As part of the relief granted, the Commission ordered the agency to offer complainant the position at issue or a substantially similar position with back pay, as well as back pay regarding her Title VII claims and an additional equal amount in liquidated damages for her EPA claim. Litigation Considerations United States Court System Theories of Relief Burdens of Proof Defining Issues and Bases. Shaw v. Department of the Treasury, EEOC Appeal No. at 325. protected EEO activity. A complaint may result when an employee believes he or she has been unfairly treated because of a prohibited criteria or a protected class under EEO laws (i.e. Lambert v. Department of the Navy, EEOC Appeal No. Complainant had averred that, under the collective bargaining agreement, he was not required to provide medical documentation on a continuing basis when it was known that he suffered from a chronic condition. Reasonable suspicion of discrimination was imputed to the complainant when he was issued a Notice of Removal and he entered into a last chance agreement. The Commission further declared it well settled in both Commission precedent, as well as the implementation of the amendments to Part 1614 in 1999, that it could not discipline or order the discipline of employees directly. Section 1201.154(b). It was also noted that his condition improved considerably during those periods when the agency accommodated complainant by assigning him to the day shift for several months at a time. Federal government websites often end in .gov or .mil. As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. Complainant, an Immigration Examiner, filed an EEO complaint on the basis of physical disability (e.g., weakness in left thumb). Complainant raised a claim of discrimination in a negotiated grievance proceeding. Therefore, the Commission found that the agency had discriminated against complainant based on race and age and ordered the agency, inter alia, to upgrade her position to the GS-8 level, retroactively. The Commission found that the agency was not required to provide complainant with both a late arrival time and a flexitime schedule, declaring that complainant was entitled to "effective" reasonable accommodation and not necessarily one of his own choosing. However, complainant said an incident occurred while she was in the ladies' restroom that "pushed her over the edge," causing her to take action. You don't want to make waves." "The dispositive issue in this case," the Commission declared, "is whether the agency met its responsibility to provide complainant with reasonable accommodations to his disability in response to complainant's requests for permanent light duty." Specifically, the Commission found that "the agency's provision of an oversized monitor was not enough of an accommodation, by itself, because it did not assist the complainant in reading the handwritten comments of his supervisors." Equal Employment Opportunity Commission, or with the court system must also be submitted to the Division of EEO/AA. However, in this instance th… the EEO/AA Officer when reviewing complaints shall consider, but is not limited to . The PSB concluded that complainant could remain in her position if she did the following: (1) displayed a willingness to reduce her weight to 291 pounds within six months to one year; (2) became certified in CPR within six months; and (3) saw the FFDE physician every three months. The Commission noted that the noose was such a severely violent symbol that complainant reasonably felt threatened by his discovery. Bynum v. Department of Veterans Affairs, EEOC Appeal No. Spriesterbach v. United States Postal Service, EEOC Request No. In this regard, the Commission further found that the Chief Therapist had belittled African-American RTs in front of other co-workers, and did not afford them the treatment she afforded the comparative. endstream endobj startxref Accordingly, the Commission found appropriate the consideration of compensatory damages. EEOC noted that such determinations had to be based on individualized assessments. The Agency wins 99% of the time. B-3 said he could work with complainant or C-1 (White, 37). 01984186 (July 26, 2001). You should contact an EEO counselor in the Trea- sury bureau where your complaint arose. I always wondered what it was like in here." This matter involved an agency (Department of the Treasury) appeal from an EEOC AJ's finding that the agency's reasons for not selecting complainant for the position of Process Manager, GS-301-14 were a pretext for discrimination based on age and race (Black). race, color, physical/mental disability, etc.). The Commission found, however, that the agency had failed to provide complainant with an effective accommodation for his reduced vision caused by his narcolepsy. At the conclusion of the hearing, the AJ issued a recommended decision of no discrimination, finding, in pertinent part as to claim (1), that the District Manager of Sales and Services for the North Las Vegas Post Office (DM) sent an employee (S1, a supervisor) to the facility to monitor complainant starting on September 13, 1994. 01A00340 (September 25, 2000). Rosenthal v. Department of Justice, EEOC Request No. The agency denied complainant's request, arguing that the request was in effect a request for reassignment which had to comply with the seniority provisions of the agency's collective bargaining agreement (CBA). The Commission affirmed the agency's dismissal of complainant's three complaints and rejected his argument that the complaints constituted a continuing violation. Complainant appealed from the final decision of the agency (FAD), which found she had not been discriminated against on the bases of sex (female) and race (Black) when: (1) she was hired in September 1996, at GS-11, Step 7, instead of at a higher step; and (2) she was not selected for the GS-12 position of Pharmacist Team Leader, Outpatient Pharmacy, on or about May 7, 1997. To satisfy the elements of its affirmative defense, the Commission declared, an employer at a minimum must have an anti-harassment policy and complaint procedure that contains the following elements: (1) a clear explanation of what constitutes prohibited conduct; (2) assurances that employees who bring complaints of harassment or provide information related to such complaints will be protected against retaliation; (3) a clearly described complaint process that provides possible avenues of complaint; (4) assurance that the employer will protect the confidentiality of harassment complaints to the extent possible; (5) a complaint process that provides a prompt, thorough, and impartial investigation; and (6) assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred. Further, the agency did not dispute complainant's assertions that she performed the same duties and had equal or greater responsibilities, due to her work on the evening shift, than the male pharmacists and had, in fact, trained some of them. Inadequate proof of posting. In EEO complaints, the Complainant bears the burden of proof at all times, although the burden of persuasion shifts. Title VII applies to employers with fifteen or more employees and requires that all employees or applicants for employment be treated equally with respect to the bases protected by the statute. The FAD adopted the AJ's recommended decision and noted that the agency had met its burden of establishing that it would have taken the same actions in the absence of complainant's EEO activity. However, the Commission agreed with the AJ's finding that complainant failed to establish a basis for imputing employer liability for his co-worker's actions. Her claim was dismissed by the agency under a reasonable suspicion standard. The Equal Employment Opportunity Commission (EEOC… Burden of proof improperly shifted. 01972786 (April 20, 2001). Among the claims was the allegation that she was over-scrutinized and supervised (claim (1)). In 1994, complainant filed a grievance claiming retaliation and disability discrimination regarding four recent disciplinary actions. It was from the following order of the AJ that the agency appealed to the Commission: A. She was given written reprimands and suspensions for insubordination toward her supervisor and for failing to complete a work assignment given by her supervisor. However, it appears that the agency later ignored complainant's request for a permanent light duty assignment and the decision was made to send him home on an indefinite basis. 01972665 (July 13, 2000). The Commission also ordered the agency to take appropriate preventive steps to ensure that no employee is subjected to sexual harassment and to ensure that appropriate steps are taken immediately after management is notified of any such harassment. 01970918 (September 15, 2000). Evey v. Department of Veterans Affairs, EEOC Appeal No. The agency averred that the Professional Standards Board (PSB), which had determined complainant's salary, was not aware complainant had been paid more at her prior agency position in Michigan and that complainant had accepted the agency's offer in Biloxi. A potential federal sector complainant … Scott v. United States Postal Service, EEOC Appeal No. Statutory retaliation clauses prohibit any discrimination that is reasonably likely to deter protected activity. Related acts. Before sharing sensitive information, make sure you’re on a federal government site. Material facts at issue. In late 1998, complainant alleged discriminatory denial of overtime "since 1997 and continuing." The Commission found no evidence of bad faith by the agency; that it had immediately attempted to cure the breach; that it had repeatedly attempted to schedule a meeting and that it was still willing to do so. The medication was taken at night, and its sedating effects made it difficult for complainant to function properly at work. He also averred that agency officials indicated that complainant and those who testified on his behalf were "whiners" and "crybabies." In this instance, the burden of proof is on the complainant, and it's not the same concept that we've been conditioned to accept by popular media. Complainant argued that his EEO complaints showed a discriminatory course of conduct by the agency. The agency failed to show that the medical inquiry was job-related and consistent with business necessity, stated the Commission, since it failed to show that it had a reasonable belief that complainant would be unable to perform essential functions or would pose a direct threat. Presley v. United States Postal Service, EEOC Request No. The Commission noted "that the clerk charged with helping the complainant admitted she did not type for the complainant, except for envelopes.". But in the federal civil service, approximately 20,000 EEO complaints are filed every year by employees who keep on coming to work. The physician concluded that the day tour would enable complainant to regulate his sleep periods and maintain a more stable emotional state. 05981074 (October 4, 2001). A-2 wrote that C-1 had worked for him for years, would bring a fresh perspective to the position, and was able to analyze difficult situations and make objective recommendations. In McDowell v. Home Depot, a former employee filed suit under the ADA, alleging, among other things, that she was demoted in retaliation for complaining of discrimination on a company hotline only one day before the … The Commission was persuaded that complainant first developed a reasonable suspicion of discrimination at the point when he became aware of the treatment of the coworker, and found an extension of the time limit for initiating EEO contact was warranted. h�b``P```:�������A��X؀��aO��C'D��a���~�������eุ�l�"X�h����#��F���s�8Z7]�b�n``(��;��u�Һ~��AQJ�%�f3�)0KpD6f=`��`��i��!2�{W@v130������4�f"� :(� Over the course of the next several months, complainant said, the supervisor made a number of sexually-oriented comments to her which she found offensive. The AJ found, and the Commission agreed, that complainant's repeated requests for permanent light duty assignment were essentially ignored. BURDEN OF PROOF IN THE EEO COMPLAINT PROCESS . 01A13076 (July 30, 2001). In reversing the FAD, EEOC noted that, in a nonselection case, pretext could be shown in a number of ways and not merely by establishing that complainant's qualifications were observably superior to the selectee's. Held: Where, as here, none of the claims are dismissed for reasons of timeliness, but, instead, on other grounds, a claim of continuing violation does not lie. Posey v. United States Postal Service, EEOC Appeal No. Donald Names, Director, OFO's Special Services Staff, Writers: Arnold Rubin, Dann Determan, Lori Grant, Navarro Pulley. Anisman v. Department of Treasury, EEOC Request No. Complaint reinstated. In our last post, we discussed how to defend non-selections from a selecting official’s perspective. In this post, we’ll discuss this issue from an investigator’s perspective. In a discrimination lawsuit, the burden of proof falls initially on the employee bringing the complaint of discrimination About half of women who are working full-time can be considered "primary" income … 01A10068 (July 6, 2001). The Commission found that the change in her position was not a breach of the agreement, holding that where an individual bargains for a position without any specific terms as to length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position ad infinitum. The counselor ensures the aggrieved is aware of the discrimination complaint process and the burdens of proof the aggrieved carries in that process. 01995369 (July 11, 2001). . In addition, with regard to the agency's not selecting complainant for a higher-graded position, the Commission found that there was substantial evidence in the record to support the AJ's finding that the agency regarded complainant as an individual with communication difficulties that substantially limited him in the major life activity of speaking. Issue a letter of reprimand to [the subordinate] admonishing him for engaging in unlawful racial and religious harassment directed to complainant; and. The disclosure warranted an award to complainant of $2,000 in compensatory damages. Prima facie is a term that represents eh Complainant's initial burden of proof in an employment discrimination complaint. 01A02572 (July 6, 2001), request to reconsider denied, EEOC Request No. Thus, as part of the remedies it ordered, the Commission directed the agency to consider complainant's entitlement to an award of compensatory damages. Employees can file retaliation complaints if they feel they have been treated differently, and worse, than co-workers based on their protected activity in filing an initial complaint, but the burden of proof is still on the complainant, who will likely be subject to the same increased stress level that was associated with the initial complaint. She was also disciplined for her conduct in situations in which she had disputes with the interpreter. 05A10953 (October 19, 2001). endstream endobj 553 0 obj <. Johnson v. Social Security Administration, EEOC Appeal No. Stone v. Department of the Treasury (Bureau of Public Debt) EEOC Request No. She (complainant) also provided a performance appraisal wherein she was rated "fully successful" in the area of oxygen delivery. Two year limit on back pay. SUBJECT: EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act PURPOSE: This enforcement guidance supersedes … EEOC Request No. The Commission noted, for example, the PSB head's testimony that he felt pressured to change his previous recommendation, as well as his additional statement that the PSB never discussed whether complainant's continued tenure constituted a risk. 915.002 (March 1, 1999 at p. 17). He initiated EEO counseling over 45 days after he returned to work, but within 45 days of the time when he became aware that a co-worker was allowed to work within his restrictions and was also allowed to work overtime. 01973945 (July 13, 2000). 0 She also alleged that she resigned rather than yield to the agency's requirement that she convert to an excepted service "Schedule A" appointment as a condition to being exempted from the police training. In addition, EEOC found that an inference of discrimination was raised when, contrary to the agency's claim, a chart listing the grade levels of GS-203 Personnel Assistants in the region; and a February 10, 1997 letter by an unidentified agency official to another regarding the agency's failure to cooperate with PCS concerning the inadequacy of the investigation into complainant's complaint; showed that there were at least two GS-203 Personnel Assistant GS-8s and one GS-9 in the region. The Commission decided that the agency had adequate notice of the claim, yet violated its obligation to maintain the records. On February 4, 1997, the agency issued a vacancy announcement and six candidates, including complainant, were referred for competitive selection. If the allegation is not resolved in counseling, the individual may file a formal EEO complaint with the employing agency and that agency investigates the complaint. Williams v. United States Postal Service, EEOC Appeal No. The Commission also noted that the EEO poster submitted by the agency indicated a time limit of 30 days, whereas the time limitation had been extended to 45 days in EEOC's regulations that went into effect in October 1992. The agency failed to address the claim in its decision on the merits. In finding that complainant had been discriminated against based on sex and disability, the AJ found her testimony to be credible while finding the supervisor's testimony lacking in credibility. Complainant also complained that the agency required him to provide medical documentation whenever he used sick leave despite the agency's awareness that he had a chronic condition. 01A00956 (July 5, 2001). Complainant filed an EEO complaint claiming that the agency discriminated against him on the bases of race (Black), religion (Islam), and reprisal by allowing him to be subjected to harassment by a subordinate. To ensure complainant would perform like any other carrier, DM sent someone to monitor and scrutinize her. If you are the person filing the claim, you should start gathering important information and documents that might be useful for your claim. 01993099, 01993956, 01996057 (August 31, 2001). In finding that the agency had discriminated against complainant based on disability, the Commission drew two main conclusions. To state a timely raised continuing violation claim, a complainant must allege facts that are sufficient to indicate that he or she may have been subjected to an ongoing unlawful practice which continued into the 45-day period for EEO counselor contact. Instead, the Commission has the authority to order the agency to consider taking disciplinary action under appropriate circumstances. As a result of spina bifida, complainant also developed a condition which caused her to have difficulties with complex mathematical calculations, and which contributed to the problems she had in performing the duties of her position as a Clerk (Typing), duties that involved maintaining time and attendance under an agency system that was relatively complex. B-1 testified that he had changed his mind regarding his recommendation of complainant because, at a Port Director's meeting, he raised issues concerning the performance measures that the GCMC was required to develop. Among the bases of alleged discrimination was physical disability (hearing loss, obesity, and hypertension). She claimed that she was discriminated against when she was denied a waiver of the police training portion of the basic training for her position. The 2-3 percent figure cited for the rate of discrimination findings is a statistic that only tells part of the story. Gray v. United States Postal Service, EEOC Request No. However, his supervisor refused and advised complainant he could have a later starting time or an alternate work schedule but not both. Summary judgment improper. Under a de novo standard of review, the Commission concluded that it was error for an AJ to grant summary judgment in favor of complainant on an unasserted Equal Pay Act (EPA) claim, without giving the agency an opportunity to be heard. The Commission noted that an EPA violation was also a violation of Title VII of the Civil Rights Act of 1964. Dare v. Department of the Air Force, EEOC Appeal No. Because the official played such a central role in the incidents at issue, the Commission ruled that there was a need for "strident-cross examination," and a need to weigh conflicting testimony. EEOC also ordered the agency to consider complainant's claim for compensatory damages for her nonselection; provide EEO law training to CP and ACP; and ensure that the PSB conducts an equally thorough review of each applicant's information with regard to salary offers. In a hearing concerning an alleged violation of § 458.2 (Bill of rights of members of labor organizations) or § 458.37 (Prohibition of certain discipline), the complainant shall have the burden of proving the allegations of the complaint … Stone v. Department of the Treasury (Bureau of Public Debt), EEOC Appeal No. In affirming the AJ, the Commission applied the substantial evidence rule, which provides that all posthearing factual findings by an AJ will be upheld on appeal if supported by substantial evidence in the record, i.e., relevant evidence that reasonable minds might accept as sufficient to support a conclusion. Burden of proof in discrimination claims (S 136 Equality Act 2010) This section applies to any proceedings relating to a contravention of this Act. The other candidates, all of whom were White, ranged in age from 37 to 49 (complainant was 48). Atkins v. Social Security Administration, EEOC Appeal No. The Commission also found that the agency had failed to meet its burden of proving that the difference in pay between complainant and the male comparatives resulted from a factor or factors other than sex. The Commission found that her testimony supported a finding that it was a combination of the prior behavior and the restroom incident that, as complainant put it, "pushed her over the edge.". 131 M Street, NE 611 0 obj <>stream In this case, complainant, a City Carrier at the agency's North Las Vegas, Nevada, facility, asserted that the agency discriminated against her on a number of bases under Title VII, including reprisal, as well as age under the ADEA, in connection with 12 claims. An AJ summarily found for the agency. Citing the Supreme Court's decision in St. Mary's Honor Society v. Hicks, the Commission found no basis to set aside the AJ's decision, and ordered the agency, inter alia, to retroactively promote complainant. Mitchell v. Department of Veterans Affairs , EEOC Appeal No. ���� f� ���"&`�LF�_eg����md`���/ �r� The Commission also found not credible the Chief Therapist's assertion that the comparative was the only RT who expressed an interest in performing sleep studies. Christian-Harper v. Department of Veterans Affairs, EEOC Appeal No. In the first instance, it is the Counselor who must advise the complainant on the available remedies. These selected decisions include findings of race, age, sex, and disability discrimination, unlawful harassment, and reprisal. 1994 performance appraisal held: the agency had ample opportunity to produce evidence! And 05A10506 ( November 2, 2000 ), citing EEOC 's office of Operations... Digest is now available online through EEOC 's homepage at www.eeoc.gov deaf employees not meet an early arrival time for... He resigned in 1994 PSB head, a physician, expressed his belief that the supervisor `` was the itself! Jr. v. Department of Defense ( Defense Commissary agency ), RTR denied, EEOC Appeal No some allegations based! Was ( purportedly ) controlled through medication who was White and 62, was Director the. Alleged, however, his supervisor refused and advised complainant he could have a later schedule eeo complaint burden of proof while maintaining alternate! Was given written reprimands and suspensions for insubordination toward her supervisor pay with interest and outstanding benefits like in.! The medication was taken at night, and more troubling to the Commission also provided a appraisal! Facie is eeo complaint burden of proof survey of selected recent discrimination findings is a quarterly publication of EEOC 's Compliance Manual on.... 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