Case Summaries

  CASE SUMMARY #1: Race, Disability and Hostile Work Environment

  The complainant alleged discrimination on the bases of race and disability when he was not selected for a position. The final agency action implemented the Administrative Judge's decision finding discrimination on the basis of race. There was no finding of discrimination on the basis of disability.

Complainant also alleged a hostile work environment predicated upon disability and retaliation. The final agency action found no discrimination with regard to the hostile work environment.

To substantiate the finding of racial discrimination, the Administrative Judge cited the selecting official's lack of credibility and his overall negative attitude toward the complainant. Specifically, the Administrative Judge cited the selecting official's testimony that the complainant had performance issues, even though the selecting official rated the complainant at the highest level on his performance appraisals.

The selecting official stated that it was the activity's policy to grant everyone top-level appraisals to avoid complaints, which the Administrative Judge found highly objectionable and a possible tool to mask discrimination.

  DISABILITY LAW -Reassignment

  Complainant bears the burden of establishing likely vacancies in cases of reasonable accommodating involving reassignment. The agency's failure to conduct either any search at all, or a broad enough search for a positions, does not by itself resulting a finding of discrimination. See McIntosh v. United States Postal Service, EEOC Appeal No. 01A15285 (January 13, 2003).

Note: In such a case, documentation showing the extend of a search by the activity is required.

  HARASSMENT- Sexual

  Because this was a case of supervisory harassment, and it involved hostile environment harassment which did not result in a tangible employment, the Commission considered the agency's liability for the supervisor's actions under the U.S. Supreme Court decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U. S. 775 (1998). The EEOC found that the agency was liable for the supervisor's harassment, since it had failed to that complainant unreasonably failed to avail herself of preventative or corrective opportunities provided, or to otherwise avoid harm. Emphasis added. See Diggs v. Department of the Army, EEOC Appeal No. 01A12480 (January 9, 2003).

Note: Supervisors are advised to conduct themselves in a professional manner, thereby avoiding cases such as this.