A valuable source of information for EEO professionals is EEOC’s The Digest of Equal Employment Opportunity Law.  In the last two Digests, EEOC presented some interesting cases.  We have compiled a list of those that investigators and those who review reports of investigation (ROI) may be interested in…

We found this first case serves as a great reminder of what is important and exactly what EEOC expects in a failure to promote claim, including demographic data and the selecting official’s selection history…

Investigative Record Inadequate. The Agency issued a decision finding no discrimination on Complainant’s failure to promote claim. On appeal, the Commission found that the Agency’s decision, reached without a hearing, was not proper because the investigative record was inadequate. In addition to other missing information, the record was devoid of profiles or demographic information regarding prior selections by the Selecting Official, documentation or verification regarding the disciplinary history of candidates other than Complainant and an explanation as to why discipline was used as a criterion. The record also did not contain complete application packages of candidates or Complainant’s full affidavit in this matter. Ordering a supplemental investigation, the Commission reminded the Agency that while its burden of production is not onerous, it must provide a specific, clear, and individualized explanation for a non-selection so that Complainant has an opportunity to prove that the Agency’s explanation is a pretext for discriminatory animus. Byron E. v. Tenn. Valley Auth., EEOC Appeal No. 0120140939 (June 9, 2016).

This next case provides important guidance on the importance of collecting information related to the prima facie case, specifically related to comparators. You’ll also note that EEOC remanded this to the agency to obtain management’s articulated reasons for its actions, which the ROI lacked. 

Commission Found the Investigation Was Inadequate. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race, disability, age, and in reprisal for prior protected EEO activity when she was involuntarily reassigned. On appeal from the Agency’s decision finding no discrimination, the Commission found that the investigative record was inadequate. The Commission noted that the investigation failed to acquire information necessary to prove an essential element of Complainant’s prima facie case, specifically, evidence of the races of the comparators identified by Complainant who were allegedly allowed to remain on detail. The investigative record also failed to set forth the Agency’s articulated reason for imposing an involuntary reassignment on Complainant. The manager responsible for implementing the reassignment did not provide an affidavit or statement despite the investigator’s documented efforts to obtain information from him. Ordering a supplemental investigation, the Commission reminded the Agency that while its burden of production is not onerous, it must provide a specific, clear, and individualized explanation for its action so that Complainant is provided with an opportunity to prove that the Agency’s explanation is a pretext for discriminatory animus. Anisa U. v. U.S. Postal Serv., EEOC Appeal No. 0120141580 (July 20, 2016).

Finally, in this case, EEOC found there was not enough information in the ROI to justify the agency’s conclusion that the Complainant was not a qualified individual with a disability.

Agency Failed to Adequately Investigate Complainant’s Claim of Disability Discrimination. Complainant, a Marine Corps veteran, filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability, Post Traumatic Stress Disorder (PTSD), when he was removed from consideration for a Deputy U.S. Marshall position. The Agency issued a final decision assuming Complainant had a covered disability, but concluding that he was not a qualified individual with a disability because of his PTSD. The Agency found that Complainant was disqualified from the position because his PTSD was not fully controlled, and he could “suffer sudden or subtle incapacitation” while serving in the position. On appeal the Commission noted, however, that Complainant’s treating psychologist opined that Complainant was not experiencing symptoms of PTSD at that time. The Commission determined that Complainant’s history of service to the country, coupled with his noticeable and documented improvement in a relevantly short period of time, suggested that the Agency should have clarified or expanded its individualized assessment. The Commission noted that a personal examination by the Agency’s own Contract Psychiatrist would have been appropriate. The Commission ordered a supplemental investigation to clarify the record. Floyd C. v. Dep’t of Justice, EEOC Appeal No. 0120121887 (November 3, 2015).

These are just three of many cases EEOC shares in its digest.  If you’re interested in reading more, click here to go to EEOC’s webpage.

 

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