Charges Found to be Pretext for Discrimination

The EEOC Office of Federal Operations (OFO) recently reversed the Department of Homeland Security’s rejection of an administrative judge’s award of compensatory damages for the termination of a probationary legal instructor.Complainant v. DHS, No. 0720130039 (8/7/14).

The agency alleged conduct issues in terminating the complainant but the AJ found the allegations were a pretext for sex discrimination, finding she was subjected to disparate treatment than her peers and that the agency had no formal policy pertaining to the alleged conduct.Furthermore, she had been recently rated as “meets or exceeds,” her performance was characterized as “expected of an instructor who had been with the agency for less than a year,” and she had received a within-grade increase.

The AJ awarded her reinstatement with back pay and benefits, $200,000 in nonpecuniary (compensatory) damages, $200,000 in attorney fees, and pecuniary damages.

DHS rejected the AJ’s award of nonpecuniary damages and appealed to OFO.However, the OFO upheld the AJ’s finding of discrimination and the $200,000 award, noting that the complainant had experienced humiliation, emotional distress, a sense of helplessness and hopelessness, a divorce, adverse impact on her young children, sleeplessness, weight loss, and visible damage to her skin and hair caused by stress.She also suffered economic hardship as the chief income earning parent, she had to relocate to find work, and her professional reputation was damaged among her peers and prospective employers.The EEOC cited to Commission precedent in [ ] v. U.S. Postal Service, EEOC Appeal No. 0720120027 (4/2/14) ($210,000 awarded), and Sebek v. Dept. of Justice, EEOC Appeal No. 07A00005 (3/8/01) ($200,000 awarded).

* 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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