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OFO Misconstrues Standard for Grant of Summary Judgment

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By Deryn Sumner

Although most decisions issued by the EEOC’s Office of Federal Operations affirming grants of summary judgment by administrative judges are worthy of no more than a simple skim, the recent decision of Juanita K. v. Department of Homeland Security, EEOC No. 0120143236 (October 21, 2016) caught my eye because, based on the limited information provided in the decision, I think the Commission got it wrong.

The facts, as presented by the EEOC in the decision, are as follows.  Ms K. worked as a Voluntary Agency Specialist for FEMA.  (After some Internet sleuthing, it appears a Voluntary Agency Specialist is the interface between FEMA and volunteer organizations after national disasters occur).  After the Agency did not reappoint her to her position, she filed an EEO complaint alleging race, age, and sex discrimination, and retaliation.  After the Agency completed an investigation and the complainant requested a hearing, the administrative judge granted summary judgment in the Agency’s favor.  The administrative judge found that there were no material facts in genuine dispute and the Agency had established legitimate, non-discriminatory reasons for its actions.  As we know, summary judgment is only appropriate when there are no material facts in genuine dispute and the factfinder should construe the facts in the non-moving party’s favor when considering these facts.

Ms K. appealed the final action adopting the grant of summary judgment.  And on reading the Commission’s decision, it seems like Ms K. had evidence of pretext.  Here’s what we know, directly from the Commission’s decision:

Here, according to the Agency, Complainant was not reappointed because Complainant exhibited conduct which was not “conducive” to the workplace, including communicating with coworkers in a tone that was “rude and demanding” and “threatening.” This is a legitimate, nondiscriminatory reason for the Agency’s action.

In an effort to identify a genuine issue of material fact, Complainant points out that when she asked why she had not been reappointed, her supervisor initially stated that “staffing needs” made reductions in force necessary, never mentioning any problem with Complainant’s conduct. As Complainant characterizes it, her supervisor’s explanation was “inconsistent with the rationale she latter supplied to allegedly support the non-reappointment.” The Agency acknowledges that its initial explanation for its action was false. It explains that the Agency official who gave this explanation was not candid about the true reasons for not reappointing Complainant because she wished to avoid a confrontation with Complainant. Complainant argues that the inconsistency between the Agency’s first explanation and what it now claims is the true reason for its action creates a genuine issue of material fact precluding summary judgment.

So the Agency admits that it initially gave the complainant a false reason for not reappointing her to the position and later gave her a different reason.  Sounds like pretext to me, and a fact that should at least get Ms K. to a hearing.  But the Commission disagreed, stating:

Complainant’s position is not well taken. The fact that the Agency initially gave a false explanation does not necessarily provide support for a finding of discriminatory animus. As the Supreme Court observed in Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 148 (2000) “[i]f the circumstances show that the defendant gave the false explanation to conceal something other than discrimination, the inference of discrimination will be weak or nonexistent” (internal citations omitted). Here, the only evidence as to motivation shows that the Agency gave a false explanation in an effort to avoid a confrontation with Complainant, whom Complainant’s colleagues regarded as rude, demanding and threatening. The inference of discrimination is nonexistent. No genuine issue of material fact requiring a hearing is presented.

Now again, I don’t know anything about this case beyond what is contained in the five-page decision from the Commission.  And I’m not saying that Ms K. can ultimately establish that the Agency did not reappoint her because of discrimination.  But based on what is in this decision, I do think this was a case where a hearing would be appropriate so the judge could make credibility findings, rather than simply dismiss the case on summary judgment.  The Commission appears to take at face value that Ms K. was in fact “rude, demanding and threatening” without requiring an actual showing.  I think the Commission got this one wrong.  Sumner@FELTG.com

Appendix Q to MD-110 Lists Exactly What Agencies Need to Provide to Prove Compliance

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By Deryn Sumner

We’ve talked a few times in this space about the changes the Commission made to Management Directive 110 in August 2015.  One new addition we haven’t yet discussed is the addition of Appendix Q, a chart that provides examples of the types of evidence an agency should provide to establish proof of compliance with the different types of relief commonly ordered in Commission decisions.  As someone who represents both employees and agencies in federal sector EEO complaints, I know firsthand how compliance issues can linger long after the Commission has ordered the agency to implement remedies.  Both sides are more than ready to move on, but are stuck in a back-and-forth to ensure everything has been implemented and finalized.  Even though the Commission orders the relief to be implemented, there is often room for disagreement on the details.

Take for example, back pay.  A standard order from the Commission regarding back pay reads as follows:

The Agency shall calculate the amount of lost wages, including interest, for the time periods of February 13, 2006 to August 2006; and September 2007 to January 18, 2009. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision is issued. The Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. The Agency shall provide Complainant with its specific reasoning and calculations on how it reached this amount of back pay. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision”.

This specific language comes from Michelle G. v. Department of Navy, Appeal No. 0120160822 (October 20, 2016), although it reads like many back pay orders.  There are lots of potential areas of confusion in such an order: what if the employee worked in a position with overtime, shift differentials, or would have received a step increase during the time period in question?  Often the agency issues a check for a lump sum to the complainant without an explanation as to how the agency arrived at that amount. If he or she cannot figure it out or cannot get a clear explanation from the agency, the only option is to file a petition for enforcement.  And the most common remedy issued by the Commission in ruling on such petitions for enforcement is to order the agency to provide a detailed accounting of how it calculated the back pay.

Appendix Q attempts to reduce the number of compliance actions by providing a list of documents that an agency should provide for each type of compliance action.  For back pay, there are four types of documents listed:

  1. Computer printouts or payroll documents delineating gross back pay before mitigation and interest, and
  2. Copies of any cancelled checks issued; or a copy of a print screen showing an electronic funds transfer.
  3. Narrative statement by an appropriate agency official of total monies paid. An appropriate agency official must be one to know with reasonable certainty that the payment was made. (Last resort)
  4. Documentation must include total monies paid, to whom, and when.

To look at another example where compliance issues crop up, in order to establish compliance with an order to provide training, Appendix Q states that the agency should provide:

  1. Attendance roster at training session(s) or a narrative statement by an appropriate agency official confirming training hours, course titles and content, if necessary.
  2. Course description providing some indication that the training was appropriate for the discrimination found or commensurate with the order.

Agencies should utilize this Appendix to put everyone on the same page regarding how an agency is implementing a Commission order.  You can access Appendix Q here: https://www.eeoc.gov/federal/directives/md-110_appendix_q.cfm

Sumner@FELTG.com

Seventh Circuit Grants Petition for En Banc Review in Sexual Orientation Case

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By Deryn Sumner

As we’ve discussed a few times in this space, in July 2015, the EEOC’s Office of Federal Operations made headlines when it declared in Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015) that claims of sexual orientation were simply claims of sex discrimination, stated claims under Title VII, and should be processed by federal agencies under existing procedures.  The EEOC made further headlines earlier this year when it filed two lawsuits against private sector employers alleging sex discrimination against gay employees and relying upon Baldwin to argue the cases had standing.  The plaintiff-side employment law community seized upon this, to varying degrees of success.

However, there was a recent victory in the form of the Court of Appeals for the Seventh Circuit’s grant of a request for a rehearing en banc in the case of Hively v. Ivy Tech Community College.  There, a part-time adjunct professor argued she was denied full-time employment and subsequent promotions because of her sexual orientation, and she filed a lawsuit under Title VII.  The District Court granted the College’s Motion to Dismiss, which the Court of Appeals affirmed in its July 28, 2016 decision.  See Hively, 830 F.3d 698 (7th Cir. 2016). That decision included extensive discussion of the surrounding law relating to sexual orientation claims, which up until recently had been focused on the idea of sexual stereotyping.  The Court noted that Congress had not included sexual orientation as a basis under Title VII, and recent attempts at amendment had been unsuccessful.

The decision concluded, “Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, (see Baldwin, 2015 WL 4397641 at **5, 10); many of the federal courts to consider the matter have stated that they do not condone it (see, e.g., Vickers, 453 F.3d at 764–65; Bibby, 260 F.3d at 265; Simonton, 232 F.3d at 35; Higgins, 194 F.3d at 259; Rene, 243 F.3d at 1209, (Hug, J., dissenting); Kay, 142 Fed.Appx. at 51; Silva, 2000 WL 525573, at *1); and this court undoubtedly does not condone it (see Ulane, 742 F.2d at 1084). But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is AFFIRMED.” Id .at 718. 

Seems pretty final, huh.  However, the Court of Appeals just last week granted the appellant’s petition for an en banc rehearing.  Such requests are very rarely granted and this seems to signal that there’s more to come from the Seventh Circuit on this issue.  Oral argument has been scheduled for November 30, 2016 and we’ll keep you updated on this and other developments in Title VII case law.  Sumner@FELTG.com

OFO Awards $8,000 in Compensatory Damages Where Complainant Submitted Evidence of Substantial Harm but Failed to Link It to Agency’s Actions

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By Deryn Sumner

Successful claims for non-pecuniary compensatory damages need two things: evidence of harm and evidence of a connection between the harm and the agency’s actions.  Last month, the Office of Federal Operations issued a decision that clearly articulates the need for complainants to link the harm alleged to the agency’s actions found to be discriminatory.  In Kit R. v. Department of Army, Appeal No. 0120140952 (September 23, 2016), the complainant had great evidence of harm but failed to meet that second requirement.

After establishing that her performance appraisal had been downgraded in retaliation for her prior EEO activity, the complainant submitted statements from herself, her physician, and two of her children.  And on its face, it’s great evidence in support of a large award of compensatory damages.  The complainant stated that her supervisor’s actions caused her to feel angry, insecure, have lowered self-esteem, negatively impacted her sex life, and caused her not to be able to sleep at night but to sleep all day.  Her children, whose ages were not identified in the decision, stated that she did not speak to them for months at a time, that she would use profanity for no reason, her eating habits were impacted, and she would “sleep all day in a very dark house.” Her physician submitted a statement that the complainant slept for approximately four hours every night, experienced fatigue, and even had suicidal thoughts.

Based on this evidence, you may be thinking that the agency would be on the hook for somewhere between $45,000 to $100,000 in compensatory damages.  But the Commission awarded $8,000.  Although there was a lot of evidence of harm, the Commission concluded, “after reviewing these documents, we find that Complainant generally failed to link the retaliatory appraisal to the symptoms and conditions she reported.” Thus, the Commission found an award of $8,000 to be appropriate for the “generalized assertion that she was distressed because of the appraisal.”

It can be very hard to challenge allegations of harm raised by complainants and their friends, family members, and medical care providers.  However, agencies can often effectively argue for reduced awards where, as here, the complainant failed to establish a sufficient link between the harm and the agency’s actions found to be discriminatory and/or retaliatory. Sumner@FELTG.com

What Do We Mean When We Talk About “Qualified Individuals with Disabilities”?

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By Deryn Sumner

A few weeks ago, I had the pleasure of teaching FELTG’s biannual EEOC Law Week alongside Ernie Hadley and Gary Gilbert.  On Wednesday, we covered disability discrimination law and focused much of our time on talking about when one is considered disabled, for purposes of making a claim of disability discrimination and the law surrounding requests for reasonable accommodations.  As Ernie likes to say, when analyzing disability discrimination claims, there are no points for creativity.  You should walk through each part of the analysis in order, starting with whether the employee in question is an individual with a disability.  After passage and implementation of the ADAAA more than seven years ago, that analysis has become rather perfunctory as the definition of what constitutes a major life activity was widely expanded, and Congress took great pains to highlight that the purpose of the Act was for broad coverage of those who need its protections.

The next step in the analysis is whether the employee in question is a qualified individual with a disability.  Because we received some questions about this part of the analysis during our training, I wanted to dedicate some space here to explain what we mean when we talk about “qualified.”

The Commission’s regulations at 29 CFR 1630.2(m) define qualified as “the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.”

Most of this definition is straightforward.  An employee, or applicant for a position, must be qualified by way of having the right skillset, prior experience, and whatever educational requirements are needed.  The government has no obligation to place unqualified individuals into positions, even if they are protected by virtue of having a disability.

The part that trips up agencies is that an individual can be qualified if he or she can perform the position with accommodation.  “But wait!” you exclaim.  “We were told not to skip any steps in our analysis and now we’re focused on reasonable accommodation before we’ve determined if the employee is actually entitled to one!”  Yes, that’s true, and I don’t have a good response for you as to why “reasonable accommodation,” which isn’t actually defined until later in the sub-section, is used to define “qualified.” But it is part of the definition and must be considered in looking at whether the employee is a qualified individual with a disability.

The second part that can create trouble is the last phrase: “essential functions” of the position at issue.  What is an essential function?  Again, let’s look at the definition in the regulation at 29 CFR 1630.2(n):

(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position.

(2) A job function may be considered essential for any of several reasons, including but not limited to the following:

(i) The function may be essential because the reason the position exists is to perform that function;

(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

(3) Evidence of whether a particular function is essential includes, but is not limited to:

(i) The employer’s judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;

(iii) The amount of time spent on the job performing the function;

(iv) The consequences of not requiring the incumbent to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs.

Note that the definition contains a variety of factors, none of which are, “I dunno, whatever the employee’s position description says.”  The employer must actually think about what the individual does from day-to-day in his or her position.  Also note that the definition envisions employees holding the same position in different duty locations to have different essential functions. As we discuss, it’s a heck of a lot easier to determine a job duty is not essential if there are thousands of other employees in a facility who could perform the job duty than someone in a geographically-remote and sparsely-populated workspace.

Employers most often run into problems by failing to actually think about and define the essential job duties when reviewing accommodation requests.  Keep these definitions in mind to make sure your analysis is appropriate. Sumner@FELTG.com

EEOC Issues New Guidance on Retaliation Claims

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By Deryn Sumner

Last month, the EEOC issued revised Enforcement Guidance on Retaliation and Related Issues.  The Commission last issued such guidance in 1998.  Since then, Congress passed the Americans with Disabilities Act Amendments Act, which came into effect on January 1, 2009, as well as the Genetic Information Nondiscrimination Act, the Lilly Ledbetter Fair Pay Act, and other laws which cross paths with claims of retaliation.  Additionally, the Supreme Court issued its decision in Burlington Northern v. White, 548 U.S. 53 (2006), which addressed claims of retaliation in the workplace and held that “context matters” in determining whether an employee’s rights have been chilled because of engagement in protected EEO activity.  So, it’s good to see that the Commission has updated Enforcement Guidance to address these changes.  Just as it did with the Enforcement Guidance issued regarding reasonable accommodation claims, the Commission concurrently issued a question and answer publication to accompany the Enforcement Guidance.

The press release issued by the Commission to announce the publication of this Enforcement Guidance includes a quote from the EEOC’s Chair, Jenny R. Yang, noting that retaliation is asserted in almost 45 percent of charges received by the EEOC, which makes it the most frequently alleged basis of retaliation.  Regarding the federal sector complaints process, the press release noted that retaliation has been the most frequent basis alleged since 2008, and that findings of discrimination on the basis of retaliation comprise between 42 and 53 percent of all findings from 2009 to 2015.  Speaking as someone who reviews the decisions issued by the Office of Federal Operations each year, this statistic does not surprise me.

As we teach during EEOC Law Week, managers often falter after receiving notice that an employee has filed an EEO complaint. Remember that protected activity includes serving as a witness for a co-worker’s complaint, filing your own complaint (including starting the informal counseling process), and requesting reasonable accommodation.  Even if the underlying activity is not found to have merit, an employee can still succeed on a subsequent complaint if he or she can show that agency management took actions to treat the employee differently after learning of the protected activity, or made comments that had the result or intent of chilling the employee’s engagement in protected activity.  When considering claims of retaliation, it’s important to remember two key points.  First, as I’ve discussed in this space in January of this year, what states a claim of retaliation under the Commission’s case law is broader than what states a claim of discrimination.  That is to say, a claim that could be dismissed for failure to state a claim under any other basis could feasibly state a claim of retaliation.

The updated Enforcement Guidance covers what protected activity is, the applicable legal analysis to use to analyze claims of retaliation, the remedies available to successful complainants who file claims of retaliation, and guidance regarding how interference with the exercising of rights under the ADA constitute retaliation.  The Enforcement Guidance also includes specific examples of what constitutes an adverse employment action. The complete Enforcement Guidance is available on the Commission’s website here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm.   Sumner@FELTG.com

Fox News Could Have Used This Report a Few Months Ago

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By Deryn Sumner

My colleagues and I are never going to see settlements in the range of $20 million dollars, as Fox News agreed to pay out a few days ago, after being hit with a sexual harassment lawsuit filed by Gretchen Carlson and others.  But harassment in the federal workplace does exist, even if we’re not dealing with such high numbers in settlements.  As I mentioned in one of my other newsletter articles this month, the EEOC issued revised Enforcement Guidance on Retaliation in August 2016.  The Commission has had a busy summer, as it also issued a report of the “Select Task Force on the Study of Harassment in the Workplace” in June 2016.  The report was issued by two of the EEOC’s Commissioners, Chai R. Feldblum and Victoria A. Lipnic.  (Hat tip to one of my Firm’s law clerks, Chauna Pervis, who clerked for Commissioner Feldblum this summer and alerted me to the report).

The report is extensive, totaling more than 150 pages, and walks through two main topics: “What We Know About Harassment in the Workplace” and “Preventing Harassment in The Workplace.”  The Commissioners end the report by providing a summary of recommendations and checklists for employers.  Although this space is too limited to delve into all of this report, I did want to highlight some points that I think are most useful for our FELTG audience.

The report notes that it focused on a broad view of harassment, that is, claims of being treated poorly in the workplace because of membership in a protected class.  The report is careful to note that under the legal framework, not all of these allegations examined would constitute actionable harassment.  That is, that some of the allegations would not be sufficiently severe or pervasive to state successful claims.

The report notes that during fiscal year 2015, federal employees filed 6,741 complaints alleging harassment, which constituted 43% of all complaints filed by federal employees.  (Careful readers may wonder how the Commission can represent that formal complaints alleging retaliation constitute the most frequent basis alleged.)  To that I have two words: retaliatory harassment.  Okay, a few more words for those in the back: retaliation is a basis and harassment is a legal theory under which you have to establish treatment motivated by membership in a protected class, i.e. basis.

Some more fun statistics, straight from the report. Of the total number of complaints, filed in FY2015 by federal employees alleging harassment, approximately:

  • 36% alleged harassment on the basis of race,
  • 34% alleged harassment on the basis of disability,
  • 26% alleged harassment on the basis of age,
  • 12% alleged harassment on the basis of national origin,
  • 7% alleged harassment on the basis of sex, and
  • 5% alleged harassment on the basis of religion

The report focuses on the business case for addressing claims of harassment, including the cost of resolving the viable claims (and, let’s be honest, the nuisance ones as well), as well as the costs to productivity and morale caused by harassment, the desire to promote retention of good employees, and the harm to a company’s reputation when claims of harassment go public.

The report even cites to a 1994 MSPB report on Sexual Harassment in the Federal Workplace to illustrate the point of lost productivity:

Imagine an employee who’s being bothered by a coworker who leers at her or makes comments full of innuendo or double entendres, or who tells jokes that are simply inappropriate in a work setting. The time this employee spends worrying about the coworker, the time she spends confiding in her office mate about the latest off-color remark, the time she spends walking the long way to the photocopier to avoid passing his desk, is all time that sexual harassment steals from all of us who pay taxes.

Adding up those minutes and multiplying by weeks and months begins to paint a picture of how costly sexual harassment is. Increase this one individual’s lost time by the thousands of cases like this in a year, and the waste begins to look enormous. And this may well be a case that doesn’t even come close to being considered illegal discrimination by the courts. Whether or not they’re illegal, these situations are expensive.

No report of a taskforce would be complete without recommendations and this one has many, including suggestions for revising training (noting that many training programs are focused on allowing employers to assert affirmative defenses to claims and not to prevent harassment), changing a culture of a workplace from the top down to be clear that harassment is not tolerated (although it includes an admonition against “zero tolerance” policies, noting that they are often ineffective), and tips to address conduct carried out through social media.

The complete report is available here: https://www.eeoc.gov/eeoc/task_force/harassment/index.cfm. Sumner@FELTG.com  

Agency Effectively Accommodated Employee with Sensitivity to Smells

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By Deryn Sumner

Sometimes during EEOC Law Week and webinars, we’ll get questions about if and how agencies can accommodate employees with chemical sensitivities.  EEOC’s Office of Federal Operations recently issued an interesting decision in Martina S. v. Department of Defense, Appeal No. 0120140227 (August 19, 2016) addressing allegations that the Agency failed to effectively accommodate an employee who was sensitive to scents.  Martina, who as we know because of EEOC’s naming convention is not actually named Martina [Editor’s Note: Or, is she? Hmmm.], worked as a Security Specialist in an office in Washington, D.C. that underwent construction.  She complained that the fumes and dust made her sick and requested to be able to work in another office space, but the Agency conducted tests and determined the space was safe and denied her request because of the sensitive nature of her job.  The Agency did ask the co-workers not to spray anything in the office. Also of note, Martina did not, at the time, respond to requests for medical documentation.

However, more than a year later, Martina did provide a medical note, stating she was “intolerant of stray perfumes or scents” and submitted her own list of items she was allergic to, which included cleaning supplies, markers, and Lysol. Her supervisor stated that if Martina provided medical documentation to support this list, she would send a message to staff members.  But again, Martina did not provide medical documentation.  Fast forward two years when a co-worker sprayed Lysol on her telephone, causing Martina to leave the building.  After that incident, Martina submitted a medical note saying she was “intolerant to strong fumes and odors” and “should not be exposed to aerosols.”

After another incident involving Lysol which caused Martina to go to the hospital, she submitted a request to be moved to another office location and included a letter from her doctor stating that she suffered from “reactive airway disease.”  The Agency, in coordination with the occupational health office, determined that Martina was not disabled as she only experienced symptoms in one location, and could work there if there were no strong perfumes or Lysol. Based on that, the Agency denied the request for relocation to another office space.

Martina filed an EEO complaint alleging harassment and failure to accommodate, and after an investigation, an administrative judge granted summary judgment in the Agency’s favor.  On appeal, the Office of Federal Operations agreed.  The Commission found that the initial medical documentation Martina submitted did not show that she was an individual with a disability because it did not state that she had an impairment or how she was substantially limited in a major life activity.  However, assuming for the sake of argument that Martina did provide sufficient medical documentation, the Commission found that the Agency did accommodate her by instructing employees not to use strong smelling products and Lysol, which included posting signs about the prohibition of their use.  The Commission, noting that Martina was only entitled to an effective accommodation and not the one of her choice, assuming she was entitled to an accommodation at all, found that the Agency was not liable for the claims raised in Martina’s formal complaint.

The lessons to be learned from this case include making sure that employees with similar allergies or sensitivities provide effective documentation and considering alternate accommodations that may be effective to accommodate such medical conditions. Sumner@FELTG.com

OFO Applies Supreme Court’s Analysis in Young v. UPS to Federal Sector EEO Cases

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By Deryn Sumner

Last year, the Supreme Court issued its decision in Young v. UPS, 575 U.S. __ (2015), to provide guidance as to how claims under the Pregnancy Discrimination Act should be analyzed.  In a 6-3 decision authored by Justice Breyer, the Supreme Court held that the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) should apply to claims raised under the Pregnancy Discrimination Act.  Thus, just as in other claims involving allegations of disparate treatment motivated by discrimination, the employee bringing the complaint must first establish a prima facie claim by showing membership in a protected class, an adverse employment action, and some inference to support that the adverse employment action is related to the employee’s membership in the protected class.  If the employee makes such a showing, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action identified, and then the burden shifts once again back to the employee to show that the reasons given are pretext for discrimination.  Given the similarities in claims of employment discrimination raised under the Pregnancy Discrimination Act to cases raised under Title VII and accompanying statutes, the decision in Young instructing courts to apply this framework to claims of pregnancy discrimination made a lot of sense.  At its core, all of these claims concern an employee alleging he or she is being treated differently because of membership in a class determined to be protected by Congress.

However, it’s always nice to have case law applying Supreme Court framework to federal sector cases and last month, the Office of Federal Operations gave us just that in two cases issued on the same day.

In Roxane C. v. USPS, EEOC No. 0120131635 (July 19, 2016), the complainant alleged that the agency told her, an employee with medical restrictions related to pregnancy, that there was no work available within her restrictions and sent her home without pay. The EEOC found that an administrative judge improperly granted summary judgment in the agency’s favor because genuine issues of material fact remained as to how the agency treated those other employees who requested light duty, but who were not pregnant.  According to the decision, the evidence seemed to show that the agency may have provided work to those who had suffered on-the-job injuries, and thus also had restrictions requiring light duty.  The facts are remarkably similar to those in the Young case.  If true, it appears the complainant may have experienced disparate treatment as compared to others outside of her protected class, just the type of evidence the McDonnell Douglas framework envisioned.

And in the other decision issued that day concerning pregnancy discrimination, Andera P. v. USPS, EEOC No. 0120152639 (July 19, 2016), the complainant alleged she was terminated due to pregnancy for excessive absences for her use of 45 hours of leave during her probationary period.  The EEOC remanded the case for further investigation as to what specific accommodations were requested and not provided to the complainant, specific information regarding her medical restrictions, and whether similarly-situated, non-pregnant employees were allowed to use similar amounts of leave without being terminated.

Both decisions reference and apply the Young framework in remanding the cases for further proceedings.  Sumner@FELTG.com

Misinformation Runs Rampant When the Internet Attempts to Understand Federal Sector Processing

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By Deryn Sumner

Earlier this week, I spent a few minutes poking around the EEOC’s website to see if there was anything of interest to share with you, our FELTG newsletter audience.  I came across a press release titled, “What You Should Know about EEOC and Shelton D. v. U.S. Postal Service (Gadsden Flag case).”  The press release talked about a recent Office of Federal Operations decision.  As I’m always interested when federal sector cases make it to the EEOC’s newsroom, I read it with interest and ended up a bit bewildered.  See, Shelton D. is not a notable decision worthy of a press release.  It’s a case holding that an agency improperly dismissed a formal complaint for failing to state a claim, and ordering the agency to reinstate and investigate it.  The EEOC issues hundreds of these decisions every year.  So why did the EEOC see fit to issue a press release about this decision? https://www.eeoc.gov/eeoc/newsroom/wysk/gadsden-flag.cfm

Well, the case concerns a complainant’s allegation that the U.S. Postal Service created a hostile work environment based on race (African American) and retaliation for prior EEO activity when a co-worker repeatedly wore a hat with the Gadsden Flag on it (commonly known as the “Don’t Tread On Me” insignia), even after management counseled the co-worker not to do so, and subsequently photographed the complainant at work without the complainant’s permission.

The Postal Service dismissed the complaint for failure to state a claim, the complainant appealed, and the EEOC held that it did state a claim, and ordered the agency to investigate it.  As everyone familiar with federal sector EEO complaints processing knows, this does not mean that the EEOC found that harassment occurred, that the complainant’s claims currently or subsequently will have merit, or that the complainant is entitled to any relief.  The decision was simply a procedural reversal instructing the agency to conduct an investigation so that a record upon which a factfinder could determine if harassment occurred would be created.

But alas, unsupported outrage accounts for most of the Internet these days and those who somehow found out and wrote about the decision, simply put, had no idea what they were talking about.  When I searched for references to the decision, I got to see such inflammatory headlines as “Obama Bans Gadsden Flag” and “EEOC Holds Gadsden Flag Is Racist.”  Putting aside whether the flag is racist or not, the EEOC made no such determination in its remand of the complaint. The EEOC simply held that under the regulations at 29 CFR 1614.107, the complaint stated a claim that should be investigated.  And no, President Obama did not weigh in on the EEOC’s decision.

And now the kicker.  The OFO decision remanding the case for investigation was issued in June of 2014.  The decision that appears to have caused so much recent angst was the decision denying the agency’s request for reconsideration, again a simple procedural decision that the EEOC issues by the hundreds every year, which was issued on June 3, 2016.  Again, the EEOC’s June 2016 decision only instructed the agency to investigate the claims, and did not conclude that the actions alleged constituted actionable harassment.

How about we focus our outrage on more important things, like how the EEOC is so understaffed and overwhelmed that it takes almost three years to get a case remanded for investigation.  Sumner@FELTG.com