By Deryn Sumner, August 16, 2017

On August 10, 2017, the EEOC’s Office of Federal Operations announced the issuance of its most recent digest of notable cases, constituting the third volume for fiscal year 2017.  The digest highlights and summarizes notable cases issued by the EEOC in recent months.  The cases are organized by subject area and this edition includes a special article on disparate treatment.  Disparate treatment is likely the most common theory of discrimination we see as federal sector practitioners and it is, at its core, the most logical theory of discrimination.  When you speak to an individual who believes they have been treated poorly in the workplace and you ask why they think it is discrimination, most often they will point to co-workers not of their protected class whom they believe are treated better by management, in support of their claims.  However, as we know, there are definitions that must be met to determine who is a proper comparator employee, for purposes of establishing disparate treatment, and this article highlights some recent cases on the subject.

The digest also addresses cases where the Office of Federal Operations reversed dismissals of claims and reinstated them for processing, awards of attorneys’ fees and costs, certification of class complaints, compensatory damages, and findings on the merits.  Of particular note is Dona A. v. SSA, EEOC Appeal No. 0120150376 (March 29, 2017), where the Commission found the Administrative Judge acted properly in dismissing the complainant’s hearing request because the complainant failed to respond to discovery requests.  Although the complainant argued that she was hospitalized due to a medical condition, the Commission found persuasive that neither the complainant nor her attorney notified the agency of her hospital stay for more than three weeks after the deadline to respond to the Agency’s discovery requests had passed.  The Commission addressed similar conduct by a complainant in Alfred S. v. Social Security Administration, EEOC Appeal No. 0120140900 (January 6, 2017), where the complainant failed to respond to discovery for more than a year and the administrative judge dismissed the hearing request as a sanction (which I assume is more of a function of the administrative judge being too overwhelmed with other cases to address a pending motion to compel than anything else).

The Commission also chose to highlight its decision in Jeremy S. v. Department of Veterans Affairs, EEOC Appeal No. 0120142917 (February 9, 2017), where the Commission found the agency’s failure to start an EEO investigation until 322 days after the formal complaint was filed, worthy of default judgment in the complainant’s favor.  The Commission noted that this particular agency had been subject to default judgments at least three times for the exact same conduct: failing to initiate an investigation within 180 days.

Turning to findings of discrimination, the Commission summarized its decision in Marine V. et al v. Social Security Administration, EEOC Appeal No. 0720170001 (March 20, 2017), which found the Agency discriminated against multiple employees on the basis of age by basing selections for a Claim Representative position solely on an exam score without taking into consideration qualifications, job performance, appraisals, or experience with the Agency.  The Commission also discussed three findings of disability discrimination, religious harassment, and sexual harassment and retaliation.

The digest is available here: https://www.eeoc.gov/federal/digest/vol_3_fy17.cfm.

Sumner@FELTG.com

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