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. 

Teleworking up to 100% of Work Time can be Required for Federal Employees under the ADA

Teleworking from home

Recently the federal government has sought to limit telework for federal employees. However, the ADA still requires agencies to provide telework, even 100% telework, to disabled employees who need it. Many Managers often wrongly assume that working from home is not really working. Managers often use spurious excuses to prevent employees from using telework. The Americans with Disabilities Act (ADA) requires federal agencies to offer disabled employees telework if they need it. Two recent cases show that federal agencies who try to prevent disabled workers from teleworking face serious sanctions for failing to provide reasonable accommodations.

100% Telework can be required under the ADA

In 2015, the EEOC required the Department of Housing and Urban Development to compensate an employee who requested telework because of his Ankylosing Spondylitis. This condition made it painful for the employee to drive long distances to and from work. He therefore requested to work 100% telework. HUD argued that the functions of the position required the employee to be on the road to check in on troubled housing locations and to come into the office for meetings with colleagues. The EEOC rejected these arguments, noting that the evidence contradicted that these were serious concerns justifying denying telework. Mail could be scanned and emailed to the employee and meetings could be attended effectively by phone. Therefore, the agency violated the ADA by not providing 100% telework. See Lavern B. v. Castro, EEOC Appeal No. 0720130029 (Feb. 12, 2015).

Telework can be combined with a lateral move to meet ADA requirements

In another recent case, the EEOC required the Department of the Interior to compensate an employee because it had not considered a teleworking accommodation in conjunction with offering him a different position. The employee in this case had a similar disability preventing him from driving long distances. Before litigation, the agency offered the employee two potential alternative worksites. Because driving to these worksites would violate his medical restrictions, the employee declined the moves. The agency then terminated the employee. The EEOC found that if the agency had continued to work with the employee to find an accommodation, as it was required to do, the agency could have offered the employee the two positions and telework 100% of the time. This would have accommodated his needs and met the agency’s obligations. The EEOC stated:

In allowing an employee to telework[,] an employer “may need to reassign some minor job duties or marginal functions . . . if they cannot be performed outside of the workplace.” . . . [A]n employer should not, however, deny a request to telework as a reasonable accommodation solely because a job involves some contact and coordination with other employees. [] Frequently, meetings can be conducted effectively by telephone and information can be exchanged through e-mail. Harvey G. v. Jewell, EEOC Appeal No. 0120150844 (Feb. 4, 2016).

Federal agencies should be model employers in providing accommodations, including telework

The EEOC has reminded agencies that federal agencies are not just any employer—they are to serve as models for the rest of the American workforce. Telework is becoming a reality for many federal agencies, despite recent attempts to limit federal employees from working from home. Many federal agencies assume, often without evidence, that working from home is not really working. But even if the agencies severely limit teleworking, the ADA still requires agencies to provide teleworking as an accommodation for disabled employees.

If you feel that you have been denied a reasonable accommodation or have otherwise been discriminated against, contact a lawyer  experienced in handling EEO matters for federal employees. You have a limited time to contact and EEO counselor.