FEDweek

Delayed Award is EEO Reprisal

On August 26, the Equal Employment Opportunity Commission’s Office of Federal Operations (OFO) in Complainant v. Dept. of the Navy, EEOC Appeal No. 0120122475, upheld a decision below that an employee suffered retaliation when the agency withheld an award.

The complainant, a Navy employee in Okinawa, filed an EEO complaint alleging seven counts of discrimination on the basis of race, color, religion and reprisal.The agency dismissed claim 7 (regarding an e-mail recommending that the complainant’s function as a weekend dispatcher be performed by a full-time employee) as relating to a preliminary step prior to a personnel action.After an investigation on the remaining claims, the complainant requested a final agency decision.

The agency found no discrimination in most of the remaining claims, but did find reprisal in delaying issuance of a $1,000 award to him, based on direct evidence of retaliation (an upper supervisor had ordered the award held until the EEO complaint had been resolved).The agency paid the complainant $2,000 ($1,000 attributed to the missed award, and $1,000 in nonpecuniary compensatory damages). He then appealed OFO.In its response, the agency attempted to argue that its own decision had been incorrect (although the agency did not rescind it).

On appeal, OFO noted that EEOC regulations do not permit an agency to appeal its own final decisions and upheld the agency’s merits decisions on the remaining claims. However, OFO reversed the agency’s dismissal of claim 7, noting that the threat of replacing the complainant’s function as a weekend dispatcher could reasonably deter EEO activity, and so stated a valid claim of reprisal.OFO accordingly ordered claim 7 reinstated and remanded it to the agency for investigation.

OFO also rejected most of the complainant’s appeal on the damages awarded. He had sought over $265,000 in damages (just over $5,000 in out-of-pocket medical expenses, $25,000 for future medical expenses, and $235,000 for nonpecuniary compensatory damages).OFO rejected his medical documentation on the grounds that 16 of the 17 pages of documents submitted were written in Japanese and he had failed to provide a certified translation.OFO also found that he had not met his burden of proof in documenting the need for future medical expenses.Finally, OFO rejected his request to increase the nonpecuniary compensatory damages award to $235,000 for lack of substantiation of damages at that level, although it did increase his award of nonpecuniary compensatory damages from $1,000 to $1,500.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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