Category Archives: EEOC

EEOC Releases New Guide for Federal Employees Filing Employment Discrimination Appeals

January 28, 2022 By in Career Employees, Discrimination, EEOC, Federal Agencies Tags: , , , , ,

 

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

December 3, 2021 By in Discrimination, EEOC, State Department Tags: , , , ,

 

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

December 2, 2021 By in Career Employees, Discrimination, EEOC, Federal Agencies, State Department Tags: , , , , ,

 

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:

EEOC: Request to Repay a Debt For Overpayment of $103,321 Is Not Reprisal

November 22, 2021 By in EEOC, Federal Agencies, State Department, U.S. Missions Tags: , , , , ,

 

EEOC Appeal No. 2020001986

The issue is whether Complainant established that the Agency discriminated against him in reprisal for prior protected EEO activity when it requested that he repay a debt.

At the time of events giving rise to this complaint, Complainant worked in a temporary position as a Regional Federal Benefits Officer at the Agency’s U.S. Embassy in Mexico City, Mexico. Complainant stated that he served in this position from October 3, 2010, through August 3, 2013. Report of Investigation (ROI) at 62. Complainant returned to the Social Security Administration (SSA), effective August 3, 2013. ROI at 40.

Complainant stated that the Agency continued to pay his full salary from August 3, 2013, through August 3, 2014, which was in addition to his regular salary from the SSA. ROI at 65. On August 20, 2014, the Agency signed the Notification of Personnel Action (“SF-50”) on the Termination of Complainant’s appointment, effective August 3, 2013. ROI at 97.

On October 13, 2015, the Agency informed Complainant that it had completed its review of his account and determined that Complainant was overpaid by a gross amount of $128,894.94, and that Complainant needed to repay a net amount of $103,928.94. ROI at 110-13. On November 1, 2015, Complainant submitted a request for a waiver of the entire debt. ROI at 105-09. On November 6, 2015, the Agency informed Complainant that his request was under review, and that the debt collection was suspended pending the review. ROI at 120.

On March 28, 2019, the Associate Comptroller (AC) issued a decision denying Complainant’s request for a waiver of the debt because he was not eligible for a waiver under 5 U.S.C. § 5584. AC noted that the overpayment was caused by an administrative error, but it did not relieve Complainant of his responsibility to repay the debt. AC determined that the correct amount of the overpayment was $103,321.00. ROI at 145-53. On May 13, 2019, the Agency approved Complainant’s request for an installment payment plan of $1,501.00 per month for 49 months, with a final payment of $1,453.04. ROI at 94-95.

On May 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity (Case No. HQ-13-0804-SSA)2 when as recently as April 10, 2019, he was requested to repay a debt stemming from his assignment in Mexico.3
[…]
AC stated that a waiver may not be granted if there exists an “indication of fraud, misrepresentation, or lack of good faith on the part of the employee” and that fault was considered to have existed if the employee knew, or should have known, through an exercise of due diligence that an error occurred but failed to take action, under 5 U.S.C. § 5584. AC stated that Complainant indicated that he received every Earnings and Leave statement from August 2013 through August 2014, while no longer working for the Agency. AC stated that an employee is responsible for verifying the accuracy of the Earnings and Leave statements and reporting errors in a timely manner. ROI at 882.
[…]
While Complainant stated that he believed that the payment was possibly a means to allocate remedies for his prior EEO complaint, Complainant did not prevail on his complaint and was not awarded any remedies. As such, we find that Complainant did not establish that the Agency retaliated against him for his prior protected EEO activity when it requested that Complainant repay a debt stemming from his assignment in Mexico.

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency discriminated against him in reprisal for prior protected EEO activity when it requested that he repay a debt.

 

Click to access 2020001986.pdf

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

November 15, 2021 By in Americans Abroad, Consulate General, Discrimination, EEOC, Federal Agencies, Realities of the FS, State Department, U.S. Missions Tags: , , , , ,

 

 

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

November 10, 2021 By in Discrimination, EEOC, Foreign Service, Harassment, State Department, U.S. Missions Tags: , , , , , ,

 

 

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

November 2, 2021 By in Discrimination, EEOC, Foreign Service, FSOs, Promotions, Realities of the FS, State Department Tags: , , , , , , , ,
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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EEOC: US Embassy Yemen FSN Discrimination Claim Over Denial of Overtime Fails

October 18, 2021 By in Chaos, EEOC, Evacuations, Foreign Service, Huh? News, Lessons, Locally Employed Staff, Org Life, Realities of the FS, State Department, U.S. Missions Tags: , , , ,

 

This is an instructive case for local employees of U.S. missions overseas. Even during a crisis, especially during a crisis, during chaos, even during evacuations, if a local employee is tasked to do work outside or normal work hours, there must be overtime pre-approval by the the supervisor (typically this means the American officer-supervisor).   In this EEOC case, the local employee claimed 1,952 hours of overtime for work purportedly done from 2015-2019. Without documented pre-approval by the American supervisor, Uncle Sam is not obligated to pay.
Even if a supervisor  or some other embassy official asked for work to be done; even if work was actually done as requested …if there’s no record or documentation regarding the overtime requests or preapproval for the overtime “as required”, there would be “no basis to grant the overtime pay.”
All good supervisors and decent human beings hopefully will ensure that pre-approvals are made and granted before any work requests are made of the local staff. Otherwise, you’ll be asking, and no one will be paying …. and that would disturb one’s conscience. Or should.
Via EEOC Appeal No. 2020003186:
At the time of events giving rise to this complaint, Complainant worked as a Defensive Security  Coordinator, Grade 10, at the Agency’s U.S. Embassy in Yemen. On April 30, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Arabian) and national origin (Yemen) when:

1. Complainant was denied overtime compensation for work he performed since 2015, and as recently as April 3, 2019;
2. Complainant has been denied a higher base salary level commensurate with his other American citizen colleagues; and
3. He was subjected to a hostile work environment, characterized by, but not limited to, his supervisor’s requests that he return his U.S. government-issued vehicle.  The most recent request was March 18, 2019.
Complainant was hired by the Agency in 2010, as a Local Hire under the Local Hire Program at the U.S. Embassy. Complainant has dual citizenship; he was born in Yemen and became an American citizen on September 22, 2006. He averred management knew his race and national origin because he was a Local Hire.

Claim 1 – Denial of Overtime (OT) Compensation since 2015

Complainant claimed that he held two different positions with the Agency. First, Complainant stated that he performed Defensive Security Coordinator duties from January 2014 to July 2019. Complainant stated that he had been granted overtime for years in this position prior to the Embassy’s evacuation in 2015. Secondly, Complainant claimed that he performed Regional Security Officer (RSO)/Team Lead duties from February 2015 to November 2015. Complainant claimed that his duties increased after taking on that role. Complainant alleged that he was called at all hours of the day and night.

On February 12, 2015, the Embassy where he worked was forced to evacuate. Shortly thereafter, in March, war ensued. After Complainant worked to coordinate the evacuation, he returned to the U.S. The Embassy suspended operations in 2015. The record indicates that Complainant’s entire work history was destroyed along with all other employee files that were kept onsite. The record indicates, however, that he remained on the Agency rolls until July 2019.

Complainant stated that after the evacuation, his work continued and he says his responsibilities escalated, but he was not fairly compensated. Complainant alleged that he sent an email to management officials, including his supervisor at the time (S1-2), listing all of the dates he worked overtime but he received no response. Further, Complainant claimed that he was told that they would try to process it, but he might have to wait until the Embassy reopened.

S1-2 acknowledged that Complainant held the Defensive Security Coordinator position and was eligible for overtime, but only with a prior authorization from his supervisor. He averred that he was the one to approve, but he averred “no requests for overtime were made.” S1-2 further confirmed, however, that Complainant provided information in support of his claim for 1,952 hours of overtime. S1-2 said that he forwarded the overtime claim to the Department and asked Complainant for further documentation.

Complainant submitted an email to his supervisor regarding his overtime on December 12, 2018, and after he did not receive a reply, he reached out to the Office of Civil Rights.

He received a reply on April 3, 2019. In the response, S1-2 informed Complainant that there was no record or documentation regarding his overtime requests or preapproval for the overtime as was required. Therefore, there was no basis to grant the overtime pay.

Claim 2 – Denial of Higher Compensation Given to American Colleagues

While working in the RSO section, Complainant believed that he was entitled to a higher base salary. Complainant averred that he should have received a new contract, inasmuch as he was promised a promotion. Complainant alleged that his former supervisor (S1-1) tasked him with controlling everything but did not ensure that he was compensated fairly. In addition, Complainant alleged that numerous officials over the years failed to ensure that he was compensated fairly or transition his job status. Complainant asserted that all of the issues stemmed from the fact that he was hired as a Locally Employed Staff. Complainant averred that, unlike his non-Arabian colleagues, he had to pay for his family to evacuate Yemen because of the war, but the government paid for the other employees’ families to evacuate. Complainant state that he was also put on at least one Reduction-in-Force list, but the notice was rescinded.
[…]
Complainant averred that he thought he could “work his way up” because of his American citizenship status. He acknowledged that he was hired as a Locally Employed Staff employee, which does not have a Career Ladder progression.

Claim 3 – Hostile Work Environment/Demand for Vehicle Return

Before the February 2015 evacuation of the Embassy where Complainant worked, he had been assigned a vehicle. The car is still parked at his relatives’ home in Yemen. When he and others were forced to flee in 2015, it was assumed that he would be able to come back in about a month.
He averred the Agency stopped him from going back because of the risks for him. On February 4, 2019, S1-2 issued a directive that the car be returned to service. The two communicated via email during the period February 23, 2019 to March 14, 2019. Complainant told him that he
feared his family would be placed in danger if the vehicle was retrieved. To protect his family still in Yemen, Complainant asked for certain safeguards. There were no further communications after April 2019.
[…]
In the decision, the Agency found that Complainant was not subjected to discrimination as alleged.
[…]
Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency’s explanations for its actions were pretext intended to mask discriminatory motivation. As a result, we find that Complainant was not subjected to the discrimination as alleged.

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EEOC Case: Middle Eastern FSO Alleges Discrimination, Raises “Unconscious Bias” Over Non-Promotion

October 15, 2021 By in Discrimination, EEOC, Federal Agencies, Foreign Service, FSOs, Promotions, Realities of the FS, Staffing the FS, State Department, U.S. Missions Tags: , , , ,

 

EEOC Appeal No. 2020000559
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Foreign Service (“FS”) Officer, FS-04, (Political) at the U.S. Embassy in Ankara, Turkey.

On December 7, 2018, Complainant filed a formal EEO complaint alleging discrimination by the Agency on the bases of race (Middle Eastern), national origin (Iranian, naturalized U.S. Citizen), and religion (Muslim) when, on or about August 31, 2019, she learned that she was not promoted by the 2018 Foreign Service Selection Boards.
[…]
The record includes, but is not limited to, the following relevant facts:

Promotions for FSOs, such as Complainant, are determined by Selection Boards (also referred to as the Promotion Board or “Board”) comprised of volunteer reviewers from within the Agency. In 2018, it was established Agency practice for all reviewers to undergo two days of training on relevant software, and how to impartially evaluate an employee based on their awards and duty posts from the past five years, the employee’s electronic Official Personnel Files (“eOPF” or “file”), and their EER (review). The volunteers are instructed to recuse themselves if they feel they are unable to review a file objectively. During the 2018 training, the volunteers were briefed by the Agency’s Office of Civil Rights about diversity with a focus on “ensuring the Board applied the Department’s EEO principles in its deliberations and decisions.”
[..]
The promotion review was on a “class-wide basis,” so all FS-04 candidates within the same specialty were reviewed by the same Board. Thus, the Board reviewing Complainant and other FS-04s was responsible for reviewing more than 875 files within 10 weeks, or 34 to 40 employee
files per day. When asked to provide affidavits for the instant complaint, none of the panelists recognized Complainant’s name or specifically recalled the contents of her employee file.

Complainant maintains that she was qualified and deserving of a promotion based on her accomplishments, and submits copies of her EERs from 2011 to 2018, a Superior Honor Award (2011), a Letter of Commendation (2012), two Meritorious Honor Awards (2016 and 2018) and the highest language score among her cohort of Turkish language students (2017) and service above grade in three out of four assignments. While Complainant concedes, “I do not have information from which I can assess whether my performance was superior to those selected,” Complainant asserts that her “track record in multiple positions senior my grade, my awards, and my EERs, I am on par with those promoted.”

Complainant contends that, at the time of her 2018 non-selection, “unconscious bias” was a known obstacle to achieving awards and promotions within the Agency’s selection process. She states that at least two affinity groups, Executive Women at State and Balancing Act, had been trying to raise the issue of unconscious bias with respect to the scoring process. The Union surveyed employees in 2017 and identified strong support for removing names from EERs (reviews). Regarding this survey, Complainant states that “individuals like me, with different ethnically identifiable names, almost unanimously found fault with the Agency’s practice of including names in the EERs.”
[..]
Significantly, Complainant argues that the Agency, in both investigating and deciding her case, disregarded her allegations of “unconscious bias,” instead applying a disparate treatment analysis to her allegations. It is clear from the record that Complainant was attempting to raise a disparate impact claim, as she repeatedly clarified in her affidavit that she did not believe the Panel intentionally discriminated against her, instead, describing herself as the victim of unconscious bias as a result of the Agency practice of promotion boards knowing the names of the candidates they were reviewing.

Complainant challenges the Agency’s policy of allowing reviewers for FS promotions to see the employees’ first and last names, arguing that a candidate’s name could trigger implicit bias by the reviewer. As evidence of bias against individuals of Middle Eastern dissent, Complainant cites FBI data revealing a 67% increase in hate-based incidents against Muslim Americans in 2015, the highest since the aftermath of September 11, 2001. She also cites the Muslim Public Affairs Council, which, based on media tracking, found an exponential increase in hate-based attacks. She recalls the “Muslim Ban,” where the President called first for a “total and complete shutdown of Muslims entering the United States,” later modified to “extreme vetting” of Muslim immigrants. Moreover, Complainant argues that even if all of the panelists did not realize her name was of Middle Eastern origin specifically, “it is impossible for someone not to know that I am from a specific minority group . . . and that I am likely from the Middle East with a high probability that I am Muslim.”
[…]
In the present case, as a result of the Agency’s investigation’s sole focus on disparate treatment, the record is not sufficiently developed to determine whether Complainant can establish even a prima facie case of disparate impact.3 We have presented some of the details of our prior analysis in Gwendolyn G. to provide Complainant and the Agency with guidance in determining the sort of evidence necessary to determine a disparate impact case of this sort. We are vacating the Agency’s final decision and remanding this matter to the Agency for further investigation relevant to the disparate impact claim.

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby VACATE the Agency’s Final Decision (with the exception of affirming the timeliness dismissal of promotion claims prior to 2018) and REMAND the matter for further processing in accordance with the following Order.

ORDER
1. Within one hundred and twenty (120) calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation addressing Complainant’s claim of discrimination under the disparate impact theory and issue an updated ROI to Complainant.
2. Among other things, the updated ROI shall contain the necessary statistical data to allow a decision maker to determine whether Complainant can establish a prima facie case of disparate impact analysis discussed above with respect to individuals with Middle Eastern names, as well as individuals with names that could be mistakenly identified as Middle Eastern. Evidence shall also be gathered with regard to the Agency’s justification for the challenged practice.
3. Within sixty (60) calendar days of the completion of the supplemental investigation, the Agency shall issue a new FAD to Complainant with appeal rights to this Commission. The FAD shall contain a thorough analysis of Complainant’s complaint under disparate impact theory.
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include a copy of the new ROI and FAD with appeal rights, and it shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
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EEOC: @StateDept Liable For Compensatory Damages “because it has not shown it acted in good faith”

September 27, 2021 By in Discrimination, EEOC, Federal Agencies, State Department Tags: , , , , , ,

 

Via EEOC: Jona R. v. Dep’t of State, EEOC Appeal No. 0120182063 (Jan. 23, 2020).
Denial of Reasonable Accommodation Found.
Complainant filed an EEO complaint alleging that she was discriminated against on the basis of disability when she was not provided with a reasonable accommodation of situational telework as her medical circumstances required.  Complainant had been teleworking for several years, but her telework agreement expired.  According to the record, Agency managers repeatedly asked Complainant to resubmit her request or provide additional information over a period of several months.  Approximately six months after Complainant requested accommodation, the Agency informed Complainant that she could telework on Mondays, Wednesdays, and Fridays and would have a one-hour window to report her duty station to her supervisor on those days.  The Commission found that the Agency discriminated against Complainant when it did not approve her request for situational telework.  The Agency acknowledged that Complainant was a qualified individual with a disability.  Complainant demonstrated that she needed to be able to telework when she experienced symptoms related to her condition, and these symptoms occurred without notice and were not limited to the three days specified.  Therefore, the Agency’s offer, which was essentially the same telework schedule Complainant had before she requested reasonable accommodation, was not an effective accommodation.
The Commission found that the Agency failed to prove it would have been an undue hardship to allow Complainant to telework when her medical conditions warranted.  The Agency was ordered, among other things, to provide Complainant with the ability to situationally telework, restore any lost leave or pay, and investigate her claim for compensatory damages.

More details:

At the time of events giving rise to this complaint, Complainant worked as a GS–12 Administrative Assistant within the Agency’s Bureau of Diplomatic Security, Secretary’s Protective Detail, in Washington, D.C. In this position, Complainant primarily provides operational planning and coordination for the Secretary’s Protective Detail and administrative, logistical, procurement, and financial support for the Detail. On September 13, 2013, a new manager became Complainant’s direct supervisor (S1) .

Complainant has been diagnosed with Type I Diabetes, Neuropathy, Anxiety, Depression, and Autonomic Neuropathy. Because of these conditions, Complainant sometimes experiences dizziness, fainting, low blood pressure, abnormal perspiration, a lack of bladder/bowel control, vomiting, nausea, and pain in her hands and feet.
[…]
Complainant has teleworked since 2009 and last signed a telework agreement on June 28, 2012 that expired on June 29, 2013. The June 2012 to June 2013 agreement allowed Complainant to telework on Mondays, Wednesdays, and Fridays.
[…]
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency found that Complainant was a qualified individual with a disability. Nevertheless, the Agency concluded that Complainant did not prove she was denied a reasonable  accommodation for her disability. Specifically, the Agency determined that Complainant did not submit any documentation to support her October 29, 2013 request for situational telework. Regarding Complainant’s January 2, 2014 request for fulltime telework, the Agency determined  that it provided Complainant with an effective reasonable accommodation by offering her the ability to telework three times per week.

The Agency concluded that Complainant’s medical documentation did not support her request for fulltime telework, and she would have been best accommodated through a combination of telework and sick leave. Additionally, the Agency concluded that fulltime telework would have imposed an undue hardship on the Agency because: her position required training and periodic meetings in the office; trip planners were not able to follow all information given via telephone calls; Complainant’s workload had increased by 135 percent; and Complainant had demonstrated an  inability to follow proper procedures for reporting her duty station and work status while teleworking.
[…]
The Agency concluded that it provided Complainant with an effective reasonable accommodation when it offered her telework three times per week. However, as Complainant points out, the Agency only offered to allow Complainant to telework on Mondays, Wednesdays, and Fridays,  which is essentially the same telework schedule Complainant had before she requested reasonable accommodation. However, Complainant disclosed she needed to telework when she experienced symptoms related to her condition that impacted her ability to commute and work in the office. These symptoms often occurred without significant notice and were not restricted to Mondays, Wednesdays, and Fridays. Therefore, if Complainant experienced symptoms that impacted her ability to commute or work in the office on Tuesdays or Thursdays, the telework agreement would not have provided her with a reasonable accommodation for her medical conditions. The Agency’s offer of telework on Mondays, Wednesdays, and Fridays was not an effective accommodation because it did not meet Complainant’s need for flexible, situational telework as needed.
[…]
Hence, we find that the Agency failed to provide Complainant with a reasonable accommodation for her disability when it did not approve her for situational telework. See Jody L. v. Dep’t of the Air Force, EEOC Appeal No. 0120151351 (Jan. 17, 2018) (agency violated the Rehabilitation Act when it denied Complainant with Paralysis the option of working from home on days when the temperature is below negative twenty degrees.). In so finding, we remind the Agency that the federal government is charged with the goal of being a “model employer” of individuals with disabilities, which may require it to consider innovation, fresh approaches, and technology as effective methods of providing reasonable accommodations. Rowlette v. Social Security Administration, EEOC Appeal No. 01A10816 (Aug. 1, 2003); 29 C.F.R. §1614.203(a). We believe that providing Complainant with this reasonable accommodation furthers this goal.

An agency is not liable for compensatory damages under the Rehabilitation Act where it has consulted with complainant and engaged in good faith efforts to provide a reasonable accommodation but has fallen short of what is legally required. See Teshima v. U.S. Postal Serv., EEOC Appeal No. 01961997 (May 5, 1998). In this case, the Agency was aware that Complainant needed situational telework because of her medical conditions, and the Agency did not show providing Complainant with telework as needed would have imposed an undue hardship. Moreover, Complainant made the Agency aware that its offer of telework on an inflexible, rigid basis did not meet her medical needs. Consequently, we find that the Agency is liable for Complainant’s compensatory damages because it has not shown it acted in good faith in accommodating Complainant.

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