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Tips from the Other Side, Part 4

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By Meghan Droste, April 18, 2018

I just returned from a three-day FELTG training program with a fantastic group of EEO counselors and officers at an agency in Atlanta.  The course focused on various types of EEO writing, including acceptance and dismissal letters.  During the class we had a great discussion about timeliness and when it is ok to dismiss a claim as untimely.  Although all of my students seemed to be on top of the various intricacies of determining timeliness, one area in which I have seen confusion is the timeliness of claims regarding the denial of reasonable accommodations.  Too often agencies improperly dismiss reasonable accommodation claims as untimely because they fail to consider the ongoing nature of a need for an accommodation.

In many federal courts, the denial of an accommodation is a discrete act—it happens on one specific day and the clock starts ticking as soon as the employer notifies the employee of the denial.  The Commission takes a different approach.  In its Compliance Manual, the Commission explains that “because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it.”  See EEOC Compliance Manual, Section 2, “Threshold Issues,” EEOC Notice 915.003 (July 21, 2005).  As a denial of an accommodation is a recurring violation, the Commission has repeatedly reversed dismissals of claims when agencies have treated the specific denials as discrete acts.

An employee does not need to request an accommodation every day or every time the accommodation is needed to establish a continuing violation.  It is enough for the employee to allege an ongoing need for the accommodation that continues after the denial.  For example, in

Hunter v. Social Security Administration, the complainant requested the agency purchase a space heater as an accommodation after it removed her personal heater because it was not compliant with the agency’s electrical requirements.  See EEOC App. No. 0720070053 (February 16, 2012).  The agency denied the request, but the complainant continued to need the heater to address the symptoms of multiple conditions.  The agency then dismissed the failure to accommodate claim as untimely because the complainant contacted a counselor more than 45 days after the agency denied the request.  The Commission reversed the agency’s dismissal, finding that because the complainant expressed an ongoing need for the heater to the EEO counselor, there was sufficient information in the record to establish a potential continuing violation.

As I reminded my students this week, no one wants to have a case remanded.  It doesn’t look good for the agency, it can be a waste of resources, and it negatively impacts the complainant who has to wait even longer for a decision on the merits of her claim.  When reviewing formal complaints and drafting acceptance letters, be sure to keep in mind the ongoing nature of requests for accommodation. If you want more on this join FELTG in Washington, DC May 8-10 for the class Writing for the Win: Legal Writing in Federal Sector EEO Cases. Droste@FELTG.com

Settlement Agreements – The Devil is in the Details

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By Meghan Droste, March 14, 2018

Those of you who have read my previous articles will not be surprised to learn that I am fairly detailed-oriented.  Others may have a less flattering way of describing my occasionally obsessive interest in the details of things, but I like to think of it as a helpful trait.  It improves the outcome of my baking projects and can lead to some fun trivia about The West Wing, the history of the British monarchy, or the origins of the phrase “the devil is in the details” (apparently unknown).  It is also a good quality to have as a litigator.

The Commission recently provided us with a reminder of why the details can be so important when crafting and implementing a settlement agreement.  In Nick N. v. Department of Labor, EEOC App. No. 0120171267 (January 26, 2018), the agency could have avoided the headache of a breach allegation and a subsequent appeal if it had paid attention to the details.  In December 2015, the parties entered into a settlement agreement that provided that the agency would permanently reassign the complainant to the position of Senior Compliance Manager.  In an attempt to implement the agreement, the agency initially placed the complainant in a temporary Special Assistant position.  Special Assistant of course is not the same as Senior Compliance Manager, so the complainant’s counsel contacted the agency to request compliance with the agreement.  The agency then placed the complainant in a Compliance Manager position.

The complainant filed a breach allegation with the agency because of its failure to place him in a Senior Compliance Manager position.  The agency found there was no breach, concluding that it substantially complied with the agreement.  On review, the Commission concluded that the agency had not substantially complied with the agreement.  It noted that the agency had not provided a “satisfactory explanation” for its refusal to title the complainant’s position as Senior Compliance Manager.  It went on to conclude that “[t]he Agency has, without explanation, decided to ignore the express language of the settlement agreement and limit Complainant’s official title to either ‘Compliance Manager’ or simply contrive another title for [c]omplainant’s position.”  The Commission ordered the agency to place the complainant in a Senior Compliance Manager position or to provide “a clear explanation for any determination” that caused the agency to title the position as Compliance Manager and allow the complainant to accept the position or reject it and reinstate his complaint.

The agency could have avoided the time and expenses of addressing this issue if it had followed the specific details of the settlement agreement.  While one word might not seem like much, it can make a big difference. Droste@FELTG.com

Tips from the Other Side, Part 3

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By Meghan Droste, March 14, 2018

As spring approaches, notwithstanding the snow that some of you were fortunate enough to get in recent weeks, the stores are filled with Easter-themed candy.  My personal favorite is the chocolate egg filled with peanut butter.  It is truly the perfect balance of two perfect flavors.  Don’t believe me?  I’ll wait while you compare those to the standard peanut butter-filled chocolate cups.  See what I mean?  (I’ll trust that you do.)

Seeing, and trying to avoid eating, too many of these Easter egg candies brought to my mind the other kind of Easter egg – an unexpected feature or item that you might find in a movie, video game, or other media.  If you would like an example, Google the word “askew.”  You’ll find that the results page is tilted.  An Easter egg in this context is just another type of treat that you might stumble upon.  What does all of this have to do with the federal sector EEO process, you might ask?  Well, sometimes in the course of an investigation or discovery, I stumble upon what we can think of as an Easter egg – an additional, unexpected cause of action that neither I nor my client had any knowledge of at the outset of the complaint.  One good, and unfortunately still common, example is improperly stored medical documentation.

Agencies are required to maintain the confidentiality of any and all medical documentation that they collect from their employees.  This means that supervisors, reasonable accommodation coordinators, anyone who touches an employee’s medical documentation, must keep that information in a separate, confidential file.  The medical documentation should not be stored in the same file as performance evaluations, counseling memos, examples of the employee’s work product or anything else that someone might maintain regarding that employee.  There is no room for interpretation on this one–the information must be stored separately.

I frequently request copies of personnel files, including unofficial supervisory files, during the course of litigation.  Often times, there isn’t anything that either helps or hurts the case in any real way.  But every once in a while, I find out that the supervisor has comingled my client’s medical documentation with his or her notes about my client, or with other unrelated information.  When I find that, I automatically seek to amend the complaint, because this is a separate cause of action.

These types of claims are rarely going to end well for the agency.  A complainant does not need to prove discriminatory intent or establish that someone who should not have had access to the documentation actually saw it.  It is enough to show that someone improperly comingled the records.  See Mayo v. Dep’t of Justice, EEOC App. No. 0720120004 (October 24, 2012) (holding that “[t]he Agency’s failure to maintain Complainant’s medical information in separate medical files constitutes a violation of the Rehabilitation Act, even in the absence of an unauthorized disclosure”).

You can keep me from stumbling upon this kind of Easter egg by establishing a clear procedure for the storage of medical documentation and ensuring that everyone receives regular training on the procedure.  Feel free to send the chocolate and peanut butter kind my way!

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me: Droste@FELTG.com.

EEO Contact: No Mind Reading Required

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By Meghan Droste, February 14, 2018

The federal sector process is made up of many steps with many deadlines.  Complainants must do several things, most of which involve filling out forms, before their cases go to hearing before an EEOC administrative judge.  Even one missed step can mean the end of a complaint.  Perhaps the most important of these steps is making initial contact with the EEO office (or someone reasonably connected with it—a topic for another article) within 45 days of the last discriminatory event.  It seems so simple from an agency’s perspective—if the agency took the alleged discriminatory action more than 45 days before the complainant contacts an EEO counselor, it’s all over for the complainant.  Of course, it’s not always that simple.

As the Commission reminds us most recently in Shayne K. v. Department of Defense, EEOC Appeal No. 0120180070 (January 4, 2018), the 45-day clock actually starts from when the complainant knew, or should have known, that the discriminatory act occurred.  In examining these issues, the Commission applies a “reasonable suspicion” standard.  This means that the 45-day time period does not start until the complainant reasonably suspects that he or she is the victim of discrimination.

This still seems pretty easy, right?  In a non-selection case, for example, a complainant must contact a counselor within 45 days of learning that the agency selected another candidate.  Well, not necessarily.  The Shayne K. case is a good example of how that clock does not always start ticking right after the complainant becomes aware of the personnel action.  The agency notified the complainant on February 16, 2017 that it had selected someone else for the position at issue.  The agency did not, however, tell the complainant who it had selected.  The complainant learned on June 20, 2017—through the results of a FOIA request he filed in February—that the selectee was outside of the complainant’s protected class.  The complainant then contacted an EEO counselor on June 26, 2017.

The Commission held that the complainant’s EEO contact—130 days after he learned of the non-selection—was timely; because the complainant did not know the protected classes of the selectee until June, he could not have reasonably suspected that he was the victim of discrimination until then.  The very act of the non-selection was not enough to trigger the deadline—there had to be some reason for the complainant to suspect that the agency did not select him for discriminatory reasons. Ultimately, the EEO process requires reasonable suspicion, not mind reading.  Droste@FELTG.com

Tips from the Other Side, Part 2

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By Meghan Droste, February 14, 2018

Confession time—I’m a rule lover.  Now, I don’t just mean that I follow the rules; I mean that I really like when there are rules, I enjoy reading the rules, and I derive some not insignificant amount of joy from following the rules.  I think this explains my love of baking (the recipe is just a list of rules that need to be followed) and etiquette books (I have a collection).  Every Sunday morning, I start my day by reading The Ethicist column in The New York Times Magazine while eating a bagel.  Judge if you want, but we all have our own quirks.

One of the reasons I like having rules is that they set out parameters and expectations.  When I’m baking—whether it’s a new recipe or one that I have made dozens of times—I know what ingredients I need and in what order to mix them, and I know what the outcome will be.  Similarly, I know what I need to do as a litigator because there are often specific rules that set out the order of things to do and the deadlines for doing them.  I follow the rules because I like to, but also because I know that if I don’t follow them, there can be significant consequences.

I share all of this with you because it seems some agencies think that the rules can be bent just because it’s hard to follow them.  One of the rules that is so basic and yet so often ignored is the deadline to complete an investigation of a formal complaint.  As you know, agencies have 180 days from the date a complainant files a formal complaint to complete an investigation and issue a Report of Investigation.  This is in fact a deadline, not a suggestion.  When I find that an agency has missed the 180-day deadline, I always file a motion for sanctions.

When reviewing a motion for sanctions, the Commission is unlikely to be moved by any excuses the agency might offer.  Understaffed?  You still have to follow the rules.  See Lomax v. Dep’t of Veterans Affairs, EEOC App. No. 0720070039 (October 2, 2007) (“The agency’s internal situation cannot be used as a defense to its failure to comply with the Commission’s regulations.”).  In a budget crunch?  You still have to follow the rules.  See Royal v. Dep’t of Veterans Affairs, EEOC Req. No. 0520080052 (September 25, 2009) (“[W]hen considering whether an agency has the fiscal resources to comply with the requirements of the EEO process, it is appropriate to look to the agency as a whole . . . the agency cannot expect to evade the consequences of its funding decisions.”).  Using a contractor?  You still have to follow the rules.  See Adkins v. FDIC, EEOC App. No. 0720080052 (January 13, 2012) (“Even when agencies contract with other organizations to conduct investigations, the agencies remain responsible for the content and timeliness of the investigations.”).

The Commission has sanctioned agencies many, many times for the failure to meet this deadline.  The severity of the sanctions can vary, but default judgment is common.  Why risk the ultimate sanction—a finding that the agency discriminated against a complainant—when the rules are so clear?  Make sure you hold the people in your agency accountable for timely completing investigations of EEO complaints.  Trust me, it’s fun to follow the rules.

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me. Droste@FELTG.com

 

It’s Called a Deadline, not a Whenever-You-Get-to It-Line

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By Meghan Droste, January 17, 2018

Although I have represented both agencies and complainants, I spend most of my time on the employee side of things.  As anyone who regularly represents employees will tell you, at times it feels like the rules only apply to complainants.  There are numerous deadlines, including some that feel impossibly short, and if a complainant misses just one, it can be fatal to her complaint.  On the other side, agencies miss deadlines with some frequency and it seems like there are no consequences.  Fortunately, or unfortunately depending on your perspective, that perception is not (always) right.  The case discussed below highlights just how important it is for agencies to meet their deadlines as well.

In Selene M. v. Tennessee Valley Authority, the complainant worked for the agency as a contract General Foreman. In 2011, the agency involuntarily reassigned the complainant to a different work location, downgraded her position, and reduced her pay. One month later the agency removed the complainant and permanently banned her from employment with the agency as an employee or a contractor. The complainant filed a formal complaint alleging a hostile work environment and reprisal. Notably, the agency acknowledged in its letter accepting the complaint for investigation that it was a joint employer of complainant.

Following a hearing, the administrative judge entered a finding of sex discrimination and reprisal.  The judge ordered the agency, among other relief, to place the complainant in a permanent position with a salary equal to or greater than what she was earning at the time of the discriminatory events. The judge also ordered the agency pay the complainant back pay with related retirement benefits.

The agency attempted to appeal the administrative judge’s decision. Selene M. v. TVA., EEOC App. No. 0720150024 (October 18, 2016). I say attempted because although it appears the agency timely mailed its final order to the complainant, it failed to timely mail its final order and appeal to the Commission.  The agency explained its 13-day delay as an inadvertent error.  The Commission, however, was not moved by this explanation, rejected the agency’s appeal, and ordered the agency to take the same remedial actions the administrative judge previously ordered.

Unlike its appeal, the agency timely submitted its request for reconsideration.  Selene M. v. TVA, EEOC Req. No. 0520170121 (April 11, 2017).  In its request, the agency argued that the order to reinstate complainant in a permanent position and to pay related benefits was plainly an error because the complainant was a contractor and not entitled to this relief.  The Commission refused to address these arguments, rejecting the agency’s request because there was no error in its earlier the finding that the agency’s initial appeal was untimely.

The agency did not take no for an answer, as we learn from the complainant’s subsequent petition for enforcement.  Selene M. v. Tennessee Valley Auth., Pet. No. 0420170027 (December 15, 2017).  Although it implemented some of the relief previously ordered, the agency refused to reinstate the complainant or pay the full amount of back pay and benefits as required by the Commission’s orders.  In response to the complainant’s petition for enforcement, the agency again argued that the relief the Commission ordered was improper.  Unsurprisingly, the Commission was not persuaded.  It noted in its response to the complainant’s petition that the agency was attempting to undo the Commission’s decision and orders.  The Commission then went further and reminded the agency that its appeal and request for reconsideration were unsuccessful, and there is no further opportunity to litigate or relitigate the matter.

What can we learn from all of this?  Deadlines apply to both sides in a complaint, and agencies will be well-served to ensure that they meet them going forward. Droste@FELTG.com

Tips from the Other Side

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By Meghan Droste, January 17, 2018

Welcome to the first edition of Tips from the Other Side—insight from a complainant’s counsel that I hope will help those of you who process complaints and represent agencies before the EEOC. In this column I will share some of the things that I look for when representing complainants, mistakes that I regularly see agencies make, and other tips that should make your jobs easier, even if it makes mine harder in the process.

For this month’s column, I am going to focus on the always riveting topic of document retention.  As anyone who attended my presentation during the fall 2017 EEOC Law Week can tell you, I get very excited when I have a non-selection case and I find out that the agency has destroyed the documents related to the selection process.  Why is that? Because I know two things: 1) the agency may have a difficult time articulating a non-discriminatory reason for its decision not to select my client, and 2) I have a chance of prevailing on a motion for sanctions.

Dear readers, this is such an easy one. Retain the documents. I’ll say it again, retain the documents.  Share this advice with everyone at your agency—retain the documents. This isn’t just good advice, it is a requirement.  Pursuant to 29 CFR § 1602.14, agencies are required to preserve selection records for at least one year after the selection decision is made, or, if an applicant files an EEO complaint, until that complaint is fully litigated.

If being required to do it is not enough to convince you, think of the consequences. EEO complaints can take years to litigate. It is not out of the realm of possibility for a complaint to go to hearing two years after the agency decides not to select the complainant.  It is also not out of the realm of possibility that by the time the hearing occurs, the selecting official, or anyone else involved in the selection, does not remember anything about the complainant, or the selectee, or even the position.  If the selection documents—resumes, scoring sheets, ranking lists, notes of any kind—still exist, these can help refresh the recollection of the agency’s key witnesses.  Without these documents, the agency may find itself in the position in which it cannot articulate a legitimate, non-discriminatory reason for not selecting the complainant.  For example, in Hollis v. Veterans Affairs, EEOC App. No. 01934600 (May 3, 1994), the agency destroyed the interview notes and the selecting officials testified that the complainant answered questions poorly but could not recall which ones. The administrative judge concluded that the agency was not able to articulate a non-discriminatory reason for its selection decision.

Another consequence may be sanctions. The specific sanction will depend on the facts of the case; it might be an inference that the complainant performed best in the interviews, or that the complainant provided certain information in his application. Although sanctions do not guarantee that a complainant will win, why take the risk of being disadvantaged with an adverse inference that could have been avoided?

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me: Droste@FELTG.com