The Coalition For Change, Inc.
(C4C)
What is the average dollar amount for awards approved by EEOC?
Is there a time requirement for filing disability retirement?
A Medical Doctor who was to properly assess my work injury failed to administer test for my OWCP benefits, he saw me for 5 minutes, did not perform any xray or test and just wrote a report sayng I had zero disability what can I do?
What is the first step I must take to file a complaint?
Information is available at:
I have heard that Federal employees must exhaust administrative remedies before filing a civil action under Title VII of the Civil Rights Act of 1964; Age Discrimination in Employment Act and Rehabilitation Act. What does this mean?
Before filing a case in court, the Federal employee must exhaust administrative remedies. Agencies often move to have employees case dismissed for failing to--exhaust administrative remedies. Notably, a complainant who has filed an individual complaint with an agency is authorized under title VII to file a civil action in an appropriate United States District Court:
My supervisor failed to file my OWCP claim. Can I file a EEO complaint on this matter?
Yes, you can represent yourself -- Pro Se. The term is a latin phrase that means for oneself. It refers to legal representation where a person represents himself or herself without a lawyer in a court proceeding. If filing in Washington DC more than likely you will file your proceeding in the E. Barrett Prettyman Building, United States Courthouse,
333 Constitution Avenue, NW,Washington, DC 20001. It would be advisable to read - The Federal Rules of Civil Procedures. These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. Additionally, you should review local rules of the applicable jurisdiction. For example, if filing in Washington DC Moreover, you should also be aware of the the Federal Rules of Evidence. These rules govern the introduction of evidence in proceedings, both civil and criminal, in Federal courts.
Is the Federal government covered by the ADA? No. The American Disabilities (ADA) does not cover the executive branch of the Federal government. The executive branch is covered by the title V of the Rehabilitation Act of 1973. It is important to cite the proper Act failure to do so may result in your complaint being dismissed.
What resources are available to assist me in addressing unlawful practices in the workplace?
Are YOU Ready to Address
Workplace Discrimination?
Index of Frequently Asked Questions (FAQs)
COMPENSATORY DAMAGES
The Commission has ruled that it cannot award compensatory damages where a complainant did not previously request such damages in his formal complaint or at any time prior to appeal or did not present evidence of such damages. Timothy McLain v. Department of the Army, EEOC Appeal No. 0120053362 (January 19, 2007).
To get an idea of the compensatory damages awarded by EEOC see narrative below.
The decisions below are a selected sampling of awards of compensatory damages.
$20,000 Awarded for Harassment.
Following a hearing, an AJ found that Complainant was subjected to disability based co-worker harassment over a two-year period. In addition, based on the testimony of Complainant, his wife, and his psychiatrist, the AJ found that Complainant’s medical condition had been aggravated by the harassment such that he was entitled to an award of $10,000 in non-pecuniary compensatory damages. The Agency adopted the AJ’s finding of discrimination and fully implemented the relief ordered. Complainant appealed the issue of the damage award to the Commission. On appeal, the Commission concluded that the AJ’s award was insufficient, and found that an award of $20,000 would adequately compensate Complainant for the physical and emotional distress he suffered as a result of the Agency’s discriminatory acts. Complainant testified that he felt distressed, belittled, and suffered loss of enjoyment of life. Complainant’s wife indicated that he became extremely depressed, seemed like he was “somewhere else,” and stopped taking care of his appearance. Complainant’s psychiatrist testified that she treated Complainant and prescribed multiple medications for his depression and anxiety which were exacerbated by the stressful work environment. Shimko v. U.S. Postal Serv., EEOC Appeal No. 0120093033 (January 6, 2012).
$2,500 Awarded for Disability Discrimination.
Following a hearing, an AJ found that the Agency violated the Rehabilitation Act when it included information regarding Complainant’s medical condition in her Proficiency Report which was placed in Complainant’s Official Personnel Folder. The AJ awarded Complainant $1,500 in non-pecuniary compensatory damages. On appeal, the Commission found that the AJ’s award was insufficient, and that Complainant was entitled to $2,500 in compensatory damages. Complainant addressed the effect of the impermissible medical disclosure as it related to her efforts to secure employment with other facilities. Specifically, she indicated that she applied to six different Agency facilities and supplied the Proficiency Report as part of the application process. Complainant also submitted affidavits from her daughter and a friend detailing the emotional distress and financial strain Complainant experienced. Daley v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120091580 (January 27, 2012).
$50,000 Awarded for Non-selection.
In a prior decision, the EEOC found the Agency retaliated against complainant when it failed to select him for a Store Director position. The Agency conducted a supplemental investigation, and awarded complainant $13,000 in non-pecuniary damages. On appeal, the EEOC found that the evidence of record supported an award of $50,000. Following the retaliatory non-selection, complainant experienced hypertension, depression, stress, anxiety, headaches, chest pain, stomach cramps, sleep problems, nightmares, irritability, a lack of interest in social activity, and thoughts of violence. Complainant’s psychiatrist found that he was unable to work, and Complainant ultimately filed for disability retirement. The EEOC noted while many of the symptoms were present before the retaliation, the non-selection exacerbated Complainant’s symptoms as evidenced by his seeking psychiatric help shortly thereafter. The EEOC also found that Complainant was entitled to the amount of $3,962 for medical bills which were substantiated in the record. In addition, the EEOC ordered Agency to compensate Complainant for loss of future earning capacity. Just before the non-selection, Complainant went on leave due, at least in part, to stress related to his work environment. The EEOC noted, however, that there was no evidence that he was too disabled to return to work until after the non-selection. The EEOC stated that Complainant’s earning capacity was clearly diminished in that his disability retirement payments will be less than the salary he would have earned if selected for the Store Manager position. Lovett v. Dep’t of Def., EEOC Appeal No. 0120102682 (December 20, 2011).
Complaint Samples
I. SAMPLE COMPLAINT 1-UNLAWFUL EMPLOYMENT DISCRIMINATION
II. SAMPLE COMPLAINT 2-UNLAWFUL EMPLOYMENT DISCRIMINATION
III. SAMPLE COMPLAINT 3-UNLAWFUL EMPLOYMENT DISCRIMINATION
IV. SAMPLE COMPLAINT 4-REASONABLE ACCOMMODATION
DISABILITY
Yes. OPM must receive your application not more than one year after the date you separated from your position.
Do I have to document that I have applied for social security disability benefits to obtain disability retirement?
If you are applying for disability retirement under the Federal Employees Retirement System (FERS) or the Civil Service Retirement System (CSRS) with offset service you must document that you have applied for social security disability benefits.
DOCTORS
You can report the doctor's failure to OWCP; you should also file a complaint in the state where the doctor is licensed; and you can visit the link below to register a complaint on-line.
See example
EEO COMPLAINT PROCESSING
The first step is to contact an EEO Counselor at the agency within 45 days of the discriminatory action. The individual may choose to participate in either counseling, or in ADR when the agency offers ADR. Ordinarily, counseling must be completed within 30 days and ADR within 90 days. At the end of counseling, or if ADR is unsuccessful, the individual may then file a complaint with the agency.
Do ethnic slurs constitute harassment on the basis of race and/or national origin?
Yes. Ethnic slurs constitute harassment when it creates an offensive work environment, or interferes with an individual's work performance or equal employment opportunities. Harassment on the basis of national origin and race is in violation of Title VII of the Civil Rights Act of 1964, as amended.
I have never filed a complaint before. How long does the process take?
The process, which is lengthy in nature, varies from agency to agency. While early resolution is most desirable, the majority of cases linger for years. In FY2007, the EEOC reported the governmentwide average for the investigation alone took 176 days (approximately 6 months).
See that chart below to obtain an idea of timeframes. This chart does not factor in days for such events as appeals by the agency (Defendant), court filings or motions for extension of time filed by either party,
Is there information that provides an overview of the EEO Federal Sector Process?
Digest of EEOC Law, Volume XX, No. 1
An Overview of the EEO Process In The Federal Sector
From Initiation Through Investigations
Digest of EEOC Law, Volume XX, No. 2 An Overview of EEO Process In The Federal Sector From
Class Complaints Through Enforcement
Protection From Discrimination
General Guidance
How to File a Federal EEO Complaint
Filing A Complaint
EXHAUSTING ADMINISTRATIVE REMEDIES
Unfortunately the agency internal process is often lengthy and ineffective. Nevertheless, Federal employees must give the agency an opportunity to resolve claims against it despite the protracted process. Filing in court prematurely may jeopardize your case and cause it to be DISMISSED. See 42 U.S.C.2000e-16(c). Employees who allege discrimination must consult with an agency Equal Employment Opportunity counselor before filing a written complaint with the agency accused of discriminatory practices. See 29 C.F.R. 1614.105(a); 29 C.F.R. 1614.106(a)-(c). A complainant must initiate contact with [an EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory 29 C.F.R. 1614.105(a)(l). The agency must then investigate the matter within 180 days, after which the complainant may demand an immediate final decision from the agency or a hearing before an administrative judge. See 29 C.F.R. 1614.106(e)(2); 29 C.F.R. 1614.108(f)-(g). If an employee subsequently
amends
the complaint, the agency has the earlier of 180 days from the last amendment or 360 days from the filing of the original complaint in which to complete its investigation. See 29 C.F.R. 1614.106(e)(2).
The agency is taking forever to process my EEO complaint, when can I file the action in court?
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LAWYER
The following websites provide links to attorneys that may be available to assist you:
Super Lawyers Website
Attorneys
Find Lawyers
Legal Services
Martindale.Com
Lawyer Locator
In addition the link that follows shares ratings of lawyers.
Ratings
Merit Systems Protection Board
Click To Read ----MSPB JUDGES HANDBOOK
WHAT IS THE DIFFERENCE BETWEEN EEOC AND MSPB?
See VIDEO EXPLAINING MSPB
OWCP
Yes. EEOC has ruled that where an employees alleges discrimination in the agency's failure to submit an injury compensation claim to the Office of Workers' Compensation Programs (OWCP) the employee has stated an EEO claim. With regard to such matters the complaint must address the processing, rather than the merits, of the OWCP claim. Brown v. United States Postal Service, EEOC Request No. 05980128 (July 22, 1999).
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Pro Se
FEDERAL RULES OF CIVIL PROCEDURE
The Federal Rules of Civil Procedure (FRCP) are rules governing civil procedure in United States district (federal) courts, that is, court procedures for civil suits. The FRCP are promulgated by the United States Supreme Court.
FRCP
Q2. I have often heard that the courts give the jury instructions regarding management‛s right to make business decisions. What type of instructions are given?
As a Plaintiff you should be aware that the courts have often given the jury the following instructions when rendering a verdict regarding discrimination/retaliation:
In reaching your verdict on the Plaintiff‛s race, etc.discrimination claim, you should
keep in mind that the law requires only that an employer not discriminate against an employee based on race, etc.
“The law does not require an employer to use good judgment, to make correct decisions, or even to treat its employees fairly. ” Therefore in deciding the Plaintiff‛s discrimination claim, it is not your function to second-guess the Defendant‛s decisions, such as [describe challenged decision], unless you find that the decisions were motivated by illegal discrimination and/or retaliation or other illegal act.
IV. SAMPLE JURY INSTRUCTIONS-DISCRIMINATION
II. SAMPLE JURY INSTRUCTIONS-DISCRIMINATION
REHABILITATION ACT
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REASONABLE ACCOMMODATIONS
Reasonable accommodation is a change in the work environment or in the application process that would enable a person with a disability to enjoy equal employment opportunities. There are three general categories of reasonable accommodations: (1) changes to a job application process to permit people with disabilities to be considered for jobs; (2) changes to enable people with disabilities to perform the essential functions of a job; and (3) changes to give people with disabilities equal access to the benefits.
Can a reasonable accommodation request be supported by Licensed Clinical Social Worker (LCSW)?
A LCSW can be an appropriate health care professional to provide documentation, depending on the case. Morgan v. Navy, EEOC Appeal No. 01972175 (February 3, 2000).
RESOURCES
SETTLEMENT BREACHES
As a plaintiff in a EEO complaint, is it beneficial to have a breach clause in a settlement agreement?
Yes. It is important to understand that a breach refers to a refusal or failure to fulfill an obligation imposed by an agreement also referred to as a stipulation of settlement. Whether the agreement happens at the administrative level (prior to filing in court) or at the court level,it is expected that agencies will honor agreements with plaintiffs (i.e, employees). Notwithstanding the expectation, agencies have been known to breach settlement agreements. In such cases, you should outline what your recourse can be and where the dispute is to be handled, such as District Court, arbitration, EEOC, MSPB, in case a breach occurs. See narrative about an agency breach.
Breach
TERMINATIONS
When can a probationary appointment be terminated and does the employee in this category have a right of appeal with the Merit Systems Protection Board?
The probationary appointment of any person may be terminated at any time during the probationary period without the right of appeal. However, if the employee believes he or she was fired due to discrimination an EEO complaint may be filed.
DISCLAIMER: Information on this website is NOT to be considered legal advice.
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