text:
Organ donor wants to end her life to save others
MS patient wants to donate organs while still viable
Sherri Muzher is 43 years old. She's young, beautiful and brilliant. But she says she's ready to die.
She has advance stage Multiple Sclerosis. It has slowly, but steadily robbed her of her abilities.
All that's truly left of who Muzher once was is her brain and a small but fading voice. Now, she wants to use that voice to start a conversation about death -- her own.
"I would rather I help give life to others while my organs are still viable," said Muzher.
Sixteen years ago Muzher was bright and effervescent with an appetite for life. Muzher today is a much different person.
"I was diagnosed the summer after my first year of law school," Muzher said. "So it is a lot of loss -- loss with advanced MS. It's a grieving process, because you are losing your independence gradually."
About 90 minutes into the interview, Muzher became exhausted, barely able to speak, a restraint used just so she can sit up to breathe. Nearly the last shred of muscle and skeletal control is gone.
"It is my reality. I'm getting weaker. Weaker muscles on my talking, everything. This ultimately brings reality home," Muzher said.
She would like to control one last thing and that is the time of her death. She wants there to be harvesting of her vital organs while they are still salvageable.
She said it's already too late for her lungs. MS is already squeezing them shut, but her kidneys, liver, heart and every other inch that can save another life, or give quality of life where she has none, should be taken now.
"I ought to be able to donate my organs while they are still viable and can help someone else."
Muzher is talking about physician assisted suicide, in a state that voted it down.
Lance Gable, associate Dean and associate professor of law at Wayne State University, teaches bio-ethics and health law and reform, and specializes in end-of-life issues.
"I think she has a very compelling case," said Gable. "I think it's justifiable and understandable to minimize her own suffering and wanting to help others."
Gable's belief is that Michigan is what he calls "Kevorkian-scarred." He says Jack Kevorkian went about sending the right message in the wrong way. But he believes it's time to re-start the conversation, and Muzher is the one to champion the cause.
"I think it is a conversation worth having. It's an issue that if we approach it carefully, it's something that could be an option for people if it was done safely and wasn't susceptible to coercion and exploitation."
Four states, Oregon, Washington, Vermont and Montana, have legal physician assisted suicide.
No states have addressed what Muzher calls provisions for planned pre-death organ harvesting.
"Anybody who wants to give a donation is a hero," said Richard Pietroski, CEO of Gift of Life, Michigan. "Only about 1 percent of individuals who die become donors."
Muzher has contacted him with her request, but Pietroski believes, given what she is proposing, asking for it would be difficult to envision how safeguards could be put in place to avoid abuse.
Medical ethicist Dr. Michael Stellini believes in a perfect world, if we allowed assisted suicide, organ donation would be viable and valuable.
"If we wait too long, she couldn't donate." Stellini said. "If we do it too early, she's not terminal, and that raises a whole other set of ethical issues. If we're going to allow physician assisted suicide, we'd have to determine a window to make the determination of terminal state, and the end of viability of the organs, and that's when we would do what she is proposing."
But Stellini said too much bothers him about this scenario.
"I'm not totally opposed to physician assisted suicide. I think there are issues with potential abuse with it," Stellini said.
His biggest concern is people and families who feel a sense of burden, hidden agendas, money, greed, hate and guilt. He's concerned with all those human facets that can't be screened with laws.
"One of the new dimensions that we'd have to consider is, would folks feel more coerced to go this route because there would be benefit for someone else?" Stellini said.
He believes the possibility of abuse and misuse is greater than the good that can come from this.
"Could those things be worked out? Yes. But they'd need to be worked out first."
Muzher said two other things need to be put in place are that the patient would need to be deemed not depressed or mentally ill. The decision must be their own and not a family member's.
But she'll tell you she's a realist. She knows this won't happen in her lifetime. Muzher believes that by the time her disease runs its course, it will have ravaged all of her organs, just as it has ravaged her, and she will have missed a great opportunity.
"I'd rather still be useful and help, rather than waste away and not be able to help," she said. "What will give me joy is to know I left a legacy of giving life to others."
When asked if she still has the ability at all to feel joy in any way, her answer was simple and succinct.
"Tired. tired."
Copyright 2013 by ClickOnDetroit.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Acupuncture and Chinese Herbs
in Pagosa Springs, CO
Ponder Natural Health offers caring, effective treatment for a wide range of health problems, using the time-proven methods of Traditional Chinese Medicine. By refining this unique medical system with knowledge from modern research, we can offer your family the best of natural, drug-free health care.
Acupuncture, Herbs, Bodywork and More
Traditional Chinese Medicine (TCM) developed over thousands of years as a truly holistic approach to medicine. We like to say "Treat the person, not the disease." Health care based in TCM evaluates your overall health, monitors your response to treatments, and continually customizes your treatment accordingly. Traditional Chinese Medicine can be effective in treating a wide range of illnesses as listed by the National Institutes of Health and the World Health Organization.
We have many treatment methods at our disposal to bring you back to your natural state of well-being:
Acupuncture can be performed with or without needles. We use only fine, disposable sterile needles. Although we like you to feel a sensation of "Qi" or energy in response to the needling, most people find the feeling comfortable, and even relaxing. But we also have alternatives; points can be stimulated by laser, gentle electrical currents, or even finger pressure.
Herbology is highly evolved in Chinese medicine, and is a powerful tool appropriate for many conditions. In China, the focus of TCM is actually on the use of herbs. Herbal formulas can be used to support other treatments you receive, such as acupuncture, or can be used alone. We also carry a few select lines of professional grade vitamins and nutritional supplements.
Moxibustion, or moxa for short, is a form of heat therapy, traditionally using the dried, packed leaves of the mugwort plant. (Today we also have a smokeless charcoal version, and might even substitute a heat lamp!) It is used for conditions with signs of cold or stagnanation. Applications include certain kinds of joint pain, fatigue and deficiency, digestive disorders, menstrual cramps, irregular periods, and infertility.
For muscular and skeletal issues, other treatments may be appropriate including Tuina ("twee-nah"), a Chinese form of bodywork developed over thousands of years. (A pediatric form of tuina is sometimes the treatment of choice for children with digestive or respiratory problems, and for preventative health care.) We also employ some unique tools and techniques including cupping (a method combining pressure and vacuum against the skin) and gua sha in which a special tool is used to stroke and stimulate the skin and underlying tissues.
You can get more information about these techniques, Ponder Natural Health, and Oriental Medicine on our FAQ page.
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Feel free to contact us to learn more about how Ponder Natural Health can help you regain and maintain the robust state of health you were meant to have.


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Arch Cape House Bed and Breakfast
The Arch Cape House Bed & Breakfast is a beautiful choice for your romantic Oregon coast getaway.
Cannon Beach Hotel
A Petite, Historic New England-Style Hotel & Bistro.
Stay at a Garibaldi, Oregon Bed and Breakfasts and Inns for the personal attention you desire. A Garibaldi B&B is a great alternative to hotels or motels while visiting the state of Oregon!
Visit our Garibaldi, Oregon bed and breakfast directory of historic, romantic, and adventure B&B's. You can browse through our detailed listings of Garibaldi, Oregon bed and breakfasts and inns with nearby city listings that include pictures, room rates, booking information and area activities. Every Garibaldi, Oregon b&b inns has complete contact information and a direct link to the innkeepers.


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Customer expectations shift constantly, and you need to understand and deliver what they want. With Adobe Sensei powering features in Adobe Experience Cloud, you gain a more comprehensive view of your customers — so you can deliver more personalized, timely experiences they expect.
Manage content and personalize campaigns — faster.
Automate tedious processes like adding metadata, recommending offers, and generating shorter copy versions — so you can deliver truly personalized experiences.
Never miss an insight with predictive analytics.
Run simulations, get customized spend recommendations, and pinpoint insights with ready-to-use forecasting tools powered by Adobe Sensei.
Optimize your ad spend.
Get a broad view of your advertising channels — and then balance and optimize your spending.
Humans require a personal touch when it comes to experiences — and AI makes that even easier, helping marketers unlock powerful human insights. In fact, 85% of companies say AI will give them a competitive advantage in the future. Learn more in our article AI: Your Behind-the-Scenes Marketing Companion to see why marketers and AI can work hand in hand to achieve greater results than ever before.
Get insight into the impact of different budget scenarios on predicted outcomes, including clicks, conversions, and revenue.
See how to best allocate your advertising budgets across different campaigns to most efficiently meet your goals.
Continuously monitor campaign performance to optimize the delivery and effectiveness of ads in order to meet — and exceed — campaign goals.
Find new high-value audiences by mapping users, sites, and categories based on algorithmic segments to uncover clusters of users similar to "seed users."
Create linear national TV plans that have a higher-than-industry-standard likelihood of delivering when measured against Nielsen ratings.
Automatically adjust your budget across a large number of targeting criteria to ensure overall viewability goals are met.
Efficiently test multiple assets by evaluating incoming user characteristics and available creative attributes — and then automatically apply an impression volume to optimize the desired objective of a campaign.
Sometimes, advertising feels like you're taking shots in the dark — trying to plan media buys just right for the right audience. Adobe Sensei in Adobe Advertising Cloud turns the proverbial light on, so you can get the whole picture and plan accordingly, making real-time decisions along the way.
Download An Advertiser's Guide to Higher Return on Ad Spend and learn how AI can save you hours and enhance your advertising.
Managing audience profiles is a tall task, especially when you're juggling huge amounts of customer data. Adobe Sensei in Adobe Audience Manager streamlines the entire process, helping you build unique audience profiles so you can identify your most valuable segments. And then use them across any channel.
Find new high-value audiences by mapping users, sites, and categories based on algorithmic segments to uncover clusters of users similar to "seed users."
Surface real-time audience data from online and offline sources to deliver reach projections for accelerated campaign planning at an audience segment level.
Surface similar traits in real time so customers can expand their segments quickly.
Separate the signal from the noise and identify which statistical fluctuations matter — and which don't.
Identify potential causes or contributing factors for significant changes in trend data and anomalies.
Identify and prioritize the most critical alerts across all your data.
Automatically find overlap and similarity in existing segments to optimize ad spend and ROI.
Intelligently identify distinct and actionable groups of valuable customers and prospects.
Predict whether customers and prospects are most likely to perform an action, such as convert, churn, or respond.
Objectively determine the fractional impact of each marketing touchpoint along a customer's journey toward conversion.
Your customers generate huge amounts of data each day, so you need machine learning that understands what matters most. Adobe Sensei in Adobe Analytics helps you do just that — so you can truly analyze your data and uncover the rich customer insights beneath. And then you can act on it.
Delivering great experiences takes strategic planning, creative thinking, and flawless execution. To make this process even better, Adobe Sensei powers several features within Adobe Experience Manager — so you can deliver intelligent, personalized experiences across all your channels. And you'll get better ROI for your spend on assets — finding what you need faster, keeping up with the demand for personalized experiences, and handling the complexity of audiences, devices, and channels.
Automatically tag images and deliver better findability — so you can find your assets in a snap.
Create a shorter version of a master text, in order to produce variations for different marketing channels more quickly and speed up content velocity.
Identify the most active and knowledgeable content creators who contribute significantly within an online community, so you can reach out and reward them to ultimately encourage end users.
Automatically detect and crop the focal point in any image or video, capturing the intended point of interest, regardless of screen size.
Detect and filter spam, abuse, profanity, and bulk posts to reduce the risk of inappropriate or unwanted content.
Generate recommendations to either accept or reject comments based on previous user moderation actions, significantly reducing the time you spend reviewing comments.
Recommend content for subject lines to improve email performance based on predicted open rates for emails.
Customers expect smooth, personalized journeys from their very first interaction with your brand all the way through conversion. To deliver that kind of experience, you need robust campaign management powered by AI. Adobe Sensei in Adobe Campaign helps you understand what customers will respond to, so you can improve the effectiveness of your campaigns.
B2B marketing is getting smarter and faster. Adobe Sensei helps you keep up, powering predictive capabilities within Marketo Engage to help marketers deliver intelligent, innovative experiences.
Predictive Content uses machine learning and predictive analytics to automatically recommend the right content to the right prospect based on firmographic, visitor, and behavior profiles on web and email.
Predictive Audiences for events uses firmographic, visitor, and behavior profiles to intelligently identify those most likely to register, attend, or watch on demand content as part of your events strategy allowing you to predict results up front and throughout the campaign.
Combine messages or offers and match different variations to each visitor based on their individual customer profile, delivering highly personalized content.
Identify a winner among two or more experiences being tested, and automatically reallocate more traffic to the winner. This increases conversions while the test continues to learn as it runs, dynamically adjusting traffic to maximize gains.
Rapidly deliver an unlimited number of personalized customer experience variations across your digital properties by determining the best experience for each customer and continuously optimizing it as consumers take actions.
Display products or content that might interest consumers based on previous user activity, such as previous views or purchases, to create cross-sell and upsell opportunities.
Personalization at scale requires leading-edge technology and powerful AI. Adobe Sensei in Adobe Target eliminates the guesswork, so that you can move ahead with your personalization goals — knowing confidently that you're delivering the best possible experience every time.
Today, many customer data platforms (CDPs) fall short of their goal — to deliver engaging, intelligent experiences. With the help of Adobe Sensei, Adobe Experience Platform can do what most CDPs can do — and then do so much more. Access and tune machine-learning models powered by Adobe Sensei in Experience Platform Data Science Workspace that help you surface insights and predictions. So you can make decisions faster and experiences better.
Use Adobe Sensei models for time series data to perform forecasting, so you can scale system resources based on anticipated usage, identify changes in behavioral patterns, and forecast revenue.
Separate "true signals" from "noise" and then identify potential factors that contributed to those signals or anomalies. Plus, get reliable metric (KPI) forecasts.
Identify and address your most important audience segments without writing any code or having a deep understanding of machine learning.
Epson discovers patterns to create better experiences using Adobe Sensei in Adobe Experience Cloud.
Social Kinnect uncovers ad performance data and identifies ideal budget allocation for each campaign using Adobe Sensei in Adobe Advertising Cloud.
For you to get the right amount of content out the door every time, you need robust machine learning to do the heavy lifting.
Marketing executives are saying that AI will transform marketing by 2020 — so you need to start making moves to get ready.
הטכנולוגיה של Adobe Sensei היא השכבה שמספקת בינה ל-Adobe Experience Platform. על ידי יצירה של תהליכי עבודה אוטומטיים למשימות פשוטות או נשנות ותוך הבנה וחיזוי של נתוני לקוחות, הטכנולוגיה של Adobe Sensei מספקת שירותי בינה שמשפרים את היכולות שלכם דרך Adobe Experience Platform ומאפשרים לכם ליצור חוויות לקוח אישיות בזמן אמת. בנוסף, השירותים של Adobe Sensei יעניקו לכם עוד תובנות לגבי התוכן והחוויה.


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Editor's note: CNN Contributor Bob Greene is a bestselling author whose books include "Late Edition: A Love Story" and "Once Upon a Town: The Miracle of the North Platte Canteen."
(CNN) -- Like two freight trains rumbling in opposite directions on parallel tracks, a pair of internationally famous U.S. companies sped past each other in the news in recent days.
Their stories were consigned to the business sections. But the tales behind them paint a portrait-in-motion of contemporary American life, and of the textures and tenets of the way we choose to live it.
One story concerned Eastman Kodak, as legendary a corporation as this nation has ever spawned. The New York Times reported that "Kodak may not survive unless it is able to cash in on its portfolio of patents or find some other way to raise cash." Citing Kodak's own statements of third-quarter earnings, the Times said that the company -- a giant of the 20th century in the manufacture and sale of photographic film -- was in a race against time to make its digital businesses sufficiently prosperous to offset the plummet in demand for conventional film.
The second news story concerned Google, the astonishingly successful search-engine-based firm that didn't even exist until 1998, and that is now one of the most recognizable and envied brands in the world. Google, the Times reported, was acknowledging that it had to become faster at giving its users up-to-the-second results, because Google "is being increasingly challenged by services like Twitter and Facebook, which have trained people to expect constant updates with seconds-old-news."
The two companies would, on the surface, appear to represent vastly different eras of consumer expectations in this country.
Kodak -- founded by a young inventor and businessman named George Eastman in the late 1800s -- built its vast fortune on the concept that people wanted to conveniently take photographs for their personal use. Before Eastman revolutionized photography, cameras were large, cumbersome affairs that required emulsion to be spread on fragile glass plates. Eastman instinctively knew that if families could carry lightweight cameras around, with rolls of film inside, business would soar.
It did. And as the yellow-and-red boxes of Kodak film became ubiquitous in stores around the U.S., the era of "waiting for the pictures to come back" commenced. That's how it worked: You would finish shooting your roll of Kodak film, you would take it to the drugstore or mail it to the film-processing company, and you would wait -- eagerly, optimistically -- to see what would come back.
It was delayed gratification, defined: You hoped the pictures would turn out well, but for days you had no idea. There was patience, and wishing, inherent in the process. You shot your pictures and you gave up control.
The digital age did away with that. Suddenly (and that word has seldom been more apt), anyone could take a photo and know that moment what it looked like. Click the camera (or the cellphone with a camera built in), glance at the result on the screen, and there it was. In the heyday of Kodak film, if the pictures came back and were unsatisfactory, you could take a deep breath and vow to do better next time. In the digital era, if you dislike what you see., no problem. Just keep shooting. And don't worry about the cost of film. There is no film, and no cost.
So it's no wonder that Kodak is facing challenges as it adapts for the new age not just of photographs, but of the public's suppositions. Which brings us to Google.
Like the hottest young gunslinger who hears that cocky new desperadoes may be heading for town, Google has to maintain its reputation for being quickest on the draw. That, according to the story in the Times, is what the revision to Google's search algorithm is essentially about: the marketplace-driven need to be swifter and more current than anyone else out there. Kodak charged its customers for its film; Google gives away its service to users for free. But the potential fickleness of the consumer is as old as commerce itself, and that doesn't change. If Kodak made its name in a century when people were conditioned to wait for what they wanted, Google was born and has flourished in the era of Right Now. It can't afford to slow down.
Yet, for all the seeming differences between the two companies, certain similarities are striking. George Eastman came up with a name for his company with one desire in mind: that people would never confuse it with any other product. The word "Kodak" had no meaning; Eastman simply liked the sound of the hard "k"s, and thought that if what he manufactured was good enough, the name would adhere. The word "Google" was a misspelling: a play on "googol," which is a mathematical term for the numeral 1 followed by 100 zeroes. Google's founders, Larry Page and Sergey Brin, realized -- like George Eastman -- that the quality of the product would determine the success of the name, not the other way around.
Eastman allowed his customers to easily do something never before possible: to stop time, to capture it and keep it. That's not so far removed from what Page and Brin enabled Google users to do with the world's knowledge: freeze it in place, halt it in its tracks. Even the ways both companies achieved their success have something in common. It can be seen in the marketing phrase that Eastman devised:
"You press the button, we do the rest."
The Kodak button was on portable cameras; Google's is the "Enter" button on hundreds of millions of computers that it does not manufacture, but that are the key to its success.
There's one more thing the two companies share -- maybe the most important thing.
Google's chairman, Eric Schmidt, in a letter this year to a U.S. Senate subcommittee, summed it up in 12 words. Technology expert Dan Kaplan noticed those words, and pointed them out on the TechCrunch website; you can bet that George Eastman, dead since 1932, understood the words, and their significance:
"[H]istory shows that popular technology is often supplanted by entirely new models."
The Kodak and Google trains may be heading in different directions, on different tracks. But there are other whistles sounding off in the distance, unseen for now, urgent, on their way. Always have been. Always will be.
The opinions expressed in this commentary are solely those of Bob Greene.


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WASHINGTON (AP) — John Palmer, a veteran reporter for NBC News who covered wars and Washington over a career that spanned 40 years, died Saturday at a Washington hospital.
Palmer's wife Nancy confirmed he died at George Washington University Hospital of pulmonary fibrosis. He was 77.
The gentlemanly Palmer worked for NBC from 1962 to 1990, and then returned to the network from 1994 until 2002.
"John was a brilliant, brave, and tireless journalist who guided viewers through many of the most significant events of the past half-century – from the early days of the civil rights movement through the tragedy of 9/11," NBC News said in a statement. "He covered five presidents and traveled to every corner of the world, always showing the empathy and compassion that helped set him apart. His kindness is remembered by all of us, and it built lasting bonds throughout our news division. "
He served as a correspondent in Chicago, Paris and Beirut, as well as at the White House. In 1980 he landed one of his biggest scoops, breaking the news of the Carter administration's failed attempt to rescue the American hostages being held in Iran.
"John Palmer brought to the White House beat his foreign policy experience and a steady reassuring voice, in good times and in bad," NBC News correspondent Andrea Mitchell said in describing Palmer for a report aired Saturday evening.
It was at NBC's Washington news bureau that Palmer met his wife, Nancy, a Nightly News producer.
In 1982 he became news anchor on the "Today" show during the period when Bryant Gumbel and Jane Pauley co-hosted, bringing a seriousness and calm to the program as he informed viewers of major events. He remained there until 1989, when he was abruptly replaced by Deborah Norville and handed her old job on the show that preceded it, "NBC News at Sunrise."
In 1986, he anchored the first hours of NBC's coverage of the Challenger space shuttle disaster.
Palmer left the network in 1990 to emcee a syndicated news-oriented program, hosted the weekly "Discovery Journal" on The Discovery Channel, and anchored a daily newscast on the TV channel of the Christian Science Monitor.
In 1994, he was invited back to NBC as a Washington correspondent.
Speaking to anchor Brian Williams on NBC sister network MSNBC upon his retirement in 2002, Palmer looked back on his tenure with satisfaction, including the access it gave him to a succession of the nation's chief executives.
"I was enriched as a kid from the East Tennessee mountains," said the Kingsport, Tenn., native, "to be able to go fishing with Jimmy Carter, to go to the movies with Ronald Reagan, and to play golf with Bill Clinton."
After exiting NBC, he continued to work in journalism, including through hosting roles on Retirement Living TV, a network dedicated to seniors.
Palmer was a graduate of Northwestern University and held a master's degree from Columbia University.
"John loved Sinatra, golf and fishing, but his most treasured role was that of husband and father," Mitchell reported Saturday night.
He and his wife Nancy have three grown daughters, one of whom is a producer for the Today show, one who works in the entertainment industry and one who is pursuing a journalism career in Washington.


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U.S. Equal Employment
Opportunity Commission
Volume XVI, No.3
Office of Federal Operations
Summer Quarter 2005
The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO).
Carlton M. Hadden, Director, OFO
Donald Names, Director, OFO's Special Services Staff
Editor: Arnold Rubin
Writers: Robyn Dupont, Arnold Rubin, Gerard Thomson
Available in accessible formats for persons with disabilities. The Digest is available online through EEOC's homepage at http://www.eeoc.gov/federal/digest.html. If you wish to receive a copy in print, you may send a request, in writing, to Arnold Rubin, EEOC, Office of Federal Operations, 1801 L Street, N.W., Washington, D.C. 20507.
Attorney's Fees Paid By Agency Improperly Calculated. As part of a settlement agreement, the agency agreed to pay reasonable attorney's fees and expenses to complainant's counsel. The Commission found, however, that the amount paid by the agency did not constitute the appropriate amount of attorney's fees. The record indicated that the agency erroneously determined that four complaints were closed at the time the settlement agreement was executed. The agency issued a final action with regard to those four complaints and that final action was appealed. EEOC found that the four complaints were closed under the terms of the settlement agreement. Accordingly, the Commission remanded the matter for the agency to pay complainant's counsel the attorney's fees and expenses claimed by complainant for work in those four complaints, less any amounts complainant's counsel had been reimbursed by the agency for such work. Leigh v. United States Postal Service, EEOC Appeal No. 01A41860 (March 7, 2005), request for consideration denied, EEOC Request No. 05A50720 (May 16, 2005).
Commission Upholds Award of $195,000. After a finding of retaliatory discrimination, an EEOC Administrative Judge (AJ) awarded complainant $195,000 in non-pecuniary compensatory damages due to the emotional suffering by complainant as a result of the retaliatory conduct. The AJ found that the agency's actions had permanent and substantially long-term effects. The AJ found that complainant suffered from the following: bouts of crying; humiliation; depression; destruction of her spirit and confidence; feelings of having no purpose in life; fluctuating-weight problems; rashes; anxiety; nightmares relating to her supervisor; difficulty coping with life; being tense and unable to sleep when next to her husband in bed; and disinterested in sexual intercourse.
Further, as a result of medication taken for emotional distress, complainant felt clumsy; shaky; considered herself to be unsafe operating a motor vehicle; and a nervous wreck. Her husband testified that complainant was extremely stressed; experienced mood swings; became sick more often; kicked the bed while sleeping; and was exhausted to the point where she remained in bed for 20 hours during the day. He testified that complainant was unable to deal with any negativity and was extremely self conscious about her communication skills; interaction with others; and loss of professional reputation and standing in the community.
Complainant's friends testified to her change in appearance, including significant aging in a short amount of time; facial swelling and appearing sunken; and complainant's becoming withdrawn. Her psychologist testified that complainant suffered from a significant amount of depression.
In upholding the AJ's award, the Commission noted its precedent that evidence from a health care professional was not a mandatory prerequisite for recovery of compensatory damages for emotional distress. In addition, EEOC noted that the award was consistent with amounts awarded in similar cases. Looney v. Department of Homeland Security, EEOC Appeal Nos. 07A40124 and 01A53252 (May 19, 2005).
Identical Claims and Failure to Seek Counseling. Complainant alleged discrimination when the agency took the following actions against her: (1) On April 26, 2004, she was not given the opportunity to act as back up in her supervisor's absence; (2) she was denied training as a collection agent; (3) she was harassed after asking for training and the chance to act in her supervisor's absence; (4) she was told that her position description would be changed, effective 60 days from June 9, 2004, deleting the paragraph, which stated that she could "fill-in" for her supervisor; and (5) she received a Letter of Reprimand on June 9, 2004, regarding her duties that her supervisor and co-worker were now assuming.
The agency dismissed claims (1), (2), and (3) on the grounds that these claims stated claims identical to claims raised in a prior complaint. The agency dismissed remaining claims (4) and (5) on the grounds that complainant failed to present these claims to the EEO Counselor prior to filing her complaint.
On appeal, the Commission affirmed the agency's dismissals of claims (1), (3), (4), and (5), noting that (4) and (5) were not like or related to the other incidents described in the complaint. Further, claims (4) and (5) appeared to be specific incidents of harassment based on reprisal and were not separate claims from (3), which was also not raised with an EEO Counselor. However, the Commission reversed the agency's dismissal of claim (2), finding nothing in the record to show that complainant raised any claim identical to claim (2) in a prior or pending complaint. Accordingly, the Commission remanded claim (2) for further processing by the agency. Montford v. Department of the Navy, EEOC Appeal No. 01A45827 (February 2, 2005), request for reconsideration denied, EEOC Request No. 05A50626 (April 12, 2005).
Extension of Time Period Warranted for Complainant's Cooperation. EEOC found from the record that complainant, despite due diligence, was so incapacitated that she was unable to respond to requests for information within the agreed-upon time frame. The record contained a doctor's letter reporting that, after being diagnosed with cancer, complainant was psychiatrically overwhelmed. Another physician noted that, following the diagnosis, complainant suffered from severe depression and was unable to handle paperwork. The agency was ordered to process the remanded claims. Guzzo v. United States Postal Service, EEOC Appeal No. 01A42260 (April 27, 2005).
Signature Requirement Met. Complainant's formal complaint form did not contain his signature, but instead was signed by his non-attorney representative. Nevertheless, complainant's representative enclosed a signed statement from complainant that was sufficient to identify the alleged discriminatory actions. The Commission found that the signed statement was sufficient to meet the requirements of EEOC's regulations, which require that a complaint contain a signed statement from the complainant. Chestra v. United States Postal Service, EEOC Appeal No. 01A51383 (March 11, 2005).
Six-Year Delay by Agency in Failing to Provide Hearing Opportunity Held Inordinate. Complainant filed complainants in 1996 and 1997, which were consolidated. A hearing before an EEOC AJ was scheduled for January 1999. However, on December 31, 1998, the AJ granted a postponement, due to the scheduled surgery of the agency's representative, and returned the complaint files to the agency pending notification that the agency representative was able to go forward with the hearing. Complainant filed the instant appeal in 2004, claiming that the agency had constructively dismissed his two EEO complaints by not processing them, after he was informed, in 2002, that his complaints were being transferred to a new agency EEO person. The agency provided no explanation for its inaction. The Commission ordered an immediate hearing before an EEOC AJ. Sullivan v. Department of Defense, EEOC Appeal No. 01A50428 (April 21, 2005).
Summary Judgment Inappropriate When Material Facts Are In Genuine Dispute and Record is Inadequate. Complainant, claiming sex discrimination, averred that she witnessed male drivers with Class-B licenses given training on agency property and provided a tractor-trailer to obtain their Class-A license from the state. Agency policy was to train and promote drivers according to seniority. Complainant's seniority date was two years before one of the co-workers' who received training. Complainant stated that she received only familiarization training. She also alleged that management officials had said that women were not wanted in the field of truck driving.
The Commission found that, when complainant's evidence was juxtaposed with the agency's, genuine disputes of material fact clearly existed in the record. The Commission also noted that summary judgment is inappropriate where, as here, the record was undeveloped. When asked who would be able to testify to what kind of training the agency offered and who received it, complainant indicated that the 11 drivers she named as having been promoted above her would know. However, the investigator did not question them. He only obtained affidavits from complainant's supervisors and driving instructor. The Commission noted that complainant was compelled to provide material evidence on her own accord on appeal. The agency's Employee Detail Report showed that 6 of the 11 co-workers complainant identified on appeal were hired with Class-B licenses and had since been promoted to level-6 tractor-trailer drivers. The Commission declared that, while it will not, in general, consider new evidence submitted on appeal, the lack of this evidence in the record used to rule on summary judgment was disturbing. The investigator should have acquired this information in order to develop an impartial and appropriate factual record and thoroughly address the matters at issue, as required by the Commission's regulations. The Commission remanded the matter for a hearing. Harvey v. United States Postal Service, EEOC Appeal No. 01A50210 (March 31, 2005).
AJ Did Not Abuse Discretion in Approving Class Action Settlement. The Commission concluded that the AJ did not abuse his discretion in finding that the settlement agreement was fair, adequate, and reasonable to the class as a whole. The AJ determined that the reasonableness of the monetary settlement was supported by the additional non-monetary provisions of the settlement and that the monetary relief was not so grossly inadequate that it should be disapproved. May and Perry v. United States Postal Service, EEOC Appeal Nos. 01A44445 and 01A44564 (May 4, 2005).
Complainant Rebutted Presumption As to When She Received the Notice of Final Interview. The agency's presumption that complainant received the notice five days after mailing was rebutted when, according to complainant, damage caused by a hurricane delayed mail for several weeks. Brumfield v. United States Postal Service, EEOC Appeal No. 01A51880 (April 7, 2005).
In the following decisions, the Commission found no discrimination:
No Denial of Reasonable Accommodation. The Commission found that complainant, who suffered from degenerative disc changes, post-traumatic stress disorder, and generalized anxiety, was not denied reasonable accommodation when he was offered a limited duty Modified Mailhandler position performing janitorial tasks. The Commission noted that complainant was unable to perform the essential functions of his former Mailhandler position, with or without reasonable accommodation, and had a 10-pound lifting restriction. Further, EEOC found that complainant failed to show that there were any other funded vacant positions to which he could have been reassigned; or that the agency could have located a position for him if it had conducted a broader search. Prioleau v. United States Postal Service, EEOC Appeal No. 07A40021 (May 9, 2005).
No Denial of Reasonable Accommodation. Complainant, a service representative at an agency facility, returned to work in August 2001, after a surgical procedure that left her with a vocal cord dysfunction. Complainant advised management that she was extremely limited in her ability to talk (no more than 15 minutes per day), and that she could no longer perform service window or telephone interviews. Complainant advised the agency that the only duty she could perform was written correspondence. The Commission found that the evidence overwhelmingly showed that the Service Representative position required oral interaction with customers, including use of the telephone and in-person dialogue at the service window. Without these functions, the facility would not be operational. The Commission further stated that Service Representatives are hired primarily to interact orally with customers. Thus, EEOC found that answering telephones and waiting on customers were essential functions of the position, and that complainant was unable to engage in this level of communication because of her vocal cord disability with or without an accommodation. The Commission found that distributing complainant's telephone and service window duties to her co-workers was not an effective accommodation, because it did not enable her to perform the essential functions of her position and because it had an unacceptable impact upon both working conditions and service to the public. Finally, EEOC found that complainant failed to demonstrate that reassignment was available as a last resort reasonable accommodation, noting in particular the fact that she had rejected the agency's efforts to find a suitable position for her at a larger facility. Fortrin v. Social Security Administration, EEOC Appeal No. 01A46108 (June 16, 2005).
Complainant Not an Individual With a Disability. The Commission found that complainant, who experienced residual effects from hip, leg, and ankle injuries, was not an individual with a disability. Although complainant's restrictions included no continuous lifting over 10 pounds, and no intermittent lifting over 35 pounds, those limitations were insufficient to show that he was substantially limited in the major life activity of lifting. Further, while management officials referred to him as "disabled," during the hearing, they did not indicate that they regarded complainant as being disabled in a major life activity. Housh v. United States Postal Service, EEOC Appeal No. 01A33300 (May 19, 2005), request for reconsideration denied, EEOC Request No. 05A50946 (July 19, 2005).
No Failure to Accommodate. The Commission found that the agency did not fail to accommodate complainant or discriminate against him when the agency delayed awarding him a bid assignment for a period of two months. Complainant, who was restricted with regard to lifting, bending, and stooping, bid on a Mailhandler position, which had a 70-pound lifting requirement. Complainant was awarded the position pending a determination that he was physically qualified for the job. The Commission noted that, after complainant submitted a note from his physician, the agency needed to ascertain from the union whether it would intervene on behalf of the next senior bidder because complainant did not meet the requirements of the position. The agency also needed to determine if complainant could meet the functional requirements of the position by having the Manager of the relevant work unit agree that complainant could be accommodated. The union raised no objections to complainant's receiving the bid position, and the agency modified the duties associated with the position to fit complainant's revised limitations as set forth in another note from his physician. The Commission stated that the agency was entitled to request documentation from complainant with regard to his capabilities and spend a reasonable amount of time analyzing the information. Collier v. United States Postal Service, EEOC Appeal No. 01A44289 (May 11, 2005).
Complainant Not an Individual With a Disability. The Commission found that complainant failed to show that he was an individual with a disability (sleep apnea). The only evidence concerning his condition showed him to be sleepy and tired, interrupted in his sleep, and required to wear a mask. EEOC found that such vague statements were insufficient to show that complainant was substantially limited in a major life activity. There was no documentation regarding whether and to what extent the condition affected his ability to breath or sleep. Cole v. Department of the Navy, EEOC Appeal No. 01A42577 (February 16, 2005).
Agency Not Required to Provide Accommodation of Individual's Choice. The Commission found that the agency did not violate the Rehabilitation Act when it denied complainant's request for a disabled parking space within 50 feet of the agency activity's building (the distance beyond which complainant could not walk without resting, due to her end-stage renal disease and dialysis treatment); and, in the alternative, provided her with wheel-chair service. The Commission agreed with the AJ's determination that it was undisputed that no parking space existed within 50 feet of the building and that the provision of a wheelchair, and an employee who wheeled complainant into the building, was a reasonable and effective accommodation. The Commission noted that an agency is not required to provide an accommodation of an employee's choice, but may choose from among reasonable accommodations as long as the chosen accommodation is effective. Nutter v. Department of the Navy, EEOC Appeal No. 01A51902 (March 28, 2005).
No Sexual Harassment Found. The Commission found that, while complainant identified a series of events and circumstances, which she found to be unpleasant or demeaning, the acts that included her supervisor's rubbing her shoulders and back, they did not appear to constitute a sexual advance or otherwise represent conduct of a sexual nature. The overwhelming evidence in the record established that the supervisor routinely touched both men and women when he spoke to them. The Commission noted that there was no evidence to show that agency officials had any knowledge of complainant's sexual harassment allegations until she sought EEO counseling. The incidents cited over a three-and-a half-year period, were not so severe or pervasive as to entitle complaint to relief under the federal employment discrimination laws. Choice v. United States Postal Service, EEOC Appeal No. 01A40796 (March 31, 2005).
In the following decisions, the Commission found discrimination:
Fitness-For-Duty Examination Violated the Rehabilitation Act. The Commission found that complainant was subjected to disability discrimination when he was sent for a fitness-for-duty examination (FFDE). Complainant, who suffered from heart disease, had a problematic relationship with co-workers and supervisors. In referring complainant for the FFDE, the agency stated that complainant's continued "stressing" over minor details and personality conflicts could cause him physical harm. The Commission stated that, while the agency referred complainant for the examination because of his heart condition, it did not demonstrate a reasonable belief that his condition impaired his ability to perform the essential functions of his position, or that complainant posed a direct threat to himself or others. In fact, the agency indicated that complainant had no limitations. Thus, the agency failed to show that the FFDE was job related and consistent with business necessity. By way of relief, the Commission ordered the agency to advise complainant of his right to submit objective evidence in support of his claim for compensatory damages, provide training for the agency officials involved in the decision to send complainant for an FFDE, and to consider taking disciplinary action against those officials. Gloger v. United States Postal Service, EEOC Appeal No. 01A31462 (February 10, 2005), request for reconsideration denied, EEOC Request No. 05A50640 (April 25, 2005).
At the time of his employment with the agency in 1998, complainant disclosed that he had a seizure in 1984 and was taking anti-seizure medication. He held a valid commercial driver's license at the time he was hired and throughout his employment with the agency. His commercial driving record was clean of accidents for at least 10 years before his employment with the agency and during his tenure with the agency.
In December 2002, the agency removed complainant from his position, after he underwent a periodic medical examination conducted by the agency's contract physician. The doctor advised the agency that complainant was not qualified to operate a commercial motor vehicle under DOT regulations because of his anti-seizure medication.
Complainant appealed his removal to the MSPB, which upheld the agency's action. MSPB found that complainant was not a "qualified individual with a disability" because he was not qualified under DOT regulations to operate a commercial vehicle and could not perform the essential functions of his position with or without reasonable accommodation.
Complainant petitioned the EEOC, which found that the agency had discriminated against complainant on the basis of disability and could not use its voluntary adoption of the DOT regulations as a defense. Instead, the agency was required to conduct an individualized assessment of complainant's qualifications in light of his disability and the particular job at issue, in order to avail itself of the "direct threat" defense. Factors relevant in determining whether an individual with a disability poses a direct threat include the nature of the risk, the severity of the potential harm, the probability that the potential harm will occur, and the imminence of the harm. The Commission found that the agency failed to meet its burden of proof by showing that complainant posed a significant risk of substantial harm as required under the EEOC's regulations. Thus, the EEOC disagreed with the Board's decision and referred the matter back to the Board for further consideration.
Upon reconsideration, the Board disagreed, finding that the agency was bound when it voluntarily chose to adopt the DOT regulations under the proper exercise of powers granted to it by statute. The Board then certified this matter to the Panel. The Panel deferred to EEOC's interpretation of the Rehabilitation Act and adopted the EEOC's decision. Accordingly, the Panel referred the matter to the Board to order the agency to take appropriate action, including cancellation of the removal and the award of all payments and benefits to which the complainant was entitled. Boots v. United States Postal Service, MSPB Docket No. AT-0752-03-0286-E-1; EEOC Docket No. 03A40060 (June 23, 2005) (Before Special Panel [the panel] Upon Certification By the U.S. Merit Systems Protection Board).
Race-Based Harassment Found. The Commission found that complainant's supervisor subjected him to hostile work environment harassment when he used a historically-offensive racist slur in complainant's presence and at least once in reference to complainant; treated him less favorably than he did White employees; verbally abused him; and subjected him to hazardous working conditions because of complainant's race (African-American). The Commission found that there was a basis for holding the agency vicariously liable for the harassment because the supervisor controlled complainant's daily work activities. Further, the Commission found that the agency failed to prove the affirmative defense that is available when the harassment does not result in a tangible employment action. In so finding, the Commission noted that the agency did not argue on appeal that it exercised reasonable care to take any corrective action. EEOC also found that the supervisor violated the anti-retaliation provisions of Title VII when, standing behind complainant, he informed all employees that if they wanted to file an EEO complaint, they had to discuss it with him first. The Commission found that the supervisor's statement was reasonably likely to deter future protected activity. By way of remedies, EEOC ordered the agency to determine complainant's entitlement to compensatory damages; train the supervisor with regard to his obligations to eliminate discrimination in the federal workplace; and consider disciplining the supervisor. Whidbee v. Department of the Navy, EEOC Appeal No. 01A40193 (March 31, 2005).
Sexual Harassment Found. The Commission found that complainant was subjected to sexual harassment by a co-worker on two occasions. The record revealed that one of complainant's co-workers grabbed and hugged her, made suggestive comments to her, and placed complainant's hand on his crotch. The following day, complainant reported the incident to a manager who related the information to three other officials. Complainant was advised that she would have to provide the complete name of the co-worker in order for management to fully investigate the matter. Subsequently, the co-worker again approached her several days later. The Commission noted that management failed to respond in a reasonable or effective manner after being informed of the initial incident and that, given the nature and severity of the actions, management should have at least contacted agency inspectors or local law enforcement. As part of the relief awarded complainant, the Commission ordered the agency to provide EEO training to the individuals involved in the incident; consider taking disciplinary action against them and investigate complainant's entitlement to compensatory damages. Lopez v. United States Postal Service, EEOC Appeal No. 01A45212 (February 10, 2005).
Retaliation Discrimination Found. Complainant, a Tax Examining Assistant, claimed that he was retaliated against for prior EEO activity when managers instructed an armed security guard to contact the Federal Police, who then questioned complainant regarding an alleged threat made to a co-worker. After an investigation, the agency found no discrimination. On appeal, the Commission reversed the agency. The Commission found that the agency's proffered legitimate non-discriminatory reasons were a pretext for discriminatory animus based on complainant's prior EEO activity. The agency stated that the security guard acted on his own to contact Federal Police and that the security guard had no knowledge of complainant's prior EEO activity. The record reflected that the management officials who contacted the guard on duty may have requested that the guard contact Federal Police. The agency insisted that complainant was not the reason Federal Police were contacted and that management did not direct the guard to contact Federal Police. However, the Commission found sufficient evidence to conclude that management officials either directed the guard to, or heavily influenced the guard's decision to, call Federal Police.
The Commission also found that the record contradicted the affidavit testimony from a team leader who asserted that, although the employee stated that she was threatened by complainant, management would not have had complainant escorted from the building without developing the facts further. The Commission found that the decision was made by management officials and the guard on duty to call Federal Police without speaking to complainant "because they saw no need to," nor did they speak to any of the other employees who witnessed the altercation. Although an interview of witnesses to the incident at issue would have likely revealed that the alleged victim made racial comments to complainant, which comments were the impetus of the verbal disagreement, both managers admitted little to no investigation occurred before Federal Police were called. The Commission noted that the alleged victim originally stated that complainant allegedly threatened to file an EEO complaint against her, which caused her to become upset and begin crying and seeking the manager's assistance. Management officials stated that Federal Police were contacted because the employee said that she felt "threatened," which she never said before. The Federal Police Officers, the Commission found, stated that, at the time they arrived on the scene, management said that no verbal threats had been made by either party. Additionally, the record showed that, although the employee in question, one month later, claimed that complainant told her to "watch her back," no statements to that effect were reported to management or the Federal Police before or during the incident involving complainant.
The Commission also found that the employee who accused complainant of "threatening" her was known to be emotionally unstable and prone to hysteria. This employee was also involved in several very loud verbal confrontations with other employees, yet the record did not reflect that Federal Police were called in for any of those incidents.
Finally, the Commission rejected the agency's assertion that complainant had no right to criticize how an agency conducted its investigation and that this claim was a collateral attack. EEOC found that, where it appears that an adverse action is taken against an employee for discriminatory reasons, the complainant has a right to question the acting authorities' motives, which in this case included the investigatory facts surrounding the Federal Police's involvement. As part of the relief ordered, the Commission directed the agency to conduct training for the responsible management officials, as well as to consider taking disciplinary action against them and report the results of that consideration to the Commission. EEOC also remanded the issues of compensatory damages and attorney's fees, and ordered the agency to submit a report of compliance and post an Order that the agency's facility had engaged in unlawful reprisal discrimination. Miller v. Department of the Treasury, EEOC Appeal No. 01A33926 (December 29, 2004), request for reconsideration denied, EEOC Request No. 05A50505 (April 19, 2005).
Race-Based Nonselection Found. The Commission found that the agency discriminated against complainant on the basis of race (African-American) when it did not select her for the position of Retail Specialist. In affirming the AJ's finding of discrimination, the Commission noted that the agency, through the Selecting Official (SO), failed to meet its burden of providing a legitimate, nondiscriminatory reason for not choosing complainant over the White selectee. EEOC stated that complainant was entitled to some rationale for her nonselection that provided her with an opportunity to attempt to satisfy her ultimate burden of proving that the agency's explanation was a pretext for discriminatory animus. The Commission agreed with the AJ's finding that SO's statements that the selectee was chosen primarily on subjective criteria, did not afford complainant a full and fair opportunity to demonstrate pretext. The Commission also concurred with the AJ's finding that neither SO nor the agency presented any interview notes or other written documentation, which would have provided some evidence to support the choice of the selectee. In addition, the Commission noted that the AJ rejected the hearing testimony of the SO, finding her not to be a credible witness with regard to her statement that experience was not important, which conflicted with the criteria required by the job announcement. By way of relief, the Commission ordered the agency to offer complainant the position of Retail Specialist or a substantially equivalent position at a mutually-acceptable location; provide make-whole relief, including back pay and benefits to which complainant would have been entitled but for the discrimination, as well as $6,000 in non-pecuniary compensatory damages, and the restoration of three days of sick leave. Beasley v. United States Postal Service, EEOC Appeal No. 07A40096 (March 18, 2005).
Complaint Not Moot. The Commission found that complainant's claim that he was discriminated against when he was denied the opportunity for a temporary appointment as a Cook, was not rendered moot when complainant accepted a position as a Full-time Seasonal Permanent Cook with the agency. EEOC noted that complainant applied for the temporary appointment in August 2004, and was not hired for the permanent position until November 2004. Further, the agency hired an independent contractor to serve as temporary Cook in the interim. The Commission noted that complainant's selection for the permanent position did not include back pay, seniority and benefits from August 2004 to November 2004. Perkins, Sr. v. Department of the Army, EEOC Appeal No. 01A52293 (June 10, 2005).
Commission Affirms AJ's Sanctions and Default Judgment Against Agency. In this matter, the Commission affirmed the AJ's issuance of a Decision and Order on Default Judgment in favor of complainant. The AJ concluded that the agency failed to cooperate in the discovery process; failed to comply with Orders and directives of the AJ; failed to timely raise a challenge to complainant's submissions; unduly delayed the hearing process; and failed to provide a good cause explanation for its actions. In affirming the AJ's decision, the Commission found that the agency failed to comply with the AJ's Acknowledgement and Order (A & O); made late and incomplete responses to the Orders issued by the AJ extending the discovery time limit and directing the agency to show cause why sanctions should not be imposed; and otherwise failed to honor its verbal commitments regarding discovery responses.
The Commission further determined that the agency did not demonstrate good cause for its delay and failure to respond by claiming lack of staffing (to include an argument that neither of the two staff members assigned to the case were attorneys) and deaths in the families of pertinent staff. EEOC found that these reasons were never communicated during the repeated attempts in the hearing process to compel discovery responses from the agency. In addition, the Commission found that because the content of an agency's discovery response failed to provide much meaningful additional information, and suggested that key agency witnesses might not be available to provide testimony, to include the two agency managers involved in the matter, the agency improperly impeded the processing of the complaint.
Accordingly, the Commission found that the AJ properly determined that the agency failed to timely proceed with discovery and failed to comply with the AJ's orders concerning discovery. EEOC further found that the AJ properly drew an adverse inference in favor of complainant, thereby entering a default judgment finding discrimination, and finding that complainant was entitled to relief. The Commission noted that the evidence of record revealed that, during the investigation, the agency failed to refute complainant's claims of discrimination, further supporting the decision in complainant's favor. As part of the relief awarded, the Commission concurred with the AJ's award of $12,000 in non-pecuniary compensatory damages, finding that the severe emotional distress she claimed was attributable to her discriminatory treatment by two agency managers, as well as complainant's development of physical symptoms requiring medical treatment. Barbour v. United States Postal Service, EEOC Appeal No. 07A30133 (June 16, 2005).
Impossibility of Compliance Renders Settlement Agreement Void. Complainant was removed from employment for being absent without leave (AWOL) and pursued the matter through the EEO process. Subsequently, complainant and the agency entered into a settlement agreement providing that complainant would write a letter requesting reinstatement and that her reinstatement would be supported by two named management officials. After complainant wrote a letter requesting reinstatement, pursuant to the agreement, she was advised that it was the agency's policy not to reinstate former employees who had been removed for cause. The Commission found that complainant's reinstatement was impossible at the time the settlement agreement was executed. Thus, the agreement was illusory and void and remanded the issue of complainant's removal, raised in her initial complaint, for further processing at the point at which processing ceased. Tang v. United States Postal Service, EEOC Appeal No. 01A42743 (May 27, 2005), request for reconsideration denied, EEOC Request No. 05A50977 (July 7, 2005).
Breach Found. Complainant and the agency entered into a settlement agreement which provided, among other things, that named supervisors would not require complainant to leave work as long as she was able to perform duties within her medical restrictions, unless there was legitimate reason to do so. The Commission found that the agency breached the agreement when, on one occasion, she was told to leave work early even though there was work she was capable of performing. The Commission rejected the agency's assertion that the work did not need to be completed on the day in question and could be put aside until the following day. The Commission noted that the agency failed to rebut the assertion that it had a policy of withholding work from limited duty employees, such as complainant, in order to assign it to regular-duty carriers working overtime. The Commission ordered the agency to comply with the settlement agreement by refraining from making any demand that complainant leave the workplace as long as she is able to perform duties that are within her medical limitations, unless there is a legitimate reason to do so. Lanzo v. United States Postal Service, EEOC Appeal No. 01A51408 (May 27, 2005).
No Breach Found. Complainant and the agency entered into a settlement agreement which provided that complainant would be given an additional 12 hours of overtime in the second quarter. Subsequently, complainant retired from the agency before the end of the second quarter. The Commission found that the agency did not breach the agreement by failing to provide complainant with an opportunity to earn 12 hours of overtime. The agency asserted that there was no opportunity to offer complainant 12 hours of overtime; and the Commission found the agency's actions to be consistent with the language of the agreement. EEOC noted that the terms of the agreement did not include an alternative for compensating complainant for overtime if he elected to end his employment. Daniels v. United States Postal Service, EEOC Appeal No. 01A51102 (May 13, 2005).
In the following decisions, the Commission found complainant's claims failed to state a claim upon which relief could be awarded:
Feng v. United States Postal Service, EEOC Appeal No. 01A45794 (May 31, 2005) (no harm found where supervisor allegedly told complainant to speak English and purportedly stated that he could not understand what the complainant had said).
McAdoo v. Department of Justice, EEOC Appeal No. 01A50228 (March 29, 2005) (retaliation based on sexual orientation is not cognizable because sexual orientation is not a basis of discrimination prohibited by the statutes enforced by the EEOC).
In the following decisions, the Commission found that the complaints stated a claim:
Dawes v. United States Postal Service, EEOC Appeal No. 01A52189 (April 29, 2005) (complainant's claim that a supervisor threw a parcel at him, when considered with his statement that he was degraded on almost a daily basis by his supervisor, was sufficiently severe to constitute an actionable claim of harassment).
Templin v. United States Postal Service, EEOC Appeal No. 01A50908 (February 4, 2005) (complainant's assertion that a supervisor threatened her that he was going to shove his fist down her throat, stated a claim of discriminatory harassment).
Culp v. United States Postal Service, EEOC Appeal No. 01A50879 (February 15, 2005) (complainant claimed that he was denied overtime because of his age and sex while he was on union time, while younger, female workers were allowed to work overtime while performing union functions; EEOC stated that being allowed to work overtime is a privilege of employment, and found that this stated a claim of disparate treatment on the bases of age and sex).
Complaint Timely Filed. Complainant received a Notice of Right to File a Formal Complaint (the Notice). The Notice did not contain a certificate of mailing, but, instead, included language indicating that complainant was presumed to have received the Notice within five days after it was mailed. The record contained no evidence showing when complainant actually received the Notice. The agency dismissed the complaint on the grounds that it was not filed within 15 days of the presumed date of receipt. The Commission reversed the agency, stating that the Notice did not contain any certificate of mailing or the equivalent, which would reflect that an agency official certified that the Notice was mailed on a specific date. Raleigh v. United States Postal Service, EEOC Appeal No. 01A46115 (May 11, 2005).
EEO Counselor Contact Timely. In finding complainant's EEO contact timely, the Commission held that she did not have grounds to reasonably suspect that the agency's action was discriminatory until on or about May 20, 2004, when a White female was granted an 11:00 a.m. starting time. Complainant (African-American) had claimed that, in March 2004, her supervisor denied her request, without explanation, to begin work at 11:00 a.m. The Commission found that nothing occurred during those two months that would otherwise have created a reasonable suspicion that complainant had been discriminatorily denied her request. Accordingly, the Commission found complainant's June 3, 2005 EEO contact timely and remanded the matter to the agency for further processing. Bingham v. United States Postal Service, EEOC Appeal No. 01A50221 (February 25, 2005). See Duplessis v. United States Postal Service, EEOC Appeal No. 01A52490 (June 15, 2005) (complainant had reasonable suspicion of discrimination only when she returned to work, after being placed in a non-duty/non-pay status for wearing a surgical shoe, and noticed another employee wearing the same shoe on the work room floor). See also, Anderson v. Department of the Navy, EEOC Appeal No. 01A50185 (January 26, 2005), request for reconsideration denied, EEOC Request No. 05A50569 (April 6, 2005) (agency failed to show that complainant had actual or constructive knowledge notice of the 45-day time limit for contacting an EEO Counselor).
In the following recently issued cases the Commission addressed the issue of retaliation for engaging in protected EEO activity.
The complainants in Abordo, et al, and the Estate of James Yell v. USPS, 1 initially worked as Special Delivery Messengers. They were involuntarily reassigned to other facilities after the agency dismantled the Special Delivery unit to which they were assigned. Complainants filed EEO complaints with regard to that action in 1991. The complaints were held in abeyance pending a decision in a union grievance. Subsequently, on July 15 and 16, 1997, the Special Delivery craft was abolished and the complainants were transferred to other positions. Complainants again filed EEO complaints, asserting that the 1997 transfers were retaliatory. The Commission found that complainants were not subjected to retaliation with regard to that action. The Commission stated that there was no causal connection between the 1991 complaint and the subsequent transfer. While an Arbitrator issued a decision in the previous grievance action on June 10, 1997, the Commission found that such action did not constitute protected activity as the complainants did not actually take part in the action. Citing Clark County School District v. Breedon,2 the Commission likened the issuance of the decision to its issuance of a right to sue letter which the Supreme Court had found did not constitute protected EEO activity. In addition, the 1991 complaint did not again become active until July 30, 1997, that is, two weeks after the complainants were transferred. The last time the prior complaint was active was in April 1994, which was too remote in time to establish a causal connection. Thus, complainants failed to show that there was any causal connection between their 1991 complaints and the 1997 transfer, and, as such, did not establish a prima facie case of retaliation.
In Chesney v. USPS,3 the Commission found that being named as a responsible official in an EEO complaint does not constitute protected activity. The complainant was named as a discriminating official in a complaint filed by a co-worker. He subsequently filed his own complaint alleging retaliation when he was denied a higher-level detail and advancement. Complainant stated that he was removed from his detail due to his protected activity which consisted only of having been named in the co-worker's EEO complaint. The Commission found no evidence that the agency's actions were motivated by discriminatory animus. The Commission stated that complainant's status as a person accused of discrimination does not, without more, constitute protected activity.
In Anthony v. Department of the Interior,4 the Commission found that the complainant did engage in protected EEO activity when she sent e-mail messages to the Office Director alleging that the agency discriminated against women and African-American employees. Complainant, who was employed as a Program Manager and Attorney Advisor for the agency's Board of Land Appeals, responded to an invitation to comment on the agency's draft Departmental Diversity Plan. She e-mailed the Director of the Board, asserting her belief that the agency had engaged in discrimination and cronyism which disadvantaged women and minorities. She stated that management denied advancement to women while favoring non-competitive promotion of white males for a specific position. Complainant submitted two other e-mails in which she commented on the agency's EEO plan. The Commission found that complainant engaged in opposition to EEO practices that she believed were unlawful when she sent the e-mails raising concerns about the agency's perceived noncompliance with its EEO responsibilities and challenging the diversity plan. Further, in a subsequent meeting, the responsible officials made it clear to complainant, in the presence of others, that her continuing opposition to EEO practices could result in adverse personnel actions. Specifically, after one of complainant's e-mails, she was threatened with discipline and subjected to derogatory remarks. Complainant was also not provided with sufficient inventory to meet her production quota, or assigned the same types of cases as were others who did not speak out. The Commission ultimately found that the record was sufficient to support a finding of retaliation and hostile work environment.
The complainant in Rehbein v. Department of the Treasury,5 complained to his supervisor that he was being discriminated against on the bases of his race, gender, and age when he was not selected for temporary supervisory positions. He also stated that he would be filing an EEO complaint. A short time later, complainant's supervisor sent him a memorandum stating that he would not certify complainant for management positions, and complainant was nonselected for a supervisory position. The supervisor advised the EEO Counselor that complainant's complaint about the temporary promotions "may have been the straw that broke the camel's back," and that he "wanted complainant to be quiet and not hear any more complaints." The Commission found that the supervisor's statements were direct evidence of discriminatory intent. Specifically, the statements showed the supervisor's displeasure with complainant's protected activity, and were linked to the adverse action he took in writing the memorandum. Further, the supervisor intended to hinder complainant's advancement to higher level positions. The Commission noted that the record showed that the supervisor attempted to cover up his actions by destroying the memorandum, and drew an adverse inference that the memorandum would have evidenced an intent to retaliate against complainant. In addition, the supervisor's failure to certify complainant affected his ability to be promoted to supervisory or management positions. Thus, the Commission concluded that complainant was subjected to retaliation when he was not certified for management positions, and not selected for a specific position. The agency was ordered to promote complainant to a supervisory position, with back pay and benefits, expunge any records regarding the denial of certification for management positions, provide training for the responsible supervisors, and conduct a supplemental investigation with regard to the issue of compensatory damages.
The Commission also found direct evidence of retaliation in Jackson v. Department of the Interior.6 Complainant, a Fishery Biologist, contacted an EEO Counselor in November 1999 with regard to pay and promotion issues. Subsequently, his supervisor informed him, both orally and in his performance appraisal, that his dissatisfaction was affecting his performance. The supervisor also told complainant that he would tell prospective employers that complainant almost filed a grievance against the agency. The Commission found that the supervisor's statements constituted direct evidence of retaliation. Specifically, the supervisor commented on complainant's EEO activity in an effort to punish him, and the statements were reasonably likely to deter protected activity. The agency was ordered to pay specified attorney's fees and damages, provide appropriate training to the supervisor, and expunge any adverse or derogatory materials relating to complainant's performance from his records.
In Payne v. Department of the Air Force,7 the Commission found that complainant was subjected to retaliation when she was terminated from employment. Complainant, a dual status military technician, sent an e-mail message to an agency official asserting that she was being harassed due to her race. Complainant advised the official that she would raise allegations of further harassment with the appropriate authorities. Approximately three weeks later, complainant was issued a notice of termination. The notice indicated that complainant was being terminated because of "inappropriate and discourteous e-mail responses" sent to the official, and quoted a portion of complainant's e-mail in which she complained of harassment.
The Commission found that complainant established a prima facie case of retaliation. Complainant engaged in protected activity when she sent the e-mail opposing unlawful racial harassment. Further, the official who issued her the termination was aware of complainant's actions and specifically quoted portions of her e-mail in the notice. Finally, the Commission stated that there was a nexus between the protected activity and complainant's termination less than one month later. The Commission noted that while the agency articulated a legitimate, nondiscriminatory reason for complainant's termination, that is, that complainant engaged in discourteous conduct, complainant showed that the stated reason was a pretext for prohibited discrimination. While the agency indicated that complainant did not properly address the official by rank, there was no written policy requiring her to do so. Further, the record showed that other employees regularly addressed the official by her first name. Finally, although the agency asserted that complainant engaged in other instances of insubordination, the notice of termination focused solely on complainant's e-mail exchange with the official. Thus, the Commission concluded that complainant was subjected to retaliation. The agency was ordered to reinstate complainant, with appropriate back pay and benefits, remove all references to the termination from her personnel records, and provide appropriate training for the responsible officials.
In Arroyo v. USPS,8 the Commission found that the complainant was subjected to retaliation when she was terminated from employment. Complainant worked for the agency as a Casual Clerk. In February 2000, complainant advised two management officials that she was being sexually harassed by her first-line supervisor. Subsequently, she was terminated in March 2000. The Commission found that complainant established a prima facie case, in that she engaged in protected activity when she reported the harassment to management, and was terminated less than one month later. The agency asserted that complainant was terminated due to poor performance and her inability to work with all of the necessary equipment. However, the Commission found that the record showed that the agency's reasons were a pretext for prohibited discrimination. Specifically, while the Acting Manager stated that complainant was one of three employees who received the most "unsatisfactory" ratings from the Automation Supervisors, only one Supervisor actually rated complainant as "unsatisfactory." The other two Supervisors rated complainant "outstanding" and "satisfactory" in all areas, including quality of work. Further, other individuals who supervised complainant testified that her performance was satisfactory. The agency was ordered to reinstate complainant, with back pay and benefits, provide training for the named management officials, and pay complainant specific attorney's fees and damages.
The complainant in Keller v. USPS,9 was issued a notice of removal two days after she requested reasonable accommodation for her foot condition. The Commission noted that complainant engaged in protected activity when she requested additional floor mats as a reasonable accommodation, and that management was aware of her request. While the agency asserted that complainant was terminated for leaving a door to the facility unlocked, the Commission found that the stated reason was pretextual. Specifically, complainant denied leaving the door unlocked, and the record showed that the key to the door was readily available to all employees. Further, upon discovering the unlocked door, the agency manager did not inventory the building, conduct an investigation, or contact agency inspectors or the police, but instead contacted a labor relations representative to report that complainant had engaged in misconduct. Thus, the Commission concluded that the substantial evidence in the record supported a finding of retaliation. The agency was ordered to provide training for the responsible officials, and conduct a supplemental investigation with regard to the issue of compensatory damages.10
1 EEOC Appeal No. 07A20066 (11/6/03), request for reconsideration denied, EEOC Request No. 05A40305 (September 29, 2004).
3 EEOC Appeal No. 01A24401 (10/27/03).
4 EEOC Appeal No. 01A20111 (3/10/04).
5 EEOC Appeal Nos. 01A32184 and 01A43703 (February 15, 2005).
6 EEOC Appeal No. 07A30126 (9/28/04).
7 EEOC Appeal No. 07A40136 (March 28, 2005).
8 EEOC Appeal No. 07A30065 (February 23, 2004).
9 EEOC Appeal No. 01A03119 (April 25, 2003).
10 Complainant had been previously reinstated, with full back pay, as a result of a grievance action.


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Ashley Roll necesitaba un nuevo diseño de logotipo y lanzó un concurso de diseño en 99designs.
Un ganador ha sido elegido entre 78 diseños de 19 diseñadores freelance.
Roll Aerospace and Defence
Roll Aerospace and Defence is a new engineering business in Australia serving the aerospace and defence industry. We provide software engineering services and consulting on all kinds of aerospace projects. Our focus is on reliable and safe software built to the rigorous standards required in the industry.
We work closely with our clients to manage requirements, documentation, project planning and delivery. Above all we want to build long term relationships with our customers to benefit both parties.
We are offering our services to government agencies responsible for aviation, the defence industry and private aerospace companies looking to outsource the development of software tools or applications, firmware, or embedded systems for ground or airborne platforms.
I am looking for a logo that can be used on our web site, letter head, document templates and business cards. There are few specific requirements, but I would encourage you to be creative.
1. Logo + Business name must be "horizontal" so that it can be used in headers of documents without consuming lots of vertical space.
2. Logo may be typographically incorporated into the Roll Aerospace name, but not required, please be creative.
3. Interested in a play on the "Roll" name. This is actually my family name, but I am more than happy to use the meaning that applies to aircraft (roll, pitch, yaw - roll is when one wing goes up and the other down).
4. Logo must contain a limited number of colours (up to 4). Blue is the preferred theme.
5. Logo must be provided in a "Flat" colour variant suitable for printing.
6. Preference will be given to submissions with a second "Shaded" variant for web or electronic document use. Shading or _similar_ technique would be used to enhance visual appeal.
http://www.rollaerospace.com is under construction, but you are welcome to examine. It would be good that the logo works with the site theme, although We are prepared to change the theme for a great logo. If you know a Wordpress theme that would work with your logo, please suggest it!
Descubre cómo funciona un concurso de diseño u obtén más información sobre nuestros servicios de diseño de logo.