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When is Front Pay an Appropriate Remedy?

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By Deryn Sumner, June 14, 2017

Although not addressed very often in decisions awarding remedies, front pay is an available remedy in federal sector EEO complaints.  As Management Directive 110, Chapter 11 tells us, it is only appropriate in very limited circumstances: (1) when there’s no position available to which an employee can be reinstated; (2) where a subsequent working relationship would be antagonistic; or (3) where the employer has a long-term resistance to anti-discrimination efforts.  In order to receive a front pay award, the complainant must be able to perform work, but cannot do so because of circumstances external to the complainant.

For example, in a case that did not address the award of front pay, but rather a procedural issue, the Commission noted an administrative judge’s finding in Mason H. v. Veterans Affairs, EEOC Appeal No. 0120170667 (April 13, 2017), that the agency had poisoned the employment relationship with the complainant so much “that a reasonable physician in his situation would seriously consider suicide.” The decision does not go into such detail about the underlying allegations, but it appears the agency accused the complainant of using illegal drugs when he had not, and accused him of patient endangerment, both serious accusations for anyone, but particularly a physician.  [Editor’s Note: In my humble opinion, a federal agency should not be holding that “reasonable” people in this situation, physician or otherwise, “would seriously consider suicide.” I was a psychologist before I was an employment lawyer. The definition of “reasonable” does not include serious suicide consideration.]

Being able to return to the workplace is a key part of being eligible for an award of front pay, as the complainant in Nicole T. v. Department of Defense, EEOC Appeal No. 0120143019 (January 11, 2017) learned.  Although the administrative judge found that the agency failed to accommodate the complainant and sent her home from work, undisputed medical evidence established that within three weeks of being sent home from work, the complainant was unable to work and had not presented evidence that she could return to the workplace.  The complainant had subsequently filed for disability retirement.  As the complainant could not demonstrate an ability to work, besides compensatory damages, the Commission only awarded her the back pay for those three weeks and no front pay.

If you are dealing with a claim for front pay in one of your cases, you must read the Commission’s 2011 decision in Knott v. USPS, EEOC Appeal No. 0720100049 (July 5, 2011).  There, the Commission addressed an administrative judge’s award of front pay “from the issuance of his decision to the time Complainant either finds comparable work or reaches full retirement age.”  The decision includes substantial discussion of the record that led to this award and is required reading for anyone facing this issue.  Sumner@FELTG.com

Non-Pecuniary Compensatory Damages Awards in 2016: A Brief Overview of Trends

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By Deryn Sumner, May 17, 2017

Just as I did in the June 2016 edition of the newsletter, here are some facts and figures from 2016 decisions from the EEOC’s Office of Federal Operations awarding non-pecuniary compensatory damages.  I’ll repeat my caveat from last year: this is based on my review of all of the decisions issued by OFO in 2016, which I rely on Westlaw and Lexis to accurately upload and provide to me in my search results.  Although I briefly review every decision issued each year to identify the notable ones, it’s entirely possible and quite likely that I missed a few. 

And with that caveat established, on to the trends from 2016.  By my count, the EEOC issued 34 decisions addressing appeals of non-pecuniary compensatory damages last year, a few less than the 40 decisions issued in 2015.  Of those decisions, 10, or 29.4% of the overall number, dealt with awards between $0 and $5,000.  Two decisions involved awards between $5,001 and $10,000.  The highest percentage of decisions, 13, or 38.2% of the 34 decisions, concerned awards between $10,001 and $50,000.  For those of us who aren’t math wizards (raises hand), that means that about 73.5% of decisions issued by the Office of Federal Operations in 2016 concerned awards of less than $50,000.  To round out our survey, 5 cases concerned awards between $50,001 and $100,000, and four cases involved awards over $100,000.

Of these 34 decisions, 18 of them increased the award, 15 affirmed the current award, and one (which I talk about below) decreased the award of non-pecuniary compensatory damages.  Nineteen of these decisions were appeals from Final Agency Decisions, and 15 of them were from final actions implementing or rejecting decisions from administrative judges.

Now, is this to say that complainants very rarely recover significant awards of non-pecuniary compensatory damages?  Of course not.  When there’s liability, smart agencies settle early or choose not to appeal decisions issued by administrative judges.  But it is fair to say that even those complainants who establish liability are not guaranteed a significant payday unless they can provide evidence to show substantial emotional and/or physical harm that can be linked to the agency’s discriminatory actions.

And even if you establish substantial evidence of harm and grab that golden ring of an award of the statutory maximum of $300,000, it can still be grabbed away from you, as the complainant in Alene S. v. USPS, EEOC Appeal No. 0720150033 (April 6, 2016) learned.  There, the administrative judge had awarded that $300,000 maximum after the complainant established discrimination when the agency failed to take the complainant’s medical limitations seriously and failed to accommodate her, made comments about her disability, and retaliated against her. The administrative judge found that the complainant was an example of the “eggshell plaintiff” and as the agency’s actions rendered her unlikely to ever work again, found $300,000 to be appropriate.  The Commission agreed that substantial compensation was appropriate based on the evidence she presented herself, as well as from her psychiatrist, her psychologist, and her sister.  But the Commission agreed with the agency that the award should be reduced because the complainant had pre-existing medical conditions, and the administrative judge did not factor those in.  The Commission reduced the award to $200,000, still a large award, but not the most that could have been awarded.  Rest assured, I’m already hard at work reading the over one thousand decisions issued by OFO in 2017 and will bring the notable ones to the FELTG audience’s attention. Sumner@FELTG.com

The Odds are in Complainants’ Favor When They Appeal Agency Awards of Compensatory Damages

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By Deryn Sumner, May 17, 2017

As I noted in another article discussing trends in cases awarding non-pecuniary compensatory damages in 2016, 18 of the 34 cases issued by the Commission increased the amount awarded.  Some of these increases were significant, and I will discuss a few here.

First, in Marguerite W. v. Dept. of Labor, EEOC Appeal No. 0120142727 (December 21, 2016), the agency issued a FAD awarding $4,500 in nonpecuniary compensatory damages in response to the Commission’s Order in EEOC Appeal No. 0120110728 (January 9, 2013).  The original case dealt with a complainant with a vision impairment who needed a flat screen monitor.  She got one, but when her supervisor, the Area Director, found out she had one, he took it away and gave it to the Assistant Area Director.

Although the complainant also raised other allegations of harassment and violations of the confidentiality of her medical information, the Commission only found discrimination with regard to the monitor being taken away and appropriate alternative accommodations not being provided and ordered the agency to investigate her entitlement to compensatory damages and issue a FAD.

The agency did so, finding $4,500 to be appropriate, and the complainant appealed.  The Commission increased the award to $30,000 and found that the agency failed “to address a situation that was inherently degrading and humiliating” and found persuasive testimony from the complainant and her husband that she suffered emotional harm and physical pain from the actions, which left her without accommodation for three months.  The Commission found it appropriate to increase the award by more than $25,000.

In what was I believe the largest increase in 2016, the Commission awarded an additional $105,000 to the complainant in Vaughn C. v. Dept. of Air Force, EEOC Appeal No. 0120151396 (April 15, 2016).  The agency had awarded $20,000 in response to an order from the Commission requiring the agency to investigate and issue a FAD on remedies after finding the complainant was subjected to racially motivated harassment, including use of the n-word, which caused his constructive discharge from employment.  The Commission said the following:

The Agency asserted that Complainant failed to provide adequate evidence of the harm. We disagree. In response to the Agency’s request for documentation, Complainant provided a statement detailing the physical and emotional toll taken on him due to the ongoing harassment that resulted in his resignation from his position with the Agency. In that statement, Complainant indicated he experienced increasing anxiety, difficulty concentrating, a loss of appetite, high blood pressure and severe headaches. He also noted that his physical and emotional relationship with his wife was negatively affected. Complainant also submitted documentation from his mental health counselor that indicated that he lost his motivation to work; felt anxious; developed insomnia; experienced a change in appetite and drinking resulting in a 15-20 pound weight gain; had difficulties with fatigue and focus; and had feelings of hopelessness. She also indicated that he became paranoid that the coworker would physically harm his family, even going to the extent of developing a ‘safety plan’ in that eventuality. The record also included statements from coworkers in support of Complainant’s claims.

Given all of that, the Commission found $20,000 was not enough to compensate the complainant and increased the award to $125,000. Sumner@FELTG.com

EEOC Issues Quarterly Digest of Equal Employment Opportunity Law Decisions

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By Deryn Sumner, May 17, 2017

The Commission issues several thousand decisions every year.  Many of these decisions are summary affirmations of agency decisions finding no discrimination without much useful analysis to those of us who practice before the EEOC.  Many others still are concerning procedural dismissals, either affirming the agency’s decision to dismiss a formal complaint for reasons such as untimely filing, failure to state a claim, or mootness, or remanding the case for investigation because the dismissal was improper.  So how do you as a busy practitioner stay up-to-date on the recent notable cases coming out of the Office of Federal Operations?  Well of course you’re already taking a great step by reading this newsletter and attending FELTG’s courses, where we provide you with the latest and greatest decisions you need to know.  And of course, if Bill will let me plug it, you can always get your agency to buy one of the fantastic publications from Dewey Publications such as the Consolidated Federal Sector EEO Update 2004-2017 (co-authored by yours truly and Gary M. Gilbert), which will be released later this summer and which summarizes all of the notable decisions every year from 2003 to 2016 (even though I’ve worked on this publication for over a decade, no, I can’t explain why the title doesn’t match up with the years) by category.

Supposing you work for one of the federal agencies with its budget on the chopping block and are looking for a free way to learn about the notable decisions issued by the Commission, the EEOC has you covered.  It just recently released its Quarterly Digest which provides decisions issued in the fourth quarter of 2016 and highlights those decisions addressing attorney fees, compensatory damages, findings on the merits, remedies, summary judgment, and all those other great topics you need to know in your practice.

As a bonus, this edition also includes an overview of the law on age discrimination cases (don’t forget that administrative exhaustion requirements and the remedies available are different in these types of cases) as well as the recent decisions from the EEOC addressing claims of age discrimination.

You can locate the digest here: https://www.eeoc.gov/federal/digest/vol_2_fy17.cfm.  Prior editions are available here: https://www.eeoc.gov/federal/digest/index.cfm

Sumner@FELTG.com

Why “Gentlemen’s Agreements” Aren’t Enforceable Before The EEOC

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By Deryn Sumner, April 19, 2017

In the January edition of this newsletter, I discussed the importance of ensuring that the terms of settlement are properly contained within the “four corners” of a settlement agreement and clearly understood by everyone involved. Just a few weeks ago, the EEOC’s Office of Federal Operations issued a decision illustrating why this is so important. In Retha W. v. Department of Agriculture, EEOC Appeal No. 0120151000 (March 24, 2017), the complainant filed an appeal from a Final Agency Decision finding no breach of a settlement agreement. The Commission affirmed the agency’s position that no breach occurred.  The Commission’s decision tells us that the settlement agreement contained two terms: that the agency would agree to pay the complainant $8,000 and in exchange, the complainant would agree to withdraw her EEO complaint. Seems like unless the agency just plum forgot to issue the payment or refused to do so, there would be no means for a breach, right?

Well, actually the complainant had a different understanding of what the agency was agreeing to do in resolution of the case.  Citing a “Gentlemen’s Agreement” that the complainant claims was “communicated with the involved parties, including Complainant, her representative, the Agency’s resolving official, and the state conservationist at the time the Settlement Agreement was signed,” the complainant asserted that the agency agreed to announce a GS-12 position for which the complainant would be considered for and listed on the referral list. When the agency never advertised such a position, the complainant alleged a breach of the agreement.

The agency reviewed the terms of the settlement agreement itself and found no reference to a term wherein the agency agreed to advertise a position or give the complainant consideration for any such position.  She got the payment of $8,000 she was due under the agreement, and that was it.  Although the agency admitted there being some discussion during settlement negotiations of a position potentially becoming available at some point in the future, there were no promises made and no such agreement was included in the settlement agreement.

In its decision, the Commission included its oft-cited precedent that settlement agreements are simply contracts between the parties, that the intent of the parties must be expressed within this contract, and that the meaning will be determined from the four corners of the agreement without looking to extrinsic evidence. Noting that the “Gentleman’s Agreement” was never reduced to writing (but not that the complainant was female), and that the complainant should have sought to have the term included if she wanted it as part of the settlement, the Commission found no breach of the agreement.  Sumner@FELTG.com.

Seventh Circuit Court of Appeals Agrees with EEOC’s Position Regarding Sexual Orientation Claims

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By Deryn Sumner, April 19, 2017

As we’ve apprised the FELTG audience before, there has been a steady progression over the years regarding how claims of sexual orientation discrimination have been processed by the Commission.  Initially, such claims were outright dismissed for failure to state a claim.  Then, the Commission took the view that claims of sexual orientation discrimination really stated claims of sexual stereotyping, and thus ordered agencies to start processing these claims under that theory.  Then, in Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the Commission dispensed with such analyses and definitively held that claims of sexual orientation discrimination are inherently related to sex and therefore should simply be considered claims of sex discrimination.

The wing of the EEOC that conducts litigation to obtain relief for victims of employment discrimination followed by filing civil actions in U.S. District Court, as we discussed last year in this newsletter, applying the argument in Baldwin.  These and other cases are making their way through the federal district courts and courts of appeals.  Just recently, on April 4, 2017, the Court of Appeals for the Seventh Circuit issued a decision affirming the holding that claims of sexual orientation state claims of sex discrimination.  The case is Hively v. Ivy Tech Community College of Indiana and in it, the Court of Appeals vacated the district court’s dismissal of the complaint on the basis that a claim of sexual orientation didn’t state a claim under Title VII, and remanded it.

The Court of Appeals decision referred to much of the same precedent as the EEOC’s decision in Baldwin, tracing the evolution from the Supreme Court’s holdings in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).  Noting that it could not act to amend Title VII to include sexual orientation, the Court turned to whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.  There was substantial discussion of statutory interpretation, which I will leave for those of you fascinated by such discussion to read on your own.  And the EEOC got credit for the decision in Baldwin, when the Seventh Circuit Court of Appeals noted, “the agency most closely associated with this law, the Equal Employment Opportunity Commission, in 2015 announced that it now takes the position that Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation. Our point here is not that we have a duty to defer to the EEOC’s position. We assume for present purposes that no such duty exists. But the Commission’s position may have caused some in Congress to think that legislation is needed to carve sexual orientation out of the statute, not to put it in.”

Raising another aspect to the analysis, the Court of Appeals also discussed an argument raised by Hively referencing the Supreme Court’s decision in Loving v. Virginia, 388 U.S. 1 (1967).  This is the case that held that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”  Ms Hively argued that her association with another woman was the cause of the discriminatory actions she experienced, which the Court credited in its decision.  As we see more of these decisions come out of Courts of Appeals, it becomes more and more likely that the Supreme Court will address whether Title VII includes sexual orientation claims as sex discrimination claims in the near future.  Sumner@FELTG.com

Bumping the Innocent Incumbent as a Remedy in Employment Discrimination Cases

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By Deryn Sumner, April 19, 2017

Our mantra for fashioning remedies in employment discrimination cases is that the victim of discrimination should be placed, as closely as possible, in the position he or she held prior to the discrimination.  In claims of discriminatory non-selection, this typically means giving the employee the position he or she applied for, or at least a substantially equivalent one, with the agency, along with the back pay and associated benefits, including any step increases or career ladder increases that would have been earned if the employee had received the position when she or he should have. So what happens when the position at issue is unique or one of a kind?  Well, since the goal is to get the complainant to where he or she should have been, this can sometimes mean bumping or removing the person who got the job, likely through no fault of their own, so that the complainant can have it.

In 2016, the Commission considered such a case and ordered that the agency must bump the incumbent in order to remedy the discriminatory act.  In Toney E. v. Department of Agriculture, EEOC Appeal No. 0420150019 (March 18, 2016), the petitioner worked as a GS-11 academic program manager at a Job Corps Center in Bristol, Tennessee and filed an EEO complaint alleging discrimination when the agency did not select him for any of four center director positions for Job Corps Centers located in Coeburn, Virginia; Bristol, Tennessee; Franklin, North Carolina; and Pisgah, North Carolina, respectively. The agency issued a Final Agency Decision (FAD) finding it failed to articulate a legitimate, non-discriminatory reason for not selecting the petitioner and ordered he be promoted.

There is a substantial procedural history here, but relevant to this discussion, the Commission issued direction in Request No. 0520140443 (February 6, 2015) that the petitioner “be awarded the position of Center Director, GS-0340-13, or a substantially equivalent position. The Commission has consistently held that a substantially equivalent position is one that is similar in duties, responsibilities, and location (reasonable commuting distance) to the position for which the complainant originally applied.”

The agency subsequently offered the complainant placement in center director positions in Swan, Washington; Ozark, Arkansas; Golconda, Illinois; or Laona, Wisconsin.  The agency argued that this action placed it in compliance and noted that several Federal circuit courts have found that displacing an innocent employee with one who would otherwise have had the position but for illegal discrimination is generally not an appropriate remedy.

The petitioner filed a petition for enforcement seeking placement into the center director position in Bristol, Tennessee. After consideration of this petition, the Commission concluded that the center director positions offered by the agency were not substantially equivalent because they “were not in geographic/commuting locations remotely close to the positions that Petitioner was discriminatorily denied…The Agency maintains that it is unable to offer Petitioner the Bristol, Tennessee position because it is no longer vacant and is currently occupied by an incumbent employee who apparently was selected over Petitioner.  Although there may be some disagreement among the Federal circuits, case law from federal courts and the Commission recognizes the bumping of an incumbent employee as a possible remedy for discrimination.  The Commission also has previously held that the bumping of an incumbent is a permissible remedy when, in the absence of bumping, the petitioner’s relief would be unjustly inadequate.”

The Commission found that the agency’s actions were not sufficient to remedy the discrimination and the only remedy would be to bump the incumbent and place the complainant there.  I’m sure showing up to take over someone else’s job, who is no longer there through anything he or she did, can make for an awkward first day of work. Sumner@FELTG.com

Case Law Update: When Is an Employee “Regarded As” Disabled Post-ADAAA?

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By Deryn Sumner, March 15, 2017

The Americans With Disabilities Act Amendments Act (ADAAA) became effective on January 1, 2009 and did not apply to cases arising prior to that date.  The internet tells me that in 2009, we were aghast at Balloon Boy’s parents for tricking us into thinking a boy was floating away in a giant balloon, wondering how Tareq and Michaele Salahi managed to sneak into a White House State Dinner, and applauding Captain “Sully” Sullenberger for safely landing a plane on the Hudson River.

So, yeah, it’s been a long time since the ADAAA was enacted, but we are now finally seeing substantive decisions applying it from of the EEOC’s Office of Federal Operations.  A notable recent decision is Elden R. v. Department of Interior, EEOC Appeal No. 0120122672 (February 24, 2017).  The Commission addressed an appeal the complainant filed on June 11, 2012 (while the rest of us were readying for the 2012 Summer Olympics in London, remember those?) and found that his termination in January 2011 was discriminatory because the agency “regarded him” as having a disability.

The agency selected the complainant for a GS-05 Wildlife Refuge Specialist position, which required him to work collateral law enforcement duties.  While serving in the military, the complainant suffered neck and back injuries which prevented him from being able to sit on the floor with his legs straight in front of him and reach his fingers beyond his toes.  He passed his initial physical examination and the physician concluded he could perform the duties of the job.  However, he wasn’t able to successfully complete one part of the Physical Efficiency Battery examination (PEB) that was required in order to attend the Federal Law Enforcement Training Center in Glynco, Georgia.  That one part?  The sit-and-reach portion.

It was recommended that he be allowed to work out three times a week under the agency’s policy allowing certain employees to use work hours for exercise and try the test again in a few weeks. His requests were denied and after he informed his chain of command about his concerns about meeting the sit-and-reach requirements and requested a waiver, he received notification that the agency was going to terminate him from the job.  Notably, during a meeting to discuss the issue prior to his termination, the complainant’s supervisor told him that he was “highly disappointed” that complainant did not reveal his “disability” during his interview for the job.

The complainant filed an EEO complaint (after a brief sojourn to the MSPB where his appeal was dismissed for lack of standing as he was a probationary employee) and alleged that the agency unlawfully perceived him as an individual with a disability when it terminated him.  Citing legislative history, the Commission agreed and took this opportunity to provide a nice summary of the Congressional intent behind the expansion of coverage in the ADAAA: “[T]he ADA Amendments Act broadened the application of the ‘regarded as’ prong of the definition of disability. In doing so, Congress rejected court decisions that had required an individual to establish that a covered entity perceived him or her to have an impairment that substantially limited a major life activity. This provision is designed to restore Congress’s intent to allow individuals to establish coverage under the ‘regarded as’ prong by showing that they were treated adversely because of an impairment, without having to establish the covered entity’s beliefs concerning the severity of the impairment” (internal citations omitted).

As for Elden, the Commission found that he met all of the qualifications for the position except the requirement to “sit and reach,” and as such, he was qualified to hold the position.  The Commission then turned to whether or not there was a job-related and consistent with business necessity reason for Elden to be able to sit and reach, and found nothing in the record about how being able to reach over one’s toes with legs outstretched related to any job function of a Wildlife Refuge Specialist. Noting that the agency had provided waivers to the “sit and reach” requirement for other individuals in substantially similar positions, the Commission found the termination was discriminatory and awarded relief, including reinstatement and back pay from his termination more than six years prior.  Sumner@FELTG.com

[Editor’s Note:  It’s decisions like this that on occasion make me think I am just not smart enough to understand how EEOC approaches legal analysis. The Americans with Disabilities Act defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities.” Therefore, in my limited brain capacity, to be found to “regard” someone with a disability, it would seem that we need to find an agency action based on a “limitation on a major life activity.” The agency here acted based on this individual’s inability to sit on the floor with legs outstretched, and then reach with his fingers beyond the tips of his toes. If that action is a “major life activity” for any of you readers out there, you are living a much more exciting life than am I. The fact that an uninformed layperson calls a medical limitation a “disability” does not make it a “disability” under law.  I’m just saying …   – Wiley]

Filing with the EEOC’s Office of Federal Operations: An Appealing Proposition?

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By Deryn Sumner, March 15, 2017

Over the many months I’ve contributed to this fine publication, I’ve discussed a lot of decisions issued by the EEOC’s Office of Federal Operations, but not a lot about the process of filing an appeal with the Office of Federal Operations.  So let’s dive in, shall we?

Complainants can file appeals of agency decisions to dismiss their formal complaints, so long as all of the claims in the formal complaint are dismissed. If not, then the agency investigates the remaining claims and the complainant can challenge the dismissal of the dismissed claims by filing a comment on partial dismissal before the administrative judge once the investigation is completed.  Complainants can also file appeals:

  • From final agency decisions issued on the merits of their cases,
  • From final actions issued by agencies affirming unfavorable decisions from administrative judges,
  • On decisions for relief including petitions for attorneys’ fees and awards of compensatory damages and other remedies, and
  • On allegations of breaches of settlement agreements.

Agencies are required to file appeals to EEOC’s Office of Federal Operations whenever they issue final actions which fail to fully adopt the administrative judge’s decision, under 29 C.F.R. 1614.110(a).  Agencies can also challenge findings from administrative judges regarding liability and/or remedies.

Each party gets 30 days to notice the appeal and 30 days from that date to file a brief in support of the appeal.  Agencies are required to provide a complete copy of the complaint. Failure to do so can lead to sanctions, up to and including default judgment.

If the Office of Federal Operations does not rule in your side’s favor, you can file a request for reconsideration of the decision.  The standard, set out in 29 C.F.R. 1614.405(c), requires a showing that the Commission’s decision had a clearly erroneous interpretation of material fact, a clearly erroneous interpretation of material law, or will have “a substantial impact on the policies, practices, or operations of the agency.”  The Commission ruled on more than 600 of these requests in 2016 alone and very rarely will grant a request for reconsideration.  In some instances, the Commission will realize that it erroneously relied upon wrong law or fact but will deny the request for reconsideration and re-open the decision on its own to correct the mistake (it has happened to me and is an amusing, but ultimately favorable, result).

Timeframes for how long it takes to get a decision from the Office of Federal Operations vary.  Looking at 2016 decisions, some decisions on procedural dismissals were issued only about 4-5 months after being filed.  However, more substantive cases can take longer.  In the Elden R. v. Department of Interior case I discuss elsewhere in this month’s newsletter, it took 4.5 years to get a decision on the merits.  Sumner@FELTG.com

Official Time: What’s Considered Reasonable?

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By Deryn Sumner, March 15, 2017

Under the EEOC’s regulations at 29 C.F.R. 1614.605(b), complainants who are employees of the agency are allowed “a reasonable amount of official time” while on duty hours to do tasks relating to their EEO complaints.  This includes time to prepare the formal complaint, respond to requests for affidavits from EEO investigators, and respond to Interrogatories, Document Requests, and Requests for Admissions during discovery once the case is in the hearing stage.  Any time spent by the complainant as required by the administrative judge or the agency representative is typically considered inherently reasonable. This time includes attending fact-finding investigations and interviews with EEO investigators, mediations, settlement conferences, prehearing conferences and other prehearing proceedings, and the hearing itself.

But what about time spent not in the presence of the administrative judge or agency representative, such as drafting responses to an affidavit or working on an appeal?  What is considered reasonable in those circumstances?  Some agencies have internal guidance on how many hours of official time supervisors should grant employees for various aspects of processing their EEO complaints.  In responding to requests for official time, or defending against claims that reasonable official time was not granted, you should check to see if your agency has such internal guidance.  And of course, we can look to decisions from the EEOC’s Office of Federal Operations to further guide us on the amount of official time considered reasonable to grant.

Let’s look at a couple recent decisions.

In Virginia K. v. Department of Treasury, EEOC Appeal No. 0120142662 (December 28, 2016), the Commission looked at how many hours of official time were reasonable to grant to a complainant who needed to respond to 80 questions from the EEO investigator.  The complainant requested 80 hours, I guess presuming that each question would take an hour to answer.  The agency found six hours of official time to be more appropriate.  On appeal, the Commission determined that 15 hours of official time was the right amount, stating, “Some questions were for duplicate information, i.e., Complainant’s name, position held, the identity of her supervisors, and her past EEO activity. Complainant was able to answer a number of questions with one word answers or short responses. Nevertheless, there were a large volume of questions. A number of them solicited information in detail, and some would likely require Complainant to gather and review documents.”  The Commission also factored into its determination as to the appropriate number of official hours the fact that the agency needed complainant to perform her normal job duties, she was behind on time sensitive work, and she only worked 24 hours per week which, the Commission found, “affects the amount of official time that is reasonable.”  The Commission cured the agency’s act in only granting six hours by ordering restoration of nine hours of administrative leave to the complainant’s leave balances.

Okay, so depending on how many questions the EEO investigator asks a complainant to answer (and I’ve seen some that rival SF-86 forms), as many as 15 hours of official time can be considered reasonable.  And what about drafting appeal briefs?  The EEOC’s regulations permit complainants to designate other federal employees as their representatives and allows them reasonable amounts of official time to work on the complaint.  In Sheryl S. v. Social Security Administration, EEOC Appeal No. 0120150144 (November 1, 2016), the complainant’s representative stated that it took him between 20 and 26 hours to prepare an appeal to the Office of Federal Operations (which I presume also included a brief in support of the appeal, not just the notice) but conceded that it was his first time preparing an appeal and may have taken longer than necessary.  Noting that the appeal did not relate to complex factual or legal issues, the Commission affirmed the agency’s grant of 11.5 hours of official time as reasonable.  Sumner@FELTG.com