Attachment 5 - Sample Case File - EEO Services.pdf

Sample Case File

Contents

EEO Basics Packet, 2-34

Sample Case, 35-121

UNITED STATES POSTAL SERVICE

NATIONAL EEO INVESTIGATIVE SERVICES OFFICE JANUARY 2017

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EEO BASICS

THRESHOLD ISSUES – Every Complainant must meet a threshold issue in order to be investigated. This determination requires the agency to separate adverse actions which may be merely unfair, but not unlawful, from those which are unlawful.

CLAIM – An assertion that an employment practice or policy is unlawful under the Federal EEO laws and for which, if the assertion is proven, there is a remedy under the law. All complaints must allege that the complainant has suffered an adverse employment action as a result of his/her protected status. The employment practices or policy being challenged may include things such as failure to hire, demotion, discipline, job assignment, training, discharge, layoff, denial of benefits, harassment, and failure to provide a reasonable accommodation. Generally, every action which could occur in the course of an individual’s employment may be raised in an EEO complaint.

BASES/PURVIEWS – The basis/purview (used interchangeably) of the complaint refers to the individual’s protected status (i.e., race, color, religion, sex, national origin, age, disability, or retaliation). Only those bases covered by Title VII, ADEA, EPA, and the Rehabilitation Act are covered by the federal EEO process. Each complainant must include at least one basis and identify one employment practice being challenged. Many complaints include multiple bases, sometimes under different statutes/theories.

THEORIES OF DISCRIMINATION and PRIMA FACIE ELEMENTS

DISPARATE TREATMENT

1. Is Complainant a member of a protected group?

2. Was Complainant the object of an adverse employment action?

3. Was Complainant treated differently in this regard than similarly situated individuals who were not members of the protected group, or is there direct evidence that shows discriminatory intent?

DISPARATE TREATMENT—NON-SELECTION

1. Is Complainant a member of a protected group?

2. Did he/she apply for and was qualified for the position?

3. Was he/she not selected for the position?

4. Was an individual not in his/her protected group selected under circumstances which, if left unexplained, would support an inference of discrimination?

DISABILITY DISCRIMINATION—DISPARATE TREATMENT

1. Is Complainant a person with a disability (i.e. Does he/she have a physical or mental impairment that substantially limits one or more major

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life activities or major bodily functions; does he/she have a record of such an impairment; or, is he/she regarded as having such an impairment?)

2. Was Complainant the object of an adverse employment action?

3. Was Complainant treated differently in this regard than similarly situated individuals who were not members of the protected group, or is there direct evidence that shows discriminatory intent?

DISABILITY DISCRIMINATION--ACCOMMODATION

1. Is Complainant a person with a disability because he/she:

• Has a physical or mental impairment that substantially limits one or more major life activities or major bodily functions; or

• Has a record of such an impairment?

2. Is Complainant a "qualified individual” with a disability in that he/she is qualified for and can perform the essential elements of the position at issue with or without reasonable accommodation?

3. Has Complainant identified a plausible means by which he/she can be accommodated without undue hardship to the employer?

DENIAL OF RELIGIOUS ACCOMMODATION

1. Does Complainant have a bona fide religious belief* that conflicts with an employment requirement?

2. Did Complainant inform the employer of this belief and conflict?

3. Did the agency enforce the employment requirement and Complainant suffer an adverse employment action for failing to comply with the conflicting employment requirement?

*Religious belief does not have to be derived from an established religion, but does have to be a sincerely held belief.

RETALIATION

1. Did Complainant previously engage in protected EEO activity*?

2. Was the management official who took the action aware of Complainant’s

EEO activity?

3. Was Complainant contemporaneously or subsequently subjected to an adverse employment action or adverse treatment likely to deter a reasonable person from engaging in protected EEO activity?

4. Does a nexus exist between Complainant’s protected EEO activity and the actions complained of?

*Protected EEO activity falls into two categories: participation in and opposition to and includes filing a charge, testifying, assisting another, or participating in a discrimination proceeding; or otherwise opposing discrimination.

HARASSMENT

1. Is Complainant a member of a protected group*?

2. Was Complainant subjected to unwelcome verbal or physical conduct**?

3. Was the conduct complained of based on Complainant’s membership in the statutorily protected group?

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4. Did the conduct have the purpose or effect of unreasonably interfering with Complainant’s work performance and/or creating an intimidating, hostile, or offensive work environment?

5. Is there a basis for imputing liability to the employer?

*Does not have to be based on sex.

**Harassing conduct should be severe and pervasive.

SEXUAL HARASSMENT—TANGIBLE EMPLOYMENT ACTION

1. Is Complainant a member of a protected group?

2. Was Complainant subjected to unwelcome sexual advances or requests for sexual favors?

3. Were the advances or requests based on Complainant’s sex?

4. Was the submission to or rejection of the advances or requests a basis for a tangible employment action?

PRETEXT - In order to prove discrimination, the complainant must show that the agency knew and took an adverse action specifically because of his/her membership in a protected class. They need to show that management’s reason for its actions is untrue or not the real reason for the action.

TIME LIMITS

EEO COUNSELING (Informal stage) – 45 days from the alleged discriminatory act.

FORMAL EEO COMPLAINT – must be filed within 15 days from receipt of the Notice of Right to File a Formal EEO Complaint.

Q. When does the clock start for determining the date of the alleged violation?

A. The date of the violation is generally the first date the employee has notice of the adverse action. If the adverse action is a personnel action, the contact with an EEO counselor must be made within 45 days of the effective date of the personnel action.

CONTINUING VIOLATIONS – Sometimes, a complainant will allege a series of discriminatory acts that are continuing in nature, i.e., a continuing violation. If a continuing violation is found, usually in Harassment cases, events occurring outside the 45-day time limit may be found to be timely. To be a continuing violation, there must be at least one timely event and an interrelationship between the other discriminatory events.

FORMS

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1. 2430 – EEO Investigation Report [cover page]

2. 2564-A – Information for Pre-complaint Counseling

3. 2564-C – Withdrawal of Complaint of Discrimination

4. 2565 – EEO Complaint of Discrimination (formal complaint)

5. 2565-A – Withdrawal of Formal EEO Complaint of Discrimination

6. 2565-C – Agreement to Extend 180-Day EEO Investigative Process

7. 2568-B – EEO Investigative Affidavit (Witness)

8. 2569-C – Compensatory Damages Investigative Affidavit

9. 2570 – EEO Dispute Resolution Specialist (DRS) Inquiry Report

10. 2571 – Certification [page]

11. 2579 – Notice of Right to file

POSTER 72 – Equal Employment Opportunity is the Law – How to present an EEO Problem

PUBLICATION 133 – What you need to know about EEO

AMENDMENTS

1. 29 CFR § 1614.106(d) states in part: “A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint…”

2. Like or related claims must be amended to the case that is pending investigation – they should not be scheduled for REDRESS mediation or counseling.

3. Amendments, as well as partial accept/partial dismissals, are not appealable.

CONSOLIDATIONS

Consolidations occur when two or more formal complaints with unique case numbers for the same Complainant are combined into one complaint and one investigation and investigative report. This usually occurs:

1. When a new claim is raised that is not like or related to existing claims, the complainant must raise the issue with a DRS and go through pre-complaint counseling. If the complainant subsequently files a formal complaint, and his/her original complaint is still under investigation, EEOC regulations require the agency to consolidate the two complaints into one investigative report.

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2. If a formal complaint is remanded back for investigation and the Complainant has another open formal complaint being investigated, the two may be consolidated into one investigative report.

BASES FOR DISMISSAL – §1614.107

1. Failure to state a claim

2. Failure to comply with time limits

3. When a claim is the basis of a pending civil action in a US District Court, 180 days after filing the administrative complaint

4. Allegation raised in negotiated grievance proceeding

5. Allegation is moot or alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory

6. When the complainant cannot be located (15 days to respond)

7. When the agency has provided complainant with a written request to provide relevant information or otherwise proceed with the complaint and the complainant has failed to respond w/I 15 days

8. Dissatisfaction with the processing of a previously filed complaint

9. Abuse of process – where the agency, strictly applying the criteria set forth in commission decisions, finds that the complaint is part of a clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination.

DISABILITY – WHAT FACTORS MUST BE SATISFIED IN ORDER FOR SOMEONE

TO BE “DISABLED?”

To qualify as a disabled person you must be someone who:

1. Has a physical or mental impairment that substantially limits one or more of that person’s major life activities;

Impairment:

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A physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting a body system; or

A mental or physiological disorder, such a mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

2. Has a record of such impairment; or

3. Is regarded as having such impairment.

Evidence of Impairment:

Evidence concerning the complainant’s physical or mental condition must be specific and must discuss the complainant’s specific limitations vis-à-vis the position that he or she holds or is seeking and the expected duration of those limitations.

MIXED CASES – DEFINITION OF § 1614.302

1. A mixed case complaint is a complaint of employment discrimination filed with a federal agency based on race, color, religion, sex, national origin, age, disability, or reprisal related to or stemming from an action that may be appealed to the MSPB

2. A mixed case appeal is an appeal filed directly with the MSPB that alleges that an appealable agency action was affected, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national origin, disability, age, or reprisal.

3. There is no right to a hearing before an EEOC AJ on a mixed-case complaint.

(These go directly to the FAD writers).

4. Two determinations must be made to decide if the mixed case regulations apply.

a. First, the employee must have standing to file such an appeal with the

MSPB

b. Second, the claim that forms the basis of the discrimination complaint must be appealable to the MSPB

Who can file an Appeal with MSPB?

All employees or former employees who believe they have been discriminated against and who have an action appealable to the MSPB may file a mixed case complaint.

Actions appealable to the MSPB include the following:

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1. Recovery from a compensable work-related injury

2. Return from active duty in the armed forces of the U.S.A.

Adverse personnel actions may be appealed to the MSPB by employees with one or more years of current continuous service in the same or a similar position in the Postal Service who are eligible for veterans’ preference and the employees covered by Public Law 100-90. Employees covered by Public Law 100-90 include postmasters, employees in supervisory positions, a limited group of management employees, and some employees in confidential positions. Adverse personnel actions include:

1. Suspension of more than 14 days

2. Reduction in grand and/or pay

3. Furlough of 30 days or less

4. Constructive discharge

5. Removal

6. Reduction in Force (RIF), but only in relation to preference eligibles

FRAGMENTATION – AVOID IT!!!

1. Fragmentation often occurs at the point where the agency identifies and defines the complainant’s claim, most commonly during the counseling and investigative states.

2. Fragmentation often results from a failure to distinguish between the claim the complainant is raising and the evidence (factual information) s/he is offering in support of that claim.

EXAMPLE: A female employee complains to the EEO Counselor that she is being subjected to a hostile work environment due to the ongoing sexual harassment by her male coworkers. This is the complainant’s legal claim. In support of this claim, the complainant tells the counselor of specific incidents of a sexual advance, a sexual joke and a comment of a sexual nature. These individual incidents are evidence in support of the complainant’s claim and should not be considered as separate claims in and of themselves.

SPIN-OFF COMPLAINT

1. A spin-off complaint concerns the processing of a pending complaint. For instance, a complainant may contend that the Area has retaliated by prolonging the investigation or by assigning an investigator to the case that he/she dislikes.

2. Investigators won’t be required to investigate spin-off complaints, but they may be required to add them to their case files. If so, make sure it is listed in the contents page so the AJ will know it has been included in the investigative file.

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FINAL AGENCY DECISIONS (FADs)

Once the investigation is complete, the Complainant and their representative are mailed a copy of the ROI and a letter outlining their options. They can either request a hearing in front of the EEOC or request a merit FAD issued by the Agency. They have 30 days to decide. If they do nothing, they will be issued a FAD.

1. An agency’s processing of an EEO complaint ends with the issuance of a final agency decision (FAD). A FAD on the merits may follow a hearing and recommended decision by an AJ or may be issued based upon the Report of Investigation (ROI).

2. Dismissals of complaints also are accomplished by procedural FADs.

OFFICIAL TIME - § 1614.605

1. Section 1614.605 provides that complainants are entitled to a representative of their choice during pre-complaint counseling and at all stages of the complaint process.

Both the complainant and the representative, if they are employees of the agency where the complaint arose and was filed, are entitled to a reasonable amount of official time to present the complaint and to respond to agency requests for information if otherwise on duty.

SIMILARLY SITUATED EMPLOYEES

To be similarly situated, the complainant must show that “all relevant aspects of his/her employment situations are nearly identical to those of the [comparisons]” Payne v.

Illinois Central Gulf R. R., 665 F. Supp. 1308, at 1333 (W. D. Tenn. 1987).

In order to be similarly situated, other employees must have reported to the same supervisor as the complainant, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the complainant’s, without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it – Mazzella v. RCA Global Communications, Inc., 642 F. Supp. 1531, 1546-47 (S.D.N.Y. 1986).

THEORIES & ELEMENTS

A. DISPARATE TREATMENT

1. Complainant must establish a Prima Facie Case:

a) Complainant is a member of a protected class

b) Complainant was subjected to an adverse employment action; and

c) Was Complainant treated differently in this regard than similarly situated individuals who were not members of the protected group, or is there direct evidence that shows discriminatory intent?

1) In order for the trier of fact to determine similarly situated comparators, the investigator must address considerations such as:

(a) Are they covered by the same policy?

(b) Are they subject to the same practice?

(c) Did they engage in similar conduct?

(d) Who was the decision maker for the Complainant?

(e) Is it the same decision maker for others who engaged in similar conduct?

2. If Complainant establishes a Prima Facie Case, the Agency must provide legitimate non-discriminatory reasons for its actions.

3. Once the Agency has articulated a non-discriminatory reason, the investigation focuses on whether the articulated reason is a pretext to hide discrimination. Is the reason given by the agency or the responsible management official inaccurate, and is masking the employer's true discriminatory motive?

B. DISPARATE TREATMENT—NON-SELECTION

a) Complainant is a member of a protected class

b) They applied for and were qualified for the position

c) They were not selected for the position; and

d) The individual selected was not in his/her protected group and was selected under circumstances which, if left unexplained, would support an inference of discrimination

C. RETALIATION

a) Complainant has previously engaged in prior protected EEO activity by either opposing what Complainant reasonably and in good faith believed to be an unlawful employment practice or by participating in the EEO process

b) The management official who took the action was aware of Complainant’s EEO activity

c) Complainant was contemporaneously or subsequently subjected to an adverse employment action or adverse treatment likely to deter a reasonable person from engaging in protected EEO activity

d) A nexus exists between Complainant’s protected EEO activity and the alleged actions. There was a causal connection between Complainant's protected activity and the adverse action (shown, e.g., by timing of adverse treatment soon after Complainant's protected activity) the reason given by the agency or the responsible management official inaccurate, and is masking the employer's true discriminatory motive? (ie., is the Agency’s reason is not believable; evidence that similarly situated individuals who did not oppose discrimination or participate in the EEO process were treated differently)

D. DISABILITY DISCRIMINATION—DISPARATE TREATMENT

a) Complainant a person with a disability because he/she:

(1) Has a physical or mental impairment that substantially limits one or more major life activities or major bodily functions; or Has a record of such an impairment; or Is regarded as having an impairment

(2) Is a "qualified individual” with a disability in that he/she is qualified for and can perform the essential elements of the position at issue with or without reasonable accommodation

(3) Has identified a plausible means by which he/she can be accommodated without undue hardship to the employer

b) Complainant was subjected to an adverse employment action; and

c) There was a connection between membership in the protected class and the adverse employment action. This may be accomplished indirectly, such as through comparative evidence, or other evidence sufficient to create an inference of discrimination

a) In order for the trier of fact to determine similarly situated comparators, the investigator must address considerations such as:

(a) Are they covered by the same policy?

(b) Are they subject to the same practice?

(c) Did they engage in similar conduct?

(d) Who was the decision maker for Complainant?

(e) Is it the same decision maker for others who engaged in similar conduct?

E. DISABILITY DISCRIMINATION--ACCOMMODATION

a) Complainant a person with a disability because he/she:

1) Has a physical or mental impairment that substantially limits one or more major life activities or major bodily functions; or Has a record of such an impairment; or Is regarded as having an impairment

2) Is a "qualified individual” with a disability in that he/she is qualified for and can perform the essential elements of the position at issue with or without reasonable accommodation

3) Has identified a plausible means by which he/she can be accommodated without undue hardship to the employer

b) Complainant was subjected to an adverse employment action

c) There was a connection between membership in the protected class and the adverse employment action.

legitimate non-discriminatory reasons or establish undue hardship.

F. DENIAL OF RELIGIOUS ACCOMMODATION

a) Complainant has a bona fide religious belief that conflicts with an employment requirement

b) Complainant informed the employer of this belief and conflict

c) The agency enforced the employment requirement and Complainant suffered an adverse employment action for failing to comply with the conflicting employment requirement

G. HARASSMENT

a) Complainant is a member of a protected group

b) Complainant was subjected to unwelcome verbal or physical conduct

c) The conduct complained of was based on Complainant’s membership in the statutorily protected group

d) The conduct had the purpose or effect of unreasonably interfering with Complainant’s work performance and/or creating an intimidating, hostile, or offensive work environment

e) There is a basis for imputing liability to the employer

1) For Supervisory/Management harassment: The Agency is automatically liable if the harassment resulted in a tangible employment action. If it did not, the Agency is still liable unless it proves it took reasonable care to prevent and correct promptly the harassment and Complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency.

2) For co-worker harassment: The Agency is liable if it knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

3) For non-employee harassment: The Agency is liable if it knew or should have known and failed to take immediate and appropriate corrective action and the Agency had some control over the harasser.

4. If Complainant establishes a Prima Facie Case, the Agency must provide

5. Once the Agency has articulated a non-discriminatory reason, the investigation

H. SEXUAL HARASSMENT—TANGIBLE EMPLOYMENT ACTION

a) Complainant is a member of a protected group

b) Complainant was subjected to unwelcome sexual advances or requests for sexual favors

c) The advances or requests are based on Complainant’s sex

d) The submission to or rejection of the advances or requests was a basis for a tangible employment action

e) There was a basis for imputing liability to the employer and the Agency is automatically liable if the harassment resulted in a tangible employment action

2. Complainant was subjected to an adverse employment action

3. If Complainant establishes a Prima Facie Case, the Agency must provide

4. Once the Agency has articulated a non-discriminatory reason, the investigation

Flowchart of the EEO Complaint Process

After the investigation is completed, you will receive a copy of the investigation report. The Director of

EEO will notify you of the right to either request a hearing before an EEOC Administrative Judge (AJ) or receive a final FTC decision without a hearing.

If mediation is successful within 90 days, the

Director of EEO will inform the EEO counselor that the claim was resolved.

The Director of EEO will issue a final FTC decision within 60 days of receiving notice of the request for a final FTC decision.

You may request an

EEOC hearing within 30 days of receiving the report of investigation.

An EEOC AJ will make a decision about the matter.

If you are not satisfied with the FTC’s final decision, you may appeal to EEOC within

30 days of receipt.

Within 40 days of receiving the AJ’s decision, the FTC must issue a final order.

If you are not satisfied with

EEOC’s appellate decision, you may file a request for reconsideration or you may file in Federal district court within 90 days of receipt.

If you are not satisfied with the FTC’s final order, you may appeal to EEOC within 30 days of receipt.

Formal Complaint Process

Incident Occurrence

Pre-complaint Counseling

You must contact an EEO counselor within

45 days of the incident. If you request traditional counseling, the EEO counselor will have 30 days to attempt resolution.

You may request to participate in the FTC’s

Alternative Dispute Resolution Program (i.e., Mediation Program), in which case the FTC will have up to 90 days to resolve the matter.

If you choose mediation, pre-complaint counseling will not occur. If mediation is not successful and a resolution is not reached within 90 days, the EEO counselor will issue a notice of the right to file a formal complaint.

You will have 15 days to file a formal complaint.

EEOC regulations require that you seek pre-complaint counseling before filing a formal complaint.

You must file a formal complaint within 15 days of receiving the notice of the right to file a formal complaint. The Director of EEO will acknowledge receiving the formal complaint and notify you of the claims accepted for investigation. If the claims asserted and those accepted for investigation differ, the Director of EEO will explain the reasons for such differences, including whether the agency is dismissing the entire complaint, or in part.

The Director of EEO will assign an investigator to develop impartial and appropriate factual information on the claims accepted for processing.

The FTC must complete the investigation, within

180 days of the date the formal complaint was filed.

The 30-day counseling period may be extended no more than 60 days if you and the

FTC agree to such an extension in writing. If you choose traditional counseling and a successful resolution is not reached, the EEO counselor will issue a notice of the right to file a formal complaint. You will have 15 days to file a formal complaint.

EEO Glossary

EEO Glossary Page 1 updated April 21, 2016

29 C.F.R. 1614 – regulations governing the processing of discrimination complaints in the federal sector including the Postal Service

Abeyance – deferral of EEO complaints pending decision on the appeal of the same or related issues in other forums (grievance procedure, MSPB, etc.)

Acceptance Letter – the agency’s notice to the complainant identifying the issue (s) accepted for investigation and the scope of the investigation

Ad-hoc – an individual or group selected or appointed for a special purpose and time on an as-needed basis

ADAAA – Americans with Disabilities Act Amendments Act (42 U.S.C. 12101 et seq.

and 29 C.F.R. 1630); prohibits discrimination against a qualified individual because of a disability in regard to: job application procedures, hiring, advancement; discharge;

compensation; job training, and other terms and conditions of employment; it does not apply to federal sector employees, but is interpreted in the same manner as the Rehabilitation Act

Addendum – a thing that is added or to be added; consisting of added material

ADEA – Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.) which prohibits discrimination against persons 40 years of age and older

Adequacy of Representation – one of the four class prerequisites, requires the employee or attorney who represents the class to be qualified, experienced, and generally able to conduct class action complaint litigation

Adjudicate - to settle or determine Administrative Complaint Process (29 C.F.R.

1614.101 et seq.) – stage of EEO complaint processing used for the filing and investigation of EEO complaints within the agency until a civil action is filed

Administrative Judge (AJ) – the individual whom EEOC has assigned and empowered to conduct hearings into EEO complaints

Adverse action – as defined in 5 USC 7512:

removals, suspensions for more than 14 days, reductions in grade, reductions in pay, and furloughs of 30 days or less that are appealable to the MSPB under 5 USC 7513(d)

Affiant – the person who makes and subscribes an affidavit

Affidavit – a written statement of facts given under oath, affirmation, or penalty of perjury

Affirmation – a solemn and formal declaration or assurance that an affidavit is true and that the witness will tell the truth; this may be substituted for an oath in certain cases

Age – the length of time during which a person has lived

Agency – United States Postal Service (for the purpose of this glossary)

Agency Advocate – a designated employee of the Law Department who assists, defends by argument, speaks in favor of, or pleads the agency’s cause or side

Aggrieved – an individual whose rights, terms or conditions of employment have been injured, hurt, harmed, damaged or adversely affected due to some alleged discriminatory action because of their race, color, religion, sex, national origin, age, or handicap, or in retaliation for having participated in or opposing any practice made unlawful by Title VII, the ADEA, the EPA, or the Rehabilitation Act

Allegation – an accusation, claim, assertion, or statement, at that point unproved, charging someone with an action

Alternative Dispute Resolution (ADR) – various processes, not specifically identified in 29 C.F.R. 1614 regulations, in which an individual may voluntarily participate in seeking resolution (such as fact finding meetings, mediation, conciliation, and caucusing)

Amendment – addition of like or related issues to a previously filed formal complaint

Animus – disgust; hate; hostility; distaste;

abomination; dislike; animosity; hatred

EEO Glossary Page 2 updated April 21, 2016

Anonymity – an employee’s right to refrain from revealing his or her identity during the informal EEO process; to remain unknown

Appeal – a procedure within the EEO process that permits a person to request further review of a final action concerning his or her complaint

Appeal Rights – entitlement conferred by EEOC Regulations to further process a complaint

Assignment Letter – the agency’s notice provided to the assigned EEO Investigator indicating the issue (s) to be investigated and the authority to investigate all aspects of the complaint

Attorney Fees or Costs - an award that is part of the relief available to a successful complainant conferring allegations of discrimination prohibited by Title VII and the Rehabilitation Act; not recoverable in the administrative process in cases involving age discrimination

Back Pay – payment given the prevailing party which consists of the difference between wages already paid an employee and any higher wages granted by the award; the pay, allowances, and differentials the employee would have received or been entitled to if the unjustified or unwarranted personnel action had not occurred

Basis – the type of discrimination alleged in a complaint; one of the two components of a claim of discrimination (example: race, religion, sex, age, national origin, color, physical or mental disability or retaliation)

Became Aware - the time or date that the person filing a complaint of discrimination reasonably became informed, aware, enlightened, familiar with, notified, or advised of an event or action

Bench Decision – when an Administrative Judge makes his or her recommended decision immediately following the close of the taking of evidence at an EEO hearing

BFOQ - Bona Fide Occupation Qualification is a condition imposed by an employer that requires the person holding a position to be a member of a particular protected category;

must be reasonably necessary to the normal operation of business (relates to Age

Discrimination in Employment Act Claims;

example: pilots with age limitation)

Bias - a preconceived opinion; a mental attitude or condition of mind which sways judgment and renders one unable to exercise impartiality

Bifurcate - to separate or divide into two parts or branches. Typically used to separate mixed and non-mixed issues or class and non-class claims

Binding Agreement – an enforceable coming together of the minds, opinions or determinations between two or more parties with respect to some property, right, or benefit

Breach – when one party to a contract or agreement fails to carry out a term, promise, or condition of the agreement; the breaking of an agreement

Burden of Proof - the necessity or duty of proving a fact or facts in dispute on an issue raised in a case or cause; the obligation of an individual to establish by evidence a required degree of belief concerning a fact in the mind of the trier of fact or the court

Certification - affirmation that the person serving in the capacity of EEO Counselor or Investigator has successfully completed required training per the agency and EEOC

Certified Class Action Complaint – a complaint that the EEOC has agreed to hear as a class rather than as an individual cause of action

Certiorari - a discretionary process used by the Supreme Court to choose the cases it wishes to hear

Circumstantial Evidence – evidence of facts or circumstances from which the existence or non-existence of a fact in issue may be inferred

Cite (or citation) - to refer to or directly paraphrase a legal source in support of a statement

Civil Action - an action brought before the U.S.

District Court

Civil Rights Act (1964) – (Title VII) prohibits discrimination on the bases of an individual’s

EEO Glossary Page 3 updated April 21, 2016 race, color, religion, sex, national origin, or reprisal for prior EEO protected activity

Civil Rights Act (1991) - amended the Civil Rights Act of 1964 and extended the time period for appeals of final agency decisions (FADs) to U.S. District Court from 30 to 90 calendar days; provides for awards of compensatory damages in federal sector discrimination cases and trials by jury;

provides for recovery of expert witness fees as part of reasonable attorney fees

Class - a group of employees, former employees, or applicants who allege they have been adversely affected by an agency personnel policy or practice that discriminates against the group on the basis of their common race, color, religion, sex, national origin, age, or disability

Class Agent - a class member who has been aggrieved and who acts on behalf of, or as spokesperson for, the class during the processing of the EEO class complaint

Class Complaint - a written formal complaint of discrimination filed on behalf of a class by the agent of the class; a vehicle to challenge agency policies and practices that adversely affect large numbers of employees with a common characteristic of race, sex, religion, national origin, age or disability status

Class Member - named complainant or complainants, all unnamed and unidentified persons who are members of the class and have been subjected to the same alleged discriminatory policies or practices

Class Representative - defined by EEOC as one who represents class members in the litigation or prosecution of the class action, and most often, but not necessarily, an attorney

Closure - closing an EEO complaint in accordance with EEOC regulations, including through settlement, withdrawal, final agency decision, etc.

Code - a systematic collection or revision of laws, rules, or regulations

Codification - the process of collecting and arranging systematically the laws of a state or country, or the rules and regulations covering a particular area or subject of law or practice

Coercion - pressure, constrain, persuade, restrain, cause undo duress, compel an individual to act against his or her will by force or threats

Collective Bargaining Agreement – an agreement entered into by a recognized union and postal management that regulates terms and conditions of employment for a particular bargaining unit

Color - the pigmentation of one’s skin (example:

brown, dark brown, yellow, light brown etc.)

Commonality - one of the four class complaint prerequisites that require the agent to specifically identify facts common to the class and focuses on the claims and injuries of the agent and the class

Comparative Evidence - evidence gathered to determine whether appropriate comparators are similarly situated with respect to a complainant and were treated more favorably/ the same

Compensatory Damages - authorized by Congress with the passage of the Civil Rights Act of 1991 and can be awarded against the federal government under Title VII and the Rehabilitation Act in cases involving intentional discrimination; awards made to compensate the victims of discrimination for the more intangible injuries that occur as the result of discrimination or for actual loss or injuries suffered; monetary damages in addition to full relief; encompasses such things as emotional pain and suffering, mental anguish, and loss of enjoyment of life; may also consist of past pecuniary and future pecuniary losses

Complainant - an individual who has filed a formal complaint of discrimination

Complaint - written charges filed with the office of EEO at the conclusion of counseling

Condition of Employment - qualification required for a particular job; circumstances under which employment may be secured (example: probation period)

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Confidentiality - treated as private and not for publication; being held in confidence or kept secret

Consolidate – combining two or more formal complaints into one complaint for processing to avoid fragmentation of claims

Constructive Discharge - where the employer discriminatorily creates working conditions which are so difficult, unpleasant, or intolerable that a reasonable person in the aggrieved person’s position would feel compelled to resign, or retire; a forced resignation or retirement

Counselee - the title or term given an individual who requests EEO counseling

Counseling - an informal process in which an EEO Counselor, serving as a neutral, provides an employee with his/her rights and obligations under EEO Laws. The process involves the collection of limited information and attempts at informal resolution

Date of Contact - the actual day that a person contacts the office of EEO to request EEO counseling; this is usually accomplished by telephone, but can be done in person, by FAX or by mail (if by mail then the date of postmark is considered the date of contact)

De minimis Cost - very small Decision - a determination arrived at after consideration of the evidence by the Agency, EEOC, or District Court

Deferral - the act of delaying, postponing or putting off

Direct Evidence - evidence that consists of facts; that which definitively establishes the fact(s) in issue without inference or presumption; that which is actually seen, touched, or heard; evidence of the matter in question

Disability - consists of two elements: first, that one has, has a record of having, or is regarded as having a physical or mental impairment; and second, that the impairment substantially limits a major life activity

Disabled Veteran - a person who suffers from an accepted service-connected physical or mental condition; service-connected

“disabilities” do not automatically indicate that the individual is a qualified person with a disability within the meaning of the Rehabilitation Act

Discovery - a method that enables a party to obtain facts and relevant information about the issue raised in a complaint to assist in the preparation for hearing; discovery may include depositions upon oral examination or written questions, production of documents, and physical or mental examinations

Discrimination - illegal and unfair treatment or denial of normal privileges to persons because of their race, age, sex, national origin, religion, color, physical or mental disability, or retaliation

Dismiss - to dispose of an EEO complaint procedurally in accordance with EEOC regulations

Disparate Impact – theory of discrimination where a protected group of employees or applicants are adversely affected by an employment practice which appears on the surface to be neutral but has a harsher effect on the protected group (example: requiring all applicants to possess a college degree)

Disparate Treatment – a theory of discrimination where an individual alleges that he/she has been treated less favorably than other similarly situated individuals who are not members of the same race, national origin, sex, religion, color, who are younger, or who have not previously engaged in EEO activity

DOB - date of birth; the day, month and year that a person was born

Documentary Evidence – relevant documenta-tion such as letters, inscriptions, documents, or written material such as exhibits and medical reports

Dual Filing - when an employee covered by a collective bargaining agreement files an EEO complaint and a grievance on the same matter

Duty Status - the complainant’s or EEO representative’s normal hours of work

EEO - Equal Employment Opportunity EEOC – (Equal Employment Opportunity

Commission) an agency created by Title VII

EEO Glossary Page 5 updated April 21, 2016 of the Civil Rights Act of 1964 whose purpose is to end discrimination based on race, color, religion, age, sex, national origin, or disability in hiring, promotion, firing, wages, training, and other conditions of employment; its authority is limited to discrimination cases

EEO Contract Investigator - a person designated and authorized by the agency to conduct an in-depth collection of data concerning the issue(s) under investigation in an accepted EEO complaint

EEO Counselor - an impartial party who gathers information and conducts a limited inquiry into the matter at issue; serves as a bridge between employees and management and attempts to facilitate amicable solutions to employee problems; offers ADR where appropriate; informs employees of their right to file a formal complaint if counseling is not successful

EEO Hearing – an administrative process similar to a court room hearing during which an EEOC Administrative Judge takes evidence and hears testimony to complete the investigation of an EEO complaint and render a decision

EEO Investigation - a summary and analysis of collected and discovered factual information concerning the issues of an accepted complaint of discrimination; it must be completed within 180 days of the date of filing the complaint; time limits are extended by agreement of the complainant or when the complaint is amended or consolidated

EL-806 Handbook - a reference guide concerning Health and Medical Services

EPA - Equal Pay Act of 1963 (29 U.S.C. 206(d)) prohibits paying employees of one sex lower wages than those of opposite sex for performing substantially equal work

Equal - to be on the same level with respect to worth, value, or rights

Essential Job Functions - under the EEOC’s disability discrimination regulations, job functions are essential if:

1) the position exists to perform the function;

2) there are a limited number of employees available to perform the job functions; or

3) the function is so highly specialized that the incumbent was hired for his or her expertise or ability to perform the function of the job

Fact - actual existence or occurrence; a circumstance, event or occurrence as it actually takes or took place

FAD - Final Agency Decision; a written agency decision issued in accordance with EEOC regulations

Fair - honesty, justice, and freedom from improper influences; equitable, just, objective, unbiased, unprejudiced, impartial, above-board

Final Interview – a communication at the conclusion of counseling during which the counselee is provided information in reference to the counseling process and appeal rights for filing a formal complaint of discrimination

Finding - the conclusion reached by an Administrative Judge or the EEOC after a hearing or a review of the investigation of a discrimination claim

Formal complaint - a written and signed complaint of discrimination filed after unsuccessful counseling

Full Relief – that which is required to place a complainant in the same situation or position he/she would have been in if discrimination had not occurred

Furlough - non-duty, non-pay status of a temporary and non-disciplinary nature

Grievance - a dispute, complaint, protest, charge, gripe, objection, case, or injury raised by an employee under a negotiated grievance process covered by the collective bargaining agreement and handled by union officials

Has a record of such an impairment - has a history of, or has been classified (or misclassified) as having a mental or physical impairment that substantially limits one or more major life activities

Hearsay Evidence - a term applied to testimony given by a witness who relates, not what he or she knows personally, but what others have told him or her, or what he or she has heard said by others

EEO Glossary Page 6 updated April 21, 2016

Hostile Work Environment – a pattern of conduct based on the complainant’s protected group status that a reasonable person would find objectively offensive and would be severe or pervasive; a hostile work environment claim can involve any basis of discrimination

Impartial - neutral; not taking a side Individual with a Disability - one who: 1) has a physical or mental impairment which substantially limits one or more of such person’s major life activities; 2) has a record of such an impairment; or 3) is regarded as having such an impairment

Initial Contact – date of EEO contact; generally the date of telephone contact to the toll-free number

Inquiry - an informal review into a matter Issue(s) - the act or personnel action that gave rise to the complaint Investigation - a non-adversarial process by persons authorized to obtain affidavits and documents and make an official inquiry sufficient to determine whether or not alleged discrimination occurred

Jurisdiction - right, power, or authority (e.g.

whether MSPB or EEOC must/may hear the claim)

Major Bodily Functions – such things as normal cell growth, normal brain function, normal endocrine system function, etc. relevant to determining if a complainant is a “person with a disability”

Major Life Activities - functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working

Material Evidence - that which relates to one or more of the issues raised in the complaint or raised by the agency’s answer to it; relates to the matter at issue

MD-110 (Management Directive, Federal Sector Complaint Processing Manual) - a supplement to EEOC regulations containing further explanation, guidance and clarification of the Commission’s position on a wide range of substantive and procedural issues

Mitigate - to lessen, decrease, alleviate, relieve, ease, or lighten

Mixed Case Appeal - an appeal filed directly with the MSPB that alleges an adverse action (see page 1) was affected, in whole or in part, by unlawful discrimination; mixed cases also include claims concerning failures to restore in connection with approved Federal Employees Compensation Act (FECA) claims and demotions related to reductions in force (preference eligible only)

Mixed Case Complaint - a complaint of employment discrimination based on race, color, religion, sex, national origin, age, or disability related to or stemming from an action taken by the Postal Service that may be appealed to the Merit System Protection Board

Moot - when issues presented are no longer live or the parties lack a legally cognizable interest in the outcome; a claim is moot if the effects of the alleged discrimination have been eliminated and it can be said with reasonable certainty that the problem will not recur

MSPB (Merit Systems Protection Board) - an independent federal administrative agency, whose authority is derived from Title 5 of the United States Code, which has jurisdiction over a limited number of personnel actions

National Origin - refers to the country where a person was born or country from which his or her ancestors came

Negotiated Grievance Procedure - a procedure in a…