EEO Complaint Processing:
A Promise Broken
Federal Equal Employment Opportunity complaint processing extends a promise to covered federal and postal employees that they will labor in a fundamentally just work place. This promise very often proves to be a sham. When the perpetrator is a USPS supervisor, the entire Labor Relations machinery, and often even powerful USPS legal resources, will be deployed to defeat the employee, rather than correct the problem.
This paper will discuss a series of obstacles to successfully pursuing an EEO complaint in the absence of the most extremely abusive behavior.
Problem 1: Role of the EEO Counselor/Investigator
The stated role of the EEO Counselor/Investigator is to assist the complainant in the pre-complaint process, looking into the matter informally and possibly assisting the complainant in resolving concerns. The complainant can initiate the complaint with a call to the USPS District EEO Complaint Processing Office. The complainant is furnished a Form PS 2564-A, and must return it in ten days.
Any EEO complaint must be filed within 45 days of the event or effective date of the personnel action or the complaint is ruled untimely. The Counselor/Investigator can fail to process the claim in a timely fashion without any sanction. Further, the Counselor/Investigator can discourage the complainant by telling him or her that the complaint lacks merit, or may accept the claim with almost no positive effort to educate the complainant or assist in development of the complaint. Unless the complainant knows something about fundamental civil rights, he or she is truly at the mercy of this "expert."
It is safe to say that the average USPS employee has a limited awareness about EEO case law, purview items of discrimination, time limits, or complaint processing formalities.
Problem 2: Purview Items
An effective EEO complaint must arise from a violation of Title 7 of the Civil Rights Act of 1964, or one of several subsequent Federal laws, including the Rehabilitation Act of 1973, the Equal Pay Act of 1964, the Americans With Disabilities Act of 1991, among others. Purview items include discrimination based on race, color, religion, national origin, sex, age (+40), handicap (known), and retaliation for prior EEO activity.
As the claimant enters informal EEO processing, he or she needs to indicate one or more purview items to have an actionable complaint. In the writer's experience, very few employees entering this arena have a substantive grasp of such issues. They may feel harassed, but do not know how to translate such a feeling into a viable complaint. No purview item, no complaint in the eyes of the law.
Problem 3: Establishing a Prima Facie Case
The term prima facie means "at first view" or legally sufficient to establish a fact unless disproved. In EEO precedent, establishing a prima facie case is crucial in cases based on circumstantial evidence, which is probably the majority of such cases. Circumstantial cases, by their vary nature, have some uncertainly as to the actual facts and true motives. For example, in a prima facie case involving hiring discrimination, the complainant will have to establish: (1) (s)he belongs to a protected group under Title VII; (2) (s)he applied and was qualified for a job for which the employer was seeking applicants; (3) despite his/her qualifications, (s)he was rejected; and (4) after his/her rejection, the position remained open and the employer continued to seek applications from persons of complainant's qualifications.
According to EEO theory, the complainant can prevail either by proving that discrimination more likely motivated the decision or that the employer's articulated reason is unworthy of belief. The key word is prove. In discrimination claims involving other discrimination subjects, the burden placed on the claimant will be basically similar to establish a prima facie case. This can be done when the action is very blatant and persistent, but the task ultimately falls on the claimant, not the Postal Service or the EEO Counselor/Investigator.
Problem 4: The EEO Investigative File
When EEO complaints are not resolved at the pre-complaint level, the EEO Counselor/Investigator prepares a tabular, investigative file. The content of the file will not be obvious to the complainant until after the case has been appealed for judicial relief. It is then that the complainant will be furnished what has been discovered by the EEO Counselor/Investigator during the processing of the complaint. Note that the EEO case is reduced to writing before the complainant has any control over its contents, other than the contents of his or her own affidavit and any documents he or she submitted.
At the very beginning of such an investigative file, typically at the first tab, will be the Investigative Report. In this front piece of the file may be found items highlighted and even termed Significant to Note. In the writer's experience, if content negative to the claimant is developed by the EEO Counselor/Investigator, even when not directly related to the complaint, it will be exposed in a manner prejudicial to the complainant at this point in the file.
A basic tactic in investigation of EEO complaints appears to be collecting the affidavit and evidence from the complainant and then comparing it closely to the pre-employment physical and job application of the complainant. A prior termination was featured in one such EEO investigative review when it was not disclosed on the current employment application, even though this factor had no bearing on the merits of the EEO complaint; yet this factor posed an impossible obstacle to an equitable settlement and a saved career. Disciplinary histories are also developed in many such reviews.
Exposing issues of this sort by the EEO Counselor/Investigator serves only to assist the Labor Relations Specialist in embarrassing the complainant's case in court or on appeal. Truly, these tactics beg the question: Just who is the EEO Counselor/Investigator trying to help?
Any advocate representing someone at this stage in the EEO process is strongly urged to read the Investigative Report with great caution as soon as it is available. The risks, if any, to the claimant in further pursuing the EEO can be weighed against any possible benefit.
Problem 5: Serious Employee Misconduct
Disciplined employees frequently seek relief from disciplinary penalties by filing an EEO complaint and claiming impairment or retaliation. Current EEO and ADA (Americans With Disabilities Act) case law finds that an employer does not have to excuse serious misconduct, even if the misconduct seems to result from an impairment that rises to the level of a disability, if it does not excuse similar misconduct from its other employees.
Is it true that an employer can discipline an individual with a disability for violating a workplace conduct standard if the misconduct resulted from a disability? Usually yes, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity. For example, nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus, an employer may issue discipline to an employee with a serious disability (including alcohol or drug dependency or stress-related disability) for engaging in such misconduct if it would impose the same discipline on an employee without a disability. The EEO issue does not succeed as an affirmative defense to severely bad conduct. Ironically, in the grievance procedure, such arguments often lead to negotiated settlements.
A prima facie case must be established that other employees similarly situated, except for the purview item(s), did not receive discipline by the same decision-maker for comparable conduct.
Problem 6: Inadmissibility of Settlements
Settlements of discipline are not admissible as evidence of disparity, even though the outcomes can be astonishingly different. The complainant often will be very aware that a co-worker did not get fired for having a fight with the boss, so why did the complainant? So long as the original penalty was comparable, the settlements will not be considered for comparisons. Once again, in the grievance process, prior settlements often are compared at Step 1 and 2 in the production of a negotiated settlement. It must be noted, however, that the employer would settle far fewer cases at any level in the grievance process if such settlements carried the force of precedent.
Problem 7: Fashioning A Proper Remedy
It is a widely held belief that the EEO process will not grant punitive damages to complainants, limiting awards to "make whole" remedies for discrimination. Although this belief is widely presumed, it is wrong in substantial aspects. A truly punitive award is not now permissible, but since the passage of the 1991 Civil Rights Act, a claimant can seek compensatory damages when the employer is found to have committed deliberate acts of discrimination.
Compensatory damages include pecuniary losses, future pecuniary losses, and nonpecuniary losses, such as emotional pain, suffering, mental anguish, inconvenience, and loss of enjoyment of life. For a complainant to seek compensatory damages, this should be identified in the requested remedy portions of the EEO documents. In the writer's experience, the average EEO Counselor/Investigator will not volunteer any information on the subject of compensatory damages unless specifically asked.
Problem 8: Final Agency Decisions
Even if the complainant receives a favorable decision from the EEO Administrative Judge who hears the appeal, the Postal Service does not have to honor the decision. By law, the agency is permitted to render a final agency decision modifying or even ignoring the judge's written decision. If the complainant does not agree with the Postal Service's decision notice, then appeal rights to the EEOC or to file a civil action in the U.S. District Court are extended. The Postal Service modifies very few decisions favorable to the agency, but does modify the majority of initial decisions not to its liking. In the writer's opinion, this is a truly absurd situation that only favors the employer, not the complainant or the EEO Administrative Judge.
Conclusion
Most discussion about reforming federal sector EEO speaks to the need to make decisions by Administrative Law Judges enforceable and to get the federal employer out of the complaint processing business altogether--by permitting the employee immediate access to the U.S. Equal Employment Opportunity Commission.
Should one file an EEO? In many instances the answer is yes. When a prima facie case can be presented and the issues are serious, an EEO can be pursued with at least the hope of success. For a terminated probationary employee, an EEO complaint is the only available avenue of redress. For the average employee faced with serious abuse, one could file both a grievance and an EEO, just to whack the perpetrator twice. Often such complaints lead to a cessation of abuse, and that is at least a small victory.