appeal No. 01A50095 (March 17, 2005), request to consider denied, EEOC Request No. 05A50894 (June 9, 2005).

Stating a Claim

In the following decisions, the Commission found complainants' claims failed to state a claim upon which relief could be awarded:

Her v. United States Postal Service, EEOC Appeal No. 01A52325 (May 3, 2005) (no harm found where complainant was allegedly required to wait 20 minutes before she was allowed to go home sick and was threatened with removal; issue of 5-day suspension raised for first time on appeal was neither raised during pre-complaint counseling nor in her formal complaint and was thus not considered by the Commission.)

Conners v. Department of the Navy, EEOC Appeal No. 01A52192 (May 3, 2005) (retaliation claim not cognizable because there was no evidence that complainant engaged in prior protected EEO activity.)

In the following decisions, the Commission found that the complaints stated a claim:

Johnson v. United States Postal Service, EEOC Appeal No. 01A53618 (August 24, 2005) (complainant's claim that he was subjected to an investigative interview following protected EEO activity, which led to a letter of warning, stated a valid claim of retaliation; EEOC noted that the action could arguably have a chilling effect on complainant's use of the EEO process; thus, the interview, coupled with the letter of warning, stated a claim.)

Clark v. United States Postal Service, EEOC Appeal No. 01A52139 (June 24, 2005) (the Commission found that complainant's claim that the agency disclosed information about his Family Medical Leave Act request to third parties stated a valid claim of disability discrimination; EEOC noted that the Rehabilitation Act provides for the confidentiality of medical records, and that information regarding a complainant's medical diagnosis must be treated as confidential.)

Hambright v. United States Postal Service, EEOC Appeal No. 01A52985 (June 28, 2005) (claim that complainant was required to submit to a psychiatric fitness for duty examination and a urine test stated a valid claim of disability and reprisal discrimination—the incidents affected a term, condition, or privilege of complainant's employment; agency assertions regarding the reasons for requiring the tests improperly went to the merits of the claim.)

Timeliness

EEO Contact Timely. The Commission found that the complainant presented adequate justification for extending the 45-day limitation period for contacting an EEO Counselor. Complainant, who raised various issues of sex, age, and disability discrimination, which purportedly occurred from August 2003 through April 2004, contacted an EEO Counselor on July 9, 2004. The agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, complainant contended that he had no knowledge of the applicable time limitation period. The Commission found that the agency erred in applying the constructive notice rule in complainant's case. Specifically, the record contained contradictory statements about the existence of an EEO poster and, assuming a poster was displayed as the agency asserted, a management official averred that the poster was partially covered up by other material. Watts v. United States Postal Service, EEOC Request No. 05A50553 (August 18, 2005).

Complaint Untimely Filed: EEOC Rejects Argument That Dog Destroyed the Complaint. A copy of the agency's certificate of service revealed that the agency mailed a notice of the right to file an EEO complaint at her address of record on October 7, 2004. Complainant signed the return receipt certified mail card but did not date it. A review of the notice revealed that the agency properly advised complainant that she had 15 days after receipt of its notice to file a written complaint with the agency. By letter dated November 16, 2004, complainant wrote to the agency indicating that she wanted to file a formal complaint and requested complaint forms because her forms had been destroyed by her dog. Thereafter, complainant filed her complaint on November 20, 2004. The Commission determined that, since the certificate was undated, it was presumed that the notice was received within 5 calendar days (October 12, 2004) after it was mailed. The 15-day limitation period ended on October 27, 2004, and complainant did not initiate contact with the agency until November 16, 2004, which was beyond the 15-day limitation period. The Commission found no adequate justification to warrant an extension of the time limit for filing the complaint. Accordingly, the Commission affirmed the agency's dismissal of the complaint. James v. United States Postal Service, EEOC Appeal No. 01A51930 (April 14, 2005).

Laches Applied to EEO Contact 20 years After the Alleged Discrimination. On October 22, 2004, complainant initiated contact with an EEO Counselor, claiming that he had been subjected to discrimination on the basis of disability when, on July 18, 1984, he was not recommended for a promotion by his supervisor. Complainant, on appeal of the agency's dismissal of his complaint for untimely EEO contact, argued that, when he retired in November 1992, he requested a copy of records and personal items. These items were placed in a box with the intention to go through it to organize it. Complainant claims that, on October 8, 2004, when he brought up the box from the basement and reviewed its contents, he discovered that he had not been recommended for promotion by his supervisor in 1984. In affirming the dismissal, the Commission found that complainant's explanation for his delay in contacting an EEO Counselor not persuasive enough to warrant an extension of the time limit for initiating EEO Counselor contact. Further, the Commission noted that a complainant must act with due diligence in pursuit of his claim or the doctrine of laches—an equitable remedy under which an individual's failure to diligently pursue his cause of his action could bar his claim—may apply. Kulpa v. United States Postal Service, EEOC Appeal No. 01A52576 (May 18, 2005), request to reconsider denied, EEOC Request No. 05A50957 (June 28, 2005).

CONSTRUCTIVE DEMOTION

AN OVERVIEW

Both the Commission and the Federal Courts have recognized that a complainant may raise a claim of constructive demotion in the context of a complaint of discrimination. With regard to claims of discrimination, the issue of constructive demotion involves allegations that the complainant's employer knowingly allowed conditions of discrimination so intolerable that a reasonable person would have felt compelled to accept a reassignment to a lower-grade position or a demotion. In order to prove a claim of constructive demotion, the complainant must show that: 1. a reasonable person in his or her position would have found the working conditions intolerable; 2. the intolerable working conditions were created by conduct which constituted a violation of anti-discrimination laws; and 3. complainant's involuntary reassignment resulted from those intolerable working conditions.¹ If the complainant can establish those three criteria, then the complainant can sustain a claim of constructive demotion.

Commission Case Law

In Morgan v. Department of Veterans Affairs,² the Commission found that the complainant had been subjected to a constructive demotion. Complainant, an Air Conditioning Foreman, alleged that his supervisor harassed him because of his race. Specifically, complainant stated that his supervisor made racist remarks, overburdened him with responsibilities, criticized his performance, and gave him unjust deadlines. According to witness testimony, the supervisor had also made several comments concerning complainant's race prior to, or at the time complainant was hired.

The Commission initially found that complainant was subjected to racial harassment. The record included numerous examples from complainant and corroborating witnesses of incessant demands placed on complainant, unrealistic work deadlines, badgering, critical memoranda, insults, differential treatment, and false accusations of poor performance. Further, there was no evidence of any conduct or work-related problems on complainant's part which would have justified the treatment he received. Finally, the record included strong evidence from several witnesses that the conduct was racially motivated. Several witnesses gave detailed examples of instances in which the Chief made racially-charged comments, both generally and about complainant.

The Commission further found that complainant was constructively demoted when he accepted a transfer to a lower-grade position due to the harassment. The Commission noted that a reasonable person in complainant's position would have found the working conditions intolerable. Numerous witnesses testified that complainant's situation made it almost impossible to continue working under the particular supervisor. Specifically, the supervisor failed to provide complainant with proper guidance, made constant open threats to complainant, and made unreasonable demands and deadlines. Thus, the Commission concluded that the supervisor's conduct constituted a violation of Title VII, and created the intolerable working conditions such that complainant proved his claim of constructive demotion.

The complainant in Wilson v. Department of Justice,³ alleged that she was subjected to sexual harassment by a co-worker, who exposed himself to her and attempted to sexually assault her. Complainant, who worked as a Cook Supervisor at an agency correctional institution, reported the matter to an agency administrator, who then reported the matter to Associate Warden and the Warden. Complainant's allegations were investigated by the agency's Office of Internal Affairs, and the co-worker was initially placed on home-duty status. The Office of Internal Affairs, however, concluded that complainant's allegations could not be sustained, and the co-worker returned to work. Although the co-worker was placed on a different schedule, he continued to have contact with complainant, and complainant repeatedly informed the Warden that she was afraid of the co-worker. Nevertheless, the agency refused to reassign the co-worker to another area, and complainant was subsequently informed that she and the co-worker would again have overlapping work hours. Complainant ultimately requested to be moved from the food service area, and accepted a demotion to a lower-grade position in another department.

The Commission initially found that complainant was subjected to sexual harassment by her co-worker as alleged. Further, the agency was found to be liable for the conduct. Although the agency undertook an internal investigation of complainant's allegations and initially separated complainant from the co-worker, it ultimately failed to fulfill its obligation to take prompt remedial action reasonably calculated to end the harassment once it learned of the allegations. Specifically, the Commission noted that a thorough investigation by the Office of Internal Affairs would have included a credibility determination, and that, given the circumstances of the case, a reasonable fact finder would have found complainant to be credible, while the co-worker's explanation was merely an explanation tailored to explain his inappropriate conduct. Thus, the investigation lacked the depth necessary to uncover harassment in any circumstances except those exceedingly rare occasions where there are actual witnesses to the harassing conduct.

In addition, the agency failed to take appropriate action to ensure that the harassment would not recur. Complainant's schedule continued to overlap with that of the harasser, despite her requests and recommendations from her physician. Due to the agency's failure to keep the co-worker away from complainant, complainant was forced to choose between working in a hostile environment or accepting a demotion. The Commission concluded that the constructive demotion was both an unacceptable response by the agency to the harassment, and violated Title VII.

The Federal Courts

Several Circuit Courts have also addressed the issue of constructive demotion. In Sharp v. City of Houston, et al.,⁴ the Court found that the plaintiff was constructively demoted. The plaintiff served as a police officer with the employer's Mounted Patrol. According to the record, the Mounted Patrol was physically isolated from the other units. Although there were two supervisors with the Mounted Patrol, those in positions of higher authority were stationed at a different location. The evidence showed that the plaintiff was sexually harassed by the two supervisors, including being subjected to demeaning comments about her body, and lewd, graphic jokes and gestures, which were almost always made in the presence of other officers. While the plaintiff did not complain about the conduct, the harassment came to light during an internal investigation of an unrelated charge of insubordination. The plaintiff was then subjected to retaliation by her co-workers for participating in the investigation. Subsequently, the plaintiff requested a transfer to a position in a less prestigious duty station, and filed a claim of sexual harassment and retaliation.

The Court of Appeals initially found that the evidence easily supported the plaintiff's claim of sexual harassment. In addition, the Court noted that a voluntary transfer could be equivalent to a demotion, and therefore an adverse action, even if there was no decrease in pay, title, or grade. For example, if the new position proves objectively worse, such as being less prestigious or providing less room for advancement, the transfer could constitute an adverse action. The Court then found that the plaintiff's transfer was not in fact voluntary, stating that the retaliatory actions of her co-workers caused her to reasonably fear for her safety. Thus, the plaintiff was in fact constructively demoted, as her transfer resulted from conditions, of which her supervisors were aware, that were so intolerable that a reasonable person would feel compelled to leave.

In Simpson v. Borg-Warner Automotive, Inc.,⁵ the plaintiff, who had been working as a Supervisor, requested a downgrade to a Production Worker position. The plaintiff stated that she did not voluntarily ask to be downgraded, but sought a reassignment because she had been subjected to sex discrimination. Specifically, the plaintiff stated that certain actions taken by her supervisor undermined her authority and created an intolerable work environment.

The Court of Appeals initially found the constructive demotion analysis to be similar to that used in claims of constructive discharge. Specifically, the employee must show that he or she was subjected to working conditions which were so intolerable that a reasonable person would have been compelled to resign, and that the conditions were intolerable because of unlawful discrimination. In the present case, the Court noted that the incidents complained of were relatively benign in nature, such as a supervisor telling employees that the plaintiff had complained about them and advising the employees not to seek the plaintiff's help, and management's failure to correct the supervisor's behavior. Further, while the plaintiff asserted that management failed to discharge a threatening employee, the employee in question was terminated once the manager was able to verify that threats had been made. Thus, the Court concluded that the plaintiff failed to show that she was subjected to an intolerable work environment, and, as such, failed to meet the first criteria for proving constructive demotion.

In Fenney v. Dakota, Minnesota & Eastern Railroad Co.,⁶ the Court of Appeals, like the Courts in the previous cases, analyzed the plaintiff's claim of constructive demotion as it would have analyzed a claim of constructive discharge. The plaintiff, who had limited use of his right hand and arm, worked as an "on call" Engineer. He requested that he receive more than two hours notice to report for work as an accommodation; however, his request was denied. The plaintiff then requested a reassignment to a Conductor position which involved regularly-scheduled hours, but less pay.

The Court initially found that the plaintiff presented sufficient evidence to show that he was substantially limited in the major life activity of caring for himself. The Court then considered whether the plaintiff had been constructively discharged. The Court noted that a reasonable person in the plaintiff's position would have believed that he had no choice but to request the demotion. The plaintiff repeatedly requested an accommodation, and submitted medical verification, but the defendant refused to provide an accommodation. The plaintiff lacked the seniority to secure a full-time Engineer position. Thus, his only choice was to request a reassignment to the lower-paying Conductor position. The Court concluded that by requesting the reassignment based upon the defendant's refusal to accommodate, the plaintiff met the subjective requirement of a constructive demotion.

The Merit Systems Protection Board

The Board addressed the issue of constructive demotion in Russell v. Department of the Navy.⁷ The appellant was reassigned from a Supervisory Employee Development Specialist, GS-11, position to the position of Employee Development Specialist, GS-11. The agency then established a GS-12 level Supervisory Employee Development Specialist position, which it filled through a competitive promotion procedure. In addressing whether the appellant had raised a claim within its jurisdiction, the Board found that such a reassignment would constitute a reduction in grade. The Board stated that, where an employee is reassigned from a position which, due to the issuance of a new classification standard or correction of a classification error, is worth a higher grade, to a position classified at a grade level lower than the grade to which the employee would have been promoted, and the employee meets the qualification requirements for promotion to the higher grade, the employee has effectively been reduced in grade, or constructively demoted. ⁸

In Herrin v. Department of the Air Force,⁹ the appellant, who held a GS-7 level term appointment with the U.S. Customs Service, accepted a GS-6 level term appointment with the agency. She subsequently accepted a second term appointment at the GS-5 level. After approximately three months, the agency then notified appellant that her initial appointment should have been at a lower step level, which affected her current rate of pay. Appellant filed an appeal against the agency, claiming that her reduction in grade was involuntary due to erroneous information provided by the agency.

The Board initially found that the agency did in fact provide appellant with incorrect pay information, such that her acceptance of a lower grade appointment was rendered involuntary. Nevertheless, the Board ultimately found that appellant failed to establish that she was constructively demoted with regard to her acceptance of the GS-5 level position. The Board noted that a reduction in grade will be considered involuntary if the employee, to his or her detriment, materially relied upon misinformation from the agency. While appellant asserted that she would not have accepted the GS-5 level appointment if she had known that doing so would result in a substantial reduction in pay, the agency's action occurred after the expiration of appellant's two-year appointment. Thus, complainant failed to show that, as of the date of the action, her reliance on the agency's misinformation was to her detriment. Accordingly, the Board found that it had no jurisdiction over the alleged constructive demotion.

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Footnotes

¹ See, Sprangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173 (3rd Cir. 1988); Burns v. General Services Administration, EEOC Appeal No. 01912767 (January 31, 1992).

² EEOC Appeal No. 01944845 (March 27, 1996), request for reconsideration granted, EEOC Request No. 05960487 (October 2, 1998) (to amend the order).

³ EEOC Appeal No. 01A23614 (February 3, 2004), request for reconsideration denied, EEOC Request No. 05A40510 (April 5, 2004).

⁴ 164 F.3d 923 (5th Cir. 1999).

⁵ 196 F.3d 873 (7th Cir. 1999).

⁶ 327 F.3d 707 (8th Cir. 2003).

⁷ 6 MSPR 698 (June 12, 1981).

⁸ See, Hogan v. Department of the Navy, 218 F.3d 1361 (Fed.Cir. 2000).

⁹ 95 MSPR 536 (February 27, 2004).