In other words, the decision maker has to be completely sure of the ultimate judgment call without any margin for error. With regard to the restroom incident, the Commission stated that although it was not explicitly sexual in nature, when considered in the context of the supervisor's other actions, it was illustrative of his lack of respect for his female subordinates. The Commission rejected the agency's position that complainant was not qualified for her position because her disabilities caused her to be a safety risk. ... U.S. Customs and Border Protection is committed to resolving equal employment opportunity (EEO) complaints alleging discrimination at the earliest possible point in the complaint … The employer … However, it appears that the agency later ignored complainant's request for a permanent light duty assignment and the decision was made to send him home on an indefinite basis. info@eeoc.gov The Commission noted that, in Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court had found that evidence sufficient to discredit an employer's proffered nondiscriminatory reasons for its actions, combined with a complainant's prima facie case, may be sufficient to support a finding of discrimination. If you can understand your “burden of proof”… R. Civ. His request was based, in part, on the significant side effects he was experiencing from the medication he took daily to control his symptoms. 611 0 obj <>stream In addition, EEOC found, from background evidence, that, in October 1996, ACP had denied complainant a promotion in favor of a White male (S2) "under suspicious circumstances," when ACP granted S2 an extension of time in which to apply for the promotion (Pharmacy ADP Coordinator). DISCRIMINATION OCCURRED? 01972665 (July 13, 2000). In December 2000, complainant initiated EEO Counselor contact to allege that she had been denied a promotion/classification since August 2000. Upon receipt of your informal complaint, a PDO staff member will facilitate the processing of your claim and inform you of your rights and responsibilities (such as anonymity and representation) in the EEO complaint process. The Commission granted the agency's RTR, which argued that the previous decision's order was in excess of make whole relief. Finally, the Commission found for the agency in rejecting complainant's claim that derogatory statements pertaining to his disability rose to the level of a hostile work environment. Complainant appealed from the FAD. The Commission cited its Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. The Equality Act 2010 prohibits unlawful discrimination. In reversing the FAD, EEOC noted that, in a nonselection case, pretext could be shown in a number of ways and not merely by establishing that complainant's qualifications were observably superior to the selectee's. Hearing required. Gray v. United States Postal Service, EEOC Request No. Equal Employment Opportunity: Collaborating for Mission Success . EEOC found no evidence to support the agency's position that complainant made mistakes while conducting sleep studies. Thus, as part of the remedies it ordered, the Commission directed the agency to consider complainant's entitlement to an award of compensatory damages. Complainant filed this request to reconsider. In an EEO case, a manager need only state legitimate, business reasons for a decision that becomes the subject of an EEO complaint. The Commission stated that back pay must be limited to two years prior to the date on which the complaint was originally filed, in accordance with Title VII of the Civil Rights Act of 1964, as amended. New evidence not generally accepted on appeal. The Chief raised safety concerns pertaining to complainant's ability to walk and hear, to respond quickly, and to her lack of CPR training. With regard to complainant's statement that she did not consider filing a complaint prior to the restroom incident, the Commission did not construe this as an admission that she was not affected by the supervisor's prior behavior. For Deaf/Hard of Hearing callers: A-2 conceded that complainant had done a good job, despite difficult assignments; that her detail was "pretty heavy"; and that she had little time to "self start" projects. Title VII applies to employers with fifteen or more employees and requires that all employees or applicants for employment be treated equally with respect to the bases protected by the statute. Williams v. United States Postal Service, EEOC Appeal No. The Complainant has the burden of proving, by a preponderance of the evidence that unlawful discrimination occurred. Section 1201.154(b). First, the complainant must make an initial showing, referred to as a prima facie case, that the action at issue may have been discriminatory. When management officials did not respond to PCS' requests for information, including the extent of supervisory control over complainant's position, he used available information to recommend that the position be classified as GS-8. Proof of a prima facie case will vary depending upon the circumstances of the particular case. One witness testified that the supervisor, when he distributed schedules to female clerks, would put the schedules in the pockets of their shirts and remark "that it was the best 'feel' he had all day.". If reporting a complaint to any of the persons set forth in paragraphs 2 through 4 above presents a conflict of interest, the complaint may be filed directly with the Division of EEO/AA, P.O. Woodley v. United States Postal Service, EEOC Appeal No. Under civil and administrative law, the burden of proof standard is "the preponderance of evidence standard," or 51%. v. Federal Reserve System, EEOC Request No. Based on the adverse inference, the Commission determined that the record failed to show a legitimate nondiscriminatory reason for the agency's action, leading to a conclusion that complainant prevailed in her claim. Complainant argued that his EEO complaints showed a discriminatory course of conduct by the agency. On appeal, the Commission reversed the dismissal, ruling that an agency may not dismiss a complaint for failure to cooperate without the 15-day notice required under EEOC's regulations. Agency ordered to address waiver issue in ADEA settlement. The FAD adopted the AJ's recommended decision and noted that the agency had met its burden of establishing that it would have taken the same actions in the absence of complainant's EEO activity. Li v. Department of the Navy, EEOC Appeal Nos. If the allegation is not resolved in counseling, the individual may file a formal EEO complaint with the employing agency and that agency investigates the complaint. This matter involved an agency (Department of the Treasury) appeal from an EEOC AJ's finding that the agency's reasons for not selecting complainant for the position of Process Manager, GS-301-14 were a pretext for discrimination based on age and race (Black). If the agency found the waiver was insufficient, then the agency had to reinstate the complaint. Instead, the Commission has the authority to order the agency to consider taking disciplinary action under appropriate circumstances. Complainant alleged, however, that the clerk refused to read or type for him and that his supervisor failed to intervene. In reversing the FAD, the Commission noted initially that the agency had neglected, without explanation, to address complainant's claim that the agency had violated the Equal Pay Act of 1963 (EPA). The Commission also ordered the agency to provide training with regard to sexual harassment to all the managerial officials responsible for agency actions in this case. h�b``P```:�������A��X؀��aO��C'D��a���~�������eุ�l�"X�h����#��F���s�8Z7]�b�n``(��;��u�Һ~��AQJ�%�f3�)0KpD6f=`��`��i��!2�{W@v130������4�f"� :(� Part 1614 EEO complaints process, an aggrieved individual contacts a federal agency's EEO office for counseling to begin the process. the EEO process takes the problem of bad and abusive managers from the Centers/ Institutes/ Offices, to the Agency level which has ample means for protecting itself but leaves the burden of proof … Accordingly, the Commission determined that complainant was not entitled to personal relief, but might be entitled to declaratory relief, injunctive relief, attorney's fees and costs. We think that this suffices to discharge petitioner's burden of proof at this stage, and to meet respondent's prima facie case of discrimination. Inadequate proof of posting. The agency rated complainant at least "Satisfactory" throughout her tenure, which included a 1994 performance appraisal. The agency removed complainant in July 1993 due to her inability to perform the essential functions of her position, i.e., the time and attendance duties. On February 4, 1997, the agency issued a vacancy announcement and six candidates, including complainant, were referred for competitive selection. In addition, complainant's doctor noted that his condition made him very vulnerable to stress and diagnosed anxieties and fears he was experiencing by working at night. Agency action reasonably likely to deter protected activity. In a discrimination complaint section 136 of the Equality Act 2010 provides that if a claimant establishes a prima facie case of discrimination the burden shifts to the respondent (usually … In the first instance, it is the Counselor who must advise the complainant on the available remedies. A complaint may result when an employee believes he or she has been unfairly treated because of a prohibited criteria or a protected class under EEO laws (i.e. The agency destroyed records relevant to the instant claim. The counselor ensures the aggrieved is aware of the discrimination complaint process and the burdens of proof the aggrieved carries in that process. Due to his condition, complainant could not meet an early arrival time. The Commission noted that at least five RTs had filed EEO complaints against the Chief and cited a decision in which it found racial discrimination when the agency denied that complainant the opportunity to conduct sleep studies. The Commission found that the agency's proffer was sufficient to satisfy its burden of production to articulate a legitimate, nondiscriminatory reason for complainant's nonselection (e.g., she performed poorly in her interview). Instead, the agency required complainant to participate in the disciplinary discussion using the interpreter who was a party to the argument. Schultze v. Department of the Army, EEOC Appeal No. Flynn-DeGroff v. United States Postal Service, EEOC Appeal No. However, EEOC found that the FAD's conclusion, that S1 was hired because he had more experience than complainant did not address the question of their respective qualifications, thus hindering complainant's ability to prove pretext. Accordingly, EEOC found complainant had established a prima facie violation of the EPA. The Commission further stated that a discriminatory motive existed throughout complainant's chain of command at the agency against complainant and other Black employees. Packard and Komoriya v. Department of Health and Human Services (Food and Drug Administration), EEOC Request Nos. The Commission found that the agency was not required to provide complainant with both a late arrival time and a flexitime schedule, declaring that complainant was entitled to "effective" reasonable accommodation and not necessarily one of his own choosing. The allegation itself is not proof … All they have to do is show it isn't based on the protected categories. Phones at her work station contained hearing amplified ear pieces. h�bbd```b``���@$����}����PɺD�l�_��$s��I�\Q �Ql�)�,y$s߂M� "]'�ٚ ���=H��� ���� The Burden of Proof. The Commission reversed the arbitrator and found both disability and reprisal discrimination. See MSPB AJ's decision accepting an appeal filed after 120 days of a formal EEO complaint with no issuance of Final Additionally, EEOC rendered an independent finding of intentional sex discrimination under Title VII. 05981169 (July 30, 2001). In DeCaire v. Mukasey, 07-1539 (1st Cir. Complainant was granted disability retirement after he filed his EEO complaint. EEO complaint. The disclosure warranted an award to complainant of $2,000 in compensatory damages. The Commission found "incomprehensible" the agency's thinking that it was reasonable accommodation to compel complainant to use the interpreter's services or remain silent, particularly in the face of the agency's threat to terminate her if she did not use the interpreter's services during the disciplinary discussion that followed the argument. At the conclusion of the hearing, the AJ issued a recommended decision of no discrimination, finding, in pertinent part as to claim (1), that the District Manager of Sales and Services for the North Las Vegas Post Office (DM) sent an employee (S1, a supervisor) to the facility to monitor complainant starting on September 13, 1994. The findings of the FFDE led to the convening of a Physical Standards Board (PSB), comprising three physicians, to determine complainant's future in her position. The Commission noted that the noose was such a severely violent symbol that complainant reasonably felt threatened by his discovery. In reversing the agency's finding of no discrimination, the Commission decided that there was no significant evidence to contradict the AJ's credibility findings. The Commission also ordered the agency to take appropriate preventive steps to ensure that no employee is subjected to sexual harassment and to ensure that appropriate steps are taken immediately after management is notified of any such harassment. If a claim is established, then the burden of proof is shifted to the employer to provide a solid defense against the claim. The agency was ordered to reassign complainant to the day shift as recommended by his physicians, and to restore any leave used or benefits lost due to the discrimination. On appeal, the Commission found overwhelming evidence in the record that the supervisor routinely made offensive, sexually-oriented comments in the workplace, and stated that "not only were a number of these comments directed at complainant, but it is clear that the comments were unwelcome to her." Prima facie is a term that represents eh Complainant's initial burden of proof in an employment discrimination complaint. The burden of proof in the discrimination complaint process lies with the complainant. 01A11219 (July 6, 2001), RTR denied, EEOC Request No. Complainant applied but was not selected. The Commission noted that an EPA violation was also a violation of Title VII of the Civil Rights Act of 1964. From the very beginning, one of the things that you must remember is a concept called the burden of proof. The AJ found that complainant's EEO activity was inextricably intertwined with her grievance activity and various investigations and, thus, it would be difficult to determine that her EEO activity was not part of what motivated DM. Lee v. Department of Transportation, EEOC Request No. 07A10016, 01A10761 (August 8, 2001). Stone v. Department of the Treasury (Bureau of Public Debt) EEOC Request No. . Once the complainant establishes a prima facie case, the burden of evidentiary production … The Commission decided that the agency had adequate notice of the claim, yet violated its obligation to maintain the records. As a result of spina bifida, complainant also developed a condition which caused her to have difficulties with complex mathematical calculations, and which contributed to the problems she had in performing the duties of her position as a Clerk (Typing), duties that involved maintaining time and attendance under an agency system that was relatively complex. Wiley v. Department of the Treasury, EEOC Appeal No. Evey v. Department of Veterans Affairs, EEOC Appeal No. A hearing was held before an EEOC AJ who found in favor of complainant and ordered certain relief. In a discrimination lawsuit, the burden of proof falls initially on the employee bringing the complaint of discrimination About half of women who are working full-time can be considered "primary" income … Donald Names, Director, OFO's Special Services Staff, Writers: Arnold Rubin, Dann Determan, Lori Grant, Navarro Pulley. I always wondered what it was like in here." With regard to the issue of clerical assistance, complainant claimed that he had not been provided with clerical assistance to accommodate his vision problems of congenital estropia (muscle loss) in the left eye with significantly reduced vision caused by narcolepsy. Stone v. Department of the Treasury (Bureau of Public Debt), EEOC Appeal No. MYTH: Discrimination is found in less than 2 percent of EEO complaints. EEO Complaint Process. Ultimately, the employee in a discrimination lawsuit has the burden of proof. This phrase is a legal term of art. Lambert v. Department of the Navy, EEOC Appeal No. 1-844-234-5122 (ASL Video Phone) The Commission also found that the agency had failed to meet its burden of proving that the difference in pay between complainant and the male comparatives resulted from a factor or factors other than sex. The Commission found that the change in her position was not a breach of the agreement, holding that where an individual bargains for a position without any specific terms as to length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position ad infinitum. Complainant, a Black Maintenance Mechanic, claimed discrimination when he found a hangman's noose hanging near his toolbox. If you wish to receive a copy in print, you must send a request, in writing, to Arnold Rubin, EEOC, Office of Federal Operations, 1801 L Street, N.W., Washington, D.C. 20507. 915.002 (March 1, 1999 at p. 17). The agency, among other things, suspended the white employee who admitted he had tied the noose, and reiterated its policy of zero tolerance for violence. BURDEN OF PROOF IN THE EEO COMPLAINT PROCESS . The Commission noted that the agency had ample opportunity to produce such evidence. In sum, it is difficult to prove up a discrimination case in the 21st century. On appeal, the Commission affirmed the agency's final order, but modified Element (2) so that the agency would be directed to consider taking disciplinary action against the subordinate. 01970918 (September 15, 2000). 131 M Street, NE Complainant subsequently claimed that the agency had breached the agreement, asserting among other things that he had not entered into the agreement voluntarily and did not completely understand its terms and provisions. In a hearing concerning an alleged violation of § 458.2 (Bill of rights of members of labor organizations) or § 458.37 (Prohibition of certain discipline), the complainant shall have the burden of proving the allegations of the complaint … About half of women who are working full-time can be considered "primary" income earners whose income is not supplementary to the family income. Employees can file retaliation complaints if they feel they have been treated differently, and worse, than co-workers based on their protected activity in filing an initial complaint, but the burden of proof is still on the complainant, who will likely be subject to the same increased stress level that was associated with the initial complaint. Reasonable suspicion of discrimination was imputed to the complainant when he was issued a Notice of Removal and he entered into a last chance agreement. The Commission further ordered the agency to report to EEOC what disciplinary action, if any, it took against the employee; or to set forth the agency's reasons for not imposing discipline. endstream endobj startxref On appeal, the Commission rejected the agency's argument that complainant had failed to demonstrate that she was more clearly qualified than the selectee. Some allegations are based on employee misperceptions and misunderstandings which manifest in formal complaints. Part 1614 (November 9, 1999), EEOC will not overturn the factual findings of its Administrative Judges where there is substantial evidence in the record to support those findings. In this regard, the Commission noted that agency officials could not "identify a single instance when [complainant] did not respond appropriately in an emergency situation and/or placed a patient at risk." Burden of proof improperly shifted. Because complainant had prevailed in her claim that the agency had breached a settlement agreement, she was entitled to an award of attorney's fees for work done in connection with her appeal. Litigation Considerations United States Court System Theories of Relief Burdens of Proof Defining Issues and Bases. SUBJECT: EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act PURPOSE: This enforcement guidance supersedes … The 2-3 percent figure cited for the rate of discrimination findings is a statistic that only tells part of the story. Rather, EEO complaints usually involve multiple bases and issues of discrimination. This condition inhibited complainant's ability to see the handwritten changes his supervisors made to his documents. Not proper to interpret agreements as providing indefinite employment in exact position. EEO Investigations . 05A10136 (April 16, 2001). Direct Threat. The Commission also noted that the EEO poster submitted by the agency indicated a time limit of 30 days, whereas the time limitation had been extended to 45 days in EEOC's regulations that went into effect in October 1992. Whitmire v. Department of the Air Force, EEOC Appeal No. The Commission declared that "to exclude an individual on the basis of a possible future injury, the agency must show more than that an individual with a disability poses a slightly increased risk of harm.". However, complainant said an incident occurred while she was in the ladies' restroom that "pushed her over the edge," causing her to take action. The Commission stated that the agency can meet this defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. The Commission found that the AJ erred in concluding that there were no genuine issues of material fact, and in rendering summary judgment. The record destruction, along with other cited reasons, justified sanction by imposition of an adverse inference against the agency, the Commission ruled. The Commission modified the remedy in the previous decision by adding the order to reinstate complainant to the Immigration Examiner position, with back pay and benefits. Agency managers did not discipline complainant for his conduct and instead directed him to undergo a psychiatric FFD. In addition, the Commission found that the agency had not shown that it had made a good faith effort to reasonably accommodate complainant. I’ve filed an EEO complaint.” Spriesterbach v. United States Postal Service, EEOC Request No. Dismissal improper absent notice and insufficient record. Although cleared for work with medical restrictions, complainant for a period of time was denied the opportunity to return to work. Under a de novo standard of review, the Commission concluded that it was error for an AJ to grant summary judgment in favor of complainant on an unasserted Equal Pay Act (EPA) claim, without giving the agency an opportunity to be heard. Held: the agency substantially complied with the agreement. If a claim is established, then the burden of proof … Overview Of Burdens Of Proof In EEO Complaints At all times, the complainant bears the burden to prove that unlawful discrimination occurred. On appeal, the Commission agreed with the AJ and found that the agency had failed to reasonably accommodate complainant. 05990592 (August 3, 2000). Citing several genuine issues of material fact that were present in the case, the Commission held that the AJ improperly issued a decision without a hearing, and ordered the agency to submit the case to the appropriate EEOC office for a hearing on the merits. Complainant filed an EEO complaint claiming that the agency discriminated against him on the bases of race (Black), religion (Islam), and reprisal by allowing him to be subjected to harassment by a subordinate. Moreover, even after the agency's Acting General Counsel advised the agency that the course of action the agency proposed was unlawful, and that the agency was obliged to accommodate complainant in her career appointment, the agency still did not make any attempt to reinstate complainant. In this case, the Commission set forth the elements necessary for a complainant to prevail in a claim of sexual harassment by a supervisor, and for an agency to successfully avoid liability. The Digest is now available online through EEOC's homepage at www.eeoc.gov. 01A13076 (July 30, 2001). Equal Employment Opportunity Commission, or with the court system must also be submitted to the Division of EEO/AA. "The dispositive issue in this case," the Commission declared, "is whether the agency met its responsibility to provide complainant with reasonable accommodations to his disability in response to complainant's requests for permanent light duty." EEOC complaints are handled by the Equal Employment Opportunity Commission (EEOC), the body responsible for investigating discrimination complaints based on religion, race, national origin, color, age, sex, and disability. Complainant was reassigned as called for in a settlement agreement, and held the new position for more than a year before the position was reclassified and ultimately downgraded. The Commission found that this official did not unequivocally deny these as well as other statements. It was from the following order of the AJ that the agency appealed to the Commission: A. In reversing that portion of the FAD, EEOC cited past Commission guidance and precedent and declared that, where there is a finding of discriminatory motivation, further proof of a legitimate motive does not disprove the discriminatory motive. Continuing violation claim not available. A-2 wrote that C-1 had worked for him for years, would bring a fresh perspective to the position, and was able to analyze difficult situations and make objective recommendations. On May 2, 1997, A-2 selected C-1. Therefore, EEOC concluded that complainant had established that S1's overscrutiny was partially motivated by discriminatory animus. Tshabalala v. Department of Agriculture, EEOC Appeal No. The Commission found that complainant was subjected to a pattern and practice of the agency's converting white, nondisabled employees to permanent status over a seven-year period during which time complainant was not afforded the same opportunity. She claimed that she was discriminated against when she was denied a waiver of the police training portion of the basic training for her position.