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

Don’t Accept the Agency’s Reason for Not Hiring You

A lot of people learn that they didn’t pass the physical or some other medical examination when after receiving a conditional offer for a federal job. That’s actually a red flag that disability discrimination might be at work. The Nathan case – the FBI rejects an applicant because of monocular vision. Take the case of … Read more

Fighting Inadequate & Delayed EEO Investigations

Typed Investigation

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.

Sexual Orientation Discrimination Covered by Title VII

Gay Pride Flag

Recent cases before the Equal Employment Opportunity Commission enforce anti-discrimination rights for LGBTQ federal employees. For many years, federal employees were not protected from discrimination based on their sexual orientation. Employees who were gay, lesbian, bisexual, or transgender faced discrimination in Federal employment. These employees had few protections under the law because they could not rely on state laws forbidding discrimination based on sexual orientation.

More recently, however, federal agencies have been required to recognize that Title VII’s prohibition on”sex” discrimination includes a prohibition on discrimination based on an employee’s sexual orientation. In 2015, the EEOC decided in Baldwin v. Foxx, Appeal No. 0120133080 (EEOC July 15, 2015), that title VII did in fact prohibit sexual orientation discrimination. The EEOC is responsible for ensuring that federal agencies comply with federal anti-discrimination laws.

The EEOC relies on ‘sex stereotyping’ to recognize sexual orientation discrimination

Underlying the Baldwin decision is the 1989 supreme Court decision in Price Waterhouse v. Coopers. In that case, a six-justice majority concluded that title VII’s prohibition on sex discrimination included both the physical sex of the person and that person’s gender. In that case, the  employee had been told that she would have to act more feminine around the office in order to be successful in her job. This kind of sex stereotyping was held to be unlawful under title VII.

Many of the Courts of Appeals that are underneath the Supreme Court have interpreted this as prohibiting discrimination based on characteristics of an individual’s gender. Moreover, in a 1998 case, the Supreme Court held that male-on-male discrimination could still be considered sex-based discrimination. More recently, the Seventh Circuit has held that “sex” discrimination also includes discrimination based on sexual orientation, in Hively v. Ivey Tech Community College, 853 F. 3d 339 (7th Cir. 2017).

The EEOC points to three theories to support sexual orientation discrimination coverage under Title VII

The EEOC relied on three different theories of discrimination to support its reasoning why sex discrimination included discrimination based on sexual orientation.

  • Comparative discrimination. Because any action taken based on an employee’s sexual orientation would necessarily refer to that employee’s sex (male or female), the EEOC concluded that sexual orientation was forbidden under title VII. The EEOC justified its decision by pointing out that if a (straight) male and (lesbian) female employees were each to post a picture of his and her wife, but only the female employee was punished, that would constitute a different treatment based solely on the employee’s sex. This kind of comparative analysis is frequently used in determining whether an employee is being harassed based on his or her sex.
  • Associational Discrimination. The EEOC also based its analysis of title VII on the prohibition against what is called “associational discrimination.” It is unlawful under title VII to discriminate against a person because that person associates with members of a different race, national origin, or the like. The same logic applies, according to the EEOC, to people who romantically associate themselves with members of their own sex.
  • Stereotype-based Discrimination. If an employer expects an employee to act in a way that conforms with a stereotype of that person’s gender, that is also discrimination. For example, employees who did not act ‘manly’ enough or ‘feminine’ enough to fit the employer’s expectations. Discriminating against a gay, lesbian, or transgender person almost always involves assumptions about what is masculine or feminine behavior. The EEOC concluded that taking action based on and employees failure to conform to this gender stereotypes constituted unlawful sex-based discrimination under Title VII.

Many employers may not be aware that sexual orientation discrimination is considered to be unlawful under Title VII. Federal employers are prohibited from taking employment actions based on the employees sexual orientation.

If you believe that you have been the victim of sexual orientation discrimination, whether at a federal agency or in any other kind of employment, you should contact your EEO counselor as soon as possible. And attorney can be helpful in analyzing the facts of your case and helping you to obtain the protections of the law that are your right.

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.

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.