Fighting Inadequate & Delayed EEO Investigations

When federal employees file formal EEOC complaints, regulations require that the agency conduct an investigation within 180 days. (29 C.F.R. § 1614.108). The investigation must “develop an impartial and appropriate factual record” that enables the agency to make findings and, in appropriate cases, to award compensation to the victim. 

Unfortunately, agencies are responsible for conducting investigations against themselves. Agencies will sometimes delay investigations well beyond the 180 days that they are permitted under the regulations, and/or the agency will conduct an inadequate investigation. Employees become responsible for requiring the agency to conduct the investigation they should be legally entitled to. The cases below show that the EEOC is taking steps to ensure that agencies cannot just ignore employee’s discrimination complaints and attempt to sweep allegations of discrimination under the rug. 

Inadequate Investigations

Most investigations are conducted by outside contractors, although many of the DOD components and the VA have internal investigators (who are often quite good, in my experience). Contract investigators often have little incentive to develop evidence on behalf of the complainant employee. Two recent cases highlight how this can become a problem.

The Agency Interviews None of the Employee’s Witnesses

In Julius P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120162827 (Mar. 6, 2018), a VA employee based in Texas was told that he could no longer use annual leave in place of sick leave, which had been exhausted. He was later told that he could only take leave for service-connected medical appointments. The supervisor began charging him AWOL when he was late to work instead of allowing him to take annual leave. Demoralized by his supervisor’s callous treatment, the employee began missing work, and requested Family and Medical Leave (FMLA). However, the agency charged him with AWOL. 

During the investigation, the employee provided the EEO investigator with a list of six witnesses to interview. The investigator failed to interview any one of these witnesses. Instead, the investigator only sought information from the supervisor and other management witnesses. 

The EEOC’s regulations require that an investigator identify and obtain “all relevant evidence from all sources regardless of how it may affect the outcome.” In this case, the EEOC found that this investigation “unfairly restricted the [employee’s] ability to prove . . . discrimination[.]” The EEOC noted that: 

An investigation must include “a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the Complainant’s group as compared with the treatment of similarly situated employees . . . and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant.”

The EEOC remanded the investigation back to the agency to interview these witnesses and to conduct a thorough investigation as required under federal regulations. 

Agencies can Ignore Witnesses only if Interviews are Shown to be ‘Unduly Burdensome’

In a similar case, Emiko S. v. Dep’t of Commerce, EEOC Appeal No. 0120170543 (Apr. 27, 2017), the EEOC reversed the agency’s finding of no discrimination where the agency failed to interview nine of the ten witnesses identified by the complainant employee. The one witness who was interviewed stated that she saw a “downward spiral” in the relationship between the employee and his managers after the employee began to complain about her treatment. Despite this, the investigator claimed that the other witnesses probably did not have relevant information. 

The EEOC found instead that there was no basis for the investigator to fail to interview these witnesses identified by the complainant employee. An investigator may only ignore witnesses identified by the complainant employee if contacting the witnesses would have been “overly burdensome”—meaning that information to be provided by these employees was clearly outweighed by the time and effort needed to conduct the interview. The investigator must include a reason why this is the case. 

Employees face an uphill battle in getting investigations completed by the agency. Unfortunately, it has in many instances become the job of the employee to hold the agency to account for investigators failing to do their job adequately. Fortunately, the EEOC is policing the agencies and requiring complete investigations. 

See also: 

Delayed Investigations

Another problem that federal employees face is an agency that delays or completely fails to conduct any investigation at all. The agency has a legal obligation under the regulations to conduct an investigation and to do so in a timely manner. Failure to do so not only deprives the employee of the opportunity to obtain evidence to support a discrimination claim, it prevents the EEOC from effectively overseeing federal agencies’ compliance with the anti-discrimination laws. 

In Complainant v. Deborah Lee James (Air Force), EEOC Appeal No. 0720090009, the EEOC issued sanctions against the Air Force for delaying in providing the EEOC with the complainant’s file. The agency claimed that it had tried to contact the administrative judge about the case. However, the administrative judge noted that she had been present in the office the entire week and her email and phone number had been provided to the agency’s attorney. The other excuses that the agency provided for its failure to comply with requirements were found not to be a ‘good cause’ for delaying the case. 

The EEOC has issued default judgment in certain cases where the agency had no good cause for failing to investigate allegations of discrimination properly. That is, it has found in favor of the employee without allowing the agency to provide evidence in its own favor.

The EEOC has issued this ultimate punishment in EEOC cases where the agency has simply ignored its obligation to conduct an impartial investigation. Hopefully more cases like these will not have to be decided by the EEOC before the agencies get the message.

Employees need to stay vigilant

The EEOC can only issue sanctions against the agency when the employee comes forward and holds the agency’s feet to the fire. Employees who are facing long waits and uphill battles with agencies should consider filing for sanctions. These cases should provide employees with ammunition to get sanctions and to hold agencies accountable. 

Effective ADA Accommodation: What are Federal Employees Entitled To?

Subway disabled sign with "Effective ADA Accommodations" over it

The Americans with Disabilities Act (ADA) requires federal agencies as employers to provide effective ADA accommodations for its employees. The law requires agencies to provide employees with accommodations that will allow the employee to perform the essential functions of the position – this is the definition of an effective ADA accommodation. However, if the employee cannot perform the essential functions even with the accommodation, the agency is not required to provide that accommodation. In that case, there would be no effective ADA accommodation for that employee.  This can mean that a federal employee who produces sub-standard work while being accommodated can be denied that accommodation in the future. Employees are required to participate in the ADA interactive process with their employer in finding an accommodation that works. The EEOC cases below illustrate how this works in practice.

An effective accommodation must allow the employee to perform the essential functions of the job

An effective ADA accommodation is one that allows the employee to perform the essential functions of the position. This requires federal agencies to provide their employees with various alternatives, such as teleworking, assistive devices, and leave, if those accommodations would allow the employee to perform the core functions of the job successfully. The EEOC has stated:

An “effective” accommodation either removes a workplace barrier, thereby providing an individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment.  EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship (revised October 17, 2002) at question 9.

An agency cannot ignore an accommodation that it does not want to provide if the accommodation is effective at enabling the employee to perform these essential functions.

In McCoy v. Department of Veterans Affairs, an education program manager in Utah was ordered to cease teleworking because the agency had determined that the overall teleworking program was not working. The employee requested a reasonable accommodation due to her multiple sclerosis (MS), which was unpredictable in its effects. This made it difficult or impossible for her to commute to work. Nevertheless, the agency failed to provide teleworking and labeled teleworking merely a ‘convenience.’ The EEOC, however, concluded that the agency failed to provide a reasonable accommodation. Teleworking was effective by allowing the employee to avoid commuting and continuing to work at home. The agency’s priority, bringing all teleworking employees back to work at the facility regardless of the reason, conflicted with the requirements of the ADA. An ADA accommodation that does not rise to the level of meeting the employee’s need is not effective. McCoy v. Department of Veterans Affairs, EEOC Appeal No. 01A20346 (May 12, 2003).

Employees who need an accommodation to work in the federal government are entitled to an accommodation that meets their needs and enables them to work. The ADA does not allow the agency to deny an employee an accommodation because it wants to apply a blanket policy to all its employees. When there is a conflict between an agency’s priorities and the employee’s need for an accommodation, the agency’s priority must give way to the accommodation.

“Effective” accommodation means that the employee is enabled to perform his job functions

A federal agency is not required to provide a reasonable accommodation where the employee is un able to perform his job at a satisfactory level. If the employee is failing to come to work on time or has attendance issues, the agency can view a request that could exacerbate these tendencies as ineffective if it impacts the employee’s work. In such a case, there is no effective ADA accommodation that allows the employee to

In Petition No. 0320150024, a patent attorney with OCD requested a reasonable accommodation of working at home via telework. Several managers testified, however, that the employee previously had issues with time and attendance while teleworking. The EEOC concluded that because the employee had prior difficulties that showed that he was unable to meet the basic functions of the job, the telework accommodation was not effective. The employee was not entitled to this accommodation. Petitioner v. Deborah Lee James, EEOC Petition No. 0320150024 (May 19, 2015).

Federal employees are entitled to a reasonable accommodation that will enable them to perform the essential functions of their position. If the employee would not be able to perform those functions with the accommodation, it is not effective. Agencies are not required to provide ineffective accommodations.

Performing the essential functions is a requirement even with an accommodation

The ADA does not require an agency to accommodate an employee if there is no possible “effective” accommodation—that is, where the employee cannot perform the essential functions of the job. In Charlie Love v. Donohoe, the employee was a janitor with the U.S. Postal Service. The employee requested  permanent light duty and requested that other positions in his locale be found. Based on the evidence, however, the EEOC found that the employee was unable to perform the essential functions of his position because of the restrictions caused by his disability. Therefore, the EEOC concluded that the employee was not entitled to an ADA reasonable accommodation. Charlie Love v. Donohoe, EEOC Case No. Appeal No. 0120093794 (Dec. 9, 2011).

Employees who are seeking an accommodation need to be aware that if they cannot perform the essential functions of the job, there is no effective ADA accommodation. This is the reverse of what “effective” means—an accommodation that permits the employee to perform the essential functions of the job. In such a case, like in Charlie Love, the employee is not entitled to any ADA accommodations because there is no effective ADA accommodation.

The agency can choose among effective accommodations, not necessarily  the employee’s favored accommodation

An employee is entitled to an “effective” accommodation, but if there is more than one effective accommodation, the agency may choose which to provide. The Agency ultimately has the final say in what effective accommodation is provided:

It is the [EEOC’s] position that if more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration; however, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.” 29 C.F.R. § 1630.9

In Schulz v. Potter, a custodian suffered from sinusitis and allergies because of workplace dust. He requested that the agency provide a mechanical-filtered respirator. However, the agency only provided a dust mask. The EEOC concluded that the dust-mask was at least minimally effective, and therefore the custodian was not entitled to the accommodation of his choice. Schulz v. Potter, EEOC Appeal No. 0120073186 (Jan. 15, 2008).

In Glenda Wearre v. Panetta, an accounting technician requested to be moved away from certain smells and smokers in her workplace. The agency moved the employee once. When that location did not work, the agency offered numerous other locations. The employee rejected all of these, but never explained why they were not effective. The EEOC concluded that the employee was not entitled to the accommodation of her choice, so long as the accommodations offered were effective. The employee had rejected the accommodations without explanation. Hence, she could not demonstrate that the offered accommodation was not effective. Therefore, she was not entitled to further accommodation. Glenda Wearre v. Panetta, Appeal No. 0120100926 (Jan. 5, 2012).

Finding an effective accommodation can be a process, and managers often do not understand this

Employees are entitled to be accommodated. This often means in practice that an employee may have to try out different accommodations to find one that works, or the employee may have to explain why the accommodations offered by the Agency do not work for that employee.

Federal employers often do not understand these requirements. Supervisors rely on advice from Labor-Management Relations Specialists who may not be aware of all of the circumstances of an individual’s case. Managers can often ignore unseen but very real disabling issues for employees. The EEOC case law features many cases where supervisors ignored employees’ requests for reasonable accommodation because they thought all employees had to be treated the same. Knowing the right approach is critical to complying with the ADA.

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.

Per Se Retaliation – Federal Supervisors Unlawfully Threaten Employees

Man yelling at phone

In two separate cases in 2017, the EEOC found that federal supervisors committed per se retaliation, meaning that the actions taken by the agency were unlawful on their face. In most instances when an agency takes an employment action, the agency’s motive is unclear. In per se retaliation, by contrast, the agency discourages or announces its intention to prevent an employee from filing or supporting claims of discrimination against the agency.

Supervisor behavior that has a potentially chilling effect on employees who use the EEO process is a per se violation of the EEO laws. The EEO complaint process is the primary tool that employees can use to enforce equal employment opportunity. Per se retaliation, which openly discourages employees from filing or supporting discrimination complaints is not just wrong, it is legally prohibited under Title VII of the Civil Rights Act of 1964 and related laws.

Supervisors threatening employees is per se retaliation

In one case, two managers pulled the employee into an office, told him they were investigating a complaint, and asked him if he intended to “play the Latino card.” The EEOC found that this comment on its face discouraged the employee from participating in the EEO process, such as by supporting his own or another employee’s complaint. The EEOC ordered the agency to investigate the damages that the employee suffered and to take disciplinary action against the supervisor who made these statements. (Ivan V. v. McDonald).

In another case, the managers’ statements were even more egregious. He told one of his employees: “If you do this [make an EEO complaint], I will get you.  It may take two months, two years, five years, but I will get you.” He stated that “nothing would stick” to him and that he had so many complaints before in the past. He told employees that he worked with the agency attorneys and any complaints would “go nowhere.” He told employees that they should not grieve anything “if we know what’s good for us.” The EEOC found that these statements in themselves constituted unlawful reprisal and were “at best, an ignorance of his responsibilities under EEO laws and, at worst, blatant disregard for the rights of individuals under those laws.” The EEOC ordered that the agency pay $19,385 in attorneys’ fees, $8,000 in compensatory damages, and post notice of the finding of discrimination. (Mindy O. v. Dep’t of Homeland Security).

Other EEOC cases finding per se retaliation

The EEOC has found instances of per se retaliation in previous cases, including:

If you believe you have been the victim of retaliation, you may have a very limited time to contact an EEO counselor to report it. You may want to consider contacting an experienced EEO lawyer who can help you through the process.

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