The following webpage discloses EEOC and court cases of interest to Federal workers who have faced discrimination, retaliation and / or other management abuses involving prohibited personnel practices.

I.   CASE TOPICS OF THE WEEK ADVERSE INFERENCE AGE DISCRIMINATION CLASS ACTION AGAINST EEOC COMPENSATORY DAMAGES EEO CONTACT HARASSMENT JURISDICTION MIXED MOTIVE CASE MONETARY DAMAGE AWARDS MSPB VICE CHAIR ANNE WAGNER Named AS RMO NON-SELECTION PERFORMANCE PROTECTED DISCLOSURES Pro Se REASONABLE ACCOMMODATIONS RETALIATION RETIREMENT DISABILITY RETIREMENT INVOLUNTARY FOR QUICK SEARCH OF WEBSITE See SEARCH ENGINE at bottom page.

II.   SOURCES OF CASE DECISIONS

Federal Labor Relations Board Department of Labor MSPB EEOC Court Cases In The News U.S. Courts

LEGISLATION IN CONGRESS   
MSPB JUDGES HANDBOOK

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ADVERSE INFERENCE

Consentine v. Department of Homeland Security
EEOC Appeal No. 07A40114 (August 9, 2006)

In this nonselection case, the Commission agreed that the AJ properly drew an adverse inference against the agency. The AJ found that the record lacked the selecting official’s notes, including a matrix prepared by the selecting official based on applicant qualifications and quality ranking factors, as well as the interview notes. The Commission noted that agencies have a duty to maintain pertinent evidence after receiving notice that a complainant has initiated the EEO process. Although the Commission found that agency officials inadvertently destroyed documents, and found no direct evidence that agency officials acted in bad faith, the Commission stated that its regulations do not require a finding of willfulness or bad faith.

AGE DISCRIMINATION

Ford v. Mabus
Case 09-5041 (December 10, 2010)

In an action by a federal government employee, alleging discrimination on the basis of age in violation of the Age Discrimination in Employment Act (ADEA), judgment for defendant is reversed where, because of what the court had called ADEA section 633a's "sweeping" language --"all [federal government] personnel actions . . . shall be made free from any discrimination based on age"-- plaintiffs may establish liability, though not necessarily entitlement to such remedies as reinstatement and backpay, by showing that consideration of age was a factor in the challenged personnel action.

CLASS ACTION AGAINST EEOC

Wright vs EEOC

Civil Case 1:03cv00837CKK (July 2003)
Sam Wright, Jr. now deceased, filed a class action against the EEOC challenging the agencies use of Administrative Judges, in lieu of Administrative Law Judges. In his filings he cites the Administrative Procedures Act of 1946 calling for ALJs to preside over employee hearings. In his court pleadings, Plaintiff Wright also challenges EEOCs sovereign immunity.

COMPENSATORY DAMAGES

Milton Aponte v. Department of Homeland Security
EEOC Appeal No. 0120063532 (June 11, 2008)

The EEOC awarded complainant $120,000.00 in non-pecuniary compensatory damages after finding age and sex discrimination. The Commission found that the two discriminatory nonselections caused complainant to endure at least eight years of depression, anxiety, anger, shame, humiliation, marital strain, spiritual turmoil, sleep disturbances, and headaches. The Commission considered complainants failure to respond to the agency’s requests for medical documentation to support his claim in making the award, noting that complainant provided no evidence to support his claim of a possible breach of confidentiality if he did so. The Commission disclosed that complainant failed to provide supporting documentation for psychologists diagnosis of Post Traumatic Stress and Adjustment Disorder. Nevertheless, testimony of complainant, his wife and co-workers showed that he experienced substantial emotional distress as a result of DHS managers discriminatory actions.


Nathaniel McDaniel v. United States Postal Service
EEOC Appeal No. 0120065054 (February 21, 2008)

The EEOC awarded complainant $5,000.00 for a racially-motivated suspension. The Commission decided that complainant was entitled to an award of $5,000.00 in non-pecuniary compensatory damages. The complainant submitted reports from several mental-health professionals indicating that he had depression, anxiety, and adjustment disorder. According to the EEOC, the reports were inconclusive as to whether these conditions were caused by discrimination. Nevertheless, the Commission found that the award was consistent with awards in similar cases for physical and emotional pain and suffering.


Chastain v. Navy

The EEOC administrative judge found that the complainant established that the agency subjected him to unlawful retaliation for participating in the agency’s internal investigation into a co-worker’s sexual harassment allegations by forcing him to resign. In addition to ordering the agency to reinstate the complainant to employment with back pay, the administrative judge awarded $15,000 in non-pecuniary compensatory damages. On appeal, the complainant contended that he was entitled to a non-pecuniary damage award of $180,000 for his pain and suffering as a result of the agency’s unlawful discrimination.


Stuart v. Department of Veterans Affairs, 110 LRP 63588 (EEOC OFO 10/19/10)

Statistical evidence reveals discrimination, nets $3,000 award.   The Department of Veterans Affairs subjected the complainant to discrimination when he was not selected for a position. The EEOC found that she was entitled to $3,000 in nonpecuniary damages and back pay.  Implication: In a nonselection case, the complainant can establish pretext by showing a statistical disparity between the ratings provided by rating officials.   Summary: The complainant alleged that the Department of Veterans Affairs subjected her to discrimination on the bases of race (white) and age (54) when she was not selected for a position. The administrative judge made a finding of discrimination based on a statistical disparity between the ratings provided by the two rating officials. For most of the applicants, the rating officials did not differ greatly in the scores they gave to each applicant. The complainant was the only applicant who received greatly divergent scores from the rating officials. Furthermore, the rating official who gave the complainant the lowest score could not explain why he had done so. The EEOC agreed with the AJ's findings that the complainant established pretext and was subjected to discrimination. It awarded the complainant $3,000 in nonpecuniary damages.


Coffee v. U.S. Department of Defense

EEOC Appeal No. 0720090012 (March 13, 2009)

The Equal Employment Opportunity Commission reversed the agency‛s final order and upheld an administrative judge’s award of $75,000 in nonpecuniary damages for emotional distress suffered because of race-based harassment by a co-worker. EEOC found that the agency engaged in race discrimination against the complainantby failing to respond to her allegations of co-worker harassment during a three-month temporary duty assignment and upon her return to her permanent duty station. Among other things, the administrativejudge awarded the complainant $75,000 in emotional distress damages. In its final order and on appeal, the agency only contested the amount of the award as excessive.   The EEOC explained that for an award of nonpecuniary damages, a complainant must submit evidence demonstrating that the agency‛s discriminatory conduct was the proximate cause of her emotional distress. The Commission found substantial evidence to support the administrative judge’s finding that the complainant had established a nexus between the harm suffered and the discriminatory actions proven based upon statements by the complainant, complainant’s daughter, friends, and hair dressers. Moreover, the EEOC held that the complainant’s evidence supported an award of $75,000 in emotional distress damages despite the existence of very little medical documentation to establish that complainant suffered significant emotional harm. The EEOC also wrote that the amount of any emotional distress damages must be tailored to address the actual harm suffered. The Commission found the agency’s conduct to be egregious because it took no corrective action once notified of the complainant’s allegations of a hostile work environment, as required by EEOC regulations. The Commission found the amount of $75,000 to be appropriate given the agency’s inaction, the complainant’s separation from her family while on temporary assignment, and the complainant having lived in a hotel room next to the harassing co-worker. The decision re-emphasizes that justification for substantial awards of emotional distress damages is not limited to an abundance of medical documentation.  Rather, sometimes the most important evidence can simply be the statements of others, particularly the complainant.

EEO CONTACT

Kraus v Presidio Trust Facilities
CV-06-04667-CRB (July 16, 2009)

Court finds in favor of employee and remands case back to lower court citing what may constitute proper contact with EEO office when asserting a discrimination claim.     Per the court, such contact is “pragmatically interpreted to include contact with agency officials with EEO counseling responsiblities or a connection with the EEO process without attributing dispositive responsiblities to one’s job title.”   Case Remanded   Private sector case, however, court references Federal Sector EEO Processing. See paragraph 6 under Discussion.

Butler v. United States Postal Service, EEOC Appeal No. 0120100055 (March 3, 2010)

EEOC Excuses Untimely Filing. The Commission held that the time limit for filing a formal EEO complaint can be extended if the employee produces sufficient evidence to establish that he was unable to meet the time limit because of mental or physical incapacitation. See The employee was a postal police manager who alleged that he was discriminated against on the bases of his sex, race, disability and age when he was issued a negative evaluation. The employee initiated EEO contact on June 16, 2009, and on July 16, 2009, he received notice of his right to file a formal complaint. On August 7, 2009, the employee filed his formal complaint.  An employee is required to file a formal complaint within 15 days of receiving notice of the right to file a formal complaint. See 29 C.F.R. § 1614.107(a)(2). Therefore, the agency dismissed the employee's formal complaint as untimely after determining it was filed three days over the 15-day time limit.   On appeal, the EEOC reversed the agency's decision and reinstated the employee's formal complaint for an EEO investigation. The Commission has consistently held in cases involving physical or mental health difficulties that an extension is warranted where the individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. However, the medical evidence must establish incapacity, not merely that the employee suffered from a medical condition.

Smith v. United States Postal Service, EEOC Appeal No. 01A55920 (February 6, 2006)

The EEOC had held that an employee's complaint was untimely when the employee missed the 15-day deadline to file her formal complaint because the statements from her physicians indicated she suffered from depression, but the documentation did not establish she was incapacitated such that she was unable to file her complaint for the almost six months she delayed. Yet, in this case the Commission concluded that an extension of time was warranted because the employee's psychologist indicated that the employee was receiving treatment for major depression at the time he was required to file his complaint, and he was incapable of acting in a timely manner because of his lack of energy, focus and concentration.  Consequently, the Commission found that the employee was incapacitated by major depression, and thus, excused the untimeliness of his formal complaining.

Artis v. Federal Reserve Board
111 LRP 2303 (D.C. Cir. 01/11/11)

D.C. Circuit weighs in on EEO counseling requirements in class actions The U.S. Court of Appeals, D.C. Circuit overturned the dismissal of a class action discrimination complaint, finding that the employees had provided enough information to the agency to allow it to investigate the complaints and try to resolve their claims. The District Court originally held that the employees had failed to satisfy EEO counseling requirements -- part of the complaint process -- because they did not provide "meaningful information about specific instances of discrimination."

HARASSMENT

Keys v. Department of Justice, Federal Bureau of Prisons, 110 LRP 44214
(EEOC OFO 07/20/10)

[Racial Slur] A Federal Bureau of Prisons employee alleged that she was subjected to discrimination on the bases of race (African-American) and color (brown) when a coworker used a highly offensive racial slur and agency management failed to properly investigate the incident. The EEOC determined that the agency improperly treated the events as two separate claims, when it should have treated the complaint as a single claim of harassment. The EEOC found that taking the events together as a whole and considering a historically offensive racial slur was used, the employee stated a claim of harassment. The agency dismissed the claim regarding the investigation on the grounds of untimely EEO counselor contact. Because the EEOC found the events to collectively constitute one unlawful employment practice, and the employee contacted an EEO counselor within 45 days of the coworker's use of the racial slur, it decided that the claim of harassment was timely raised.

Fuller v. Fiber Glass Sys., L.P. United States Eighth Circuit, 08/25/2010
Private sector case involving harassment of an African-American employee which includes discussion on how many times one has to be subjected to abuse to meet the legal definition of a hostile workplace.   In an action under 42 U.S.C. section 1981 and Title VII of the Civil Rights Act of 1964 claiming discrimination (non-selection), harassment (supervisor and co-worker), and retaliation, judgment for plaintiff is affirmed where: 1) a reasonable juror could find that plaintiff did not unreasonably fail to take advantage of preventative/corrective opportunities offered by defendant, and thus defendant was not entitled to judgment as a matter of law on the Ellerth-Faragher affirmative defense; 2) the testimony regarding plaintiff's emotional distress was sufficient to allow a reasonable juror to award plaintiff $65,000 in compensatory damages; and 3) any issue with the magistrate judge presiding over the punitive damages portion of the trial was moot.

JURISDICTION

Johnson v. Dep't of Veterans Affairs, No. 09-3292

In a former government employee's request for arbitration regarding her discharge from the Department of Veterans Affairs, the arbitrator's dismissal of the grievance for lack of jurisdiction in finding petitioner's grievance appeal untimely is vacated and remanded as, under the terms of the CBA, petitioner could have, and did, file a letter which simultaneously served as a formal grievance and requested ADR, and it was legal error for the arbitrator to find otherwise.

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MSPB VICE CHAIR ANNE WAGNER NAMED AS RMO

Williams v. Dodaro   Civil Action No. 07-1452 (JDB) Filed 09/17/08

Anne Wagner, who was appointed Merit Systems Protection Board (MSPB) Vice-Chairman by President Obama in 2009, named in a workplace discrimination lawsuit. Plaintiff, an African-American female, brought suit alleging age, race, and sex discrimination, retaliation, and a hostile and abusive work environment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff defeats agency motion for summary Judgement.   Case settled in early 2012. C4C Request Investigation of Anne Wagner, Vice-Chair MSPB

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MIXED MOTIVE CASE

Bell v. Department of the Navy   EEOC Appeal No. 0720080024 (June 25, 2008)

EEOC found race discrimination in a mixed motive case.   Complainant filed a formal EEO complaint alleging that he was subjected to race (African-American) discrimination when he was not selected for a Traffic Manager position. After a EEOC hearing, an AJ found that discrimination was one of several motivating factors in the nonselection. In this case the selecting panel members improperly discussed and considered the race of complainant and the selectee. Notwithstanding this fact, the AJ decided that the panels recommendation of the selectee as the best qualified candidate was justified and would have been made absent the discrimination. The case was appealed and the commission affirmed the AJ’s findings. While there was no need for the selection panel to discuss the complainants race, the record supported the finding that the selectee was better qualified. In light of the impermissible discussion, the agency was ordered to pay attorney fees.

NON-SELECTION

Lombardino v. USDA, Appeal No. 07200070007, (November 27, 2009)

The EEOC Office of Federal Operations (OFO), upheld an administrative judge's (AJ's) finding that the Department of Agriculture Farm Services Agency (FSA) discriminated against complainant when it did not select her for the position of civil rights director, small business utilization staff, a temporary, one-year position.The OFO also affirmed the AJ's compensatory damage award of $12,000 and the AJ's attorney's fee award of $133,247.95.   The OFO also affirmed the AJ's equitable remedies, including priority placement for the period of one year in the next vacant director of civil rights position at the GS-15 level within USDA as a whole that would be substantially equivalent to the position for which Lombardino had been turned down; a recommendation that the agency consider discipline for the selecting official; an order that the selecting official be required to undergo four hours of EEO training; and a requirement that the USDA/FSA post a notice of the finding of discrimination at Lombardino's work location.   The AJ had also found discrimination in a second non-selection challenged by Lombardino, but under a "mixed motive" analysis, held that despite strong evidence of retaliatory animus against her, the agency would have made the same selection decision even absent the animus and therefore limited the agency's liability.

Hendricks v. U.S. Department of Treasury Appeal No. 0753292 (June 19, 2009)

Appellant, a former employee of the Treasury Inspector General for Tax Administration (TIGTA), brought this action alleging sex and race discrimination in her non-selection for two promotions in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. 2000e, et seq. The district court granted summary judgment in favor of the employer. Hendricks appealed. Finding no error in the district court’s conclusions that there was no substantial issue of material fact and defendant was entitled to summary judgment - the court of appeals affirmed. In the case, Brian Dwyer, Special Agent, was named as a discriminating official. Appellant’s complaint sets forth two claims for relief based on two separate failures to promote: first, to the position of nonsupervisory criminal investigator in January 2000; second, to the position of supervisory criminal investigator in the technical and forensic support division in March 2003. In this case, the court asserts that - “Imperfect Office With Flawed Characters Does Not Constitute Discrimination.”

PERFORMANCE

FLOYD J. ADAMSEN v DEPARTMENT OF AGRICULTURE
Petition for review of the Merit Systems Protection Board decision DE-0432-07-0345-I- DECIDED: April 23, 2009

A former federal employee challenged the Merit Systems Protection Board (Board)’s affirmance of his removal by the Department of Agriculture on the grounds that the Board erroneously determined that (1) the Office of Personnel Management (OPM) had approved the Department’s performance appraisal system under which it had removed him; (2) the Department gave him an opportunity to demonstrate that his work was acceptable; and (3) his job requirements were feasible. The court concluded that the record was inadequate to determine whether OPM had approved the performance appraisal system under which the removal was effected. Therefore the court vacated the Board’s decision insofar as it held that OPM approval had been shown, and remanded the case to the Board to further develop the record. Case Remanded

PROTECTED DISCLOSURES

Miller v Department of Homeland Security

The appellant, employed as a Transportation Security Specialist with the Transportation Security Administration (TSA), was tasked with covert testing of security systems at U.S. airports and with overseeing a team in conducting tests at bags and passenger checkpoints. The appellant alleged that TSA violated the Whistleblower Protection Act when it proposed to suspend him for 14 days and removed some of his team leader duties. He asserted that TSA’s actions were in reprisal for protected disclosures ( i.e., his criticism of proposed changes in standard operating procedures (SOPs) for checked baggage screening.) The Board‛s administrative judge (AJ) decided that the appellant had made nonfrivolous allegations that (1) he made protected disclosures; and (2) the disclosures were a contributing factor in the personnel actions at issue. Nonetheless, after a hearing, the AJ issued a finding that the appellant did not prove by -- preponderant evidence that he made protected disclosures, because he did not show he had a reasonable belief that implementation of the SOPs would pose a substantial and specific danger to public health or safety.  The employee filed a petition for review asserting that the AJ erred in finding he did not make protected disclosures, since he had a good faith, reasonable belief that the SOP changes would result in substantial and specific danger to public safety. In turn, the Board granted the appellant’s (employee) petition and vacated the initial decision denying corrective action; and remanded the appeal to the Washington Regional Office for further adjudication. (May 4, 2009)  Case Remanded

Pro Se

Smith v Department of Veterans Affairs

This case may aid federal employees who appeal agency decisions on discrimination complaints without an attorney to avoid dismissal of their appeals to federal court for lack of jurisdiction. The United States Court of Appeals for the Fifth Circuit issued a decision confirming that employees who file complaints Pro Se (without attorneys) should be given the benefit of the doubt in their pleadings, to avoid improper dismissal of their claims. See Smith v. Department of Veterans Affairs, 2009 WL 2407192 (C.A.5 (La.)) (August 6, 2009).   Jerome Smith brought a discrimination suit against the Department of Veterans Affairs. Smith was awarded $80,000 in damages after proceeding with his case through the administrative process before the EEOC. The agency paid Smith the full amount by check, which he cashed. Smith subsequently appealed the decision to federal district court.  Also, see initial case at EEOC.

REASONABLE ACCOMMODATIONS

Kimble v Potter

Employee Kimble suffers from dizzy spells that make it hazardous for her to drive long distances. In this lawsuit under the Rehabilitation Act, she claims that her former employer, the United States Postal Service, failed to accommodate her condition and then terminated her because of it. The district court granted summary judgment for the Postal Service, reasoning that Kimble had failed to demonstrate that she is disabled for purposes of the Act. The court affirmed the judgment of the lower court. Oral and written comments available. REASONABLE ACCOMMODATION CASE WITH ORAL COMMENTS





Shmidt vs Solis

In this case Plaintiff prevailed on her claims for failure to accommodate and for retaliation REASONABLE ACCOMMODATION CASE

RETALIATION

Mogenhan v. Napolitano (Secretary, Dept. of Homeland Security)

D.C. Circuit Clarifies Threshold for Retaliation in EEO Claims --A recent decision by the U.S. Court of Appeals for the D.C. Circuit has clarified and lowered the threshold of what defines "retaliation" in claims of discrimination. The Court of Appeals held that an agency's actions can be considered retaliatory if the actions would discourage a reasonable person from making or supporting a discrimination claim. The case clarifies the level of behavior acceptable by an employer after a federal employee makes an initial discrimination claim. An employer does not have to take action against the employee – demotion, poor review, further discriminatory acts, etc. – for the conduct to be considered retaliatory. RETALIATION

Weng v. Solis

Plaintiff’s Removal from Flexiplace. On December 19, 2006, Defendant removed Plaintiff from the Flexiplace program. Defendant claims that it removed Plaintiff from the program after she received a “minimally satisfactory” performance evaluation for fiscal year 2006. However,Plaintiff claims that the “minimally satisfactory” rating on her 2006 performance evaluation was unjustified and motivated by discriminatory animus. Court finds that a reasonable jury could find defendants (agency) reasons pretextual. RETALIATION

RETIREMENT DISABILITY

Woods v. U.S. Postal Service, 110 LRP 64767 (EEOC OFO 10/20/10)

Summary: A postmaster for the U.S. Postal Service alleged that the agency subjected her to discrimination on the bases of sex, age, disability (plantar fasciitis and heel spurs), and reprisal for prior protected EEO activity when she was offered a modified job. The postmaster contended that the agency wrongfully failed to consider accommodating her in her postmaster position. She suffered a work-related injury and did not return to her position. The postmaster did not ask to be returned to her position and she applied for disability retirement. The agency offered her a modified processing mail clerk position, which she rejected. The EEOC found that the agency did not subject the postmaster to discrimination. The EEOC noted that the postmaster's efforts to secure retirement benefits indicated that she did not plan to return to her position. The EEOC found that the postmaster's communications with the Office of Workers' Compensation Program, which prompted the OWCP and the Department of Labor to direct the agency to offer her a modified job, did not serve as a request from the postmaster to the agency for a reasonable accommodation. The EEOC noted that the administrative judge found the agency subjected the postmaster to disability discrimination when it failed to keep her medical records confidential. Neither party challenged this finding or the AJ's award of attorney's fees and costs with respect to the claim.

Linda Solomon v. Dept. of Agriculture, No. 1:07-cv-01590, (D.C.Cir. 12/21/10)

The D.C. Circuit U.S. Court of Appeals recently issued a very important decision with significant implications for federal employees with disabilities, particularly those who intend to apply for disability retirement or currently receive disability retirement, but also might have actionable disability-discrimination claims. In Linda Solomon v. Dept. of Agriculture, No. 1:07-cv-01590, (D.C. Cir. 12/21/10), the court held that claims for disability retirement benefits, and claims of disability discrimination under the Rehabilitation Act, are not inherently in conflict so as to bar recipients of benefits from bringing the discrimination claims.

RETIREMENT INVOLUNTARY

The appellant petitioned for review of an initial decision that dismissed his alleged involuntary retirement appeal for lack of jurisdiction.  The appellant alleged that his January 2009 retirement was involuntary due to misinformation as to whether he had paid the correct/full amount of his required deposit for post-1956 military service. The deposit was made during the appellant’s previous employment with the Immigration & Naturalization Service (INS).  A Human Resource Specialist with the Army stated that, when she spoke to the appellant in November 2008, he indicated that he had submitted a copy of the form showing the deposit in the late 1990s, and that she advised him that his prior submission of the form was sufficient to complete his application for retirement, but that she did not discuss with him whether the amount of the deposit was correct.   Following the appellant’s retirement, OPM notified the appellant that his military deposit had been erroneously calculated using the 3% amount applicable under the Federal Employees’ Retirement System rather than the correct 7% amount applicable under the Civil Service Retirement System, and that the appellant must pay the remaining balance in full. The appellant asserted that he would not have retired had he known that the INS had incorrectly calculated his post-1956 military deposit and the consequences of that error.   In rejecting the appellant’s claim of an involuntary retirement, the administrative judge concluded that: (1) It was undisputed that the Army did not provide the appellant with misinformation because both the appellant and the Army assumed that his post-1956 deposit was correct; and (2) the Army officials were not negligent in failing to spot and correct the INS’s error.

SEXUAL HARASSMENT

Gray v Department of the Interior

In Gray v. Kempthorne, EEOC Appeal No. 0120053424 (May 5, 2006), the EEOC found that complainant did prove that Gray (African-American) was subjected to sexual harassment. The Commission determined that the testimony by co-workers corroborated complainant's claims.  Complainant was awarded both pecuniary and non-pecuniary damages. EEOC awarded $100,000 for emotional and physical pain and suffering as well as $49,459.75 in pecuniary damages.









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