By Deryn Sumner, January 18, 2017
A few weeks ago, someone stopped by my office and asked me to list what I considered the most important cases issued by the EEOC’s Office of Federal Operations in 2016. And I’m pretty sure I looked up from the pile of work I was trying to complete before the holidays with a dazed expression on my face, until the person walked away not expecting an answer. When I came back to the question a few days later, I still couldn’t come up with much a response. Past years have seen groundbreaking decisions that expand the coverage of Title VII and grant standing to more employees, like Mia Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) (holding that claims of transgender discrimination state claims of sex discrimination) or David Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015) (determining that sexual orientation claims should be processed as sex discrimination claims).
But looking back on 2016, I could not easily identify such notable cases. Luckily, the EEOC did the work for me and a few days ago issued Fiscal Year 2017, Volume 1 of its Digest of Equal Employment Opportunity Law. You can find the full digest here: https://www.eeoc.gov/federal/digest/vol_1_fy2017.cfm. Since the cases were pulled from the Commission’s fiscal year, which runs from October 1, 2015 through September 30, 2016, it does include some 2015 cases. But for our purposes (and since I did see fit in FELTG’s December 2015 newsletter to expound upon my list of notable OFO cases from 2015), I’ll focus on the 2016 cases the EEOC included. We’ll call it the notable cases of the notable cases of 2016.
First up, in Candice B. v. Department of Homeland Security, EEOC Appeal No. 0120160714 (June 1, 2016), the EEOC certified a class action defined as “all women who were required to take PCE-1, PCE-2, and the FCS and failed to pass the push-up qualification standard at any stage.” We discussed this case in more detail in the July issue of the newsletter.
In cases involving high awards of non-pecuniary compensatory damages, the Commission affirmed an award of $192,500 to the complainant in Ervin B. v. USPS, EEOC Appeal No. 0720150029 (March 15, 2016). There, the Commission found the award appropriate based on “the shock, embarrassment, and great upset in being placed in off-duty status, destroying his unblemished record of not getting in trouble with criminal law and what this did to his identity, the humiliation, despondency, extreme anxiety and ruminations resulting from the criminal action and being booked, having an invasive strip search, and being put in a holding cell; the damage to his reputation among neighbors, co-workers and customers on his route because of the criminal action, the worry, hysterical crying spells, and fear of being convicted and having his life destroyed as he knew it, the financial struggles from being put in off-duty status for an extended period, his loss of a sense of having a new start when shortly after returning to work he received a retaliatory seven day suspension, the loss of self-worth and self-esteem and going from jovial to withdrawn, the sleeplessness, nightmares, depression, damage to his marriage and PTSD stemming from the Agency’s actions, the lessening in control of his glucose levels partly as a result of the discrimination, not being able to work for extended periods, and the emotional damage which continues to this day.” This case is a prime example of how even awards at the higher end of the range fail to adequately compensate an employee for what they have experienced.
In Glynda S. v. Department of Justice, EEOC Appeal No. 0120133361 (February 23, 2016), the EEOC issued default judgment in the complainant’s failure because the agency waited over a year to file a Final Agency Decision which the Commission found created an “extreme delay [which] stranded Complainant in a procedural ‘no-man’s land’ wherein she had no recourse within the administrative EEO process until the Agency issued its final decision.” The Commission has not consistently held agencies accountable for delays in timely completion of investigations, or issuing final agency decisions and final actions, but found it appropriate to grant default judgment in this case because, in part, the Commission had previously warned the Department of Justice that delays in issuing final decisions were concerning. See Sylvester v. Department of Justice, EEOC Appeal No. 0120101890 (November 18, 2010).
And finally, in Ivan V. v. Department of Veterans Affairs, EEOC Appeal No. 0120141416 (June 9, 2016), the Commission found that a supervisor engaged in per se retaliation when he asked the complainant if he planned to “play the Latino card” while investigating a complaint from another employee. The Commission found that these comments could have a chilling effect on the EEO process and constituted a per se violation of the anti-retaliation provisions of Title VII.
Watch this space to see what 2017 brings us from the Office of Federal Operations.