EEOC Sanctions USAID For Failing to Conduct Thorough Investigation in Disability and Age Discrimination Case

 

Via The Digest of Equal Employment Opportunity Law | Volume 1Fiscal Year 2019

Commission Sanctioned Agency for Failing to Conduct Thorough Investigation & Found Evidence Would Have Established Discrimination. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of disability and age when it terminated her contract employment. The Agency conceded, and the record supported a finding that Complainant established a prima facie case of discrimination, and the Commission found that the Agency articulated a legitimate, nondiscriminatory reason for the decision to terminate Complainant, that is its realignment of her office due to budgetary constraints. The Commission noted that while the EEO Investigator was thorough and pursued affidavits from both Complainant’s supervisor and the Assistant Administrator of her office, the Investigator only obtained a statement from the supervisor. The Assistant Administrator had moved to another agency and informed the Investigator, by email, that she would not cooperate with the investigation, did not supervise Complainant, and did not believe the questions posed by the Investigator were pertinent or applicable to her. The Commission stated that the Agency did not show good cause for its failure to engage in further efforts to obtain the Assistant Administrator’s affidavit. In addition, there was ample indication in the record that her testimony constituted highly relevant evidence, including a note by the EEO Counselor that the Assistant Administrator confirmed she made comments about Complainant’s health in the context of Complainant’s termination.

Therefore, the Commission concluded that the imposition of sanctions was warranted for the Agency’s failure to obtain testimony from the Assistant Administrator. While the Assistant Administrator moved to another federal agency, as a federal employee she retained the duty to respond to an EEO investigation, and the Agency provided no indication that it took any steps to obtain her cooperation. The Commission presumed that had the Assistant Administrator submitted an affidavit, she would have admitted she was directly involved in the decision to terminate Complainant’s contract, and that Complainant’s disability played a significant role in that decision. The Agency was ordered, among other things, to require Complainant’s contracting employer to reinstate her to her former position if possible or pay her one year of front pay if there was no position to which she could be reinstated; pay Complainant appropriate back pay; and investigate her claim for compensatory damages. Aileen C. v. Agency for Int’l Dev, EEOC Appeal No. 0120170399 (Sept. 18, 2018).

According to the EEOC, sanctions serve a dual purpose: 1) they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future, and 2) they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party.

Several factors are reportedly considered in “tailoring” a sanction and determining if a particular sanction is warranted:
(1) the extent and nature of the non-compliance, and the justification presented by the non-complying party;
(2) the prejudicial effect of the non-compliance on the opposing party;
(3) the consequences resulting from the delay in justice; and
(4) the effect on the integrity of the EEO process.

The EEOC’s sanctions in this case  include reinstatement, back pay, front pay, compensatory damages, EEO site visit, and coverage of attorney’s fees and costs.

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EEOC Finds @StateDept’s Denial of Reasonable Accommodation and Disability Discrimination Unlawful

 

Via The Digest of Equal Employment Opportunity Law | Volume 1Fiscal Year 2019

The federal government, including the Agency, is charged with being a “model employer” of individuals with disabilities. See 29 C.F.R.  1614.203(a). Inherent in this duty is an obligation to break down artificial barriers which preclude individuals with disabilities from participating on an equal footing in the work force. Accordingly, the Rehabilitation Act requires federal agencies to make various types of “”reasonable accommodation” for federal employees who have disabilities. This requirement helps ensure that such federal employees will be able to perform the essential functions of their positions, and enjoy all the benefits and privileges of employment enjoyed by non-disabled employees. See Appendix to Part 1630 – Interpretive Guidance on Title I of the Americans with Disabilities Act (“Appendix to Part 1630″), at Section 1630.2(o): Reasonable Accommodation.” (via)

Via ssa.gov

Denial of Reasonable Accommodation & Disability Discrimination Found.

Complainant filed an EEO complaint alleging, among other things, that the Agency denied him reasonable accommodation, and discriminated against him based on his disability when it rated him “unsuccessful” on his performance evaluation. On appeal, the Commission found that the Agency failed to show that providing any of Complainant’s many requested reasonable accommodations would cause an undue hardship. The Agency’s broad rejections did not reflect the specificity required of an individualized assessment, nor a consideration of the factors comprising an undue hardship. Further, the Commission noted its concern with the Agency’s lack of participation in the interactive process. The Agency not only rejected Complainant’s numerous suggestions, but it failed to suggest any alternatives and blamed Complainant for the alleged breakdown in the interactive process. The Commission further found that Complainant’s “unsuccessful” rating was also discriminatory. While the record contained evidence of Complainant’s ongoing performance problems throughout the year, including numerous emails from his supervisor, the Commission observed that some of the emails followed Complainant’s requests for accommodation. Moreover, the major life activities that were impacted by Complainant’s PTSD, for which he was seeking a reasonable accommodation, were the same skills identified by management as needing improvement (i.e. focus, concentration, and avoiding distractions). Among other things, the Agency was ordered to immediately take all steps necessary in accordance with Commission regulations to provide Complainant with reasonable accommodation; to rescind and expunge the unsuccessful rating; and to determine Complainant’s entitlement to compensatory damages. The Commission affirmed the Agency’s finding that Complainant failed to prove his claim of harassment. Wilmer M. v. Dep’t of State, EEOC Appeal No. 0120160352 (Feb. 22, 2018).

Denial of Reasonable Accommodation & Reprisal Discrimination Found.

Complainant, who had a mixed connective tissue disease, alleged she was denied a reasonable accommodation, and subjected to reprisal when the Agency included certain elements in her work commitments. Complainant requested to telework an additional day each week due to her extended commute and per her doctor’s recommendation. However, Complainant was placed on a new team with “face-to-face” and “physically available” commitments. On appeal, the Commission found that Complainant could perform essential function of her job with a reasonable accommodation of telecommuting. Complainant identified a reasonable accommodation of telecommuting two days a week and fully complied with Agency procedures. Rather than provide the requested accommodation, however, the Agency denied Complainant’s request, and only months later granted situational telework. The Commission found that this was ineffective, because Complainant’s condition merited consistent telework to address her symptoms and to prevent exacerbation of her condition. While Agency managers indicated that there was not sufficient work for Complainant to do while teleworking, no basis was shown for this assertion. The Commission cited significant issues with the manner in which the Agency engaged in the interactive process, including continuing to require further medical documentation despite the fact that the Agency already had the information in its possession. The Commission concluded that the Agency did not make a good faith effort to provide Complainant with reasonable accommodation. The Commission also found that Complainant was subjected to reprisal when her work commitments were revised to include terms like “face to face” and “physically available.” The Commission noted the close temporal proximity between Complainant’s request for reasonable accommodation and the change in her work commitments, and stated that Complainant was the only employee impacted by the reassignment whose new commitments evinced a clear disapproval of telework. The Agency was ordered, among other things, to provide Complainant with the option of teleworking two days per week if she still occupied her position or a similar position, investigate Complainant’s claim for damages, and provide appropriate training for the responsible management officials. Alejandrina L. v. Dep’t of State, EEOC Appeal No. 0120152145 (Nov. 16, 2017).

 

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EEOC Awards $60K For USNATO Brussels’ Failure to “Reasonably Accommodate” @StateDept Employee

Posted: 2:36 am ET

 

Via eeoc.gov/vol 1/FY18:

Commission Increased Award of Damages to $60,000. The Commission previously affirmed the Agency’s finding that it failed to reasonably accommodate Complainant. Following an investigation of Complainant’s claim for damages, the Agency awarded Complainant $10,500 in non-pecuniary damages. On appeal, the Commission affirmed the Agency’s decision not to award pecuniary damages, finding insufficient documentary proof to support such an award. The Commission, however, increased the award of non-pecuniary damages to $60,000. The Agency conceded that Complainant established a nexus between the harm he sustained and the discrimination. The record evidence confirmed that over a three-year period, Complainant experienced an exacerbation of his pre-existing conditions caused by stress created by the Agency’s discriminatory actions. Complainant stated that he experienced anxiety, irritability, insomnia and loss of consortium, and indicated that he did not go out socially. He also noted that he experienced headaches, and night sweats, and was forced to increase his medication when the Agency refused to accommodate him. The evidence supported Complainant’s assertion that his condition had stabilized prior to the discrimination, and the Agency was liable for the worsening of Complainant’s condition. Irvin W. v. Dep’t of State, EEOC Appeal No. 0120141773 (Oct. 28, 2016).

Here is a quick summary of the case:

At the time of events giving rise to this complaint, Complainant worked as an Information Management Specialist at the Agency’s U.S. Mission to NATO in Brussels, Belgium.  On September 11, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (Sjogrens Syndrome, Rheumatoid Arthritis and Anxiety) when the Agency failed to provide him with a reasonable accommodation of his disability. After an investigation, Complainant requested the Agency issued a final decision.  In its decision, the Agency found Complainant established he was subjected to discrimination when he was denied an accommodation.  As relief, the Agency ordered that Complainant be provided with a reasonable accommodation. On July 14, 2011, Complainant appealed the decision, and we affirmed the Agency’s finding on liability, and remanded the matter to the Agency so that it could conduct a supplementary investigation into Complainant’s entitlement to compensatory damages.  After conducting an investigation, the Agency issued its decision on March 12, 2014 awarding Complainant $10,500.00 in non-pecuniary damages. Specifically, the Agency found that Complainant’s pre-existing condition was largely the cause of Complainant’s physical and emotional distress during this time, and that the amount awarded was meant to compensate Complainant for the worsening of that condition.  The Agency disagreed with Complainant’s claim that his condition had stabilized by the time he arrived in Brussels, as evidence revealed he was still on a large dosage of steroids in July 2008, weeks before he began working.  Although Complainant alleged that he suffered from a loss of bone density (Osteopenia) as a result of his long term steroid use, the Agency determined that there was insufficient evidence that this was as a result of the discrimination.  Furthermore, although Complainant suffered emotional distress related to the discrimination, such distress occurred prior to his request for reasonable accommodation, which the Agency could not be held liable for.  In sum, the Agency concluded that Complainant’s condition was inherently unpredictable, and accordingly, his symptoms were unrelated to the discrimination itself.  Accordingly, the Agency concluded that $10,500.00 was an appropriate amount to compensate Complainant for the emotional distress he suffered.  The Agency declined to award any pecuniary damages in response to Complainant’s request.  This appeal followed.
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Based upon the evidence provided by Complainant, we find the Agency’s award of $10,500.00 to be inadequate to remedy the harm caused by the Agency.  The Commission notes that record evidence confirmed that over a three year period, Complainant experienced an exacerbation of his pre-existing conditions for which he sought treatment caused by the stress created by the Agency’s discriminatory actions.  Complainant asserts that he suffered from anxiety, irritability, insomnia, and loss of consortium.  He maintains he did not go out socially, and suffered from headaches, night sweats and loss of bone density.  Most notably, he states he had tapered down his steroid dosage prior to reporting to Brussels, but was forced to increase the medication when the Agency refused to provide him with an accommodation of his disability.  We find the evidence supports Complainant’s position that his condition had stabilized and thus, the Agency is liable for the worsening of his condition. The Commission finds that an award of $60,000.00 is reasonable under the circumstances. See Complainant v. Dep’t of Transp., EEOC Appeal No. 0720140022 (Sept. 16, 2015) (Complainant awarded $60,000.00 where Agency’s failure to accommodate resulted in depression, anxiety, sleeplessness, and exacerbation of existing symptoms); Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0720130013 (Aug. 14, 2014) (Complainant awarded $60,000.00 where Agency’s failure to accommodate resulted in exacerbation of post-traumatic stress disorder, depression, stress, and elevated blood pressure); Henery v. Dep’t of the Navy, EEOC Appeal No. 07A50034 (Sept. 22, 2005) ($65,000.00 awarded where Complainant suffered from frustration, negativity, and loss of sleep for a four-year period, as well as physical pain associated with the resulting excessive walking. The discrimination caused significant increase in Complainant’s need for medical treatment, as well as an increase in physical and emotional harm). The Commission finds that this amount takes into account the severity of the harm suffered and his pre-existing condition, and is also consistent with prior Commission precedent. Finally, the Commission finds this award is not “monstrously excessive” standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases.  See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).

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@StateDept Dismisses EEO Complaint For Following Wabbit Into a Hole, EEOC Reverses

Posted: 1:45 am ET
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Here is an EEO case with a reminder that the Commission has previously held that an agency may not dismiss a complaint based on a complainant’s untimeliness, if that untimeliness is caused by the agency’s action in misleading or misinforming complainant.

Quick summary of case via eeoc.gov:

At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Agency’s Department of State facility in Washington, DC. Complainant contacted an EEO Counselor alleging that she was subjected to discrimination and a hostile work environment. When the matter was not resolved informally, the EEO Counselor emailed Complainant a Notice of Right to File (“NRF”), which Complainant received and signed on January 25, 2017. However, in that same email, the EEO Counselor conflated the EEO filing requirements, misinforming Complaisant that she had to file her signed NRF, rather than her formal complaint, within 15 days. On that same date, Complainant attempted to file her signed NRF with her EEO Counselor, who informed Complainant that the signed NRF had to be filed with the Agency’s Office of Civil Rights, and that filing the signed NRF with that office would initiate the formal EEO complaint process.

Complainant filed her signed NRF, rather than a formal complaint, to the Office of Civil Rights on January 25, 2017, and the Office of Civil Rights confirmed its receipt on January 27, 2017. Complainant therefore filed her signed NRF within the 15-day period that she was supposed to file her formal complaint. However, it was not until February 21, 2017, which was beyond the 15-day filing period, when the Office of Civil Rights informed Complainant that she had submitted the wrong form to initiate the formal EEO process, and that Complainant needed to file a formal complaint rather than her signed NRF.

On March 6, 2017, which was within 15 days of being informed that she had filed the wrong form, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex, disability, and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:

1. On 10/11/2016, she was denied the ability to telework;
2. On 11/10/2016, she was subjected to an environment of uncertainty and arbitrary decision making regarding her accommodation requests; and
3. She was subjected to a hostile working environment characterized by repeated acts of disparate treatment, unpleasant social interactions with management, and retracted support for locally negotiated reasonable accommodations.

The Agency dismissed Complainant’s complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for failing to file her formal complaint within 15 days of receiving her Notice of Right to File.

On appeal, Complainant contends that the Agency’s dismissal of her complaint should be reversed because her EEO Counselor mistakenly advised her to file her signed NRF, rather than a formal complaint, within 15 days of receiving her NRF, causing her to miss the filing period for her formal complaint.

The decision notes the following:

EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a complaint required by 29 C.F.R. §1614.105(d), (e) or (f).

On June 28, 2017, the EEOC reversed the State Department’s decision to dismiss the complaint and remanded the case to the agency for further processing in accordance with its order as follows:

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request.

Compliance with the Commission’s corrective action is mandatory. Read the full decision here.

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EEOC Case: FS Candidate Wins Disability Discrimination Case, Sinks For Selective Service Registration Fail

Posted: 4:32 am ET
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Via eeoc.gov:

On March 9, 2004, Complainant filed a formal complaint alleging that he was subjected to disability discrimination when he was denied an appointment to a Junior Officer position with the Foreign Service.  After an investigation, the Agency issued a final decision finding no discrimination, and Complainant appealed.  In our prior decision, we found the Agency discriminated against him when it failed to grant him a medical clearance based on its “worldwide availability” requirement.  Bitsas v. U.S. Department of State, EEOC Appeal No. 0120051657 (Sept. 30, 2009).  As relief, we ordered the Agency to retroactively offer Complainant a Junior Officer position, and to tender back pay and promotions from the date Complainant would have encumbered his position, absent discrimination, until the date he either enters on duty or is denied a medical or security clearance.  We further ordered the Agency to undertake a supplemental investigation into complainant’s entitlement to compensatory damages, provide training, consider taking disciplinary action, and post a notice of the finding of discrimination.  Id.

Pursuant to our order, on November 10, 2009, the Agency sent Complainant a Conditional Offer of Appointment to a Junior Officer position, contingent on the satisfactory completion of the security, medical, and suitability clearance processes.  On January 1, 2010, Complainant received a Class 1 Medical Clearance.  However, on July 16, 2010, the Agency’s Final Review Panel (FRP) terminated Complainant’s candidacy based on suitability grounds.

The FRP concluded that, pursuant to 5 U.S.C. § 3328, Complainant was ineligible for federal Executive branch employment because he failed to register with the Selective Service System (SSS).  The Panel also concluded that there were several instances of misconduct in Complainant’s prior employment which rendered him ineligible for employment with the Foreign Service.  Complainant appealed this decision, but on December 8, 2010, the Office of Personnel Management (OPM) determined that Complainant’s failure to register with the SSS was knowing and/or willful; thus, he was ineligible for appointment to an Executive Agency.  Complainant sought a request for reconsideration with the OPM, which was denied.

In the meantime, Complainant sent the Agency information regarding his entitlement to compensatory damages.  On April 11, 2012, the Agency issued a final decision denying compensatory damages, reasoning that the FRP’s suitability finding would have resulted in the withdrawal of his conditional offer of employment, even if he had been granted a medical clearance for worldwide availability.  Accordingly, the Agency determined complainant was not entitled to any compensatory damages.
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The Agency is ordered to take the following remedial action:

1. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than one hundred and twenty (120) calendar days after the date this decision becomes final.  The back pay period shall be from September 23, 2003 until the date the Agency discovered Complainant had not registered with the SSS, approximately July 16, 2010.  The Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency.  If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due.  The Complainant may petition for enforcement or clarification of the amount in dispute.  The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision.”

2. Within one hundred and twenty (120) calendar days, the Agency shall undertake a supplemental investigation to determine Complainant’s entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency’s notice.  No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages.  The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below.

3. The Agency shall pay Complainant’s reasonable attorney fees in accordance with the paragraph below.

4. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.”  The report shall include supporting documentation of the Agency’s calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.

See why. Read Harvey D. v. Department of State, EEOC Appeal No.0120122385 (Oct. 22, 2015) http://www.eeoc.gov/decisions/0120122385.txt

Under current law, all male U.S. citizens between 18–25 years are required to register with Selective Service within 30 days of their 18th birthday. Non-U.S.-citizen males between the ages of 18 and 25 (inclusive) living in the United States must also register. See the Who Must Register chart here.

 

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