text:
(December 2012)
|GOLD – The Road Less Traveled
Bankruptcy & Insolvency
Gold & Silver (real physical metal –
|PAPER – The Road More Traveled
Bankruptcy & Insolvency
Lehman Brothers
|Investment Return Since 1/1/2000
Gold up from $285 to around $1,750 – about 15% per year compounded for 13 years
Silver up from $5.40 to around $33.50 – about 15% per year compounded for 13 years
|Investment Return Since 1/1/2000
S&P 500 Index: down from 1,469 to about 1,430 – approximately no change in 13 years
NASDAQ 100: down from 3,700 to about 2,700 – about negative 2.4% per year compounded for 13 years
US Dollar: down from 0.8 gallons of gasoline to about 0.3 gallons of gasoline
US Dollar: down by about 60% in terms of retail food prices
Physical Gold and Silver – cannot be "printed"
Investment demand increasing
Central Banks are now net buyers
Huge demand for gold and silver in China, India, and Russia
Chinese government encourages ownership of gold by its citizens
Mine supply flat or barely increasing
US and Canadian governments mint gold and silver coins
Paper investments have counter-party risk.
Will governments or corporations pay on their promises?
Will stocks collapse if the economy weakens?
Will a derivative implosion crash the economy?
Will Congress spend the dollar down to a fraction of its current purchasing power?
Will consumer price inflation destroy the middle class of Europe and the USA?
Gold and silver prices will increase substantially as the Dollar and Euro decline in purchasing power due to excess spending and Quantitative Easing (debt monetization or "money printing").
Fear of inflation and loss of confidence in paper money, governments, and political promises will drive gold and silver prices much higher.
The dollar has lost about 98% of its value since 1913 and much of that loss occurred since 1971. Do you see anything that will change the trend toward continued monetary debasement?
Fear of inflation and loss of confidence in paper money, governments, and political promises will weaken the purchasing power of the Dollar and the Euro.
GE Christenson
aka Deviant Investor
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text:
Medialabs necesitaba un nuevo diseño de logotipo y lanzó un concurso de diseño en 99designs.
Un ganador ha sido elegido entre 125 diseños de 36 diseñadores freelance.
ppaid.com is all about selling prepaid content online.
Our business has a variety of prepaid products, see below:
o Pay As you Go Simcards
o Mobile & Fixed line airtime or credit
o Prepaid Mobile Phones
o Prepaid Mobile Packages
o Prepaid Mobile Games, Multimedia, Applications and other Services
o Visa, MasterCard, American Express & Diners Club Prepaid cards
o Gift Vouchers
o Travel Tickets
o Entertainment Tickets
o Online Services
o International Calling Cards
o And much ,much more
All of our Products may be bought through our Internet portal with one of the following methods:
o Direct Credit Card Payments
o PayPal
o Money bookers
o Cash Deposits
o Bank Transfers
o Premium SMS & Voice payments
Most of our products are virtual products and can be sent to the customer immediately.
However we do ship non-virtual items to customers around the world.
Did I mention we are global? The scope of our products spreads over all countries.
Our target audience are the typical consumer. Most people at sometime in their lives purchase a prepaid product. At present we offer our content via an online portal i.e. website. However, in the future we will offer a service which allows non-internet users to browse and purchase our products.
The Corporate Identity we are looking for must be clean and must focus on the words ppaid.com.
Therefore the TYPE or FONT used must be unique and original. The focus is on the words: ppaid.com
An example would be ebay.com.
I would like to have a symbol associated with the the words ppaid.com. An example would be DrupalWorks: http://www.drupal-works.com/. They have an icon of a droplet of water. This is however OPTIONAL. If you can win me over with a design which just uses the letters of ppaid.com then that's fine.
Keywords: Prepaid, global, virtual, online,
Colour Scheme: This is up to you. A good blend of two colours is preferred to keep printing costs low. Please note if you are the winner I will need the logo in HEX, PANTONE, CMYK formats.
Please do not design anything with a globe and arrow or a swish. This is so unoriginal.
Good Luck!
Descubre cómo funciona un concurso de diseño u obtén más información sobre nuestros servicios de diseño de logo.

subset: commoncrawl


text:
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*PayPal Credit is subject to consumer credit approval.
**As reported in Nielsen's PayPal Credit Average Order Value Study for activity occurring from April 2015 to March 2016 (small merchants) and October 2015 to March 2016 (midsize merchants), which compared PayPal Credit transactions to credit and debit card transactions on websites that offer PayPal Credit as a payment option or within the PayPal Wallet. Nielsen measured 284,890 transactions across 27 mid and small merchants. Copyright Nielsen 2016.
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text:
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Nursing Journal
Novel Coronavirus – What Nurses Should Prepare for
Code White- Firecracker Injury Prevention
Polio Vaccines – A revisit
Justified Wages for Nurses – How is the Government doing?
HIV/AIDS Latest Trends in Treatment
A Tribute to The Front-liners in the Battle Against a Deadly Pandemic
The Story Behind the Face Mask
14 Novel Corona Virus [COVID 19] Mythbusters
The Millennial Approach in Health Care Delivery System
Quick Overview on Working as School Nurse Abroad
Nursing Care Plans
Urinary Tract Infection Nursing Care Plan
Benign Prostatic Hyperplasia (BPH) Nursing Care Plan
Nursing Care Plan Meningitis
Rheumatoid Arthritis Nursing Care Plan
Nursing Care Plan Breast Cancer
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Nursing Practice Test – Fundamental of Nursing
Psychiatric Mental Health Nursing – Nursing Practice Test
HAAD (RN) Nurses Examination Questions – Practice Test with Rationale
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Nursing Topics
Anatomy and Physiology
Female Reproductive System
The Nervous System – Anatomy & Physiology
Physiology of the Cardiovascular System
Skeletal System – Anatomy and Physiology
Cell Physiology
Fundamentals of Nursing
5 Dangerous Diseases and Patient Assessment Signs that a Nurse Should Know
Nurse Patient Interaction – The three Most important Structural Factors
American Nurse Theorists and their Theories that Advanced Nursing Practice
Nursing Interventions -The Core of Nursing Process
Nursing Documentation and Reporting: Do's and Don'ts
Community Health Nursing
Life-Sustaining Vitamin A in Philippines Community Setting
Tuberculosis (TB) – A Major Public Health Hazard
Filariasis Nursing Management
Family Nursing Care Plan
Expanded Program on Immunization – Nursing Roles & Responsiblities
Maternal & Child Nursing
Hydatidiform mole (H. mole) Nursing Management
Autism Nursing Management
Newborn Screening
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Dilation and Curettage
Psychiatric Mental Health Nursing
School Phobia – Didaskaleinophobia
A revisit to Elisabeth Kübler Ross -Nursing Implications on Loss
Attention Deficit Hyperactivity Disorder (ADHD) Nursing Management
Hypochondriasis Disorder
Post traumatic Stress Disorder Nursing Intervention
Medical and Surgical Nursing
Hypoglycemia Nursing Management
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Multiple Sclerosis Nursing Management
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Perioperative Nursing
Transurethral Resection of the Prostate (TURP)
Angiogram vs Angioplasty – Patient Care for Pre and Post Operation
OR Nurse: Scrub vs Circulating
Operating Room Techniques – OPERATION OUCH!
Perioperative Nursing-Three Phases
Preeclampsia Pathophysiology and Schematic Diagram
Pathophysiology of Diabetic Ketoacidosis
Acute Glomerulonephritis (AGN) Pathophysiology & Schematic Diagram
Congestive Heart Failure Pathophysiology and Schematic Diagram
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Anaphylactic Shock Case Study -The Impending Doom
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Nursing Procedures
ABG Interpretation Made Easy-The Coffee & Creamer in ROME
IV Therapy Tips and Tricks – For Beginners and Expert Nurses
Female Catheterization – A Step by Step Guide
Patients with Endotracheal Tube – Nursing Roles, Management & Procedure
Nasogastric Tube Insertion Procedure
Study Plan
Getting Ready for NCLEX – Learn the 6 Tips to Help you Pass your NCLEX 2019
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A Nursing Student Guide -Study Efficiently and Pass Examinations Successfully
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Pauline Tarrazona
Pauline R.N., L.M.T is a graduate of Bachelor of Science in Nursing at West Visayas State University. She is vying to complete her Diploma in International Health at the University of the Philippines Open University. A nurse and licensed massage therapist with a heart for writing and community development work.
Nurse Traits that Matter to Nursing Practice
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April 10, 2019
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Pauline Tarrazona
March 29, 2019
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Pauline Tarrazona
March 22, 2019
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Pauline Tarrazona
March 15, 2019
Of Job-hunting and the Conquests of Two Filipino Nurses in Germany
Pauline Tarrazona
March 6, 2019
True Stories of U.K. Nurses
Pauline Tarrazona
February 23, 2019
Canadian Immigration Pathways for Nurses
Pauline Tarrazona
February 9, 2019
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This is a great solution if you need to get something off your computer, but you are not home.
Want access to your files stored at home? How about hosting a home web server? Static IPs are expensive, if you can even get one. We set up Dynamic DNS instead!
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We show you how to set it up on this episode of Systm, along with a quick and easy way to share files you and your friends can access through any browser: HFS, the HTTP File Server!
While you're stuck at home, make the most of your time by learning a new language, skill, or even train for a remote-work job with our new premium online courses.


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Redskins GM: No name change being considered
RICHMOND, Va. (AP) Washington Redskins general manager Bruce Allen said Thursday the team isn't considering a new nickname, adding that it's "ludicrous" to suggest that the franchise is trying to upset Native Americans.
"There's nothing that we feel is offensive," Allen said. "And we're proud of our history."
Opposition to "Redskins" has gained momentum following last week's symposium at the Smithsonian that was heavily critical of the use of the word, citing its history as an offensive term. Local columnists and commentators have called for the team to change its name in recent days.
The Redskins have responded with website postings featuring interviews with officials from the 70 high schools they say still called themselves "Redskins."
Speaking at the ceremonial groundbreaking for the team's new training camp facility, Allen also told reporters that Robert Griffin III was "progressing well" in rehabilitation from knee reconstruction surgery, but that the team doctors will ultimately decide whether the franchise quarterback will be ready in time for the start of the season.
Allen said the Redskins are still fighting the $36 million salary cap penalty levied by the league last year for excessive spending during the uncapped 2010 season. The first $18 million was docked last year, with the other $18 million hit coming when free agency starts next month.
"I think the penalty was wrong and it was unfair," Allen said. "There are plenty of things we can do."
He declined to go into specifics.
Allen also said the team is coming up with a plan to improve the Redskins' stadium field, which was torn up by the end of the season and prompted criticism from opposing players. He said the team missed an opportunity to re-sod during the season and would plan differently this year.


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A $285 million financing proposal for Detroit before U.S. Bankruptcy Judge Steven Rhodes has evolved over months of cost-benefit analysis, hardball tactics, lawsuit threats and even calling upon the U.S. Securities and Exchange Commission, Emergency Manager Kevyn Orr testified Friday.
Orr testified in an ongoing hearing on a plan to end burdensome swap agreements with banks and get $120 million in "quality of life" loans for city operations that he had the city's attorneys craft possible lawsuits against Zurich-based UBS AG and Merrill Lynch, a unit of Bank of America that took over the creditor position of SBS Financial Products Co. in that deal.
Orr had even consulted the SEC about possible action against the creditors in the weeks before filing for bankruptcy on July 18, he testified in an ongoing motion hearing about Detroit's Chapter 9 bankruptcy.
"Initially, the (swap) counterparties took a fairly strong position that they had a secured interest. Certainly that's what I experienced on the business side. And (they felt) that this whole (lending) position had been vetted and approved," he told the court.
"We wanted to make sure they understood ... we believed there was an opportunity to litigate that issue, and perhaps undermine that security interest."
In the run-up to reaching a "forbearance agreement" with the swap counterparties a few days before Chapter 9, Detroit officials had explored the possibility of challenging the original 2005-06 lending agreements on several grounds, including that the city was not authorized to enter into them and that they were "fraudulently constructed," Orr said.
Also, the new financing deal to terminate the swaps for $165 million was the banks' best offer, Orr said in court, after the city had tried to offer $145 million-$150 million. Detroit originally rejected its offer, before coming to a deal in the evening hours last week.
The financing from Barclays Capital Inc., if approved, would terminate both counterparties' swaps position and lend another $120 million or more in "quality of life" loans to fund operations like blight removal, public safety and technology infrastructure. Orr said in court Friday that he believes the financing is available until Jan. 31.
Creating possible ammunition for the fraud claim earlier last year was a recent series of U.S., British and Swiss charges alleging UBS conspired with dozens of traders and managers to skew interest rates to make money on trades, particularly involving the London Interbank Offered Rate. UBS agreed in December 2012 to a $1.5 billion payout to settle its criminal charges.
But the legal arguments in Detroit's favor, Orr said, were largely counterbalanced by the factual arguments favoring the banks, including that the city had reviewed and approved the swap deals on advice from its attorneys. So its chances in litigation were uncertain, he said.
If unsuccessful, the city could have faced an immediate obligation to pay "hundreds of millions" to the counterparties and possible litigation costs including the opposition's attorney fees.
"The city is down from (a peak of) 22,000 FTEs (full-time equivalent positions) to about 9,600 today," he said. "You can't cut any more to make up $200 million in losses."
Megan Stinson, a spokeswoman for Zurich-based UBS, said the bank couldn't immediately respond to Orr's testimony.
Detroit attorneys told Rhodes on Dec. 20 that that law firm Pepper Hamilton LLP has issued "litigation hold notices" for the city to UBS and Bank of America Merrill Lynch in the massive 2005 and 2006 credit default swap deals, if it could not reach the new deal hashed out in negotiations Dec. 23.
Under an agreement recommended for approval earlier this week by Chief U.S. District Judge Gerald Rosen in Detroit, a lead mediator in the bankruptcy, the banks will now agree to allow the city to terminate its contracts for $165 million, a 43 percent discount from the $293.3 million the banks could stand to collect.
Originally, the city and the banks had agreed to nearly $230 million in a $350 million financing deal to terminate the interest-rate swaps that have cost the city about $202 million since 2009. That was a 25 percent discount, a figure Rhodes has said previously in court is akin to a court judgment in favor of an adverse creditor.
Creditors led by bond insurer Syncora Guarantee Inc. oppose the settlement, saying it's too costly. The city didn't prove it would lose if it sued to cancel the contracts instead of settling, Syncora said.
Syncora said in court papers that the deal could cost it money as the insurer of some of the bonds and swaps. Under the settlement, Syncora would be released from any obligations related to the swaps, according to the city.
Orr completed direct examination from partner Gregory Shumaker at Jones Day, representing the city, late Friday morning and moved to cross-examination from Caroline English of Arent Fox LLP, representing bond insurer Ambac Assurance Corp.
Friday's session ended after Corinne Ball of Jones Day, an attorney for Detroit, made a closing argument in favor of the proposed settlement, saying it was best the city could do. Should Rhodes reject the deal, the city will be forced to litigate the swaps contracts. A settlement saves time and money, she said.
"We need to get on with it," Ball said.
Court will resume Monday, when critics of the deal make their case for rejecting the proposal.
During the hearing, security officials removed a heckler from the courtroom. The protester yelled, "Jones Day is not the city of Detroit, nor is the emergency manager."
Orr left his role as a partner in the Cleveland-based Jones Day international law firm after the state hired him as emergency manager. Detroit hired Jones Day to lead a financial restructuring before July's bankruptcy filing.
Rhodes told Orr afterward he could leave the courtroom immediately "if there are any further outbursts like this."
The Associated Press and Bloomberg contributed to this report.


text:
Japandroids Share New Song "No Known Drink Or Drug"
Japandroids third album, Near To The Wild Heart Of Life, will be available at your local record store first on Vinyl Tuesday, January 24th, and everywhere else on January 27th via Anti- and today the band has shared another new track "No Known Drink or Drug". Listen to the song HERE.
Near To The Wild Heart Of Life has been named one of the most anticipated albums of 2017 by Entertainment Weekly, Billboard, Consequence of Sound, New York Magazine's Vulture, Pitchfork, Stereogum, NPR, AV Club and more! The band released their first single, the album's title track, in late 2016, with Pitchfork calling it "a quintessential Japandroids song, anti-nostalgia that encourages you to figure out what you want out of life and how to make it happen this moment." Listen to "Near To The Wild Heart Of Life" HERE (cleared to share/post)
A pre-order for the album is up now at www.japandroids.com, with the option to buy the special 7" edition of the title track single featuring a b-side cover of Talking Heads' "Love → Building on Fire."
Japandroids will set out on a headlining tour beginning on February 13th, which will find them playing their biggest show to date at NYC's Terminal 5 on February 23rd, as well as multiple nights in Toronto, Philadelphia, DC and Los Angeles. See all tour dates below and check their website for additional dates.
Japandroids on tour:
2/13 -- Madison, WI -- Majestic Theatre*
2/14 -- Minneapolis, MN -- First Avenue**
2/15 — Chicago, IL — Vic Theatre*
2/17 — Toronto, ON — Danforth Theatre* SOLD OUT
2/18 — Toronto, ON — Danforth Theatre*
2/20 — Boston, MA — Royale*
2/23 — New York, NY — Terminal 5*
2/24 — Philadelphia, PA — Union Transfer* SOLD OUT
2/25 — Philadelphia, PA — Union Transfer*
2/27 — Washington, DC — 9:30 Club* SOLD OUT
2/28 — Washington, DC — 9:30 Club*
3/01 — Carrboro, NC — Cat's Cradle*
3/03 — Atlanta, GA — Variety Playhouse*
3/04 — Birmingham, AL — Saturn*
3/05 — St Louis, MO — The Ready Room*
3/07 — Denver, CO — Gothic Theatre*
3/09 — Los Angeles, CA — Fonda Theatre*
3/10 — Los Angeles, CA — Fonda Theatre*
3/11 — San Diego, CA — Music Box*
3/13 — Santa Ana, CA —Observatory*
3/14 — San Francisco, CA — Fillmore*
3/17 — Portland, OR — Revolution Hall*
3/18 — Seattle, WA — Neptune*
3/20 — Vancouver, BC — Commodore Ballroom*
4/18 — Copenhagen, Denmark — Pumpehuset
4/19 — Hamburg, Germany — Uebel & Gefährlich
4/20 — Cologne, Germany — Gebaude 9
4/22 — Berlin, Germany — Columbia Theater
4/23 —Frankfurt, Germany — Zoom
4/24 — Amsterdam, Netherlands — Melkweg
4/26 — Paris, France — La Maroquinerie
4/27 — Brussels, Belgium — The Rotonde / Botanique
4/28 — Birmingham, UK — o2 Institute Birmingham
4/30 — Glasgow, UK — The Garage
5/01 — Leeds, UK — Stylus
5/02 — Nottingham, UK — Rescue Rooms
5/04 — Manchester, UK — Gorilla
5/05 — Brighton, UK — Concorde 2
5/06 — London, UK — o2 Shepherd's Bush Empire
6/01-04 — Barcelona, SP — Primavera Sound
6/08-10 — Porto, PT — Primavera Sound
* with Craig Finn
Near To The Wild Heart Of Life, was written clandestinely throughout 2014 and 2015 in Vancouver, Toronto, New Orleans, and Mexico City. It was (mostly) recorded by Jesse Gander (who had previously recorded both Post-Nothing and Celebration Rock) at Rain City Recorders in Vancouver, BC (September-November, 2015). One song, True Love And A Free Life Of Free Will, was recorded by Damian Taylor during an exploratory recording session at Golden Ratio in Montreal, QC (February, 2015). The album was mixed by Peter Katis at Tarquin Studios in Bridgeport, CT (May, 2016) and mastered by Greg Calbi at Sterling Sound in New York, NY (July, 2016).
Like Post-Nothing and Celebration Rock, the album is 8 songs. This is because 8 songs is the standard template for a great rock n roll album: Raw Power by The Stooges, Born To Run by Bruce Springsteen, Marquee Moon by Television, IV by Led Zeppelin, Horses by Patti Smith, Paranoid by Black Sabbath, Remain In Light by Talking Heads, Master Of Puppets by Metallica, etc.
Like Post-Nothing and Celebration Rock, the album was sequenced specifically for the LP. On Near To The Wild Heart Of Life, side A (songs 1-4) and side B (songs 5-7) each follow their own loose narrative. Taken together as one, they form an even looser narrative, with the final song on side B (song 8) acting as an epilogue.
Near To The Wild Heart Of Life Tracklisting:
01 Near To The Wild Heart Of Life
02 North East South West
03 True Love And A Free Life Of Free Will
04 I'm Sorry (For Not Finding You Sooner)
05 Arc Of Bar
06 Midnight To Morning
07 No Known Drink Or Drug
08 In A Body Like A Grave
For bio, lyrics, cover art and press photos, click HERE
For more information, contact:
Dana Erickson
Grandstand Media


text:
Basic Instructions:Start with clean hands and work surface. Recommended work surfaces include Cool Tools Clayboard, glass surfaces, disposable foil, or wax paper. For best results, work light colors before dark colors to avoid staining clay. Condition clay by kneading until soft and smooth. When connecting two pieces of clay together, press firmly to ensure they stick together after baking. See baking times below. Do not use microwave oven. Do not exceed the recommended baking temperature or baking time.Baking Times:Premo! Sculpey Accents bake to hardness in the oven at 275°F (130°C) for 30 minutes per 1/4" (6 mm) thickness. It requires no painting.Changing the Consistency of Clay:Sculpey clays have the unique ability to be made as firm or as soft as you like. To make your clay softer, simply add a few drops of Sculpey Mold Maker™ until desired consistency is reached. To make your clay more firm, roll your clay into a sheet. Sandwich your flat clay between 8-10 sheets of plain white copy paper. Place a weight on top of your clay (a phone book works great) and allow to sit for 1-24 hours, checking periodically.Pre-Baking Test:Home oven temperatures may vary significantly depending on your oven, affecting the baking of your clay. To test the temperature of your oven prior to baking, pinch off a small ball of clay. Shape a disc about a 1/2" in diameter, approximately a 1/4" thick. Fire at appropriate temperature. Remove from oven and check color. Any darkened areas indicate that your oven is too hot. Lower your oven temperature by 10ºF and repeat test.
The same great polymer clay as Premo! but these enhanced accent clays allow for making exciting and unique projects! Available in Glitter, Granite, Metallics, Translucents, and Pearls, these Premo! Sculpey Accent clays can be used alone or with other Premo! clays to create beautiful and unique projects.
Polymer clay is also a wonderful way to explore designs without risking your precious metal clay. Work out your designs in this clay before executing in metal clay. Bake and use as a mold. Use Polymer clay to add brilliant colors to your jewelry designs.


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April 14, 1975 - June 30, 1975
Determined to make a significant number of the Museum's treasures available to the public during the ten months that the Museum was closed in order to complete air-conditioning and renovations, some sixty works were installed at the Rodin Museum beginning April 15. S
April 26, 1975 - May 25, 1975
Creating excitement during the Philadelphia Festival, a project of the Greater Philadelphia Cultural Alliance, was Seahorses, a dramatic draped fabric environment by artist Sam Gilliam.
February 18, 1975 - April 13, 1975
Howard Robert's nineteenth century American sculpture, La Première Pose, was the focus of an exhibition in the Armory from February 18 to April 13. Also on view were works by Thomas Eakins and William Rush.
October 12, 1974 - February 18, 1975
A recently acquired masterpiece of the Baroque style in Europe, The Massacre of the Innocents, by the seventeenth century Neapolitan artist Massimo Stanzione, was the inspiration for a small didactic exhibition that also included drawings, and paintings by other seventeenth century Neapolitan artists.
October 30, 1974 - February 18, 1975
Displayed through December in the Special Exhibition Galleries were a group of major recent acquisitions in twentieth century art. Philip Pearlstein's Two Female Models with Drawing Table shared the spotlight with impressive works by Italo Scanga, Roy Lichtenstein, Sidney Goodman, Rafael Ferrer, and Walter Darby Bannard.
October 30, 1974 - February 18, 1975
The Albert M. Greenfield and Elizabeth M. Greenfield Collection is an exhibition of some fifty paintings, drawings, and sculptures by such artists as Jackson Pollock, Willem de Kooning, and Larry Rivers, many previously unrepresented in the Museum's collections


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This thread is YEARS OLD and has nothing to do with reality anymore.
Please stop posting to it!!!
Dear Mr. Garritan,
I am a composer. I still use Gigastudio until now. I like its sound so much. I have Kontakt. But you know - the secret of Gigastudio is its sound. Thank you for your redemption of Gigastudio and for your great mission. I wait the new Gigastudio 5 for a long time. I would like to know - have I chance to see the great sampler in the near future? I wish you luck and happiness! Thank you very much.
You must bewaiting expectantly for the new Gigastudio 5 too...
Even though I am only now exploring Gigastudio, I don't believe it will be making a comeback. The kernel-mode driver, which was really the only thing 'unique' about it, is not something that Microsoft or Apple want to be encouraging, and there's no chance of an open-source Linux version due to the value of the asset.
Thankfully it seems all the bot crap has been removed from this thread now. How long it will stay that way remains to be seen.
I think that as this thread ran its course sometime ago and it keeps getting hit by spam bots, it's probably worth locking it.


text:
Delighting in all things Bookish
Delighting in all things Bookish
A blog about books and life
Award-Winning UKYA Book Blogger, Social Media Tips, Mental Health
Why sleep when you can read?
Gleanings from the dark forests of French fairy tales
"Sooner or later, Mr. Fowler, one has to take sides, if one is to remain human." - Hinh, The Quiet American
Delighting in all things Bookish
Reviews For The Would-Be Booklover
A place to collect all my bookish musings
'Inside a book is a different world...'
Book reviews and good books for you to read
Book news, reviews and recommendations
For mostly adult, literary, historical, contemporary, biographical, and women's fiction.
Delighting in all things Bookish
Delighting in all things Bookish
Delighting in all things Bookish
Delighting in all things Bookish
Delighting in all things Bookish
We are all in the gutter, but some of us are looking at the stars. Oscar Wilde
writer & author
Angela Meyer // hidden auditorium of the skull
Book Reviews and News
an occasional blog about writing, reading and watching the world
loving, learning and living together
it's not hoarding if it's books
Book Reviews, Author Interviews and Event Calendar
Books, books and more books
Elise McCune International Author
writer, consultant & practitioner
@lynnsbooks - book reviews and travel musings...
Author of The Boy With Blue Trousers and The Concubine's Child
Where the love of a good cup of coffee is beaten only by the love of a good book....
author of contemporary Australian fiction
Just books, more books and some other stuff too
In the end we all become stories
Writer and Psychologist
I'm reading my way around Oz - literally!
Book reviews, my news,


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U.S. Equal Employment
Opportunity Commission
Volume XIV, No. 3
Office of Federal Operations
Summer Quarter 2003
Disability Law-Fitness for Duty Examinations
Disability Law-Definition of Disabled
Disability Law-Definition of Qualified Disabled
Disability Law-Undue Hardship and Reasonable Accommodation
Employees or Independent Contractors? Standing to Raise a Claim Under EEOC's Regulations
Attorney's Fees in Federal Sector Discrimination Complaints: Prevailing Party Status After Buckhannon Board and Care Home Inc., v. West Virginia Department of Health and Human Resources
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 M. Dupont, Gerard Thomson, Veronica Villalobos
Available in accessible formats for persons with disabilities. The Digest is now available online through EEOC's homepage at www.eeoc.gov. If you wish to receive a copy in print, you must send a request, in writing, to Arnold Rubin, EEOC, Office of Federal Operations, 1801 L Street, N.W., Washington, D.C. 20507.
Agency Appeal Dismissed. In dismissing the agency's appeal, the Commission noted that the agency had asked EEOC to review solely whether or not the Administrative Judge (AJ) was correct in determining that complainant was an individual with a disability under the Rehabilitation Act. Finding that the agency's final order had adopted the AJ's finding of no discrimination, the Commission determined that the agency had no grounds for appeal. An appeal is properly taken by an agency when it declines to implement the AJ's finding or any portion of the order of relief. The Commission found that the purpose of the agency's appeal in this case was not to address the ultimate disposition of the complaint. Rather, the agency was taking issue with a particular legal predicate leading up to the AJ's decision. The Commission concluded that EEOC's regulations do not authorize such agency appeals. Vacchiano v. United States Postal Service, EEOC Appeal No. 07A10042 (March 3, 2003).
Denial of Class Certification Affirmed. Complainant, who alleged class-wide discrimination with regard to his nonselection for a particular position, did not meet the requirements for class certification. Complainant did not show common facts among class members in that he was not a member of two of the protected classes, females and individuals over 40, whom he sought to represent, and did not clearly identify a policy that had the effect of discriminating against the class as a whole. Complainant also failed to give an approximate number for the purported class, present evidence to establish a number that constituted the class, or raise specific allegations with respect to any member of the purported class. Hudson, et al., v. Department of Veterans Affairs, EEOC Appeal No. 01A12170 (March 27, 2003).
Commission Affirms $40,000 Award for Discriminatory Harassment. The EEOC previously had found that the agency had discriminated against complainant on the basis of her sex when she was harassed by her immediate supervisor. As part of the remedy ordered, the Commission ordered the agency to solicit evidence of compensatory damages from complainant and issue a final decision awarding such damages as might be warranted. The agency awarded complainant $40,000 in non-pecuniary damages in a final decision, which complainant appealed. The Commission affirmed the award, noting that there was no causal connection between one claimed medical condition and the harassing conduct, and that complainant's condition was partially attributable to factors other than her supervisor's conduct. EEOC noted that it was up to complainant to demonstrate a nexus between the harm shown and the unlawful discrimination. Anderson v. United States Postal Service, EEOC Appeal No. 01A14976 (April 2, 2003).
Commission Increases Award of $15,000 in Non-Pecuniary Damages to $30,000. The agency found that complainant had been discriminated against on the basis of his disability when he was charged as being absent without official leave and constructively discharged. As part of its remedy, the agency awarded complainant $15,000 in non-pecuniary compensatory damages. On appeal, the Commission increased the damages awarded to $30,000. The Commission explained that the unlawful discrimination caused complainant to suffer severe emotional problems, which lasted for approximately three months, and less severe emotional stress for three years. It also noted that the discrimination, while not the sole causal factor in this case, did contribute to both complainant's depression and the ultimate dissolution of his 19-year common-law marriage. Williams v. Department of Veterans Affairs, EEOC Appeal No. 01A13275 (March 19, 2003).
Agency Had Right to Send Petitioner for FFDE. The Commission concurred with the MSPB's finding of no discrimination, when petitioner was sent for a FFDE because of a conflict in medical documentation as to whether he possessed the potential for violent behavior in the workplace due to his medical condition (paranoid personality disorder). Further, the Commission found that the agency did not discriminate against petitioner when it placed him in non-duty status for refusing to submit to the examination. Gribcheck v. United States Postal Service, EEOC Petition No. 03A20068 (April 7, 2003). See also Bearfield v. United States Postal Service, EEOC Appeal No. 01A04678 (March 5, 2003) (agency met its burden of showing FFDE was job-related and consistent with business necessity: supervisor had reasonable belief that complainant's ability to perform essential job functions was impaired by her medical condition, based in part on the fact that her doctor opined that she might have to quit her job due to medical conditions, but then refused to provide any details).
In the following cases, the Commission found insufficient evidence to show that complainants were disabled within the meaning of the Rehabilitation Act:
Holstein v. United States Postal Service, EEOC Appeal No. 01A01808 (March 6, 2003)
Complainant had sustained a fracture in his leg which did not heal properly and caused a shortening in his right lower leg with limited range of motion, as well as a condition in his knees that required braces. EEOC found that this evidence was insufficient to establish a substantially limiting impairment. Information was lacking as to the extent complainant's impairments limited his walking in terms of distance and/or duration. Nor was there evidence connecting his stated inability to play sports and do yard work to his limitation in walking.
Petty v. United States Postal Service, EEOC Appeal No. 01A05440 (March 27, 2003)
Complainant failed to show that she was substantially limited as a result of asthma and monocular vision. She did not identify any major life activity in which she was substantially limited due to her asthma. Further, complainant offered no evidence of limitations in peripheral vision and depth perception. Medical records showing 20/20 vision in one eye and 20/800 in the other, while demonstrating poor vision, were not sufficient to show that complainant had a record of a substantially limiting impairment with regard to the major life activity of seeing. Cf. Spencer v. Treasury, EEOC Appeal No. 07A10035 (May 6, 2003) (complainant with no vision in one eye, limiting peripheral vision and depth perception, found to be substantially limited in major life activity of seeing.)
Rubio v. United States Postal Service, EEOC Appeal No. 01A00554 (March 27, 2003)
Complainant, who was limited in the life activity of walking to between one hour to three hours at a time, failed to show a substantial limitation in that life activity. Specifically, complainant did not show that he was significantly restricted with respect to permanence or long-term impact involving his walking limitations. Complainant also failed to present evidence concerning how the walking limitation substantially affected his everyday activities in terms of the average individual.
Miles v. United States Postal Service, EEOC Appeal No. 01A12528 (March 13, 2003)
Complainant, who was restricted to lifting no more than 20 pounds, but could frequently lift and carry objects weighing up to 10 pounds, was not substantially limited with regard to the major life activity of lifting. Complainant's testimony that he was able to remedy his pain by sitting down for 10 minutes, lying down, "snapping his back in place," stretching, or using a heating pad, revealed that the use of mitigating measures minimized the pain caused by lifting, and precluded a finding that complainant was substantially limited in lifting.
Petitioner Not a Qualified Individual With a Disability. The Commission concurred with the Merit Systems Protection Board (MSPB) that petitioner was not a qualified individual with a disability when she was unable to perform the essential functions of her position as Program Analyst, even with reasonable accommodation. Petitioner wanted to work exclusively from her home as an accommodation; however, MSPB determined, and EEOC concurred, that the essential functions of the position included participating in office meetings and conducting field visits, which could not be performed from home. Nanette v. Department of the Treasury (Internal Revenue Service), EEOC Petition No. 03A20095 (March 5, 2003).
Agency Fails to Meet Burden of Showing Undue Hardship in Denying Reasonable Accommodation. In this case, the Commission found that the agency had failed to meet its burden of showing undue hardship when it denied complainant the reasonable accommodation he had requested (needing to work in another area during the cleaning of machinery, which created a great deal of dust) for his disability (asthma), resulting in his being unemployed for two years. An arbitrator sustained complainant's grievance and ordered complainant's immediate reinstatement and make-whole relief. An AJ found, and the Commission agreed, that the sole reason complainant was placed off the clock and kept in off duty status for nearly two years, was because he did not submit forms specifically stating that he was requesting a permanent light duty position within the time frame ordered by agency officials. This, the Commission stated, did not absolve the agency of its duty to provide reasonable accommodation under the Rehabilitation Act. As part of the relief awarded, the Commission directed the agency to retroactively reinstate complainant with modifications consistent with his medical restrictions, provide back pay with interest, and consider compensatory damages. Lawler v. United States Postal Service, EEOC Appeal No. 01A01535 (March 27, 2003).
Burden on Complainant to Establish Likely Vacancies. Complainant bears the burden of establishing likely vacancies in cases of reasonable accommodation involving reassignment. The Commission held that, in the reassignment context, an agency's failure to conduct either any search at all, or a broad enough search for a position, does not, by itself, result in a finding of discrimination. Instead, complainant must show that it is more likely than not that there were vacancies available, during the relevant time period, into which she could have been reassigned. McIntosh v. United States Postal Service, EEOC Appeal No. 01A15285 (January 13, 2003).
Employees May Be Required to Speak English if the Rule is Justified by Business Necessity. Noting that a ban on employees speaking their primary language in the workplace disadvantages an individual's employment opportunities because of national origin and presumptively violates Title VII, the Commission found that an agency official directed employees not to speak Spanish only in the reception area where they serviced non-Spanish speaking customers. No such rule was imposed on private conversations in private offices. The Commission also found insufficient evidence that employees were prohibited from speaking Spanish to the public and customers who preferred to conduct business in Spanish. Accordingly, the Commission found no discrimination. Alvarez v. Department of Veterans Affairs, EEOC Appeal No. 01A10091 (March 6, 2003)
Complainant Entitled to Pursue Discrimination Claims. Although complainant had filed both an EEO complaint and a grievance on the same matter, the Commission found that complainant could pursue discrimination claims because the grievance procedure did not permit claims of discrimination to be raised. Thus, the grievance decision did not operate to bar the claims in the EEO process under the doctrine of res judicata. Laity v. Department of Veterans Affairs, EEOC Appeal No. 01A22476 (March 5, 2003).
Substantially Equivalent Position. In this matter, the Commission addressed the question of what constitutes a "substantially equivalent position" for the purpose of providing make-whole relief where discrimination is found. The Commission found that the agency had discriminatorily reassigned complainant from a Solicitor position to an Attorney Advisor position, and ordered that complainant be reinstated into the Solicitor position. The agency argued that all Solicitor functions had been transferred to the Office of the General Counsel, and the Solicitor's duties had been distributed to other Attorney Advisors in the OGC, including complainant. Complainant argued that her current duties were not substantially equivalent to her former Solicitor position. The Commission concluded that, if the agency could no longer reinstate complainant as it argued, then it must place complainant into a position with duties commensurate with her experience and prior job functions. EEOC found that merely maintaining grade level and pay the same as before did not make complainant whole after discrimination. The Commission ordered the agency to place complainant either in the Solicitor's position or a substantially equivalent position in terms of responsibility, independence, status, and official recognition. Monroig v. United States Commission on Civil Rights, EEOC Request No. 05A20762 (April 9, 2003).
Agency's Award of $50,000 Compensatory Damages and no Entitlement to Front Pay Affirmed. The Commission previously found discrimination based on sex and age when complainant was subjected to a hostile work environment. On remand, the agency found that complainant was not entitled to front pay and awarded $50,000 as compensatory damages. The Commission found that, since complainant was not able to work and had refused a reinstatement offer, she was not entitled to an award of front pay. Clark v. United States Postal Service, EEOC Appeal Nos. 01A21594 and 01A21595 (March 19, 2003).
Nexus Found Between Removal Action and Complainant's Protected Activity in Requesting Reasonable Accommodation. The Commission found that complainant's request to the responsible management official (RMO) for additional floor mats for her leg and foot pain constituted a request for reasonable accommodation and was therefore protected activity. EEOC found substantial evidence in the record to support a finding that the RMO either created or seized upon the opportunity to remove complainant from employment just two days after she engaged in the protected activity of requesting reasonable accommodation. By way of relief, the Commission ordered the agency to consider an award of compensatory damages, as well as to consider disciplining the RMO. Keller v. United States Postal Service, EEOC Appeal No. 01A03119 (April 25, 2003).
Settlement Agreement Unenforceable for Lack of Consideration. Agency's agreement to advise employees who report alleged threats of their options and right to file "an official threat assessment" does not constitute consideration, and renders settlement agreement void. The agency was merely agreeing to abide by its own policy concerning threats against employees. Complainant received nothing more than that to which he was already entitled. Holland v. United States Postal Service, EEOC Appeal No. 01A21524 (April 2, 2003).
Settlement Agreement Invalid When No Meeting of the Minds. The Commission found no meeting of the minds between the parties, which rendered the settlement agreement invalid. Specifically, the agreement raised, but failed to resolve, the issue of back pay, which was inseparable from the claim raised concerning the agency's failure to reinstate complainant after his worker's compensation benefits ceased. Luongo v. United States Postal Service, EEOC Appeal No. 01A24090 (April 3, 2003).
Agency's De Minimus Action Does Not Constitute Breach of Settlement Agreement. The Commission found that a one-day delay in submitting paperwork provided for in the settlement agreement was de minimus and did not undermine the agreement's purpose or effect. EEOC also noted that the fact that agreed upon amounts for attorney's fees and damages were paid in full less than 60 days after the signing of the agreement was sufficient to establish that the agreement was not breached with regard to those matters. Baca v. Department of the Air Force, EEOC Appeal No. 01A21224 (April 3, 2003).
Discriminatory Denial of Family Medical Leave Act (FMLA) States a Claim. Allegation that complainant was denied sick leave under the FMLA after the birth of his son, while female employees received such leave, states a claim within the purview of EEOC's regulations. Urquidez v. United States Postal Service, EEOC Appeal No. 01A30793 (April 2, 2003).
Overheard Comment Fails to State a Claim. Complainant who overheard an allegedly discriminatory remark, made by a management official to another employee, did not state a claim of discrimination or retaliatory harassment. Wagner v. United States Postal Service, EEOC Appeal No. 01A23390 (April 7, 2003).
EEO Contact Regarding Denial of Reasonable Accommodation Not Timely. A complainant must initiate an EEO complaint within 45 days of learning of the denial of a request for reasonable accommodation. The Commission distinguished that situation from one in which an agency fails to address a request for accommodation, stating that the latter incident constitutes a recurring violation that repeats each day that the accommodation is not provided. Henery v. Department of the Navy, EEOC Appeal Nos. 01A22792 and 01A22794 (April 2, 2003).
Title VII of the Civil Rights Act of 1964 provides that all personnel actions affecting employees in the federal sector shall be free from discrimination based on race, color, religion, sex, or national origin. Further, the EEOC complaint processing regulations provide that an agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against because of race, color, religion, sex, national origin, age, disability, or in reprisal for prior EEO activity. Thus, in order to have standing to bring an action under the EEOC regulations, an individual must be a federal employee or applicant for employment, and an agency can properly dismiss a complaint filed by an individual who does not meet that requirement for failure to state a claim. It is noted that none of the pertinent federal employment discrimination laws precisely define the term "employee." As a result, in determining whether a complainant is in fact an employee of the federal government, the Commission has focused upon the particular facts and circumstances surrounding the individual's relationship with the agency.
In Ma v. Department of Health and Human Services, the Commission applied the common law of agency test for determining who qualifies as an "employee" under Title VII. The Commission noted that while it had previously applied the "economic realities test" enumerated in Spirides, the factors listed for consideration therein are drawn from the common law of agency test, and the practical application of the two has not been appreciably different. The Commission included a non-exhaustive list of factors to be examined when determining an individual's status for purposes of stating a claim under the EEOC regulations. Specifically, the Commission will look at: (1) the extent of the employer's right to control the means and manner of the worker's performance; (2) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (3) the skill required in the particular occupation; (4) whether the "employer" or the individual furnishes the equipment used and the place of work; (5) the length of time the individual has worked; (6) the method of payment, whether by time or by job; (7) the manner in which the work relationship is terminated, i.e., by one or both parties, with or without notice and explanation; (8) whether annual leave is afforded; (9) whether the work is an integral part of the business of the employer; (10) whether the worker accumulates retirement benefits; (11) whether the employer pays social security taxes; and (12) the intention of the parties.
Applying the common law of agency test to the facts in Ma, the Commission determined that the complainants were not employees of the agency, and their complaints were properly dismissed for failure to state a claim. The complainants, who performed research at the agency under Visiting Fellows awards, were not required to complete specific assignments or perform a specified amount of work. Further, the agency did not have the right to assign the complainants additional research projects without their agreement, or to establish the hours when complainants were to perform their research. While the Commission noted that the agency provided complainants with all necessary supplies and equipment, it stated that the agency supervisor met with complainants only periodically and did not supervise their research on a daily basis. Finally, the Commission stated that the agency did not make social security payments for complainants, or withhold state or local taxes, and that complainants were not covered by the agency's retirement or health plan, and did not accrue leave.
The Commission has issued a number of recent decisions applying the common law of agency test to determine whether an individual is an employee of the agency for purposes of stating a claim of discrimination. In Floro v. Department of the Army, the complainant entered into a contract with the agency to serve as Program Director for numerous projects. In finding that the complainant was not an employee of the agency, the Commission observed that there was no evidence that the Program Manager, the agency employee who worked closely with complainant, set complainant's hours and schedule, required him to request leave, conducted routine performance evaluations, administered discipline, or otherwise exercised day to day control over complainant's routine. The Commission noted that while complainant's services necessarily included close coordination with the Program Manager and other contractors, all contractors made weekly status reports which suggested a collaborative working relationship as opposed to one of close supervision by the Program Manager. The Commission also noted that while the complainant performed his duties at the agency's facility, using the agency's supplies and equipment, he was not on the agency's payroll and derived no employment benefits, such as paid leave, medical insurance, or retirement benefits.
In Szayna v. Department of Health and Human Services, as in Ma, the complainant was a Visiting Fellow performing independent research under the mentorship of an agency senior scientist. The Commission noted that the agency's manual provisions implementing the Visiting Fellow program, and the notification letter sent to complainant, explicitly stated that individuals who receive those awards are not agency employees. The Commission stated that while the senior scientist expressed expectations concerning when complainant would work, it did not appear complainant adhered thereto, and that meetings and seminars which he instructed complainant to attend were for her benefit rather than the agency's. The Commission noted that the instructions given to complainant by the senior scientist were more properly viewed as "tutelage," rather than day to day control over a subordinate. Further, complainant was not on the agency's payroll, and received no benefits such as paid leave or insurance. Thus, the Commission concluded that complainant was not an employee of the agency.
In Chung v. Department of Defense, complainant worked as a car salesman through the Overseas Military Sales Corporation. In finding that complainant was not an employee of the agency's Army and Air Force Exchange Service, the Commission noted that complainant received his pay from, and was supervised by managers of the Corporation. The Commission stated that while the agency provided space and equipment, it had essentially no control over any aspect of complainant's work.
In Bradford-Morris v. Department of the Army, complainant worked at an agency health clinic pursuant to a contract between the agency and PhyAmerica. The Commission noted that the record included an Independent Contractor (Physician) Agreement entered into between complainant and PhyAmerica, in which complainant agreed to fully indemnify PhyAmerica, and be responsible for self-employment tax payments and workers' compensation insurance. Further, the agency exerted virtually no control over complainant's performance, and had no authority to discipline or control complainant other than to give her work assignments. Thus, the Commission concluded that complainant was not an employee of the agency.
The complainant in Foley v. Department of Justice worked as a Contract Linguist, providing translation services at an hourly rate. The Commission noted that there was no guarantee of the number of hours per week she would work, and she was not assigned specific, permanent work space. Further, complainant was expected to work alone and provided minimal supervision, and there was no evidence that she received leave, insurance, or retirement benefits from the agency, or that the agency paid social security or taxes for complainant. Thus, the Commission determined that complainant was not an agency employee.
In Miller v. Department of Veterans Affairs, the Commission found that complainant, who worked as a Security Officer, was employed by Superior Protection, Incorporated, an independent contractor, and not the agency. Specifically, the Commission indicated that Superior Protection retained ultimate disciplinary and supervisory authority over complainant, as provided for in the contract between Superior and the agency. The Commission further stated that complainant failed to rebut the evidence showing that she was hired, disciplined, terminated, and paid by Superior.
The complainant in Chiabaudo v. Department of Justice, who was dismissed from his position as a Court Security Officer, was found by the Commission to be employed by an agency contractor rather than the agency itself. The Commission noted that the contractor, AKAL Security, Incorporated, was responsible for providing all management, supervision, manpower, material, supplies and equipment. In addition, the contractor was to plan, schedule, coordinate, and assure effective performance of security services at the agency's facility. Thus, the Commission concluded that the complainant was not covered by EEOC federal sector regulations.
In Covington v. Department of the Interior, the complainant was terminated from employment, and found not eligible for positions with the Colesville Confederated Tribes. The Commission affirmed the agency's dismissal of the complaint for failure to state a claim, finding that the complainant was not employed by the Department of the Interior. The Commission noted that the complainant was supervised by employees of the Tribes, worked on Tribes property, with equipment controlled by the Tribes, and that the positions she sought were also under the control of the Tribes.
In a recent decision, the Ninth Circuit agreed with an EEOC determination that an employee of an independent contractor working for the Department of the Navy was not a federal employee for the purposes of receiving reasonable accommodation under the Rehabilitation Act of 1973. The complainant, who had a prosthesis for his right leg which made walking great distances difficult, asked the Department of the Navy for a parking space inside the shipyard facility in which he was working. His request was denied and he was required to park his car outside the shipyard and walk with difficulty to the work site. The complainant's administrative complaint was dismissed by Navy for failure to state a claim, asserting that he was not a federal employee. EEOC affirmed Navy's dismissal, finding that the complainant was not a federal employee for the purposes of the Rehabilitation Act. In its review of the matter, the Ninth Circuit agreed with EEOC that the complainant was not a federal employee. The Court noted that the contractor for whom the complainant worked was solely responsible for hiring, training, assigning work to, and supervising the complainant. The Court concluded that the complainant was not a federal employee and granted summary judgment in favor of the Navy.
In Koob v. United States Postal Service, the Commission found that complainant, who provided services to the agency as an Occupational Health Nurse Administrator, was an employee and not an independent contractor. The Commission noted that the contract used by the agency in its procurement of health services set forth specific duties to be performed at the agency, on certain days and during certain times, and specified that the Nurse Administrator would be "functionally" supervised by the Senior Area Medical Director, and "administratively" supervised by the Director and the Manager of Human Resources. The Commission applied its previous decision in Woods v. United States Postal Service, EEOC Appeal No. 01971155 (June 12, 1998), which held under virtually identical facts that a complainant who worked as an Occupational Health Nurse Administrator was an agency employee.
In certain cases, an individual may be found to be in a joint employment relationship, working for both the federal agency and another entity, such as a private staffing firm. For example, in Maynard v. Department of the Navy, the Commission found that the complainant, an environmental analyst, was properly deemed an employee of the agency for purposes of invoking Title VII protection. The Commission noted that an agency supervisor recruited, interviewed, and selected complainant, and closely supervised complainant thereafter to the extent that the commercial contractor had little if any input into complainant's daily assignments. The Commission found, therefore, that complainant was an employee of both the private staffing firm and the agency.
In Weikle v. United States Postal Service, the Commission found that a former employee's claim of harassment, including issues which arose after complainant resigned from the agency and was working as a contract employee, stated a claim within the meaning of the EEOC Regulations. The Commission noted that the alleged harassment began while complainant was employed by the agency, and that there was a nexus between the alleged harassment and the subsequent incidents cited.
In Clackamas Gastroenterology Associates, P.C., v. Wells, petitioner Clackamas was a medical clinic in Oregon, which had employed respondent Wells as a bookkeeper from 1986-1997, when she was terminated. Wells filed suit against the clinic under Title I of the Americans With Disabilities Act (ADA). The ultimate question to be determined by the Supreme Court was whether the four physician-shareholders who owned the professional corporation and constituted its board of directors were counted as employees to bring the clinic within the ADA's statutory requirement that a business entity must have 15 or more employees for 20 weeks.
The Supreme Court found persuasive EEOC's focus on the common-law touchstone of control. Citing the Commission's Compliance Manual, Section 605:0009, the Court noted with approval EEOC's assertion that six factors, not necessarily "exhaustive," should be considered as to whether a shareholder-director was an employee. The six factors were: (1) Whether the organization can hire or fire the individual or set the rules and regulations of the individual's work; (2) Whether, and if so to what extent, the organization supervises the individual's work; (3) Whether the individual reports to someone higher in the organization; (4) Whether, and if so to what extent, the individual is able to influence the organization; (5) Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; and (6) Whether the individual shares in the profits, losses, and liabilities of the organization.
The Supreme Court noted that whether a shareholder-director was an employee depended upon all the incidents of the relationship, with no one factor being determinative. Accordingly, the Court reversed the decision of the Ninth Circuit Court of Appeals, which had held that the use of any corporate form, including a professional corporation, precluded examination into whether the entity was in fact a partnership, and remanded the matter for further proceedings consistent with the Supreme Court's opinion.
In federal sector EEO law, complainants who prevail on claims alleging discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII) and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act) are presumptively entitled to an award of attorney's fees, unless special circumstances render such an award unjust. Complainants must show that they are represented by an attorney and have attained "prevailing party" status. A complainant typically attains prevailing party status by obtaining a finding of discrimination in the adjudicatory process. The Equal Employment Opportunity Commission (Commission) has recognized, however, that a complainant may achieve prevailing party status through a settlement agreement.
In Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, the United States Supreme Court (Court), in a 5 to 4 decision, held that prevailing party status, for purposes of the fee shifting provisions of the Fair Housing Amendments Act of 1988 (FHAA) and the Americans with Disabilities Act of 1990 (ADA), is achieved when a party secures a favorable judgment on the merits of a claim or a court ordered consent decree. This article examines the effect of Buckhannon on the availability of attorneys fees in claims filed under Title VII and the Rehabilitation Act in the federal sector administrative process.
Buckhannon Board and Care Home, Inc. (Buckhannon), a West Virginia assisted living care facility, failed to pass a state inspection because some of its residents were not capable of "self preservation" as defined and required by state law. After receiving cease and desist orders directing the closure of its facilities, Buckhannon brought suit in district court on behalf of itself and others who were similarly situated (petitioners) against the state of West Virginia, two of its agencies, and 18 individuals (respondents). Petitioners sought declaratory and injunctive relief on the theory that West Virginia's "self preservation" requirement violated the FHAA and ADA. While the case was pending in the district court, the West Virginia legislature enacted two bills which eliminated the "self-preservation" requirement. The respondents moved to dismiss the case as moot, and the district court granted the motion. The petitioners then requested attorney's fees as the prevailing party pursuant to the FHAA and the ADA. The petitioners argued that they were entitled to the attorney's fees under the "catalyst theory," which provides that a plaintiff is a prevailing party if he achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct.
The Court determined that Congress employed the term prevailing party as a legal term of art. Rejecting the definition of prevailing party contained in the "catalyst theory," the Court adopted the definition contained in Black's Law Dictionary, which states a prevailing party is a "'party in whose favor a judgment is rendered regardless of the amount of damages awarded.'" The majority rephrased the definition as "one who has been awarded some relief by the court," and noted that its previous decisions supported this definition. The Court further noted that "even an award of nominal damages suffices under this test."
The Court held that only those who obtain enforceable judgments on the merits and court-ordered consent decrees are prevailing parties. Acknowledging that a consent decree does not always include an admission of liability by the defendant, the Court nonetheless found it to be a court-ordered "'chang[e] [in] the legal relationship'" between the parties. The Court noted that situations where parties enter into voluntary settlement agreements or where a party voluntarily changes his behavior "lack[] the necessary judicial imprimatur" to create a change in the legal status of the parties. In explaining its position, the Court cited to language in Hanrahan v. Hampton: "It seems clearly to have been the intent of Congress to permit . . . an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal (emphasis added)."
Pointing to several Courts of Appeals' reliance on dicta in prior cases in approving the catalyst theory, the majority dismissed the dissenters' assertion that the decision upset "long-prevailing Circuit precedent." In addition, the Court noted that, despite the petitioner's argument that defendants may change their conduct in an effort to make the case moot, "a defendant's change in conduct will not moot the case," when the plaintiffs have a cause for damages. The Court refused to endorse a construction of prevailing party which "authorizes federal courts to award attorney's fees to a plaintiff who, by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined), has reached the 'sought-after destination' without obtaining judicial relief."
The holding in Buckhannon specifically adressed the FHAA and ADA. The court noted in dicta, however, that the prevailing party provisions in other fee-shifting statutes should be interpreted consistently with the decision and specifically mentioned Title VII, the Voting Rights Act Amendments of 1975, and the Civil Rights Attorney's Fees Awards Act of 1976.
Prior to the Supreme Court decision in Buckhannon, the Commission required that attorney's fees and costs be explicitly provided for in the body of a settlement agreement for the fees to be awarded. According to the Commission's Management Directive, a complainant who prevails through a voluntary settlement agreement is entitled to attorney's fees and costs under the same standards as any other prevailing party. However, a settlement agreement that fails to preserve the issue of fees and costs operates as an implicit waiver of fees and costs. The Commission therefore has strongly encouraged parties to resolve fee and cost issues by negotiated settlement.
A complainant can establish prevailing party status and not receive attorney's fees. In Farrar v. Hobby, the plaintiffs filed a civil rights action under 42 U.S.C. § 1983, seeking $17 million in compensatory damages. The plaintiffs prevailed, but received only $1 in nominal damages. The Court found that, when a plaintiff recovers only nominal damages because of his failure to prove an essential element of claim for monetary relief, the only reasonable fee under civil rights attorney's fees provision is usually no fee at all. The plaintiffs were found to have met the minimum condition for prevailing party status because they obtained an enforceable judgment for $1 in damages. The Court, however, determined that the plaintiffs were not entitled to an attorney's fee award under the civil rights statute because they recovered nominal damages of only $1 on a claim for $17 million in compensatory damages.
The Supreme Court cited to Farrar in Buckhannon and stated that "even an award of nominal damages suffices under this test." However, footnote six in Buckhannon states that in some circumstances such a prevailing party should still not receive an award of attorney's fees.
Several Commission decisions have analyzed the applicability of Buckhannon to Federal sector cases. In Arnold v. Department of the Air Force, petitioner filed a petition with the Commission for a review of the final decision of the Merit Systems Protection Board (MSPB), where an MSPB Administrative Judge (AJ) denied petitioner's claim for attorney's fees and costs on a claim of discrimination. The underlying claim consisted of a finding by the agency that it had discriminated against petitioner on the basis of disability when it removed him from the position of Sheet Metal Mechanic (Aircraft), WG-10, effective July 31, 1998. On August 30, 2001, the Board adopted the finding of discrimination and forwarded the matter to an MSPB Regional Office for further proceedings. On September 6, 2001, petitioner filed a request for extension of time to file his fee petition and sought to defer consideration of a fee award until after the remaining remedies issues were decided. Finding that he had no authority to grant petitioner's request for an extension of time, the MSPB AJ denied the motion for attorney's fees and determined that petitioner had failed to demonstrate that he was a prevailing party in his removal action. In reaching this conclusion, the MSPB AJ noted that, in accordance with an earlier decision, petitioner would have been separated from the agency even if the agency had conducted a proper job search. The AJ concluded that "even if compensatory damages were awarded, [petitioner would not have] return[ed] to the rolls of the agency or be entitled to any back pay."
In his petition to the Commission, petitioner contended that he was a prevailing party based on the finding by the agency. He further asserted that the Commission should have withheld a ruling on his petition because a hearing on compensatory damages was subsequently held before the MSPB AJ on January 25, 2002, and petitioner expected that he would file an additional petition for review once a final decision on that matter was issued. The agency asserted that, by virtue of the FAD, petitioner obtained his entitlement to any and all relief, including compensatory damages. The agency argued, therefore, that since petitioner had not prevailed on his case in the MSPB proceedings, he was not entitled to any attorney's fees incurred in said proceedings.
The Commission differed with the MSPB AJ's decision to the extent that it construed Buckhannon to mean that petitioner must obtain reinstatement or back pay in order to be a prevailing party for purposes of applicable civil rights statutes. The Commission noted that, in Buckhannon, the Court rejected the catalyst theory as a basis for a fee award, since a voluntary change, even if prompted by a lawsuit, was not equivalent to the requisite judicially-sanctioned change in the parties' legal relationship. The Commission determined that, in contrast to the facts in Buckhannon, petitioner's claim did not yield a voluntary change by the agency but rather culminated in a discrimination finding made in a final decision which the agency's EEO office issued in its capacity as a neutral adjudicator. The Commission further disagreed with the MSPB AJ's decision to the extent that it stated that the agency's abandonment of its discriminatory policy in this case was voluntary within the meaning of Buckhannon. The Commission found that the matter was not a catalyst theory case, but rather one which resulted in a finding of discrimination by an adjudicator, making Buckhannon inapposite. Furthermore, the Commission disagreed with the MSPB AJ's decision to the extent that it stated that reinstatement or back pay must be obtained as a remedy in order for a party to be deemed a prevailing party on the claim. The Commission concluded that compensatory damages, or even simply declaratory relief, can be sufficient, even in the absence of reinstatement or back pay, to render a party a prevailing party. The Commission, however, could not reach a decision because the remedies issues were pending before the MSPB and the pertinent record was not before it.
Another analysis of Buckhannon by the Commission is found in Spriesterbach v. United States Postal Service, where a complainant initiated a request (RTR) to the Commission to reconsider its prior decision. There, complainant and the agency had entered into a settlement agreement which provided, in relevant part, that complainant would be placed in the position of Special Delivery Messenger, with the seniority date that she "would have had if [she] had been awarded the position at the time of [her] conversion . . . [on April 9, 1988]." The agency placed complainant in the position effective April 9, 1988, but gave her a seniority date of October 8, 1988, the date she was placed in the position. The agency argued that its collective bargaining agreement (CBA) stipulated that the "seniority date" was the date on which an individual was assigned to a position. Complainant notified the agency of the alleged breach and the agency issued a final decision finding no breach for the aforementioned reason. In its first decision, the Commission reversed the agency's finding that it did not breach the settlement agreement and found that complainant was entitled to a seniority date of April 9, 1988. The Commission noted that there was no provision of the CBA to the contrary. In her RTR, complainant requested attorney's fees for fees and costs she had incurred prosecuting her appeal.
The Commission exercised its discretion to reopen the previous decision on its own motion to rectify an omission in the relief awarded. The Commission found that, to the extent that complainant was a prevailing party in her first appeal, she was entitled to attorney's fees for the work completed in connection with her appeal. The Commission cited Buckhannon to explain that, in order to be considered a prevailing party, complainant must have received a judgment in her favor as to the allegation of breach of settlement agreement. The Commission reasoned that the relief complainant sought would not have been received absent her bringing the action for breach of the settlement agreement. The Commission therefore found that complainant was a prevailing party entitled to attorney's fees incurred in the prosecution of her appeal in connection with her breach of settlement allegation.
In Glazer v. International Trade Commission, complainant maintained that, after providing him with a reasonable accommodation, to include schedule modifications and exemption from travel assignments, his supervisor began to harass him about the accommodations and subsequently revoked the accommodations. As a remedy for the alleged discrimination, complainant sought reinstatement of the previous accommodations, a transfer to another office, compensatory damages, and attorney's fees. The agency first "proposed" to dismiss the complaint for failure to state a claim, and alternatively, for failure to cooperate because after its many requests, the agency still did not have sufficient documentation to determine whether complainant's disability rendered him disabled for the purposes of the Rehabilitation Act. Nonetheless, the letter notified complainant that if he submitted the required medical documentation within fifteen calendar days of his receipt of the proposal, the decision to dismiss the complainant would be "tolled."
The record reflects that complainant timely submitted the requested medical documentation, and by letter dated March 30, 2001, the agency informed complainant of its decision to provide him with a reasonable accommodation, namely a new attorney position in the hearing division. The agency further notified complainant that, if he disagreed with the agency's decision, he could pursue his EEO complaint by stating his reasons for doing so in a formal notification, and if the agency did not receive a notification from complainant, the complaint would be deemed resolved. The agency informed complainant that in either event, his decision regarding his EEO complaint had no bearing on the provision of the reasonable accommodation. Complainant responded by letter and indicated that he was pleased in the progress in resolving his complaint, but noted that several outstanding issues remained, including, among other things, attorney's fees in the amount of $5,000.00. Complainant argued that he was a prevailing party because he would not have received the accommodation without resort to the EEO process, and he requested that his complaint be amended to include this item among two others.
In a May 7, 2001 decision, the agency dismissed the complaint, finding that a complainant, who had initially failed to cooperate by providing required documentation, could not be considered aggrieved. The agency first determined that complainant's accommodation claim had been rendered moot by his reassignment to the new position. Regarding the claim for attorney's fees, the agency determined that complainant was not a prevailing party, because his complaint had never been accepted for investigation, and its determination regarding his request for a reasonable accommodation was made without regard to his EEO complaint.
On appeal, complainant argued that he was a prevailing party and entitled to attorney's fees. He further contended that the agency's final decision not only provided him with the accommodation requested in his complaint regarding a reassignment, but that the agency also admitted that it would have fired him had he not filed an EEO complaint. Complainant argued that the agency's March 30, 2001 letter and May 7, 2001 decision constituted decisions on the merits, appealable to the Commission, and satisfied the Buckhannon criteria for prevailing party. In response, the agency argued that the complaint was dismissed, which precluded a decision on the merits as now required for prevailing party status in Buckhannon.
The Commission determined that, while complainant's EEO complaint primarily concerned the agency's revocation of his reasonable accommodation, and complainant clearly obtained a benefit when the agency subsequently provided him with a reassignment as a reasonable accommodation, he nonetheless could not be considered a prevailing party after Buckhannon. The Commission found that complainant's EEO complaint was not successfully processed, to include reaching a decision on the merits of his claims, because the agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107, a determination which complainant did not appeal. Moreover, the Commission noted that, in light of Buckhannon, the agency's motivation in providing complainant with a reasonable accommodation is immaterial because prevailing party status can no longer be conferred under the catalyst theory. Furthermore, the Commission concluded that, notwithstanding complainant's arguments to the contrary, the agency's notice offering complainant a reassignment to a newly created position as a reasonable accommodation was not a decision on the merits of his EEO complaint, since the agency specifically informed complainant that he was entitled to the accommodation regardless of whether he continued to pursue his EEO complaint. The Commission found that, without a merits determination and/or order from the Commission requiring the agency to provide complainant with a reasonable accommodation, complainant was not a "prevailing party" under the Buckhannon holding.
Arnold, Spriesterbach, and Glazer provide good examples of the manner in which the Commission may apply the Buckhannon decision to Federal sector appeals. These samplings, however, do not analyze the full gamut of cases to which Buckhannon may apply.
Complainants who file complaints alleging discrimination under both the ADA and Title VII may be affected by the decision in Buckhannon. Although the Buckhannon decision specifically addressed the ADA and not Title VII, the court noted in dicta that the prevailing party provision in Title VII required a consistent interpretation with its decision.
The Buckhannon court's holding that only those who obtain enforceable judgments on the merits and court-ordered consent decrees are prevailing parties does not differ significantly from prior Commission precedent and the EEO MD-110. The Buckhannon court, however, also stated in dicta that situations where parties enter into voluntary settlement agreements or where a party voluntarily changes his behavior "lack[] the necessary judicial imprimatur" to create a change in the legal status of the parties. In cases where a complainant enters into a settlement agreement and wishes to receive attorney's fees, the Commission may require a complainant to provide for attorney's fees in the body of the voluntary settlement agreement or state that the issue is being severed from the agreement. Otherwise, a complainant risks a finding that s/he is not entitled to a recovery of attorney's fees.
In cases where the underlying complaint is brought under Title VII or the ADA, and the complainant alleges that the agency breached a settlement agreement, the complainant may be considered a prevailing party if the Commission finds that the agency breached the voluntary settlement agreement. The Commission may find that, as required by the Buckhannon decision, the complainant received a judgment on the merits of a Title VII or ADA complaint. If, however, the complainant were to succeed on a procedural issue, the Commission may not consider complainant a prevailing party because he or she would have failed to receive a judgment on the merits of his or her claim. Prior to Buckhannon, the Commission applied the same approach to breach of settlement decisions.
With respect to whether a complainant is entitled to attorney's fees if he receives de minimis relief after a finding of discrimination has been made, the Commission may apply the Farrar analysis, as did the Buchannon court, that "a prevailing party" is a "'party in whose favor a judgment is rendered regardless of the amount of damages awarded.'" Nominal damages will suffice for finding that complainant was a "prevailing party," but in some circumstances such a prevailing party will still not receive an award of attorney's fees.
Finally, an agency's change in conduct will not render a case or issue moot when the complainant has a cause for damages. Only if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and if interim relief or events have completely and irrevocably eradicated the effects of the alleged violation will a case or issue be rendered moot.
In light of Buckhannon, parties are encouraged more strongly than ever to resolve attorney's fee and cost issues within the body of the voluntary settlement agreement. When such a resolution impedes negotiations, the settlement agreement can provide for attorney's fees and costs, but need not quantify the actual amount. In such cases, the attorney should submit his or her statement of fees and costs and supporting documentation to the agency for determination of the amount due. When the parties do not preserve the issue of attorney's fees in the settlement agreement, under Buckhannon and the EEO MD-110, the settlement agreement may be read as an implicit waiver of fees and costs. Buckhannon has eliminated the catalyst theory, which provided complainants with attorney's fees if they substantially received the relief sought and were the catalyst motivating the agency to provide the relief. Instead, under the Court's holding, a party must secure either a judgment on the merits or court-ordered consent decree in order to qualify as a prevailing party under Title VII and the ADA.