EEOC Damages Increased in Two @StateDept Cases

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

Commission Increased Award of Compensatory Damages to $50,000. The Commission previously determined that Complainant was discriminated against when the Agency failed to grant him a medical clearance based on its “worldwide availability” requirement. Following a supplemental investigation, the Agency awarded Complainant $5,000 in non-pecuniary compensatory damages noting that Complainant did not provide any medical evidence to support his claim. The Commission increased the award to $50,000 on appeal. Complainant stated that he became despondent, depressed, and reclusive because of the Agency’s discriminatory actions. Complainant experienced sleeplessness, crying spells, weight loss, anger, and humiliation. Complainant’s husband and friends submitted statements supporting his claim. The Commission determined that an award of $50,000 in nonpecuniary compensatory damages was more appropriate given the nature, severity and duration of the distress Complainant experienced as a direct result of the discrimination. Harvey D. v. Dep’t of State, EEOC Appeal No. 0120171079 (Aug. 23, 2018).

Commission Increased Award of Non-Pecuniary Damages to $50,000. The Commission previously found that Complainant was subjected to sexual harassment by her supervisor and ordered the Agency, among other things, to investigate Complainant’s claim for damages. The Agency awarded Complainant $20,000 in non-pecuniary damages, and the Commission increased the award to $50,000 on appeal. The Commission noted that, more likely than not, the sexual harassment was not the only factor that caused Complainant’s depression and anxiety. Complainant’s brother was executed in the Middle East, and Complainant also noted that her co-workers questioned her reputation because of the way she dressed. Nevertheless, the Commission found that the sexual harassment was a significant reason for the ridicule Complainant experienced, as well as her depression, poor self-esteem, irritability, anger, difficulty sleeping, exhaustion, weight gain, and thoughts of suicide. The Commission noted that, seven months after the harassment ceased Complainant was able to form a romantic relationship, and she continued working at the Agency. Considering all of these factors, the Commission concluded that Complainant was entitled to an award of $50,000 in non-pecuniary damages. The Commission concurred with the Agency that Complainant failed to prove her claim for pecuniary damages. Blanca B. v. Dep’t of State, EEOC Appeal No. 0120171031 (Aug. 16, 2018).

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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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EEOC Affirms Class Action Certification For Disabled Applicants to the U.S. Foreign Service

— Domani Spero
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In October 2010, we blogged that the Equal Employment Opportunity Commission (EEOC) has certified a class action brought on behalf of all disabled Foreign Service applicants against the U.S. State Department.  (see  EEOC certifies class action against State Dept on behalf of disabled Foreign Service applicants).

Related items:

Meyer, et al. v. Clinton (Department of State), EEOC Case No. 570-2008-00018X (September 30, 2010) (certifying class action based upon disability discrimination in State Department’s Foreign Service Officer hiring)

This past June, the EEOC affirmed the class certification for applicants to the Foreign Service denied or delayed in hiring because of their disabilities, based upon the “worldwide availability” policy.  (see Meyer v. Kerry (Dept. of State), EEOC Appeal No. 0720110007 (June 6, 2014)).

The State Department Disability Class Action now has its own website here.  Bryan Schwartz in San Francisco and Passman & Kaplan in Washington represented the class. The State Department’s Office of Legal Advisor and Office of Civil Rights represented the department.

Below is an excerpt from the class action website:

The EEOC decision found that the Class Agent in the matter, Doering Meyer, has had multiple sclerosis (MS) in remission for decades, without need for treatment, but was initially rejected outright for State Department employment anywhere in the world because the Department’s Office of Medical Services perceived that her MS might cause her problems in “a tropical environment.” This was notwithstanding a Board Certified Neurologist’s report approving her to work overseas without limitation.
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The Department challenged the judge’s initial certification decision because, among other reasons, Meyer eventually received a rare “waiver” of the worldwide availability requirement, with her attorney’s assistance, and obtained a Foreign Service post. She is now a tenured Foreign Service Officer, most recently in Croatia, and being posted to Lithuania. Meyer’s attorney argued to the EEOC that she was still delayed in her career growth by the initial denial in 2006, and missed several posting opportunities over the course of an extended period, losing substantial income and seniority. The EEOC agreed with Meyer – modifying the class definition slightly to include not only those denied Foreign Service Posts, but those “whose employment was delayed pending application for and receipt of a waiver, because the State Department deemed them not ‘worldwide available’ due to their disability.”

Schwartz indicated that the case may ultimately have major implications not only for Foreign Service applicants, and not only in the State Department, but for all employees of the federal government abroad who have disabilities, records of disabilities, and perceived disabilities, and who must receive medical clearance through the Department’s Office of Medical Services. He noted that he has already filed other alleged class cases, also pending at the EEOC – one on behalf of applicants for limited term appointments (who need “post-specific” clearance, but are also denied individualized consideration), and another on behalf of employees associated with people with disabilities, who are denied the opportunity to be hired because of their family members who might need reasonable accommodations (or be perceived as disabled).

The Commission had also received an “Amicus Letter” from a consortium of more than 100 disability-related organizations urging the Commission to certify the class.

Read the full ruling at (pdf) Meyer v. Kerry (Dept. of State), EEOC Appeal No. 0720110007 from June 6, 2014 where the State Department contends that since this complaint was filed, the Office of Medical Services has changed many of its procedures in assessing “worldwide availability.”It also suggested that “many of those individuals who were found not worldwide available in 2006 maybe currently worldwide available under new definitions and procedures.”

The Commission, however, says that it “is not finding that changes made to the Medical Clearance process subsequent to the filing of the instant complaint have remedied any alleged discriminatory policy.”  

The order states (pdf): “It is the decision of the Commission to certify the class comprised of “all qualified applicants to the Foreign Service beginning on October 7, 2006, who were denied employment, or whose employment was delayed pending application for and receipt of a waiver, because the State Department deemed them not “world-wide available” due to their disability.”

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