To order your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. It is important to note, however, that in the law there is a large difference The case was remanded back to the agency for further processing. On appeal, the Commission found that it has jurisdiction over the complaint, stating that the ATSA does not divest the Commission of jurisdiction over complaints brought by security screeners under the Rehabilitation Act or other statutes enforced by the Commission. Complainant worked for the agency as a Physical Security Specialist, and applied for the same position in another division. § 1981 when they retaliated against her for her complaints about the race and sex discrimination she faced while working at DSU. Washington, Types of workplace discrimination complaints filed from 1997-2018. Provide details about how you scored the complainant and the selectee. Complainant alleged that from April 2003, until the date of his retirement in 2008, his job description and pay did not accurately reflect his duties and he was unable to get his position properly reviewed and upgraded. There is no “best qualified” person. On appeal, the Commission found disingenuous the agency's assertion that it was merely awaiting the AJ's ruling on its motion to stay, because it failed to take proactive measures to inquire whether the AJ had issued any additional orders or ensure receipt of AJ notifications. On appeal, the Commission determined that there was insufficient evidence in the record to support the issuance of a decision without a hearing. Thus, complainant successfully showed that the agency's reasons for his non-selection were a pretext for discrimination. 0520100133 (February 4, 2010); Leah D. Vue v. United States Postal Service, EEOC Appeal No. Subsequently, the Commission found that complainant had established that he was entitled to non-pecuniary, compensatory damages in the amount of $3,500 based upon his wife's corroborating testimony that he suffered from stress, anxiety, and depression aggravated by the agency's denying him reasonable accommodation. The three parts of the McDonnell-Douglas test are this: The complainant bears the burden of production to show a ‘prima facie’ In Cox v. Social Security Administration,13 the Commission again upheld the AJ's decision to issue a default judgment in favor of complainant as a sanction. 0720080005 (October 23, 2009). 131 M Street, NE reason for the action complained of; If the Agency shows a legitimate non-discriminatory reason for its action, I began writing about the problem and became a consultant for employers and employees who are confronting age discrimination in the workplace. On appeal, the Commission found that the Administrative Judge properly found discrimination on one issue, and no discrimination or harassment with regard to the remainder of the claim. In the case at hand, it did not appear complainant was challenging an ATSA-mandated qualification standard. The EEOC Office of Federal Operations (OFO), recently upheld an administrative judge's (AJ's) finding that the Department of Agriculture Farm Services Agency (FSA) discriminated against complainant Deborah Lombardino when it did not select her for the position of civil rights director, small business utilization staff, a temporary, one-year position. He further told the co-worker that he expected loyalty from his employees. The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. Thirlkill was a level 3 electrician and temporary electrical instructor in the TVA’s Browns Ferry Nuclear Plant in Decatur, Alabama. laid out the test. test in determining whether or not the claimant has met their burden of The Commission also concurred with the AJ's determination that the agency failed to fully comply with the AJ's orders or respond to discovery requests in a timely manner.14. Complainant requested the reasonable accommodation of working at home, at least part time, while undergoing rehabilitation. With regard to the suspension, the Commission noted that management was aware of complainant's prior EEO activity and issued the suspension within a period of time such that a retaliatory motive can be inferred. The Commission ordered the agency to pay complainant's reasonable attorney's fees in the amount originally requested. The Commission noted a disparity in the explanations for the action. Additionally, two weeks before the hearing in this matter, the selecting official told the co-worker that he knew she was named as a witness, that a court reporter would be at the hearing, and that the transcript was a public record and he would know everything the co-worker said. In addition, the Commission found that the last allegation states a cognizable claim of harassment and is factually tied to the other issues raised. Michael D. Kimble v. Department of Homeland Security, EEOC Appeal No. § 1614.109(f)(3) authorizes AJs to impose sanctions on federal agencies. Did you consider any other factors in your decision? 202-663-4900 / (TTY) 202-663-4494, Call 1-800-669-4000 The matter was remanded for an administrative hearing. can either return the ‘ball’ to you by producing evidence The agency dismissed the claim for untimely EEO counselor contact, noting that the alleged discriminatory act occurred on April 24, 2003, but complainant did not contact an EEO counselor until November 6, 2008. Grant of Summary Judgment Reversed where Genuine Issues of Material Fact Present. 0120072195 (November 24, 2009). While the agency relied upon the statements of complainant's supervisor, complainant alleged that he had repeatedly engaged in protected activity, and the supervisor's statements were made in retaliation for that activity. The Administrative Judge noted that while the specific harm may be different for the various employees involved, there was a common link, that is, all class members were asserting they were negatively affected by the NRP. Passman & Kaplan, P.C., Attorneys at Law The Digest is now available online through EEOC's homepage at www.eeoc.gov. Once the EEOC receives the complaint, they will look at it and make a decision. The information on this website is for general information purposes only. Agency Ordered to Pay Attorney's Fees Based on Reasonable Rate for Out-of-Town Counsel. The EEOC filed suit after investigating the case, finding reasonable cause to believe that the alleged discrimination took place, and then attempting to reach a pre-litigation settlement through its conciliation process. Complainant filed a formal EEO complaint alleging he was discriminated against on the basis of his race (White) when he was not selected for a promotion. This eventually raised not only practical concerns about timeliness and efficiency, but also fundamental concerns about fairness and the integrity of the EEO process itself. $200,000 Awarded for Denial of Reasonable Accommodation. We will discuss each of these elements in upcoming posts. The Commission concluded that, having established prima facie cases of race, sex, and age discrimination, complainant prevailed on his complaint without having to make any demonstration of pretext. The agency also failed to respond to any of the numerous motions filed by the complainant with the AJ, including various discovery requests, although the agency received copies of these filings. 07A00045 (December 6, 2002). Carvalho-Grevious subsequently filed suit, claiming that DSU violated Title VII of the Civil Rights Act of 1964 (Title VII) and that Austin and Thompson violated 42 U.S.C. 0120072400 (July 17, 2009), request for reconsideration denied EEOC Request No. The agency dismissed the complaint for failure to state a claim, asserting that complainant's claim of disability discrimination under the Rehabilitation Act was preempted by the Aviation and Transportation Security Act (ATSA). Of specific note is management’s burden to articulate a legitimate, non-discriminatory reason for its actions. 74 Fed. Sign up to receive more, Federal Legal Corner: Continuing a Reasonable Accommodations. An official website of the United States government. is not always the case however, and you should consult with a Federal Shaundra Y. Sibert v. Department of Health & Human Services, EEOC Appeal No. info@eeoc.gov $25,000 Awarded for Retaliation. Like this article? Phone: The Commission noted that complainant was receiving allegedly discriminatory paychecks during the period up to and including 45 days prior to his EEO counselor contact. Given the totality of the circumstances, the Commission found that the agency's explanations for not selecting the complainant were unworthy of belief. 202-789-0100 When a case has been completed and an award has been provided to the aggrieved party, he or she must determine if this is worth settling the case for or if additional monetary support is needed. 7 EEOC Request No. The Paychex data indicates the EEOC failed to failed to find discrimination in 87 percent of the almost 1.9 million cases filed by discrimination victims over the 21-year-period. 14 Although the AJ imposed sanctions against the agency, in part, for filing an untimely response to her Show Cause Order, the Commission held that the agency filed a timely response to the Show Cause Order The Commission nonetheless concurred with the AJ's findings with regard to compliance with discovery requests, noting that the agency failed to even partially comply. The "AJ erred because in a non-selection claim, the focus should be on the selectees to the position and whether their treatment vis a vis complainant raises an inference of discrimination." The Society for Human Resource Management has called me a “diversity and inclusion” leader and a “nationally recognized expert on age discrimination.”, © 2020 Forbes Media LLC. Reg. Other Federal Sector Employment Issues / Private Sector Issues, Nationwide/Global Representation of U.S. Government Employees, I work in the Private Sector in D.C., Maryland or Virginia, I already have scheduled my Initial Consultation. Disability and Reprisal Discrimination Found. Robert E. Preston v. United States Postal Service, EEOC Appeal No. The EEOC found reasonable cause in only 3.5 percent of complaints in 2018; 2.9 percent in 2017, and; 3.2 percent in 2016. The Commission noted that, following a decision to issue a default judgment, an AJ would need to decide if there was sufficient evidence to establish complainant's right to relief. However, the complainant did not learn that "a final selection determination was made" until January 10, 2005, when the Chief Counsel "rejected the supervisor's request for the complainant's selection." 0120071822 (November 20, 2009). Commission Has Jurisdiction Over Complaints of Disability Discrimination Brought By Transportation Screeners Under the Rehabilitation Act. The Commission found that complainant possessed plainly superior qualifications for the position in relation to the selectee.