Luck of the Irish? Not in These Findings of No Discrimination
By Deborah J. Hopkins, March 11, 2024
Just about every week, FELTG instructors talk to supervisors who are concerned about, and even afraid of, EEO complaints being filed against them. We tell them that while the fear is real, the majority of EEO complaints result in a finding of no discrimination. The fear of a complaint should not stop a supervisor from doing her job.
As part of our EEOC Law Week training (which next begins March 18, so hurry and register!), we discuss intentional discrimination claims and the types of events – sometimes referred to as discrete acts – that could form the basis of a claim. This may include:
- Discipline or proposed discipline
- Changes to duties
- Denial of leave requests
- Selections
- Promotions
- Reassignments
- Details
- Workload changes
- Performance ratings
- Denials of telework, training, or other work privileges
This is not an exhaustive list, and sometimes complainants file based on actions outside of this scope. As I recently conducted a search for cases involving facts around St. Patrick’s Day, I came across a case involving an intentional discrimination claim: Brady v. USPS, EEOC Appeal No. 01A55711 (Feb. 14, 2006).
The complainant, a distribution window clerk in Key West, FL, requested to be allowed to wear an Irish scally cap at work on St. Patrick’s Day. His supervisor denied the request (after all, USPS employees have a uniform code), so the complainant filed an EEO complaint alleging discrimination based on his national origin (Irish).
The agency filed a motion to dismiss, arguing the complainant was not aggrieved and failed to state a claim under 29 C.F.R. § 1614.107(a)(1). The administrative judge (AJ) agreed with the agency, explaining that the complainant did not suffer any harm when he was not permitted to wear a scally cap in the workplace.
The complainant appealed the dismissal to the EEOC, and according to the case:
The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049, 1994 EEOPUB LEXIS 3552 (April 21, 1994).
The Commission finds that complainant failed to show how the alleged incident resulted in a harm or … loss regarding a term, condition or privilege of his employment. The alleged event does not render complainant an “aggrieved” employee. Accordingly, the agency’s final decision implementing the AJ’s dismissal of the complaint for failure to state a claim is AFFIRMED.
Id. at 3-4.
Here are a couple of other cases involving St. Patrick’s Day facts:
- The complainant alleged discrimination based on race and reprisal when the agency denied his request for admin leave to march in a St. Patrick’s Day parade when coworkers were granted two hours of admin leave to march in a Black History Month parade. Stevens v. USPS, EEOC App. No. 01892854 (Aug. 1, 1989)
- The complainant, a probationer, alleged discrimination based on national origin (Irish-American) when he was terminated on St. Patrick’s Day. Fanning v. Treasury, EEOC App. No. 01943136 (June 20, 1995).
Many will file, and few will prevail. That’s not to detract from the reality that discrimination occurs, and it can ruin the lives of its victims. But in most cases, allegations remain merely that – allegations with no finding of discrimination. Hopkins@FELTG.com
