The Commission found that the agency had offered neither analysis nor explanation for this determination. Citing the Supreme Court's decision in St. Mary's Honor Society v. Hicks, the Commission found no basis to set aside the AJ's decision, and ordered the agency, inter alia, to retroactively promote complainant. If you don’t know the name of a counselor, you should contact the EEO Officer. The FAD found no discrimination as to any of those claims, and the Commission, on appeal, affirmed the FAD as to four of those claims. Among the bases of alleged discrimination was physical disability (hearing loss, obesity, and hypertension). The Commission also rejected the agency's assertion that special needs positions, such as the Reader position in this case, are not included in the class of positions available for reassignment under the Rehabilitation Act. The Commission affirmed the agency's dismissal of complainant's three complaints and rejected his argument that the complaints constituted a continuing violation. Initially, the plaintiff has the burden of proof to demonstrate membership in a protected class and an adverse employment action under circumstances that suggest a discriminatory motive … EEOC found that complainant failed to show that these duties were still relevant and not obsolete, and found no breach. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. 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. Washington, DC 20507 In FY 2010, over 60 percent of complaints filed did NOT include any allegation of harassment. Complainant appealed from the FAD. Therefore, the Commission concluded that complainant had met her burden of showing that she was a qualified person with a disability who was removed from her position because of her disability. 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. The agency failed to show that the medical inquiry was job-related and consistent with business necessity, stated the Commission, since it failed to show that it had a reasonable belief that complainant would be unable to perform essential functions or would pose a direct threat. The agency contended that it should have the additional option to deny both the renewal and the conversion. Section 1201.154(b). Viers v. United States Postal Service, EEOC Appeal No. In the course of your Merit Systems Protection Board (MSPB) or Equal Employment Opportunity (EEO) hearing, you should be told, by the Judge, of your “burdens of proof”. Complainant raised a claim of discrimination in a negotiated grievance proceeding. EEO complaint. Reduction in fees proper. Over the course of the next several months, complainant said, the supervisor made a number of sexually-oriented comments to her which she found offensive. 02970004 (July 24, 2000). 05981166 (July 14, 2000). The Commission also observed that limits on disability-related inquiries and medical examinations apply to all employees, not just those with disabilities. In addition, the Commission found that the agency had not shown that it had made a good faith effort to reasonably accommodate complainant. In its decision, the Commission pointed out that a factor in the AJ's determination was credible testimony that the agency official who handled complainant's light duty request made statements evidencing a discriminatory animus toward employees with disabilities during a light duty committee meeting. In sum, it is difficult to prove up a discrimination case in the 21st century. As part of the relief ordered, the Commission directed the agency to determine whether complainant was entitled to compensatory damages; ensure that the supervisor does not work in the same unit as complainant; and reinstate any leave complainant used as a result of the harassment. Find your nearest EEOC office The Equal Employment Opportunity Commission (EEOC), an independent federal agency, is charged with enforcing Title VII and the other laws under which EEO complaints are brought. As part of relief provided to complainant in this case, the Commission ordered promotion with back pay. The allegation itself is not proof … v. Federal Reserve System, EEOC Request No. The agency failed to address the claim in its decision on the merits. EEOC found that complainant received less pay than four White male pharmacists within her department (Pharmacy Services) who performed the same job as she (GS-11 Pharmacist) and that their job duties were substantially equal.EEOC also noted that the pharmacists were supervised by the same chain of supervisors and had the same job description. Bynum v. Department of Veterans Affairs, EEOC Appeal No. 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. Hannon v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. The Commission also found not credible the Chief Therapist's assertion that the comparative was the only RT who expressed an interest in performing sleep studies. His request was based, in part, on the significant side effects he was experiencing from the medication he took daily to control his symptoms. Complainant's fellowship was discriminatorily terminated. A potential federal sector complainant … Her claim was dismissed by the agency under a reasonable suspicion standard. 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. 01A10068 (July 6, 2001). Li v. Department of the Navy, EEOC Appeal Nos. Accordingly, the Commission found appropriate the consideration of compensatory damages. The other candidates, all of whom were White, ranged in age from 37 to 49 (complainant was 48). The allegation itself is not proof that illegal discrimination has taken place. Complainant claimed that, after he filed his EEO complaint, his performance rating was reduced. Jones v. Department of Veterans Affairs, EEOC Appeal No. See MSPB AJ's decision accepting an appeal filed after 120 days of a formal EEO complaint with no issuance of Final The Commission found that the denial of overtime was identical throughout the period of the claim, and ruled that complainant established a continuing violation. Complainant requested a later schedule, while maintaining his alternate work schedule. Complaint reinstated. FACT: Discrimination may occur in up to 33 percent of EEO cases. The Commission noted, for example, the PSB head's testimony that he felt pressured to change his previous recommendation, as well as his additional statement that the PSB never discussed whether complainant's continued tenure constituted a risk. Additionally, EEOC rendered an independent finding of intentional sex discrimination under Title VII. 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. 01996244 (October 4, 2001). the EEO/AA Officer when reviewing complaints shall consider, but is not limited to . Direct evidence found. The Commission agreed with the agency that the grievance decision was not a "final decision of the agency" because complainant had the right to submit his grievance to the next level. 131 M Street, NE From the very beginning, one of the things that you must remember is a concept called the burden of proof. But in the federal civil service, approximately 20,000 EEO complaints are filed every year by employees who keep on coming to work. Therefore, EEOC concluded that complainant had established that S1's overscrutiny was partially motivated by discriminatory animus. When assessing whether discrimination has taken place, a tribunal is bound to consider the provisions of section 136, which sets out the applicable … The Commission found it not apparent from the record that the agency had a policy in effect during the period in question that satisfied the aforementioned elements. Complainant, a direct patient care nurse at a VA medical facility since 1982, challenged the agency's removal of her in early 1995. The Burden … The disclosure warranted an award to complainant of $2,000 in compensatory damages. Covarrubias v. United States Postal Service, EEOC Appeal No. 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). He also averred that agency officials indicated that complainant and those who testified on his behalf were "whiners" and "crybabies." The agency violated the Rehabilitation Act by disclosing medical information pertaining to complainant in a manner that did not conform to EEOC regulations. Wednesday, April 23, 2008. Instead, the Commission has the authority to order the agency to consider taking disciplinary action under appropriate circumstances. Reversing the Navy's decision that complainant's breach claim was untimely, the Commission noted that complainant had continuously sought to obtain agency compliance with the settlement agreement. The AJ determined that the CBA provided options for medically necessary permanent reassignments. In DeCaire v. Mukasey, 07-1539 (1st Cir. The Commission decided that the agency had adequate notice of the claim, yet violated its obligation to maintain the records. 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. The Commission also pointed out that this defense is not available when the harassment results in a tangible employment action (e.g., discharge, demotion, or undesirable reassignment) being taken against the employee. The supervisor replied: "Oh cool! The Chief of Nursing Service objected to the PSB's recommendation, asserting that it did not address "the actual clinical concerns" of complainant's ability to function professionally as a nurse. The employee can prevail only if he or she can show that the manager’s articulated business reason was a pretext for discrimination. Therefore you will present your witnesses first, after the opening statements. The claim was dismissed as untimely, and EEOC affirmed the dismissal. In an EEO case, a manager need only state legitimate, business reasons for a decision that becomes the subject of an EEO complaint. He had not been selected for supervisory and other positions. The Commission noted that to do otherwise would be contrary to EEOC's own regulations set forth at 29 C.F.R. However, his supervisor refused and advised complainant he could have a later starting time or an alternate work schedule but not both. 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. On appeal, the Commission found applicable the provisions of the Older Workers Benefit Protection Act (OWBPA) because the agreement purported to resolve complainant's claim of age discrimination. On appeal, complainant contended that she was not assigned as many sleep studies as was the comparative who had less formal training than complainant. The Commission found no evidence of bad faith by the agency; that it had immediately attempted to cure the breach; that it had repeatedly attempted to schedule a meeting and that it was still willing to do so. The AJ found that complainant's request was medically legitimate and that the agency had failed to demonstrate undue hardship. In this case, complainant, a City Carrier at the agency's North Las Vegas, Nevada, facility, asserted that the agency discriminated against her on a number of bases under Title VII, including reprisal, as well as age under the ADEA, in connection with 12 claims. The Commission also found that complainant's initial discipline tainted subsequent discipline. Finally, the Commission also noted that an agency should take all steps necessary to prevent sexual harassment from occurring. Improper fitness for duty (FFD) examination. Several recent decisions have been issued regarding the initial burden of proof that employees must meet to prevent dismissal of retaliation claims and proceed to a jury. 202-663-4900 / (TTY) 202-663-4494, Call 1-800-669-4000 01A11357 (August 2, 2001) (adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation). He initiated EEO counseling over 45 days after he returned to work, but within 45 days of the time when he became aware that a co-worker was allowed to work within his restrictions and was also allowed to work overtime. The burden of proof in the discrimination complaint process lies with the complainant. Dare v. Department of the Air Force, EEOC Appeal No. Complainant had averred that, under the collective bargaining agreement, he was not required to provide medical documentation on a continuing basis when it was known that he suffered from a chronic condition. 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