Fedweek Legal

On September 15, the Equal Employment Opportunity Commission Office of Federal Operations (OFO) published a report titled Preserving Access to the Legal System: Common Errors by Federal Agencies in Dismissing Complaints of Discrimination on Procedural Grounds.The report’s findings revealed an alarming rate of erroneously dismissed claims by federal agencies.

In preparing the report, OFO analyzed its appellate decisions over the past five years on federal agencies’ procedural dismissals of EEO complaints brought by employees or applicants for employment.OFO issues appellate decisions on approximately 1,300 to 1,500 agency dismissal decisions each year, reversing over one-third of these dismissals and remanding the complaints back to the agencies for investigation.According to data presented in the report, OFO reversed and remanded 44.9 percent of all appeal decisions of agency dismissals it issued in 2012.This number has risen steadily since 2008, when OFO reversed and remanded 30.3 percent of appeal decisions of agency dismissals.

OFO found that the agencies studied primarily erred in applying two regulatory grounds for dismissal. Eighty-one percent of all appellate reversals studied overturned agency dismissals on one of these two grounds: failure to state a claim, which accounted for about 57 percent of the appellate reversals, and failure to comply with applicable regulatory time limits, which accounted for about 24 percent of the appellate reversals.

The most common errors by agencies in dismissing complaints for failure to state a claim concerned the following issues: (1) fragmentation; (2) the proper standard for retaliation claims; (3) improper decisions on the merits; (4) issues of standing; (5) dismissing as a collateral attack on another process; and (6) issues surrounding the cancellation of vacancy announcements.

The report discussed in detail each of these common errors.For example, fragmentation, a very common agency error, occurs when agencies fail to distinguish between the factual allegations made by a complainant in support of a legal claim and the legal claim itself.Agencies frequently fragment harassment/hostile work environment claims by dismissing each factual incident cited by a complainant separately, reasoning that the incident was insignificant and could not have affected the complainant’s work environment.This, however, fails to consider a claim of a persistent pattern of alleged harassing conduct where each instance by itself may seem relatively trivial or isolated, but considered together, may allow complainant to prove a hostile work environment.

The report also analyzed the most common areas where agencies fail to comply with applicable regulatory time limits: (1) the agency’s failure to meet its burden of proof; (2) the effective date of an action or reasonable suspicion; (3) “Lily Ledbetter” issues; and (4) failure to consider a valid excuse.

As the report makes clear, training and other outreach efforts aimed at EEO directors and staff in federal agencies to reduce ongoing procedural dismissal errors is greatly needed to ensure that federal employees’ access to the legal system for discrimination complaints is preserved.Efforts are needed to prevent the rate of erroneous dismissals from continuing its steady increase.

* 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.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.