Delays in Reasonable Accommodations

Many federal employees have difficulty obtaining reasonable accommodations from their federal employers because of unnecessary delays. Because the issue is in management’s hands, employees face particular difficulties getting even simple accommodations approved. But avoiding unnecessary delays can be critical to providing accommodations and avoiding charges of unlawful discrimination. Management often ignores issues One common problem … Read more

What Happens if You Can’t be Hired Because You are’t fit for Duty?

Many employers, particularly federal law enforcement, have medical standards that they use to disqualify potential employees. An employer generally may disqualify an employee if either it believes he cannot perform the essential functions of the job, or he would pose a “direct threat.” But federal agency employers often go well beyond this. Frequently federal employers employ various tests that prevent the hiring of people with minor health issues. Unfortunately, this means that persons are told they cannot work for relatively minor health issues. Well, that’s discrimination. And too many federal agencies stand by and let it happen.

Getting Attorneys’ Fees in Federal Employee Disability Cases (ADA)

Civil rights law such as the ADA usually include a provision requiring the Agency to pay attorneys’ fees for successful claims. This means that if there is a final determination that the agency has discriminated against an employee, the employee can normally request for payment of the fees his attorney has incurred in bringing the claim.

There are many cases where employees were awarded attorneys’ fees by the EEOC after winning their claims. Here are two decisions with a discussion of the purpose of the provisions under the law.

Why is this important? In most kinds of lawsuits, each side pays for its own attorneys whether they win or lose. In the average traffic injury case, the attorney is paid a percentage of what the jury awards, and that is constitutes her fee.

Civil Rights, such as protecting individuals from discrimination, are different from other kinds of cases. In this context, there are “fee-shifting” provisions in the law. ‘Shifting’ in this context refers to ‘shifting the burden’ of paying for an attorney from the employee to the defendant employer. It is important for federal employees to understand how these provisions work before hiring an attorney to represent them.

Civil Rights Cases are Important Enough to Ensure that Federal Employees are Made Whole for the Agency’s Discrimination

We as a society have chosen to ensure that an employee can bring a discrimination claim without fearing that he will end up losing even if he wins. The point is that the employee who brings a claim cannot be “made whole” if he has to pay attorneys’ fees. That is, he cannot be put in the same situation as would have existed if there were no discrimination if he bears the cost of doing so. Forcing an employee to pay for an attorney to right the wrong of discrimination puts the burden of social justice on the person whose rights were violated.

For the individual employee, the point of bringing a claim of discrimination is to stop a wrong and make the situation right again. This means that the employee should be paid wages that he was not able to earn because of the discrimination, and should be compensated for the emotional harms that the discrimination caused. But because there are important civil rights issues at stake, the employee should not have to bear the cost of helping to end discrimination for all of us.

Attorneys’ Fees Encourage Federal Employees to Bring Claims Regardless of the Amount of Money at Stake

Another reason attorneys’ fees are important is that it makes sure that employees bring ADA and civil rights cases even if the issue does not involve a lot of money. We as a society have decided that discrimination, even in small amounts, is still bad, regardless of the dollar cost of that discrimination.

In the ADA context, many employees are discriminated against when they are not given full accommodations as required by the law. Beyond being ungenerous and demeaning, failing to provide a reasonable accommodation impacts the employee’s ability to perform his or her job efficiently. Over the years, the employee may miss out on promotional opportunities, training opportunities, and other benefits that he or she would otherwise enjoy. This is to say nothing of the indignity of an ungenerous agency refusing to provide the minimal accommodation required by the law. But at the moment that the failure to accommodate occurs, there may be next to no measurable cost to the employee.

Discrimination damages our society far beyond what each individual discriminatory act costs. Discrimination tells other people that they are not as valuable, and discourages them from investing in their work. Over time, we all pay the costs of discrimination when this kind of discouragement is pervasive. Small acts of discrimination would never get corrected, and we would all suffer the consequences, without employees being able to get justice for them.

Federal Employees Need to be Able to Afford Justice

Obviously, federal employees often need for attorneys’ fees to be paid because it’s expensive to have an attorney bring discrimination claims against the federal government. Every agency has staff attorneys who handle personnel and discrimination matters. The marginal cost of assigning government attorneys to a discrimination case is almost zero.

But an employee has to seek out someone who has experience in the federal employment field and in particular in EEO cases. This can be expensive, and many employees would have to dip into their savings to be able to afford an attorney. Providing attorneys’ fees to successful litigants ensures that Civil Rights do not become too expensive to enforce.

Federal Employees can Find Attorneys who Work on Contingency

Particularly in the ADA context, as noted before, the dollar amounts at issue may not be very large. For many federal employees, an attorney is simply unaffordable if they have to pay out of pocket. And if they have to rely on the underlying money value of lost backpay or emotional damages, attorneys could only the most egregious cases unless they worked pro bono.

The Civil Rights laws, including the ADA, change this equation. By shifting the cost to employers, the law allows attorneys to be paid for their hard work even if the employee cannot afford it up front. Contingency fee arrangements make it possible for attorneys to take on ADA cases with little or no money being paid by employees. This is particularly important where the employee has lost his or her job and has no income to be able to afford an attorney.

Finding the right Lawyer for an ADA case

Many attorneys (and even some judges) may not be aware that Civil Rights cases provide for payment of attorneys’ fees to employees. That does not mean that all lawyers take ADA cases on contingency, or that a particular ADA claim is right for a contingency arrangement. A client who needs to have a contingent fee arrangement to be able to fund the case may want to ask up front about contingency fees and whether an attorney would consider taking the case on for a contingent fee.

3 Keys to the ADA’s Interactive Process

The ADA's Interactive Process, Getting to YES

Frequently, a federal employee will request a reasonable accommodation, and may even specify the accommodation he wants. The federal agency will respond by offering an accommodation that the employee may not desire. The employee then does not accept the offered reasonable accommodation from the agency. The employee does not continue the negotiations and instead files with the EEO office.

What to know about the ADA’s interactive process

If you find yourself in situations similar to this, there are three things that you should be aware of before going through the EEO office’s process.

  • The agency is required to go through an interactive process with you. At the core of any request for a reasonable accommodation under the ADA is the interactive process between the employee in the employer. Both sides are responsible for interacting with each other to find a reasonable accommodation. That means that if one side or the other does not participate in trying to find a reasonable accommodation, that side can be blamed for failing to find an accommodation. That can subject a federal agency employer to liability under the ADA. For an employee, that can mean that even if no reasonable accommodation is provided, the EEOC will not fault the agency for failing to provide an accommodation.
  • The Agency does not have to give you your preferred accommodation. This may sound counterintuitive at first, but the agency can offer you a different accommodation than the one you were hoping for. However, if that accommodation does not allow you to perform your job, as an accommodation should, then the agency is responsible for trying alternatives and must at least consider your proposal. Part of the interactive process under the ADA is for the employee and the agency to work together to see if an accommodation actually works, and if not to figure out what alternatives there might be.
  • An accommodation must be possible. ADA accommodations are only required if there is some accommodation that would help the employee to be able to do his or her job. If no accommodation is feasible, then the ADA does not fault the employer for failing to provide an accommodation. This is because the ADA did not specifically make it unlawful to fail to participate in the interactive process – it is only unlawful if the process would have resulted in reasonable accommodation.

Federal agencies must provide qualified employees with accommodations

The ADA requires employers to provide reasonable accommodations for disabled employees. However, if the employee cannot perform the essential functions of his or her job with any accommodation, the ADA does not require the employer to make an accommodation.

When it comes to accommodations, having a lawyer may be more important than having a doctor on your side. Doctors frequently do not understand the legal requirements of the ADA. A doctor may state that an employee is totally disabled and unable to perform the essential functions of his or her job under any conditions, believing that this will help the employee. However, when a doctor makes this kind of statement, it actually excuses the employer from providing any kind of reasonable accommodation because the employee is admitting that under no circumstances can he or she perform the job. Such an admission can be grounds for legal termination even under the ADA.

Employees need to be very careful when making requests for accommodations because it may imply that without an accommodation they cannot do the essential functions of their job. The ADA does not require employers to continue to employ employees who cannot perform the essential functions of their job even with an accommodation.

If you believe that you’re facing an issue with ADA accommodations at the federal agency where you work, you should seek out the advice of an attorney to avoid costly mistakes. In attorney can also help you develop the doctors record that you need in order to be able to qualify for reasonable accommodations at the agency.

Breach of EEO Settlement Agreements

Signing an agreement

Here is the situation that some federal employees find themselves in: the employee has previously brought a claim of discrimination and retaliation against the agency that they were working for, and the agency settled that claim through a settlement agreement. That settlement agreement included that the agency was going to remove disciplinary documents from the employees file. Years later, the employee applies for a new job and is mysteriously denied that job. The employee thinks that the agency failed live up to its commitments under the settlement agreement. What can an employee do?

This is the situation that a federal employee recently found himself in. In Tommy R. v. McDonald (Veterans’ Affairs), Appeal No. 0120162117 (EEOC 2016), Tommy suspected that the VA was in breach of its agreement with him to remove disciplinary documents from his file. He brought a claim for breach of the agreement directly with the EEOC’s Office of Federal Operations in Washington, D.C. He claimed that he was frequently being passed over in job applications, and this was likely because of the old disciplinary documents in his file. He did not, however, get a copy of his personnel file to see whether the documentation at issue had in fact been removed.

Lessons about getting the Agency to comply with a settlement agreement

The EEOC held that Tommy had not proven that the agency was in breach of its obligations under its settlement agreement with him. This case has a number of lessons that any Federal employee who has an active EEO settlement agreement with a federal agency should know.

  • Find out whether there has actually been a breach. When an employee believes that there’s been a breach of the settlement agreement, there may be ways of finding out whether the agreement has actually been breached. For Tommy, he could have pulled a copy of his personnel file to check whether the discipline had actually been removed. By not doing this, he had no evidence that the agency had failed to live up to its commitment to remove the disciplinary documents from his file. Employees who believe that there is been a breach should immediately try to obtain evidence, if possible, that they can use to show a breach.
  • File with the EEO Office Director at the agency first. Before an employee can bring a claim a breach of a settlement agreement to the EEOC, the employee must first seek compliance through the agency’s EEO Office Director. In Tommy’s case, he failed to contact EEO Office Director first before going to the EEOC. The EEOC’s Office of Federal Operations only deals with appeals after the federal agency has had an opportunity to review the case. An Employee cannot file first with the EEOC’s Office of Federal Operations. The EEOC can dismiss a case for failing to file with the EEO office director first
  • File with the EEO Office Director within 30 days. A federal employee only has 30 days after he learns of the breach of his settlement agreement to notify the EEO office director that the agency is in breach of its agreement. Even if the employee only suspects that there has been a breach of the agreement, the employee should still file within 30 days. Otherwise, the EEOC will not be able to hear any appeals if the agency continues not to comply with its obligations under the settlement agreement.
  • Show how the agency breached its agreement. The EEOC is able to require the agency to live up to its commitment under the settlement agreement. However, the employee must show that the agency has actually failed to live up to its commitment. In Tommy’s case, he put two and two together and realized that when he applied for jobs within the VA in other locations, the hiring manager may have been relying on the documents that should have been removed from his personnel file. The problem for Tommy was that he could not prove based on his speculation that the agency had in fact failed to live up to the requirements under the agreement without evidence. He could have obtained this evidence by asking for his personnel file. The EEOC therefore could not conclude that the agency had breached its agreement with him, and dismissed the case.

This case shows shows how difficult it can be for employees to require federal agencies to comply with settlement agreements in EEO cases. The EEOC regulations require that employees jump through a number of procedural hoops and present legally sufficient evidence before the EEOC will act to require the agency to comply with the settlement agreement.

Having a lawyer on your side who is experienced in handling federal EEO matters greatly increases the likelihood that the EEOC will require the agency to comply with its obligations under settlement agreements. If you believe that a federal agency has breached its settlement agreement with you, you should act quickly to make sure that you meet the strict deadlines for filing with the agency and the EEOC.

The EEOC Process for Federal Employees (Graphic)

The EEOC process for federal employees can be, even at the best of times, confusing. This info-graphic lays out some of the major events and deadlines that employees face in the process.

The EEO process is divided into two phases

The first phase of the EEO process for federal employees  is filing with the Agency’s own EEO office. This initiates the process and is required in order to file a complaint with the EEOC or to file a discrimination case in federal court. This process ends when the employee files a formal complaint with the EEOC and the agency assigns an investigator who interview relevant witnesses and assembles relevant documents.

After receiving the Report of Investigation (ROI), the employee has the right to bring her case before an EEOC administrative judge. This process includes discovery and concludes when the administrative judge renders a decision, and the agency issues a final agency decision FAD). During this process, the employee goes through discovery to summary judgment, where the administrative judge decides whether there is sufficient evidence to warrant a hearing on the facts of the case. The case proceeds then on to a hearing and a decision by the administrative judge, which the agency can either adopt or reject in its Final Agency Decision.

After the issuance of the FAD, the employee can choose to appeal to the EEOC or filing in federal court, or both.

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Federal employee EEOC Process

Federal managers claim ‘nobody knows’ the reason, EEOC grants summary judgment to Employee

In a recent case before the Equal Employment Opportunity Commission (EEOC), the EEOC’s Office of Federal Operations (OFO) found in favor of a federal Agency employee, Roxane C., because the Agency failed to provide evidence supporting a legitimate, non-discriminatory reason for removing an employee from a training roster, delaying her from starting a job.  (Roxane C. v. Carter).The OFO acts as a kind of court of appeals for federal employees claiming discrimination in federal employment and reviews the decisions of EEOC Administrative Judges and Agencies compliance with those decisions. In the litigation in Roxane C., the Agency attorneys provided a reason why management removed Roxane C. from a training. However, management itself did not testify to any reasons, and claimed not to know why they took this action. The OFO concluded that the Agency did not provide a legitimate, non-retaliatory reason for its actions against Roxane C. and she was therefore entitled to a finding of retaliation. The decision reaffirms that the EEOC will not rubber-stamp Agency lawyers’ claims of a legitimate, non-retaliatory reason without evidence from managers that this really was their motivation.

In this case, Roxane C. was scheduled to attend a training scheduled for April 2011 that involved substantial physical contact while she was in the latter stages of her pregnancy. Over Roxane C.’s objection, the Agency rescheduled Roxane C. for the same training in August 2011. After Roxane C. contacted the EEO office to get the April training date reinstated, the Agency removed Roxane C. from the roster for the August training.

None of Roxane C.’s managers could explain why Roxane C. was removed from the August training roster. One manager asked for Roxane C.’s name to be included on the August training roster, but then stopped communicating about the training after she filed her EEO complaint. Another employee was told to take Roxane C. off the roster, but provided no definitive answer about why he did so. Agency attorneys later argued in legal briefs submitted to the AJ that managers removed Roxane C. because she refused to go to the August 2011 class. None of the managers stated that this was true or otherwise supported it.

Roxane C. brought her EEO complaint before the AJ, who granted the agency’s motion without a hearing and dismissed the complaint. The Agency then adopted the AJ’s decision. Roxane C. appealed the decision to the EEOC’s Office of Federal Operations.

The OFO finds for Roxane C. because her managers could not explain their actions in the face of an inference that they retaliated

As the OFO states in Roxane C., the EEOC generally follows an evidentiary proof scheme permitting employees to challenge discriminatory and retaliatory actions where managers’ motives are inferred from the surrounding circumstances. This is generally known as the McDonnell Douglas scheme. For retaliation cases such as this one, the OFO inferred that Roxane C.’s managers retaliated against her for filing an EEO complaint because they removed her from a training less than three months after she filed her EEO complaint. Under McDonnell Douglas, the Agency then has an opportunity to rebut this inference of retaliation by providing a legitimate, non-discriminatory reason for its action.

The EEOC’s OFO reviewed the Agency’s Report of Investigation (ROI) and other evidence and found instead for Roxane C. According to the OFO, Roxane C. established a prima facie case of retaliation. She filed an EEO complaint in April 2011 and within three months the Agency removed her from its August 2011 training roster as well. The three-month gap between when Roxane C. filed her EEO complaint and when her managers removed her from the August roster created an inference that her managers retaliated against her because she filed her EEO complaint.

The EEOC OFO then explained that the Agency’s submitted evidence did not rebut this inference of retaliation. Agency witnesses offered opinions about why they believed Roxane C. was removed. However, none of the managers actually explained why the Agency removed Roxane C. from the August training roster. The OFO found that without evidence or testimony supporting a non-retaliatory reason, Roxane C. was entitled to succeed on her claim of retaliation. The OFO ordered backpay, training, and reinstatement for Roxane C. and disciplinary action against her supervisors.

The Agency must provide evidence of legitimate, non-discriminatory reasons

This case exemplifies how employees can use the Agency’s testimony against it in litigation before the EEOC. Management is entitled to explain why it took action against an employee. It can also have no explanation. But if the employee can show that the circumstances warrant an inference of retaliation or discrimination, Agency witnesses who claim to have no memory become witnesses for the affected employee.

In the case of Roxane C., the Agency attorneys apparently made up a reason for why management removed Roxane C. from the August 2011 training. They claimed she refused to attend the August training. But the evidence the Agency presented to the AJ did not support this claimed reason. When the Agency claims a specific reason for an action, but managers cannot remember or claim not to know the reason, the employee can use the managers’ lack of memory or knowledge to show that the real reason for the action was discrimination or retaliation. Even if an AJ finds against an employee in such circumstances, the EEOC’s OFO will police the AJs and reverse incorrect decisions on appeal for this reason.

OFO reaffirms the basic lesson of Burdine

In Roxane C., the OFO reaffirms the Supreme Court’s decision in Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981), requiring that once the Complainant establishes a prima facie case of discrimination, the Agency must come forward with evidence of management’s decision, not just any explanation. See Roxane C. v. Carter, 2016 EEOPUB LEXIS 1875, EEOC No. 0120142863, at *34-35 (EEOC July 19, 2016) (citing Young v. Dept. of Treasury, EEOC Appeal No. 05940517, 1995 EEOPUB LEXIS 2889 (Oct. 13, 1995)). The Agency must provide “a specific, clear, and individualized explanation” for the actions taken against the Complainant. Id. at 35. See also id. at *36 (citing Burdine, 450 U.S. at n.9 (“An articulation not admitted into evidence will not suffice. Thus, the defendant cannot meet its burden merely through an answer in the complaint or by argument of counsel.”)).

For Roxane C., there was “no stated reason” why she was removed from the August 2011 training. Id. at *36. Instead, one of her managers stated that after she filed her EEO complaint, he was waiting for someone else to take action. Id. at *37-38. Another manager stated that excluding her may have been an oversight. Id. at *38. The OFO held that the managers’ “testimony provides no insight into why Complainant was removed from the August training except that management ceased communication with Complainant after she filed an EEO complaint.” Id. at *39.

The OFO also reiterated that the Agency’s reason must be articulated sufficient to permit the Complainant to show the Agency’s proffered reason is pretext.  Id. at *35 (citing Burdine, 450 US at 255-56 (a complainant is entitled to some rationale that provides an opportunity to attempt to satisfy the ultimate burden of proving that the proffered explanation was a pretext for discrimination).  By failing to provide an explanation from management identifying a non-retaliatory reason for removing Roxane C. from the August training, the Agency “did not sufficiently state a legitimate, non-discriminatory reason for removing Complainant from the August course, giving her the opportunity to show pretext.”  Id. at *40.

In opposing Agency motions for a decision without a hearing, Complainants must take care to review not only the Agency’s stated reason in its motion, but also how the responsible management officials’ testimony supports or fails to support the claimed reason.  Agency officials may try to ‘pass the buck’ to others by claiming not to remember or to know a reason.  This problem is compounded by the EEOC investigation process, which allows responsible management officials to draft and sign their own statements under oath without any real review.  Later, these management officials would have to contradict their own prior sworn testimony if they wish to articulate a legitimate, non-discriminatory reason for their actions.  Sticking one’s head in the sand frequently proves to be a poor strategy.  Complainants can turn management’s claimed lack of memory or knowledge to their advantage by showing that management cannot come forward with a reason.  Roxane C. shows just how successful this argument can be.

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