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The DIGEST Of Equal Employment Opportunity Law

Volume XXI, No. 2

Office of Federal Operations

Spring 2010


Inside

Selected EEOC Decisions on:

A CASE UPDATE: HARASSMENT


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: Robyn Dupont
Writers: Robyn Dupont, David Norman, Joseph Popiden, Arnold Rubin, Gerard Thomson

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


SELECTED EEOC DECISIONS

Attorney’s Fees

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

AJ’s Award of Attorney’s Fees Affirmed. Complainant, a federal air marshall working in Las Vegas, filed a formal complainant in which he raised six issues of discrimination involving his non-selection for two positions, and four temporary assignments. Following a hearing, an Administrative Judge (AJ) found that the agency subjected complainant to discrimination when it did not select him for an assignment to the Joint Terrorism Task Force. As relief, the AJ ordered the agency to, among other things, pay complainant attorney’s fees in the amount of $114,827.82 and costs in the amount of $7,498.01. The AJ relied upon the current prevailing hourly rates in Washington, D.C. where the attorney was located. On appeal, the Commission found that the AJ did not abuse his discretion in finding that complainant’s use of an out-of-state attorney was reasonable. The agency never objected to the location of complainant’s counsel during the proceedings. In addition, the Commission noted that agency officials in Washington handled some of the actions at issue, some of the agency officials called to testify had Washington duty stations, and agency counsel was permanently located in the Washington area. The Commission also found that it was reasonable for the AJ to apply the current prevailing rate to the entire litigation period in order to compensate complainant’s attorney for the delay in payment. Further, the Commission rejected the agency’s argument that the fees should be reduced to one-sixth of the amount claimed, and instead found that the AJ appropriately applied a 25 percent across the board reduction to the attorney’s fees based upon the fact that complainant did not prevail on all claims. The Commission stated that all of the claims were joined by a common core of facts, and involved overlapping issues, witnesses and discovery. Finally, the Commission noted that the corresponding costs were consistent with reasonable legal representation in this case. Garrett T. Donaldson v. Department of Homeland Security, EEOC Appeal No. 0720090032 (December 24, 2009).

Class Complaints

Class Action Properly Certified. The class agent, who worked as a store manager, filed a formal complaint alleging that the agency’s promotion process discriminated against African-Americans by recommending them only for “target positions” in a lower pay band. An AJ found that the proposed class met all four of the requirements for class certification, and the Commission concurred on appeal. With regard to the elements of commonality and typicality, the Commission stated that the lack of promotional opportunity, allegedly due to the agency’s performance review process, the ability to fill a position without posting a vacancy, and the ranking done by a central rating board, presented a sufficient factual basis to infer a policy or practice of discrimination. In addition, the class claim was supported by affidavits and statistical evidence showing that other African-American employees who were subject to the same agency promotional process had not risen above the lower pay band. With regard to numerosity, the Commission determined that the AJ’s finding that the potential class contained over 100 members in diverse locations was supported by substantial evidence. Finally, the agency did not challenge the qualifications of the class representative’s attorney, who was experienced in employment law and the litigation of class actions. Lynette Fitzgerald v. Department of Defense, EEOC Appeal No. 0720090003 (March 26, 2010).

Compensatory Damages

(The decisions below are a selected sampling of recent awards of compensatory damages. See, also, “Findings on the Merits,” this issue. – Ed.)

$125,000 Awarded for Discriminatory Harassment. The Commission found that complainant was subjected to harassment based on her disability and prior protected activity for over two years. Complainant testified that, over the course of the harassment, she needed medication to sleep, had nightmares, was uninterested in things she used to do, and experienced severe stress. Complainant was prescribed several medications, was under the care of a psychiatrist and a psychologist, and was placed off work. She was diagnosed with major depressive disorder, anxiety disorder, and panic disorder. Thus, the Commission affirmed the AJ’s award of $125,000 in non-pecuniary compensatory damages. Toni Champion v. United States Postal Service, EEOC Appeal No. 0720090037 (March 10, 2010).

$76,000 Awarded for Race and Color Discrimination. The Commission determined that complainant was entitled to an award of $76,000 in non-pecuniary compensatory damages resulting from a discriminatory non-selection. The record included statements from complainant, his friends, his psychologist, and a “Behavioral Sciences Team” indicating that complainant exhibited symptoms of Post Traumatic Stress Disorder following the discrimination. Complainant became depressed, suffered a loss of self-esteem, and experienced a variety of physical symptoms, including headaches, nausea and insomnia. Thus, the evidence supported the non-pecuniary award. In addition, the Commission found that complainant was entitled to an award of $2,250 in pecuniary damages for proven out-of-pocket treatment expenses. Kevin Bostick v. Department of the Army, EEOC Appeal No. 0120093611 (March 5, 2010).

$75,000 Awarded for Racial and Retaliatory Harassment. Following a finding by an AJ that complainant, a Chaplain trainee, was subjected to harassment, the Commission determined that complainant was entitled to an award of $75,000 in non-pecuniary compensatory damages. The Commission found that the AJ’s award of $12,000 was inadequate because of the severity of the harassment and retaliation. Complainant testified that the treatment he received was devastating and humiliating, and that he was publicly embarrassed. He stated that he was not allowed to interact with veterans, was isolated, and felt unwanted. Complainant stated that he could not sleep, got high blood pressure, and sought treatment from a psychiatrist. Complainant became tearful and nearly lost his composure while testifying regarding the daily humiliation. Complainant stated that after he was ordered to remove his Anglican collar during a staff meeting his colleagues viewed him differently. The Commission noted that complainant was subjected to months of humiliation, and that his professional reputation was damaged as a result of the harassment. Antonio A. Regist v. Department of Veterans Affairs, EEOC Appeal No. 0120093445 (February 4, 2010).

$60,000 Awarded for Disability Discrimination. The agency determined that complainant was subjected to disability discrimination when she was denied reasonable accommodation, and that the denial of accommodation was a significant factor in the performance deficiencies that led to her termination. Subsequently, the agency found that complainant was entitled to an award of $60,000 in compensatory damages, and the Commission affirmed the award on appeal. The Commission noted that statements from complainant, her daughter, and a friend showed that complainant experienced emotional and physical problems, including depression, loss of enjoyment of life, significant weight loss, physical weakness, withdrawal from family and friends, stress and anxiety. The Commission found that the award was consistent with awards in similar cases, and was not “monstrously excessive.” The Commission noted that complainant was not entitled to a higher amount because a number of the physical and emotional problems complainant cited were related to matters that occurred prior to the discrimination. Estate of Mary L. Chase v. Department of the Navy, EEOC Appeal No. 0120082106 (January 6, 2010).

$35,000 Awarded for Sexual Harassment. The agency found that complainant was subjected to sexual harassment for a period of approximately six months, and awarded complainant $8,000 in non-pecuniary compensatory damages. On appeal, the Commission increased the award to $35,000 to adequately compensate complainant for the emotional distress she experienced. Complainant stated that she suffered physical and emotional harm. Complainant’s husband indicated that complainant became distant after the harassment began, and that their relationship deteriorated such that, at one point, he moved out of the house. Finally, two co-workers confirmed that complainant experienced stress, and cried on almost a daily basis. The Commission denied complainant’s claim for pecuniary damages for physical injuries resulting when a shelf fell on her and gastric bypass surgery, finding no evidence that those claims were related to the discriminatory harassment. Sandra J. Hyde v. Department of Justice, EEOC Appeal No. 0120073964 (November 24, 2009).

$30,000 Awarded for Sex Discrimination and Harassment. Following a finding that complainant was subjected to sex discrimination and harassment, an AJ awarded complainant $30,000 in non-pecuniary compensatory damages. The Commission concurred with the award on appeal. The record showed that complainant suffered humiliation, and feelings of uncertainty about her job and career. She also experienced a relapse of depression. She was anxious, sleep deprived, and unable to concentrate at work. The Commission found that the AJ’s award was consistent with prior case law, and took into account “other stressors” in complainant’s life. Jannell Smith v. United States Postal Service, EEOC Appeal No. 0720070031 (December 7, 2009).

$4,000 Awarded for Retaliation. Previously, the Commission found that complainant was subjected to retaliation when he was denied a transfer. On appeal from the agency’s decision addressing compensatory damages, the Commission found that complainant was entitled to an award of $4,000. The Commission noted that while complainant stated that he suffered from bruxism and gastritis, there was no medical evidence in the record showing that those conditions were directly or proximately caused by the discrimination. Further, while complainant stated that he experienced much stress, he conceded that his stress was also caused by factors other than the denial of his request for a transfer. The Commission noted that the record did contain statements from family members, friends, and co-workers showing that he suffered some stress as a result of the discrimination. Joseph J. Mulvaney v. United States Postal Service, EEOC Appeal No. 0120091359 (March 9, 2010).

Dismissals

(See also by category, this issue.—Ed.)

Agency Improperly Dismissed Claim for Failure to Raise the Matter with an EEO Counselor. Complainant filed a formal complaint alleging that he was subjected to harassment because of his disability, age, and prior EEO activity. Following an investigation, complainant requested an administrative hearing in the matter. Complainant retired from the agency prior to the hearing, and in a pre-hearing submission, asserted that his retirement was due to the alleged harassment. The AJ remanded the constructive discharge claim back to the agency, and held the remaining claim of harassment in abeyance. The agency dismissed the constructive discharge claim, stating that complainant failed to raise the matter with an EEO Counselor. On appeal, the Commission found that the claim of constructive discharge was clearly like or related to the claim of hostile work environment harassment. Specifically, in his initial complaint, complainant alleged that his supervisor threatened complainant with disciplinary action, termination, and even jail for filing a complaint against him. Thus, the agency was ordered to process the claim of constructive discharge as a mixed case complaint. James K. Sabourin v. Department of Agriculture, EEOC Appeal No. 0120093032 (December 3, 2009).

Findings on the Merits and Related Decisions

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

Under the Age Discrimination in Employment Act

Age Discrimination Found. Complainant filed a formal complainant alleging, among other things, that she was discriminated against on the basis of her age (58) when she was not selected for a Nursing Assistant position. The agency investigated the matter, and ultimately found no discrimination. On appeal, the Commission initially determined that complainant established a prima facie case. In addition, the Commission found that the agency failed to meet its burden of showing that the action in question was based on legitimate, non-discriminatory factors. No agency selecting officials offered any specific argument or evidence regarding how the selection decision was made. The Commission stated that the agency only gave a cursory description of its decision-making process, without indicating how it applied specifically to complainant. Thus, the Commission concluded that the agency failed to articulate a specific, clear, and individualized explanation for its actions, such that complainant was denied a fair opportunity to demonstrate pretext. The agency was ordered to offer complainant the position, or a substantially equivalent position, retroactive to the date of her non-selection, and pay complainant appropriate back pay and benefits. Emma L. Blathers v. Department of Veterans Affairs, EEOC Appeal No. 0120073432 (December 10, 2009), request for reconsideration denied EEOC Request No. 0520100200 (July 26, 2010).

Under the Equal Pay Act and Title VII

According to the record, complainant, a kinesiotherapist, took a downgrade in order to transfer to another agency facility. Subsequently, a female kinesiotherapist transferred into the facility. She retained her higher grade, and performed the same work as complainant. Complainant sought a promotion through various channels, but although the agency promised to promote him, it never did so. Complainant ultimately filed a formal EEO complaint alleging discrimination on the basis of sex with regard to his pay. During the investigation, it became apparent that complainant was being paid less than the female comparative even though he was performing both the identical duties to the comparative plus additional duties that the comparative did not have to perform. Following a hearing, an AJ found that complainant established his claims under both the EPA and Title VII, and the Commission affirmed the decision on appeal. The Commission rejected the agency’s argument that complainant did not specifically allege a Title VII violation, noting that the EEOC regulations provide that a violation of the EPA is also a violation of Title VII. The Commission further found that the violation was willful, as evidenced by the agency’s repeated, unfulfilled promises to promote complainant. Thus, the Commission ordered the agency to, among other things, promote complainant, and pay him back pay from three years prior to the date he filed his complaint, plus an equal amount in liquidated damages. The Commission noted that, since complainant is entitled to the highest benefit provided by either the EPA or Title VII, but not both, the agency must calculate back pay under both statutes to determine which one is more favorable to complainant. Bradley J. Gervais v. Department of Veterans Affairs, EEOC Appeal No. 0720070063 (December 15, 2009).

Under the Rehabilitation Act

Disability Discrimination Found When Complainant Required to Undergo Fitness for Duty Examination. Complainant worked for the agency as a mail processing clerk, and due to medical restrictions, her primary duty involved placing address labels on pieces of mail that had been repaired so that they could be returned to customers. According to the record, complainant complained to management that other employees were discarding deliverable mail. Agency management investigated complainant’s allegations, and determined that the mail in question was undeliverable bulk mail. Complainant’s supervisor indicated that complainant had been going through the waste basket on a daily basis after being instructed not to do so. The following day, complainant was ordered to undergo a fitness for duty (FFD) examination. Complainant underwent a two and one-half hour examination, and the physician diagnosed her as having delusional and depressive disorders. He stated that complainant needed psychiatric treatment because of her failure to follow instructions regarding discarded mail and her inability to control her behavior. The doctor concluded that complainant was unfit for duty, and the agency’s Medical Director concurred with the assessment. Complainant was advised that, in order to return to work, she must initiate treatment with a psychiatrist who must then submit a written recommendation to the agency’s medical unit. Complainant complied with the agency’s requirement, and returned to work several months later. She also filed a formal complaint of disability discrimination.

An AJ held a hearing in the matter, and found that the agency violated the Rehabilitation Act when it ordered complainant to undergo a psychiatric FFD examination. The Commission affirmed the AJ’s decision on appeal. The Commission stated that the record was devoid of any evidence that would support a reasonable belief that complainant could not perform the essential functions of her job or posed a direct threat to herself or other employees. The agency claimed that complainant displayed irrational behavior when she accused another employee of improperly discarding mail, had strained relationships with co-workers, disrupted other employees, and failed to follow instructions. The Commission stated that while such conduct may have warranted discipline, it did not lead to the conclusion that the agency reasonably believed complainant was a direct threat to herself or others or was unable to perform the essential functions of her job. The agency was ordered to expunge all documentation associated with the FFD examination from complainant’s personnel files, pay complainant for any pay lost during the period she was in a “non-work” status, and credit complainant for any leave used or lost during the period in question. Kathryn L. Snyder v. United States Postal Service, EEOC Appeal No. 0720080050 (December 8, 2009).

Denial of Reasonable Accommodation: Sick Leave. Complainant was diagnosed with prostate cancer, and needed to undergo radiation therapy. On March 22, 2006, complainant asked to use four hours of sick leave and work four hours at home during this time. Complainant’s supervisor initially approved his request for sick leave, but stated that additional information would be necessary with regard to his request to work at home. Complainant submitted a letter from his doctor stating that he would undergo eight weeks of radiation therapy. The following week, complainant again made a request for reasonable accommodation. The agency subsequently referred complainant’s request to a Federal Occupational Health doctor, who informed the agency, on May 10, 2006, that complainant should be allowed to work at home and use sick leave as a reasonable accommodation. On May 25, 2006, complainant’s supervisor asked for further documentation of complainant’s treatments, stating that the initial documentation indicated that complainant was only going to have eight weeks of treatment. Although complainant complied with the request by submitting a letter from his doctor stating that the treatment was then expected to last 24 months, complainant’s supervisor denied his request to work at home. Complainant subsequently requested four hours of sick leave and four hours of office work each day during his treatment. Complainant’s supervisor again asked for documentation, and complainant cited the original medical documentation he had already provided. Thereafter, he was charged with being absent without leave instead of granted sick leave. Complainant filed a complaint of disability discrimination.

On appeal, the Commission noted that the agency did not contest that complainant is a qualified individual with a disability. In addition, the agency found that it was liable for the delay and ultimate denial of a reasonable accommodation to work at home. The Commission determined that the agency was also liable for the denial of complainant’s request to use sick leave and subsequent charges of absent without leave. The Commission noted that it was clear from the record that complainant was continuing to request a reasonable accommodation when he asked to use four hours of sick leave each day due to his cancer treatments. Complainant’s choice not to request reconsideration of his initial request to work at home did not absolve the agency of its duty under the Rehabilitation Act to accommodate complainant when he later requested sick leave. Further, the Commission stated that the medical documentation that complainant initially provided was sufficient, as it explained his diagnosis, prognosis, side effects of the treatment, and an estimate that the treatments would last two years. The agency was ordered to conduct a supplemental investigation with regard to complainant’s entitlement to compensatory damages, remove the absent without leave charges from all records, and compensate complainant for the time he was charged with being absent without leave as a result of the denial of accommodation. Winzoir V. Durr v. Department of the Treasury, EEOC Appeal No. 0120080078 (February 19, 2010).

Under Title VII

Race Discrimination Found. Complainant filed a formal EEO complaint alleging, among other things, that he was discriminated against on the basis of his race (African-American) when the agency terminated his participation in a training program. Following a hearing, an AJ issued a decision finding that complainant was discriminated against on the basis of his race. The Manager who made the decision to terminate complainant conceded that complainant passed all required tests. Further, the Manger did not consult with the instructors before making the decision, but instead relied upon one individual who was clearly hostile toward complainant and whom the AJ found was not credible. In addition, two witnesses testified that they heard someone remark “one down and two to go” when complainant turned in his equipment following his termination. At that time, there were only three Black students in the 31-person class. One week before the class was to graduate, the third and last Black student was removed from the program. On appeal, the Commission affirmed the AJ’s finding of discrimination. The record showed that complainant was not rated as “marginal.” Further, the environment was not favorable to Black recruits. According to the record, it was the agency’s policy to afford remedial training and an opportunity to correct behavior before removing candidates from the training program. The record indicated that the policy was followed with respect to White comparatives, but was not followed in complainant’s case. The agency was ordered to, among other things, offer complainant reinstatement into the next training program, with back pay. Thalamus Jones v. Department of Energy, EEOC Appeal No. 0720090045 (March 5, 2010).

Under Multiple Bases

Race and Sex Discrimination Found. Complainant filed a formal EEO complaint alleging, among other things, that she was discriminated against on the bases of her race (African-American) and sex (female) when she was not selected for the position of accounts payable chief. Following a hearing, an AJ found that complainant was discriminated against with regard to that matter, and the Commission affirmed the AJ’s finding of discrimination on appeal. The Commission initially found that the agency articulated a legitimate, nondiscriminatory reason for the non-selection, that is, the selectee was the best qualified candidate. The Commission, however, ultimately determined that complainant established pretext. The selecting official conducted no interviews and did not convene a panel to make recommendations for the position. In addition, the selecting official made the selection for the position without consulting with the agency's Command Staff Advisor in connection with the specific crediting plan he intended to use for the position, which was a direct departure from the agency's established merit promotion plan. The record also indicated that while the selecting official claimed that he was looking for a candidate with knowledge of a particular system, he ultimately selected the individual who struggled with that process instead of complainant who had become a recognized leader in that process. Finally, a proposed organization chart for the Accounting Operations Division showed the selectee in the position long before the selection ever took place. The agency was ordered to retroactively appoint complainant to the position, with back pay and benefits, and pay complainant $25,000 in proven compensatory damages. Janie S. Moresi v. Department of Homeland Security, EEOC Appeal No. 0720090049 (March 29, 2010).

Age Discrimination and Reprisal Found. Complainant filed a formal complaint alleging, among other things, that she was subjected to age (59) discrimination when the agency removed her supervisory duties, and subjected to age and reprisal discrimination when she received a “minimally effective” performance evaluation. Following a hearing, an AJ found discrimination as to these matters. On appeal, the Commission noted that complainant’s supervisory duties were reduced, and her position title was changed from supervisory human resources specialist, to human resources specialist. Further, complainant’s supervisor made various age-based comments such as “younger people are coming in and they are better with computers,” and “young people are taking over and they’re the best.” Complainant’s supervisor also asked her on numerous occasions when she planned to retire. While the agency asserted that some of complainant’s supervisory duties were removed in order to streamline its benefits processing function, one witness testified that she was told she was being removed from complainant’s supervision because complainant had too many duties. In addition, complainant stated that she was told that the supervisor was reassigning her duties because it was what he wanted to do. Another employee noted that the supervisor stated on numerous occasions that he intended to replace complainant with another employee who was in her 20s. With regard to the performance evaluation, the agency stated that complainant received a “minimally effective” rating for various reasons, including her failure to provide performance standards for two employees and failure to train another named employee. Complainant stated, however, that she did prepare the performance standards for the two employees, but that they were subsequently reassigned and required new standards. In addition, the record showed that the supervisor conducted complainant’s evaluation with his office door open when he normally conducted performance evaluations with his door closed. The agency was ordered to, among other things, place complainant into a supervisory human resource specialist position, with applicable benefits, and correct its records to reflect that complainant received a “highly effective” rating with all applicable benefits. Florida Cook v. Department of Labor, EEOC Appeal No. 0720080045 (February 22, 2010).

Disability Discrimination and Reprisal Found. According to the record, complainant was born with the four fingers of her left hand on the same ligament, resulting in her having no dexterity or grasping ability with regard to those fingers. Further, complainant is unable to perform any meaningful lifting with her left hand. Due to her overuse of her right hand to compensate, complainant experiences bursitis, tendonitis, and neuritis in her right arm. Complainant’s job as a personnel security specialist required a substantial amount of typing, which was difficult for her, and, in August 2002, complainant’s production standards increased by several units per day. Complainant initially requested several accommodations, including lower production levels and the use of adaptive equipment, in order to keep up with her job responsibilities. The agency denied complainant’s request to lower her production quotas, but provided complainant with a one-handed keyboard. Complainant also applied for a vacant Privacy Act specialist position that involved less typing, and later asked to be reassigned to the position as an accommodation. The agency denied complainant’s request for a reassignment, and ultimately offered the Privacy Act specialist position to a former incumbent. After 30 days of using the new keyboard, complainant’s performance had increased only slightly, and she did not meet her performance requirements. Complainant was placed in a temporary detail position, and ultimately left the agency on disability retirement.

Complainant filed a formal EEO complaint alleging that she was discriminated against when the agency denied her requests for reasonable accommodation. Complainant amended her complaint to include retaliation as a basis for discrimination. Following a hearing, an AJ found that the agency subjected complainant to disability discrimination and retaliation, and the Commission affirmed the AJ’s decision on appeal. The Commission determined that complainant was an individual with a disability, because she is substantially limited in her ability to carry, perform household tasks, and perform fine manipulation. In addition, she is substantially limited in the ability to work in both a class of jobs and a range of jobs requiring the use of two hands or even one healthy hand. Complainant’s physician reported that complainant has very little motion in the fingers of her left hand, decreased mobility in the joints, and essentially has use of only her right hand, which suffers from overuse. Further, in this case, the Commission concluded that the agency should have reassigned complainant to the Privacy Act specialist position, as complainant established that a vacancy existed for which she was qualified, and she requested reassignment into the position on several occasions. The position was vacant at the time the 30-day trial period for the one-handed keyboard ended, and remained vacant for several months after complainant was denied the position. The Commission also found direct evidence of reprisal. The record contained testimony by a supervisor that establishes that efforts to secure the Privacy Act specialist position for complainant ceased as soon as it became known that she had initiated EEO counseling in connection with her request for accommodation. The Commission concurred with the AJ that the refusal of complainant’s supervisors to assist her in securing the reassignment was a materially adverse action that could have deterred her from pursuing her EEO complaint. The Commission found no evidence that the agency would have dropped complainant from consideration for the position in the absence of her EEO activity. The agency was ordered to, among other things, pay complainant $26,500 in non-pecuniary damages, and $364.52 in pecuniary damages, and compensate complainant for 12 hours of annual leave used as a result of the discrimination. Nancylee J. Bowers v. Department of Defense, EEOC Appeal No. 0720070012 (March 22, 2010).

Sexual Harassment and Reprisal Found. According to the record, complainant had a consensual relationship with a co-worker for approximately two years. Four years later, complainant was awarded a bid assignment that put him in the proximity of that individual. The co-worker then began to ask complainant out on dates, and, when he refused, made offensive comments to and about complainant. Complainant reported the behavior to his supervisor during the next three months, but no action was taken and the supervisor told complainant to “just give it up.” Complainant asked to have his schedule changed because he was uncomfortable being around the co-worker. Complainant refused the agency’s offer to move him to another building. Nevertheless, he was taken off of his bid assignment and moved despite his objections. Complainant was told that he could not come back to his former location, but the co-worker was allowed to come to the building where complainant now worked. Complainant ultimately filed a formal complaint alleging that the agency subjected him to sexual harassment. In addition, complainant alleged that management intimidated witnesses by telling them they would not be paid if they testified at an EEO hearing, and that they would go to jail if they lied.

On appeal, the Commission affirmed the AJ’s finding that complainant was discriminated against when he was sexually harassed by a co-worker, taken off of his bid assignment, not allowed in the building, and when a management official attempted to intimidate witnesses. The Commission noted that complainant reported incidents of sexual harassment to his supervisor, and the incidents had the purpose or effect of unreasonably interfering with complainant’s work performance. The Commission found that the agency’s characterization of the earlier reported incidents as “trivial” was a classic example of “blaming the victim.” Complainant had been romantically involved with a co-worker. When she learned that he had married someone else, she began verbally harassing him on a daily basis. Complainant repeatedly complained of her behavior to management. Management ridiculed his complaints and encouraged complainant to give in to her advances. Following a loud verbal altercation on the workroom floor, an investigation was initiated. As a result of the investigation, complainant was forced to change his work location while the harasser was allowed to come and go as she pleased. The Commission found the agency completely overlooked the substantial evidence that the supervisor was aware of complainant’s allegations of sexual harassment. The agency was ordered to, among other things, pay complainant $50,000 in proven compensatory damages, compensate complainant for 20 hours of overtime he lost when he was moved to another building, and provide EEO training for the supervisors and managers involved in this case. Andre Crawford v. United States Postal Service, EEOC Appeal No. 0720070020 (March 5, 2010).

Retaliation

Per Se Finding of Reprisal: Interference with the EEO Process. Complainant filed a formal EEO complaint alleging, among other things, that his supervisor accused him of going to the an EEO Counselor without permission, tried to check complainant’s cellular phone to see if he had called the EEO Counselor without permission, and threatened to “dock” complainant’s pay if he attempted to contact an EEO Counselor. During the investigation, complainant’s supervisor acknowledged that he told complainant he, the supervisor, would make the appointment for complainant to see the EEO Counselor at the facility. In addition, the supervisor stated that when he saw complainant had paperwork from an EEO Counselor, he asked where complainant obtained it, and told complainant that he wanted to see his cell phone to verify if complainant had contacted the EEO Counselor. Finally, the supervisor told complainant that, while complainant had a right to see an EEO Counselor, the supervisor must set up an appointment for complainant during work time, and he would “dock” complainant’s pay if he left work without permission. On appeal, the Commission held that the actions at issue constituted a per se interference with the EEO process. The Commission noted that in this series of events, the supervisor acted as if he were entitled to arrange all of complainant’s interactions with an EEO counselor, which went far beyond a legitimate need to verify complainant’s whereabouts during work hours. In this way, the supervisor impermissibly injected himself into the EEO process, and went so far as to ask to inspect complainant’s cellular telephone so that he could determine whether complainant had contacted an EEO Counselor without his permission. Thus, the supervisor’s actions violated the letter and spirit of the EEOC Regulations. The Commission found no special circumstances in this case that would make it necessary for the supervisor to arrange complainant’s meetings with the EEO Counselor. The agency was ordered to, among other things, cease and desist from requiring that all contact with EEO Counselors be arranged by management officials, conduct training for managers at complainant’s facility, and undertake a supplemental investigation to determine complainant’s entitlement to compensatory damages. Bruce Smith v. Department of the Navy, EEOC Appeal No. 0120082983 (February 16, 2010), request for reconsideration denied EEOC Request No. 0520100287 (July 9, 2010).

Sanctions

AJ’s Issuance of Default Judgment Proper. Complainant, an attorney advisor, filed a formal complaint alleging that she was subjected to sex (female) and age (51) discrimination when the agency did not select her for three temporary senior attorney positions and one supervisory attorney advisor position. Following an investigation, complainant requested an administrative hearing, and subsequently amended her complaint to include the bases of disability and reprisal, as well as claims that she was denied official time and “hazard leave.” The AJ issued an Acknowledgment and Order that outlined the procedures to be followed in the hearing process, and noted that the parties were expected to complete discovery within 90 days. Complainant forwarded a Request for Admissions to the agency, but it did not respond as it had not appointed a representative at the time. Complainant then asked the AJ to impose sanctions on the agency based upon what she believed were deficiencies in the report of investigation. Complainant also sought to depose 10 witnesses. Several days later, complainant served notice of her intent to schedule depositions of over 30 witnesses, and instructed the agency to identify the individuals, contact them for scheduling their appearances, and coordinate travel to complainant’s attorney’s office beginning the following Monday. The parties subsequently filed a Joint Request for Rulings on the agency’s contention that it had 30 days to file objections to the depositions, and on a request to extend discovery. The following day, the AJ ordered the agency to produce the 30 employees for deposition. The agency, however, notified complainant’s attorney that it was not ready to do so and would not appear for deposition. In response to a Motion to Compel and Motion for Sanctions, the agency indicated its willingness to work out a mutually agreeable deposition schedule of those individuals relevant to the complaint. Complainant filed an additional Motion to Compel and Motion for Sanctions, to which the agency did not respond. Ultimately the AJ issued a default judgment against the agency, and ordered relief, including placement into the subject positions with back pay. A decision on attorney’s fees and compensatory damages was pending at the time of the 2001 terrorist attack on New York City, and the case records were destroyed. In November 2001, the case was assigned to a second AJ (AJ2), and the case file records were reconstructed. AJ2 issued a decision awarding all relief ordered by the first AJ, as well as $60,000 in compensatory damages and $29,025.30 in attorney’s fees.

On appeal, the Commission found that the first AJ’s issuance of a default judgment was proper. The Commission stated that the report of investigation was, as complainant asserted, inadequate given the number of non-selections at issue and the lack of documentation in the record. The Commission rejected the agency’s argument that an outside company conducted the investigation, stating that fact does not absolve the agency of its responsibility to ensure that the report of investigation is adequately developed, and the agency retains control of the outcome of the investigation. In addition, the Commission found that the agency was negligent in responding to discovery requests in a timely manner. The Commission noted that the agency took over two months, or two-thirds of the time allotted for discovery to appoint a representative. In addition, the agency failed to respond to discovery requests both before and after a representative was appointed. Further, the agency refused to even attempt to comply with the order to produce requested witnesses. Given the facts of the case, including the agency’s failure to show good cause with respect to the delay in appointing a representative and its failure to respond to discovery requests, the Commission concluded that the imposition of a default judgment was appropriate. The Commission affirmed AJ2’s decision with regard to compensatory damages and attorney’s fees. The Commission also found that complainant established a right to placement into the positions as relief by showing that she was qualified for the positions at issue, applied and was not selected, and individuals outside of her protected class were favored in the selection. Terry E. Cox v. Social Security Administration, EEOC Appeal No. 0720050055 (December 24, 2009).

Settlement Agreements

Breach of Settlement Found. The parties entered into a settlement agreement that provided, in pertinent part, that the agency would expunge an April 2004 Performance Action Plan (PAP) and all related documents from its personnel files regarding complainant. After the agency determined that it was in breach of the agreement, it allowed complainant and her representative to be present to witness the removal of the documents in question from her personnel record. After doing so, the agency issued a new determination finding that it had complied with the agreement. On appeal, however, the Commission found that the agency had breached the agreement. Complainant indicated that she was not permitted to check her complete Official Personnel File. Further, the Commission noted that it took the agency four years to attempt to comply with the agreement. Susan M. Kolarich v. Department of Veterans Affairs, EEOC Appeal No. 0120093332 (November 20, 2009).

Agency Breached Settlement Agreement: Bad Faith Found. The parties entered into a settlement agreement that provided, among other things, that the agency would not proceed with a proposed removal, and would remove two prior suspensions from complainant’s personnel records. The agreement also provided that if complainant engaged in “misconduct of any nature,” the suspensions would be reinstated and the subsequent misconduct would automatically result in complainant’s removal. Within weeks of the execution of the settlement agreement, complainant’s supervisor notified complainant that he believed complainant had engaged in misconduct on five occasions, and complaint was removed from the agency. On appeal, the Commission determined that the agency engaged in bad faith in implementing the agreement. The Commission found that the close proximity between the execution of the agreement and the notice that management was proceeding with complainant’s removal, the failure to define the critical term “misconduct,” the fact that three of the five charges lodged by complainant’s supervisor were not upheld by upper-level management, and the relatively minor nature of the misconduct all pointed to the fact that it was more likely than not that the agency intended to continue with complainant’s removal and only signed the settlement agreement to dispose of complainant’s pending EEO complaint. Lawrence Thrash v. Department of the Army, EEOC Appeal No. 0120092905 (December 24, 2009).

Breach of Settlement Agreement Found When Agency Failed to Restore Complainant’s Seniority Date. The settlement agreement provided that the agency would process a personnel form reflecting a specific date of reassignment to complainant’s current position, and that the action would not impact complainant’s seniority date. Complainant alleged that, when she returned from her temporary supervisory position following the execution of the settlement agreement, she lost nearly 20 years of seniority. On appeal, the Commission found that the agency breached the agreement. The Commission rejected the agency’s argument that it could not comply with the provisions of the settlement agreement because of the results of a step-two grievance decision. Specifically, the Commission noted that the grievance decision indicated that management settled the grievance by choosing to change complainant’s seniority date, and there was no intervening act by an outside body. Rather, it was the agency’s decision to resolve the grievance to complainant’s detriment that impacted its compliance with the settlement agreement, and the agency created its own impediment to the agreement’s implementation. Further, the Commission found that the agency, by delaying processing of complainant’s request to return to her regular position such that complainant remained in the supervisory position beyond the relevant one-year period, had not exercised the requisite good faith in its attempts to comply with the agreement. The agency was ordered to specifically perform the terms of the settlement agreement. Purita Navarro v. United States Postal Service, EEOC Appeal No. 0120093399 (February 26, 2010).

Stating a Claim

(In the following cases, the Commission found complainants’ claims to be cognizable. –Ed.)

Willard T. King v. Department of Justice, EEOC Appeal No. 0120093395 (November 24, 2009). (complaint of harassment that included an allegation that complainant’s supervisor at one time used of an offensive racial slur is severe enough to constitute a viable claim of discrimination. The Commission highlighted the severity of using the offensive slur, which “dredge[s] up the entire history of racial discrimination in this country.”).

Katherine J. Stewart v. Department of the Army, EEOC Appeal No. 0120092700 (December 4, 2009). (complainant’s participation in an agency “Article 15-6 Investigation into EEO Offenses constitutes protected EEO activity for purposes of stating a claim of retaliation. Complainant described the forum as an investigation into complaints by individuals challenging employment discrimination, and stated that she had close association with the two individuals who brought the charges and provided administrative support to the Investigating Officer).

Allan Goldstein v. Department of Homeland Security, EEOC Appeal No. 0120092772 (December 9, 2009). (complainant stated a viable claim of harassment which included an explicit reference to his religion. The statement, made by someone who knew complainant, was no a general statement made in the abstract, but specifically referred to complainant and his religion. Further, complainant alleged that a management official failed to fully investigate the matter as a hostile work environment).

Mary Parnell v. Department of Veterans Affairs, EEOC Appeal No. 0520100031 (December 17, 2009). (allegation that complainant’s co-worker twice referred to complainant’s granddaughter, in complainant’s presence, as a “big, fat monkey” stated a claim of race discrimination. The remarks contained historically offensive slurs toward complainant’s race).

John D. Garvey v. General Services Administration, EEOC Appeal No. 0120093550 (February 19, 2010). (complainant’s allegation that a management official referred to complainant as “an EEO, high-risk individual” during a management meeting, and advised other managers “don’t say any words [complainant] may find even the slightest bit offensive” stated a viable claim of retaliation. Complainant asserted that his advancement at the agency, as evidenced by a specific selection process, was negatively impacted by the official’s remarks, and that the official promoted an atmosphere among other managers that was negative toward employees who utilized the EEO process. If true, these allegations would have a chilling effect on employees making or supporting charges of discrimination.)

Yolanda D. Strickland v. United States Postal Service, EEOC Appeal No. 0120093678 (February 24, 2010). (Commission found that complainant’s allegation that a supervisor shoved open a door with the intention to cause her bodily harm in retaliation for her prior EEO activity stated a viable claim of retaliatory harassment. The agency’s assertion that the supervisor did not know that complainant was on the other side of the door goes to the merits of the claim and not to whether the allegation states a claim of discrimination.)

Aida L. Mendez v. United States Postal Service, EEOC Appeal No. 0120093716 (February 26, 2010). (complainant’s claim that the agency subjected her to discrimination when it issued her a letter of removal stated a viable claim of retaliation. The issuance of a letter of removal, even if it is subsequently rescinded, is likely to deter protected EEO activity).

Wayne B. Upshaw v. Consumer Product Safety Commission, EEOC Appeal No. 0120101281 (March 3, 2010), request for reconsideration denied, EEOC Request No. 0520100290 (April 29, 2010). (complainant, a former employee, alleged that the agency provided negative information to an Investigator conducting a background investigation following his tentative selection for a position at another agency. Complainant was alleging that the agency unlawfully retaliated against him for protected activity he engaged in while an employee of the agency. Thus, complainant’s allegation states a viable claim of retaliation).

Gregory Clark v. Unites States Postal Service, EEOC Appeal No. 0120083817 (March 11, 2010). (complainant’s claim that the agency took various actions that culminated in the agency finalizing his disability retirement and, in effect, terminating his employment states a viable claim of discrimination. Complainant was not raising an improper collateral attack on a decision by the Office of Personnel Management, but, instead, alleged that he had been subjected to a pattern of harassment designed to thwart his efforts to return to work after recovering from an injury.)

(In the following case, the Commission affirmed the agency’s determination that the complainants failed to state a claim. –Ed.)

Albert R. Taber v. Department of Transportation, EEOC Appeal No. 0120100209 (March 18, 2010). (complainant’s claim that he was subjected to race, sex, and age discrimination when he was questioned about e-mails he received from Russia was properly dismissed for failure to state a claim. Complainant’s supervisors questioned him during a private meeting because the e-mails had been flagged “suspicious” based on their country of origin. Complainant was not disciplined or prohibited from using the agency’s e-mail system, and, thus, the incident did not constitute a personal loss or harm regarding a term, condition, or privilege of employment).

Westley R. DeBord, Sr. v. United States Postal Service, EEOC Appeal No. 0120100074 (March 18, 2010). (complainant’s claim that he was subjected to race, sex, and age discrimination when he was asked to provide medical documentation in relation to a Family and Medical Leave Act related absence was properly dismissed for failure to state a claim. The record shows that the agency approved complainant’s request for leave, and complainant took the leave. Although complainant stated that he was threatened with discipline, the agency did not issue any disciplinary action, and the events, even if true, were not sufficient to establish that complainant was subjected to harassment.)

Summary Judgment

Summary Judgment Proper. Complainant filed a formal EEO complaint alleging that he was subjected to discrimination on the basis of perceived disability (“overweight/mobility impaired”) when he was not selected for the position of supervisory transportation security screener in June 2003; subjected to retaliatory harassment including being asked how he found out about a document referencing his weight in the promotion package for the June non-selection, denied an award, and told he would receive a letter of counseling; and subjected to discrimination on the basis of disability and in reprisal for prior EEO activity when he was denied a promotion in April 2005. The AJ assigned to the case ultimately issued a decision without a hearing, finding no discrimination. The Commission affirmed the AJ’s decision on appeal. The Commission found that the AJ appropriately issued a decision without a hearing, as complainant failed to proffer sufficient evidence to establish that a genuine issue of material fact existed, or that there were credibility issues such that a hearing on the merits was warranted. The Commission noted that, with regard to the two non-selections, the agency asserted that complainant did not receive the highest final rating score, and complainant failed to show that the agency’s rationale was a pretext for discrimination. While complainant pointed to an e-mail message from the Administrative Officer referencing his weight, there was no evidence in the record that the interview panel members were aware of the e-mail’s existence, received a copy of the e-mail, or were influenced by its contents when rating the candidates. With regard to the allegation of harassment, the Commission noted there was no evidence confirming the existence of the document regarding complainant’s weight, complainant received the award when Federal Security Director determined that he should not have been denied an award, and complainant was issued a letter of counseling because he had been absent on three consecutive Sundays in conjunction with his scheduled days off. The Commission concluded that there was no evidence the alleged harassment was based on a perceived disability or prior EEO activity, or that the incidents created a hostile work environment. Jose R. Rivera-Garcia v. Department of Homeland Security, EEOC Appeal No. 0120070931 (January 22, 2010).

Summary Judgment Proper. According to the record, a supervisor observed that complainant was not complying with written work orders. When the supervisor attempted to discuss this with complainant, a heated exchange ensued, and complainant allegedly made an obscene gesture and mouthed an obscenity. Complainant also allegedly swung his arm at the supervisor, at which point a manager intervened and placed complainant in off duty status. Complainant, who is hearing impaired, filed a formal EEO complaint, stating that he should have been provided with an interpreter. Following an investigation, an AJ issued a decision without a hearing, finding that complainant was not subjected to discrimination as alleged. On appeal, the Commission found that the AJ appropriately issued a decision without a hearing, as complainant failed to proffer sufficient evidence to establish that a genuine issue of material fact existed, or that there were credibility issues such that a hearing was warranted. The Commission noted that, even assuming complainant established a prima facie case, complainant failed to show that the agency’s articulated reason for the action, that is complainant violated the zero tolerance policy, was a pretext for discrimination. Complainant acknowledged that he was involved in a heated exchange with the supervisor, and did not deny that he made and obscene gesture and mouthed an expletive. Further, complainant did not request an interpreter at the time of the exchange, and was provided with one when he was interviewed regarding the incident the following day. Michael Kronenberg v. United State Postal Service, EEOC Appeal No. 0120073116 (March 19, 2010).

Grant of Summary Judgment Reversed: Direct Evidence of Reprisal. Complainant filed a formal complaint alleging, among other things, that he was subjected to reprisal when he was suspended for five days. Following an investigation, complainant requested an administrative hearing. The AJ ultimately issued a decision without a hearing. The AJ analyzed the claim under a disparate treatment theory of discrimination, and found that complainant failed to prove that he was discriminated against as alleged. On appeal, the Commission found that the AJ erred in examining the claim using a disparate treatment analysis, because complainant presented direct evidence of discrimination. Specifically, the letter of proposed suspension referenced his EEO activity as a basis for disciplining complainant. The letter of proposed suspension asserted that complainant engaged in insubordination when he refused to follow instructions concerning proper e-mail traffic, and included, as an attachment, a list of complainant’s e-mails deemed “offensive” by complainant’s supervisor. These e-mails included several in which complainant alleged to management that he was being subjected to retaliatory harassment and disparate treatment. Further, in an investigative statement, the supervisor cited complainant’s claim that he was subjected to reprisal and disparate treatment as an example of “insubordination.” The Commission noted that management stated that complainant was suspended because he falsely accused his supervisor of misappropriating funds, and exhibited rude, discourteous behavior toward his supervisor. Thus, the Commission determined that the matter should be reviewed under a mixed motive analysis. The Commission stated, however, that the record was inadequate to determine whether the agency would have suspended complainant absent its retaliatory motive, and the determination depended upon an assessment of the credibility of the responsible officials. Thus, the claim concerning complainant’s suspension was remanded for a hearing. Isaac J. Smith v. Department of the Army, EEOC Appeal No. 0120073300 (December 18, 2009).

Grant of Summary Judgment Reversed: Genuine Issues of Material Fact Present Regarding Complainant’s Qualifications. Complainant filed a formal complaint alleging that she was discriminated against on the basis of her race (Black) when she was not selected for three housing specialist positions. Following an investigation, an AJ issued a decision without a hearing finding no discrimination. On appeal, the Commission found that there were genuine issues of material fact concerning complainant’s qualifications for the positions such that a hearing was warranted. Specifically, the Commission stated that complainant was rated “outstanding” on three of the quality ranking factors, and “above average” on the fourth, while one of the selectees received lower ratings of “above average” for all four factors, and another selectee received only “average” ratings. In addition, complainant was rated “outstanding” or “highly successful” on all performance appraisals submitted, while one of the selectees received lower, “fully successful” ratings. Finally, the recommending official acknowledged that complainant was one of the better writers among the applicants. Thus, the Commission concluded that there was evidence in the record that, if true, would support the proposition that complainant was patently better qualified than the selectees. The Commission remanded the matter for a hearing. Elisha M.Smith v. Department of Housing & Urban Development, EEOC Appeal No. 0120070488 (January 15, 2010), request for reconsideration denied, EEOC Request No. 0520100231 (March 18, 2010).

Grant of Summary Judgment Reversed: Genuine Issues of Material Fact Present. Complainant alleged that he was subjected to reprisal when he was placed on Emergency Placement Without Pay status, and issued a notice of removal. The Manager of Customer Service indicated that he observed complainant make a dangerous U-turn in rush hour traffic while driving an agency vehicle and that complainant left the keys to his vehicle in the ignition in the auxiliary position. Following an investigation, an AJ issued a decision without a hearing finding that complainant failed to prove discrimination as alleged. On appeal, the Commission concluded that there were genuine issues of material fact that need to be resolved at a hearing. Specifically, contrary to what the Manager stated in his affidavit, complainant averred that he did not operate his vehicle in an unsafe manner, but made a legal U-turn in order to return to the agency facility. In addition, complainant stated that, on the date in question, he put the key in the ignition in the auxiliary position to allow the fan to run while he was sorting mail, but removed the key from the ignition when he exited the vehicle. Thus, the Commission found that there were genuine issues of material fact over whether complainant operated the agency vehicle in an unsafe manner. The Commission noted that, in this case, management and complainant gave opposing accounts of the incidents, and there was no basis to credit the affidavits of management officials over that of complainant. The matter was remanded for a hearing. Dale Armelin v. United Sates Postal Service, EEOC Appeal No. 0120080530 (February 4, 2010).

Timeliness

Waiver of Time Limits Warranted for Filing Formal Complaint. Complainant contacted an EEO Counselor, alleging that she was subject to discrimination when the agency denied her promotion pay status, incentive programs and awards. According to the record, the EEO Counselor provided complainant with notice of her right to file a formal complaint on December 20, 2006. The notice apprized complainant that she must file her formal complaint with the agency’s EEO Officer in Washington, D.C. within 15 days. The notice also indicated, however, that complainant must notify the Commission if she filed a civil action under the ADEA. Complainant faxed her formal complaint to the EEO Counselor on January 2, 2007, and mailed a copy to the Commission on January 3, 2007, but did not submit the complaint to the appropriate agency office until February 26, 2007. The agency ultimately dismissed complainant’s formal complaint as being untimely filed. On appeal, the Commission found that complainant misread the formal complaint form, and that, because complainant’s complaint included an age discrimination claim, she apparently confused the procedure for filing a civil action with the procedure for filing a formal complaint. The Commission also noted that the address of the Commission’s headquarters was similar to that of the agency’s EEO Office, which only compounded the confusion. The Commission concluded that, because complainant sent her formal complaint to the EEO Counselor and the Commission within 15 days of receiving the notice, a waiver of the time limits was warranted in this case. Vickie D. Thurman v. Department of Justice, EEOC Appeal No. 0120080808 (February 16, 2010).

Extension of Time for Filing a Formal Complaint Warranted Due to Complainant’s Medical Condition. Complainant contacted an EEO Counselor, alleging that he was subjected to discrimination with regard to his performance evaluation. On July 20, 2009, complainant received a Notice of Right to File a Formal Complaint. Complainant submitted his formal complaint on August 7, 2009, three days beyond the 15-day time limitation, and the agency dismissed the complaint as untimely. On appeal, the Commission noted that complainant submitted evidence showing that he was experiencing major depression at the time he received the notice. Complainant’s psychologist indicated that complainant was experiencing a number of debilitating symptoms, and opined that complainant was not capable of responding to the EEO Office in a timely manner due to the work-related major depressive illness. The Commission noted that an extension of time to file a complaint is warranted where an individual is so incapacitated by his medical condition that he is unable to meet the regulatory time limits. The Commission concluded that the documentation in this case was sufficient to warrant an extension of the time period for complainant to file his formal complaint. David V. Butler v. United States Postal Service, EEOC Appeal No. 0120100055 (March 3, 2010).

Extension of Time Limitation for Contacting EEO Counselor Warranted. Complainant contacted an EEO Counselor on April 28, 2009, alleging discrimination when, among other things, he was removed from employment effective February 20, 2009. In response to the agency’s request for additional information regarding his failure to contact an EEO Counselor within the 45-day limitation period, complainant stated that his letter of removal only indicated that he had the right to appeal the action to the Merit Systems Review Board (MSPB) and did not provide EEO complaint rights. The Commission found the agency’s subsequent dismissal of the claim concerning complainant’s removal was improper. The Commission acknowledged that complainant exceeded the applicable limitation period by approximately three weeks, and that complainant was aware of the limitation period. Nevertheless, the Commission concluded that the circumstances in the case justified extending the limitation period. The Commission found complainant’s assertion that he was confused about whether or not his removal could properly be raised in the EEO process to be credible. That rationale, in addition to the relatively short period of time by which he exceeded the regulatory time frame warranted extending the period for initiating contact with the EEO Counselor in this case. Jimmie L. Miller v. Department of Veterans Affairs, EEOC Appeal No. 0120093516 (December 10,2009).

Dismissal for Untimely EEO Counselor Contact Improper. Complainant, an applicant for employment, contacted an EEO Counselor on August 10, 2009, alleging that she was discriminated against when she was denied employment in May 2009. The agency dismissed the complainant for failure to timely contact an EEO Counselor, and, in response to complainant’s appeal, asserted that EEO posters including the 45-day limitation period were displayed at the facility where complainant tested for the position. The Commission reversed the agency’s dismissal of the complaint. The Commission noted that complainant was at the agency facility for only a brief time, about one hour. Thus, the Commission concluded that, given the circumstances in this case, complainant could not have been expected to have read the posting, thereby having constructive notice of the applicable limitation period. Evelyn Houser v. Department of Commerce, EEOC Appeal No. 0120100340 (January 28, 2010).

Dismissal for Untimely EEO Counselor Contact Improper. Complainant contacted an EEO Counselor on September 20, 2007, alleging that he was discriminated against when he was terminated from his position in June 2007. The agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that the agency failed to provide any evidence showing that complainant had actual or constructive knowledge of the 45-day limitation period for contacting an EEO Counselor. Specifically, there was no evidence that EEO posters were on display at complainant’s facility, or evidence that complainant was otherwise notified of the procedures for initiating an EEO complaint. Thus, the Commission concluded that the agency’s dismissal of the complaint was improper. James J. Pittelkow v. Department of Homeland Security, EEOC Appeal No. 0120082972 (March 18, 2010).

ARTICLE
HARASSMENT BASIC PRINCIPLES AND RECENT COMMISSION DECISIONS

(The following article is not intended to be an exhaustive or definitive discussion of a complex area of law, nor is it intended as legal advice. The article is generally based on EEOC documents available to the public at the Commission’s website at www.eeoc.gov, as well as on Commission and Federal Court case law. Some decisions cited may have appeared in previous editions of the Digest. –Ed)

INTRODUCTION

Harassment in the workplace constitutes an actionable form of discrimination under Title VII. The harassment of an employee that would not occur but for the employee’s race, color, sex, national origin, age, disability, religion, or prior EEO activity is unlawful if it results in a tangible employment action, such as termination or reassignment, or creates a hostile work environment. An employee is subjected to hostile environment harassment if he or she experiences unwelcome conduct that is sufficiently severe or pervasive to alter the conditions of the employee’s work environment.1

LEGAL STANDARDS

Employers are subject to liability for unlawful harassment by both supervisors and co-workers. If a supervisor’s harassment results in a tangible employment action, then the agency is strictly liable for the conduct.2 Tangible employment actions are those that significantly change an individual’s employment status, such as hiring, firing, failure to promote, reassignment, or compensation decisions. If a supervisor creates a hostile environment, employers are also subject to liability,3 but unlike cases involving a tangible employment action, employers have an affirmative defense available. The agency can avoid liability for the hostile environment created by the supervisor if it can affirmatively prove that: 1. the agency exercised reasonable care to prevent and promptly correct any harassing behavior; and 2. the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or otherwise avoid harm. If the alleged harasser is a co-worker, an agency is liable for the hostile environment if it knew of the harassment and failed to take immediate and appropriate corrective action.4

All of the circumstances in the case must be examined when considering whether the harassment violates Title VII and the EEOC Regulations. When considering a case of hostile environment harassment, the Commission will look at the frequency of the conduct, the severity of the conduct, whether the actions are physically threatening or humiliating, or merely an offensive utterance, and whether the conduct unreasonably interferes with the employee’s performance.5 Federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious.6 A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe.7 Nevertheless, a limited number of highly offensive slurs or comments related to an employee’s protected class can be sufficient to constitute a hostile work environment.8

A determination of whether the agency took appropriate action with regard to a hostile work environment will depend on the facts of the particular case, including the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.9 To avoid liability, an agency must show that the acts or conduct complained of did not occur or were not unwelcome; the alleged harassment was not sufficiently severe or pervasive to alter the conditions of the work environment; immediate and appropriate corrective action was taken as soon as the agency was put on notice; and/or there is no basis for imputing liability to the agency.10

RECENT COMMISSION DECISIONS FINDING HARASSMENT

In Pamela Weaver v. United States Postal Service,11 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.

In Linda L. Brown v. United States Postal Service,12 the Commission found that complainant was subjected to harassment because of her disability. 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 complainant in Rhonda G. Henderson v. United States Postal Service,13 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. 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 Stojanka Kessel v. Department of Commerce,14 the record showed that complainant informed her second-level supervisor on numerous occasions beginning in 1995, that she believed her immediate supervisor was subjecting her to discrimination. 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. On appeal, the Commission found that complainant was subjected to harassment. An AJ specifically found that complainant was intentionally segregated from her co-workers because of her sex, and 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. Complainant and her co-workers reported the harassment many times, but management failed to address the matter. Therefore, the Commission found that the agency was liable for the harassment.

The complainant in Wendy L. Lemons v. Department of Justice,15 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. The Commission noted that the EEOC Regulations provide that employers may be held liable for the acts of non-employees where the employer “knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”16 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.

In Stephanie A. Woolf v. Department of Energy,17 complainant, a Physical Scientist, alleged that she was subjected to sexual harassment. 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. 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.

In Shawnine D. Sorensen v. Department of the Treasury,18 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.

In Andre Crawford v. United States Postal Service,19 the Commission affirmed the AJ’s finding that complainant was discriminated against when he was sexually harassed by a co-worker. Complainant had been romantically involved with the co-worker. When the co-worker learned that complainant had married someone else, she began verbally harassing him on a daily basis. Complainant repeatedly complained of her behavior to management. Management ridiculed his complaints and encouraged complainant to give in to her advances. Following a loud verbal altercation on the workroom floor, an investigation was initiated. As a result of the investigation, complainant was forced to change his work location while the harasser was allowed to come and go as she pleased. The Commission noted that complainant reported incidents of sexual harassment to his supervisor, and the incidents had the purpose or effect of unreasonably interfering with complainant’s work performance. The Commission found that the agency’s characterization of the earlier reported incidents as “trivial” was a classic example of “blaming the victim.” The Commission found the agency completely overlooked the substantial evidence that its supervisor was aware of complainant’s allegations of sexual harassment.

CONCLUSION

An employer that fails to have an appropriate mechanism for preventing and correcting harassment is likely to be liable for any harassment in the workplace. As noted above, the first prong of the affirmative defense requires a showing by an agency that it took reasonable care to prevent and promptly correct the harassment, which generally requires the agency to have procedures in place for employees to report the harassment.20 Further, agencies must ensure that employees who raise claims of harassment are protected from retaliation. Finally, the agency must ensure that its policies regarding harassment prevention and its complaint process are readily available to its employees.


Footnotes

1 Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

2 Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); also see EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

3 Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999).

4 EEOC Policy Guidance of Current Issues of Sexual Harassment, No. 915.050 (March 19, 1990).

5 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). See also, EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).

6 EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

7 Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982).

8 Brown v. United States Postal Service, EEOC Appeal No. 01A61098 (May 26, 2006).

9 Owens v. Department of Transportation, EEOC Request No. 05940824 (September 5, 1996).

10 Quintero v. United States Postal Service, EEOC Appeal No. 01960836 (April 21, 1998); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

11 EEOC Appeal No. 0120065324 (August 26, 2008), request for reconsideration denied, EEOC Request No. 0520090004 (October 29, 2008).

12 EEOC Appeal No. 0720060086 (October 31, 2008), request for reconsideration denied, EEOC Request No. 0520090179 (February 5, 2009).

13 EEOC Appeal No. 0120083298 (December 10, 2008).

14 EEOC Appeal No. 0120070702 (March 19, 2009), request for reconsideration denied, EEOC Request No. 0520090381 (June 16, 2009).

15 EEOC Appeal No. 0120081287 (April 23, 2009), request for reconsideration denied, EEOC Request No. 0520090501 (August 17, 2009).

16 29 C.F.R. § 1604.11(e); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999).

17 EEOC Appeal No. 0120083727 (June 4, 2009), request for reconsideration denied, EEOC Request No. 0520090560 (August 21, 2009).

18 EEOC Appeal No. 0120092332 (September 22, 2009).

19 EEOC Appeal No. 0720070020 (March 5, 2010).

20 See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).