OEDCA DIGEST

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					                  OEDCA DIGEST
 Vol. IV, No. 4           Department of Veterans Affairs                        Fall 2001
                       Office of Employment Discrimination
                              Complaint Adjudication



Summaries of Selected Decisions Issued by the Office of
 Employment Discrimination Complaint Adjudication




                                 FROM THE DIRECTOR

The Office of Employment Discrimination Complaint Adjudication is an independent, ad-
judication unit created by statute. Located in the Office of the Secretary, OEDCA‟s
function is to issue the Department‟s final decision or order on complaints of employ-
ment discrimination filed against the Department. The Director, whose decisions are
not subject to appeal by the Department, reports directly to the Secretary of Veterans
Affairs.

Each quarter, OEDCA publishes a digest of selected decisions issued by the Director
that might be instructive or otherwise of interest to the Department and its employees.
Topics covered in this issue include age discrimination, management‟s burden of ex-
plaining its actions, nurse promotions, retaliation claims, education as a selection factor,
disability discrimination, and dismissals for mootness.

Also included in this issue are data from EEOC‟s FY 1999 Federal Sector Report on
EEO Complaints Processing and Appeals, as well as frequently asked questions and
answers concerning disability-related inquiries and medical examinations of employees.

The OEDCA Digest is available on the World Wide Web at: www.va.gov/orm.



                                   Charles R. Delobe


Case Summaries……………………………………………………………………………...2
EEOC’s FY 1999 Federal Sector Report on EEO Complaints Processing..………….12
Q & A’s on Disability-Related Inquiries and Medical Examinations of Employees…..14
                         OEDCA DIGEST

                    I                       made the final decision. The Chief of
                                            Medicine, however, testified that, while
AGE DISCRIMINATION MOTIVATED                he signed the formal personnel action,
DECISION NOT TO HIRE DENTIST                he did not know why the selectee was
                                            chosen, and that the decision rested
The complainant, age 57 at the time,        mainly with the Chief of the Dental Ser-
applied but was not hired for a Staff       vice. Moreover, he testified that he in-
Dentist position. He had 29 years of        itially voted for the complainant, but later
clinical experience, including a private    changed his vote so that the panel‟s de-
dental practice during the 13-year period   cision would be unanimous.
immediately preceding his nonselection.
He also had eight years of teaching and     Given the vague and unsupported rea-
administrative experience at a dental       sons advanced by two panel members,
school where he served as an Assistant      the reluctance of any of the panel mem-
Professor, Assistant Dean, Associate        bers to accept responsibility for the final
Dean, and Department Chair.                 decision, and the wide disparity in quali-
                                            fications between the complainant and
The person hired, age 26 at the time,       the selectee, OEDCA concluded that
had recently graduated from dental          management had failed to articulate le-
school and had less than one year of        gitimate, nondiscriminatory reasons for
clinical experience.                        its decision, and that the reasons cited
                                            for the decision were a pretext for age
A three-member panel, consisting of a       discrimination.
Supervisory Dentist, the Chief of the
Dental Service, and the Chief of Medi-      Normally, courts and administrative fact-
cine, were involved in the interview and    finding bodies such as EEOC and
selection process.                          OEDCA will not disturb an employer‟s
                                            business judgment regarding the rela-
The reasons cited by the panel mem-         tive qualifications of applicants for em-
bers for the complainant‟s nonselection     ployment or promotion. Employers are
were vague and inconsistent. For ex-        free to exercise their own business
ample, one panel member stated that         judgment, as long as that judgment is
the selectee had the type of personality    not based on discriminatory criteria.
that would enable him to “blend in” bet-    However, as we noted in the Summer
ter. Another stated that the selectee       2001 edition of the OEDCA Digest, evi-
performed better during the interview,      dence of discriminatory motive may be
but was unable to provide specifics,        established if a complainant can show
such as interview notes, rating sheets,     that his or her qualifications are “plainly
or any other information that would ex-     superior” to those of the selectee. In
plain why the selectee performed better     this case, the complainant‟s qualifica-
than the complainant.                       tions were, by any reasonable standard,
                                            observably and plainly superior to those
Both of these officials also claimed that   of the selectee. The disparity in qualifi-
they were not the decision makers, and      cations was so great, and manage-
that it was the Chief of Medicine who       ment‟s explanation so vague, that age


                                                                                      2
                         OEDCA DIGEST

discrimination was more likely than not      satisfactory or better-than-satisfactory
the real reason for their decision not to    performance. Instead, nurses must sa-
hire the complainant.                        tisfy specific professional, performance,
                                             and educational criteria for the next
                                             higher grade, as stated in the VA Nurse
                    II                       Qualification Standards, in order to be
                                             promoted.
NURSE NONPROMOTION NOT DUE
TO DISCRIMINATION                            Evidence that the nurse has met the cri-
                                             teria is found in the nurse‟s annual profi-
The complainant was serving as a             ciency report. The proficiency report
Nurse II when a Nurse Professional           summarizes the nurse‟s scope of re-
Standards Board (NPSB or “Board”) ex-        sponsibility, performance, and achieve-
amined his qualifications for promotion      ments for the previous year. If the
to the grade of Nurse III. When the          Board concludes, based on a review of
Board found him unqualified for promo-       the proficiency report, that the nurse has
tion to the Nurse III grade, he unsuc-       not met the criteria, it will recommend
cessfully sought reconsideration of the      that the nurse not be promoted. If a
Board‟s decision at the facility level.      nurse is not promoted, and the scope of
Several months later, a different Nurse      his or her responsibility does not
Professional Standards Board in VA           change, further promotion review will
Central Office in Washington, D.C. re-       take place at intervals of 1 to 3 years, at
viewed the complainant‟s qualifications      the discretion of the Board.
and reached the same conclusion as the
local Board. The complainant thereafter      The investigative file in this case clearly
filed a discrimination complaint alleging    showed that the complainant was a
that his gender and national origin (His-    competent and highly respected nurse
panic) influenced the decision not to        who was well liked by his coworkers and
promote him.                                 superiors. He was articulate and had
                                             excellent leadership skills. There is no
The criteria and procedures for promot-      dispute that the complainant had the
ing registered nurses in the VA are un-      talent, education, and ability to serve at
like those utilized in typical competitive   the Nurse III grade level. Nevertheless,
or career-ladder (i.e., non-competitive)     the Board concluded that the complai-
promotion actions in the Federal per-        nant had failed to satisfy two of the pro-
sonnel system. Unlike competitive pro-       motion criteria specified in the qualifica-
motion actions, nurses may be pro-           tion standards, i.e., membership in pro-
moted to certain grades without the          fessional health associations and initiat-
need for a vacancy, as the grade is          ing a sustained health program.
linked, not to a position, but rather, to
the individual‟s qualifications, perfor-     The complainant did not challenge this
mance, and scope of responsibilities.        conclusion. Rather, he argued simply
Moreover, unlike career-ladder promo-        that he was entitled to promotion be-
tions, nurses are not automatically en-      cause of his admirable performance at
titled to promotion merely because of        the Nurse II grade. Unfortunately for


                                                                                      3
                          OEDCA DIGEST

him, admirable performance, in itself, is     have little difficulty satisfying their legal
not sufficient to satisfy the VA„s nurse      burden of articulation. They need not
promotion criteria. Moreover, he failed       prove that they did not discriminate. Ra-
to present any evidence that other simi-      ther, the law only requires that they arti-
larly situated nurses were promoted de-       culate (i.e., explain) the reason(s) for
spite a failure to satisfy the promotion      their actions. However, that articulation
criteria. OEDCA accordingly concluded         must be clear and specific enough to
that the complainant‟s national origin        provide a complainant with the opportu-
and gender were not factors influencing       nity to challenge it, or else the complai-
the Board‟s recommendation not to             nant will automatically prevail.
promote him.
                                              Merely stating that the “best applicant”
                                              was chosen is not a sufficient articula-
                    III                       tion -- the reason(s) for that conclusion
                                              must be clearly and specifically ex-
FAILURE TO RECALL REASONS FOR                 plained. Likewise, merely claiming that
PROMOTION DECISION COMPELS A                  discrimination did not occur is not a suf-
FINDING OF RACE DISCRIMINATION                ficient articulation.     In this case, of
                                              course, the selecting official was unable
The complainant, an African-American          to offer any explanation at all. Because
female, applied for a Personnel Man-          the complainant had satisfied her initial
agement Specialist position, but was          burden of proving a prima facie case of
passed over in favor of an Asian-             discrimination, and because the select-
American female. Both the complainant         ing official failed to satisfy her burden of
and the selectee were qualified for the       articulating a legitimate, nondiscrimina-
position. The complainant claimed that        tory reason for her decision, the com-
her nonselection was due to her race.         plainant was automatically entitled to a
                                              finding in her favor.
The selecting official, who was no longer
working for the Department when de-           This case illustrates an important lesson
posed, had little recollection of the mat-    for supervisors and management offi-
ter, as more than three years had             cials. Because of turnover due to re-
elapsed since the promotion action.           tirements, resignations, etc., and/or the
She had only a vague memory of the            length of time it sometimes takes an
selectee and was unable to recall any         agency, or the EEOC, or the courts to
specifics    regarding     the    interview   investigate a complaint or conduct hear-
process, the criteria used to evaluate        ings or trials, it is absolutely imperative
qualifications, or the reasons for her se-    that the responsible official ensure that
lection decision.                             there is a documented record available
                                              that clearly explains the rationale for
OEDCA issued a technical finding of           employment decisions or actions.
discrimination in view of the Depart-
ment‟s failure to articulate a legitimate,    Some VA facility directors require offi-
nondiscriminatory reason for its deci-        cials who make significant personnel
sion. Normally, management officials          decisions (i.e., hiring, firing, promoting,


                                                                                         4
                          OEDCA DIGEST

etc.), to prepare a contemporaneous,          taliation.
summary description of the process in-
volved and the specific reason(s) for the     To prevail on a retaliation claim a com-
decision. Any documents that might            plainant must first establish a prima fa-
help explain or support the decision are      cie case. Then, if management articu-
attached to this written summary. Facili-     lates a legitimate, nondiscriminatory
ties that follow this practice are far less   reason for its actions, the burden falls
likely to experience technical findings of    on the complainant to prove by a pre-
discrimination. Had the selecting official    ponderance of the evidence that man-
in this case documented her actions, the      agement‟s explanation is not the true
outcome may have been different.              reason, but rather a pretext for a retalia-
                                              tory motive.

                    IV                        To establish a prima facie case of retali-
                                              ation, a complainant must generally
EEOC JUDGE REJECTS RETALIA-                   show that: (1) he or she engaged in
TORY HARASSMENT CLAIM BE-                     prior EEO activity, (2) the management
CAUSE PRIOR EEO COMPLAINT AC-                 official alleged to have retaliated was
TIVITY OCCURRED SEVERAL YEARS                 aware of that prior EEO activity, (3) the
EARLIER                                       official subsequently took some action
                                              unfavorable to the complainant, and (4)
The complainant filed a reprisal claim,       there is some evidence linking the unfa-
alleging that management officials reta-      vorable action to the prior complaint ac-
liated against her because of her prior       tivity. The most common way of proving
EEO complaint activity in connection          that link is to show that the period of
with a five-day suspension, lack of train-    time between the prior EEO activity and
ing, room rotation schedules, and over-       the matter complained of was short
time assignments. She alleged that            enough to create an inference that retal-
these matters resulted a hostile work         iation may have been a motive. The
environment.                                  EEOC and the courts have generally
                                              held, depending on the circumstances,
According to the undisputed evidence in       that a period of 12 months or less will
the record, the complainant had filed         create such an inference.
three EEO complaints in 1992 and
1993, all of which were settled in 1994.      Of course, even if a complainant is able
The events complained of in this com-         to establish a prima facie case, such
plaint occurred in 1998.                      evidence, in itself, is never sufficient to
                                              prove that retaliation actually occurred.
An EEOC administrative judge, after re-       The complainant must present other
viewing the agency‟s investigative re-        convincing evidence that retaliation was,
port, issued a decision without a hearing     in fact, a motivating factor. In other
wherein she concluded that the com-           words, the mere fact that an unfavorable
plainant had failed to prove retaliatory      action takes place within a relatively
harassment and, in fact, had failed to        short period of time after an employee
establish even a prima facie case of re-      engages in EEO protected activity of


                                                                                       5
                          OEDCA DIGEST

which management is aware does not,            The selecting official testified that a
by itself, prove that management took          three-member panel interviewed the ap-
the action because of the prior EEO ac-        plicants, rated them, and recommended
tivity.                                        the selectee. The complainant received
                                               the lowest overall point score from the
In this case, the EEOC judge correctly         panel, while the selectee received the
concluded that the complainant was not         highest score.
even able to establish a prima facie
case of retaliation because the prior          All of the panel members thought the
EEO complaint activity occurred four           selectee had far more experience direct-
years earlier -- far too long an interval to   ly related to the job in question than the
create an inference that the prior com-        complainant. The selectee had over 14
plaints influenced the subsequent              years of VA administrative experience in
events of which she was complaining.           the Psychiatry Service. Thus, she had
Moreover, the judge noted that most of         administrative experience with policies
the supervisors responsible for the ac-        and procedures relating to VA medical
tions complained of had no knowledge           operations that were similar to the types
of her prior EEO complaints; and the           of experience needed in the Physical
one supervisor who was aware of them           Medicine and Rehabilitation Service,
knew none of the details, as she was           such as budget, control points, cost dis-
not a supervisor at the time, and the          tribution, ADPAC, etc. Moreover, she
complaints were not against her.               had previously served as a secretary in
                                               the Physical Medicine and Rehabilitation
                                               Service, and was thus familiar with the
                     V                         physicians and administrative person-
                                               nel.
COMPLAINANT’S SUPERIOR EDU-
CATION NOT NECESSARILY INDICA-                 The complainant, on the other hand,
TIVE OF SUPERIOR QUALIFICA-                    had no related experience. His applica-
TIONS                                          tion indicated that he had been an “en-
                                               trepreneur” and had previously served
The complainant, a Food Service Work-          as a medical clerk in the VA. He also
er, applied but was not selected for           mentioned prior employment with a uni-
promotion to the position of Administra-       versity and his military service, but that
tive Officer in the Physical Medicine and      work experience was not current and he
Rehabilitation Service. He later filed a       offered no details as to the nature of that
race discrimination complaint, alleging        experience.
that he was better qualified than the se-
lectee.                                        OEDCA concluded that management‟s
                                               explanation for choosing the selectee
As evidence of his alleged superior qua-       was not a pretext for discrimination.
lifications, he pointed primarily to his       The selectee had plainly superior quali-
Master‟s Degree in Business Adminis-           fications. Although the complainant had
tration, noting that the selectee did not      a Master‟s Degree, such a degree was
have a Master‟s Degree.                        not a requirement and, more important-


                                                                                        6
                               OEDCA DIGEST

ly, the degree did not enhance his quali-             During the physical exam, the complai-
fications, as it was not related to the               nant noted, among other things, that she
tasks associated with the job.                        had been diagnosed as having carpal
                                                      tunnel syndrome (CTS). She main-
This case clearly illustrates that superior           tained, however, that she could perform
education, by itself, does not necessarily            the duties of a medical clerk in the VA,
result in superior qualifications. The ap-            provided she did not have to engage in
propriate weight, if any, to accord to                prolonged pulling, pushing, or grasping.
educational qualifications will vary from             She also noted that her application for
case to case, depending on the nature                 disability retirement at a prior job where
of the job in question, the level of educa-           she was a file clerk was rejected be-
tion needed for the job, whether and to               cause it was determined that she was
what extent the applicant‟s education                 capable of performing other types of
relates to the duties of the job, and other           clerical jobs.
factors.1
                                                      The examining physician consulted with
                                                      the deciding physician, who determined
                        VI                            that the complainant was physically un-
                                                      qualified for the medical clerk position at
DISQUALIFICATION   BASED   ON                         that facility because of the job require-
COMPLAINANT’S PHYSICAL CONDI-                         ment involving continuous grasping.
TION DID NOT VIOLATE “REHABILI-
TATION ACT”                                           An EEOC administrative judge found,
                                                      and OEDCA agreed, that the complai-
The complainant applied for the position              nant was not discriminated against be-
of Medical Clerk, was found qualified,                cause of a disability. The complainant,
and was called in for an interview. A                 through her attorney, stipulated that, al-
week later she received notice that she               though diagnosed with carpal tunnel
had been hired, contingent upon pass-                 syndrome, she does not have an actual
ing a physical examination.                           disability as defined by the Rehabilita-
                                                      tion Act. In other words, she argued
The facility‟s Office of Human Re-                    that she does not have a physical im-
sources provided the examining physi-                 pairment that substantially limits any of
cian with a form, CA-17, which lists all of           her major life activities, including work-
the functional requirements of the posi-              ing.
tion for which the complainant had ten-
tatively been selected. The form de-                  Under the Rehabilitation Act, an individ-
scribed the job as primarily sedentary,               ual has a disability if he or she (1) has
but requiring simple grasping on a con-               an actual physical or mental impairment
tinuous basis for 8 hours per day.                    that substantially limits a major life activ-
                                                      ity, or (2) is perceived as having such an
                                                      impairment, or (3) has a record of such
1
  See case VII (page 8) where an applicant‟s
                                                      impairment. Although the complainant
superior education was found to be a significant      admitted that she does not have an ac-
factor contributing to her superior qualifications.   tual disability, she argued that she was


                                                                                                 7
                          OEDCA DIGEST

nevertheless entitled to the protections                          VII
of the Rehabilitation Act because the VA
regarded her as disabled; that is, the VA      EEOC UPHOLDS OEDCA’S PARTIAL
perceived her as having a physical im-         REJECTION OF AN EEOC ADMINIS-
pairment that substantially limited one of     TRATIVE JUDGE’S RELIEF AWARD
her major life activities; namely, her abil-
ity to work.                                   The complainant, a registered nurse
                                               (Nurse II grade level), alleged that she
To succeed in establishing that such a         was discriminated against because of
perception existed, the complainant            her race (African-American), color
would have to demonstrate that VA phy-         (Black), and gender when she was not
sicians perceived her as being signifi-        selected for the position of Community
cantly restricted in the ability to perform    Health Nurse. She claimed that man-
a class of jobs, or a broad range of jobs      agement selected an Hispanic male be-
in various classes.                            cause the Nursing Service at that facility
                                               had very few Hispanic males in mana-
The VA argued, and the EEOC judge              gerial or specialty nursing positions.
agreed, that the VA physicians who ex-
amined her and found her physically            An EEOC administrative judge found,
unqualified did not regard her as dis-         and OEDCA agreed, that the complai-
abled, i.e., they did not perceive her as      nant‟s nonselection was influenced by
having an impairment that prevented her        her race, color and gender. The judge‟s
from doing all types of clerical jobs. In-     conclusion was based primarily on the
stead, they simply found her physically        finding that the complainant‟s qualifica-
unqualified to perform the duties of that      tions were plainly superior to those of
particular medical clerk position at that      the selectee. Specifically, the judge
particular VA facility based on the            noted that the complainant had a Mas-
statement of functional (i.e., physical)       ter‟s Degree in Public Health, with a
requirements specific to that job. Ac-         specialty in community health nursing,
cordingly, the judge found that the com-       whereas the selectee had only a Bache-
plainant was not disabled.                     lor‟s Degree.

Moreover, the judge rejected the com-          Moreover, the complainant had over
plainant‟s claim that she should have          nine years of experience as a communi-
been hired notwithstanding her impair-         ty health nurse, including two years as a
ment because management could have             chief community health nurse, while the
accommodated her by not requiring her          selectee had no community health expe-
to perform duties that conflicted with her     rience whatsoever.        The judge also
medical restrictions. The judge correctly      pointed to the complainant‟s perfor-
noted that the legal duty to accommo-          mance appraisals and her military expe-
date arises only in cases where the indi-      rience, where she was responsible for
vidual has an actual disability. If an in-     setting up a field hospital in a combat
dividual does not have an actual disabili-     zone during Operation Desert Storm,
ty, as the complainant asserted in this        and served as head nurse in the surgic-
case, there is nothing to accommodate.         al unit in that hospital.


                                                                                       8
                         OEDCA DIGEST

OEDCA and the EEOC judge disagreed,          promotions is not triggered by selection
however, as to the appropriate relief the    for a vacant nursing position, as the
complainant should be awarded as a           judge seemed to think. Instead, it is the
result of the discrimination. Although       anniversary date of the nurse‟s most re-
the judge correctly awarded compensa-        cent promotion that determines when
tory damages and attorney‟s fees,            the nurse goes before the NPSB.2
OEDCA was of the opinion that the
judge had incorrectly ordered the De-
partment to convene a Nurse Profes-                                VIII
sional Standards Board (NPSB) to re-
view the complainant‟s qualifications        COMPLAINANT’S DISCHARGE DUE
and promote her to the Nurse III grade       TO HER FELONY CONVICTION NOT
level, and to place her in a Community       DISCRIMINATORY
Health Nurse or other comparable
Nurse III position. OEDCA rejected and       The complainant was arrested and con-
appealed this aspect of the judge‟s relief   victed for welfare fraud and sentenced
award, arguing that it was inconsistent      to five years probation. Five days be-
with the facts in the case and amounted      fore her arrest she applied for a position
to an inappropriate windfall for the com-    as a supply technician. Three months
plainant.                                    after her conviction, she received notifi-
                                             cation that she had been hired.
After reviewing the case on appeal, the
EEOC‟s Office of Federal Operations          During the new employee orientation
(OFO) issued a final decision affirming      process, she answered “yes” to a ques-
OEDCA‟s partial rejection of the judge‟s     tion asking her if she had ever been
relief award. The OFO correctly found        convicted of a felony. After reviewing
in its appellate decision that the sole      and verifying a written statement the
claim at issue was the complainant‟s         complainant had prepared explaining
nonselection for the Community Health        her conviction, management officials
Nurse position, which according to the       discharged her during the probationary
undisputed evidence, was graded at the       period. The discharge notice cited as
Nurse II level. Hence, as the complai-       grounds for her removal “unsuitable
nant was already a Nurse II, her place-      traits of character as evidenced by her
ment into the position required only a       felony conviction.”
reassignment, not a promotion. There
was, therefore, no need to convene the       The complainant thereafter filed an EEO
NPSB to review the complainant‟s quali-      complaint alleging that her discharge
fications, and no need to promote her to     was due to her gender. At the hearing
Nurse III.                                   stage, she claimed that the facility also
                                             discriminated against her because of
The NPSB review process for VA               her “background.”
nurses differs significantly from the pro-
motion    processes      typically   used
throughout the Federal government.           2
                                               See case II (page 3) for an in-depth discussion
The review process required for nurse        of the nurse promotion process in the VA.


                                                                                            9
                           OEDCA DIGEST

An EEOC administrative judge found,                               IX
and OEDCA agreed, that the complai-
nant‟s discharge did not violate federal        AGE CLAIM DISMISSED AS MOOT
civil rights laws. First, the judge noted       DESPITE  COMPLAINANT’S   RE-
that it was undeniable that the complai-        QUEST FOR COMPENSATORY DAM-
nant‟s conviction, and not her gender,          AGES
prompted her discharge. Second, the
judge found that discrimination due to          The complainant, a former Personnel
“background” is not a permissible basis         Assistant who is no longer employed by
for filing a discrimination complaint in-       the VA, alleged that her former VA su-
volving Federal employment. In order to         pervisor discriminated against her be-
state a valid claim, a complainant must         cause of her age. She claimed that the
limit his or her claim to one or more of        supervisor criticized and humiliated her
the bases of discrimination prohibited by       on an ongoing basis for errors and dis-
civil rights laws and regulations applica-      crepancies in her work. The complai-
ble to Federal employment; namely,              nant claimed that other workers were
race, color, religion, gender, national         responsible for the discrepancies and
origin, reprisal (i.e., retaliation for prior   errors.
EEO activity), age (40 or over), or disa-
bility.                                         The complainant later left the VA to ac-
                                                cept a position with the Department of
This case illustrates a fatal flaw found in     the Army. She did not claim that she
some Federal sector EEO complaints; to          was forced to leave the VA because of
wit, citing an impermissible ground, or         the harassment; i.e., she did not claim
“basis”, for the complaint. Complaints,         constructive discharge. Moreover, she
or claims within a complaint, are fre-          did not request reinstatement with the
quently dismissed at the outset because         VA. The only relief she requested was
complainants allege something other             $300,000 in compensatory damages.
than the eight bases of discrimination
noted above. Thus, claims of discrimi-          An EEOC judge dismissed her claim as
nation will fail when, instead of alleging      moot. OEDCA subsequently notified the
one or more of the above listed bases,          complainant that the Department was
they allege bias because of veteran‟s           accepting the judge‟s procedural dis-
status or preference (or lack thereof),         missal decision and that she was en-
social or educational disadvantage,             titled to no relief.
criminal record (unless it relates to a
claim of race discrimination), age (where       Under EEOC‟s governing regulations,
the complainant is under 40 years of            an agency, or an EEOC judge, must
age at the time of the alleged discrimi-        dismiss a claim that is moot. Mootness,
nation), lack of a disability, reprisal for     in the legal sense, means that a claim
non EEO-related activity (e.g., whistle         no longer presents a live controversy
blowing in a contract fraud case), and          because of an intervening circumstance
other grounds that fall outside the pur-        or event. In other words, something has
view of the Federal sector EEO com-             happened since the complainant initially
plaint process.                                 raised the matter, which has reversed


                                                                                     10
                         OEDCA DIGEST

the harm suffered by the complainant to      In this case, the complainant‟s claim
the point that the complainant is no         was limited to age discrimination. Had
longer aggrieved. If that “something”        she alleged a different basis (e.g., race),
has occurred, and remedial relief is no      alone or in conjunction with her age
longer available, there is no longer a       claim, the judge might not have dis-
need to determine if discrimination oc-      missed it as moot. The reason is that, if
curred. It is a moot issue.                  she were to prevail on a basis other
                                             than age, damages might have been
The Supreme Court has held that a            available as a remedy.
claim is moot, and therefore no longer
presents a live controversy, when the
following two-prong test is met: (1) inte-                       X
rim events or relief have completely
eradicated the effects of the alleged vi-    EEOC’S FY 1999 FEDERAL SECTOR
olation, and (2) it can be said with as-     REPORT ON EEO COMPLAINTS
surance that there is no reasonable ex-      PROCESSING AND APPEALS
pectation that the violation will recur.
                                             In its most recent annual report on EEO
The EEOC judge correctly found that          complaints and appeals processing in
both prongs of this test were satisfied.     the Federal sector, the Equal Employ-
The complainant no longer worked for         ment Opportunity Commission (EEOC)
the VA, was now working for the Army,        paints a rather bleak picture with respect
and did not wish to return to her former     to the ability of Federal agencies to cope
position at the VA. Thus, an interim         with the increasing number of EEO
event, i.e., the complainant‟s voluntary     complaints, hearing requests, and ap-
resignation from her employment with         peals being filed. Ironically, EEOC, the
the VA, completely eradicated the ef-        architect of the Federal sector complaint
fects of the alleged violation; and it can   system, has more problems in this re-
be said with assurance that there is no      gard than most of the agencies that are
reasonable expectation that the alleged      subject to its regulations. The VA, on
violation will recur.                        the other hand, ranks relatively high
                                             among all Federal agencies with respect
The complainant had asserted that her        to its overall processing times. What
claim was not moot. She argued that          follows are some of the data reported by
there was still some relief to which she     the EEOC in its FY 1999 annual report
would be entitled if she were able to        and by the Government Accounting Of-
prove her claim of discriminatory ha-        fice (GAO) in several recent reports on
rassment; namely, compensatory dam-          the Federal sector EEO complaint
ages for the harm to her emotional well      process.
being. The judge, however, rejected her
argument, noting that such damages are       Inventories. In the 1990s, the number
not authorized for claims brought under      of EEO complaints filed with Federal
the Age Discrimination in Employment         agencies increased by more than 50%.
Act.                                         This, in turn, resulted in the doubling of
                                             the agencies‟ case inventories during


                                                                                     11
                           OEDCA DIGEST

this period. Also during this period the       1200 days to complete the journey. 4
hearing request backlog at EEOC grew
by over 300%, and the appeals backlog          Actions Complained Of. Complaints
at EEOC grew by almost 700%.3 What             about intangible losses dominate agen-
makes these numbers even more dis-             cies‟ caseloads. Complaints about ha-
couraging is that the size of the Federal      rassment (nonsexual), account for ap-
workforce declined by approximately            proximately 19% of all claims. Such
11% during the same period. There              claims typically allege that the employee
was some good news, however. Gov-              has been subjected to harassing beha-
ernment-wide EEO inventories in FY             vior or a hostile work environment be-
1999 decreased by 4.5%, and the num-           cause of a prohibited factor, resulting in
ber of complaints filed government-wide        nonmonetary losses such as unfair
in FY 1999 decreased by 5.3%.                  treatment or loss of dignity. The second
                                               most frequently raised issue involved
Timeliness: Case processing time also          disciplinary actions, including termina-
increased during the 1990s. In FY              tions, which accounted for 15.6% of all
1991, Federal agencies took an average         claims. The third was nonpromotions or
of 341 days to process a complaint (in-        nonselections, which accounted for al-
cludes complaints that were dismissed,         most 14% of all claims. Sexual harass-
settled, and withdrawn); and it took           ment allegations accounted for only
EEOC 173 days to process a hearing             1.5% of all claims filed.
request. In FY 1999, agencies took an
average of 423 days to process a com-          Bases of Discrimination Alleged. Of
plaint (EEOC‟s average was 616 days,           the eight protected bases of discrimina-
and VA‟s average was 260 days).                tion covered by EEOC‟s Federal sector
EEOC took 350 days to process a hear-          regulations (race, color, gender, religion,
ing request, even though its own regula-       national origin, age, disability and re-
tions require it to do so in 180 days. At      prisal), reprisal was the most frequently
the appeal stage, EEOC took 461 days           raised – cited in approximately 23% of
to issue an appellate decision, even           all complaints. Gender discrimination
though the regulations contemplate a           was a close second at 22%. Race dis-
180-day period for appellate disposi-          crimination was the third most frequent
tions.                                         basis, cited in 21.4% of all claims.
                                               These include claims based on African-
According to the General Accounting            American membership (14.4%), Cauca-
Office, an EEO complaint that travels          sian membership (5.2%), and 1.8% in-
through the entire process (i.e., accep-       volving claims filed by members of other
tability review, investigation, hearing,       races.
final action by the agency, and appeal to
the EEOC) will take, on average, about         Dispositions. EEOC reports that Fed-
                                               eral agencies found discrimination in

3                                              4
  Discrimination Complaint Caseloads and Un-     EEO Complaint Caseloads Rising, with Effects
derlying Causes Require EEOC’s Sustained At-   of New Regulations on Future Trends Unclear,
tention, March 29, 2000, GAO/T-GGD-00-104.     August 16, 1999, GAO-GGD-99-128.


                                                                                          12
                           OEDCA DIGEST

approximately 2.4% of cases adjudi-                                XI
cated on the merits. At the hearing
stage, EEOC administrative judges               FREQUENTLY ASKED QUESTIONS
found discrimination in approximately           AND ANSWERS RELATING TO DISA-
7.5% of the cases they heard, down              BILITY-RELATED INQUIRIES AND
from a high of almost 15% in FY 1991.           MEDICAL EXAMINATIONS OF EM-
                                                PLOYEES
One very interesting and significant sta-
tistic recently noted by the GAO in this        (Claims alleging disability discrimination
regard is that the finding rate by EEOC‟s       account for a significant number of EEO
judges at the hearing stage declined            complaints filed against private and
dramatically during the 1990s, even             Federal sector employers. Unfortunate-
though the number of complaints filed           ly, this is one of the most difficult and
and hearings requested during that pe-          least understood areas of civil rights
riod increased dramatically. Both the           law. The following article, based on
GAO and the EEOC have acknowl-                  guidance provided by the Equal Em-
edged that one reason for this anomaly          ployment      Opportunity    Commission,
is that many employees use the Federal          presents frequently asked questions and
sector EEO complaint process to com-            answers relating to when employers
plain about matters that do not involve         may and may not obtain medical
discrimination. GAO noted that “some            information about their employees.
employees file frivolous complaints to          Although the guidance is aimed
harass supervisors or „game‟ the sys-           primarily at employers, employees can
tem.”5 Another often-cited explanation          benefit from being aware of the rules set
is that the availability since 1991 of          forth in the guidance.)
compensatory damages in the Federal
sector complaint process has prompted
many employees to use the EEO                   Q. 1. What does EEOC‟s Guidance
process rather than other more appro-           address?
priate avenues of relief to resolve basic
workplace disputes. Thus, the GAO has           A.1. The Guidance explains the rules
noted that the number of discrimination         under The Americans with Disabilities
complaints is not a reliable indicator of       Act (ADA) concerning when employers
the level of discrimination occurring in        may and may not obtain medical infor-
the Federal workplace.6                         mation about their employees.


                                                Q.2. Why did the EEOC issue this
                                                Guidance?

5
                                                A.2. In October 1995, the EEOC is-
    See footnote 3.                             sued enforcement guidance explaining
6
  Rising Trends in EEO Complaint Caseloads in
                                                the ADA's rules concerning when an
the Federal Sector, July 24, 1998, GAO-GGD-     employer may and may not make disa-
98-157BR                                        bility-related inquiries and require medi-


                                                                                       13
                          OEDCA DIGEST

cal examinations of applicants. Since          quire any medical examinations, even if
that time, we have had many inquiries          they are related to the job.
from EEOC investigators and attorneys
in the field, employers, and employees         At the second stage (after an applicant
about how the law applies with respect         is given a conditional job offer, but be-
to people who are already working. This        fore he or she starts work), an employer
Guidance is intended to answer some of         may ask disability-related questions and
the most frequently asked questions we         conduct medical examinations, regard-
have received.                                 less of whether they are related to the
                                               job, as long as it does so for all entering
                                               employees in the same job category.
Q.3.   To whom does the Guidance ap-
ply?                                           At the third stage (after employment be-
                                               gins), an employer may make disability-
A.3. The Guidance applies to private           related inquiries and require medical
and to state and local government em-          examinations only if they are job-related
ployers with fifteen or more employees.        and consistent with business necessity.
Federal sector employers are also cov-
ered by the Guidance, as the result of
the 1992 amendments to the Rehabilita-         Q.5. What is a "disability-related in-
tion Act.                                      quiry"?

The ADA's requirements regarding dis-          A.5. A "disability-related inquiry" is a
ability-related inquiries and medical ex-      question that is likely to elicit information
aminations apply to all of the employees       about a disability, such as asking em-
of a covered employer, whether or not          ployees about: whether they have or
they have disabilities.                        ever had a disability; the kinds of pre-
                                               scription medications they are taking;
                                               and, the results of any genetic tests they
Q.4. Are the rules about when an em-           have had.
ployer may make disability-related inqui-
ries and require medical examinations          Disability-related inquires also include
the same for employees and applicants?         asking an employee's co-worker, family
                                               member, or doctor about the employee's
A.4. No. The ADA limits an employer's          disability.
ability to make disability-related inquiries
or require medical examinations at three       Questions that are not likely to elicit in-
stages: pre-offer, post-offer, and during      formation about a disability are always
employment. The rules concerning dis-          permitted, and they include asking em-
ability-related inquiries and medical ex-      ployees about their general well-being;
aminations are different at each stage.        whether they can perform job functions;
                                               and about their current illegal use of
At the first stage (prior to an offer of em-   drugs.
ployment), an employer may not ask
any disability-related questions or re-        Q.6.   What is a "medical examination"?


                                                                                         14
                         OEDCA DIGEST

                                                    cal condition; or,
A.6. A "medical examination" is a pro-
cedure or test usually given by a health           the employee will pose a direct
care professional or in a medical setting           threat because of a medical con-
that seeks information about an individ-            dition.
ual's physical or mental impairments or
health. Medical examinations include         Employers also may obtain medical in-
vision tests; blood, urine, and breath       formation about an employee when the
analyses; blood pressure screening and       employee has requested a reasonable
cholesterol testing; and diagnostic pro-     accommodation and his or her disability
cedures, such as x-rays, CAT scans,          or need for accommodation is not ob-
and MRIs.                                    vious.

                                             In addition, employers can obtain medi-
Q.7. Are there any procedures or tests       cal information about employees when
employers may require that would not         they:
be considered medical examinations?
                                                   are required to do so by another
A.7. Yes. There are a number of pro-                federal law or regulation (e.g.,
cedures and tests that employers may                DOT medical certification re-
require that are not considered medical             quirements for interstate truck
examinations, including: blood and urine            drivers);
tests to determine the current illegal use
of drugs; physical agility and physical            offer voluntary programs aimed at
fitness tests; and polygraph examina-               identifying and treating common
tions.                                              health problems, such as high
                                                    blood pressure and cholesterol;

Q.8. When may an employer ask an                   are undertaking affirmative action
employee a disability-related question or           because of a federal, state, or lo-
require an employee to submit to a med-             cal law that requires affirmative
ical examination?                                   action for individuals with disabili-
                                                    ties or voluntarily using the infor-
A.8. Generally, an employer only may                mation they obtain to benefit indi-
seek information about an employee's                viduals with disabilities.
medical condition when it is job related
and consistent with business necessity.
This means that the employer must            Q.9. What should an employer do if it
have a reasonable belief based on ob-        learns about an employee's medical
jective evidence that:                       condition from someone else?

      an employee will be unable to         A.9. First, the employer should deter-
       perform the essential functions of    mine whether the information learned is
       his or her job because of a medi-     reliable. The employer should consider


                                                                                      15
                          OEDCA DIGEST

how well the person providing the infor-       believes that an employee is having per-
mation knows the individual, the se-           formance problems because of a medi-
riousness of the medical condition, and        cal condition, but the employee won't
how the person learned the information.        answer any questions or go to the doc-
                                               tor?
The employer should then determine
whether the information gives rise to a        A.11. The employer may discipline the
reasonable belief that the employee in         employee for his or her performance
question will be unable to perform the         problems just as it would any other em-
essential functions of his or her job be-      ployee having similar performance prob-
cause of the medical condition or will         lems.
pose a direct threat because of the con-
dition.
                                               Q.12. May an employer have an em-
If the information does give rise to such      ployee who is requesting a reasonable
a reasonable belief, then the employer         accommodation examined by its own
may make disability-related inquiries or       health care provider?
require a medical examination as per-
mitted by the Guidance.                        A.12. In some instances, yes. If the
                                               employer has explained what type of
                                               documentation is needed, and the em-
Q.10. May an employer ask all em-              ployee fails to provide it or provides in-
ployees what prescription medications          sufficient documentation, the employer
they are taking?                               may require the employee to see a
                                               health care professional of the employ-
A.10. Generally, no. In limited circums-       er's choice.
tances, however, employers may be
able to ask employees in positions af-         Even where an employee initially pro-
fecting public safety about their use of       vides insufficient documentation, how-
medications that may affect their ability      ever, the employer should consider ask-
to perform essential functions and the-        ing the employee's health care provider
reby result in a direct threat.                for additional information before requir-
                                               ing an examination by the employer's
For example, an airline could require          health care professional. This is be-
pilots to report when they are taking          cause an employee's health care pro-
medications that may affect their ability      vider frequently is in the best position to
to fly. A fire department, however, could      provide information about the em-
not require employees in administrative        ployee's limitations.
positions to report their use of medica-
tion because it is unlikely that these em-
ployees would pose a direct threat as a        Q.13. May an employer have an em-
result of an inability, or impaired ability,   ployee who it reasonably believes will
to do their jobs.                              pose a direct threat examined by its own
                                               health care provider?
Q.11. What may an employer do if it            A.13. Yes. This is because the employ-


                                                                                       16
                         OEDCA DIGEST

er is responsible for assessing whether     related questions or require a medical
an employee poses a direct threat           examination when an employee who
based on a reasonable medical judg-         has been on leave for a medical condi-
ment that relies on the most current        tion wants to return to work?
medical knowledge and/or best objec-
tive evidence.                              A.15. Yes, if an employer has a rea-
                                            sonable belief that an employee's
The health care professional the em-        present ability to perform essential func-
ployer chooses should have expertise in     tions will be impaired by a medical con-
the employee's specific medical condi-      dition or that he or she will pose a direct
tion and be able to provide medical in-     threat because of a medical condition.
formation that allows the employer to       Any inquiries or examination, however,
determine the effects of the condition on   must be limited in scope to what is
the employee's ability to perform his or    needed to determine whether the em-
her job.                                    ployee is able to work.

If the employer's health care profession-
al believes that the employee poses a       Q.16. May employers require em-
direct threat, but the employee's own       ployees to have periodic medical ex-
doctor disagrees, the employer should       aminations?
evaluate the conflicting medical informa-
tion by considering, for example, the       A.16. No, with very limited exceptions
area of expertise of each medical pro-      for employees who work in positions af-
fessional; the kind of information each     fecting public safety, such as police of-
provided; and, whether the information      ficers, firefighters, or airline pilots. Even
provided is consistent with the employ-     in these limited situations, the examina-
er's own observations of or knowledge       tions must address specific job-related
about the employee.                         concerns. For example, a police de-
                                            partment could periodically conduct vi-
                                            sion tests or electrocardiograms be-
Q.14. May an employer request that an       cause of concerns about conditions that
employee provide a doctor's note or         could affect the ability to perform essen-
other explanation when the employee         tial job functions and thereby result in a
has used sick leave?                        direct threat. A police department could
                                            not, however, periodically test its officers
A.14. Yes. An employer is entitled to       to determine whether they are HIV-
know why an employee is requesting          positive, because a diagnosis of this
sick leave. An employer, therefore, may     condition alone would not result in a di-
ask an employee to provide a doctor's       rect threat.
note or other explanation, as long as it
has a policy or practice of requiring all
employees to do so.                         Q.17. May employers subject em-
                                            ployees to periodic alcohol testing?

Q.15. May an employer ask disability-       A.17. Generally, no. Employers, how-


                                                                                      17
                          OEDCA DIGEST

ever, may subject employees who have
been in alcohol rehabilitation programs
to periodic alcohol testing where the
employer has a reasonable belief that
the employee will pose a direct threat in
absence of such testing.

In determining whether to subject such
an employee to periodic alcohol testing,
the employer should consider the safety
risks associated with the position the
employee holds, the consequences of
the employee's inability or impaired abili-
ty to do his or her job, and the reason(s)
why the employer believes that the em-
ployee will pose a direct threat.

Of course, an employer may maintain
and enforce rules prohibiting employees
from being under the influence of alco-
hol in the workplace and may conduct
alcohol testing for this purpose if it has a
reasonable belief that an employee has
been drinking during work hours.




                                               18