EEOC: Sex Discrimination and Reprisal Found in USAID Case

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

Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment sex and reprisal discrimination.  McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that s/he was subjected to an adverse employment action under circumstances that would support an inference of discrimination.  McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).  Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination.  McDonnell Douglas, 411 U.S. at 804; St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).”

Sex Discrimination & Reprisal Found.

Complainant, a Senior Fellow, filed an EEO complaint alleging that she was discriminated against based on sex (pregnancy), and reprisal, when her supervisor (S1) made disparaging remarks about her pregnancy; subjected her to increased scrutiny and reporting requirements related to her telework; required her to apply leave retroactively to dates and times when S1 knew she worked; terminated her alternate work schedule (AWS); and did not extend her fellowship. The Commission found that Complainant established a prima facie case of sex and reprisal discrimination, and then demonstrated that the Agency’s reasons were pretext for discrimination. Regarding Complainant’s telework reports, the record showed that she submitted extensive narratives, and clearly met the reporting requirements. Additionally, emails between Complainant and S1 showed that he knew she was working more than eight hours a day, but still asked her to take leave, and did not approve all her work hours. S1 stated that he denied Complainant an AWS due to a lack of coverage. However, the record showed that Complainant was meeting her work requirements, and that she was responsive and accountable while using workplace flexibilities. The Commission found that the Agency did not articulate a legitimate, nondiscriminatory reason for not renewing her fellowship because S1’s assertion that Complainant had performance problems was not supported by any documentation. Further, Complainant had shown pretext because management’s responses were inconsistent. Accordingly, the Commission concluded that the preponderance of the evidence supported Complainant’s claim that she was subjected to sex and reprisal discrimination. The Agency was ordered, among other things, to provide Complainant with a fellowship, or similar position, with an opportunity to extend on a yearly basis (similar to other fellows); conduct a supplemental investigation to determine compensatory damages; and provide training to the responsible management officials. Reita M. v. Agency for Int’l Dev., EEOC Appeal No. 0120161608 (July 17, 2018).

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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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No Publicity Zone — 2012 Judicial Actions Involving Foreign Service Grievance Board Rulings

— Domani Spero

We’ve  heard from the FS grapevine about an agreement that there will be no publicity of grievance results.  If that’s true, well, that’s a terribly bad agreement, right?

So if you want to keep up with Foreign Service grievance cases that went to court, you can check FSGB’s annual report to Congress which details judicial actions related to Board cases during the year.   We have listed them below from the 2012 report and have included the links to PDF files for all the court rulings but one.  In he future, most of the cases should be available via the GPO but if not available there, you can also try looking them up using pacer.gov (requires registration and payment for document view/download).

Karl Hampton v. Tom Vilsack | PDF

Karl Hampton is a former Foreign Service Officer with the Department of Agriculture who was terminated for cause after a hearing before the Board in 2007. He subsequently filed a Title VII suit against USDA, claiming discrimination on the basis of race, retaliation for engaging in protected activity, and a hostile work environment. Last year the District Court for D.C. granted USDA’s motion for summary judgment on nine of the ten counts alleged, and later dismissed the tenth count. Karl Hampton v. Tom Vilsack, 760 F. Supp. 2d 38 (D. D.C. 2011). Hampton appealed that decision. In a de novo review, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the District Court’s ruling. Karl Hampton, Appellant v. Tom Vilsack, Secretary, United States Department Of Agriculture, Appellee, 685 F.3d 1096; (U.S. App. D.C. 2012).

Richard Lubow, et al., v. United States Department of State, et al., | PDF

The plaintiffs in Richard Lubow, et al., v. United States Department of State, et al., 2013 U.S. Dist. LEXIS 10780, (D.D.C. 2013) were five Diplomatic Security Agents who had served in Iraq in 2004. They grieved the Department’s application of a cap on their premium pay and its decision not to grant them a waiver of repayment of the amounts that the Department had paid them in excess of that cap. The FSGB concluded that, contrary to the Department’s findings, the grievants were not at fault in incurring the overpayments and thus were eligible for a waiver of their debts. However, the Board also found that it was within the Department’s discretion to decline to grant the waivers, and that the Department had appropriately considered the relevant factors and had not abused its discretion in denying the waivers. The District Court affirmed those findings and granted summary judgment in favor of the Department.

Jeffrey Glassman v. the U.S. Department of State (unable to locate this case. See this article from WaPo: Disabled but determined, U.S. diplomat Jeffrey Glassman sues over forced retirement)

In an order dated September 25, 2012, Judge Rosemary Collyer of the District Court of D.C. dismissed three counts of the plaintiff’s claims in Jeffrey Glassman v. the U.S. Department of State, et. al., Civil Action No. 10-1729, as well as both the Department of State and the Foreign Service Grievance Board as defendants, on procedural grounds. Glassman is a former officer of the Department of State who grieved his involuntary retirement, claiming it was a result of his disability and therefore illegal. The Board denied Glassman’s claim. Glassman appealed that decision to the district court, while also independently claiming a violation of the Rehabilitation Act. While dismissing three counts and two defendants, the court ordered the case to proceed on Glassman’s remaining claim, that the Foreign Service precepts have a disparate impact on him and others with disabilities because of their emphasis on unusually difficult or dangerous assignments, in violation of the Rehabilitation Act. The Secretary of State, as head of the agency, remained as the sole defendant.

Richard Baltimore, III v. Hillary Clinton | PDF

In Richard Baltimore, III v. Hillary Clinton, 2012 U.S. Dist. LEXIS 153253 (D.D.C. 2012), former Ambassador Baltimore appealed a decision by the FSGB sustaining charges by the Department of State involving misuse of an official vehicle and failure to report the gift of a rug, that resulted in a 45-day suspension without pay. Baltimore challenged the Board’s decision as arbitrary and capricious. The D.C. District Court upheld the Board’s reasoning and decision.

Yamin v. United States Department of State | PDF

On November 19, 2012, Jeremy Yamin petitioned the D.C. District Court to review the FSGB’s May 23, 2012 order denying in part his request for attorney fees incurred in a grievance appeal. Yamin is a Department of State officer who had received a one-day suspension in a disciplinary action. In his appeal to the FSGB, the Board upheld the charge, but found the one-day suspension to be excessive and reduced the penalty to an admonishment. Yamin requested attorney fees and expenses in the amount of $71,645.48. The Board approved $12,385.03, denying the rest. Yamin requested a review of this decision.

 

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State Dept’s Employee Discrimination and Reprisal Statistics May Boggle Your Mind, Or Not

— Domani Spero

On May 15, 2002, then-President Bush signed into law the Notification and Federal Employee Anti-Discrimination and Retaliation (No FEAR) Act to increase federal agency accountability for acts of discrimination or reprisal against employees. This act requires that federal agencies post on their public Web sites certain summary statistical data relating to equal employment opportunity complaints filed against the respective agencies.  This data is updated quarterly.  The report ending on September 30, 2013 is posted below. This data is maintained and published by State/OCR and originally posted at state.gov here.

We should note that the Secretary of State has delegated both tasks of advancing diversity within the Department and ensuring equal opportunity to all employees to the Director of the Office of Civil Rights (S/OCR), an office headed by   John M. Robinson since March 3, 2008.

The total final finding of discrimination from 2008 to-date at the State Department has been one case of reprisal in 2011 out of 133 complaints, one case on race in 2012 out of 133 complaints and one case based on sex discrimination out of 152 complaints in the current year. Three cases of discrimination in favor of the complainant (two with a hearing and one without a hearing) in the last six years?  Single digit finding for the plaintiffs is not unheard of, is it?

If you are an employee with a possible EEO case, this FY2013 statistics is not hopeful.

Number of complaints: 152

Top five (complaints by basis):
reprisal (75), race (50), sex (40), disability (40)
age (36), national origin (21)

Top five (complaints by issue):
harassment/non-sexual  (55)
evaluation/appraisal (25)
promotion/non-selection (21)
disciplinary action (20)
assignment of duties (19)

Total Final Agency Action Finding Discrimination: 1

The average number of days in investigation is 276.89 days, the average number of days in final action is 259.14. When hearing was not requested, the average number of days in final action is 319.50 days.  Take a look.

The State Department has 13,787 Foreign Service employees and 10,787 Civil Service employees working domestic and 275 overseas missions as of March 2013. The S/OCR data does not include a breakdown of cases by employee type.

Also we were curious how other agencies handle this No Fear Act statistical requirement.  We found the Department of Treasury quite more elaborate in its reporting than the State Department. For instance, in FY2012, Treasury closed 61 EEO complaints with monetary corrective actions, totaling $792,477 in back pay/front pay, lump sum payments, compensatory damages, or attorney’s fees and costs.  The monetary component in the State Department’s  report is not even discussed.  At one point we were following the litigation between  FSO Virginia Loo Farris and the State Department (See  Farris v. Clinton: Race/Gender Discrimination Case Going to Trial).  On March 12, 2009,  United States District Judge Ricardo M. Urbina granted the defendant’s (Clinton/State Department) renewed motion for summary judgment with respect to Virginia Loo Farris’ retaliation claims but denies it with respect to the her discrimination claims. In October 2010, the case was dismissed after a settlement was reached between Ms. Farris and the State Department. Details of the settlement were not released.

Anyway, check out the FY2012 report from the Treasury Department here, the year-end data for the five previous fiscal years for comparison purposes actually are quite informative and includes real numbers besides zeros and ones.  It also includes the number of judgement for plaintiff (2), number of  employees disciplined for discrimination, retaliation, harassment, or any other infraction under the cited law (33), analysis of the complaints, data on counseling and alternative dispute resolution. The State Department’s No Fear Act report is absolutely bare bones, although it’s not alone in doing so.

If State/OCR has submitted a separate report to Congress detailing more fully its handling of EEO complaints in the State Department, including monetary corrective actions, we would like to see that information available to the public.

 

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Related posts:

Snapshot: State Department’s Permanent Workforce Demographics

Snapshot: State Dept Discrimination and Reprisal Complaints FY2008-FY2013

Snapshot: State Dept Discrimination and Reprisal Complaints FY2008-FY2013

The Notification and Federal Employee Anti-Discrimination and Retaliation (No FEAR) Act requires that federal agencies post on their public web sites certain statistical data summary relating to equal employment opportunity complaints filed against the respective agencies.  The Act will be 10 years old on October 1, 2013.

The State Department posted its statistical information in accordance with the No FEAR Act here. Below is a snapshot of complaints by basis during the last five fiscal years and the first quarter of FY2013. Note that in FY2012, complaints on reprisal rank #1, with race, sex and age tied at #2 and disability at #3. During the first quarter of FY2013, complaints on reprisal is already on the lead.

Screen grab from state.gov

Screen grab from state.gov (click on image to see the complete data)

This, of course, only include cases of complaints actually filed. Complaints taken but filed or lost in a filing cabinet are not included in the count.

Another striking thing with the statistical data is that non-sexual (hostile work environment) harassment by far registered the most number of complaints by issue in fiscal year 2012. Is that surprising to you?  See more here.
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