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U.S. Equal Employment Opportunity Commission
Volume XVII, No.4
Office of Federal Operations
Fall Quarter 2006
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 Special Services Staff
Digest Staff
Editor: Arnold Rubin
Consultant: Douglas A. Gallegos
Writers: Robyn Dupont, Arnold Rubin, Gerard Thomson, James Meiburge, Veta Hurst, Joe Popiden
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.
(The Digest acknowledges the help of Pamela O'Leary in the production of the issue. - ED.)
Abuse of EEO Process Found. The Commission found that complainant, a former employee, was abusing the EEO process by continuing to file complaints involving his nonselection for positions reserved for current employees and raising arguments that had been decided by two administrative tribunals. Further, despite the fact that the Commission and the Merit Systems Protection Board (MSPB) had found no discrimination in connection with complainant's prior removal, he continued to raise that argument in his current appeals to the Commission. Despite knowing that he was not qualified for the positions, complainant continued to apply and then file futile EEO claims with the agency. The Commission thus concluded that complainant was attempting to use the EEO process to retaliate against the agency. The Commission stated that it would not entertain complainant's nonselection claims, where current federal employment status was required, unless he could show such status or that non-status individuals were considered or selected. Stoyanov v. Department of the Navy, EEOC Appeal Nos. 01A60843, 01A61391, 01A61781, 01A62205, and 01A62852. (August 31, 2006), requests to reconsider denied, EEOC Request Nos. 0520061084, 0520061085, 0520061086, 0520061087, 0520061088 (October 31, 2006).
(See also, "Sanctions," and "Findings of Discrimination," this issue --Ed.)
Adverse Inference Drawn in Nonselection Based on Race Where Agency Failed to Preserve Evidence. The Commission affirmed an EEOC Administrative Judge's (AJ's) summary judgment finding of race discrimination (African-American) by adverse inference regarding whether the agency articulated reasons for not selecting complainant. The agency had failed to produce the Merit Promotion File for the vacancy for which complainant was not selected and failed to produce the Official Personnel File (OPF) for the selectee. The Commission found that the AJ did not abuse herdiscretion because, after complainant filed his complaint, the agency failed to preserve all personnel records concerning the selection, as required under the Commission's regulations, i.e., 29 C.F.R. Section 1602.14. The AJ awarded complainant $3,500.00 in pecuniary damages and $11,600.00 in attorney's fees and costs. Sewell v. Department of Veterans Affairs, EEOC Appeal No. 0720030006 (September 27, 2006), request to reconsider denied, EEOC Request No. 0520070114 (January 5, 2007).
(See also, "Stating a Claim," and "Timeliness" this issue. -Ed.)
Class Member's Individual Complaint Allowed, Ordered Held in Abeyance. The Commission vacated the agency's decision dismissing complainant's complaint for failure to state a claim. The agency characterized the complaint as alleging disability discrimination when complainant did not receive a Notice of Personnel Action stating that he would not receive a step increase. The agency further found that complainant did not timely initiate EEO counseling with regard to his claim that there was a relationship between the Notice of Personnel Action and the issuance of a Notice of Removal. The Commission found that because complainant, a member of a pending class action, was unaware that he could file an individual complaint, his EEO Counselor contact was timely. The Commission ordered the agency to hold the complaint in abeyance, pending the outcome of the class case. Mindrup v. United States Postal Service, EEOC Appeal No. 0120040818 (October 30, 2006).
Commission Upholds Testimony by Telephone. Finding Exigent Circumstances. The Commission found that the AJ properly allowed three witnesses to testify telephonically. Specifically, EEOC found that two witnesses were retired Federal employees who were not required to testify and could not be compelled to appear in person. Thus, the Commission found that there were exigent circumstances, given that the employees were willing to testify telephonically. Further, with regard to the third witness, the Commission found no specific issues of credibility that might have been affected by taking the testimony telephonically. Gregory v. Department of Defense, EEOC Appeal No. 01A50725 (July 7, 2006).
Abuse of AJ Discretion in Holding Telephonic Hearing, Where Credibility Issues Exist and Evidence of Exigent Circumstances is Lacking. The Commission found that an AJ abused her discretion in holding a telephonic hearing in a case involving sexual harassment, in which the outcome was, in part, impacted by the AJ's credibility determinations. Specifically, in relying on testimony that complainant engaged in behavior similar to the alleged harasser's, the AJ determined that the testimony of that individual, as well as the testimony of two other employees, was credible. According to the record, however, the individual had denied complainant's allegations for more than three years, and admitted during the hearing that he had not been telling the truth and had in fact engaged in the behavior cited by complainant. Thus, the Commission found that there were serious issues of credibility that required the AJ's personal observation of the witnesses' demeanor and conduct. Further, the Commission noted that there was no evidence of exigent circumstances that would require a hearing by telephone. Accordingly, the Commission remanded the matter for an in-person hearing. Garcia, Jr. v. Department of the Army, EEOC Appeal No. 01A40660 (September 28, 2006). (See also, the Spring 2006 Digest, for a more detailed discussion of the Commission's seminal decisions regarding the taking of testimony by telephone. -Ed.)
Complainant Not Subjected to "English Only" Rule. Complainant (Hispanic) alleged that she was discriminated against when she was instructed not to speak Spanish, and that the agency's Language Guidelines for the Workplace only permitted employees to speak Spanish at lunch and on breaks. An AJ found that the agency's Language Guidelines permitted employees to speak other languages virtually at all times so long as it did not interfere with the agency's operations. Thus, the record failed to show that complainant was subjected to an "English only" rule. Further, while complainant was told to speak English by a supervisor on one occasion, the supervisor gave the instruction because another employee, to whom complainant was speaking, did not speak Spanish. Complainant did not receive any discipline, or otherwise suffer any adverse action as a result of the incident. Vindas-Krych v. United States Postal Service, EEOC Appeal No. 01A45939 (August 31, 2006).
Age Discrimination Found in Nonselection. Complainant alleged that the agency discriminated against her based on age, 61, when she was not selected for the position of Technical Expert (TE), in favor of a much younger applicant (the selectee, 41). An AJ agreed, concluding that witness testimony supported the finding that the responsible management official (RMO) did not work directly with the selectee and did not personally observe the selectee's ability to perform the functions he purportedly relied upon. The AJ further concluded that RMO attempted to provide misleading information by suggesting that complainant's backlog and other performance issues created a basis for not selecting her. However, the record revealed that any alleged backlog or performance problems took place several months after the selection.
In addition, documentary evidence showed that complainant's work experience and awards were at least equal, if not superior, to the selectee's. Further, complainant possessed the same important qualities that RMO relied on in choosing the selectee. Moreover, the AJ noted that complainant's application contained information regarding her numerous performance awards, while the selectee's application did not contain such information. While the agency argued that the selectee had as many performance awards as complainant, the Commission noted that RMO was not aware of the selectee's performance awards at the time he chose the selectee.
With regard to discriminatory animus, the AJ concluded that RMO consistently selected younger applicants during the relevant period, e.g., RMO chose a 40-year-old external applicant over complainant, without an interview, and without having any first-hand knowledge of that selectee's work experience. The Commission found sufficient evidence in the form of testimony and documentation to establish that RMO consistently selected younger applicants over older ones.
By way of relief, the Commission ordered the agency to offer complainant the TE position or a substantially equivalent position, including any career ladder promotions she would have received had she accepted the TE position; back pay retroactive to the date of her nonselection, with interest, including seniority; expected promotions; cost of living and step increases; and appropriate benefits. (The Commission noted that compensatory damages and attorney's fees were not available to complainant under the ADEA.) Hawkins v. Social Security Administration, EEOC Appeal No. 07A50100 (July 7, 2006).
Disability Discrimination Found for Denial of Reasonable Accommodation to Hearing-Impaired Employee. Complainant cited several instances in which an interpreter was not provided to him during safety talks. During some occasions, the agency conducted "emergency" safety talks regarding anthrax as well as the events of 9/11.
The agency found complainant to be a qualified individual with a disability. In finding, however, that it did not discriminate against complainant, the agency noted that a sign-language interpreter was made available to complainant once a week so that he could participate in weekly service/safety talks. However, occasionally, the agency was required to give safety talks "immediately," which precluded the agency from obtaining an interpreter. Further, since complainant worked 11:00 p.m. to 7:30 a.m., it was difficult to obtain an interpreter for those hours. The agency also averred that complainant had been assisted in the past by co-workers. Additionally, when videos or interpreters were unavailable, the agency either provided complainant with a transcript of the meeting or an interpreter within 6-7 days.
The Commission found that denying complainant information with regard to possible health risks "during such turbulent times, which, for other hearing employees was urgently provided, was 'inexcusable.'" The Commission rejected the agency's assertion that other postal employees were available to assist complainant, in the absence of particulars as to the nature of the assistance and whether it was an effective accommodation. The Commission found provision of a transcript to be an ineffective accommodation, as it had ruled in a past decision involving complainant, since it did not provide complainant an opportunity to ask questions or take part in discussions. Finally, the agency did not explain why it would be an undue hardship to provide an interpreter on complainant's tour.
EEOC also rejected the agency's good-faith defense, and ordered the agency to conduct a supplemental investigation into complainant's entitlement to compensatory damages. Bratsch v. United States Postal Service, EEOC Appeal No. 01A400695 (September 15, 2006).
Commission Rejects Agency Argument that OPM Determined that Complainant was Medically Unsuitable for Position. (The underlying facts in this matter are set forth in extensive detail in the Summer 2006 issue of the Digest. -Ed.) The agency stated that OPM was the only agency with the authority to make the final decision on whether an agency could "pass over" an applicant who was veteran-preference eligible with a service-connected disability of 30% or more. OPM issued a final decision that complainant was not qualified for the Sandblaster position.
The Commission cited its precedent holding that, when a government agency decides to "pass over" for a position an applicant who is a veteran, while the decision has to be sustained by OPM, the agency that makes the initial decision to deny employment is liable for any actions of discrimination.
The Commission also found unpersuasive the agency's assertion that EEOC had engaged in impermissible fact finding. The Commission found that it had made permissible conclusions of law based on record evidence when it found the following: (1) the essential functions of complainant's Aircraft Worker position for a government contractor were equivalent to the Sandblaster position; (2) Doctor B and Supervisor A-1, who determined that complainant presented a direct threat, did not consider the fact that he had already worked in conditions similar to the Sandblaster position; (3) hiring complainant would not have posed a direct threat either to his safety or that of his co-workers; and (4) Doctor B's statements were contradictory and created the appearance that the Doctor's recommendations to Supervisor A-1 were not based on whether complainant posed a direct threat, but instead on a concern that attempting to remove him in the future would be a problem for the agency.
The Commission ordered the agency to offer complainant a position as Equipment Cleaner or a substantially equivalent position; back pay and other benefits. The Commission remanded the issues of compensatory damages and attorney's fees and costs to the Hearings Unit of the EEOC's Charlotte District Office. Smith v. Department of the Navy, EEOC Request No. 05A60898 (October 12, 2006).
Failure to Provide Reasonable Accommodation. The Commission initially found that complainant, who could lift no more than five pounds continuously and 10 pounds intermittently, was an individual with a disability. The Commission found that the agency failed to provide complainant with reasonable accommodation for approximately one month. After being off from work for a period of time, complainant was advised by her supervisor that she could be accommodated in the In-Plant area in which she had been working. When complainant attempted to return to work, however, she was told by the Acting Manager of the Injury Compensation Office that she could not work in that area. Complainant was reassigned to a different facility. The Acting Manager did not consult with complainant's supervisor prior to ordering her reassignment, and complainant asserted that the duties were outside of her medical restrictions.
Further, the evidence showed that complainant could have continued to work in the In-Plant area and that management was willing to accommodate her there. Thus, the Commission concluded that the agency failed to reasonably accommodate complainant when it reassigned her. The agency was ordered to pay complainant $25,000 in proven compensatory damages and provide training to the Acting Manager of the Injury Compensation Office. Zobel v. United States Postal Service, EEOC Appeal No. 0720050035 (November 28, 2006).
Race Discrimination in Denial of Cash Award . All administrative employees except complainant, the only African-American, received awards in the relevant year. While the agency asserted that employees received awards every other year, with complainant receiving an award the year before, an agency official stated only that it appeared to be management's "style" to do so after he made a chart of awards given over several years. Further, although the agency cited concerns about complainant's performance and leave and attendance issues, the management official failed to mention that those issues played any role in the denial of an award. The agency was ordered to pay complainant the cash award she would have received and make an appropriate notation in her records. Cleveland v. Department of Justice, EEOC Appeal No. 07A60018 (June 19, 2006).
Gender Discrimination. The Commission found that complainant was subjected to gender discrimination when she was not selected for the position of Assistant Project Superintendent. According to the record, the Recommending Official reviewed the applications and submitted recommendations to a Leadership Council. However, in this case, none of the members of the Council was able to state with any certainty how the candidates were ranked, what was discussed with regard to various candidates, or even which members of the Council were present. Further, with a single exception, the Council members were unable to articulate the reasons the selectees were chosen over complainant. The Commission also noted the lack of documentation regarding the selection process and concluded that the agency failed to articulate a legitimate, nondiscriminatory reason for complainant's nonselection. The agency was ordered to retroactively promote complainant to the position, with appropriate back pay and benefits. Rodgers v. Department of the Navy, EEOC Appeal No. 01A54171 (September 19, 2006).
Same-Sex Harassment Found . The Commission found that, for approximately two years, complainant was subjected to sexual harassment when his co-workers and supervisors made inappropriate comments and gestures suggesting that he was homosexual. The Commission noted that the sexually-explicit remarks were based on his sex. Further, the presence of the sexually-explicit comments and graffiti directed at complainant, after he indicated that he found them offensive, were sufficiently severe and pervasive to create a hostile work environment. In addition, the agency failed to take effective remedial action even though it knew of the hostile environment. While complainant informed a management official of the incidents several months after they began, the official stated that he believed it to be a falling out between friends and essentially did nothing in response.
Further, after complainant again reported the harassment, the official did not take any serious action such as counseling the individuals involved or follow up to ensure that the comments had ceased. Finally, while the official contacted internal affairs after being advised of the graffiti, he was told that they could not take action without knowing the identities of the persons responsible; and the official took no further action to investigate the matter. Employees continued to make comments regarding complainant and graffiti continued to appear. Thus, the Commission concluded that the agency failed to take effective remedial action to end the harassment. The agency was ordered to pay complainant $5,000 in damages and attorney's fees, as well as distribute a written statement reiterating its sexual harassment policy. Cano v. Department of Homeland Security, EEOC Appeal No. 07A40081 (August 2, 2006).
Per Se Discrimination Found in Retaliatory Harassment. The Commission found that complainant was subjected to per se discrimination when her supervisor did not allow her to see her union representative to report alleged discrimination. Complainant had asked to see her representative on several occasions regarding an issue of reasonable accommodation (complainant had filed a complaint under both Title VII and the Rehabilitation Act); however, her supervisor either denied her requests or delayed the meeting until near the time complainant was to leave work. Further, her supervisor made various harassing statements to complainant, including asking complainant when she would bid out of the unit and reprimanding her for going to the workers' compensation office. The Commission noted that by violating complainant's right to pursue remedies for possible discrimination, the agency's actions constituted retaliatory harassment. The agency was ordered to pay complainant $3,000 in damages and take appropriate action to ensure that retaliation did not recur. Lee v. United States Postal Service, EEOC Appeal No. 01A51082 (July 7, 2006), request for reconsideration denied, EEOC Request No. 0520060971 (September 11, 2006).
Agencies Joined as Respondents . Complainant, while on duty at a facility of the United States Postal Service (USPS), was allegedly harassed by an employee of the Department of Homeland Security (DHS). Complainant alleged that the DHS employee made numerous racially and sexually derogatory statements and gestures toward her in the workplace. The Commission found that the alleged remarks, coupled with the DHS employee's alleged gestures and sexual touching, were sufficiently severe or pervasive to alter the conditions of complainant's employment such as to state a claim of harassment. The Commission ordered both USPS and DHS to process the remanded claims. Hendrix v. United States Postal Service, EEOC Appeal No. 01A60041 (February 27, 2006).
(In the following cases, the Commission found that complainant met the definition of "employee." See also, "Stating a Claim," this issue. -Ed.)
Agency Found to Be Joint Employer. Complainant worked as an occupational therapist for the agency and received agency-specific training, as well as equipment, supplies, and workspace from the agency. She filed a complaint alleging that she was subjected to gender discrimination when she was asked to change her time and attendance and ultimately was terminated. The Commission noted that, while a private management services firm listed complainant on its payroll; withheld taxes; and provided insurance and retirement benefits, the agency exercised sufficient control over complainant's employment to qualify as a joint employer. Specifically, the agency provided training, supervision, workspace, and equipment, and maintained careful records of complainant's hours and absences. Further, an agency supervisor exercised considerable supervisory authority over complainant. Finally, the agency's policy for occupational therapists stated that the contract was intended to create an employer-employee relationship between the agency and the care provider. Chamberlain v. Department of the Army, EEOC Appeal No. 01A61315 (June 26, 2006).
Complainant Qualifies as Agency Employee. Complainant, a physician, was hired as a fee-based practitioner, working under a subcontractor agreement to provide medical examinations for the agency. She filed a formal complaint raising various issues of gender and reprisal discrimination. The Commission found that the agency exercised sufficient control over complainant's position for complainant to qualify as an employee for purposes of Title VII. Specifically, complainant was required to perform her duties in accordance with agency policies and regulations, and work under the general supervision of the agency's Chief Medical Officer. Further, complainant was required to abide by agency bylaws and medical regulations with regard to training, maintenance of records, her performance evaluation, and release of medical information. Finally, the agency paid complainant's wages, provided her with a worksite, materials, equipment, and supplies, and made determinations about her scheduling. Gaines v. Department of the Army, EEOC Appeal No. 01A53152 (July 6, 2006).
Background Claims Not Mixed . The Commission reversed an AJ's finding that discrimination claims (assignment beyond medical restrictions and denial of work on a bid assignment), which led to alleged constructive discharge, were inextricably intertwined with a mixed case appeal before the Merit Systems Protection Board (MSPB). The Commission cited to an amendment to its Management Directive 110, Management Bulletin 100-1 (October 24, 2003), stating that a series of non-mixed events leading to a claim appealed to the MSPB are not in themselves appealable to MSPB. Rather, these claims are background for the MSPB case and the Commission has jurisdiction to process them. The Commission remanded the matter for a hearing before an EEOC AJ. Greenidge v. United States Postal Service, EEOC Appeal No. 01A52532 (September 27, 2006).
Petition Granted . The Commission granted complainant's petition for enforcement, finding that he was entitled to back pay until the date on which he returned to work. In the previous appellate decision, the Commission affirmed the AJ's finding that complainant had been subjected to discrimination based on his religion, age, disability, and prior EEO activity when he was terminated. The Commission ordered the agency to reinstate complainant (petitioner) and pay him appropriate back pay and benefits. While the agency asserted that petitioner was entitled to back pay only for the period ending with an Arbitrator's award of reinstatement without back pay, the Commission concluded that petitioner was in fact entitled to back pay until the date on which he was returned to work. Arnow v. United States Postal Service, EEOC Petition No. 0420060018 (November 16, 2006).
Purpose of Ordering Training is Instructive, Not Punitive . In a case involving pregnancy discrimination, an AJ found that complainant had been subjected to a hostile work environment based on her gender and awarded her $30,000.00 in compensatory damages. The agency adopted the AJ's decision but rejected implementation of the AJ's order to provide training to supervisors, managers, and employees. The Commission affirmed the AJ's order that all personnel at the facility receive training because the responsible management official's (RMO's) conduct was observed by many and continued unabated. Therefore, it appeared that staff at the facility was not aware that the RMO's conduct violated the Pregnancy Discrimination Act. The Commission concluded that the purpose of training was not to punish individuals for past discriminatory conduct, but to educate personnel to ensure the rights of pregnant individuals to be free from unlawful harassment. Wade v. Department of Justice (Bureau of Prisons), EEOC Appeal No. 07A60057 (May 6, 2006), request to reconsider denied, EEOC Request No. 05A60813 (August 23, 2006).
Offer of New Position Must Be "Agreeable" to Complainant Under AJ's Order . An AJ found that complainant, a PS-6 Clerk at the agency's Lancaster, Pennsylvania (PA) District Office, was discriminated against on the basis of age when she was not selected for the position of Secretary, Operations Program Support (OPS) in the Lancaster District Office (the Position). By way of relief, the AJ ordered, in relevant part, that the agency must place complainant in the position of OPS or a comparable position within a reasonable commuting distance from her home, or into a comparable position in a location within the agency that is agreeable to complainant. The AJ stated that this included, but was not limited to, the Lancaster (PA) District or facility or the Harrisburg (PA) District or the Philadelphia (PA) District, since the Lancaster District would be or had been divided due to a reorganization within the agency between the Harrisburg District and the Philadelphia District.
The agency issued a final order adopting the AJ's decision and offered to place complainant in the position of Secretary to the Postmaster at the Harrisburg District Office (New Position). Complainant accepted the position, subject to three conditions: (1) no loss of seniority rights; (2) no loss of retreat rights for one year; and (3) reimbursement for the additional mileage for complainant's commute between her home and the Harrisburg facility for one year. The agency rejected these conditions and complainant appealed to EEOC.
On appeal, complainant argued that, if she was not permitted to keep her current seniority and retreat rights, and if she was not reimbursed for additional mileage, the New Position offered by the agency was not substantially equivalent to the Position. Specifically, complainant claimed that a transfer would adversely affect her eligibility for vacation, bidding on other positions, and other job benefits. Complainant disputed the agency's contention that the Position would have been "excised&" due to the consolidation or that it would violate the Collective Bargaining Agreement (CBA) to afford complainant the seniority rights she requested. Complainant argued that, under the CBA, when one installation is consolidated with another installation, each employee shall be involuntarily reassigned to the continuing installation without loss of seniority in the employee's craft or occupational group. Complainant averred that this CBA provision was applicable to the Position in the instant case because the Lancaster District was consolidated with the Philadelphia and Harrisburg Districts. She argued that she was entitled to the same retreat rights she had in her current position, and would have had in the Position absent the discrimination.
In response to complainant's appeal, the Commission found, in pertinent part, that the agency had failed to comply with the AJ's order to place complainant in a PS-6 Secretary OPS position "agreeable to her," in terms of its location. The Commission found that the offer of the New Position was not agreeable to complainant because the agency had rejected her conditions that she retain her seniority and retreat rights and be paid mileage for the extra 300 miles added to her commute each week. Further, the Commission found complainant's concerns to be reasonable.
The agency requested the Commission to reconsider its previous decision, arguing in relevant part that, had complainant been awarded the Position, it would have been eliminated when the Lancaster District was merged. She would have been reassigned, at that time, to the Lancaster Plant, as an unassigned regular clerk. The agency argued that the "agreeable" requirement was contrary to the Commission's regulations and previous rulings that the position be a "substantially equivalent" position.
In denying the agency's request, EEOC noted that the AJ's decision required the agency to place complainant not only in a position "comparable" to the Position in terms of duties, but also required that the position be "agreeable" to complainant, in terms of its location. The Commission opined that, if the agency disagreed with the AJ's remedies, it should have filed an appeal pursuant to EEOC's regulations. However, the Commission pointed out, in its Final Action the agency stated that it would implement the AJ's decision. The Commission therefore ordered the agency to place complainant in a PS-6 Secretary OPS position, or comparable secretarial position in a location within a reasonable commuting distance from the complainant's home, or any other location agreeable to complainant with the agency including, but not limited to, the Lancaster District or facility, the Harrisburg District, or the Philadelphia District. Black v. United States Postal Service, EEOC Request No. 0520050180 (December 11, 2006).
Sanctions Upheld . Complainant filed a formal complaint alleging discrimination on various bases and requested a hearing before an AJ. The AJ, however, dismissed complainant's request for a hearing, stating that she failed to respond to an Acknowledgement and Scheduling Order instructing her to file various pre-hearing submissions. The Commission found the sanctions proper, noting that the AJ issued a Show Cause Order and complainant failed to show good cause for her failure to comply with the AJ's order. Martin v. United States Postal Service, EEOC Appeal No. 01A62069 (June 16, 2006).
Agreement Void . The Commission found that the settlement agreement into which the parties had entered was void for lack of consideration. The agreement provided for the agency and complainant to arrive at a list of duties that he could perform. Given that the agency's duty to provide a detail assignment was triggered only once the parties established the list of duties, the consideration was illusory and the agreement merely "an agreement to agree." Thus, the Commission ordered the agency to reinstate the complaint for processing. White v. Department of the Air Force, EEOC Appeal No. 01A62145 (July 18, 2006).
Mutual Mistake Renders Agreement Unenforceable . The parties agreed that, after complainant submitted documentation to show that his daughter was temporarily disabled under the Rehabilitation Act, on a specific date, a named agency employee would enter a leave adjustment to enable complainant to use sick leave for dependent care instead of annual leave. The employee would also work with her (the employee's) management team to ensure that employees received Family Medical Leave Act (FMLA) packages and to verify that children were under 18, or over 18 with a disability covered by the Rehabilitation Act, in order for sick leave to be used for dependent care. After complainant submitted medical documentation, the agency determined that his daughter was not disabled and, therefore, complainant was not entitled to leave under the FMLA, which provided for dependent care leave for minor children or children over 18 who are disabled. Complainant alleged that the agency breached the agreement when it did not reinstate eight hours of sick leave that he had used for the emergency care of his daughter.
On appeal, the Commission determined that the agreement was void as a matter of law. Specifically, the Commission found the agreement to be unenforceable because the parties erroneously assumed that the Rehabilitation Act offered guidelines for "temporary" disabilities. Thus, because of the mutual mistake that was material to the agreement, it was impossible for there to be compliance with its terms. Fowble v. United States Postal Service, EEOC Appeal No. 01A60527 (July 20, 2006).
Breach Found When Confidentiality Provision Violated . Complainant and the agency entered into a settlement agreement, which stated in relevant part that the parties agreed to keep the terms of the agreement confidential except as otherwise required by law and necessary to carry out the terms of the agreement. The Commission found that the RMO violated the confidentiality provision when he sent cover letters to other agency officials that used language which implied that a settlement agreement may have been the reason for the RMO's transfer recommendation. Further, the Commission found that the cover letter copied verbatim the terms of the agreement and determined that it unnecessarily revealed the existence and contents of the agreement and undermined the efficacy and purpose of the transfer recommendation. Due to this and other breaches of the agreement, the agency was ordered to reinstate complainant's EEO complaint for processing. EEOC also noted that complainant was not entitled to any relief other than that contained in the Commission's order to remedy the breach; however, as complainant was a prevailing party, she might be entitled to attorney's fees related to the adjudication of her breach provision. Dunning v. United States Postal Service, EEOC Appeal No. 01A52506 (June 13, 2006).
Intervening Events Negate Compliance Requirement . In the previous decision on complainant's settlement agreement breach claim, the Commission found that the agency had breached multiple provisions of the agreement and remanded the complaint to be reinstated. In its request for reconsideration, the agency argued for the first time that a subsequent settlement agreement between the parties released the agency from all of complainant's pending claims. Although the Commission denied the agency's request, EEOC found that, in light of the intervening events, the agency was not required to comply with the order set forth in the previous decision. Greene v. United States Postal Service, EEOC Appeal No. 01A54924 (November 15, 2005), request for reconsideration denied, EEOC Request No. 05A60369 (February 7, 2006).
Breach Found When Agency Fails to Comply With Plain Meaning of the Agreement's Language . The settlement agreement provided that complainant would attempt to bid on five or more positions as they became available. She would withdraw all of her existing complaints of discrimination if she received a bid position by December 21, 2004. Complainant alleged noncompliance when she did not receive a bid position and her complaints were not reinstated. The Commission found lack of agency compliance because the jobs complainant bid on were contingent on her passing qualifying examinations, which she failed. The Commission found that the plain meaning of "receive a bid job by December 31, 2004," in the agreement, was being awarded the position and not, as occurred, merely being conditionally offered the job. The Commission ordered the agency to reinstate complainant's EEO complaint for processing from the point at which processing ceased and to otherwise treat the settlement agreement as null and void. Wray v. United States Postal Service, EEOC Appeal No. 0120063964 (November 20, 2006)
Breach Found, Reinstatement of Complaint Ordered . According to the settlement agreement, complainant, a supervisor, was to work on a route inspection team for approximately six to seven months and then be assigned other duties. The Commission found that the agency was not in compliance with the settlement agreement when it placed complainant on a route inspection team for only two days. While the agency initially placed complainant on a route inspection team, it cancelled the action after two days. The Commission noted that the agency failed to show why it did not place complainant on a subsequent team. The Commission found that, while complainant's placement on the team was not intended to be permanent under the agreement, two days was far less than the six to seven months stated. While complainant sought specific performance of the agreement's terms, she also sought reinstatement of her complaint. The Commission found the latter to be the more appropriate remedy. Driscoll v. United States Postal Service, EEOC Appeal No. 01A52063 (July 21, 2006).
Breach Found: Specific Performance Ordered . The Commission found that the agency had failed to formulate a method whereby work was equitably distributed among staff, including complainant, as required by the settlement agreement. Complainant had alleged that the formulation favored a female co-worker and that he had less of a particular assignment than he had when he filed his formal EEO complaint. EEOC found that the agency altered complainant's duties after terms of the agreement were implemented, but did not alter coworkers'. The Commission ordered the agency to reformulate its method whereby all work was equitably distributed among staff, including complainant. Heckathorn, Jr. v. Department of the Interior, EEOC Appeal No. 01A60365 (September 13, 2006).
(In the following decisions, the Commission found that complainants' claims were cognizable. -- Ed.)
Chamberlain v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006); and Gaines v. Department of the Army, EEOC Appeal No. 01A53152 (July 6, 2006) (The underlying facts are discussed above under "Jurisdiction." -- Ed.)
Ortiz v. United States Postal Service, EEOC Appeal No. 01A60803 (April 18, 2006) (claims that the RMO threw complainant's chair; yelled, screamed and swore at him; among other acts of violent or intimidating behavior, sufficient to create hostile work environment.)
Downs v. Department of Transportation , EEOC Appeal No. 01A55432 (February 6, 2006) (cancellation of vacancy announcement, while not ordinarily actionable, is cognizable where complainant claims the cancellation was done for a discriminatory motive, in this case alleged age discrimination.)
Moreno , Jr. v. United States Postal Service, EEOC Appeal No. 01A61143 (May 24, 2006) (claim of harassment actionable where complainant learns that his supervisor allegedly engages in repeated attempts to turn people against him, including telling personnel that complainant was a thief and a liar.)
(In the decisions below, the EEOC found that complainant's claims were not cognizable.-Ed.) Durand v. Department of Health and Human Services, EEOC Appeal No. 01A62558 (August 9, 2006) (closing of vacancy announcement and not re-advertising it is not actionable; but cf. Downs v. Department of Transportation, cited above.-Ed.)
Loyd v. Department of the Army, EEOC Appeal No. 01A60406 (July 18, 2006), request to reconsider denied, EEOC Request No. 05A61005 (September 15, 2006) (rescission of employment based on unfavorable pre-employment security review; Commission precluded from reviewing requirement for security clearances and substance of determinations of security clearances.)
Robinson v. Department of Veterans Affairs, EEOC Appeal No. 01A62801 (August 3, 2006) (statement by doctor, who came up to complainant's desk, that he was there "to give a semen sample," while inappropriate comment to her, did not rise to the level of actionable harassment.)
Caudill v. Department of the Navy, EEOC Appeal No. 01A53574 (July 28, 2006) (agency description of complainant's employment status to finance company, resulting in higher interest rate on his loan, did not cause harm to term, condition or privilege of employment for which there was a remedy.)
Laches Applied . On May 5, 2005, complainant initiated contact with an EEO Counselor, claiming that, on March 19, 1982, management at the activity failed to authorize her claim for disability retirement. In affirming the agency's dismissal of her complaint on the grounds of untimely EEO Counselor contact, the Commission applied the doctrine of laches, an equitable remedy, and found that complainant failed to act with due diligence. Further, complainant provided no persuasive evidence to justify waiving the applicable time limitation of 45 days, where her EEO contact came 13 years after the alleged incident. Rodillas v. Department of the Navy, EEOC Appeal No. 0120060436 (November 15, 2006).
Laches Not Applied . (The substance of this case was discussed under "Settlement Agreements," above. -Ed.) The agency argued that complainant did not timely raise her claim of breach and was well aware of the time limit, as it was stated in the settlement agreement. The Commission declined to find that complainant failed to meet regulatory timeliness requirements because the record did not show that she had notice of them. Specifically, the Commission found that the settlement agreement language referred to by the agency did not notify complainant of the 30-day time limitation within which to raise claims of noncompliance with the agency; nor did the agency's letter to complainant, finding that it was in compliance with the agreement, contain appeal rights to the Commission. Moreover, the Commission found that complainant did not wait so long that laches would attach to her appeal. Wray v. United States Postal Service, EEOC Appeal No. 0120063964 (November 20, 2006).
Reasonable Suspicion . Complainant suffered a break in service because her selection papers were not timely processed, causing her to lose pay retention rights. She filed an EEO complaint alleging gender discrimination. The agency dismissed the complaint on the grounds that complainant failed to contact an EEO Counselor in a timely manner. On appeal, the Commission noted that, while complainant learned that she had lost her pay retention rights in October 2005, she was told later that management had timely processed selection papers for two male employees who avoided the loss of "safe pay." Thus, complainant did not reasonably suspect discrimination until that time. Lampi v. Department of Transportation, EEOC Appeal No. 01A62261 (June 16, 2006). See also, Hill v. Department of the Air Force, EEOC Appeal No. 01A62164 (June 26, 2006) (complainant received alleged discriminatory performance appraisal in February 2004, and was told the rating would not be changed; however, in September 2005, she learned management changed the evaluations of several co-workers; thus, her October 6, 2005 EEO contact was timely.)
In Tellez v. Department of the Army,1 the Commission found that complainant was subjected to age discrimination when he was not selected for the position of Supervisory General Engineer. Complainant, a 59-year-old Missile Engineer, applied for the position through agency's automated resume system. Subsequently, the agency chose a younger individual (selectee) for the job. The Selecting Official stated that he considered each candidate's ability to manage a large and complex organization, as well as their engineering experience, and based his decision on his personal knowledge of each candidate's work history. However, the Selecting Official acknowledged that he did not conduct interviews, and did not have documentation to support his selection. Further, the highest ranking management official at the facility (Technical Director) referred to discussions regarding the aging workforce, gaps in technology knowledge, and the need to bring in new employees. The Technical Director stated that he told all Directors that it was an issue of getting "younger blood" into the organization primarily, at the entry level, to fill the voids that were being left by people who were retiring.
The Commission found direct evidence of age discrimination. The Technical Director stated that the agency specifically sought to hire younger employees into entry level positions, and stated that younger people are more intelligent and technologically savvy than those in older age groups. Further, the Selecting Official had been heard to espouse a policy of hiring and promoting "younger blood," and pressured others to select younger employees for promotions and certain assignments. The Commission further noted that senior managers considered age an important factor in employment decisions as part of the agency's"succession plan," and conveyed that sentiment to middle and lower management. Nevertheless, the Commission found little evidence that the agency engaged in the sophisticated analysis needed for proper succession planning as detailed by the Office of Personnel Management. Instead, management officials simplistically developed the view that succession planning meant that younger employees were better than older employees, and used age as a barrier in its promotion decisions. The Commission then concluded that the agency failed to prove, by a preponderance of the evidence, that it would have made the same decision even if it had not considered the impermissible factor of age. As noted, although the Selecting Official stated that he considered a number of criteria in reviewing the candidates' applications, the record lacked objective evidence to support the selection. Further, the record showed that the Selecting Official espoused a policy of hiring and promoting younger employees within the agency.
The complainant, in Carver v. Department of Justice,2 alleged that his age (46 years) was the determinative factor in the agency's decision not to select him for the position of Assistant United States Attorney (AUSA). According to the record, complainant worked as an AUSA for nine years, and retired from the Fraud Unit in 1994. In 1996, complainant met with the Selecting Official and advised her that he was interested in returning to the office, and applied for the subject position. Complainant was chosen as one of five finalists, and interviewed by the Selecting Official and a seven-member hiring committee. The Selecting Official stated that she did not consider complainant further because she was dissatisfied with his performance during the interview. However, four or five members of the hiring committee recommended complainant for the position. Subsequently, the Selecting Official chose another candidate who was 13 years younger than complainant.
On appeal, the Commission ultimately found that the reason given by the agency for complainant's non-selection, that is his performance during the interview, was a pretext for age discrimination. According to the record, there were no witnesses present when the Selecting Official interviewed complainant. Further, the Administrative Judge found that the Selecting Official's testimony, that complainant's performance during the interview was a major consideration in her decision, was not credible. Specifically, a former agency employee testified that the Selecting Official advised him, prior to the interview, that she would not rehire complainant, stating that there were enough people in the office with complainant's level of experience. Further, the Commission noted that the Selecting Official repeatedly stated that she wanted to create a "junior varsity" category of attorneys who would come into the office with less experience and who were not close to retirement. The Selecting Official also described the Fraud Unit as a group of employees with lengthy tenures, who were too slow, and had done their work in a particular way for a long time and did not want to change. The Commission noted that this description amounted to a virtual list of common stereotypes of older workers. Thus, the Commission concluded that the record showed that complainant was not selected for the position because of his age.
The complainant, in Jennings v. Department of the Navy3, was terminated during his probationary period following an altercation with a co-worker. According to the record, complainant, who was 55 years old, pushed the co-worker after he called complainant a name and came within inches of complainant's face with his fists clenched. The co-worker then tripped and fell. The Director initially decided to discipline both employees. However, the Director left the facility shortly thereafter, and the Deputy Director terminated complainant and imposed no discipline on the co-worker. While the agency asserted that complainant was the aggressor in the incident, the record showed that the co-worker had repeatedly directed improper conduct towards complainant, such as addressing complainant as "old man," and "grandpa," sticking his finger in complainant's face, and attempting to run into complainant with a forklift. Complainant and other employees reported the incidents to the supervisor, who merely advised complainant that he would have to learn to "live with" the behavior. The Commission noted that management had ample opportunity to initiate an investigation or disciplinary proceeding against the co-worker for his ongoing harassment of complainant, but chose to do nothing. Further, the evidence showed that, as to the incident in question, it was the co-worker who was the instigator of the altercation. Finally, shortly before complainant's termination, the Deputy Director attended several management meetings that included discussions about the need to reduce the age of the workforce at the facility. Thus, the Commission found that complainant was subjected to age discrimination with regard to his termination.
In Kruecke v. Department of Veterans Affairs,4the Commission found that complainant was subjected to age discrimination when she was denied performance opportunities and forced to resign. Complainant, a 67-year- old Staff Nurse, began working under a new supervisor in 2002. Subsequently, for the first time in her career, complainant received a critical performance appraisal, and was placed on a performance improvement plan for 60 days, during which time agency managers observed her work on the computerized record keeping and medication tracking systems. The individuals who observed complainant's work recommended that she receive additional training. The supervisor, however, failed to provide her with training as recommended, and issued her a notice of proposed discharge. Complainant chose to retire in lieu of being terminated.
On appeal, the Commission noted that a younger nurse who experienced similar performance problems was provided with additional training opportunities. In addition, the record showed that the agency exaggerated the depth of complainant's performance deficiencies, and kept critical information from her, such as one of the observer's assessment and recommendation to improve her computer skills. Several witnesses testified that complainant's overall job performance was good, and her prior appraisals indicated that her performance was acceptable before the supervisor's arrival. The Commission found it unlikely that complainant's performance changed as soon as she began working under the supervisor. The Commission also noted that the supervisor's conclusion that complainant would not benefit from additional training, while younger employees would indicates that the agency's stated reason for deciding to terminate complainant was a pretext for age discrimination. The Commission concluded that complainant's retirement was involuntary, as she was pressured into deciding whether to retire or face termination and the loss of health insurance and benefits.
The complainant in Crosby v. Department of the Army,5 alleged that he was subjected to age discrimination when he was not selected for an Interdisciplinary position. Complainant, who was 52 years old, applied and was found qualified for the position. On appeal, the Commission found that complainant's qualifications were observably superior to those of the selectee, who was under 40 years of age. Specifically, complainant had served in various positions with the agency, including being a Team Leader. In addition, complainant received the highest performance rating in his most recent appraisal. The selectee, on the other hand, had significantly less experience than complainant. In addition, the Commission found conflicts in the statements of management officials concerning the reasons for complainant's nonselection. Thus, the Commission concluded that the reasons offered by the agency for the action were a pretext for age discrimination.
In Cameron, et al. v. USPS,6 the Commission found that the five complainants were not subjected to age discrimination when the agency abolished the unit they had been working in, and returned them to their regular assignments. The five complainants were working in the Collections Unit at the time of the action in question. According to the agency, senior managers made the decision to abolish the Unit, which it referred to as "an anomaly," and which consisted of employees in various crafts. Complainants were then reassigned within their crafts in accordance with the Collective Bargaining Agreement.
The Commission initially found that complainants failed to show that the abolishment of their jobs in the Collections Unit resulted in a disproportionate adverse impact on individuals on the basis of age. Citing the Supreme Court's decision in Smith, et al. v. City of Jackson, Mississippi,7 the Commission noted that the ADEA does authorize recovery, in disparate impact cases, comparable to Title VII. The Commission, however, found that complainants failed to establish a prima facie case under the disparate impact theory. The Commission noted that while complainants provided evidence regarding the number and age of employees affected by the abolishment of the Collections Unit, they did not provide any similar evidence as to employees in the District, or at the Processing and Distribution Center.
In addition, the Commission found that complainants were not subjected to disparate treatment discrimination. While there was evidence that a supervisor referred to employees in the Collections Unit as "old and inflexible," the record shows that all employees in that Unit, ranging in age from 36 to 77, were reassigned regardless of their age. Further, the collections function at other facilities was performed as part of a letter carrier's general duties at each station, and, as such, the Collections Unit at complainants' facility was an anomaly. The record contained testimony that various economic, business, and operational factors contributed to the decision to decentralize the collections function at the facility, and abolish the Unit. The evidence showed that complainants were not assigned collections duties after the Unit was abolished because to do so would have violated other employees' seniority rights. In addition, by decentralizing the collections function, the agency reduced the hours devoted to that task by fifty percent. Thus, the Commission concluded that the complainants failed to show that they were subjected to age discrimination.
1 EEOC Request No. 05A41133 (March 18, 2005).
2 EEOC Appeal No. 07A30025 (August 8, 2005).
3 EEOC Appeal No. 07A50078 (December 29, 2005).
4 EEOC Appeal No. 07A60028 (June 7, 2006), request for reconsideration denied, EEOC Request No. 05A60878 (August 10, 2006).
5 EEOC Appeal No. 07A60038 (July 12, 2006).
6 EEOC Appeal Nos. 07A40130, et al. (September 20, 2005), request for reconsideration denied, EEOC Request Nos. 05A60095, et al. (December 22, 2005).


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subset: commoncrawl


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CAMBRIDGE, Mass. – The Harvard men's water polo advanced to the Collegiate Water Polo Association (CWPA) Eastern Championship with a fourth-place finish at the CWPA Northern Division Championship Nov. 6. In the tournament's third-place game, Max Eliot scored four goals but the No. 6 seed Crimson fell to No. 4 seed Iona, 13-11.
Luka Babic added a hat trick and Max Murphy scored twice to keep Harvard in the game, but the Gaels ultimately pulled away.
Kevin DiSilvestro lent a helping hand at both ends of the pool, tallying two assists and a team-high two steals.
Alexandre Popp, who made 13 saves in each of the championship's first two contests, stopped 13 shots in the loss. The senior also contributed two assists for the Crimson.
In the first round of the CWPA Eastern Championship, No. 4 seed Harvard will face Navy, the CWPA Southern Division champion, Nov. 18 at 2:30 p.m. Harvard will host the entirety of the CWPA Eastern Championship at Blodgett Pool Nov. 18-20.


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10 Reasons Why
A Warm Welsh Welcome
Our staff are long-serving and our clients love us. We pride ourselves on being accommodating, pro-active and easy to deal with.
Park at the door
Parking on site is free, secure and close to the door. We've also got space for helicopter landings as Prince Charles will testify.
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We've forged an exceptional reputation for the consistent excellence of our cuisine as well as the use of local and seasonal produce.
Rooms With A View
We're surrounded by Bute Park, Sophia Gardens and Pontcanna Fields and have the best lawn in Cardiff, fit to stage international cricket.
Ethical Credentials
Sustainable sourcing, a commitment to recycling and a partnership with Keep Wales Tidy – we are caring corporate citizens.
More Space Than Anyone
Our Sophia Hall can host a banquet for 550, plus we've six additional lounges and a further 23 executive boxes perfect for break outs.
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Famous for hosting cricket's most prestigious contests, our true strength lies beyond the boundary, so we're in your corner when it's time to shine.
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We're in central Cardiff. CF11 9XR to be exact – less than one mile from Cardiff Central Station and five miles from junction 32 of the M4.
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Glamorgan Cricket @GlamCricket
Hogan strikes - Worcs 152/4 as Kohler-Cadmore is caught behind with Wallace taking his 8th catch of the match


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We are a team of experienced developers aiming to simplify your Stripe integrations.
We are always ready to help you with custom integrations. Hire us!


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It's not quite a Facebook phone but the first handset with a dedicated button for the social network went on sale on AT&T's website.
The HTC Status will cost $49.99 with a two-year contract and it will come with a button that sends you directly to Facebook.
The phone is not set to hits AT&T and Best Buy stores until July 17 but the cellular carrier has begun taking pre orders.
The dedicated Facebook button is located directly below the keyboard. Once clicked on, it allows users to instantly update statuses or check into a place.
Beyond being the first phone with a dedicated Facebook button it is also the first AT&T handset to run on the Android Gingerbread platform.
It comes complete with a 2.6-inch touchscreen and a 5-megapixel camera with LED-flash.


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Fiscal cliff casts shadow over 2014
Forget the 2012 deadline. Fiscal cliff politics is all about 2014.
The very senators — think Mitch McConnell and Max Baucus — who will be central to a sweeping tax-and-spending deal are the same ones who could face the most difficult reelection bids of their careers, come 2014. Primary threats from the right loom large over Republican senators as they negotiate tax rates. Moderate Democrats also could be squeamish about tax hikes or cuts to Medicare. And whatever tax and spending deal emerges is certain to anger large voting blocs and inspire serious general election opposition.
Story Continued Below
The longer Congress waits, the more intense the political pressure will become — and the harder it will be to reach a major deficit-cutting deal.
Even though the votes haven't been counted for the 2012 election, senators who are both involved in fiscal cliff negotiations and up for election in 2014 are aware that the tough decisions they make now will linger into the next cycle.
"If there's a political price to be paid, if there's capital that needs to be expended in order to save the country, I and my colleagues, I believe are willing to do that," Sen. John Cornyn, the likely next No. 2 Senate Republican who faces reelection in 2014, told POLITICO.
How a deal looks obviously depends on whether Mitt Romney or Barack Obama wins — and on the party leadership in control of the next Senate and House. If Obama wins, Republicans fear they'll be backed into a corner by an emboldened president to push through higher taxes on families earning more than $250,000. But if Romney wins, Congress will have to engineer a short-term agreement with Senate Democratic Leader Harry Reid and House Speaker John Boehner — which is no small task in and of itself — giving the new president time to develop a budget deal of his own.
But the winner of the race for the White House only has so much power — especially over a divided Congress and a Senate that could be tied up by filibusters. That means there must be a bipartisan compromise, a prospect certain to force endangered senators to cast votes with electoral ramifications.
About a dozen senators who could be party to a deal — either because of their leadership spots and committee positions or because they've inserted themselves into the horse-trading so far — are up for reelection in 2014. Their to-do list is a minefield: expiring Bush tax cuts for all income groups; reversing $109 billion in sequester cuts to domestic and defense programs; reinstating jobless benefits; handling the expiring payroll tax cut; and fixing payment rates for physicians serving Medicare patients. And don't forget the national debt ceiling, which will need to be raised in the coming months.
Senior officials in both parties are pessimistic a sweeping deal can be reached by the end of the year. There are ongoing talks about temporarily delaying the fiscal cliff by approving a "down payment" with budget cuts coupled with a process that forces Congress to act by the middle of next year.
So no matter how it shakes out, members of both parties could be forced to cast a series of treacherous votes, much like the unpopular 2008 bank bailout or the 2011 Budget Control Act that paved the way to the sequester Congress is now trying to avoid.


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Paper Presentation #777: Prospective Study of Unplanned Admission to the Intensive Care Unit after Total Hip Arthroplasty
PHILADELPHIA — According to a new study by researchers from the Perelman School of Medicine at the University of Pennsylvania, pre-operatively identifying patients with certain comorbid risk factors that may increase their chance of being admitted to the ICU following total hip replacement surgery results in fewer deaths, post-surgery complications, and unplanned ICU admissions. The full results of the study will be presented at the 2013 American Academy of Orthopaedic Surgeons Annual Meeting this week in Chicago.
"With increased life expectancy and advances in medical care, more geriatric patients are receiving total hip replacements, and often they already have other health issues that may affect their risk of complication following surgery," said Craig Israelite, MD, assistant professor of clinical orthopaedic surgery, and senior author on the study. "By identifying patient characteristics or predisposing factors that may increase the risk of complications, we're able to better prepare to properly care for these patients in a more appropriate setting right from the start."
Pre-operatively identifying patients who would benefit from immediate post-operative admission to the ICU may also allow physicians to minimize family and patient concerns over unanticipated post-operative ICU admission.
The pre-operative model used for the study was developed by an inter-disciplinary team of researchers and identified at-risk patients based on several criteria, including those who were 75 years or older, had a history of heart attack, increased BMI, poor renal function, or were undergoing revision hip surgery. Members of the nursing and hospital administrative staff were also indirectly involved in the study design, resource utilization, and implementation.
Using the prediction tool, researchers were able to schedule an ICU bed in the clinic setting and appropriately adjust resource utilization. Initial results of the study found that using a pre-operative patient-assessment model results in fewer unexpected deaths, a decrease in the rate of complication (down from 12.5 percent to 2 percent), and an overall decrease in the number of unplanned ICU admissions (down from 7.1 percent to 2.2 percent).
Israelite acknowledges resource issues must be considered in an era of cost containment. "ICU care is more expensive than care on a medical-surgical floor. Further study of our criteria may result in a refined ICU admission strategy."
In addition to Dr. Israelite, the study's lead author is Atul F. Kamath MD, former orthopaedic surgery resident at the Perelman School of Medicine, currently completing an adult reconstruction fellowship at the Mayo Clinic.
Penn Medicine is one of the world's leading academic medical centers, dedicated to the related missions of medical education, biomedical research, and excellence in patient care. Penn Medicine consists of the Raymond and Ruth Perelman School of Medicine at the University of Pennsylvania (founded in 1765 as the nation's first medical school) and the University of Pennsylvania Health System, which together form a $4.3 billion enterprise.
The Perelman School of Medicine has been ranked among the top five medical schools in the United States for the past 16 years, according to U.S. News & World Report's survey of research-oriented medical schools. The School is consistently among the nation's top recipients of funding from the National Institutes of Health, with $398 million awarded in the 2012 fiscal year.
The University of Pennsylvania Health System's patient care facilities include: The Hospital of the University of Pennsylvania — recognized as one of the nation's top "Honor Roll" hospitals by U.S. News & World Report; Penn Presbyterian Medical Center; and Pennsylvania Hospital — the nation's first hospital, founded in 1751. Penn Medicine also includes additional patient care facilities and services throughout the Philadelphia region.
Penn Medicine is committed to improving lives and health through a variety of community-based programs and activities. In fiscal year 2012, Penn Medicine provided $827 million to benefit our community.


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Analysis: Fed Likely to Push Back on Market Expectations of Rate Increase
Federal Reserve officials have been trying to convince investors for weeks not to overreact when the central bank starts pulling back on its $85 billion-per-month bond-buying program. An adjustment in the program won't mean that it will end all at once, officials say, and even more importantly it won't mean that the Fed is anywhere near raising short-term interest rates.
Investors aren't listening.
A wide range of indicators suggest that investors are starting to think the Fed might start raising short-term interest rates -- now near zero -- sooner than previously thought. Until recently many market indicators suggested investors expected the first rate increases in mid-2015, but now these indicators indicate investors think it could be sooner.
Prices have been dropping in Eurodollar and fed-funds futures markets, for example, where investors make bets on future short-term interest rates. Those declines suggest investors expect higher short-term rates by late 2014. In the fed-funds futures market, for example, the expected fed funds rate in December 2014 is 0.35%. In the Eurodollar market, investors see 3-month rates borrowing rates rising to 0.67% by December 2014.
A similar message is coming from swaps markets, where the market is pricing in an average 0.37% fed funds rate between June 2014 and May 2015, according to BNP Paribas. That is up from an expected rate of 0.17% in early May.
The fed funds rate -- which is an interbank borrowing rate -- was 0.08% yesterday.
These movements aren't huge and could quickly reverse, but they merit attention.
There are three possible explanations for the movements in expected short-term rates:
1) Money markets are out of whack for technical reasons.
2) The market is pricing in a stronger economy, which it in turn expects to prompt Fed rate increases.
3) Investors are starting to doubt the Fed's commitment to keep short-term rates down.
Many market participants say it is the latter. "The market is saying, 'The fundamental economic outlook really hasn't changed much, but we are getting more worried about Fed policy,'" says Jan Hatzius, chief economist at Goldman Sachs.
Since last December the Fed has been promising to keep short-term interest rates near zero until the jobless rate reaches 6.5%, as long as inflation doesn't take off. Most forecasters don't see the jobless rate reaching that threshold until mid-2015.
At the same time, however, the Fed is talking about pulling back on its $85 billion-per-month bond-buying program. The chatter about pulling back the bond program has pushed up a wide range of interest rates and appears to have investors second-guessing the Fed's broader commitment to keeping rates low.
This is exactly what the Fed doesn't want. Officials see bond buying as added fuel they are providing to a limp economy. Once the economy is strong enough to live without the added fuel, they still expect to keep rates low to ensure the economy keeps moving forward.
It's a point Chairman Ben Bernanke has sought to emphasize before. The Fed, he said in his March press conference and again at testimony to Congress last month, expects a "considerable" amount of time to pass between ending the bond-buying program and raising short-term rates.
He seems likely to press that point at his press conference next week, given that the markets are telling him they don't believe it.


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Vatican City, Oct 31, 2012 / 01:33 pm (CNA/EWTN News).- The Sistine Chapel ceiling is celebrating its 500th anniversary today, and Pope Benedict XVI followed in the footsteps of his predecessor Pope Julius II, who unveiled the masterpiece by saying vespers there.
Pope Benedict said in his Oct. 31 address that he was marking the anniversary of this "liturgical classroom" with vespers because "the works of art which decorate it, especially the frescos, find in the liturgy … their living environment."
"It is as if during the liturgical action, the entire symphony of figures comes alive, certainly in the spiritual sense, but also…in the aesthetic sense," the Pope remarked. "The Sistine Chapel, encompassed in prayer, is even more beautiful, more authentic; it reveals all of its treasures."
He also reflected on what it must have been like to see the ceiling when it was first unveiled on Oct. 31, 1512.
The frescoes exude light, but they are also permeated with the idea of the light of God, the Pope observed.
"That light, with its power, conquers the chaos and darkness to give life; in creation and in redemption. The Sistine Chapel tells the story of light, liberation, salvation; it speaks of God's relationship with humanity," he declared.
Vatican Museums Director Antonio Paolucci described the Sistine Chapel as having "a fatal attraction."
"It is an object of desire, that essential point of arrival … for migrants of so-called 'cultural tourism,'" Paolucci said in an Oct. 30 L'Osservatore Romano article.
Despite concerns about damage caused by the presence of some five million visitors per year, he explained that the chapel will remain open to the public.
In the meantime, measures will be taken to preserve the frescoes, which Michelangelo spent four years painting (1508 to 1512).
"However it is necessary to implement the most advanced technological provisions capable of ensuring the removal of dust and pollution, the fast and effective exchange of air, and temperature and humidity controls," Paolucci said.
No artist has achieved quite the same effect as Michelangelo, who "radically changed" the history of art in Italy in particular, and Europe in general, he wrote.
The likes of his artistic genius will never be seen again, he said, but modern art preservation techniques can keep his illuminating paintings in the Sistine Chapel forever bright.


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|Woodbridge, Va.
|High School:
|C.D. Hylton
|Mechanical Engineering
2013: (Indoor): Came 16th in the long jump with a 19-09.06 and was second in the triple jump with a 44-02.50 at the Tufts Stampede (2/02) … he went on to improve his performance in the long jump at the Cupid Challenge (2/11) with a jump of 19-11.00.
2012: Came eighth in TJ (44-03 1/4) at the New England Division III championships (indoor) ... finished second in the triple jump (44-09 3/4) and third in the long jump (21-00) at the New England Women's and Men's Athletic Conference championships (outdoor) ... Division III All-New England in TJ ... NEWMAC All-Conference in TJ.
2011: NCAA Division III All-Region in triple jump (outdoor) … won triple jump at four different meets and finished second on two occasions … finished fifth in triple jump (43-5.75 feet) at NEWMAC championship.
Off the Track: Majoring in mechanical engineering with a concentration in Spanish … held an internship through MISTI Spain with the POSIMAT manufacturing firm … conducted a UROP with Open Fab Research Group at CSAIL … Quest Scholar … treasurer for 6.270.
Personal: Son of Juliana Osei … family member ran track and field at UNCW.


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Video: Building and riding the backyard pump track
Update: July 31, 2013
So my son Miguel and I have been driving out to far away pump tracks and dirt jump parks to feed our new found interest in this kind of riding. It seems like we learn something new every day and we're able to use these skills on the trail. It's such a revelation when you can view the hidden berms and undulations on your local singletrack and pump your way down the trail, finding speed and traction without pedaling. It feels safer as well as we are just more comfortable on the bike because of the constant learning on the pump track.
"What if we had one of these in our backyard?", we wondered. "No, mom would never allow it. Not in a million years." But then, one day, mom brought it up. "I think you two should build a pump track." she said. "You two will be happier and safer. You can have half the yard." Can I get a hellya? It turns out, Miguel was talking to mom a lot and quietly convinced her that it was a good idea.
So before she could change her mind, I quickly sprang in to action. I could either build it myself, lose many weekends and screw it up for a year. Or I could call my friend Alex at Action Sports Construction and have it done in two days. Of course I chose the latter, instant gratification solution.
Q&A with the builder, Alex Fowler
Mtbr: Can you give us more details on cost?
Alex: Tractor & Equipment rental: Always reserve a "Tracked Skid Steer" anything with wheels can be used to place dirt, but not pack and shape it. Equipment is typically between $250-$350 per day. There is normally a pick up and delivery fee of $100 each way.
Dirt: Dirt is either the most expensive part of building a pump track. Or free! Fill dirt can be bought at any landscape supply store for $15-$20 per cubic yard. Or if you want to go on the higher end of things purchase Screened Fill dirt for $20-$30 a yard. Most backyard tracks use between 40-80 cubic yards, so it can really add up quick. If your project schedule and the build site allows, you can search craigslist for home owners (typically after they have installed a Pool) giving away fill dirt. Also try calling local contractors or even better the truck drivers themselves about projects which are hauling dirt in the area you are building. You may be just the person they are looking for to haul dirt too and you may be pleasantly surprised.
Mtbr: You always recommend four foot wide tracks and big berms. Why?
Alex: four wide track / big berms?: I stick to a four foot wide rule (unless client advises me other wise) because I want my client to have a safe experience with their track. The narrower a feature is the easier it is to lose control and have your front tire wash out or roll of the side, the last thing iI want to see is a client falling on their track. Riding on the side of a feature/roller is the #1 cause of erosion and a wider surface helps avoid that. A wider riding surface is also easier to build in a sound manner. The equipment I/we use is big and heavy which is needed for proper compaction of the dirt, if a surface is too narrow the equipment cannot be operated properly thus it will erode faster and need more maintenance down the road.
Mtbr: How much space is needed?
Alex: Pump tracks can fit anywhere! The smallest track I have ever built professionally was roughly 15″ x 25″. And regarding the 2 days work aspect. I don't charge by the day. I charge by how much dirt is used on the job. But you can get a lot done in a very short amount of time, the bigger the job, the bigger the equipment. So the size of the job is not that important. I just use bigger machines.
Video: Here is a timelapse video of another one of Alex of ActionSportsConstruction's projects.
Having a pump track in the backyard is a blessing indeed. Instead of my son going out to the dirt jump track, he is at home having friends over. And both of us ride much better and safer on the trail since everyday, we are practicing and learning useful skills.
Pump track construction performed by:
Continue reading for more information and examples of backyard pump tracks


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If you are organized, pride yourself in your attention to
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suites and nursing units of hospitals and clinics.
In addition, they may be involved in preparing packages of equipment for specialty procedures such as angiograms and heart valve replacements. Technicians are also responsible for processing and storing the equipment and instrumentation in central supply — the main inventory storage area of the hospital — so that it is available as needed. As a student in the Central Service and Sterile Processing Technician program, you will be trained to clean, sterilize and prepare medical supplies, instrumentation, medical devices and equipment for patient care in a variety of healthcare settings.
By the time you graduate, you should have the skills necessary to play an essential role, working in hospitals and other healthcare facilities.
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I got so excited about moving; I've lived in 18 different houses since my birth. By now, it should be second nature. Or so one would suppose.
I spent so much time hating Geelong, that I forgot about how much I loved the People I'd come to call my friends.
I made life friends there; in a hellhole that loved nothing more than to hurl the odd nervous breakdown, fight, or narcissistic excuses for men in my general direction.
I made friends that I want to have for years to come; people who I can laugh and cry with - girls I can gossip and indulge with; boys I can talk about poo and disgusting things, and rock out with our cocks out.
I used to get kicks out of uprooting myself to see what unruly adventure would come about. The difference now, is that I made bonds with people in Geelong; and I'm sitting here, pushing them away.
Because I made myslef lonely - I could go to Geelong, I could be there every weekend if I didn't spend my money, or didn't go and try to save for a zillion things all a once; try to keep mum well and dad under control. Suddenly, i'm living in the longterm. I've never lived in the longterm.
I'm scared to go back to Geelong. I've left my visits I so soundly promised everyone, I've lost a lot of contact, because I've been too chickenshit to admit I might miss the place and the endeavours.
I'm scared that my friends might not want me, or welcome me with open arms like I would welcome them.
I treated people without the slightest care in the world; namely those I loved the most - the ones who were always there to pick up the slack and help me out.
I miss the girls - Jo, Chan, Sarah; I miss equine and making funny quips about Longer's sarcasm. I miss hanging out at Ward Manor, or riding on the beach or on the fat ponies with Jo.
I miss Kay, my little fish. I miss our crushes on Hearnalicious and the Walshingmachine. I miss eating vegan food and watching boosh and bating over Dita; I miss Shazcookie and her chic-chip cookies and awesome bod.
I miss Anishka, smoking joints with her in her bathroom and eating copious amounts of junk food; I miss that girls golden smile.
I miss Baby and his hair, his rank farts, ridiculous jokes and similar complaints about people.
I miss Andy, and how he just put up with whatever missile - verbal or otherwise - I had to throw at him.
I miss James and Sophia. I miss mothering the shit out of James and bringing him left-overs so he had lunch, or listening to his latest self-dare he'd made up whilst tripping on wicked acid. I miss soph, and having someone who wanted Nick Cave as much as I did.
I miss Buttons. There's some nights where I sort of hope he just might show up here and we'll go for coffee or we'll smoke too many cigarettes, and I'll nod off whilst he reads me stuff from metal magazines of bands I know nothing about. He always made such an effort to keep me happy or be there in those dire moments when I was totally neurotic or stranded somewhere. But he never let me cook for him. Never stayed for dinner. He never asked a single thing of me; not once.
I always took him for granted.
Come to think of it, I took everyone for granted. I taught myself my own lesson; turns out all those exboyfriends were 100% correct when they told me I was a self-consumed cunt.
I lost too much in 2009.
I miss my friends; the life and times.
Monday, January 18, 2010
I got so excited about moving; I've lived in 18 different houses since my birth. By now, it should be second nature. Or so one would suppose.
Posted by Amy Jean at 1:34 AM 0 comments
Sunday, January 17, 2010
Cry Junkie
Call the chivalry, I feel another self-hating, hormone-fuelled blog coming on.
Fucking yeeha, hold on to your hats, guys and dolls, for another thrilling drawl about...
Absolutely nothing important at all.
I finally realized how much of a terrible person I am. Hooray for self insight; thanks a lot, reality!
I much prefered being oblivious.
Time to practice what I preach with all this deep, heavy "You make the choices!" and "learn your life lessons" bullshit I've been ramming at people like an angry erection.
I am not Dr Phil; I am not a middle aged, balding Texan. Half the time, I don't even know what I'm on about.
I'm the one to blame; I made myself lonely.
Posted by Amy Jean at 2:32 AM 0 comments


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From Our Editors
Booty Tone Camp is a ladies only, boot camp-style fitness programme, headed by personal trainer Glenn Shelford, who has previously worked at the head offices of gyms such as David Lloyd and Virgin Active. The idea started with Glenn training his Mum and her best friend, before expanding to an organisation with over 80 members, operating in five different locations throughout Hertfordshire. Aimed at Mums in particular, the camp offers a range of classes, including boxing and cardio sessions, as well as those aimed at working particular muscle groups.


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CigarsCity.com is an online cigar shop based in the foothills of the Smoky Mountains (Knoxville, Tennessee) dealing in premium cigars and accessories. We're dedicated to helping smokers across the world indulge in the finest cigars at great prices. Our friendly team is committed to providing the most up-to-date information about cigars, the best service customers can imagine, and to make sharing the joy of cigars easy for everyone legally allowed to smoke. Want to hear more about how we're revolutionizing cigars online?
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Madone is the ultimate fusion of power, aerodynamics, ride quality and integration. There are no two ways about it: the first true super-bike is a marvel of road bike engineering.
Every detail of Madone is engineered for unprecedented futuristic performance, ride quality and efficiency, putting every single watt you earn toward demolishing your competition.
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The revolutionary Madone IsoSpeed decoupler is fully integrated, offering unparalleled aerodynamics, unmatched vertical compliance, and ultimate ride quality.
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Fully tested size-specific ride-tuned performance delivers the ultimate balance of speed, power, and handling, no matter what size bike you ride.
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Every element of Madone serves the ultimate goal of unprecedented integration to enhance performance, making Madone the fastest, most advanced option on the road.


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- WiFi
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Choose your room
Tsaritsinskaya Hotel is situated within a 10 minutes drive from Volgograd city center. The hotel surroundings include banks- museums-movie theatres-cafes-restaurants-a sports center and major shopping malls. Tsaritsinskaya Hotel provides accommodation in rooms of various categories - Single-Double- Twin-Triple-Junior Suite and Suite. The round-the-clock hotel bar offers a huge variety of courses and an extensive choice of beverages.
Tourists travelling by car can make use of the parking lot on hotel grounds.
Useful information:Other names for Hotel Tsaritsynskaya:


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The Aiken County Sheriff's Office has identified three people involved with a metal theft in Salley earlier this month, one of whom turned herself in to authorities today.
Nora Christine Morrison, 27, was charged with larceny and placed in the Aiken County detention center, where she remained on Tuesday afternoon.
Investigators have also obtained warrants for larceny for 36-year-old Ann Marie Morgan and 33-year-old Phillip Nicholas Freeman, who are still at large.
The Sheriff's Office has been investigating the theft of metal from a private property near the intersection of Berlin Church Road and Remont Road in Salley, according to a statement. It is believed that the suspects were taking metal from this area between April 15 and June 28.
Anyone with information on the whereabouts of Morgan and Freeman is asked to call the Sheriff's Office at 803-648-6811, or CrimeStoppers of the Midlands at 888-CRIME-SC (888-274-6372).


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24 Oct 2014
New Zealand: a unique location for studying the interactions between bees, Varroa and viruses
When researchers wanted to examine the influence of the parasitic mite Varroa on viruses in honeybee colonies, they found a unique studying ground in New Zealand. Researchers from INRA and the University of Otago teamed up to investigate a large zone that had both Varroa-infested and Varroa-free areas. They studied the viral landscape of honeybee colonies following the parasite's recent invasion (since 2001) of the area and showed that the arrival of Varroa coincided with a drastic modification of the viral landscape within colonies. The mite increased interactions between different viruses in the colonies, bringing about synergistic effects that threaten their survival.


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Le Comité des Archives de la Louisiane, Inc.
Le Comité des Archives de la Louisiane, Inc. is the non-profit genealogical support group for the Louisiana State Archives. Founded in 1978, Le Comité is a 501(c)(3) historical preservation and genealogy organization. Membership in the society is on a calendar year basis. Membership categories and dues are as follows:
Individual ....................... $15
Family ............................ $25
Library ........................... $15
Business/Corporate ....... $100
A Membership Application Form can be printed and mailed in with dues payment. Dues may be paid by check, money order, or PayPal (additional $1 fee). To pay with PayPal, contact Judy Riffel.
PUBLICATIONSBenefits of membership include the society's quarterly electronic journal, Le Raconteur, access to the Members Only section of the society's website, and a discount on the purchase of the society's publications.
Le Raconteur is published in March, June, September, and December. Each issue contains a variety of original genealogical and historical articles dealing with topics from around Louisiana. Tables of Contents and Annual Indexes dating back to 1984 are available. A Price List of back issues is also available.
Le Comité has also published numerous genealogical and historical books. These have included guides, indexes, and abstracts to historical record
collections; census transcriptions; tombstone inscriptions; church records; and a Civil War diary. A list of the society's available publications along with prices and ordering information can be found on the Publications Page. Full-name indexes to selected books are also available on this page.
The society's annual meeting is held between September 1st and October 15th of each year.
The Annual Meeting for 2019 will be held on Sunday, September 29, 2019. The Annual Meeting program is available here.
In 2006, Le Comité formed an African American Special Interest Group (SIG) to promote Louisiana African American genealogical and historical research. A page was created on Yahoo Groups for members to share information and to help each other with their research. All current members of Le Comité are eligible to join the SIG at no additional cost. Any member wishing to join the SIG should send an e-mail to Vice President, Cherryl Forbes Montgomery at firstname.lastname@example.com and an invitation to join the Le Comité AA Sig group will be extended.
The society purchases books, microfilm, manuscripts and other materials for the Louisiana State Archives. Monetary donations to help defray the cost of acquiring these materials for the State Archives Research Room are welcomed. Donations to the society may also be tax deductible. A list of past Microfilm Donations is available.
For more information on Le Comité des Archives, please contact Judy Riffel, Treasurer, via e-mail at email@example.com or write the society at P.O. Box 1547, Baton Rouge, LA 70821-1547.
2018-19 Officers and Board Members
President - Ann DeVillier Riffel, Baton Rouge, La.
Vice President - Cherryl Forbes Montgomery, Baker, La.
Secretary - Doris Falkenheiner, Baton Rouge, La.
Treasurer - Judy Riffel, Baton Rouge, La.
Editor - Judy Riffel, Baton Rouge, La.
Board Member - Audrey Nabors-Jackson, Zachary, La.
Board Member - Stella Carline Tanoos, Plaquemine, La.
Board Member – Kenya Key Rachal, Jackson, Miss.
© 2008-2019 Le Comité é des Archives de la Louisiane, Inc. All rights reserved.
Mailing Address: P.O. Box 1547, Baton Rouge, LA 70821-1547