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The DIGEST Of Equal Employment Opportunity Law

Volume XX, No. 4

Office of Federal Operations

Fall 2009


Inside

Selected EEOC Decisions on:

SELECTED NOTABLE EEOC DECISIONS FROM FY 2009 AND SUPREME COURT DECISIONS


The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO)

Carlton M. Hadden, Director, OFO
Douglas A. Gallegos, Acting Director, OFO's Special Services Staff
Digest Staff
Editor: Arnold Rubin
Writers: Robyn Dupont, Gerard Thomson, Arnold Rubin, Joseph Popiden

The Digest is now available online through EEOC's homepage at www.eeoc.gov.


SELECTED EEOC DECISIONS

(The Fall 2009 edition of the Digest contains a sampling of summaries of decisions of note, some appearing in previous issues, selected by the staff of the Digest from among the volume of decisions the EEOC issues each fiscal year. The summaries are not intended to be either exhaustive or definitive as to the selected subject matter. Nor are the summaries themselves to be given the legal weight of case law in citations. For summaries of decisions involving claims of harassment, see by statute as well as under multiple bases. The Digest acknowledges the special contributions of Robyn M. Dupont to this issue.– Ed.)

Attorney’s Fees

(See also, “Findings on the Merits,” in this issue. – Ed.)

Attorney’s Fees Not Available in Age Discrimination Cases. Complainant alleged that he was discriminated against on the basis of age (40) when he was not selected for the position of Aircraft Work inspector. Following a hearing, an EEOC Administrative Judge (AJ) found that age discrimination motivated the agency’s decision to select a candidate substantially younger than complainant for the subject position. The AJ ordered the agency to provide relief to complainant, including an award of reasonable attorney’s fees and costs. The agency issued a final order accepting the finding of age discrimination, but rejecting the award of attorney’s fees. On appeal, complainant argued that the Equal Access to Justice Act (EAJA) creates a waiver of sovereign immunity and allows attorney’s fees to be awarded to a successful federal employee in an age discrimination case. The Commission affirmed the finding of age discrimination. Furthermore, the Commission held that attorney’s fees are not available under the Age Discrimination in Employment Act (ADEA) for work performed in the administrative process. The Commission rejected the argument that attorney’s fees are available in ADEA cases under the EAJA. The Commission ordered the agency to offer to promote complainant to the subject position, with back pay, and provide training in the ADEA of all responsible agency officials. Edward Ferch v. Department of the Air Force, EEOC Appeal No. 0720080007 (January 15, 2009).

Class Complaints

Individual Complaint Held in Abeyance. Complainant alleged that he was subjected to a hostile work environment on the bases of race (White) and in reprisal for prior protected EEO activity. The agency issued a decision stating that the complaint was being held in abeyance pending the possible certification of a class complaint: Dennis Turner v. Department of Justice. Specifically, the agency determined that the claim raised in complainant’s formal complaint was related to the issues raised in the other complaint which alleged discrimination when the agency purportedly engaged in a pattern or practice of retaliation by denying promotion opportunities to employees who engaged in prior protected activity. The Commission stated that while the agency determined that the claim was “identical” to the claim raised in the class complaint, the record contained no copy of the class complaint. The Commission held that it was impossible to determine whether or not the instant individual complaint was identical and, therefore. remanded the complaint to the agency for further processing. The Commission noted that the agency placed a number of other cases in abeyance as involving the same issues as those raised in the Turner case. The Commission cautioned the agency that it must carefully determine whether or not complaints fell within the Order issued by the EEOC Administrative Judge (AJ) in the Turner class action or risk the imposition of sanctions if it is determined that the agency’s decisions to hold cases in abeyance are being made to avoid compliance with the agency’s obligation to process formal complaints in a timely manner consistent with EEOC’s regulations and EEOC Management Directive 110 (EEOC MD-110). Brian White v. Department of Justice (Bureau of Prisons), EEOC Appeal No. 0120092485 (August 20, 2009).

Compensatory Damages

(The decisions below are a selected sampling of awards of compensatory damages and other remedial actions taken by the Commission, following findings of discrimination. See, also, “Findings on the Merits,” and “Remedies,” in this issue. – Ed.)

$150,000.00 In a prior decision, the Commission determined that complainant was subjected to sexual harassment, and ordered the agency to conduct a supplemental investigation with regard to complainant’s claim for compensatory damages. Complainant submitted numerous detailed statements, as well as reports and letters from medical providers outlining the harm she suffered as a result of the harassment. According to the record, complainant’s symptoms continued for several years after she left the harasser’s supervision. She experienced a major depressive episode and began abusing alcohol. She experienced dysfunction in her work and personal relationships, as well as headaches, nightmares, mental anguish, and humiliation. She also experienced weight gain and high blood pressure. The Commission concluded that complainant was entitled to an award of $100,000.00 in nonpecuniary damages for emotional distress caused by the harassment. The Commission also awarded complainant $49,459.75 in past and future pecuniary damages for medical treatment. Celeste R. Gray v. Department of the Interior, EEOC Appeal No. 0120072136 (July 24, 2009).

$75,000.00 The agency implemented an Administrative Judge’s finding that complainant was subjected to disability discrimination when he was advised he could not work unless he was medically cleared to perform all of his duties. The agency, however, reduced the AJ’s award of $75,000.00 in nonpecuniary damages. On appeal, the Commission noted that complainant and his wife testified that he experienced stress, anxiety, feelings of isolation and irritability, and panic about financial difficulties. In addition, complainant had difficulty sleeping, and experienced negative effects to his relationship with his wife, children and friends. Although complainant did not provide medical evidence of his mental anguish and distress, the Commission found that he provided a sound and credible explanation for his decision not to seek the assistance of a mental health professional. Thus, the Commission concluded that the Administrative Judge’s award of $75,000.00 was supported by substantial evidence in the record. Jason C. Siu v. Department of Justice, EEOC Appeal No. 0720070040 (April 28, 2009).

$40,000.00 The agency implemented an Administrative Judge’s finding that complainant was subjected to disability discrimination when the agency violated his work restrictions. The Administrative Judge awarded complainant $7,500.00 in compensatory damages, and complainant appealed to the Commission. On appeal, the Commission determined that complainant was entitled to an award of $40,000.00 in nonpecuniary compensatory damages. The Commission noted that complainant worked more than 140 days outside of his eight-hour work restriction. In addition, complainant’s sister testified that she noticed significant personality and behavior changes in complainant, as well as physical changes. Complainant lost weight, did not bathe, and did not take care of himself. Complainant’s own statement described a significant amount of emotional distress, and reports from his physicians showed that work-place stress caused intense emotional pain and suffering, anxiety and depression. Thus, the Commission concluded that complainant was entitled to an award of $40,000.00 in compensatory damages resulting from the discrimination. Patrick J. Rea v. U.S. Postal Service, EEOC Appeal No. 0120090934 (June 4, 2009).

$10,000.00 Following a finding by the Commission that complainant was subjected to sex discrimination, the agency conducted a supplemental investigation with regard to the issue of compensatory damages. Complainant offered evidence that as a result of being assigned duties outside of his position, he was irritable, unable to sleep, had nightmares and felt worthless. Complainant submitted affidavits from two doctors, as well as several family members in support of his claim. The Commission found that the discriminatory assignment exacerbated a pre-existing emotional condition. The additional injury that resulted from the discrimination included some amount of complainant’s stress, humiliation, anxiety, sleeplessness, and depression. Thus, the Commission concluded that complainant was entitled to an award of $10,000.00 in nonpecuniary damages. The Commission found that complainant failed to show he was entitled to an award of past or future pecuniary damages. Lamont T. Rowan v. Department of Veterans Affairs, EEOC Appeal No. 0120070384 (June 19, 2009).

$2,000.00 The Commission found that complainant was entitled to an award of $2,000.00 in compensatory damages following a finding that the agency subjected her to discrimination on the basis of her disability. Complainant and her husband stated that complainant experienced stress, a loss of self-esteem, a deterioration in the marital relationship, sadness, depression and anguish as a result of the agency’s failure to provide reasonable accommodation. The Commission noted, however, that complainant did not present any medical evidence to support her claim that the discrimination damaged her vision. Patricia A. Bilowus-Claar v. Department of the Interior, EEOC Appeal No. 0120072583 (June 12, 2009).

$2,000.00 The Commission affirmed an Administrative Judge’s award of $2,000.00 in compensatory damages, following a finding that complainant was subjected to disability discrimination. The Commission noted that complainant offered very limited evidence regarding how she was harmed by the agency’s actions. Complainant testified only that she was irritated by having to take sick leave when placed on an off-hour tour, and was afraid charges of being absent without leave (AWOL) would lead to discipline. Further, the Commission stated that, on appeal, complainant did not provide any further elaboration about the specific harm she suffered as a result of the agency’s failure to accommodate her. Thus, the Commission concluded that the award of $2,000.00 was appropriate. Patricia A. Elliott. v. Department of Veterans Affairs, EEOC Appeal No. 0720080046 (April 15, 2009).

$50.00 The Commission determined that complainant was not entitled to an award of nonpecuniary compensatory damages. The Commission had previously found that complainant was subjected to discrimination with regard to her performance appraisal. Nevertheless, the Commission stated that complainant failed to establish the required nexus between the discriminatory conduct and the claimed emotional harm. The evidence showed that the majority of the emotional harm claimed occurred prior to the discrimination and related to other incidents. The Commission did find that complainant was entitled to $50.00 in pecuniary damages for an insurance co-payment for a doctor’s visit, and postage costs incurred in processing her complaint. Sandra P. Jenkins v. U.S. Postal Service, EEOC Appeal No. 0120091289 (June 8, 2009).

Cost of Commuting Only. Following a finding of discrimination by an Administrative Judge, the agency appealed the decision to award complainant nonpecuniary compensatory damages. The Commission noted that complainant acknowledged that his emotional problems started several months after his discriminatory nonselection. Specifically, complainant stated that the emotional distress began after he returned from a detail assignment and holiday break, and resulted from retaliation and a hostile work environment, issues for which no discrimination was found. Thus, the Commission concluded that complainant failed to establish that the discriminatory non-selection was the proximate cause of the harm suffered, and complainant did not show that he was entitled to nonpecuniary damages. The Commission did, however, find that complainant was entitled to recover the cost of commuting which resulted from the nonselection. Herman Landrum v. Department of Transportation, EEOC Appeal No. 0720080043 (May 29, 2009) request for reconsideration denied, EEOC Request No. 0520090567 (September 17, 2009).

Lost Health Insurance Benefits. Following a finding of race discrimination by an Administrative Judge, the agency issued a final decision addressing complainant’s claim for pecuniary damages. On appeal, the Commission determined that complainant was entitled to reimbursement for lost health insurance benefits. The Commission noted that, following her discriminatory termination, complainant’s health insurance coverage ceased, and she was without coverage for a period of time. Complainant subsequently obtained another job where she was able to secure health insurance. The Commission stated that complainant may seek reimbursement of uninsured medical expenses for a portion of the back pay period, while seeking reimbursement for paid health insurance premiums during another portion of time, but was not entitled to reimbursement of both expenses during the same period. Thus, the Commission remanded the matter for a supplemental investigation as to any uninsured medical costs incurred during complainant’s period of unemployment, as well as any premiums she paid during her subsequent employment. Chandra Lang v. Department of Veterans Affairs, EEOC Appeal No. 0120081699 (May 22, 2009).

Dismissals

(See by category, in this issue.—Ed.)

Failure to Cooperate

Failure to Cooperate Not Found. Complainant stated that the agency improperly dismissed his complaint alleging that he was required to perform duties that exceeded his medical restrictions. The agency commenced an investigation on the complaint and asserted that it sent complainant a request for an affidavit along with instructions and forms. The agency dismissed the complaint for failure to cooperate, arguing that complainant failed to return the requested affidavit despite a written warning in the affidavit packet sent to him that failure to provide the affidavit could result in the dismissal of his complaint. The Commission found that both complainant and his representative asserted that they did not receive any request for information. Although the record in this case contained a receipt showing a delivery date and "Columbus, OH,” the Commission determined that there was no further evidence indicating that complainant actually received the request. The Commission noted that where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Danny C. Carmon v. U.S. Postal Service, EEOC Appeal 0120092366 (August 18, 2009).

Findings on the Merits and Related Decisions

(See by statute, as well as multiple bases, in this issue. –Ed.)

--Under the ADEA—

Nonselection for Supervisory Position. The Commission found that complainant was subjected to age (67) discrimination when he was not selected for a supervisory position. The selecting official stated that complainant was not recommended for the position. The recommending official noted that he was looking for a writer with good analytical skills who was knowledgeable about the “work we do,” and would be able to represent the agency with the public and other federal agencies. The recommending official stated that the selectee (35) had a strong background in immigration law, and inspired confidence that he would “represent the agency in the best light.” The recommending official did not feel complainant’s abilities “rose to that level.” On appeal, the Commission found that the agency failed to set forth, with sufficient clarity, the reasons for complainant’s nonselection such that he was given a full and fair opportunity to show pretext. While the recommending official provided various reasons for choosing the selectee, he did not remember complainant’s application when questioned. The record contained no specific information as to how the recommending official believed complainant’s qualifications compared with those of the selectee or why they fell short. The selecting official stated that he made his selection based upon the individuals recommended to him, and could not recall ever reviewing complainant’s application. Thus, the Commission concluded that the record lacked any explanation as to why complainant was not selected for the position or why he was not the best candidate. As such, the agency failed to articulate a legitimate, nondiscriminatory reason for complainant’s nonselection. The agency was ordered to pay complainant appropriate back pay, with interest. Robert E. Johnson v. Department of Homeland Security, EEOC Appeal No. 0120072888 (December 18, 2008), request for reconsideration denied, EEOC Request No. 0520090241 (March 19, 2009).

Hostile Work Environment Forces Retirement. The Commission affirmed an Administrative Judge’s finding of age discrimination when complainant was subjected to a hostile work environment resulting in her forced retirement. The age-based harassment included utilizing a retirement-eligible list to make reductions in the agency’s offices; conducting an unfair review of complainant’s office by hand picking files to be scrutinized during an internal review by the state; launching an unjustified investigation against complainant without informing her; temporarily removing complainant from supervision of an office; allowing a comparator privileges in complainant’s position that complainant was not allowed; and reassigning her 150 miles from her home. The agency was ordered to offer complainant retroactive reinstatement, with back pay. Sally Hamer v. Department of Agriculture, EEOC Appeal No. 0720080061 (January 6, 2009).

--Under the Rehabilitation Act—

Breach of Medical Confidentiality: Improper Dissemination of Medical Information. Complainant alleged discrimination based on race (Asian) and disability (shoulder, neck) when she was not selected for transfer to another facility. Following a hearing, the Administrative Judge issued a decision finding that the agency did not discriminate against complainant in regard to her transfer request. The Administrative Judge found, however, that the agency violated the Rehabilitation Act when it improperly disclosed complainant's medical restrictions and workers' compensation status to a management official at another facility. As relief, the agency was ordered to revise its procedures for disclosure of information relating to workers' compensation claims and medical restrictions, and to consider disciplining the responsible management officials. On appeal, the Commission affirmed the AJ. Ling Choy v. U.S. Postal Service, EEOC Appeal No. 0120081423 (August 27, 2009).

Failure to Conduct Individualized Assessment As to Applicant’s Alleged Safety Risk. Complainant applied for a Junior Officer position with the Foreign Service and received a conditional offer of employment. Complainant was required to undergo a medical examination and obtain a Class 1 medical clearance. A treating psychiatrist noted in his report that complainant had a current diagnosis of “Dysthymia” and “Personality Disorder.” The agency’s Office of Medical Clearances subsequently gave complainant a Class 5 Clearance based on their finding that he was not “worldwide available,” that is, the agency deemed complainant not cleared for assignment abroad. Therefore, he was not given a firm employment offer to join the Foreign Service. Complainant requested a waiver and it was denied. The agency found that complainant did not establish that, at the relevant time, he had an actual disability, a record of disability, or was regarded as disabled by agency officials. The agency noted that it is complainant’s burden to establish that he is a “qualified” individual under the Rehabilitation Act. Complainant did not consider himself as a person with a disability and contended that agency officials regarded him as disabled because of their prejudgment and misinformation.

On appeal, the Commission noted that the agency found complainant not to be worldwide available because he had two chronic psychiatric conditions which were prone to relapse; he needed to be posted where there was an English-speaking therapist and a provider to monitor his medications; and only 34 percent of the worldwide available posts would be able to meet his medical needs. The Commission found that the calculation of 34 percent of posts being able to meet complainant’s needs could not be accurate given complainant’s fluency in six languages and ability to have basic conversations in two others and academic course work in four other languages. The Commission found that complainant was “worldwide available” and qualified for the Junior Officer position. Concerning whether complainant would pose a safety risk if placed in the position, the Commission noted that the agency did not do an individualized assessment and did not consider complainant’s language abilities when it concluded that complainant would not have medical resources (English-speaking therapists) available to treat complainant. The Commission found that the agency failed in its burden of establishing that complainant represented a significant risk of substantial harm. The Commission ordered the agency to retroactively offer complainant a Junior Foreign Service Officer position with back pay as well as other relief. Athanasios T. Bitsas v. Department of State, EEOC Appeal No. 0120051657 (September 30, 2009).

Improper Medical Inquiry and Denial of Work. Complainant worked for the agency as a Custodial Laborer. He noticed a strong odor while mopping the floor, and subsequently reported to his supervisor that he felt sick to his stomach and had a headache. Complainant completed a workers’ compensation form, and the agency sent him for a medical evaluation. The examining physician determined that complainant was able to return to full duty; however, he noted that complainant believed he was being retaliated against and possibly poisoned. Several days later, complainant was given a letter by his supervisor advising him to provide medical documentation from his doctor clearing him to return to work. The letter did not specify any medical condition or injury. After complainant submitted a letter from a Licensed Physician Assistant releasing him to return to work, he stated that he was told he needed documentation from a psychiatrist stating that he was not a danger to himself or others before he would be allowed to return to work. Complainant ultimately saw a psychologist, who concluded that he did not appear to be a danger to himself or others. The agency’s Medical Unit Director then called the psychologist, and asked complainant to sign a release form so that the report from the initial examining physician could be sent to him. Complainant refused to sign the release, and was given a Notice to Submit Medical Documentation as well as a Notice of Deferred Seven-Day Suspension for failure to follow instructions and being absent without leave. Complainant was ultimately referred for a psychiatric fitness for duty examination.

On appeal, the Commission found that the agency violated the Rehabilitation Act by making a disability-related inquiry and not allowing complainant to return to work. While the Commission noted that it was proper for the agency to initially send complainant for a medical evaluation after he filed a workers’ compensation form, the Commission found that the agency had no basis to keep him out of work once the examining physician concluded he was able to return to duty. The Commission noted that there was no evidence that complainant had any problems performing his work or interacting with his co-workers. Further, the agency’s response to the physician’s comments about complainant’s mental state was extreme and the demands made on him overly burdensome given the circumstances of the situation. The record contained no evidence that complainant engaged in any action that would have led the agency to reasonably believe that he posed a direct threat or could not perform the essential functions of his position. Finally, the agency’s Threat Assessment Team itself found that complainant was not a threat. The Commission further found that complainant decided to retire solely because the agency kept him out of work, issued progressive discipline, and considered terminating him. The agency was ordered to offer complainant reinstatement to his prior position, with back pay and appropriate benefits. Willard Grayson v. U.S. Postal Service, EEOC Appeal No. 0720080044 (January 6, 2009).

Individualized Assessment Required for Agencies to Establish Direct Threat Defense. The Commission modified the decision of an Administrative Judge finding that the Agency for International Development (USAID) and the State Department had discriminated against complainant by denying her a Class 1 Medical Clearance signifying worldwide availability (State) and denying her a waiver of the clearance requirement (USAID), which disqualified complainant from a Foreign Service position (Democracy and Governance Office (DGO) in the U.S. Foreign Service) for which she was otherwise qualified. The Commission sustained the finding of discrimination, but found that complainant was actually disabled (impaired in the ability to eliminate bodily waste, requiring daily use of an ileostomy bag and cannula, caused by cloacal exstrophy) rather than regarded as disabled in the activity of working (not worldwide available). The Commission found that both agencies failed to undertake an individualized assessment of complainant. The Commission noted that complainant had demonstrated her ability to manage her condition both at home and abroad, but further noted that requiring complainant to establish that she was worldwide available, rather than requiring the agencies to establish direct threat, impermissibly altered the burden of proof. As part of the relief awarded, the Commission ordered the agencies to offer her the position at issue retroactively, with back pay and interest. The Commission also ordered the agencies to pay $36,000.00 in compensatory damages and $147,000.00 in attorney’s fees and costs. Dara Katz v. USAID and Department of State, EEOC Docket Nos. 0720060024 and 0720060025 (March 27, 2009).

Direct Threat Defense and Medical Documentation. The Commission affirmed an Administrative Judge’s finding that the agency violated the Rehabilitation Act by rejecting complainant for a city carrier position after it determined that he was a threat to himself due to his ankle injury. The Administrative Judge found that this determination was made without regard to the proper standard required for a direct threat defense. Complainant's medical documentation revealed that he could safely perform the duties of a city carrier. In addition, the agency requested overly-broad medical information from complainant, and utilized an unwritten policy of subjecting veterans to higher scrutiny because of their status as veterans. The agency was ordered to offer complainant employment, with applicable back pay. John Reasor v. U.S. Postal Service, EEOC Appeal No. 0720070004 (January 6, 2009).

Denial of Full-Time Sign Language Interpreter. Complainant filed a formal complaint alleging that he was discriminated against on the basis of his disability (bilateral deafness) when the agency denied his request for a full-time sign language interpreter for the assignment of Acting Senior Intelligence Analyst, and for a deployment overseas. Prior to these assignments, the agency provided complainant with full-time interpreter support. According to the record, complainant sought these assignments because they were good ways to get a promotion. The agency informed complainant that it lacked “cleared security” sign language interpreter resources, and could only provide half-day services. As a result of the denial, complainant withdrew from both assignments. On appeal, the Commission found that complainant was subjected to disability discrimination. The Commission noted that the agency was able to detail one of the cleared interpreters overseas for six months. Further, the agency failed to show that all 25 cleared interpreters on complainant’s list were unavailable, and there was no evidence that the agency looked outside of the Washington DC area for a security-cleared interpreter. Thus, the Commission determined that the agency failed to show that providing a full-time cleared interpreter for complainant would have constituted an undue hardship. The agency was ordered to provide complainant with an appropriate interpreter the next time he was selected for the type of assignment at issue, and pay him appropriate back pay and benefits. Ryan D. Long v. Department of Defense, EEOC Appeal No. 0120071575 (April 3, 2009).

Failure to Accommodate and Harassment. Complainant had previously been a victim of violence and diagnosed with Post Traumatic Stress Disorder. She was working as an Acting Supervisor when she was informed that a co-worker was suing her for assault. The accusation, which was similar to the assault complainant experienced and was never substantiated, caused complainant to have a nervous breakdown. Complainant was hospitalized and received various medical treatments. In addition, she was off of work for several periods of time. Complainant ultimately returned to full time work several years later. Complainant alleged that her supervisor verbally harassed her regarding her medical disorder, including telling her that she could be pushing carts at Wal Mart and K-Mart, and assigned her work which aggravated her condition. On appeal, the Commission noted that the agency stipulated that complainant was an individual with a disability. In addition, the record showed that complainant was able to perform the essential duties of her position with reasonable accommodation. The Commission further found that complainant demonstrated that she was subjected to unwelcome conduct. A witness testified that complainant told her about the supervisor’s comment. In addition, the supervisor was aware that complainant was taking medication that would make it difficult for her to operate certain machinery at the time he assigned her to the sorting machine. The Commission found the supervisor’s conduct was severe, interfered with complainant’s conditions of employment, and ultimately resulted in her inability to work for the agency. The Commission also concluded that the agency failed to accommodate complainant when it assigned her to work on certain machinery. The Commission ordered the agency to pay complainant back pay, and restore, credit or reimburse complainant for 25 percent of leave used during the period in question. In addition, complainant was awarded $79,500.00 in nonpecuniary compensatory damages based upon evidence in the record that the discrimination aggravated complainant’s condition, and caused her to suffer weight gain, extreme fatigue, and weakness, such that she was required to take several medications. Linda L. Brown v. U.S. Postal Service, EEOC Appeal No. 0720060086 (October 31, 2008), request for reconsideration denied, EEOC Request No. 0520090179 (February 5, 2009).

--Under Title VII—

Race Discrimination

Nonselection and Inadequate Record. The Commission found that complainant was subjected to race (African-American) discrimination when he was not selected for the position of Risk Management Specialist. According to the record, complainant was rated as qualified for the position, placed on a promotion certificate, and interviewed for the position. The agency was attempting to fill multiple vacancies in three different branches. According to the record, of the 28 applicants, four were African-American. On appeal, the Commission noted that all four of the selectees at complainant’s grade level were outside of complainant’s protected class. In addition, the Commission found that the agency failed to provide a legitimate, non-discriminatory reason for complainant’s nonselection. The record did not contain the rating sheets completed by the interview panel, and the panel members offered little specific information to support their claim that the selectees were chosen because their skills and qualifications fit the agency’s needs. Thus, the Commission concluded that the agency failed to set forth, with sufficient clarity, the reasons for complainant’s nonselection such that complainant could show pretext. The record showed that complainant’s qualifications and experience appeared similar to those of the selectees, yet there was no elaboration of how the selectees demonstrated greater proficiency than complainant with regard to their skills, ability to analyze data, and ability to resolve complex insurance problems. Thus, because of complainant’s qualifications and the agency’s failure to provide a sufficient articulation of its reasons for not selecting complainant, complainant established his claim of race discrimination. The agency was ordered to offer complainant the position in question, with appropriate back pay and benefits, and consider complainant’s claim for compensatory damages. Carl Frazier v. Department of Agriculture, EEOC Appeal No. 0120083270 (June 4, 2009).

Nonselection for Promotion. The Commission affirmed an Administrative Judge’s determination that complainant was discriminated against based on his race (Black) when he was not selected for promotion to one of two supervisory housekeeping aide slots. The decision found that the evidence supported the Administrative Judge’s finding that the selectee and complainant were equally qualified, but, rather than promote complainant, the agency discriminatorily withdrew the second slot. The decision further noted that when the selection occurred there were no Black supervisory housekeeping aides, and there was testimony from agency employees that Black males were routinely denied promotions in the responsible management official’s department. The decision ordered the agency to, among other things, offer to promote complainant to the subject position with all the career ladder promotions and back pay he would have received. Lewis Mallet v. Department of Veterans Affairs, EEOC Appeal No. 0720080058 (January 30, 2009).

Religious Discrimination

Denial of leave. Complainant submitted a leave request to observe the religious holiday of Good Friday, but the request was denied by her second level supervisor. Complainant then asked the supervisor to reconsider his decision. The evening prior to Good Friday, she was notified that she could not take the day off. Complainant was charged as Absent Without Leave when she failed to report to work on Good Friday. Complainant filed a formal complaint alleging that she was subjected to religious discrimination. On appeal, the Commission found that complainant was an active member of a Christian church and was always present for special services such as Good Friday. Further, complainant requested that day off months in advance. The Commission noted that the agency did not notify complainant that she could not take the day off until late in the evening of the preceding day, and it was only then that the agency suggested an alternative accommodation. The Commission found no evidence that the agency attempted to obtain voluntary substitutes or swaps, which complainant suggested, or attempted to secure voluntary staffing from an alternate call center. Thus, the Commission determined that the agency failed to make a good faith effort to accommodate complainant’s request. The agency was ordered to rescind the Absent Without Leave charge, and charge complainant with annual leave, as well as provide her with any applicable back pay. Yadira Villanueva v. Department of the Treasury, EEOC Appeal No. 0120091077 (August 3, 2009), request for reconsideration denied, EEOC Request No. 0520090659 (October 30, 2009).

Undue Hardship Found for Agency. Complainant, a full time Regular Carrier, filed a formal complaint alleging that he was discriminated against based on his religion (Israel, The Church of Jesus) when the agency refused to permanently allow him to take Saturdays off. The agency indicated that complainant was generally allowed to have Saturdays off when he was in a part-time position because he had no set schedule. The agency stated that the collective bargaining agreement provided for a regular work week of five days, with rotating days off, and complainant accepted a full-time position knowing that he could no longer expect to have off every Saturday. Complainant was told that he could use annual leave for all or part of every Saturday, or switch days with other Carriers if they agreed to do so. On appeal, the Commission noted that complainant’s request to have off every Saturday was at variance with the union agreement. The Commission found that providing complainant with every Saturday off would be an undue hardship on the agency, given the testimony that Saturdays are busy and all scheduled Carriers are needed to deliver the mail. The Commission noted that the agency proposed several forms of accommodation to complainant, including swaps with other employees, the use of annual leave, and his right to seek another position. Thus, the Commission found that complainant was not subjected to discrimination. Jakim S. Israel v. U.S. Postal Service, EEOC Appeal No. 0120070247 (April 1, 2009).

Sexual Harassment

Inadequate Management Response. Complainant worked for the Bureau of Prisons as a Senior Officer Specialist. Complainant filed a formal EEO complaint alleging that she was subjected to sexual harassment by an inmate, and that management officials failed to take reasonable steps to address the matter. Complainant indicated that the inmate exposed himself on several occasions and assaulted her. Complainant noted that she was told by another co-worker that the same inmate exposed himself to her. Complainant reported the incidents to at least five officials, and submitted incident reports, but the inmate remained in complainant’s unit while she was working until after the assault, at which time he was transferred to another facility. On appeal, the Commission found that complainant was subjected to unwelcome conduct based upon her sex. Further, when taken as a whole, the incidents of exposure plus the assault were sufficiently severe to alter the conditions of complainant’s employment. Although the agency attempted to cast doubt on complainant’s account with regard to two of the incidents, the Commission found that complainant credibly reported all four incidents. The Commission noted that complainant’s investigatory and appellate statements were consistent with the incident reports filed contemporaneously with the conduct. Thus, the Commission found that complainant was subjected to sexual harassment. Further, the Commission concluded that the agency was liable for the harassment. Complainant immediately reported each incident to various management officials, yet the officials merely talked with the inmate, instructed him “not to do it again,” and returned him to complainant’s unit. Although there was evidence that the inmate could have been transferred to a special housing unit, the officials did not exercise their discretion to do so until after the assault. Finally, the Commission noted that there was no evidence that the agency used its own process to effectively respond to complainant’s reports of harassment. The fact that the harassment recurred and escalated after complainant reported the conduct showed that the agency’s response was not prompt, effective, or appropriate. The agency was ordered to investigate complainant’s claim for compensatory damages, restore any leave attributable to the harassment, and provide training to all management officials at complainant’s facility. Wendy L. Lemons v. Department of Justice, EEOC Appeal No. 0120081287 (April 23, 2009), request for reconsideration denied, EEOC Request No. 0520090501 (August 17, 2009).

Agency Fails to Take Appropriate Action. Complainant alleged that she was subjected to sexual harassment. Specifically, complainant stated that the harasser engaged in profanity and lewd gestures directed at complainant. Complainant responded by spitting on the harasser and the harasser then kicked complainant. As discipline, the agency removed both complainant and the harasser. On appeal, the Commission found the agency liable for the harassment since it failed to take appropriate remedial action when it imposed identical punishments on both complainant and the harasser. The agency, which was aware of prior reports of sexual harassment directed at complainant, should have taken some additional remedial action, such as training, to prevent the recurrence of the harassment. As relief for the sexual harassment, the agency was ordered to conduct training for all employees; consider taking disciplinary action against the harasser and responsible management officials; and determine whether complainant, who had been reinstated pursuant to a settlement agreement, is entitled to compensatory damages. Angela M. Jean-Louis v. U.S. Postal Service, 0120064683 (July 23, 2009).

Insufficient Agency Response. The Commission found that complainant was subjected to unlawful sexual harassment based on one incident of offensive touching and comments by a co-worker. According to the record, complainant immediately reported the incident to her supervisor, and the co-worker admitted that he acted as complainant claimed. The co-worker received an official discussion and was told to have no further contact with complainant, but was not disciplined for his actions. The supervisor and a manager both testified that they believed it was the other’s responsibility to discipline the co-worker. The Commission found that the conduct in question was unwelcome. Further, the conduct, which included simulating a sexual act, was sufficiently severe since it was an extreme violation of complainant’s physical person and an inappropriate touching of her intimate body areas. The Commission noted that the official discussion given to the co-worker did not include any sort of admonishment of his behavior or a clear statement that the behavior was inappropriate. Finally, the agency’s own policy required that some disciplinary action be taken. The agency was ordered to refer the matter for a hearing on the issue of compensatory damages. Pamela Weaver v. U.S. Postal Service, EEOC Appeal No. 0120065324 (August 26, 2008), request for reconsideration denied, EEOC Request No. 0520090004 (October 29, 2008).

--Under Multiple Bases—

Discrimination Found on Multiple Bases

Sex Discrimination (Sexual Harassment) and Reprisal. Complainant, a Physical Scientist, alleged that she was subjected to sexual harassment and reprisal. Specifically, complainant stated that she was subjected to unwanted physical contact by a co-worker. Complainant indicated that the co-worker hugged her tightly, and commented on her looks, stating that he should leave his wife and go out with complainant. In addition, complainant noted that, during a meeting with complainant and the union president, the Labor Management Specialist stated that an EEO complaint would polarize the office and affect complainant’s future at the agency. On appeal, the Commission found that complainant was subjected to sexual harassment. The Commission noted that complainant described the incident with the co-worker as being “mauled,” and stated that the co-worker placed his body very close to her, with his leg between her legs and chest touching hers. The Commission stated that such conduct was sufficiently severe to rise to the level of a hostile work environment. The Commission noted that the co-worker had made inappropriate comments to another employee approximately three months prior to the incident with complainant. While the agency knew of the co-worker’s inappropriate conduct, the agency merely counseled the co-worker even though his conduct had escalated to inappropriately touching complainant. Thus, the agency’s corrective action was not appropriate, and the agency was liable for the harassment. With regard to the issue of reprisal, the Commission found that, even though the Labor Management Specialist said he was speaking to complainant “as a friend,” the statements he made were reasonably likely to deter complainant from engaging in the EEO Process. The agency was ordered to investigate complainant’s claim for compensatory damages, and provide training to the Labor Management Specialist. Stephanie A. Woolf v. Department of Energy, EEOC Appeal No. 0120083727 (June 4, 2009), request for reconsideration denied, EEOC Request No. 0520090560 (August 21, 2009).

Sex-based Harassment and Reprisal. According to the record, complainant informed her second-level supervisor on numerous occasions beginning in 1995, that she believed she was being discriminated against by her immediate supervisor. Complainant indicated that her immediate supervisor demeaned her by saying she was a “female without an education,” made comments about uneducated women every time she had a performance review, and told her she was not good enough and was a “stupid woman.” Complainant also stated that the supervisor knocked an award off of the wall in her office. Further, complainant was denied a career ladder promotion, and stated that she was discriminated against with regard to cash awards, credit hours, and work assignments. Two female co-workers stated that they were told not to talk to complainant, and that the immediate supervisor made negative comments about complainant. After complainant initiated her EEO complaint, the supervisor attempted to cancel a conference on which complainant had been working. In addition, the second-level supervisor approached complainant, and asked if she realized what a serious thing she had done by filing an EEO complaint, warned her that, if she proceeded, agency attorneys would get involved, and indicated that complainant was considered a troublemaker.

On appeal, the Commission noted that an Administrative Judge found that complainant was subjected to discrimination when she was denied a promotion, and the agency did not challenge that finding on appeal. In addition, the Commission found that complainant was subjected to harassment. The Commission noted that while the agency was able to articulate legitimate reasons for some of the discrete acts such as the cash awards and credit hours, it was not able to articulate legitimate, non-discriminatory reasons for many of the acts cited. The Administrative Judge specifically found that complainant was intentionally segregated from her co-workers because of her sex. Co-workers testified that complainant was treated so harshly that they tried to intervene on her behalf. In addition, complainant’s supervisor had a propensity to make sex-based remarks to complainant and other employees, and complainant and her co-workers reported the harassment many times, but management failed to address the harassment. Therefore, the Commission found that the agency was liable for the harassment. The Commission also found that complainant was subjected to reprisal when her supervisor tried to sabotage her training, and when the second-level supervisor made the comments about complainant’s EEO activity. The Commission stated that the second-level supervisor’s actions had a chilling effect on the EEO process, and were reasonably likely to deter complainant from pursuing her claims. The Commission found that complainant was entitled to an award of $65,000.00 in nonpecuniary compensatory damages, based upon evidence that she experienced mental anguish and physical ailments due to the discrimination and harassment. The agency was also ordered to promote complainant to the GS-12 level, with appropriate back pay and benefits. Stojanka Kessel v. Department of Commerce, EEOC Appeal No. 0120070702 (March 19, 2009), request for reconsideration denied, EEOC Request No. 0520090381 (June 16, 2009).

Sex Discrimination (Sexual Harassment) and Retaliation. Complainant alleged that she was subjected to a hostile work environment for a period of 12 years. Complainant stated that male co-workers touched her in an inappropriate manner, kissed her, and made sexually offensive comments. In addition, complainant stated that a supervisor also made offensive comments. Female witnesses corroborated complainant’s claim that sexual harassment occurred at the facility. Complainant stated that she continuously reported the harassment to her supervisors and the Postmaster, but they failed to take action to stop the harassment. In addition, after complainant reported the harassment to an EEO Counselor, management attempted to dissuade her from filing a complaint. On appeal, the Commission found that complainant was subjected to unwelcome conduct. The Commission rejected the co-workers’ assertions that the incidents were taken out of context and that complainant was retaliating against them, noting that witnesses stated that complainant immediately reported the incidents to management. In addition, the Commission concluded that a reasonable person would find that the cumulative effect of the incidents created a hostile work environment. Complainant repeatedly reported the harassment to various managers within the agency, yet no action was taken. Thus, the Commission concluded that the agency was liable for the harassment. In addition, the Commission found that complainant was subjected to reprisal when a supervisor asked complainant’s co-worker to convince complainant to drop her EEO complaint. The supervisor’s request was reasonably likely to deter protected EEO activity. The agency was ordered to investigate complainant’s claim for compensatory damages, and provide sensitivity training to employees and managers at the facility. Rhonda G. Henderson v. U.S. Postal Service, EEOC Appeal No. 0120083298 (December 10, 2008).

Sex Discrimination (Sexual Harassment) and Race Discrimination (Harassment). Complainant alleged that she was subjected to a hostile work environment based on her race (African-American), and sex by a Training Coach. Specifically, complainant stated that the Coach cursed at her, pointed a finger in her face and stated that he did not help “you people,” and used derogatory terms when referring to her. In addition, complainant stated that the Coach hit her on the arm on one occasion. The Commission noted that the agency, in its final decision, concluded that many of complainant’s factual allegations concerning the Coach’s conduct were confirmed. Specifically, other employees stated that the Coach frequently cursed, and there was evidence that he used racial epithets and demeaning gender-based slang when referring to complainant. The Commission concluded that the Coach harassed complainant based on her race and sex. The Commission stated that the words were not “mere utterances,” and a reasonable person in complainant’s circumstances would have found the conduct humiliating and hostile. Further, the agency was aware of the conduct, but failed to take appropriate corrective action. The agency merely issued directives to complainant and the Coach to stay out of each other’s unit. The Commission noted that this did little to educate the Coach, stating that, at a minimum, the agency should have provided the Coach with sufficient training to ensure that he understood why his conduct violated anti-harassment policies, and considered appropriate discipline. The agency was ordered to determine whether complainant wanted to be reassigned to another location, conduct a supplemental investigation with regard to compensatory damages, and provide training for all involved management officials. Shawnine D. Sorensen v. Department of the Treasury, EEOC Appeal No. 0120092332 (September 22, 2009).

Race and National Origin Discrimination in Termination. The Commission found that complainant was subjected to race (Korean-American) and national origin (Korean) discrimination when she was terminated instead of being given progressive discipline. According to the record, complainant worked for the agency as a Mail Processing Clerk. On one occasion, complainant was asked to perform work she believed to be outside of her medical restrictions, but had difficulty communicating her issues to her supervisors. The situation escalated, and complainant was ultimately placed in an off-duty status and notified that she was being removed from employment. On appeal, the Commission noted that complainant offered evidence that similarly situated Caucasian employees were treated more favorably. Specifically, the comparative employees were given progressive or no discipline after engaging in similar conduct, and none of the comparatives were terminated. In addition, an Administrative Judge found a supervisor’s claim that complainant grabbed his arm and pinched him, which was used to support complainant’s termination for violent and threatening behavior, was not credible. The agency was ordered to reinstate complainant, with appropriate back pay and benefits, ensure that two named supervisors were not in a supervisory capacity over her, and investigate complainant’s claim for compensatory damages. Song Sibell v. U.S. Postal Service, EEOC Appeal No. 0720080020 (April 16, 2009).

Race and National Origin Discrimination in Nonselection. Complainant filed a formal EEO complaint alleging, among other things, that he was subjected to race (Black) and national origin (African) discrimination when he was not selected for a supervisory position. The selecting official, a Director and another Supervisor interviewed the five candidates on the promotion certificate. Subsequently, the selecting official independently selected the top three candidates. The selecting official then met with the other two interviewing officials, at which time they discussed the three candidates and came up with the traits of an effective supervisor. The selecting official alone selected another candidate (Asian-American, Caucasian) for the position. On appeal, the Commission found that the agency failed to articulate a legitimate, non-discriminatory reason for its action. The evidence of record showed that complainant appeared similar to or better qualified than the selectee. In addition, the selecting official made only vague statements as to why he made his selection. The Commission further noted that the records of the selection process were missing, and there was no reliable documentation explaining the method used by the selecting official to rank the applicants. The record also contained no information concerning the leadership traits developed by the selecting official and the interviewers, or how the candidates were evaluated in relation thereto. The Commission noted that, with regard to claims of nonselection, the EEOC regulations require that personnel or employment records be kept by the agency for a period of one year. In addition, the agency is required to preserve all personnel records relevant to a claim of discrimination until the disposition of the claim. Thus, the Commission found that complainant was subjected to discrimination based on his race and national origin. The agency was ordered to offer complainant the supervisory position, or a substantially equivalent position, with back pay and benefits. Frederick A. Nyanzi v. Department of Agriculture, EEOC Appeal No. 0120065317 (February 6, 2009).

Race and Reprisal Discrimination in Termination. In a case brought pursuant to the Government Employee Rights Act (GERA), respondent (i.e., the complainant) alleged that he was discriminated against when he was relieved of his duties as Chief Deputy Coroner, and subsequently terminated. The charge was referred to an Administrative Law Judge (ALJ) in accordance with 29 C.F.R. § 1603.201. The ALJ conducted a two-day hearing and issued a decision finding that appellant (i.e., the Coroner’s Office) had discriminated against respondent based on his race and in reprisal for his prior protected activity in violation of the GERA. The ALJ further found that respondent failed to establish that he was discriminated against based on his age or sex with respect to both claims. On appeal, the Commission found that the ALJ had jurisdiction to adjudicate both of respondent's claims under GERA, stating that respondent was an appointee of the Coroner, an elected State official, and that he served in the policymaking position of Chief Deputy Coroner until his actual termination on December 2, 2005. The Commission further found that substantial evidence supported the ALJ's conclusion that appellant's reasons for its actions were a pretext for discrimination. In terms of remedies, the Commission concurred with the ALJ's decision to award $129,600.00 in front pay for the salary respondent would have received from the date of his termination through what would have been the end of his term as Chief Deputy Coroner. The Commission sustained the ALJ's award of $200,000.00 in nonpecuniary compensatory damages “for the emotional distress he suffered from being demoted and fired, and from having his name besmirched in the press, all of which resulted in months of treatment and counseling.” John Linehan v. Marion County Coroner's Office, EEOC Appeal No. 1120080001 (August 24, 2009).

Disability Discrimination (Breach of Medical Confidentiality) and Reprisal (Public Comments). The Commission found that complainant was subjected to reprisal when management officials discussed the specifics of his pending EEO complaint on a public chat forum. According to the record, the forum was predominantly visited by agency personnel. The Commission noted that complainant did not invite the comments. The Commission found that the managers’ discussion of specific facts of complainant’s EEO complaint was inappropriate and reasonably likely to deter complainant from continuing the pursuit of his EEO complaint. The Commission stated that the officials revealed their retaliatory animus when they repeatedly called complainant names that referred to his EEO complaint, taunted him with the facts of his complaint, and said that his complaint was frivolous. In addition, the Commission found that the officials improperly disclosed complainant’s confidential medical information on the public chat forum when they mentioned his neck injury and the fact that he had been given reasonable accommodation. The agency was ordered to immediately take action to ensure that this type of behavior cease, and provide training for the management officials at the facility in question. James R. Griffin, Jr. v. Department of Homeland Security, EEOC Appeal No. 0120073832 (May 15, 2009), request for reconsideration denied, EEOC Request No. 0520090552 (September 17, 2009).

--Retaliation—

Per Se Finding Based on Supervisor’s Comments. According to the record, complainant contacted an EEO Counselor about alleged acts of violence by a supervisor. Subsequently, the supervisor questioned complainant regarding his contact with the Counselor, and asked why complainant did not come to him first. The supervisor told complainant that he would appreciate it if complainant would use the chain of command or the grievance process in the future. On appeal, the Commission found that the supervisor’s actions were per se reprisal. The Commission noted that complainant could not have prevailed on his underlying claim of age discrimination because he was younger than 40 years. The Commission stated, however, that individuals are protected from retaliation if they have a reasonable and good faith belief that the opposed practice is unlawful. The agency was ordered to provide training regarding the prohibition against retaliation for the supervisor, and consider taking disciplinary action. Lee Kaarup v. Department of Transportation, EEOC Appeal No. 0120072592 (July 10, 2009).

Manager’s Comments Likely to Have Chilling Effect. Complainant filed a formal EEO complaint, and ultimately requested an administrative hearing. The record showed that, during a training session, an agency manager made statements that employees had the right to challenge his recent assignments, and “could file grievances or EEO complaints, but they will lose.” The manager acknowledged making the statements. The Commission found that the statements violated Title VII, as they were likely to have a chilling effect and deter employees from exercising their EEO rights. The agency was ordered to provide training for the named manager. John Donahue v. Department of Justice, EEOC Appeal No. 0120073680 (February 26, 2009).

Direct Evidence of Reprisal. The Commission found that there was direct evidence that the agency retaliated against complainant when he was placed on Emergency Placement Leave and questioned by a Postal Inspector about statements he made at a hearing before an Administrative Judge. At that hearing complainant gave testimony about the role of his supervisor [S1] in incidents that occurred in 2004. During his testimony under oath on compensatory damages, complainant was asked “How did all this [S1’s actions] affect you, in what way?” Complainant responded that “I could have throttled [S1]”. Complainant further stated that “I could kill him.” The Commission found that the agency’s actions were reasonably likely to deter individuals from engaging in protected activity. The Commission concluded that complainant’s statement in 2007 that in 2004 he had wanted to commit violence against S1 did not support the agency’s position that complainant posed a current threat in 2007. The Commission ordered retaliation training for responsible management officials, agency consideration of taking disciplinary actions against the responsible management officials, and remanded the issue of compensatory damages to the agency for a supplemental investigation. Paul M. St. John v. U.S. Postal Service, EEOC Appeal No. 0120082828 (June 19, 2009).

Reprisal Found in Three-Day Suspension The Commission found that complainant was subjected to reprisal when he was issued a three-day suspension. The Commission stated that actions and statements by management reflected a retaliatory attitude toward complainant. The suspension letter specifically referred to several instances of protected EEO activity, including filing a complaint with the Diversity and Equal Opportunity Advisory Committee, and complainant’s opposition to alleged disability discrimination and harassment. The Commission found that complainant’s actions constituted protected activity, and that complainant was clearly opposing what he believed, in good faith, to be discriminatory treatment. The Commission concluded that, because the suspension letter specifically cited complainant’s protected activity, complainant had provided direct evidence that the suspension was based on a retaliatory animus. The agency failed to show that it would have taken the same action absent the discrimination. The agency was ordered to rescind a charge of absent without leave, and restore all pay and benefits to complainant, as well as expunge all references to the suspension, the proposed suspension, and complainant’s failure to attend a meeting. Daniel L. Chambers v. Department of the Treasury, EEOC Appeal No. 0120064530 (February 27, 2009).

Retaliation in AWOL Charge. Complainant filed an EEO complaint alleging, among other things, that he was discriminated against on the basis of reprisal for prior protected EEO activity when he was charged with being absent without leave (AWOL). On appeal, the Commission found that the agency’s proffered reason for charging complainant as AWOL was pretext for discrimination. The Commission noted that management offered conflicting testimony regarding the reasons for charging complainant with being AWOL. Most notably, the agency’s explanation conflicted with contemporaneous documentary evidence regarding which management official was responsible for the decision. The Commission also found that complainant had satisfactorily abided by the sick leave procedures in place. The agency was ordered to correct complainant’s time and attendance records to reflect the use of approved sick leave rather than AWOL. The Commission also ordered a supplemental investigation to determine whether complainant was entitled to compensatory damages as a result of the agency’s discriminatory actions. Isaac P. Decatur, Jr. v. Department of Veterans Affairs, EEOC Appeal No. 0120073404 (September 25, 2009).

Retaliation in Connection With Suspension of Security Clearance. Complainant opposed sexual harassment between a manager and co-worker, and as a result, the manager disseminated incorrect information about complainant’s mental health, and revealed sensitive information. He also placed complainant on unwarranted leave restrictions, and had complainant’s gun confiscated. Eventually, complainant was suspended for 24 days and had her security clearance suspended due to the false allegations that she revealed sensitive information. Complainant was detailed to another state pending the outcome of the security clearance investigation, and subsequently was permanently reassigned to yet another state into a position which did not require a security clearance. The agency then ended the security clearance investigation without issuing a decision on the merits and deactivated complainant’s security clearance, asserting that complainant no longer needed a security clearance in her reassigned position.

On appeal, the Commission found that while it may not second guess an agency’s decision to grant, deny, or suspend a security clearance, the Commission does have jurisdiction under Title VII to determine whether the agency was motivated by discriminatory animus when initiating the suspension of a security clearance. Additionally, while the Commission agreed with the agency that it lacks jurisdiction to order an agency to reactivate an individual’s security clearance, the Commission does have jurisdiction to order the agency to reactivate the abandoned security clearance investigation. Further, the Commission concluded that complainant established by a preponderance of the evidence that the suspension, detail, and involuntary reassignment were motivated by retaliation. As part of the relief awarded complainant, the Commission ordered the agency to pay proven pecuniary damages of $187,000.00 for e.g., moving expenses, lost profit on the sale of complaint’s home; tutoring costs for complainant’s children to help them adjust to being involuntarily moved twice, and attorney’s fees incurred for custody issues concerning taking the children out of state. The Commission also awarded nonpecuniary compensatory damages in the amount of $200,000.00 for the physical and emotional harm sustained by complainant, including witnessing the separation anxiety her children suffered, as well as attorney’s fees of more than $200,000.00 for successfully and competently prosecuting this highly-complex matter. The Commission further ordered the agency to, among other things, reactivate the investigation into complainant’s security clearance, and reimburse complainant for all lost pay and/or benefits. Marta Fonda-Wall v. Department of Justice, EEOC Appeal No. 0720060035 (July 29, 2009).

Jurisdiction

EEOC Has Jurisdiction, for Title VII Purposes, Over “Country Director” Position With Peace Corps. Complainant was employed by the agency as a Deputy Country Director when she submitted an application to be selected as a Country Director. After she was informed that she had not been selected for two Country Director vacancies that had arisen, complainant filed a formal EEO complaint challenging the nonselections. In her complaint, complainant alleged that she was subjected to discrimination on the bases of sex (female) and in retaliation for prior protected EEO activity when she was not selected. The agency's final decision dismissed the complaint, finding that the EEOC had no jurisdiction because the Peace Corps' enabling legislation imbues the Director of the Peace Corps, with "unlimited authority" over "the unique statutory position" of Peace Corps representative, also known as Country Director. The Commission found that the agency interpretation of the statutory language was overbroad and noted that, under established principles of statutory construction, the Peace Corps Act and Title VII must be construed, if possible, consistent with Congressional intent, to eliminate any conflict between the two acts. The Commission found that in this case, the Peace Corps Director's statutory discretion to remove a Country Director for any reason did not necessarily conflict with the Commission's statutory authority to enforce Title VII in the federal workplace and to impose appropriate remedies if discrimination is found. Accordingly the Commission found that it had jurisdiction over the matter and the complaint was remanded for administrative complaint processing consistent with the Commission’s decision. Charna Lefton v. Peace Corps, EEOC Appeal No. 0120052341 (February 26, 2009).

Mixed Cases

Erroneous Bifurcation in Matter Where EEOC Differs With MSPB. The Commission differed with a decision of the Merit Systems Protection Board (MSPB) on a claim of disability discrimination. Petitioner, an Air Traffic Controller, appealed the agency’s decision to remove her from federal service because of "unavailability for duty." In her appeal to the MSPB, petitioner had alleged, among other things, discrimination on the basis of disability when the agency denied her reasonable accommodation. An MSPB AJ upheld the removal and concluded, among other things, that no discrimination had occurred. Petitioner appealed the decision to the full Board, which reversed the removal. The Board restored petitioner to her position, but did not provide her with back pay or compensatory damages. The Board did not address complainant's discrimination claim, observing, in relevant part, that "[petitioner] does not challenge the administrative judge's findings on her claims of disability discrimination." The Commission noted that petitioner had mistakenly bifurcated her appeal from the MSPB AJ’s decision and had asked for review of the merit system principles decision to the full Board and had appealed the discrimination decision to Commission. The earlier appeal to the Commission was administratively closed as prematurely filed because the full Board had not yet rendered its decision. The Board, however, did give petitioner appeal rights, from its decision, to the Commission. The Commission reversed the MSPB AJ's finding of no discrimination, and stated that petitioner was entitled to consideration by MSPB for additional relief, including back pay and compensatory damages. Linda D. Edwards v. Department of Transportation, EEOC Petition No. 0320080101 (June 23, 2009)

Mixed Motive

Agency Sustains Its Burden In Mixed Motive Case to Show That It Would Have Taken the Same Action Even Absent Discrimination. Complainant, after not being selected for a Program Complaint Specialist position, filed an EEO complaint claiming that the agency discriminated against her based on race (African American) and in reprisal for prior EEO activity. The Administrative Judge issued a decision finding that the agency discriminated against complainant in part in reprisal for prior EEO activity, but that the matter presented a mixed motive case. The AJ found that the agency articulated both discriminatory and nondiscriminatory reasons for complainant’s nonselection. Specifically, the agency showed that the selectee was the superior candidate given the selectee’s educational background, computer skills, and other qualifications, but the agency failed to carry its burden to provide a basis on which complainant could frame her pretext argument. In particular, the AJ found that the testimony of the selection panel was vague in regard to the scoring of the initial interviews of the best qualified candidates. Further, the available statement from the Director of the Office of Civil Rights, the selecting official, who had retired, was not credible. Ultimately, the AJ found that the agency showed that complainant would not have been selected, even absent the discrimination, and thus limited the award to injunctive relief and attorney's fees. The Commission found that the AJ had correctly determined that complainant's nonselection presented a mixed motive case and that the agency carried its burden of showing that it would have taken the same action in the absence of discrimination, demonstrating that the selectee's credentials were superior to those of complainant’s. Ozetta Thomas v. Department of Agriculture, EEOC Appeal No. 0120065053 (July 11, 2008), request for reconsideration denied, EEOC Request No. 0520080744 (October 29, 2008).

Remedies

Commission Rejects Pro-rata Back Pay and Awards Relocation Expenses and Orders Agency to Place Complainant in Position at Issue. The agency found that complainant and another candidate were subjected to discrimination on the basis of age when they were not selected for a position in favor of a younger individual. In addressing the relief to which complainant was entitled, the agency found that it was unable to determine which candidate would have been offered the position in the absence of discrimination. Thus, according to the agency, the proper remedy was the monetary value of the lost promotion divided pro rata for each complainant up until the date at which the complainants no longer suffered the monetary loss. The remedy did not provide a right for either complainant to be retroactively promoted to the disputed position. The Commission concluded that the agency failed to make even a perfunctory attempt to establish who would have been selected for the position. The agency should have at least taken additional evidence on the question of whom the selecting officials would have hired. Instead, the agency merely stated that the record did not contain such evidence. The Commission thus inferred, based on the agency’s actions and inactions, that complainant would have been selected for the position, and awarded complainant 100 percent of the back pay. The agency was also instructed to offer complainant the position or its substantial equivalent. Because complainant had moved in order to assume a supervisory position, the Commission also directed the agency to pay relocation expenses if complainant accepted an offer to return to where the disputed position was located. Lester Coleman v. Department of Labor, EEOC Appeal No. 0120062552 (June 6, 2008), request for reconsideration denied, EEOC Request No. 0520080675 (January 7, 2009).

Sanctions

Commission Upholds AJ Default Judgment. The Commission upheld the Administrative Judge’s issuance of a default judgment in favor of complainant as a sanction because the agency had not initiated or completed an EEO investigation within the 180-day regulatory time frame. The Commission did not find the agency’s willful delay justifiable based on complainant’s premature hearing request or its budgetary posture, and found to be speculative the agency’s claim that complainant was not prejudiced by the delay. In affirming the default judgment, the Commission held that protecting the EEO process was paramount. The Commission affirmed the Administrative Judge’s award of promotion to the target position, because complainant was qualified for the position, and stated that the agency was to provide complainant with equal access to developmental details. The Commission provided additional time for complainant to submit evidence concerning entitlement to compensatory damages. Dawn Royal v. Department of Veterans Affairs, EEOC Request No. 0520080052 (September 25, 2009).

Settlement Agreements

No Agreement Found. The parties entered into an agreement which provided that if complainant had problems with his supervisor upon return to work, a named management official would be available to “assist in any dialogue.” Complainant subsequently alleged that his supervisor harassed him, and claimed that the named official never informed the supervisor of the agreement. On appeal, the Commission noted that the agreement did not specify the manner by which the official would be available to assist complainant and his supervisor. Thus, the Commission concluded that the terms of the agreement were vague, and the settlement agreement was void and unenforceable. The agency was ordered to resume processing the underlying complaint. Rey G. Salanga v. U.S. Postal Service, EEOC Appeal No. 0120082454 (September 4, 2009).

Breach Found. The parties entered into a settlement agreement which provided that complainant would accept the position of Casual Custodian/Laborer, which “shall take effect as soon as possible, approximately two pay periods,” and would be subject to a 90-day probationary period. Subsequently, complainant asserted that the agency failed to hire him within two pay periods, and then took two months following his orientation to schedule him for work. In addition, complainant noted that he was scheduled for only a limited number of hours, and, after two weeks, was not scheduled for further hours. The agency asserted that it had difficulty registering complainant for the position and providing orientation, and then no longer needed complainant in the position. On appeal, the Commission found that the agency’s actions completely undermined the purpose and effect of the agreement and suggested bad faith. The agency was ordered to specifically implement the terms of the agreement. Carlos L. Garcia v. U.S. Postal Service, EEOC Appeal No. 0120092226 (September 9, 2009).

Delay in Payment Found. Complainant and the agency entered into a settlement agreement which provided, in pertinent part, that the agency would pay complainant back pay and related benefits for complainant’s temporary appointment to an Executive Officer position. Subsequently, the agency paid complainant a sum “as partial payment of back pay and benefits.” It appears from the record that the payment was made approximately seven months after the agreement was executed. Complainant notified the agency that he believed it had failed to comply with the terms of the settlement agreement, and continued to contact the agency regarding the back pay. On appeal, the Commission found that the agency breached the settlement agreement as a result of its extraordinary delay in providing the full amount of back pay due. While the agency made a partial payment, the agency did not make another payment of back pay until more than one year later. The Commission noted that although there was no time limit in the settlement agreement for paying back pay, the delay of over one and one-half years before the second payment was unreasonable. The Commission determined that an award of attorney’s fees was appropriate for the appeal to enforce the settlement agreement. Paul L. Terban v. Department of Energy, EEOC Appeal No. 0120082606 (April 23, 2009).

Stating a Claim

Complainant Found to be an Employee of the Agency. Complainant was placed as a custodian at an agency facility by a rehabilitation services firm. Complainant filed a formal EEO complaint, alleging that the agency discriminated against him on the basis of his disability (Aspberger’s Syndrome) when his employment was terminated. Complainant also filed a separate charge of discrimination against the rehabilitation services firm, which was assigned to the Commission’s Boston Area Office. With regard to that charge, the Commission determined that the agency made the decision to terminate complainant’s employment, and the Commission could not conclude that the rehabilitation services firm was causally connected or associated in any capacity with the decision to terminate complaint. On appeal from the agency’s dismissal of his EEO complaint, the Commission found that the agency exercised sufficient control over complainant’s position to qualify as a joint employer. Matthew Taranto v. Department of Transportation, EEOC Appeal No. 0120092496 (September 9, 2009).

Hostile Work Environment – English-Only Rule. Complainant alleged that the agency subjected him to a hostile work environment on the basis of national origin (Hispanic) when a supervisor called complainant, and other Hispanic transportation security officers who were working at a particular security checkpoint into a meeting to instruct them not to speak Spanish at the checkpoint. Complainant acknowledged that there was an agency memo regarding the policy and stated that the policy is “impractical and vague” and subject to improper application. The agency dismissed the claim, stating that the action did not rise to the level of a hostile work environment, an assertion the Commission held went to the merits of the complaint. The Commission noted that the merits assertion is irrelevant to the procedural issue of whether the complainant has stated a justiciable claim. Jose Feliciano, Jr. v. Department of Homeland Security, EEOC Appeal No. 0120092012 (August 11, 2009).

Respondent Agency Need Not Be the One that Employed or Considered Complainant for Employment, So Long As Complaint Believes Agency Discriminated. Complainant filed a formal complaint alleging that he was subjected to discrimination when the agency (Office of Personnel Management (OPM)) authorized the General Services Administration (GSA) to use the Outstanding Scholar Program to fill a competitive service position with a comparative candidate. Complainant asserted that the comparative candidate did not pass, and was not excepted from the competitive examination. Complainant indicated that he was ranked as the top candidate on an agency-generated certificate of eligible applicants, but that the agency allowed GSA to fill the position with a non-competitive candidate outside of his protected class. The Commission noted that complainant repeatedly articulated his view that the agency discriminated against him by permitting GSA to pass over him when filling the position. The Commission cited its past holdings that a complainant may file a complaint against an agency that s/he believes engaged in discrimination even though the respondent agency did not employ or consider complainant for employment. Accordingly, the Commission found that complainant had the right to file his complaint initially with OPM. The Commission also noted that complainant’s complaint raised allegations that the agency discriminated against him by violating provisions of federal personnel laws which actions are appealable to the Merit Systems Protection Board, and, as such, complainant asserted a mixed case complaint. Larry M. Dow v. Office of Personnel Management, EEOC Appeal No. 0120073144 (June 16, 2009).

Discussion of Protected Activity States Claim of Reprisal. Complainant filed a formal complaint alleging that she was subjected to sex and reprisal discrimination when her second-level supervisor had an inappropriate conversation in an open area with a high level agency official. The agency dismissed the matter for failure to state a claim. On appeal, the Commission noted that complainant asserted that she overheard the supervisor reference her prior EEO complaint and state that complainant “does not know how to file an EEO complaint.” The Commission found that complainant’s allegations stated a viable claim of reprisal. Specifically, complainant alleged that the supervisor chose to discuss her prior EEO activity with a high-ranking official within complainant’s earshot in order to intimidate her. Joi C. Hatch v. Department of Agriculture, EEOC Appeal No. 0120091270 (May 22, 2009).

Harassment States Claim of Reprisal. Complainant filed a formal complaint alleging that a co-worker sent him threatening letters at home. Complainant indicated that, after he testified against the co-worker in a prior EEO complaint, the co-worker was now harassing him. Complainant reported the actions to the agency, but complainant stated that the matter was not properly investigated. The Commission determined that complainant’s allegation that the agency failed to take action with regard to the alleged harassment and threats from a co-worker stated a viable claim of reprisal. Richard H. Crowson v. Department of State, EEOC Appeal No. 0120090923 (April 15, 2009), request for reconsideration denied, EEOC Request No. 0520100004 (October 23, 2009).

Summary Judgment

Summary Judgment Improper: Credibility Issues. Complainant, a secretary, alleged discrimination when the agency rotated her from her more favorable private office to another unit at the same location without a private office, albeit with the same position, grade and series. The agency indicated it wanted to rotate three secretaries so that they all could become proficient in each others’ duties, but initially did not rotate one of three because of lack of experience. The Administrative Judge issued a decision on summary judgment, reasoning that complainant failed to show that the temporary assignment was materially adverse and complainant’s return to her original position was imminent. The Commission found that summary judgment was not appropriate because, at the time of the Administrative Judge’s decision, complainant had not returned to her original position after one and a half years, and personnel documents did not indicate that the reassignment was temporary. Also, there were credibility issues regarding the agency’s stated desire to cross-train the secretaries as the purpose for the reassignment. Delores Pritchett v. Department of the Air Force, EEOC Appeal No. 0120081815 (September 25, 2009).

Summary Judgment Improper: Genuine Issues of Material Fact. Complainant, who wore hearing aids, applied for a position as a security screener. He underwent a series of tests during the application process, but he was not selected. Complainant claimed that he was discriminated against on the bases of age and disability when he was denied a reasonable accommodation, for his hearing loss, during the testing process. The Administrative Judge granted summary judgment for the agency on the grounds, inter alia, that complainant was not an individual with a disability because his hearing loss was fully mitigated by his hearing aids. On appeal, the Commission held that the Administrative Judge erred in granting summary judgment because there were genuine issues of material fact concerning whether complainant was substantially limited in hearing even while using hearing aides. The Commission noted that, on remand, the Administrative Judge should have the record supplemented on the question of whether, considering his hearing loss, complainant could meet the statutorily imposed requirement that security screeners have the ability “to hear and respond to the spoken voice and to audible alarms generated by screening equipment in an active checkpoint.” Thomas A. Chapman v. Department of Homeland Security, EEOC Appeal No. 0120051049 (August 7, 2008), request for reconsideration denied, EEOC Request No. 0520080805 (December 11, 2008).

Timeliness

Constructive Notice not Appropriate as to Outside Applicant. The Commission found that the period for initiating contact with an EEO Counselor should be extended, because complainant was an outside applicant for employment with the agency. Complainant was not a federal employee and applied for a job with the agency. The agency stated that EEO posters displaying the time limit for initiating contact with an EEO Counselor were on display at the facility. The Commission noted that while constructive notice of the time limitations will often be imputed to federal employees when EEO posters are displayed throughout agency facilities, complainant in this case entered the facility only briefly to drop off her application. Thus, the Commission did not impute constructive knowledge of the limitation period to complainant, and found it reasonable to excuse her delay in initiating EEO contact. Katelyne R. Brown v. Department of the Air Force, EEOC Appeal No. 0120090795 (April 7, 2009).

SUPREME COURT DECISIONS

Retaliation: Protected Activity. The Supreme Court held that Title VII’s anti-retaliation provision extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during the employer’s internal investigation. In this case, the employer began looking into allegations that one of its supervisors had sexually harassed an employee. The employer asked the petitioner whether she had witnessed any inappropriate behavior, and she described several instances of sexually harassing conduct. The employer took no action against the alleged harasser, but terminated the petitioner soon after finishing its investigation. Petitioner subsequently filed a claim of retaliation.

The Supreme Court initially stated that the anti-retaliation provision of Title VII makes it unlawful for an employer to discriminate against an employee because she has opposed any practice made unlawful by the statute. The Court noted that the term “oppose” is not defined in the statute and, therefore, carries its ordinary dictionary meaning of resisting or contending against. The Court stated that a person can “oppose” something by responding to a question, and that nothing in Title VII requires that an employee who reports discrimination on her own initiative be protected while an employee who reports the same discrimination when asked a question is not. The Court noted that if an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, employees would have a good reason to keep quiet about Title VII offenses. The Court concluded that nothing in the statute would support such an outcome. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 129 S.Ct. 846 (2009).

Race Discrimination: Disparate Impact Liability. The plaintiffs, 17 White firefighters and one Hispanic firefighter, sued the city of New Haven, Connecticut, and city officials, alleging race discrimination when the city would not certify the results of a promotion examination, based on the city's belief that its use of the results could have a disparate impact on minority firefighters. The Supreme Court held that Title VII prohibits an employer from discarding the results of a promotion test that has a racially disparate impact unless the employer can demonstrate a strong basis in evidence to believe that relying on the results would subject the employer to disparate impact liability. Ricci v. DeStefano, 129 S. Ct. 2658 (June 29, 2009).

Age Discrimination: “But For” Causation. An employee brought action against his employer under the Age Discrimination in Employment Act (ADEA), alleging he was demoted because of his age. The Supreme Court held that a mixed motive jury instruction is never proper under the ADEA. Instead, plaintiffs must show that age was the “but for” cause of discrimination in all circumstances. Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (June 18, 2009).

Sex Discrimination: Pre-Pregnancy Discrimination Act Actions. Female employees and their union brought a Title VII action against the employer alleging sex and pregnancy discrimination in connection with the calculation of their pension benefits. The Supreme Court held that an employer does not violate the Pregnancy Discrimination Act (PDA) by paying pension benefits pursuant to a bona fide seniority plan that provides less service credit for pregnancy leave taken before the enactment of the PDA than for other forms of short-term disability leave. AT & T Corp. v. Hulteen, 129 S .Ct. 1962 (May 18, 2009).