OEDCA DIGEST by decree


									                  OEDCA DIGEST
 Vol. II, No. 3          Department of Veterans Affairs                 Summer 1999
                      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 agency decision on complaints of employment
discrimination filed against the Department. The Director, whose decisions are not sub-
ject 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 management's liability for sexual harassment, reta-
liatory responses to sexual harassment claims, "opposition" activity as a basis for a re-
taliation claim, racial harassment, and constructive discharge.

Also presented in this issue are some questions and answers concerning EEOC's new
Federal sector complaint processing regulation.

The OEDCA Digest is available on the World Wide Web at: www.va.gov/orm, and on
the Intranet at: vaww.gov/orm/oedca/digest.

                                  CHARLES R. DELOBE

OEDCA Case Summaries………………………………………………………………..…..2
Q&As on EEOC's New Federal Sector Complaint Processing Regulation.…………….7
                         OEDCA DIGEST

                    I                        sor, who was present when the incident
                                             occurred, claimed that he did not see
FAILURE TO TAKE PROMPT AND                   any touching, but admitted that the two
EFFECTIVE CORRECTIVE ACTION                  individuals were standing face-to-face in
RESULTS IN FINDING OF LIABILITY              close proximity and arguing. His solu-
IN SEXUAL HARASSMENT CASE                    tion to the problem was to tell the com-
                                             plainant to limit her time in the kitchen
The complainant, a program assistant in      where the incidents were occurring, and
the Nutrition and Food Service, alleged      to return to her office as soon as she
that a food service worker in the kitchen    had obtained whatever information she
had repeatedly subjected her to unwel-       needed.
come sexual advances between 1991
and 1997. The conduct included fre-          The supervisor also admitted that he
quent lewd remarks (some whispered in        was aware of prior incidents of unwel-
her ear), and suggestions and com-           come sexual behavior by the harasser
ments that she and the co-worker go out      directed against other women, including
together. The complainant states that        hugging, kissing, and touching.
she repeatedly rebuffed his advances,
saying things like, "leave me alone", "I'm   An administrative board, which was
not interested in you", "get out of my       convened shortly after this incident, rec-
face", and other unambiguous rejec-          ommended that the harasser receive
tions.                                       sexual harassment and sensitivity train-
                                             ing, but no discipline.
Although the harasser denied all of the
complainant's allegations, other wit-        Several months later, in an angry con-
nesses testified that he frequently en-      frontation with the harasser, the com-
gaged in this type of conduct and that       plainant alleged that she was subjected
the female employees did not welcome         to obscene language and referred to as
it. Witnesses also testified that, on sev-   a "dyke." She reported the incident to
eral occasions, they saw and heard the       the service chief, who then moved the
complainant warn the harasser to leave       harasser to the night shift. No discipli-
her [the complainant] alone. One wit-        nary action was taken against the ha-
ness stated that he saw the complainant      rasser at that time because the evi-
and the harasser "fussing" every other       dence concerning the incident was de-
day for about a year, and that she was       termined to be inconclusive. However,
constantly telling the harasser to "leave    inexplicably, almost a year later, the ha-
her alone."                                  rasser was suspended for the touching
                                             incident that had occurred some seven-
The complainant further stated that after    teen months earlier. In the suspension
telling a supervisor about these inci-       notice, management acknowledged that
dents, they stopped for a few weeks, but     the touching had occurred as alleged.
then started up again. During one of the
subsequent incidents, the harasser           If sexual harassment occurs, manage-
stepped in front of her and brushed his      ment may avoid liability for the harass-
chest against her breasts. Her supervi-      ment if it can show that it took prompt,

                          OEDCA DIGEST

appropriate, and effective action to end       due to her failure to submit a Supple-
the harassment and prevent it from re-         mental Qualifications Statement (SQS)
curring. In this case, OEDCA found that        with her application. The purpose of the
management was liable for the harass-          SQS is to provide panel members and
ment because, although it eventually           selecting officials with relevant informa-
took action against the harasser, the ac-      tion about an applicant's experience and
tion was not prompt, and its initial reac-     other qualifications as they relate to the
tion to the complainant’s harassment           advertised position.
claims was not effective. Effective ac-
tion designed to stop the harassment           The complainant admits that she failed
should have been taken as soon as it           to submit an SQS with her application.
became clear that the harasser was             She claims, however, that the panel
continuing his behavior after being            members could have determined her
warned by his supervisor.                      current duties and experience by simply
                                               referring to her Official Personnel Folder
                                               (OPF). The HR specialist, however,
                     II                        noted that the complainant's OPF did
                                               not contain a description of her job du-
EEOC ADMINISTRATIVE JUDGE RE-                  ties. Instead, it only contained the name
FUSES TO FIND DISCRIMINATION                   of her position and her original applica-
WHERE COMPLAINANT FAILED TO                    tion for employment. While employees
SUBMIT SUPPLEMENTAL QUALIFI-                   are permitted to update their OPFs, the
CATIONS STATEMENT ALONG WITH                   complainant did not do so. Moreover,
HER APPLICATION FOR PROMOTION                  her failure to submit the SQS along with
                                               her application resulted in the rating
The complainant applied for a position         panel having very little information be-
as a patient representative, but did not       fore them regarding her qualifications.
rank high enough among the applicants
to be referred to the selecting official for   The complainant also alleged that her
consideration. She thereafter claimed          low score was due, in part, to a perfor-
that the low score she received during         mance appraisal contained in her OPF,
the rating and ranking process was due         which she believed to be unfair. The
to her race and national origin (Black,        EEOC administrative judge, however,
Hispanic).                                     correctly noted that whether the perfor-
                                               mance appraisal was discriminatory was
According to the Human Resources               not an accepted issue in the complaint.
specialist who staffed the selection ac-       In other words, if the complainant be-
tion, the complainant was fully qualified      lieved that the appraisal was due to dis-
for the position. However, she only re-        crimination, she could and should have,
ceived a score of 10 from the rating           at the time she received it, filed a com-
panel, considerably lower than the cut-        plaint about it. As she did not do so, the
off scores of 17 and 18 for the different      appraisal was properly included in her
grade levels at which the position was         OPF and thus properly considered by
advertised. The specialist noted that the      the panel.
complainant's low score was primarily

                          OEDCA DIGEST

The complainant presented no evidence        ing about sexual harassment.
that the rating panel members consi-
dered her race or national origin during
the rating and ranking process. In es-                          IV
sence, she offered nothing but her own
opinion in support of her allegation. She    EEOC FINDS NO DISCRIMINATION IN
therefore failed to sustain her burden of    CASE INVOLVING ONE ISOLATED
proving by a preponderance of the evi-       INSTANCE OF A RACIALLY INSEN-
dence that her failure to be referred to     SITIVE REMARK
the selecting official was due to her race
or national origin.                          OEDCA recently adopted an EEOC ad-
                                             ministrative judge's recommended deci-
                                             sion finding no discrimination or ha-
                    III                      rassment because of an isolated inci-
                                             dent involving a racially insensitive re-
INVOLUNTARY REASSIGNMENT OF                  mark made by a physician who was not
EMPLOYEE BECAUSE OF ALLEGA-                  the complainant's supervisor.
RESULTS IN FINDING OF REPRISAL               The complainant, an African-American
                                             female, alleged that a part-time physi-
The complainant contacted an EEO             cian approached a clerk and a nurse
counselor to complain about alleged          and asked where "the girls" were. Later,
sexual harassment by her service chief.      while assisting a patient, the physician
The counselor, in turn, immediately in-      approached the complainant and said,
formed higher level officials within the     "hey girlie, can you do…..?" The com-
relevant organization of the allegations.    plainant informed the physician that she
Those officials, in what appears to have     found the words "Girls" and "girlie" of-
been a good faith attempt to take imme-      fensive. She later complained to her
diate action to protect the complainant,     supervisor who arranged to have the
involuntarily detailed her away from her     physician apologize to the complainant.
position to remove her from the alleged      The physician made no further remarks
harasser. The formal EEO complaint           of that nature after the apology.
she eventually filed took several years
to process, during which time she re-        As noted by the EEOC administrative
mained on this "detail".                     judge, comments that are offensive to
                                             members of a particular group must be
Although the preponderance of the evi-       examined in light of the totality of the
dence did not support her claim of sex-      circumstances to determine whether
ual harassment, management officials         they constitute prohibited discrimination
nevertheless acted inappropriately by        or harassment. The mere use, for ex-
reassigning her without her consent.         ample, of an epithet with racial connota-
Not only was the response inappro-           tions does not, by itself, amount to dis-
priate, OEDCA found that it constituted      crimination or rise to the level of racial
retaliation because the complainant          harassment. To constitute harassment,
was, in essence, punished for complain-      the conduct complained of must be per-

                          OEDCA DIGEST

sistent, pervasive, or otherwise involve      had engaged in unlawful retaliation.
an egregious incident. Sporadic or iso-
lated incidents are generally not suffi-      Other examples of "opposition" activity
cient to create a hostile environment. In     protected by law include, but are not li-
this case, management took prompt,            mited to, accusations of employment
appropriate, and effective action as          discrimination made in letters to news-
soon as it became aware of the matter,        papers, Congress, or anyone else;
thus ensuring that a hostile environment      grievances or whistleblowing claims that
did not develop.                              include allegations of employment dis-
                                              crimination; organizing or participating in
                                              groups which have, as their purpose,
                    V                         opposition to unlawful discrimination;
                                              and participating in marches or protests
DIRECT EVIDENCE OF RETALIATION                concerning employment discrimination.
FOUND WHERE EMPLOYEE WAS                      Protection, however, extends only to ac-
DISCIPLINED FOR CALLING HIS SU-               tivities that are not destructive of legiti-
PERVISOR A RACIST AND THREAT-                 mate business interests or do not oth-
ENING TO FILE AN EEO COMPLAINT                erwise jeopardize a stable and produc-
                                              tive work environment.
An employee resigned after receiving a
notice of proposed removal. As grounds
for the removal action, management ac-                            VI
cused the complainant in the removal
notice of, among other things, claiming       EEOC FINDS THAT BUDGET REDUC-
that his supervisor had made racist           TIONS, AND NOT THE COMPLAI-
statements and threatening to file an         NANT'S AGE, CAUSED HER TO RE-
EEO complaint.                                CEIVE A TERMINATION NOTICE

An adverse action based in whole or in        The complainant, a staff nurse, was one
part on an employee's assertion of rights     of nineteen nurses who were notified
protected under EEO law and regula-           that they would be terminated from their
tions constitutes prohibited retaliation.     part-time permanent positions due to
This is true even if, as in this case, the    budget reductions. Seven nurses with
employee does not actually "participate"      the same employment status (i.e., part-
in any EEO complaint activity. Here, the      time permanent) were retained. The
complainant engaged in protected activi-      complainant opted to retire with an im-
ty by virtue of his "opposition" to discri-   mediate annuity in lieu of termination.
minatory practices -- said opposition be-
ing his accusation that his supervisor        She thereafter filed an EEO complaint
made racist statements and his threat to      alleging that her age (64 at the time)
file an EEO complaint. Because he was         was the reason why she was not one of
subjected to an adverse action due to         the seven nurses selected for retention.
his opposition activity, and because          An EEOC administrative judge disa-
such activity is protected under EEO          greed, however, and issued a recom-
law, OEDCA found that management              mended decision finding no age discrim-

                          OEDCA DIGEST

ination. OEDCA agreed with the judge's
recommendation and adopted it as the          NO CONSTRUCTIVE DISCHARGE
Department's final agency decision.           FOUND WHERE CHANGE IN PHYSI-
                                              CIAN'S DUTIES DID NOT RENDER
According to management officials,            HIS WORKING CONDITIONS SO IN-
budget reductions imposed by VA Cen-          TOLERABLE AS TO COMPEL HIS
tral Office were severe, and the medical      RESIGNATION
region (the "VISN") that had jurisdiction
over the facility was projected to have       The complainant, who was board certi-
the worst deficit and the worst nurse-to-     fied in both internal medicine and cardi-
patient ratio in the nation. The facility's   ology, relocated to accept a position at a
Executive      Resource      Management       VA medical center as a full-time staff
Committee determined that staff nurse         cardiologist.
reductions were necessary. It recom-
mended that part-time nurses be termi-        Several months after he was hired, cir-
nated, except for those with a veterans       cumstances at the hospital changed
preference, those who were scholarship        and, to assure adequate patient care, he
recipients, and those assigned to spe-        was assigned to on-call duties in rota-
cialized areas who were needed to             tion with other physicians. These duties
maintain continuity of care.                  required him to treat all patients, not just
                                              cardiology patients. Although he was
As noted by the EEOC judge, the com-          board certified in internal medicine, he
plainant was unable to establish even a       nevertheless complained to his supe-
prima facie case of age discrimination        riors, expressing concerns about what
because she was unable to show that           he considered his lack of competence to
there were any similarly situated em-         perform these duties.
ployees who were significantly younger
and who were treated more favorably           The Medical Center later hired a new
during the staff reductions.                  Chief of Staff (white male) from South
                                              Africa. The complainant immediately
However, even it were assumed for the         informed him of his concerns about on-
sake of argument that the complainant         call duties. The Chief of Staff respond-
had established a prima facie case, the       ed by accusing the complainant of being
EEOC administrative judge correctly           unwilling to cooperate and ordering him
concluded that management officials           to continue treating all patients.    A
articulated legitimate, nondiscriminatory     second meeting on the same subject
reasons for the staff reduction, and that     took place about a month later, during
the complainant offered no evidence           which both individuals became angry
whatsoever that those reasons were a          and raised their voices. The Chief of
pretext for age discrimination. Absent        Staff reiterated that the complainant
such evidence, the complainant was            would have to do whatever he was told.
unable to prove that she received a ter-
mination notice because of her age.           Several days later, the complainant
                                              claims he heard a rumor that he would
                    VII                       soon be reassigned to purely primary

                          OEDCA DIGEST

care duties. Shortly thereafter, he sub-      that he had performed them without
mitted his resignation. He later claimed      problems or negative results. Thus, his
that he was "constructively discharged"       working conditions were not such that a
–i.e., that he felt compelled to resign be-   reasonable person in his shoes would
cause of intolerable working conditions       have felt compelled to resign. As there
resulting from discrimination because of      is no proof of intolerable conditions, the
his color (Brown), race/national origin       complainant's claim of constructive dis-
(India), and disability (polio).              charge fails, and the other two elements
                                              of proof need not be addressed.
To prove a claim of "constructive dis-
charge", the EEOC requires a complai-         Nevertheless, the complainant also
nant to prove all of the following: (1)       failed to prove the second element, -i.e.,
that a reasonable person in the com-          that the matters complained of were due
plainant's position would have found          to discrimination. As for his claim of
working conditions intolerable, and (2)       disability discrimination, he presented
that discrimination created the intolera-     no evidence of a medical condition that
ble working conditions, and (3) the res-      substantially limited any of his major life
ignation resulted from the intolerable        activities; nor was there any evidence
working conditions.                           that management regarded him as dis-
                                              abled. He also failed to present any
The first element of proof requires evi-      evidence to support his allegation that
dence of an "intolerable situation" such      the matters in dispute were due to his
as would force a reasonable person to         race, color, or national origin.
resign. Ordinary or commonly expe-
rienced problems and disappointments          As he failed to present proof of intolera-
in the workplace do not qualify as "into-     ble work conditions resulting from dis-
lerable" working conditions. Mere dissa-      crimination, he thus failed to prove the
tisfaction with one's work situation is not   third element, -i.e., that his resignation
the same as an intolerable working envi-      was forced by intolerable work condi-
ronment.      Thus, routine employment        tions caused by discrimination.
matters such as low performance ap-
praisals, changes in duty hours or work
assignments, and failure to be pro-                              VIII
moted, do not, in themselves, create "in-
tolerable" working conditions.         Em-    POWER OF FEDERAL AGENCIES TO
ployees frequently experience such            SUBSTITUTE THEIR OWN DECISION
problems and disappointments, but do          IN PLACE OF AN ADMINISTRATIVE
not usually resign because of them.           JUDGE'S RULING IS CURTAILED BY
                                              EEOC'S NEW FEDERAL SECTOR
In this case, the physician failed to         COMPLAINT REGULATIONS.
prove anything other than two unplea-
sant meetings with his new boss and
dissatisfaction with his job duties. Al-      The civil rights laws enforced by the
though he claims he felt uncomfortable        Equal Employment Opportunity Com-
with those duties, the evidence showed        mission (EEOC), which prohibit em-

                          OEDCA DIGEST

ployment discrimination on the bases of             • The process often led to the
race, color, religion, national origin, sex,   fragmentation of complaints, bogging
age and disability, as well as retaliation,    down the system and making it difficult
apply to employment discrimination by          for federal employees to prove that they
the federal government.         While the      had been discriminated against.
substantive protections for federal em-
ployees are the same as those for all
other workers, the procedures for re-          2. Who is affected by the changes?
solving the complaints of federal em-
ployees differ markedly from the proce-        The federal sector complaint processing
dures that govern claims by employees          regulations apply to federal employees
in the private sector.                         and applicants for employment in the
                                               federal government as well as to the
Because of widespread criticism of the         agencies that employ and hire them.
federal sector complaint process, the
Commission decided to revise its federal
sector regulations. The revision that it       3. Has EEOC expanded the role of al-
recently approved will become effective        ternative dispute resolution (ADR) pro-
November 9, 1999. It contains some             grams in the federal sector process?
significant changes in the way federal
sector complaints will be processed.           Consistent with its commitment to the
                                               use of ADR in its private sector pro-
What follows are questions and answers         grams, EEOC will require agencies to
regarding some of the more important           establish or make available an ADR
changes.                                       program that will be available both dur-
                                               ing the pre-complaint process and the
                                               formal complaint process. Agencies will
1. Why did the Commission issue these          have substantial flexibility in how they
regulations?                                   structure their ADR programs so long as
                                               they incorporate principles of confiden-
The Commission states that it issued           tiality, neutrality, voluntariness, and en-
these regulations in an effort to improve      forceability. ADR may function as an
the effectiveness of its operations. The       alternative to EEO counseling.
federal sector program had come under
criticism based on a number of factors:
                                               4. Will agencies continue to be able to
   • The process was too long and              reverse or modify decisions issued by
contained too many layers of review;           administrative judges?

    • Agencies could revise decisions          This is the most significant and contro-
of administrative judges regarding             versial provision in the new regulation.
whether the agency had violated the            Under the previous rule, EEOC's admin-
law, leading to widespread perceptions         istrative judges (AJs) only issued rec-
of a process that was not impartial; and       ommended decisions regarding whether
                                               an agency violated the law. Because

                          OEDCA DIGEST

they were only recommendations, fed-
eral agencies were free to reverse or         If the AJ decision involved restoration of
modify them as they saw fit. While            the complaining party into a job, the
agencies won at most hearings, they           agency must comply with the order
reversed or modified AJ decisions in          pending the appeal. The agency may
about two-thirds of the cases that they       refuse to return the individual to his or
lost (although OEDCA's reversal rate          her job if the agency determines that the
was less than one-third). The new regu-       individual's presence in the workplace
lation provides that AJ decisions will        would be unduly disruptive. If this oc-
continue to be submitted to the agencies      curs, however, the agency must provide
for final action. However, the AJ rulings     pay and benefits until the appeal is
are now decisions, not just recommen-         completed. The agency is not required
dations. Hence, agencies will no longer       to pay any other monetary benefit or-
have the opportunity to rewrite the AJ        dered by the AJ pending the outcome of
decisions. Rather, they will only be al-      the appeal, but must pay interest on
lowed to issue an order indicating            such sum if the complaining party ulti-
whether or not they will fully implement      mately prevails.
the AJ decision. If they choose not to
fully implement the AJ decision, they
must simultaneously file an appeal with       7. What standard of review will EEOC
the EEOC. Under this new regulation,          apply on appeal?
OEDCA, as the statutorily designated
decision-maker in the VA, will take final     On appeal, the EEOC will review legal
action and issue all orders on decisions      issues and factual findings by the agen-
issued by EEOC administrative judges.         cies under a de novo standard while us-
                                              ing the “substantial evidence” standard
                                              to review AJ findings of fact. This
5. How much time will agencies have to        means that, on appeal, the Commission
issue final orders?                           will not give deference to decisions
                                              made by agencies where there is no
Agencies will have 40 days to determine       hearing, but rather, will conduct its own
whether or not to fully implement the AJ      review of the facts "from scratch." How-
decision and, if they choose not to fully     ever, the Commission, will give defe-
implement the decision, another 20 days       rence on appeal to decisions made by
to file their brief on appeal. This corres-   its AJs (as it has already been doing for
ponds to the 60-day period that agen-         the past few years). The Commission
cies previously had to review an AJ de-       believes that it is appropriate to provide
cision and issue their final decision.        a deferential standard of review to fac-
                                              tual findings made by AJ's who are in-
                                              dependent decision makers and had the
6. Will an agency have to provide the         opportunity to directly evaluate the cre-
complainant with the relief ordered by        dibility of witnesses at the hearing. As a
the administrative judge if the agency        practical matter, these standards of re-
chooses not to implement the AJ deci-         view will make it extremely difficult for
sion and appeals?                             agencies to succeed in their appeals if

                         OEDCA DIGEST

they fail to implement an AJ's decision      will most certainly result in a significant
finding discrimination.                      increase in the length of time it will take
                                             an AJ to hold a hearing and then issue a
                                             decision.    (Presumably, complainants
8. How do the changes address the            will still be allowed to change their
problem of the fragmentation of cases?       minds and withdraw hearing requests if
                                             they decide, for whatever reason, that
                                             they want an immediate decision from
The Commission believes that a signifi-      the agency.)
cant problem in the current system aris-
es from the fragmentation of cases.              • Amending Complaints:             Com-
Fragmentation -- breaking down cases         plaining parties will have greater rights
into their constituent parts, thus causing   to amend their complaints with "like and
the parts to be processed as separate        related claims." Moreover, independent
complaints -- substantially adds to the      claims brought by the same complaining
number of cases and the overall burden       party (i.e., claims that are not "like or re-
in the system. It also makes it more dif-    lated" to those in the original complaint)
ficult to prove some cases, especially       will be consolidated for processing so
harassment cases, which are dependent        that they will be handled together.
on a "critical mass" of facts. The new
regulation includes a number of provi-           • "Spin-Off Complaints": The new
sions to address this problem:               rule adds a provision providing for the
                                             dismissal of spin-off complaints, which
    • Partial Dismissals: The regula-        are complaints about the processing of
tions eliminate "interlocutory" (i.e., im-   existing complaints. It provides, instead,
mediate) appeals from partial dismissals     that complaints about existing com-
for procedural reasons such as lack of       plaints should be brought up and re-
timeliness, failure to state a claim, etc.   solved as part of the original complaint.
Instead, the case will continue to be        EEOC estimates that there are about
processed and appeals regarding the          6,000 spin-off complaints filed each
dismissed issues will be preserved until     year.
the rest of the case is ready for appeal.

   • No More Remands: AJs will no            9. Are there changes to the class com-
longer be allowed to "clean up their         plaint process?
docket" by remanding complaints or is-
sues to agencies for counseling, sup-        Although there are certainly instances of
plemental    investigation,  or   other      class-wide discrimination in the federal
processing. Once a case is before an         government, under the prior rule only a
AJ, the AJ is fully responsible for          tiny number of "class action" cases were
processing it, including dismissing is-      brought within the administrative sys-
sues for procedural reasons and sup-         tem. Most class cases were either di-
plementing the agency's investigation        verted into the federal courts or they
when necessary. These and many oth-          were simply not brought at all. Accord-
er new responsibilities placed on AJs        ing to the Commission, the new rule in-

                           OEDCA DIGEST

cludes several reforms to the treatment         that, short of conducting an investigation
of class actions that will make it more         or holding a hearing, it is virtually im-
feasible for class claims to be brought         possible to determine when an offer of
and resolved in the administrative sys-         damages, which are often intangible in
tem.                                            nature, constitutes an offer of full relief.

    • A class complainant may now               11. Has EEOC provided another me-
move for class certification at any rea-        chanism to encourage complainants to
sonable point in the process, usually no        seriously consider settlement offers?
later than the conclusion of discovery.
This recognizes that complaining parties        Yes. To encourage settlement, the new
do not have access to discovery until           regulation creates an "offer of resolu-
they are before an AJ and therefore may         tion" procedure, based on the offer of
not have sufficient information when            judgment rule contained in the Federal
they file their individual complaint to de-     Rules of Civil Procedure. Under this
termine whether or not class issues are         new procedure, agencies may make of-
raised.                                         fers of resolution, which are basically
                                                settlement offers, to complaining parties.
     • AJ decisions regarding class cer-        Failure to accept such offers could be
tification will be treated the same way as      costly for complainants. If they do not
other AJ decisions. Agencies will take          accept the offer and ultimately obtain no
final action on certification by issuing a      more relief than what was offered, no
final order and, if they do not fully im-       attorney's fees or costs will be payable
plement the AJ decision, by appealing to        for work done after the offer was not ac-
EEOC.                                           cepted.

   • AJs will review class settlements
under the same "fair and reasonable"            12. Can parties still request reconside-
standard which federal judges use to            ration of an EEOC appellate decision?
review class settlements. This will en-
sure that settlements are fair to class         Under the new rule, reconsideration of
members as well as their agents.                EEOC appellate decisions will no longer
                                                be available as a matter of right. In-
                                                stead, EEOC will exercise its discretion
10. Can agencies still dismiss com-             in determining whether to reconsider its
plaints for failure to accept a certified       appellate decisions. As a practical mat-
offer of full relief?                           ter, this change will have little impact, as
                                                EEOC usually denies reconsideration
No. The regulation eliminates the provi-        requests under the current regulations.
sion that permitted agencies to dismiss
complaints for failure to accept a certi-
fied offer of full relief. This provision had   13. Who will decide the amount of at-
not been used very much after compen-           torney's fees when the complainant re-
satory damages became available in the          quests a hearing?
federal sector in 1991. The reason is

                          OEDCA DIGEST

AJs will decide the amount of fees to be      16. Will EEOC issue additional guid-
awarded to prevailing complaining par-        ance to assist agencies and federal em-
ties. There will be a strong presumption      ployees in complying with the new regu-
that the traditional lodestar analysis        lation?
(hours reasonably expended multiplied
by a reasonable hourly rate) will deter-      Yes. EEOC will issue significant revi-
mine the appropriate fee. Agencies will       sions to its Management Directive 110
continue to decide the amount of fees         to enable agencies and federal em-
when there is no request for a hearing.       ployees to better understand their rights
                                              and responsibilities under the new regu-
14. Will attorney's fees be available for
work performed during the pre-
complaint process?

Fees will be available for legal work
done before a complaint is filed in the
limited circumstance where a complain-
ing party prevails in a hearing, the
agency chooses not to fully implement
the AJ decision, and the EEOC finds in
favor of the complaining party on ap-
peal. The Commission believes that this
will provide an incentive to agencies to
assess carefully whether they will de-
cline to fully implement an AJ decision
that is adverse to them. To facilitate
settlements, agencies and complaining
parties may include attorney's fees for
pre-complaint work in a settlement
agreement. In all other situations, how-
ever, fees will only be available for post-
complaint work.

15. When will the changes become ef-

The regulation will take effect on No-
vember 9, 1999. It will apply to all pend-
ing cases. Agencies will be required to
have their ADR programs in effect by
January 1, 2000.


To top