2019001426 (Nov. 29, 2019), Felicidad S. v. Dep’t of Def., EEOC Appeal No. The actions involved negative comments and threats by the Postmaster about Complainant’s religious belief that he should attend church on Sundays. Absent a quorum, the EEOC was unable to respond to newly issued court decisions and regulations impacting employers in costly ways. Therefore, the Commission found that the Agency had sufficient notice that Complainant was represented by an attorney such that it was obligated to send the Notice to him. (See also “Findings on the Merits” in this issue.). 2019003184 (Oct. 1, 2019), Judie D. v. Nuclear Regulatory Comm’n., EEOC Appeal No. The Commission denied Complainant’s request for pecuniary damages. According to the record, Complainant’s manager stated that he was instructed by the Plant Manager to pay limited duty employees the same level as their base pay because if they were paid more “that would [be] encouraging others to get hurt on the job to get more pay.”  Therefore, the Commission found that the Agency paid Complainant only her base pay (and not the higher-level pay) because of her medical restrictions. On appeal, the Commission found that the Agency erred when it dismissed various incidents in the complaint for failure to state a claim and untimely EEO Counselor contact. On appeal, the Commission found that a decision without a hearing was inappropriate because the record was inadequately developed, and there were genuine issues of material fact. 2019001706 (Nov. 21, 2019); Additional Decisions Addressing the Issue of Joint Employment Include:  Ciera B. v. Dep’t of Def., EEOC Appeal No. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). The Agency dismissed the complaint for failure to timely contact an EEO Counselor based solely on one incident. 2019002626 (July … As part of discovery, Complainant requested information on the pay policy for all external hires between 2013 and the present as well as information on their former salaries, starting salaries, and their race, color, and sex at the time of hire. Aug. 2009). This leaves open the possibility of three Commissioner appointments by President Trump during the upcoming election year. Therefore, the Commission found that the Agency acted improperly by treating the matters raised in the complaint in a piecemeal manner. Even as the workforce grew and the EEOC took on more responsibilities, its funding and staffing dropped. [12]  An agency must consider, at least as background, all relevant evidence offered in support of a timely raised claim, even if the incidents occurred outside of the 45-day limitation period. The EEOC Year-End Countdown blog will be your one-stop source for critical information regarding the EEOC’s litigation and investigative strategy and ways for employers to protect themselves in this high-alert time. 07A20089 (October 9, 2003). The Commission also noted that, when determining the proper grade level for reinstatement, the Agency must consider the grade level obtained by similarly situated employees who were not subjected to discrimination. The Commission found that the Agency improperly dismissed Complainant's discrimination claims when it determined that Complainant had previously raised the claims in a negotiated grievance procedure. The Commission found that contrary to the manner in which the Agency identified the formal complaint in the final decision, the instant formal complaint and EEO Counselor’s report reflected a more detailed series of alleged incidents. Further, while the manager stated in her affidavit that she reassigned Complainant because Complainant acted “unprofessionally and improperly,” the record showed that the manager did not witness the alleged harassing incident with the driver but relied on the statements of witnesses in making her determination. Complainant, a Supervisory Maintenance Mechanic, filed an EEO complaint alleging that he was denied reasonable accommodation when the Agency made him work the night shift, despite medical restrictions limiting him to the morning shift. 2020000050 (Dec. 10, 2019), Brandee B. v. Dep’t of Agric., EEOC Appeal No. On appeal, the Commission found that the Agency did not breach the agreement. On appeal, the Commission found that Complainant was denied a reasonable accommodation for his disability as alleged. 2019003184 (Oct. 1, 2019). Further, the Agency’s Notice advising Complainant of her right to file a complaint specifically referenced race, religion, and sex as bases for the alleged discrimination. 2019004004 (Nov. 7, 2019) (a fair reading of Complainant’s formal complaint and the EEO counseling report indicated that Complainant alleged an ongoing pattern of harassment, and not merely the two incidents identified by the Agency. Postal Serv., EEOC Appeal No. Complainant, a Mail Handler, filed an EEO complaint alleging, among other things, that she was discriminated against on the basis of disability when she worked at a higher level but was denied the higher-level pay. Therefore, the Agency failed to meet the burden of obtaining sufficient information to support a determination as to timeliness. Postal Serv., EEOC Appeal No. The agreement stated that, to the extent possible, Complainant should seek clarification within 24 hours of receipt of an assignment and should “be proactive and use all resources available” before reviewing documents with management. Complainant also asserted that he was issued a three-day suspension, denied the proper tools to perform his assigned duties, and charged with being absent without leave and leave without pay. 915.003 Section 2: Threshold Issues, § 2-IV C (rev. Some cases do not get timely registered with the EEOC or may be encoded differently at the state and federal level, for example. The Commission also noted that the Agency had accommodated Complainant with day-shift work the previous year, which weakened its argument that Complainant’s medical documentation was insufficient, and the Agency did not assert that continuing Complainant’s accommodation would have resulted in an undue hardship. Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against her on the bases of religion (Christian) when she was issued the suspensions. 2019005308 (Oct. 2, 2019), Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967, Title II of the Genetic Information Nondiscrimination Act of 2008, Equal Employment Management Directive for 29 C.F.R. Complaint Alleging Compensation Discrimination Improperly Dismissed for Untimely EEO Contact & Failure to State a Claim. [10] See EEOC Compliance Manual, No. Bernardina N. v. U.S. § 2000ff, et seq (genetic information). Janet Dhillon, the current EEOC Chair, was originally selected for that role by President Trump in June 2017, but was not approved by the Senate until FY 2019, taking office on May 15, 2019. Complainant reported the incident to her manager who investigated the matter and moved Complainant to another location where Complainant would not have to interact with contract drivers or the public. The Commission concluded that by alleging a pattern of harassment, Complainant had stated a cognizable claim under the EEOC regulations. On appeal, the Commission noted that Complainant stated he broke down several times emotionally as a result of being subjected to the investigation, became physically ill, and experienced sleeping issues, and family problems, among other things, due to the stress of being subjected to the investigation. 05970852 (Feb. 1999). However, only a much smaller percentage of men actually report the harassment. Specifically, Complainant asserted that a co-worker yelled at him; made comments such as “This is a plantation ... they only hire whites and light skins... they always get someone big and Black to intimidate us;” and used the n-word more than once when talking to Complainant. In this case, the last day of the 15-day limitation period fell on a Saturday, and, as such, Complainant’s complaint was due on Monday, March 12. 2019002920 (Aug. 8, 2019), Reita M. v. Dep’t of Transp., EEOC Appeal No. [11] Nat’l R.R. The cases … The Trump Administration is now well into its third year. Postal Serv., EEOC Appeal No. Postal Serv., EEOC Appeal No. The comprehensive enforcement and litigation statistics for FY 2019, which ended Sept. 30, 2019, are posted on the agency's website , which also includes detailed breakdown of charges by … In response to the EEO case manager’s email inquiring if she received any disciplinary action, Complainant asserted that her supervisor retaliated against her “by taking the duties I had been performing for the past 3 ½ years from me and they were given to someone else who she favored more.”  The Commission found that by alleging a pattern of harassment, complainant had stated a cognizable claim under the EEOC regulations. Gabrielle Martin, a 30-year EEOC attorney and president of the National Council of EEOC Locals No. The Commission previously affirmed the Agency’s finding of no discrimination, but determined that the Agency’s Office of General Counsel (OGC) acted improperly during the pre-hearing stages of the EEO process by assisting management officials and other witnesses in the preparation of their affidavits. The Commission found that the evidence in the record directly contradicting the manager’s stated reasons for her decision to reassign Complainant raised both a credibility issue and issues of material fact that required a hearing and strident cross-examination. In 2004, the first full year of EEOC tracking this category, 1,100 charges resulted in $2.2 million in monetary benefits and settlement payments. [1]  This article assists agencies in identifying, and properly addressing and processing claims susceptible to fragmentation by discussing the law, and recent Commission decisions. 2019003428 (Dec. 10, 2019). Filers will be notified of the precise date the collections will open as soon as it is available. 2019005222 (Oct. 25, 2019). The EEO Investigator asked the Agency officials to provide the names of and pertinent information about the applicants who were found suitable to continue their candidacy for the position and information regarding the applicants whose candidacy was terminated, or not terminated, for the same reasons as Complainant’s candidacy. Conflicts of Interest Discussed. 2019001963 (Oct. 11, 2019), Howard G. v. Dep’t of Transp., EEOC Appeal No. Therefore, the Commission found that Complainant timely filed his formal complaint. TJ Simers thought his claim was worth more and in August 2019, he was proved right. 2019005917 (Nov. 7, 2019), Scarlet M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019005346 (Nov. 5, 2019), Ricky S. v. U.S. The AJ concluded that the driver “was simply attempting to make a delivery to the Agency and was inquiring why he was being sent away without accomplishing the job.”  On appeal, the Commission noted that the record did not contain any statement from the driver and although the AJ concluded that “it was Complainant’s obstructive behavior that resulted in interfering with the driver’s ability to deliver his load to the Agency,” four witnesses made statements that directly contradicted this finding and corroborated Complainant’s version of the incident. Disability On appeal, the Commission vacated the Agency’s final decision. The most noticeable trend of FY 2019 is the marked decrease in coast-to-coast filings that we have seen compared to past years. Two Commissioner positions remain vacant. Postal Serv., EEOC Appeal No. 0120182008 (Dec. 13, 2019). Equal Employment Opportunity Commission disclosed its 2019 sexual harassment statistics. Complainant initiated EEO contact on March 1, 2019, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it terminated her from employment. Complainant in Reita M. v. Department of Transportation [21] alleged that her supervisor and supervisor’s deputy subjected her to ongoing harassment. The full break down of cases by nature of allegation follows: 1. Johana S. v. U.S. The Agency provided no information about the pre-determined factors, the questions posed to the candidates, Complainant’s answers to the questions, how the reviewers scored Complainant’s answers, or the bases for the scores given to Complainant and the other candidates. Several recent decisions arising out of EEOC-initiated litigation are illustrative of this trend. Postal Serv., EEOC Appeal No. Complainant filed a complaint alleging that the Agency discriminated against her when she was not selected for a Labor Liaison position. Theresia B. v. U.S. Equal Pay Act cases are often highly fact-driven and therefore notoriously difficult for employers to scuttle with pretrial motions. Race: 23,976 (33.0%) 4. § 206(d) (1978) (sex-based wage discrimination); or Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. On appeal, the Commission awarded Complainant $2,000 in non-pecuniary damages due to the worsening of his preexisting condition. Now that the EEOC has a quorum again, we may be starting to glimpse how things may start to change at the agency. Seyfarth Synopsis: The Trump Administration has succeeded in replacing several open  positions within the upper echelons of the EEOC. Part 1614, a complaint must allege employment discrimination on a basis described in Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2019002290 (May 3, 2019). Prot. For employers, the importance of responding strategically to such charges cannot be understated. 2019005422 (Nov. 6, 2019). Appointment of the new Chair came on the heels of thirty business organizations, including the U.S. Chamber of Commerce and American Trucking Associations, imploring Congress and the President to confirm then nominee Dhillon with expediency. [7]   The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered. Therefore, Complainant stated a viable claim. 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