Avoidable Conflicts in EEO Complaint Processing

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By Deryn Sumner, September 13, 2017

Conflict is a fact of life (of course, we seem to be experiencing a bit more than usual since January 2017).  And one type of conflict that sometimes can’t be avoided is a conflict of interest in processing EEO complaints.  These conflicts come in a few forms and the EEOC’s Management Directive 110, Chapter 1 (as last revised in August 2015), does an excellent job in explaining an agency’s obligations with regards to them.

The first conflict arises between an agency’s role in processing EEO complaints and preventing unlawful employment discrimination and the “fiduciary obligation to defend the agency against legal challenges.” The EEOC cautions agencies that agency representatives should not be involved in the processing of complaints, or do anything to prevent impartial processing.  Agencies also must ensure that EEO complaints programs are kept separate from personnel functions to avoid impermissible interference.

Now that type of conflict affects every EEO complaint. But there are some specific to particular employees who engage in the EEO complaints process.  MD-110 addresses those as well and explains how agencies should handle situations where the alleged responsible management official is the head of the agency, which may lead to a real or perceived conflict of interest, or where the alleged responsible management official is the EEO Director or supervises the EEO office.

EEOC’s MD-110 also speaks to the need for a clear separation of the complaints program from the agency’s role in defending against EEO complaints, noting, “Only  through the vigilant separation of the investigative and defensive functions can this inherent tension be managed.” EEOC instructs agencies to institute a firewall between the EEO function and the defensive function, that agency representatives may not conduct legal sufficiency reviews, and that agencies should not rotate agency representatives between working with the EEO office and defending against claims filed by employees.

 

The integrity of the EEO complaints process is of utmost importance, and addressing conflicts of interest helps preserve this integrity.  Even if the conflict of interest may not be explicit, if there is even an appearance of conflict, as explained by the EEOC in MD-110, agencies are likely best served by either entering into a formal agreement to have the case processed by another agency or utilizing a private contractor to process and investigate the complaint.   Sumner@FELTG.com

Life Goes Better with a Plan

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By Deryn Sumner, September 13, 2017

Sometimes at work, we can feel like we’re simply jumping from one urgent matter to the other, without stopping to look at what’s coming ahead and plan for the next steps.  I’m certainly guilty of that myself.  As a litigator, work is often times about meeting deadlines, and if a case doesn’t have a deadline attached to it yet, such as when a case is waiting for assignment to an administrative judge, it’s easy to cast it aside in favor of more pressing matters.  But, if you do have a reprieve to focus on a case file before a deadline is looming, I encourage you to do so.  I know that’s not always possible.  Hey, you may not even receive a case assignment until the initial status conference is coming up (or has already been held, with or without you).

But when time and circumstances allow, I recommend taking the following steps to familiarize yourself with the Report of Investigation and plan out your case strategy ahead of time.

So what should you do with that time?  Well, first, sit down (or stand up I guess, if you have one of those standing desks) and review the Report of Investigation (ROI) itself.  Check your agency’s internal system to see if there are other complaints pending from the same complainant.  What’s the procedural status of these other cases?  Are the cases appropriate for consolidation under 29 CFR 1614.606?

When reviewing a Report of Investigation, I often take notes highlighting three things as I go along.  First, what can I glean about events keyed to dates and key undisputed facts from the record?  That’s going to be the start of a timeline and a statement of facts for the case.  Make sure you include the citation to the ROI as you are drafting the timeline.  And avoid citing to the EEO Counselor’s Report or Investigator’s Summary.  You want to be making references to a statement in an affidavit or the source document (like a Letter of Reprimand itself).

The second thing I look for is documents that are not already included that I want to ask for in discovery or from the Agency’s witnesses, if I’m representing the Agency.  Is there sufficient evidence about damages?  Almost always the answer is going to be no.  Are there references to emails or meeting notes in affidavits that aren’t included?  Write the ideas down as you review the ROI, and you’re already on your way to having a draft of discovery requests set to go when you do get assigned to an administrative judge and given a deadline to initiate discovery.

The third thing I look for are the “cast of characters” involved in the case.  Sure, you know who provided an affidavit, but review the ROI with an eye towards identifying who else was involved or played a role so you know who you need to speak with.  Make a list, gather their contact information, figure out who may have left, and even start witness interviews if you have the time.

After you’ve reviewed the ROI, next think about what you would need to either file a successful motion for summary judgment or present the case at hearing.  If you are missing key pieces of information, that’s more fodder for your list of discovery requests.  If there are red flags – for example, you can’t quite figure out what the Agency’s legitimate, non-discriminatory reason actually is – examine that.  Is there information that needs to be gathered and added to the record?  Or do you need to be valuing the case and locating a settlement authority?

I have been saved many times by having a timeline already drafted when I need to draft a motion for summary judgment or proffer a stipulation of undisputed facts in preparation for filing a prehearing submission.  Going into a case with knowledge of the current record and an eye towards what’s missing will repay itself many times over, if you can make the time to do it.  Sumner@FELTG.com

Something to Chew On: OFO Issues New Digest of Notable Cases

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By Deryn Sumner, August 16, 2017

On August 10, 2017, the EEOC’s Office of Federal Operations announced the issuance of its most recent digest of notable cases, constituting the third volume for fiscal year 2017.  The digest highlights and summarizes notable cases issued by the EEOC in recent months.  The cases are organized by subject area and this edition includes a special article on disparate treatment.  Disparate treatment is likely the most common theory of discrimination we see as federal sector practitioners and it is, at its core, the most logical theory of discrimination.  When you speak to an individual who believes they have been treated poorly in the workplace and you ask why they think it is discrimination, most often they will point to co-workers not of their protected class whom they believe are treated better by management, in support of their claims.  However, as we know, there are definitions that must be met to determine who is a proper comparator employee, for purposes of establishing disparate treatment, and this article highlights some recent cases on the subject.

The digest also addresses cases where the Office of Federal Operations reversed dismissals of claims and reinstated them for processing, awards of attorneys’ fees and costs, certification of class complaints, compensatory damages, and findings on the merits.  Of particular note is Dona A. v. SSA, EEOC Appeal No. 0120150376 (March 29, 2017), where the Commission found the Administrative Judge acted properly in dismissing the complainant’s hearing request because the complainant failed to respond to discovery requests.  Although the complainant argued that she was hospitalized due to a medical condition, the Commission found persuasive that neither the complainant nor her attorney notified the agency of her hospital stay for more than three weeks after the deadline to respond to the Agency’s discovery requests had passed.  The Commission addressed similar conduct by a complainant in Alfred S. v. Social Security Administration, EEOC Appeal No. 0120140900 (January 6, 2017), where the complainant failed to respond to discovery for more than a year and the administrative judge dismissed the hearing request as a sanction (which I assume is more of a function of the administrative judge being too overwhelmed with other cases to address a pending motion to compel than anything else).

The Commission also chose to highlight its decision in Jeremy S. v. Department of Veterans Affairs, EEOC Appeal No. 0120142917 (February 9, 2017), where the Commission found the agency’s failure to start an EEO investigation until 322 days after the formal complaint was filed, worthy of default judgment in the complainant’s favor.  The Commission noted that this particular agency had been subject to default judgments at least three times for the exact same conduct: failing to initiate an investigation within 180 days.

Turning to findings of discrimination, the Commission summarized its decision in Marine V. et al v. Social Security Administration, EEOC Appeal No. 0720170001 (March 20, 2017), which found the Agency discriminated against multiple employees on the basis of age by basing selections for a Claim Representative position solely on an exam score without taking into consideration qualifications, job performance, appraisals, or experience with the Agency.  The Commission also discussed three findings of disability discrimination, religious harassment, and sexual harassment and retaliation.

The digest is available here: https://www.eeoc.gov/federal/digest/vol_3_fy17.cfm.

Sumner@FELTG.com

Procrastinators Beware: OFO Cracks Down on Granting Extension Requests

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By Deryn Sumner, August 16, 2017

Sometimes we all just need a little more time, which is why requests for extension were created.  For years now, the EEOC’s Office of Federal Operations has made such requests a simple affair.  Email the designated email address (OFO_extensions@eeoc.gov) and plead your case for more time.  This would typically result in receipt of a form letter granting you an extension to get your appeal brief together (and maybe even come up with some cogent arguments while you’re at it).  I’d never heard of any request for a reasonable amount of time being denied until a few weeks ago, when someone in my office circulated the response they had received after requesting a few extra weeks to submit an appeal brief:

“To ensure that the Office of Federal Operations (OFO) is able to resolve federal sector appeals as efficiently as possible, we are only granting extensions of time to file a brief when the party can demonstrate that they were incapacitated during the regulatory time frame for doing so, or for some other serious intervening event. On the rare occasions that OFO deems that an extension is warranted, it will be limited to ten (10) business days.”

Now, I understand and appreciate that the Office of Federal Operations wants to expedite processing of appeals.  I’m all for it and as I mentioned in last month’s newsletter, I’m happy to provide the Office of Federal Operations with a list of appeals that have been pending for a while that still need a decision.  However, the move towards requiring such a strong showing in support of an extension request seems to fail to appreciate the nature of litigation and the all-consuming nature of hearing and trial work.  In reality, granting the parties with a reasonable extension of time, between 30 and 60 days, to submit an appeal brief will not substantively slow down the processing of these appeals.  Applying the standard of incapacitation, especially when most requests for extension are likely filed by attorneys, seems unnecessarily harsh.  Being in back-to-back hearings and depositions is not being incapacitated in the traditional sense, but it does prevent an attorney from being able to meet other deadlines to draft filings, such as appeal briefs.  Given the period of time that it takes between noticing an appeal and getting a decision, which in my experience has been more than two years, denying requests for a month or so of extra time is not going to expedite processing all that much, and does serve to discourage federal sector attorneys from being able to take on appeals when they have other cases pending.

I hope the Office of Federal Operations will revisit this policy and revise it to be more in line with the reality of litigation practice.  Sumner@FELTG.com

Compensatory Damages Case Law Update: Sang G. v. Department of Homeland Security

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By Deryn Sumner, August 16, 2017

As part of our continuing discussion of recent decisions on compensatory damages from the EEOC’s Office of Federal Operations, I bring you Sang G. v. Department of Homeland Security, EEOC Appeal No. 0120151360 (July 28, 2017). This case addressed both an award of compensatory damages and of attorney’s fees to a complainant who was successful in bringing a claim of discrimination and received a FAD from the agency finding retaliation.  The complainant worked as an Immigration Enforcement Agent and had been terminated during his probationary period.  He filed an EEO complaint alleging discrimination on the basis of race, color, parental status, and reprisal. There were fourteen issues raised as part of his formal complaint, the most egregious being a claim that the Firing Range Instructor “freely used the word n**** on several occasions.” In the end, the Agency issued a Final Agency Decision finding the complainant established retaliation when he was placed on administrative leave, suspended of his authority to carry a firearm, and terminated during his probationary period.

The Agency reinstated the complainant and investigated the complainant’s entitlement to compensatory damages and attorneys’ fees.  After considering the evidence presented, the Agency issued a second FAD finding $15,000 in non-pecuniary compensatory damages was sufficient.

The complainant filed an appeal to OFO and the Commission agreed that $25,000 was more appropriate, given the circumstances at hand.  The complainant stated that after his termination, he was not able to afford mental health treatment and “his resultant inability to obtain new employment served as a constant reminder of the Agency’s actions and exacerbated his depression over an extended period of time.”  He also asserted that he experienced extreme anxiety and panic attacks, could not sleep, and drank to excess.

The Commission noted that the complainant presented evidence to demonstrate he endured emotional distress that resulted in him separating from his wife and losing respect from his son.  This, coupled with the complainant’s inability to obtain health care, warranted an increase in the award from $15,000 to $25,000.

This award seems low, given the harm claimed by the complainant because of his termination from the Agency. I wonder if the fact that the complainant was unable to obtain mental health treatment due to his lack of health insurance impacted the amount of the award he received.

The decision also addressed the complainant’s appeal of the award of attorneys fees, which the Agency had reduced by 75%. The Commission found that this reduction was unwarranted and increased the amount from $6,379.35 to $25,517.39 to compensate the complainant for attorneys fees and costs.  Sumner@FELTG.com

Is OFO Trying to Cut Through its Backlog with Shorter Decisions?

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By Deryn Sumner, July 19, 2017

Our colleague and friend Ernie Hadley has preached for years that the EEOC’s Office of Federal Operations could get more decisions out in a timely manner if it stopped issuing multipage decisions that ultimately concluded with: we agree with the Agency that there’s no evidence of discrimination in this case. As someone who at least skims every one of the thousands of decisions issued by the Commission every year, I agree wholeheartedly with Ernie.

There are three main categories of Commission decisions: (1) cases where discrimination was actually found, and there’s a useful discussion of the facts as applied to the law and an analysis that assists us in our mission to figure out what constitutes evidence of discrimination and what remedies are available when it occurs; (2) cases where the agency messed up in dismissing a formal complaint that shouldn’t have been dismissed, and the Commission has to reinstate the case and remand it back to the agency for processing, and (3) cases where the EEOC is affirming a FAD or final action from the agency that no discrimination occurred.  (And of course, let’s not forget the hundreds of decisions every year denying requests for reconsideration filed by either side in an attempt to delay the inevitable.)

The vast majority of decisions issued by the EEOC fall into that third category.  Why?  Well, employment law is no different than any other area of civil litigation in that most cases settle, especially before getting to the appellate stage.  And yes, some employees who aren’t able to show that discrimination occurred file complaints.  At least as a parting gift, these employees received a five to seven page decision recapping the procedural history and facts of their cases, the appropriate legal standard, and a brief analysis of why they couldn’t prove their case.  Beneficial, perhaps, for the employee to understand what the Commission’s reasoning was, but a lot to slog through for the rest of us.

So imagine my surprise when I checked in on the latest OFO decisions to be published on Lexis, only to find a string of cases issued on June 16 (the latest date available as of my deadline to turn in my articles for the July edition of the FELTG newsletter) succinctly affirming final actions.

These decisions still identify the accepted issues, the procedural history, and the applicable legal standards.  Each of these take about a paragraph each.  But then, instead of a lengthy recitation of the facts or extensive discussion of why the administrative judge was correct in issuing summary judgment or in finding no discrimination after a hearing, the Commission simply states this:

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.

The decisions are about three or four pages shorter than we’re used to seeing.  I have no reason to think that the OFO attorneys who write these decisions are spending any less time considering the arguments on appeal and properly determining whether the case was appropriate for summary judgment.  I do hope that these summary decisions allow the Commission to focus more resources on the cases where there is evidence of discrimination.  I have the list of my cases for potential candidates, should anyone at the Commission be interested.   Oh, and if you’d like to see examples of these shorter decisions, see, e.g. Rosemarie G. v. FDIC, Appeal No. 0120151691 (June 16, 2017); Reginald B. v. Dept. of Commerce, Appeal No. 0120170496 (June 16, 2017); Monroe M. v. Dept. of Veterans Affairs, Appeal No. 0120151174 (June 16, 2017).  Sumner@FELTG.com  [Editor’s Note: Hopefully, once MSPB gets operating again, the new members will conspire to do something like this with those overly-long non-precedential decisions some bright mind over there came up with several years ago. Maybe even adopt FLRA’s style of putting all the citations to case law into footnotes where they don’t distract from reading the rationale. There’s just so much room to make our business better and America great again.]

Important Development from OFO Regarding Calculation of Compensatory Damages Awards

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By Deryn Sumner, July 19, 2017

The Civil Rights Act of 1991 amended Title VII to, in relevant part here, allow successful complainants to recover compensatory damages for the emotional and physical impacts of workplace discrimination.  The Act placed a cap on how much can be recovered, and employers with more than 500 employees face a maximum payout of $300,000 for compensatory damages.  Once the EEOC’s Office of Federal Operations began considering cases where compensatory damages were available as a remedy a few years later, the Commission developed the framework still in place today: consider the nature, duration, and severity of harm to determine the appropriate award of non-pecuniary compensatory damages, and then make sure that award is not “monstrously excessive” on its own and is consistent with the amount awarded in cases with similar harm.

This formula worked well until more and more time passed since the 1991 effective date and, with inflation, the statutory cap of $300,000 became worth less and less.  Also, those amounts awarded in similar cases started to become less appropriate over time, if the cases relied upon were issued more than a few years prior.  Sure, the complainant in a 2007 case had similar evidence of harm and got $50,000.  Shouldn’t my client in 2017 get more than that given that it’s ten years later?  That argument has been made for years by attorneys for complainants and it finally got a foothold in a decision issued on June 9, 2017.

The Commission exercised its authority to issue a sua sponte decision reopening and reconsidering a prior decision in Lara G. v. USPS, Request No. 0520130618 (June 9, 2017).  Way back in 2009, an administrative judge issued a decision finding the agency subjected the complainant to retaliatory harassment.  Along with other remedies, the administrative judge awarded $100,000 in non-pecuniary compensatory damages.  After the agency issued a final action accepting the finding of retaliation but rejecting the award of remedies, the case came to the Office of Federal Operations on appeal. The complainant argued that the award should be adjusted to reflect present-day dollar value of the precedent cited in support of the award.  In a 2011 decision, the Commission found the administrative judge acted appropriately in awarding $100,000. The complainant then requested reconsideration arguing, “the Commission’s policy of requiring [Administrative] Judges to issue awards consistent with prior Commission cases works an injustice to present-day complainants due to the inflationary devaluation of prior awards.”  In March 2012, the Commission denied the request for reconsideration.

However, after the complainant alleged that the agency failed to fully comply with the Commission’s Order, the case came back to the Office of Federal Operations as part of a Petition for Enforcement.  After that, the Commission notified the parties in October 2013 that it intended to reconsider the case on its own motion.  A mere three and a half years later, the Commission issued its decision and given the importance of its holding, I’m including a block quote of its analysis:

Some courts, when considering whether to reduce compensatory-damage awards, have considered the present-day value of awards in comparable cases. For example, in EEOC v. AIC Security Investigations, Inc., 55 F.3d 1276 (7th Cir. 1995), the court determined that a $50,000 compensatory-damage award was not excessive when compared to prior awards of $40,000 and $35,000. Noting “that those awards were several years ago, and thus the current value of those awards is considerably greater,” the court stated that the “[c]omparability of awards must be adjusted for the changing value of money over time.” Id. at 1286. See also Deloughery v. City of Chicago, 2004 WL 1125897 at 7 (N. D. Ill. 2004) (in decision reducing jury’s $ 250,000 compensatory-damage award to $175,000, court noted that older comparable award “should be converted to current dollars”), aff’d, 422 F.3d 611 (7th Cir. 2005) (district court acted within its discretion where remitted award was sufficiently comparable to awards in other cases in the circuit).

Similarly, when determining an award of non-pecuniary compensatory damages, the Commission may consider the present-day value of comparable awards. Thus, an AJ who is awarding damages should consider the amounts that the Commission awarded in prior cases involving similar injuries and should determine whether circumstances justify a higher or lower award. The AJ should adjust the award upward or downward according to the relative severity of the complainant’s injury. The AJ may then take into consideration the age of the comparable awards and adjust the current award accordingly.

In this case, the AJ determined in October 2009 that Complainant’s injury was comparable to that of a complainant who was awarded $95,000 in September 2003. The AJ awarded Complainant $100,000, which is $5,000 more than the comparable award. It is not clear whether the AJ, in reaching her determination, took into consideration the time that had passed since the $95,000 award. Given the nearly six-year interval between the comparable award and Complainant’s award, we find it appropriate to increase Complainant’s award by an additional $10,000. Therefore, we find that Complainant should receive $110,000.00 in non-pecuniary compensatory damages. Accordingly, we will modify the ordered remedy to reflect this increased award.

So a mere 18 years later, the complainant received an additional $10,000 in non-pecuniary compensatory damages.  Was it worth it to the individual complainant?  Likely not.  However, expect to see this case heavily relied upon by complainants’ counsel in arguing for upward adjustments to compensatory damages awards. Sumner@FELTG.com

Accommodating Employees with Disabilities During Litigation

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By Deryn Sumner, July 19, 2017

When we think of accommodating employees with disabilities, we often think of it only in the context of what accommodations the employee needs to perform the essential functions of his or her job at work.  However, when employees with disabilities file EEO complaints, it often reasonably follows that these individuals need accommodations to participate in the litigation of their EEO complaints.  The EEOC’s Administrative Judge’s Handbook (available at https://www.eeoc.gov/federal/ajhandbook.cfm) notes that “[a] party, witness or representative appearing before the Commission may be entitled to a reasonable accommodation for a disability. The Administrative Judge may order the agency to provide the accommodation.”  But what recourse does a complainant have when he or she is not provided an accommodation during litigation of a case?

The EEOC’s Office of Federal Operations considered such a situation in Davina W. v. Social Security Administration, EEOC Appeal No. 0120162615 (January 18, 2017). There, the complainant worked as an attorney for SSA in Atlanta, Georgia and had previously settled a prior EEO complaint in 2009 that allowed her to work at an alternate duty station on certain days and have a flexible start time due to her disability.  This didn’t appear to improve the complainant’s work situation, as she subsequently filed two more EEO complaints.  After the agency completed an investigation and the case was before an administrative judge, the agency sought to depose complainant.

The complainant requested that as a reasonable accommodation for her disability, the deposition begin in the afternoon, that she be granted frequent breaks, and given the late start time and need for frequent breaks, noted that the deposition could be conducted over two days.  The complainant stated she needed these accommodations due to medication she took in the morning that took five hours to kick in and resulted in severe abdominal pain and retching and her need for frequent restroom breaks.  According to the decision, the agency declined to start the deposition at a later time or conduct it over two days, and alleged that that the complainant refused to cooperate with the agency’s attempts to depose her.

The complainant filed an EEO complaint alleging that the agency failed to provide her an accommodation or engage in the interactive process with her regarding her deposition, and the agency discriminated against her when an agency official suggested that she consider disability retirement if she required a reasonable accommodation for her deposition.

The Commission found that these allegations should not have been considered separate complaints, but they should have been addressed by the presiding administrative judge in her case, noting its concern that the administrative judge “did not address Complainant’s clear request for an accommodation during her deposition.”  The Commission noted that the administrative judge has a duty and obligation to accommodate parties and witnesses and remanded the complaint for a hearing.

I share the Commission’s concern that the administrative judge did not address the complainant’s clear request for accommodation.  The complainant was not seeking to be excused from deposition entirely, but rather to have the deposition start late enough in the day and provide enough restroom breaks to accommodate her medical condition, which appears reasonable and would have met the agency’s goal of obtaining the complainant’s deposition testimony.  Instead of being required to file a separate EEO complaint to address the issue, the administrative judge should have considered it as part of overseeing processing of her existing EEO complaints. Sumner@FELTG.com

 

Field Report from the EEOC’s Baltimore Field Office’s “Meet the Administrative Judges” Program

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By Deryn Sumner, June 14, 2017

Last month, the EEOC’s Baltimore Field Office held an event that provides an opportunity to agency representatives, complainant’s advocates, and others to informally meet the administrative judges and ask questions.  I’ll begin this article with two caveats.  One, although I have attended the event in the past, I did not attend this year.  So my report comes from those in my office who did attend.  And two, although these reflect the viewpoints of the administrative judges in the Baltimore Field Office, I think they are good pointers for anyone appearing before the EEOC.  However, regardless of what any other administrative judge tells you, always review and follow any requirements set forth by your assigned administrative judge in the Case Management Order and any other orders.

With those qualifying statements out of the way, here are the highlights of what the Administrative Judges discussed during the event in Baltimore.

  • When responding to discovery requests, make sure you are not just providing boilerplate response, as that’s not really a response, and the administrative judge may conclude that your side has waived its right to fully respond.
  • Before filing a motion to compel discovery, make sure you have had substantive meet and confer communications.  Some judges in Baltimore require you to have discussed the deficiencies by telephone before filing a motion.  And some judges (including several in the Washington Field Office) require that you convene a telephone conference with both the other side and the administrative judge before filing a motion to compel.
  • If you do end up filing a motion to compel, parties should list the interrogatory in question, provide the other side’s response, and explain why the response is deficient and why the information being requested is material to your case.  Although you should attach the relevant documents, make sure you have argued your points in the motion.
  • When filing a dispositive motion, include an enumerated statement of facts and include all facts that you are referencing in your argument and analysis in this statement of facts.  The analysis section will be much shorter if you have already stated the facts.
  • If you haven’t received a ruling on a dispositive motion and there’s a hearing date approaching, make a request for an oral argument on the pending motion or request a status conference.
  • Remember that under the revised MD-110, agencies must ask administrative judges for permission to obtain medical documents from pro se complainants.

I don’t know if other EEOC field or district offices hold such events.  If they don’t, they should, as it is an excellent opportunity for a dialogue about what is important to everyone involved in the federal sector EEO process.  Sumner@FELTG.com

Establishing a Successful Good Faith Defense to Compensatory Damages in Failure to Accommodate a Disability Cases

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By Deryn Sumner, June 14, 2017

Section 102 of the Civil Rights Act of 1991 allows for the agency to escape liability for compensatory damages where the agency failed to accommodate an employee’s disability, if the agency can demonstrate it made a good faith effort to accommodate the complainant.  Such determinations are factually-based, but can be an effective tool in settlement negotiations if the agency can demonstrate that it attempted to accommodate the employee, even if those efforts were ultimately not successful.

However, many times the Commission will hold that an agency can’t make such a showing.  For example, failing to engage in the interactive process and sending an employee for an unlawful fitness-for-duty examination means you can’t raise a good faith defense, see Arnold C. v. USPS, EEOC Appeal No. 0120093856 (November 3, 2015), removing the complainant from employment instead of accommodating her kills a good faith defense, see Geraldine B. v. Veterans Affairs, EEOC Appeal No. 0120090181 (October 13, 2015), and not responding to a complainant’s emails requesting an accommodation certainly prevents an agency from arguing that it acted in good faith, see Complainant v. Homeland Security, EEOC Appeal No. 0120132360 (July 9, 2015).

Let’s explore a recent decision from EEOC’s Office of Federal Operations addressing this defense.

In Joi J. v. Veterans Affairs, EEOC Appeal No. 0120150921 (March 3, 2017), the Commission found that the agency failed to provide an accommodation to complainant by not allowing her to be exempt from on-call duties in her position as a Certified Registered Nurse Anesthetist.  The Commission found it persuasive that the agency could not establish how allowing this accommodation would have caused an undue hardship, noting that the complainant had been exempt for more than two years.  The Commission also found that the agency failed to accommodate the complainant when it did not consider reassignment after concluding that she could not be exempt from her on-call duties.  The agency argued that a search was not necessary because “Complainant produced no evidence that such a search would be fruitful.” The Commission was not convinced, and noted, “because the Agency had access to information about vacant jobs and jobs that were likely to become vacant, the Agency had an obligation to conduct a job search, and it is uncontroverted that it did not do so. Further, more than two months elapsed between the March 20, 2013, submission of Complainant’s reasonable accommodation request and supporting medical documentation and the Agency’s June 7, 2013 denial, and there is no explanation for the delay by the Agency. Accordingly, we do not find that the Agency made prompt ‘good faith’ efforts to reasonably accommodate Complainant. Therefore, the Agency is not insulated from providing Complainant with an appropriate award for compensatory damages based on our finding that it violated the Rehabilitation Act.”

This isn’t to say that the defense can’t be asserted, but the agency must be able to show that it really did attempt, in good faith, to accommodate an employee in order to escape liability for compensatory damages. Sumner@FELTG.com