@StateDept Settles Title VII Discrimination in Federal Employment For $500K

 

According to the Treasury Department’s Judgment Fund, the State Department paid $500,000 in settlement under 42-USC-2000e-16 for a Title VII Discrimination in Federal Employment.
Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.
The payment under Control 202201949, Payment ID 017762022 was sent on January 25, 2022.
This was a case in the U.S. District Court of the District Court of Columbia (Agency File #18-3065). The data does not include the name of the payee. We have been unable to locate the 18-3065 file.

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EEOC Releases New Guide for Federal Employees Filing Employment Discrimination Appeals

 

Via EEOC: Guide Intended to Assist Unrepresented Workers
The U.S. Equal Employment Opportunity Commission (EEOC) released a “Guide to Writing Appeal Briefs for Unrepresented Complainants”, intended to assist federal employees and applicants with their employment discrimination complaint appeals to the EEOC.

As a resource for federal employees or applicants without legal representation, the guide explains what content should be included in an appeal brief and how it should be organized. The guide helps make the appeal process more accessible by providing an explanation of how to support or oppose an appeal, sample briefs that can be downloaded and used as templates, and a glossary for technical and legal terms.

“This new resource represents an important milestone in enhancing access to the federal sector process for the many unrepresented individuals who assert their right to be free from discrimination under the laws we enforce,” said EEOC Chair Charlotte A. Burrows.  “EEOC is committed to helping all workers—including the nation’s approximately 2.8 million federal employees—understand and protect their rights.”

The first step to reporting discrimination for federal employees or applicants is to contact their federal agency’s equal employment opportunity (EEO) counselor who will guide employees and applicants through the discrimination complaint process. This process will result in a voluntary resolution of the complaint or a final decision issued by the federal agency. At the end of the process, employees or applicants who disagree with an agency’s final determination may file an appeal with the EEOC or challenge the decision in federal court.

“Many people cannot afford to hire an attorney to help them, and everyone should have the opportunity to make their best case,” said Carlton Hadden, director of the EEOC’s Office of Federal Operations (OFO). “We developed this guide to serve as a useful resource for those seeking to appeal their agencies’ decisions. It’s important to understand what information is most useful to provide in an appeal.”

Approximately three-quarters of all appeals on the merits involve self-represented federal employees or applicants and about half of them do not submit appeal briefs. Over the five-year period of fiscal years 2016 to 2020, a little more than one-third of the federal sector appeals decisions that found that agencies had subjected complainants to discrimination involved self-represented employees or applicants.

“We hope this guide can assist unrepresented federal employees and applicants to present their arguments more effectively, leading to more satisfaction with the process, and ultimately better outcomes,” said Edmund Chiang, EEOC senior attorney advisor and lead developer of the guide.

The Office of Federal Operations will host a webinar on February 22, 2022 at 2:00 p.m. EST to discuss the guide in detail. Registration for the webinar is required: Guide to Appeal Brief Writing. Closed captioning will be provided. Send requests for reasonable accommodation to FedeNews@eeoc.gov with “Request for Accommodation” in the subject line. For detailed information on upcoming webinars follow the EEOC’s OFO on Twitter @EEOC_OFO and on Facebook. The public may also receive federal sector information updates and news items via GovDelivery.

Federal executive branch employees and job applicants are protected from employment discrimination because of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. The law also protects them from retaliation for opposing employment discrimination, filing a complaint of discrimination, or participating in the EEO complaint process (including for other employees).

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Contact with Agency HR Personnel and Management Does Not Constitute EEO Contact

 

Via EEOC Takako Y. v. Dep’t of State, EEOC Appeal No. 2021000174:
Contact with Agency Human Resources Personnel and Management Does Not Constitute EEO Contact.  The Commission affirmed the Agency’s dismissal of Complainant’s complaint for failure to timely contact an EEO Counselor.  It was undisputed that Complainant made EEO contact more than 45 days after the alleged discriminatory incident.  While Complainant asserted that she contacted Human Resources, high-level managers, and Agency legal advisors within the time limitation, Complainant stated that she was seeking reconsideration of the Agency’s decision to terminate her candidacy for a specific position.  The record showed that she did not seek to begin the EEO process during that time, and the Commission has consistently held that utilizing other agency procedures does not toll the time limit for contacting an EEO Counselor.  The Commission also noted that Complainant did not specify if, or how, she was prevented from making EEO contact by the pandemic.  Therefore, the Commission found no justification for extending the 45-day limitation period.  Takako Y. v. Dep’t of State, EEOC Appeal No. 2021000174 (Jan. 22, 2021).
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within
forty-five (45) days of the effective date of the action.


Here, it is undisputed that Complainant made EEO contact on July 29, 2020, which is more than 45 days after the alleged discriminatory incident. Complainant argues that she made contact with HR on March 13, 2020 and with high-level personnel and Agency legal advisors on May 12, 2020, regarding her candidacy termination due to age. We have consistently held that “a complainant may satisfy the criterion of Counselor contact by initiating [contact] to an agency official logically connected with the EEO process, even if that official is not an EEO Counselor.” Floyd v. National Guard Bureau, EEOC request No. 05890086 (June 22, 1989). Here, however, Complainant describes her March 13, 2020 HR communication and May 12, 2020 personnel and legal advisor communication as seeking reconsideration of the candidacy termination. The record shows that, while Complainant contacted individuals about reconsidering her candidacy termination, she did not seek EEO counseling to begin the EEO process until July 29, 2020. We also note that the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
[…]
Additionally, Complainant argues that due to COVID-19 the 45-day time frame should be extended. However, Complainant does not state with any specificity if or how she was prevented from making EEO counselor contact by the pandemic. As such, we find no justification has been provided for extending the 45-day limitation period.

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@USAGM: Hostile Work Environment and Sex-Based Discrimination Found

 

Via EEOC Appeal Nos. 2019005498 & 2020003512
Hostile Work Environment and Sex-Based Discrimination Found.
Both Complainants worked as International Broadcasters for the Agency’s International Broadcasting Bureau, Voice of America (VOA).  Complainants filed separate EEO complaints alleging, among other things, that the Agency subjected them to a hostile work environment and discrimination based on sex, including denying them promotions, and modifying their television anchor duties.  At the conclusion of the investigations for both complaints, the Agency issued two separate decisions which both concluded that Complainants failed to prove their claims.  The Commission consolidated the matters on appeal, given that the underlying facts were the same in both complaints.  The Commission determined that Complainants both established a prima facie case of discrimination based on sex because they were replaced by male anchors, and all the recipients of the promotion were males.
The Commission then found that the Agency failed to meet its burden to articulate legitimate, nondiscriminatory reasons for its decisions.  Several responsible management officials failed to provide detailed and supported statements regarding the removal of anchor duties and the denial of promotions.  For example, one of the responsible management officials repeatedly provided vague statements that were often not supported by the record, or provided statements that were refuted and/or contradicted by other management officials.  Moreover, when given several opportunities to clarify his statements by the EEO Investigator, the official failed to substantively respond.
The Commission stated that, even if it determined that the Agency’s explanation was sufficient to meet its burden, Complainants still established, by a preponderance of the evidence, that the Agency’s explanations were pretextual.  The Agency was ordered, among other things, to retroactively promote Complainants with appropriate back pay and benefits, reinstate pertinent television and/or radio duties, investigate Complainants’ claims for compensatory damages, and provide training to the responsible management officials.  Madlyn F. & Lashawn C. v. U.S. Agency for Global Media, EEOC Appeal Nos. 2019005498 & 2020003512 (Feb. 9, 2021).

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Related posts:

FSGB Grievant Asks @StateDept “Which Surnames Qualified as “Hispanic Surnames” #Census #Google

 

Via Record of Proceedings
FSGB Case No. 2020053 | October 22, 2021

I. BACKGROUND
The background of this case is described in detail in the June 17, 2021, Order: Motion to Compel issued by the Foreign Service Grievance Board (“FSGB” or the “Board”). That Order required the Department to provide additional responses to grievant’s initial discovery requests including grievant’s Interrogatory #1 which sought disaggregated statistics on rates of tenure for Foreign Service Generalist career candidates with Hispanic surnames who were considered for tenure during a specified five-year period, as compared with the tenure rate for other candidates.

On July 7, 2021, the Department responded to grievant’s Interrogatory #1.

Grievant was dissatisfied with the response and on July 14, 2021, he requested clarification of how the Department determined which surnames were Hispanic. The Department responded the same day, explaining how it had determined which surnames were Hispanic.

On July 27, 2021, grievant made a follow-on discovery request, seeking a list of the surnames the Department determined to be Hispanic and a list of the surnames of the candidates who had non-Hispanic surnames and were denied tenure.

On August 25, 2021, the Department objected to grievant’s July 27, 2021 request. The parties met and conferred on grievant’s discovery request and the Department’s objection, without reaching agreement.

In a motion to compel, the burden is on the requesting party to prove the merits of the motion. FSGB Case No. 2016-027 (Order, dated October 28, 2016); FSGB Case No. 2011-013 (Order, dated September 28, 2011).

Excerpt:

B. SECOND MOTION TO COMPEL

Interrogatory #1
Interrogatory #1 states as follows:

Please provide disaggregated statistics on rates of tenure for minority Foreign Service Generalists as compared to white Foreign Service Generalists between March 9, 2014 and March 4, 2019.

Department’s Response:
On July 7, 2021, The Department provided the following data for Foreign Service Generalist Tenure Candidates reviewed from March 2014-March 2019:

Candidates with Hispanic Surnames – 108
3 denied tenure = 2.8%

105 recommended for tenure = 97.2%


Candidates with non-Hispanic Surnames – 1871

48 denied tenure = 2.6%

1823 recommended for tenure = 97.4%

Grievant asked the Department how it determined which surnames qualified as “Hispanic surnames.”

Department’s Response to Request for Clarification

The Department responded that it accessed publicly available 2010 Census data and “pulled the record of last names where more than 50% of respondents by that name identified as being Hispanic.” There were 199 Hispanic surnames on the Census list and the Department cross-referenced those names with the cumulative list of tenure candidates. The Department then looked at all of the remaining names and identified other Hispanic surnames that did not appear on the Census list. To confirm, the Department checked those names for Spanish/Hispanic origin via Google search. Lastly, the Department checked a random assortment of the remaining names on the list of tenure candidates to confirm that they were other than Hispanic.

Relevance of the Follow-On Interrogatory

In the instant case, grievant alleges that the CTB discriminated against him because of his Hispanic surnames. Grievant has not alleged that he has direct evidence, relying entirely on statistics. To establish a prima facie case based on statistics, grievant must establish that Hispanic surnamed candidates were tenured at a statistically significantly lower rate than non-Hispanic surnamed candidates. Accordingly, the surnames of the candidates who were tenured, and those who were denied tenure, clearly are relevant to grievant’s claim, just as the gender of candidates would be relevant to a claim of sex discrimination.
[…]
the Privacy Act does not prohibit disclosure of Human Resources information about comparator employees to a grievant if ordered by the Board.
[…]
The Board has determined that grievant is entitled to know what surnames are considered Hispanic for purposes of the Department’s discovery responses. At the same time, the other candidates deserve privacy regarding their tenuring decisions. To accommodate those competing interests, the Board will order the Department to respond anew to grievant’s Interrogatory #1, as set forth in Section IV, infra.

IV. ORDER

Grievant’s Second Motion to Compel is granted in part and denied in part, as follows:

1. Within 14 days of this Order, the Department shall email grievant the list of 199 Hispanic surnames the Department previously identified from the Census data.

2. Within 14 days of the Department’s email, grievant shall email the Department a list of any of the 199 surnames that grievant considers not to be Hispanic (“List A”), and a separate list of any surnames not on the list of 199 that grievant considers to be Hispanic (“List B”) and the source of the surnames. Grievant may use any source of surnames for List B, e.g., lists publicly available on the Internet. If grievant fails to email List A and List B to the Department by this deadline, grievant shall be deemed to have waived any further response to Interrogatory #1, and grievant’s discovery shall be considered complete.

3. Within 21 days of grievant’s email, the Department shall email grievant a revised response to Interrogatory #1, using the 199 surnames from the Census data after striking the surnames on List A and adding the surnames on List B, thereby creating List C. At that point grievant’s discovery shall be considered complete. The Department may not object to responding to Interrogatory #1 using List C. ….

4. The Board denies grievant’s request for the list of the surnames the Department determined to be Hispanic and a list of the surnames the Department determined to be non-Hispanic surnames and were denied tenure.

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Read more: 2020-053 – 10-22-2021 – B – Order re Second Motion to Compel_Redacted.pdf
Note: Depending on the browser you’re using, the FSGB cases may not be available to read online; each record may need to be downloaded to be accessible. With Firefox browser, however, you may select “open with Firefox” if you want to read the case file, or save the file to your computer. Please use the search button here to locate specific FSGB record.

Who did @StateDept/BBG pay $9,033,600 for Title VII, Discrimination in Federal Employment?

 

The Treasury Department’s Judgment Fund pays court judgments and compromise settlements of lawsuits against the government. Federal agencies may ask the Bureau of the Fiscal Service to pay from the Judgment Fund for:
  • Most court judgments and Justice Department settlements of actual or imminent litigation against the government
  • Administrative claim awards (settlements by agencies at the administrative level, not involving a lawsuit)
According to Treasury, an agency may only ask for payment from the Judgment Fund if funds are not legally available to pay from the agency’s own appropriations. If another source of funds exists to pay the award, the Judgment Fund cannot be used even if the other source does not have enough money. In that case, the agency with the other source of funds must ask Congress to appropriate more money for that other source.
In most cases, the agency does not have to reimburse the Judgment Fund. However, reimbursement is required when the case comes under either the Contract Disputes Act or the No FEAR Act.
On October 7, 2021, an amount of $9,033,600.00 was sent from the Judgement Fund under Payment ID 062262021. The defendant agency is listed as the Broadcasting Board of Governors (BBG now USAGM) and the State Department. The database does not include the name of the complainant nor the docket number at the U.S. District Court of the District of Columbia which is listed as having jurisdiction of this case. It lists the Principal Citation Code as 42-USC-2000e-16 with the Principal Citation Code Description as “Title VII, Discrimination In Federal Employment.”
The Principal Amount is listed as $9,033,600.00.
The database does not indicate if this payment involves a single complainant or multiple ones. Or if a gag order is included as a bonus.
For more information about the Judgement Fund, click here.

Related item:
5 CFR 724 – Implementation of Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002-Judgment Fund

 

Related posts:

 

 

EEOC Reverses @StateDept Dismissal of Reasonable Accommodation Complaint Over Housing Assignment

 

 

Via EEOC Appeal No. 2021001832:
At the time of events giving rise to this complaint, Complainant was employed as a Criminal Investigator, GS-1811-13, with the Department of Justice – Drug Enforcement Agency (DEA), Caribbean Division – Curaçao, Netherlands Antilles Country Office, and stationed at the Department of State’s (hereinafter Agency or State) U.S. Consulate – Curaçao. On January 6, 2020, Complainant filed an equal employment opportunity (EEO) complaint against State alleging he was discriminated against based on his disability (asthma and association with his minor son with asthma who was part of his household) and reprisal for prior protected EEO activity under the Rehabilitation Act (requesting reasonable accommodation) when:
1. he was denied reasonable accommodation regarding his housing assignment in Curaçao; and
2. his assignment to US Consulate Curaçao was terminated on September 13, 2019.
State conducted an EEO investigation and then issued a FAD dismissing the complaint for failure to state a claim because Complainant was not a State employee, it had no decisionmaking authority on him, and it took no action “independent” of the DEA, Complainant’s employing agency. On appeal, Complainant submits a State regulation which indicates the Chief of Mission (Ambassador or Consul General) has full responsibility for the direction, coordination, and supervision of all U.S. executive branch employees in their country, with exceptions that do not apply here. We note that in his investigatory statement, the Consul General at Curaçao stated he was responsible for overseeing the activities of the DEA at his post, including Complainant, and that DEA asked if he would concur with curtailment (terminating the tour), which he did.
Additional details:

Complainant repeatedly articulated his view that State discriminated against him. See e.g., EEO complaint, at Bates No. 4; Affidavit A, at Bates Nos. 59, 60, 71; Rebuttal letter by Complainant’s former counsel writing Complainant “rebuts… that [the Consul General’s] actions to curtail… his assignment at… Curacao was at the request of DEA” at Bates No. 200; Complainant’s appeal statement that, “State was unilaterally responsible for the denial of a request for reasonable accommodation with respect to complainant’s housing assignment on September 13, 2019 (claim #1) and complainant’s assignment to… Curacao was broken on September 13, 2019 (claim #2)…. At no point in time did any individual from [DEA] request to break the… assignment at… Curacao or deny [my] request for a reasonable accommodation.”

Under a plain reading of 29 C.F.R. § 1614.106(a) – and this Commission’s own case law – Complainant’s belief alone is enough to enable him to file a discrimination claim with State. See e.g., Pion v. OPM, EEOC Request No. 05880891 (Oct. 18, 1988) (pointing out that the forerunner to current 29 C.F.R. § 1614.106(a) had once been amended precisely to guarantee the right of complainants “to bring a complaint against any agency they believed engaged in discriminatory conduct”); Warren v. OPM, EEOC Request No. 05950295 (Aug. 17, 1995) (ruling that “[i]n the present case, although [complainant] is clearly an employee of the Department of Agriculture, the Commission finds that the complaint was properly made against [OPM], the agency which allegedly discriminated against [him]”); Koch v. OPM, EEOC Appeal No. 01A13849 (Dec. 21, 2001) applying all the above cited cases. Thus, on these particular facts, State had no right to reject complainant’s complaint on the grounds that it was filed with the wrong agency.
[…]
The Agency is ordered to process the remanded claims, as redefined herein, from the point processing ceased. This means the Agency shall, within 10 days from the date of this decision, shall again notify Complainant that he has the option to request a hearing before an EEOC Administrative Judge (AJ) or an immediate FAD within 30 days of receipt of the notice in accordance with 29 C.F.R. § 1614.108(e). 2 If Complainant requests a FAD without a hearing, the Agency shall issue a final decision on the merits of the claim within sixty (60) days of receipt of his request.
[…]
Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.

Full decision is available to read here (PDF).

Click to access 2021001832.pdf

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EEOC Reverses @StateDept’s Dismissal of Ongoing Harassment Complaint

 

 

EEOC Appeal No. 2020004444:
Opal V. v. Dep’t of State, EEOC Appeal No. 2020004444 (Oct. 8, 2020)(Complainant’s complaint was more properly characterized as one of ongoing harassment by her supervisor and several subordinates.  Complainant alleged a series of events which created a hostile work environment over several months, including one incident involving a meeting with her supervisor that occurred within the 45 days prior to her email contact with the EEO Counselor.  The EEO Counselor’s report specifically referenced Complainant’s allegation of a hostile work environment based on her sex.  Therefore, Complainant stated a viable claim.  The Agency’s assertion that Complainant failed to show a nexus between her sex and the alleged harassment went to the merits of the claim without a proper investigation and was irrelevant to the procedural issue of whether Complainant stated a justiciable claim).
Excerpt:

At the time of events giving rise to this complaint, Complainant worked as an Information Programs Supervisor, FS-03, at an Agency facility in Brussels, Belgium.

On May 31, 2020, Complainant filed a formal EEO complaint. The Agency, in its dismissal decision, characterized the complaint as alleging that Complainant was subjected to discrimination on the basis of sex (female) when:

1. On February 25, 2020, Complainant was verbally counseled.


2. Complainant was subjected to an ongoing hostile work environment characterized by management communicating directly with Complainant’s subordinate employees without her, and management’s failure to admonish subordinates about using the term “mothering” and management’s own use, and condoning, of the use of terms and actions that Complainant found sexist and offensive.

On July 5, 2020, the Agency issued a final decision dismissing the complaint for failure to state a claim and for untimely EEO contact, reasoning that Complainant initiated EEO contact on April 28, 2020. The Agency stated that, “even if Complainant did not have actual knowledge [of the timeframes for initiating EEO counseling], she had constructive knowledge because she completed a No Fear training on March 3, 2009,” and the Agency had notices posted on the Agency’s website regarding the EEO process. The Agency dismissed the second allegation, reasoning that it did not rise to the level of an adverse action. The Agency found that referring to Complainant as “mothering” and “tasking her subordinate employees, without including her is not sufficiently severe or pervasive to rise to the level of a hostile work environment.”
[…]
On appeal, Complainant argues that when the Agency dismissed her complaint for failure to state a claim “the essence of the complaint is being ignored, that she was subjected to sex-based harassment by two employees over a six-month period, which was condoned by management.” The EEO Counselor’s Report stated that Complainant claimed that “because of sex, she was subjected to a hostile work environment characterized by, but not limited to, her supervisory position being treated as irrelevant” and that she was in a work environment that continually subjected her to “offensive gender-based comments or treatment”. Complainant also stated that management condoned the subordinate employees’ sexist attitudes. The EEO Counselor’s Report also stated that Complainant claimed that her male supervisor “has a practice of tasking her with all of the section’s trivial errands and personnel issues, while reserving the allocation of desirable, high profile projects for him to assign.”

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. Significantly, Complainant claims that her male supervisor, on an ongoing basis, undermined her own authority with her subordinates andcondoned what she believed to be sexist comments and attitudes directed against her because of her sex. We conclude that Complainant has made sufficient allegations to state a viable claim of discriminatory harassment which requires further investigation and processing. While the Agency claims that Complainant has failed to establish a nexus between her sex and the alleged harassment, this is addressing the merits of the claim without a proper investigation and is irrelevant to the procedural issue of whether Complainant has stated a justiciable claim under Title VII. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No.
05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991).


For the reasons stated above, we find that Complainant’s complaint was improperly dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. We caution the Agency that, on remand, it should avoid fragmenting Complainant’s overall hostile work environment claim in a piecemeal manner.

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EEOC Denies Class Certification Claim Over @StateDept’s Promotion System

Via EEOC Appeal No. 2020005030
Class Certification Denied.  Complainant alleged that the Agency’s promotion system, while utilizing facially neutral annual selection boards, relied on subjective factors that manifest bias including “career promise,” mentor/mentee input, and relationship-forming potential.  Complainant asserted that the reliance on such subjective criteria negatively impacted the advancement of Foreign Service Officers over the age of 40.  The AJ denied class certification, and the Commission affirmed the decision on appeal.  The AJ found that Complainant failed to establish commonality and typicality.  Specifically, Complainant failed to establish how the use of the identified subjective criteria impacted those age 40 or older.  Not only did Complainant fail to provide evidence of the application of such allegedly discriminatory criteria to himself, but he also failed to provide evidence from other class members concerning how they were harmed by the use of such subjective criteria.  The AJ noted that while Complainant provided information in support of his claim of a statistically significant disparate impact on older workers seeking promotion, he failed to show how the use of the subjective criteria negatively affected other older Foreign Service Officers.  Further, the Agency applied other criteria when considering promotions including specific career paths, postings, discipline, and employee evaluation reports, which were applied to eligible Foreign Service officers “in direct competition with others of their skill code and grade.”  The Commission noted that Complainant failed to address the application of these other criteria in any way and failed to identify facts common to the class as a whole.”  The AJ further found that Complainant failed to meet the typicality requirement because he had unique circumstances, specifically a negative employee evaluation, which undermined his assertion that his claim was typical of the class.  The AJ found that the arguments Complainant made when grieving his 2014 evaluation regarding the importance of employee evaluation reports to his promotion prospects undercut his argument that promotions were based on subjective criteria.  Therefore, the AJ properly concluded that Complainant failed to establish the requirements for class certification.  The Commission remanded Complainant’s individual complaint for processing.  Ty S. v. Dep’t of State, EEOC Appeal No. 2020005030 (Dec. 14, 2020).
Details:

EEOC Regulation 29 C.F.R. § 1614.204(a)(2) states that a class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that: (i) the class is so numerous that a consolidated complaint of the members of the class is impractical; (ii) there are questions of fact common to the class; (iii) the claims of the agent are typical of the claims of the class; and (iv) the agent of the class, or if represented, the representative will fairly and adequately represent the interests of the class. EEOC Regulation 29 C.F.R. § 1614.204(d)(2) provides that a class complaint may be dismissed if it does not meet the four requirements of a class complaint or for any of the procedural grounds for dismissal set forth in 29 C.F.R. § 1614.107. The class agent, as the party seeking certification of the class, carries the burden of proof, and it is his obligation to  submit sufficient probative evidence to demonstrate satisfaction of the four regulatory criteria. Anderson, et al. v. Dep’t of Def., EEOC Appeal No. 01A41492 (Oct. 18, 2005).
[…]
…we find that the AJ properly concluded that Complainant failed to establish the commonality and typicality requirements for class certification. As such, we need not also address whether Complainant satisfies the numerosity and adequacy of representation requirements. We affirm the AJ’s decision to deny class certification in this case.

Click to access 2020005030%20DEC.pdf

 

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@StateDept Updates Guidance For Reasonable Accommodations For Employees With Disabilities

 

The Disability/Reasonable Accommodation Division (GTM/OAA/DRAD) is the Department’s designated decision-maker on all reasonable accommodation requests. Last month, GTM/OAA/DRAD updated 3 FAM  3670 Reasonable Accommodations for Individuals With Disabilities. The update includes the time frame for processing requests, interim relief measures, and reconsideration and appeals for reasonable accommodation denial. The. State Department has been dinged more than once at the EEOC in its handling of reasonable accommodations. In a most recent case, the EEOC found State liable for compensatory damages because it has not shown it acted in good faith”. (see @StateDept Liable For Compensatory Damages “because it has not shown it acted in good faith”).

3 FAM 3673.3  Time Frame to Process the Request
(CT:PER-1065;   09-21-2021)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. The Disability/Reasonable Accommodation Division (GTM/OAA/DRAD) is committed to the timely processing of reasonable accommodation requests, consistent with the Department’s obligation under the Rehabilitation Act of 1973, as amended. Absent extenuating circumstances, GTM/OAA/DRAD will provide or deny accommodation requests from domestic applicants within 30 business days, and from overseas applicants with 45 business days. The time necessary to process a request is dependent on numerous factors including, but not limited to the nature of the accommodation requested; whether it is necessary to obtain supporting information such as medical documentation; procurement processes; hiring processes; and other circumstances.  For examples of extenuating circumstances, see 3 FAM 3673.5.
b. In the case of newly hired employees or employees being assigned to a new position, the Department will try to have the reasonable accommodation in place when the employee first reports to duty.  However, this may not always be possible.
c.  GTM/OAA/DRAD and individuals with disabilities may consult the resources listed in 3 FAM Exhibit 3673.3 in order to identify and evaluate potential reasonable accommodation options.
d. When necessary, the Department will make an effort to ensure expedited processing of a request for an accommodation.  Expedited processing might be necessary where the accommodation is needed to apply for a position or to participate in a specific activity that is scheduled to occur shortly.


3 FAM 3673.6  Providing Interim Relief Measures

(CT:PER-1065;   09-21-2021)
(State Only)

(Applies to Foreign Service and Civil Service Employees)

a. When all the facts and circumstances known to the Disability and Reasonable Accommodation Division (GTM/OAA/DRAD) make it reasonably likely that the individual will be entitled to an accommodation, but the accommodation cannot be provided immediately, GTM/OAA/DRAD will provide the individual with an interim accommodation that allows the individual to perform some or all of the essential functions of the job, absent undue hardship.
b. If an interim relief measure is appropriate, GTM/OAA/DRAD will work with the individual’s supervisory chain of command to ensure that temporary measures are provided to the individual. The individual will be notified that accommodations are only being provided on a temporary/interim basis, while awaiting either the provision of reasonable accommodation or a decision on whether the accommodation request will be granted.


3 FAM 3674.2  Reconsideration and Appeal of a Reasonable Accommodation Denial

(CT:PER-1065;   09-21-2021)

(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. An individual whose request for reasonable accommodation is denied may seek reconsideration of that denial by submitting information, in writing, to the Director of the Office of Accessibility and Accommodations (GTM/OAA) within 10 business days of receipt of the written decision denying a reasonable accommodation. A request for reconsideration must be accompanied by an explanation of the basis for the request and any documentation the individual wishes to submit in support of the request for reconsideration that GTM/OAA does not have. 
b.  An individual whose request for reconsideration is denied may pursue an appeal of that denial by submitting information, in writing, to the Director General of the Foreign Service and Director of Global Talent (DGTM) within 10 business days of receipt of the written decision denying reconsideration.  An appeal must be accompanied by an explanation of the basis for the appeal and any documentation the individual wishes to submit in support of the appeal that GTM/OAA does not have.

 

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