Fedweek Legal

In Bomske v. Dep’t of Veterans Affairs, EEOC Appeal No. 0720120025 (August 7, 2013), the Equal Employment Opportunity Commission affirmed the administrative judge’s finding of discrimination in retaliation for prior EEO activity as well as his order for equitable relief and award of compensatory damages and attorney fees.

Bomske worked as a GS-7 health technician at a Department of Veterans Affairs medical center. However, she also worked regularly with a GS-9 health technician/clinical coordinator, who trained her to perform her clinical coordinator duties. After the clinical coordinator retired, Bomske continued to perform her technical duties as well as the duties previously performed by the clinical coordinator. Because she was performing GS-9 level work in addition to her technical duties, Bomske discussed the possibility of a promotion with her supervisor.

When her supervisor consulted the chief of human resources about this possibility, the chief suggested that they attempt to upgrade Bomske’s position rather than promote her or compensate her for the GS-9 level work. Bomske then submitted a revised position description to HR, but an HR classification specialist denied her request. Bomske later learned that the chief had stated that she would not be promoted or have her position upgraded because of her prior EEO activity.

Bomske filed a formal EEO complaint alleging that the agency had discriminated against her in retaliation for her prior protected EEO activity. Before a hearing was held, the AJ granted the agency’s motion for summary judgment. However, when Bomske appealed the agency’s final order adopting the AJ’s decision, the EEOC vacated it and remanded the matter for a hearing.

After a hearing, a new AJ assigned to the case found that Bomske had established a prima facie case of reprisal as there was evidence that the chief had specifically mentioned her prior EEO activity as the reason for the agency’s failure to promote her or upgrade her position. While the agency argued that the classification specialist who had made the decision not to upgrade Bomske’s position was not aware of her prior EEO activity, the AJ found that the chief could have placed Bomske in the GS-9 position, that he had directed the specialist’s response to Bomske’s position upgrade request, and that the specialist, in considering Bomske’s request, had reviewed only her GS-7 duties and not her GS-9 duties.

Thus, the AJ found that the agency’s reasons for its actions were not believable and that the agency had discriminated against Bomske in retaliation for her prior EEO activity. The AJ then ordered the agency to place her in the GS-9 clinical coordinator position, pay back pay with interest and $50,000 in compensatory damages, and make back contributions into her Thrift Savings Plan. The AJ also awarded Bomske $28,819 in attorney fees.

On appeal, the agency argued that the chief had played no role in Bomske’s assumption of clinical coordinator duties and that the agency had attempted to promote her through accretion-of-duties but it could not do so after the classification specialist had determined that she did not qualify. The EEOC, however, found that the record supported the AJ’s finding that the chief’s statement regarding Bomske’s prior EEO activity constituted evidence of retaliatory animus and that he could have placed her in the GS-9 position. Thus, the EEOC affirmed the AJ’s finding of retaliation and also left the AJ’s order for equitable relief and his award of compensatory damages and attorney fees undisturbed because the agency did not submit any arguments in that regard.

* 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/Federal-Employees-Survival-Guide.shtml. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.