odsummer2002.doc - OEDCA DIGEST Vol.V No 3 Department of...

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OEDCA DIGEST Vol.V, No. 3 Department of Veterans Affairs Office of Employment Discrimination Complaint Adjudication Summer 2002 Summaries of Selected Decisions Issued by the Office of Employment Discrimination Complaint Adjudication FROM THE DIRECTOR The Office of Employment Discrimination Complaint Adjudication is an inde- pendent, adjudication unit created by statute. Located in the Office of the Secretary, OEDCA’s function is to issue the Department’s final decision or or- der on complaints of employment discrimination filed against the Depart- ment. The Director, whose decisions are not subject to appeal by the De- partment, reports directly to the Secretary of Veterans Affairs. Each quarter, OEDCA publishes a digest of selected decisions issued by the Director that might be instructive or otherwise of interest to the Department and its employees. Topics covered in this issue include disability discrimina- tion involving the “direct threat” and reasonable accommodation theories, problems in nonpromotion cases, “preselection”, electing between the EEO complaint process and a negotiated grievance procedure, class action claims, and negative employment references. Also included in this issue is an article on the U.S. Supreme Court’s recent decision concerning the theory of “continuing violations.” The OEDCA Digest is available on the World Wide Web at: http://www.va.gov/orm/oedca.htm . C HARLES R. D ELOBE Case Summaries………………………………………………………………………………...2
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OEDCA DIGEST U.S. Supreme Court’s Recent Ruling on “Continuing Violations”………………………….19 2
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OEDCA DIGEST I INNOCENCE OF DECISION MAKERS NOT NECESSARIL Y A DEFENSE TO DISCRIMINAT ION -– THE “CAT’S PAW” THEORY OEDCA re- cently ac- cepted an EEOC judge’s finding of re- taliation in a failure to hire case in which the selecting officials – the individuals who actually made the de- cision not to hire the com- plainant acted without retaliatory mo- tive. The com- plainant, who had previously left VA em- ployment as a nursing assis- tant in 1986 to go on disabil- ity retirement, made several unsuccessful efforts, begin- ning in 1995, to be hired or reinstated to a similar posi- tion. In 1997, he filed an EEO complaint concerning his difficulty in se- curing reem- ployment with the VA. About a year after filing his complaint, he again applied for a nursing assistant posi- tion after a medical re- view had de- termined that he was capa- ble of perform- ing the duties of the posi- tion. After learning of his nonselection for this posi- tion, he filed a second com- plaint alleging, among other things, that his nonselec- tion was in re- taliation for his prior EEO complaint. An EEOC ad- ministrative judge agreed with the com- plainant’s as- sertion, find- ing persuasive evidence of re- taliatory in- tent. The record indi- cated that a personnel management specialist, who was aware of the com- plainant’s prior EEO complaint, had approached the two desig- nated select- ing officials
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