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The DIGEST Of Equal Employment Opportunity Law


Volume XXII, No.2

Office of Federal Operations

Spring 2011


Inside

Selected EEOC Decisions on:

ARTICLE: CLAIMS OF SEX DISCRIMINATION USING THE GENDER STEREOTYPING THEORY


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 and Writer: Robyn Dupont

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


SELECTED EEOC DECISIONS

Attorney’s Fees

Attorney’s Fees Awarded. In a previous decision, the Commission found that the Agency subjected Complainant to discrimination when it terminated her from her Clerk position. As relief, the Commission ordered the Agency to, among other things, pay appropriate back pay, as well as attorney’s fees, costs, and non-pecuniary compensatory damages. Complainant subsequently filed a Petition for Enforcement of the Commission’s order, questioning the calculation of the back pay award, and stating that the Agency failed to properly award interest. The Commission ultimately ordered the Agency to conduct a supplemental investigation to gather information necessary to calculate Complainant’s back pay, as well as consider Complainant’s claim for compensation for adverse tax consequences. The Commission also instructed the Agency to process Complainant’s claim for attorney’s fees. Complainant’s attorney submitted a fee petition, which the Agency denied. Complainant then filed the instant appeal. The Commission initially found that Complainant was a prevailing party with regard to her Petition for Enforcement, since the Commission found that the Agency did not comply with its obligation with regard to back pay. The Commission then found that the hourly rate claimed by Complainant’s attorney was reasonable. With regard to the hours claimed, the Commission excluded 8.5 hours billed as being vague, stating that the attorney used abbreviations and acronyms without explanation and offered no description of the work performed. In addition, the Commission excluded .2 hours of work claimed by the attorney’s law clerk due to the general description of the work performed. The Commission likewise excluded certain entries for Westlaw research, faxes, and postage, because the attorney failed to provide detailed information about the nature of the charges. The Commission ultimately awarded Complainant $24,290.47 in attorney’s fees and costs. Vashi v. U.S. Postal Serv., EEOC Appeal No. 0120081943 (February 7, 2011).

Administrative Judge’s Award of Attorney’s Fees Was Proper. Complainant filed a formal EEO complainant alleging that the Agency subjected her to harassment on the bases of her sex, disability, and prior EEO activity. Complainant’s allegations included incidents of severe sexual harassment. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On the eve of the hearing, the parties settled the matter. The settlement provided that the AJ would issue a decision concerning the amount of attorney’s fees and costs owed to Complainant. In her decision, the AJ initially stated that the issues in the case were extremely complex and required a substantial amount of time for the attorney to prepare for the hearing. The AJ rejected the Agency’s argument that the fees should be reduced by 50 percent because there was no need for two attorneys. The AJ found that the issues were sufficiently complex to support the need for two attorneys. Nevertheless, the AJ reduced the requested hours of the co-counsel because of billing discrepancies between his log and that of the lead counsel. The AJ also reduced the co-counsel’s requested billing rate to the prevailing market rate in the area, which was also the rate requested by the lead counsel. The AJ noted that she considered reducing the total amount requested by one-third across the board, but rejected that approach due to its inherent unfairness to Complainant’s counsel who “represented Complainant with exceptional diligence and tenacity against the Agency’s overwhelming power, force, obstructionism and failure to cooperate.” The AJ concluded, after many hours reviewing the billing records, that Complainant’s lead counsel was entitled to an award of $115,412.50 for 461.65 hours at a billable rate of $250 per hour. In addition, Complainant’s co-counsel was awarded $79,225 for 316.9 hours. The AJ also awarded $32,674.37 in costs. On appeal, the Commission found no reason to disturb the AJ’s award. The Commission noted that the fact that the case settled on the eve of the hearing did not undermine the amount of work done by Complainant’s attorneys in preparation for the hearing. The Commission stated that there was no evidence to support the conclusion that Complainant’s counsels’ “diligence and tenacity” was not what brought the Agency to settlement. Further, the Commission stated that the AJ did not abuse her discretion when she performed a detailed analysis to determine the precise number of hours for which the co-counsel should not be compensated. While the Commission permits across-the-board reductions, it does not require them, and the AJ was well within her discretion to choose the approach she thought would be most appropriate under the facts of the case. The AJ put great emphasis on what she observed in overseeing the litigation between the two parties, and personally found the litigation to be extremely complex. The Commission noted that the AJ ultimately reduced the requested fees by 25 percent, which fairly addressed the Agency’s concerns. Swanson v. Dep’t of Homeland Sec., EEOC Appeal No. 0720100026 (March 8, 2011).

Compensatory Damages

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

$50,000 Awarded for Retaliation. In a prior decision, the Commission found that Complainant’s Supervisor retaliated against him when the Supervisor threatened to examine Complainant’s assets as a preliminary step to filing a civil action against Complainant after he testified regarding allegations of sexual harassment at the Agency. The Agency was ordered, among other things, to conduct a supplemental investigation with regard to Complainant’s claim for damages. The Agency ultimately concluded that Complainant was entitled to $15,000 in non-pecuniary damages. On appeal, the Commission found that the Agency’s award was insufficient. Complainant stated that he experienced emotional and physical suffering as a result of the discrimination, and became detached from his family. Complainant’s wife stated that the tension caused by Complainant’s work situation made it unbearable to live together, and caused her to move out of the house. Complainant’s daughters stated that he was very tense, and became isolated. Several additional family members submitted affidavits confirming that after Complainant was discriminated against, he became removed from his family and stopped attending family events. The record also included statements from Complainant’s co-workers and subordinates indicating that he became less effective at work. The Commission concluded that Complainant experienced emotional mood swings, mental anguish, and damage to his professional reputation and standing as a result of the discrimination, as well as marital and familial strain. Based upon the record, the Commission awarded Complainant $50,000 in non-pecuniary damages. The Commission also ordered the Agency to compensate Complainant for leave he used as a direct result of the discrimination. Reed v. Dep’t of Transp., EEOC Appeal No. 0120080520 (January 21, 2011).

$40,000 Awarded for Disability Discrimination. In a prior decision, the Commission found that the Agency discriminated against Complainant on the basis of his disability when it denied his request to work at home and his requests for sick leave, and when it charged him with being Absent-Without-Leave. The Commission ordered the Agency to conduct a supplemental investigation with regard to Complainant’s claim for damages, and the Agency ultimately determined that Complainant was entitled to $40,000. Complainant appealed the Agency’s decision on damages to the Commission, and the Commission affirmed the Agency’s damage award. Complainant’s wife stated that, after the discrimination, Complainant became moody, irritable, and lethargic, and experienced sleeplessness. Complainant’s sister-in-law and a friend submitted statements noting the Complainant withdrew from family and friends. Although Complainant asserted that, after his retirement, he had to sell his house at a loss and incurred bills he was unable to pay, the Commission’s prior decision made no finding that Complainant was constructively discharged, and only awarded damages for the period of time Complainant was denied accommodation. Durr v. Dep’t of the Treasury, EEOC Appeal No. 0120103491 (February 3, 2011), request for reconsideration denied, EEOC Request No. 0520110315 (July 22, 2011).

$20,000 Awarded for Discriminatory Harassment. Following a hearing, an AJ found that the Agency subjected Complainant to harassment based on her race and sex. As relief, the AJ, among other things, awarded Complainant $20,000 in non-pecuniary damages. On appeal, the Commission concurred with the AJ’s award. According to the record, Complainant suffered from anxiety which required hospitalization and medication. She remained under significant stress several months after the harassment occurred. The Agency asserted that Complainant’s testimony was not corroborated by family, friends, or medical records. The Commission noted, however, that Complainant’s testimony was sufficient to establish what she experienced and supported the AJ’s award. The Commission stated that the AJ’s award of damages was neither punitive in nature nor monstrously excessive. Thomas-Madison v. Dep’t of Justice, EEOC Appeal No. 0720100053 (February 23, 2011).

Dismissals

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

Complaint Improperly Dismissed on Grounds Complainant Elected to Pursue Grievance. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it did not select him for a temporary Electronics Mechanic position. The Agency dismissed the complaint, stating that the local union had previously filed a grievance on behalf of all employees who qualified for that position. On appeal, the Commission reversed the Agency’s decision. The Commission found that the Agency failed to conclusively prove that Complainant himself elected to pursue the grievance process prior to filing his formal EEO complaint. According to the record, the union filed a grievance on behalf of employees who were “repromotion eligible” and qualified for the position, and Complainant may or may not have been within that class. The Commission stated, however, that it was undisputed that the grievance was not filed on Complainant’s individual behalf and his name did not appear in the grievance. Thus, the complaint was remanded to the Agency for further processing. Coleman v. Dep’t of the Army, EEOC Appeal No. 0120110078 (February 9, 2011). See, also, McLeod v. Dep’t of Justice, EEOC Appeal No. 0120092979 (March 14, 2011) (finding that when the union filed a grievance on behalf of all employees, Complainant was not foreclosed from pursuing a discrimination complaint through the EEO process. The grievance was filed by and on behalf of the union, and there was no evidence that Complainant elected to file the grievance or that he had any choice as to whether his name was used in the grievance).

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 With Regard to Nonselection. Complainant worked for the Agency as a Service Representative. He applied, and was not selected for a Social Insurance Specialist (Bilingual Claims Representative) position. At the time of his nonselection, Complainant was 58 years old. The three candidates chosen for the position were all substantially younger than Complainant, the oldest being 46 years old. The District Director testified that he limited the selection of external candidates to those with a four year college degree. Complainant had an associate’s degree. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of his age when it did not select him for the position in question. Following a hearing, the AJ found that Complainant was discriminated against as alleged. The Commission affirmed the AJ’s findings on appeal. The Commission found substantial evidence in the record to support the AJ’s finding that Complainant’s qualifications were plainly superior to those of the external selectees. One of Complainant’s co-workers credibly testified that she often went to Complainant for technical assistance. In addition, one of the selectees had extremely limited work experience, another selectee had no experience with the regulations and issues that arise at the Agency, and the third candidate qualified at only the GS-5 level. Complainant, on the other hand, had worked as a Service Representative for the Agency since October 1998, and his duties included interacting with Spanish speaking individuals and managing a caseload covering a range of issues. The Commission also agreed with the AJ that the District Director’s use of the four year college degree as a criterion for selection was troubling in this case. The District Director testified that he added that criterion after reviewing all of the applications, and, thus, was aware that Complainant did not have a four year degree. While management officials provided some testimony that Complainant’s production and technical skills could warrant improvement, there was no evidence that Complainant ever received counseling or other discipline with respect to those alleged deficiencies, or that they were documented in his performance appraisals. Thus, the Commission concluded that Complainant established, by a preponderance of the evidence, that the Agency’s articulated reason for his nonselection was a pretext for age discrimination. The Agency was ordered, among other things, to offer Complainant the position or a comparable position, with appropriate back pay and benefits, retroactive to the date of the appointment of the selectees. Chianti v. Soc. Sec. Admin., EEOC Appeal No. 0720080031 (January 19, 2011).

Age Discrimination Found With Regard to Nonselection. According to the record, Complainant worked for the Agency as a Deputy U.S. Marshal. He was the Deputy in Charge of one of the Agency’s offices, a position he had held for 15 of his approximately 22 years at the Agency. During this period, Complainant served on two occasions at an acting Supervisory Deputy U.S. Marshal. Complainant applied for the Supervisory position when it was advertised and he was placed on the best qualified list. The U.S. Marshal convened a meeting with some supervisory staff members to consider the candidates. Complainant’s Supervisor and the eventual Selectee were in attendance at the meeting. The Marshal then allegedly ranked the candidates, placing the Selectee first on the list and Complainant third. The ranking list was then sent to the Career Board, which lowered Complainant’s ranking to fourth on the grounds that he did not list any supervisory experience on his application form. The Agency chose the Selectee for the position. At the time of the selection, Complainant was three years away from the Agency’s mandatory retirement age of 57.

Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his age when it did not select him for the position. Following a hearing, the AJ found that Complainant was discriminated against as alleged, and the Commission affirmed the AJ’s findings on appeal. The AJ found that Complainant credibly testified that, after the selection, his Supervisor told him that he was not selected because he was “too short,” meaning that he was too close to the mandatory retirement age and the Agency would have time to “mold” the Selectee. The AJ also credited testimony from the Administrative Officer that another candidate was initially ranked second at the suggestion of Complainant’s Supervisor solely to make it look like a female candidate was being considered. The Commission agreed with the AJ’s conclusion that the Marshal was the actual selecting official in this case, and his ranking the Selectee in the first spot exerted great influence over the Career Board. In addition, the testimony showed a lack of openness and integrity in the decision making process, and the inconsistencies between the testimony of the Marshall and Complaint’s Supervisor, when taken together, established that neither individual was telling the whole truth about the selection process. The Commission also noted that one of the Career Board members was initially shocked that Complainant was not being recommended because many individuals who had worked with him believed he had earned the promotion. Thus, the Commission found that the evidence created a strong inference of age discrimination.

Further, the Commission stated that the Agency failed to meet its burden to produce a legitimate, nondiscriminatory reason for choosing the Selectee over Complainant. The Commission noted that the record was devoid of evidence as to what, if any objective criteria were used by the Marshal to rank the candidates. Testimony from those in attendance at the initial meeting contradicted the Marshal’s assertion that “special requirements” for the position were discussed “in great detail.” In addition, Complainant’s Supervisor acknowledged telling the Marshal that the Selectee would be easy to mold. While the Marshal described the Selectee as “positive,” having “some vision,” and not requiring “direct management supervision,” there was no evidence that Complainant was difficult to work with, negative, without vision, or in need of direct supervision. The Commission stated that the AJ found that the Marshal’s testimony was not credible, and the Commission declined to accept the Marshal’s observations as legitimate reasons for the selection because, in the absence of any objective criteria, they failed to frame the factual issue with sufficient clarity to allow Complainant to demonstrate pretext. Thus, since the Agency failed to meet its burden in this case, the Complainant prevailed on his claim of age discrimination. The Agency was ordered to provide Complainant with appropriate back pay, adjust Complainant’s retirement pay, and provide training for upper-level employees at the facility in question. Kitson v. Dep’t of Justice, EEOC Appeal No. 0720100052 (February 15, 2011), request for reconsideration denied, EEOC Request No. 0520110312 (June 10, 2011).

Under the Equal Pay Act

Discrimination Found Under the Equal Pay Act. Complainant was selected for the position of Medical Administrative Officer at an Agency Outpatient Clinic. Although Complainant replaced a female GS-13 employee, he was hired at the GS-12 level. Management refused Complainant’s request for an upgrade to the GS-13 level. Complainant subsequently filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him when it paid him less than females in similar positions. On appeal, the Commission initially found that Complainant established a prima facie case of discrimination under the EPA. The record showed that Complainant was paid less than a female Administrative Officer at another Outpatient Clinic whose position was graded at the GS-13 level. In addition, Complainant showed that he and the Comparator performed equal work requiring equal skill, effort, and responsibility, under similar working conditions. Specifically, Complainant and the Comparator were both Administrative Officers responsible for administrative management at an Agency Outpatient Clinic. Further, their position descriptions showed that they performed similar tasks and had similar responsibilities, including direct supervision of clerical and clinic administrative staff, and both had the power to discipline staff employees. The Commission further determined that the Agency failed to show that a gender-neutral factor explained the disparity between Complainant and the Comparator. Agency management only indicated that they did not have any control over the grade levels and duties of employees at the Comparator’s facility, and had no knowledge of the organizational structure there. The Agency presented no testimony or other evidence explaining the disparity, and, as such, failed to establish an affirmative defense to Complainant’s claim of discrimination. The Commission found that the Agency should have known that its actions violated the EPA at the time of the violation. Thus, the Commission concluded that Complainant was entitled to back pay from the date he should have been promoted, and an equal amount in liquidated damages. The Agency was also ordered, among other things, to retroactively promote Complainant to the GS-13 level, and investigate his claim for compensatory damages. Smith v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120091163 (January 21, 2011).

Under the Rehabilitation Act

Discrimination Found With Regard to Release of Medical Information. Complainant was formerly employed by the Agency. During his employment, he sustained a back injury, and a sinus/respiratory injury. He was given multiple limited duty assignments, and was subsequently told to stop working by his physician. After Complainant left the Agency, the Agency received a subpoena in connection with a civil action Complainant had filed. The subpoena asked for Complainant’s payroll and personnel information, including his medical records. An Agency Human Resources Associate responded to the subpoena, and included correspondence between Complainant’s physician and the Agency regarding his medical diagnosis and work restrictions. Complainant ultimately filed a formal complaint with regard to the release of his medical records. On appeal, the Commission found that the Agency violated the Rehabilitation Act when it improperly transmitted Complainant’s confidential medical information. The Commission noted that there are limited exceptions to the confidentiality requirement for medical information, and those do not include a request for an employee’s medical records pursuant to a subpoena in a civil action. In addition, although not all medically-related information falls within the confidentiality provision, documentation concerning an individual’s diagnosis must be treated as confidential except in the limited circumstances described in the EEOC Regulations. The Commission stated that the Agency’s own regulations indicate that circumstances exist where the Agency’s General Counsel may refuse to authorize the production of records in response to a subpoena. In addition, the Commission rejected the Agency’s arguments that there were no provisions to notify Complainant of the disclosure, and that the Human Resources Associate was acting within the scope of her duties, stating that neither of those factors excused the Agency from liability. The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages. Bennett v. U.S. Postal Serv., EEOC Appeal No. 0120073097 (January 11, 2011), request for reconsideration denied EEOC Request No. 0520110302 (April 29, 2011).

Disability Discrimination Found With Regard to Termination. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of his disability when it terminated his employment. Complainant had been employed by the Agency as a Clerk in a temporary position while he attended college. Complainant had been born with a birth defect involving his right ear, and had surgery during the time of his employment with the Agency. Complainant indicated that an ongoing side effect of the surgery was migraine headaches. When he returned to work after his surgery, he was placed under a new Supervisor who assigned him a large workload that required him to travel between buildings. In addition, Complainant was moved from a quiet area to a high noise area. Complainant stated that his Supervisor held meetings with him in areas that were subject to high noise making it hard for him to hear. Complainant stated that on March 10, 2006, he developed an excruciating migraine, and, because he could not locate his Supervisor, spoke with a Program Analyst who told him to take his break and put his head down. Complainant stated that within minutes of putting his head down, his Supervisor walked by, said he had finally caught Complainant sleeping on the job and did not care about the migraine, and ordered Complainant to step into a private office where the Supervisor told Complainant to leave because he was not productive. Complainant stated that he was terminated when he returned to work following the incident. On appeal, the Commission found that the Agency discriminated against Complainant on the basis of his disability when it terminated him. The Commission noted that the Agency did not contest that Complainant was a qualified individual with a disability. In addition, the Commission concluded that the circumstances surrounding the termination, specifically the Supervisor’s comment and actions on Complainant’s last day of work, raised an inference of disability discrimination. The Commission then found that the Agency failed to offer any explanation for Complainant’s termination. The Supervisor offered no reasons for the termination when asked by the EEO Investigator. In addition, the termination letter did not provide any reasons for the action. The Commission noted that Complainant was rated “excellent” in every element of his most recent performance appraisal, and his Supervisor did not describe any incidents illustrating bad conduct. Thus, the Commission found that the Agency failed to articulate a legitimate, non-discriminatory reason for terminating Complainant. The Agency was ordered, among other things, to expunge all documentation relating to the termination from Complainant’s records, and pay him appropriate back pay with interest and applicable benefits. Sipriano v. Dep’t of Homeland Sec., EEOC Appeal No. 0120103167 (January 20, 2011), request for reconsideration denied, EEOC Request No. 0520110313 (May 12, 2011).

Denial of Reasonable Accommodation Found. Complainant worked for the Agency as an Auditor when she was diagnosed with cancer in 2005. Complainant underwent surgery, and transitioned back to work by teleworking four days each week and coming in to the office one day each week. A short time later, Complainant began chemotherapy to which she developed a severe allergic reaction. The allergic reaction developed over several months and resulted in nerve damage that affected her entire body. Complainant received a “fully successful” performance rating for the performance year covering this time. In approximately September 2006, Complainant’s Supervisor told her that she needed to be in the office a minimum of three days per week, and the Supervisor could not support Complainant’s current schedule on a continued, long-term basis. In March 2007, Complainant applied for disability retirement. She also submitted a written request for accommodation, asking to be allowed to telework three days per week, and have simplified duties and no time constraints. The Agency denied Complainant’s request. In May 2007, she requested a reassignment. Complainant ultimately left the Agency in July 2007.

Complainant filed a formal EEO complaint alleging that the Agency denied her reasonable accommodation, and, following a hearing, an AJ found that she was subjected to discrimination. The Commission affirmed the AJ’s findings on appeal. The AJ initially found that Complainant was a qualified individual with a disability. Complainant’s neuropathy substantially limited her ability to sit, think, and concentrate. In addition, although Complainant’s cognitive disability ultimately rendered her incapable of performing the essential functions of her GS-13 Auditor position, she was not precluded from performing the essential functions of a lower-grade Auditor position which did not involve handling high-priority, high-visibility audits. Complainant stated that the Agency routinely hired individuals directly out of college for the lower level positions and those duties were not as detailed, stressful, or intensive. In addition, Complainant’s Supervisor testified that Complainant could have performed the essential functions of a lower-grade, GS-9 Auditor position. The AJ found that Complainant’s March requests would basically have eliminated the essential functions of her position. The AJ found, however, that the Agency failed to conduct a sufficiently broad search for a reassignment for Complainant in response to her May 2007 request. Testimony from Complainant’s Supervisor as well as a Human Resources Specialist confirmed that the Agency generally did not consider reassignment as a reasonable accommodation, and specifically did not do so in Complainant’s case. In addition, while Complainant’s disability retirement application noted that reassignment was not an option because there were no vacant positions at the same grade or pay level and tenure, the Agency failed to consider whether there were any vacant lower level positions into which Complainant could have been assigned as required under the Rehabilitation Act. Testimony from Complainant and her Supervisor show that Complainant was qualified to perform a GS-9 Auditor position. In addition, the record showed that there likely were vacant funded audit positions available during the period in question. Thus, the Agency was ordered, among other things, to offer Complainant reinstatement to a GS-9 level Auditor position or a substantially equivalent position, with appropriate back pay and benefits, and pay Complainant $92,500 in non-pecuniary compensatory damages. Bartron v. Dep’t of Def., EEOC Appeal No. 0720100054 (March 3, 2011), request for reconsideration denied, EEOC Request No. 0520110399 (August 26, 2011).

Denial of Reasonable Accommodation Found. Complainant, a Mail Processing Clerk, sustained a job-related injury in September 1998, and worked in a rehabilitation position after that time. On December 8, 2006, Complainant was assigned to work a window position. She informed her Managers that her condition had flared up and she did not feel capable of performing those duties. After Complainant refused to work the window, she was sent home and placed in absent without leave status through December 13, 2006. Complainant subsequently filed a formal EEO complaint alleging, among other things, that she was denied reasonable accommodation. Following an investigation, the Agency issued a final decision finding that, while Complainant was a qualified individual with a disability, she was not denied a reasonable accommodation as she chose not to perform the duties within her modified job description during the period in question. On appeal, the Commission noted that while the Agency was providing Complainant with reasonable accommodation in the form of a modified position, the obligation to provide reasonable accommodation is ongoing and may need to be modified at times in accordance with Complainant’s condition. Thus, when Complainant informed her Managers on the date in question that she was unable to perform the requested duties because of a flare-up of her condition, she was in effect asking for further accommodation. While the Agency characterized this as Complainant’s “refusing” to do her job, the Commission found, instead, that she was asking for an adjustment to the accommodation she was receiving. The Commission noted that the Agency did not argue that it would have been an undue hardship to accommodate Complainant’s request for a modification of her duties on the date in question. Complainant stated that other clerks were available to work the window positions, and Agency Managers did not provide any evidence as to why Complainant had to work the window as opposed to another employee. In addition, Complainant requested to do other duties that were within her Modified Clerk duties. Thus, the Commission concluded that the Agency failed to provide Complainant with a reasonable accommodation. The Agency was ordered to, among other things, change Complainant’s leave status to a paid leave status for the period in question, pay Complainant back pay and any benefits due, and investigate Complainant’s claim for damages. Kreger v. U.S. Postal Serv., EEOC Appeal No. 0120080621 (March 7, 2011).

Under Title VII

National Origin Discrimination Found. Complainant applied and was found qualified for two Criminal Investigator (Group Supervisor) positions with the Agency. He was placed on the Best Qualified List for both positions, but was not selected. Complainant then filed a formal EEO complaint alleging that the Agency failed to select him because of his national origin. Following an investigation, Complainant requested a hearing before an AJ. The AJ, over Complainant’s objection, ultimately issued a decision without a hearing, finding no discrimination. On appeal, the Commission initially determined that the issuance of a decision without a hearing was improper. Specifically, the Commission stated that there was no data provided which adequately compared Complainant’s qualifications to those of the Selectees. In this case, Complainant contended that he was more qualified for the positions than either of the Selectees based upon his experience in the planning and supervision of large-scale drug operations, which the Selectees lacked. In addition, Complainant stated that he served as Acting Group Supervisor on three occasions, served almost an entire year as an Acting Country Attachè, served as an Acting Special Agent in Charge, and had more experience in the supervision and investigation of major high profile cases than the Selectees. The Agency conceded that it failed to provide information directly comparing Complainant’s qualifications to those of the Selectees, and acknowledged that all information was gathered post hoc instead of when the candidates were being considered. Thus, the Commission concluded that the lack of specificity as to why the Agency chose the Selectees made it impossible for Complainant to prove pretext, and the Agency, therefore, failed to meet its burden to articulate a legitimate, non-discriminatory reason for Complainant’s non-selection. The Agency was ordered, among other things, to place Complainant into the position he would have occupied absent the discrimination or a substantially equivalent position, with back pay and benefits, and give Complainant the opportunity to submit evidence in support of his claim for damages. Obas v. Dep’t of Justice, EEOC Appeal No. 0120083050 (October 28, 2010), request for reconsideration denied EEOC Request No. 0520110179 (April 21, 2011).

Religious Discrimination Found. Complainant, who is Roman Catholic, worked for the Agency as a Customs and Border Protection Officer. In that capacity, Complainant was required to occasionally work overtime. On Saturday, November 24, 2007, Complainant worked his regular shift from 4:00 p.m. until midnight. On Sunday, November 25, Complainant was scheduled to work form 8:00 a.m. until 4:00 p.m. Two hours before Complainant’s shift ended on Sunday, Complainant’s Supervisor ordered him to work an overtime shift from 4:00 p.m. until midnight. Complainant believed it was a mortal sin to miss mass, and informed his Supervisor of the conflict. He asked for permission to leave work for two hours, attend mass, and return to complete his assignment. The Supervisor consulted with the Overtime Desk Supervisor and informed Complainant that he had been relieved of his assignment and replaced by a co-worker. Shortly thereafter, Complainant’s other Supervisor (Supervisor 2) ordered Complainant to report to the Chief. The Chief mistakenly assumed Complainant had refused the overtime assignment, and was unaware Complainant had been replaced by a co-worker. He ordered Complainant to perform the overtime assignment and advised Complainant that he would be subject to disciplinary action if he refused. Complainant worked the overtime shift, which lasted only until 10:00 p.m. Complainant then filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his religion.

Following an investigation, the AJ issued a decision without a hearing finding that the Agency discriminated against Complainant when it failed to offer him a religious accommodation. On appeal, the Commission concurred with the AJ’s finding that there were no material facts in dispute. The parties agreed that Complainant was assigned overtime, that he complained of a conflict with his religious beliefs, and that he was ordered to complete the assignment or face disciplinary action. In addition, Complainant’s Supervisor initially excused Complainant from the assignment, indicating that a swap was an available accommodation. There was no evidence as to why replacing Complainant would violate “established policy” as the Chief averred, especially since the Chief also noted that Complainant would have been replaced if he had been excused from overtime. Further, there was no evidence that it would have been an undue burden for the Agency to have permitted a two hour delay in the start of Complainant’s overtime shift as an accommodation. The Agency was ordered, among other things, to pay Complainant $250 in proven compensatory damages, and consider Complainant’s religious accommodation requests, offering Complainant an appropriate accommodation in the absence of an undue hardship. Gonzalez v. Dep’t of Homeland Sec., EEOC Appeal No. 0720090033 (February 17, 2011), request for reconsideration denied EEOC Request No. 0520110326 (September 7, 2011).

Sex Discrimination Found. Complainant had worked for the Agency as a Claims Representative since 1992. In addition, to the traditional duties of the position, Complainant shared responsibility with others for Site LAN Coordinator (SLC) duties. The SLC duties included maintaining the computer network systems and keeping the office’s technological equipment operational. During an August 2007 staff meeting, management announced that five employees had received Exemplary Contribution of Service Awards (ECSA). All of the recipients were female, and two also performed SLC duties. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him when it denied him an ECSA. Following a hearing, an AJ found that the Agency discriminated against Complainant on the basis of his sex when it denied him the award, and the Commission affirmed the AJ’s findings on appeal. The Commission initially noted that the Agency failed to respond to a show cause order requiring the Agency to submit the complete complaint file or show good cause why it had not done so. The Commission noted that Complainant provided a copy of the AJ’s decision and the hearing transcript. Citing 29 C.F.R. § 1614.404(c)(2), the Commission stated that it would consider the matters to which the requested information pertained to be established in Complainant’s favor. With regard to the issue of the ECSA, the Commission noted that the Assistant Manager who made the nominations testified that Complainant did not receive an award because he did not perform any special act or extraordinary service. Nevertheless, the AJ did not find the Assistant Manager’s testimony worthy of belief. The AJ stated that it was undisputed that Complainant performed a significant amount of SLC duties and would lend a hand when technical difficulties arose. In addition, two of the recipients received awards for work that was basically part of the Claims Representative’s regular duties. The Commission noted that the Assistant Manager refused to admit Complainant performed duties that were outside of his job description, or that the SLC duties he performed were special. The Commission determined that the AJ correctly characterized the criteria the Assistant Manager used to decide who deserved the award as “very subjective,” stating that subjective criteria are subject to heightened scrutiny because they are inherently vulnerable to unlawful motivation. Thus, the Commission concluded that the AJ reasonably inferred that the Agency’s explanation for who deserved an ECSA was false and was, more likely than not, intended to cover up gender based discriminatory animus. The Agency was ordered, among other things, to grant Complainant an ECSA for the period in question and pay him the attendant monetary benefit, as well as pay him $1,500 in proven compensatory damages. Rodriguez v. Soc. Sec. Admin., EEOC Appeal No. 0720100032 (March 16, 2011), request for reconsideration denied EEOC Request No. 0520110382 (June 16, 2011).

Under Multiple Bases

National Origin and Sex Discrimination Found. Complainant was appointed to a Clerk position contingent upon his completion of a 90-day probationary period. The Postmaster who appointed Complainant rated him “unacceptable” in all of his rating areas for his 30 and 60-day evaluations. Complainant was ultimately issued a Notice of Separation which stated that he failed to meet the requirements of his position and had been absent without leave (AWOL) on one occasion. The record contained statements from several employees showing that the Postmaster had a history of uttering ethnic slurs to her Hispanic employees. In addition, one employee stated that she overheard the Postmaster state that she was forced to hire Complainant, and was going to make it difficult for Complainant to pass his probationary period. Complainant subsequently filed a formal EEO complaint alleging that the Agency’s actions were discriminatory. On appeal, the Commission found that the Agency discriminated against Complainant on the bases of his sex and national origin when it terminated him during his probationary period. The Commission noted that the Agency articulated legitimate, non-discriminatory reasons for terminating Complainant, namely that he failed to meet the requirements of the position and had been AWOL. Nevertheless, the Commission ultimately concluded that Complainant proved, by a preponderance of the evidence, that the Agency’s stated reasons were a pretext for discrimination. Specifically, while the Agency asserted that Complainant could not sort three or four trays of mail per hour, two employees testified that the trays Complainant was given were intentionally over packed with mail. One of the employees, who had 14 years of experience, noted that he counted 880 pieces of mail in one of Complainant’s trays while there were supposed to be only 453 pieces of mail. In addition, the Commission noted that Complainant’s Supervisor offered inconsistent testimony as to whether the AWOL contributed to Complainant’s termination, stating once that it was a factor and later that Complainant was not terminated for attendance or tardiness. Further, the Supervisor on duty on the date in question testified that he only marked Complainant AWOL because he was instructed to do so by the Postmaster. Finally, the Commission stated that the Agency failed to sufficiently explain why the Postmaster rated Complainant “unacceptable” in all six areas of performance. The Agency was ordered, among other things, to offer Complainant reinstatement to the position in question with appropriate back pay and benefits, and investigate Complainant’s claim for compensatory damages. Bustamante v. U.S. Postal Serv., EEOC Appeal No. 0120080104 (December 10, 2010), request for reconsideration denied, EEOC Request No. 0520110231 (June 30, 2011).

Race and Color Discrimination Found. Complainant, who had been working at the Agency in various capacities since 1980, received a Specific Notice of Reduction in Force (RIF). Complainant was advised that she would be terminated from her EAS-16 Purchasing Coordinator position due to a realignment of functions within the Inspection Service where her position was located. Complainant was informed that there were two vacant Investigative Analyst positions for which consideration was limited to those individuals impacted by the RIF. Complainant’s previous work at the Agency included the tasks listed for that position. Complainant submitted her application, and was eligible for favorable consideration. The Selecting Official and the Special Agent in Charge asked several individuals which of the employees on the list of applicants would be good for the position. The Selecting Official did not conduct any interviews and, even though she did not know Complainant, decided against hiring Complainant because the Selecting Official did not think Complainant would be the “best fit”. The Selecting Official assumed it would be difficult for Complainant to go from a supervisory to a non-supervisory position, and believed Complainant was overqualified for the job. Prior to forwarding her initial selections to Human Resources, the Selecting Official spoke with one of the other applicants and asked who the applicant would recommend for one of the positions. The Selecting Official did not mention that Complainant was a possible candidate. The Selecting Official selected other applicants for the two positions, stating that her decision was based on the recommendations she had sought. It is noted that Complainant’s Supervisor had also recommended four individuals for the positions, including Complainant. The Supervisor stated that she felt Complainant had greater skills and abilities than the other candidates, and that neither of the Selectees had the knowledge, skills or abilities for the position. Complainant was ultimately separated on November 9, 2006, and filed a formal EEO complaint alleging that the non-selection was discriminatory.

Following a hearing, an AJ found that the Agency discriminated against Complainant on the bases of her race and color when it did not select her for the position in question. The Commission affirmed the AJ’s findings on appeal. The Commission initially noted that Complainant, an African-American, established a prima facie case because she was qualified for the position and was not selected in favor of her White subordinates. In addition, the AJ found the Selecting Officials’ testimony as to why Complainant was not selected to be unworthy of belief. Specifically, there was no evidence to support the Selecting Official’s assumption that Complainant would be unable to transition to a non-supervisory position. The testimony of Complainant’s Supervisor regarding Complainant’s work ethic and attitude, instead, showed that Complainant had professional flexibility and maturity. In addition, the Commission found no evidence to support the Selecting Official’s assumption that Complainant was overqualified for the position. The Commission further determined that the evidence supported the AJ’s finding that Complainant’s qualifications were superior to those of the Selectees. The AJ credited the Supervisor’s testimony that Complainant had greater skills and abilities than the other candidates, and the Agency failed to rebut those statements. The Commission rejected the Agency’s suggestion that the AJ erred by taking evidence concerning Complainant’s treatment while working in a particular office of the Agency. The testimony showed that Complainant and other African-American Supervisors were generally bypassed and ignored by other employees in the named office. The Commission noted that, since the selection was determined by word of mouth references from former employees in that office, evidence about the racial environment and how African-Americans were treated was highly relevant background evidence in this case. Thus, the Commission agreed with the AJ’s conclusion that Complainant proved that the Agency’s articulated reasons for her non-selection were a pretext for race and color discrimination. The Agency was ordered, among other things, to retroactively promote Complainant to the position in question or a substantially equivalent position, with appropriate back pay and benefits, and pay Complainant $32,000 in proven compensatory damages. Wiggins v. U.S. Postal Serv. EEOC Appeal No. 0720100022 (January 13, 2011).

Race, Sex, and Reprisal Found. Complainant had been employed as a Disaster Assistance Employee at the Federal Emergency Management Agency since 1996. She had a consistent work history of being deployed over eight years in senior-level management positions for catastrophic events, and received numerous awards and bonuses. In 2005, while serving as a Branch Chief of Community Education and Outreach, the Agency conducted an administrative investigation based on written complaints filed by two of Complainant’s newly employed subordinate staff members, and shortly thereafter, the Agency released her from her position. Complainant filed a formal EEO complaint alleging that the Agency’s actions were discriminatory based on her race, sex, and prior EEO activity. Following a hearing in the matter, an AJ found that the Agency discriminated against Complainant as alleged. The Commission affirmed the AJ’s findings on appeal. According to the record, three months prior to the investigation, Complainant had a conversation with her immediate Supervisor about her belief that the Supervisor engaged in on-going negative actions towards non-white staff. Complainant told her Supervisor that she believed the Supervisor had used the word “darkie,” and Complainant indicated that she would file an EEO complaint if the Supervisor continued to undermine her authority. The Commission found that this evidence was sufficient to support an inference of discrimination and establish a prima facie case. Specifically, shortly after accusing her Supervisor of acting in a racially discriminatory manner, Complainant was subjected to an investigation of her management style and released from her position with a recommendation that she be terminated. In addition, the Commission concluded that substantial evidence of record supported the AJ’s finding that Complainant proved that the Agency’s explanations of its actions were a pretext for discrimination and retaliation. Three high-level management officials outside of the office testified that there were flaws in the investigation and questioned its objectivity. In addition, the officials testified as to the unusual nature of the penalty imposed in this case. Further, there was evidence that a similarly situated Manager not of Complainant’s protected groups was treated much more favorably during the same time period and was only informally counseled by the Supervisor. Thus, the Commission concluded that the evidence supported the AJ’s finding of discrimination and retaliation. The Agency was ordered, among other things, to pay Complainant $60,000 in proven compensatory damages, expunge evaluation reports of any documents referencing the administrative investigation from Complainant’s personnel file, and place Complainant in a managerial position comparable to the one she held at the time of the discrimination, with appropriate back pay and benefits. Farrington v. Dep’t of Homeland Sec., EEOC Appeal No. 0720090011 (January 19, 2011), request for reconsideration denied, EEOC Request No. 0520110295 (May 12, 2011).

Race and Reprisal Found. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the bases of his race and prior EEO activity when it did not select him for a Supervisory Information Technology Specialist position. Following a hearing, an AJ found that the Agency did discriminate against Complainant as alleged. According to the record, the Selecting Official assisted in the development of the vacancy announcement and selected panelists to interview the candidates. During Complainant’s interview, the Selecting Official repeatedly interfered while Complainant was answering questions by cutting him off and informing the panel members that Complainant would not know the answer. The Selecting Official also allowed an additional individual with whom Complainant had a dispute to sit in on Complainant’s interview. The Selecting Official was present during the panel’s deliberations and took the scoring sheets to develop a matrix to establish the overall scores. Complainant received the lowest score. The record showed that Complainant possessed both a Bachelors and a Masters degree in Computer Science, while the Selectee did not possess any advanced degrees. In addition, Complainant was selected as the Employee of the Year, and had earned several awards related to his job performance. Complainant had also worked for the Agency in positions of significant responsibility, in multiple computer disciplines, had an in-depth knowledge of the Agency’s computer systems, and excelled in his job performance as demonstrated by his evaluations.

The Commission found that substantial evidence in the record supported the AJ’s conclusion that the Selecting Official harbored both discriminatory and retaliatory animus against Complainant. Complainant had previously filed an EEO complaint against the Selecting Official. The AJ found that Complainant and a co-worker credibly testified that the Selecting Official referred to Help Desk employees, all of whom were African-American, as “monkeys,” and stated that Complainant, the co-worker, and another African-American employee were “somewhat incompetent and not skillful.” The AJ also noted that, after the Selecting Official became the Chief Information Officer, four African-American employees under his supervision, including Complainant, were moved out of the headquarters office and away from daily contact with the Selecting Official. The Commission further concurred with the AJ that the vacancy announcement and interview questions were specifically written for the Selectee, and the entire selection process was impermissibly tainted by the Selecting Official. The Commission stated that there was no evidence from which a reasonable fact finder could conclude that the selection process was fair and neutral such that Complainant would have scored as poorly as he did absent the Selecting Official’s discriminatory motive. The Agency was ordered, among other things, to retroactively promote Complainant to the Supervisory IT Specialist position with appropriate back pay and benefits, and pay Complainant $10,000 in proven compensatory damages. Pierre v. Dep’t of the Interior, EEOC Appeal No. 0720100045 (February 3, 2011).

Race, Sex, and Age Discrimination Found. Complainant worked for the Agency as a Technical Expert. She filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race, sex, and age when it did not select her for a promotion to the position of Supervisory Social Insurance Specialist. Following a hearing in the matter, an AJ found that Complainant was discriminated against as alleged, and the Commission affirmed the AJ’s findings on appeal. According to the record, Complainant had worked for the Agency for more than 37 years and had experience processing a variety of cases. In addition, she had served as the Officer in Charge when her Supervisor was absent. The AJ noted that the person selected for the position in question would be responsible for overseeing two areas in which Complainant had worked. Complainant was not selected in favor of a 29-year old Caucasian male candidate. The AJ noted that the Recommending Official requested input from both the Selectee’s Supervisor and Complainant’s prior Supervisor. Although the Selectee’s Supervisor “highly recommended” the Selectee and Complainant’s prior Supervisor only recommended her, there was no clear definition of the difference between the two recommendations, especially in light of the fact that Complainant received yearly performance awards for outstanding performance from her prior Supervisor. In addition, while the Agency stated that it chose the Selectee because of his knowledge and experience with computer software, neither of those criteria was mentioned in the position description or vacancy announcement, and the position was not a Computer Specialist position. The Commission concluded that the experience, knowledge and training Complainant possessed in all aspects of the Agency’s work supported the AJ’s finding that Complainant’s qualifications were plainly superior to those of the Selectee. Thus, Complainant established by a preponderance of the evidence that the Agency discriminated against her when it did not select her for the Supervisory position. The Agency was ordered, among other things, to retroactively place Complainant into the position or a substantially equivalent position, and pay her $2,000 in proven compensatory damages. Gilmore v. Soc. Sec. Admin., EEOC Appeal No. 0720100003 (March 2, 2011).

Retaliation

Retaliation Found With Regard to AWOL Charge. Complainant, a Medical Instrument Technician, amended a prior EEO complaint to include the issue of whether the Agency retaliated against her when it charged her with 3.75 hours of absence without leave (AWOL). Complainant had previously alleged that a co-worker harassed her and created a hostile work environment. According to the record, Complainant and the co-worker were given letters advising them to stay away from each other except in a professional capacity. On the date in question, however, Complainant and the co-worker were assigned to work together in a small, enclosed area. Complainant informed the Nurse Manager that she could not work with the co-worker, but the Nurse Manager refused Complainant’s request to work in another area. Complainant then began shaking and crying, and went to the employee health unit after receiving no response to her request to do so. Complainant later returned to her work area with a slip verifying that she had been seen in the health unit and was instructed to go home for the day. The Nurse Manager later charged Complainant with AWOL for her absence on that day.

An AJ held a hearing with regard to the AWOL charge and found that Complainant was retaliated against as alleged. The Commission concurred with the AJ’s findings on appeal. The Commission stated that the record supported the AJ’s finding that there was a strong retaliatory animus in this case, because the Nurse Manager was directly involved in the attempts to resolve Complainant’s harassment allegation and was aware that Complainant’s doctor had stated that she could not work with the co-worker for mental health reasons. Nevertheless, the Nurse Manager issued “stay away” letters which continued to require Complainant to work with the co-worker. While the Nurse Manager stated that she charged Complainant with AWOL because she did not know where Complainant was, the Nurse Manager later admitted that she heard Complainant say she was going to the health unit and Complainant provided her with a note upon her return. There was nothing in the record definitively explaining the Agency’s policy on when a Manager could deny a request to go to the health unit. Thus, the Commission found substantial evidence to support the finding that the Agency retaliated against Complainant. The Agency was ordered, among other things, to compensate Complainant for the 3.75 hours of AWOL, with interest, expunge the AWOL charge from Complainant’s records, and pay Complainant $3,000 in proven compensatory damages. Stone v. Dep’t of Veterans Affairs, EEOC Appeal No. 0720100004 (January 11, 2011).

Reprisal Found. Complainant, a Criminal Investigator, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him in March 2007 when the Special Agent in Charge (SAC) informed the Office of Professional Responsibility that Complainant made false statements on an official document. According to the record, Complainant was scheduled to attend a meeting with the SAC and another Manager. Complainant, however, called the Manager stating that he would not be in the office because he was not feeling well. Several days later, the Manager advised Complainant that the SAC wanted him to prepare a statement regarding his absence on the date in question. Complainant submitted a prepared statement noting that he had been instructed that if he did not provide the statement he would be subject to discipline up to removal for insubordination. Complainant explained that he left the office for lunch on the date in question, and went to the hospital because of health concerns. The SAC later asked Complainant whether the Manager threatened him with discipline, and Complainant did not directly answer the question, but stated that his union representative told him to include the statement. The SAC then told Complainant that she was mandated to report the matter to the Office of Professional Responsibility because it was a falsification of an official government document. Complainant contacted an EEO Counselor, at which time he mentioned, among other things, that the SAC threatened him with an internal investigation for making an allegedly false statement. The EEO Counselor spoke with the SAC about Complainant’s charges of discrimination. Approximately two weeks later, the SAC submitted a written referral to the Office of Professional Responsibility, which declined to investigate the matter and referred it back to the SAC for her to address internally. The SAC assigned a Special Agent to investigate the alleged falsification of a government document. Following a hearing, an AJ found that the Agency retaliated against Complainant with regard to the written referral to the Office of Professional Responsibility. On appeal, the Commission affirmed the AJ’s finding. The Commission noted that while the SAC stated that, at the time Complainant initially gave his statement, she found Complainant’s actions to have been an egregious act that amounted to falsifying a government document, the SAC did not initiate any disciplinary actions or an investigation until approximately two months later after she learned that Complainant had contacted an EEO Counselor. Thus, the Commission concluded that substantial evidence supported the AJ’s finding that the written referral to the Office of Professional Responsibility was meant to intimidate Complainant in response to his EEO filing, and constituted retaliation. The Agency was ordered, among other things, to pay Complainant $2,000 in proven compensatory damages, as well as attorney’s fees and costs. Santiago v. Dep’t of Homeland Sec., EEOC Appeal No. 0720100038 (March 2, 2011).

Mixed Motive

Race Discrimination Found. Complainant, a Letter Carrier, had worked for the Agency for 18 years. He filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of his race when it terminated him from employment. According to the record, the Supervisor of Customer Service testified that, approximately three years prior to Complainant’s termination, she witnessed two co-workers call Complainant a “monkey.” The Supervisor stated that she reported the comment to the Postmaster who held a meeting with Complainant and the two individuals. The Supervisor stated that, after the meeting, she heard the co-workers make derogatory remarks about Complainant on more than one occasion but did not report those incidents. The Supervisor indicated, however, that the Postmaster was aware that the co-workers continued to make racially derogatory comments to Complainant, because he had to intervene in several altercations between the employees. Complainant testified that one of the co-workers called him a “jungle monkey,” and “snake.” In June 2005, Complainant and the two co-workers again engaged in a loud verbal altercation which was overheard by customers at the facility. The Supervisor intervened and determined that all three employees deserved corrective actions for “conduct unbecoming.” The Supervisor stated that Complainant was issued a Notice of Removal because he already had prior discipline consisting of a letter of warning and two suspensions. The two co-workers, who did not have prior discipline, received seven-day suspensions.

On appeal, the Commission found that the Agency provided a non-discriminatory reason for terminating Complainant, that is, the altercation with his two co-workers and history of prior discipline. Nevertheless, the Commission concluded that race was a motivating factor in Complainant’s termination. While the Agency maintained that the friction between Complainant and one of the co-workers was caused by Complainant’s lack of affiliation with the union, the evidence established the two co-workers clearly exhibited racial hostility toward Complainant as reflected by their use of the incendiary terms “monkey” and “jungle monkey” in relation to Complainant. The Commission stated that those terms were derived from a long history of portraying African-Americans as subhuman or inferior. The Agency asserted that the Postmaster investigated the comments and resolved the matter. The Supervisor, however, testified that the co-workers continued to make derogatory comments about Complainant. The Agency failed to show that it took any disciplinary action against the co-workers after learning they were using racial slurs. Thus, the Commission concluded that the Agency failed to fulfill its duty to adequately address and resolve the racially charged atmosphere against Complainant. The Commission further found that the June 2005 altercation that led to Complainant’s termination was the foreseeable result of the Agency’s failure to stop the racially charged comments directed at Complainant. Thus, Complainant’s removal was inextricably intertwined with the racial remarks he endured from the co-workers. The Commission noted that the racially charged actions of the co-workers were essentially ratified by management’s indifference to Complainant’s situation. Thus, the Commission found that race was a factor in the Agency’s decision to terminate Complainant. Given the Postmaster’s statement that the racial comments would have been an “extenuating circumstance” in his decision regarding Complainant’s removal, the Commission determined the Agency did not meet its burden of proving that it would have terminated Complainant absent the unlawful discrimination. The Agency was ordered, among other things, to offer to place Complainant into his former position, with appropriate back pay and benefits, expunge all documentation pertaining to the termination from Complainant’s records, and investigate Complainant’s claim for damages. Almon v. U.S. Postal Serv., EEOC Appeal No. 0720090023 (February 9, 2011).

Official Time

Complainant Not Provided Reasonable Amount of Official Time. Complainant filed a formal complaint of harassment concerning actions taken by her Manager. Complainant then alleged that the Agency denied her a reasonable amount of official time to meet with her EEO representative and work on her EEO complaint. The Agency initially dismissed the complaint. After the issue of official time was remanded to the Agency by the Commission, the Agency conducted a supplemental investigation and issued a final decision finding that Complainant was not denied reasonable official time. Complainant appealed that decision to the Commission. In the instant decision, the Commission noted that Complainant requested two and one-half hours of official time to prepare her pre-complaint form and meet with her EEO representative. Complainant’s Supervisor granted Complainant’s request and scheduled a period of two and one-half hours for her to complete those tasks. In its final decision, the Agency indicated that the Manager, who was the same official named in Complainant’s complaint, noted that she discussed Complainant’s request with the EEO Office and was informed that 15 to 20 minutes was a reasonable amount of time to meet with an EEO Counselor. The Manager then granted Complainant only 15 minutes to complete a request for counseling form. The Commission noted that the Manager’s statements were not part of the evidentiary record. Thus, given the Agency’s assertion in its final decision that it was Agency policy to inform all field managers that 15 to 30 minutes was a reasonable amount of official time, the Agency’s justification for allowing Complainant only 15 minutes was suspect. There was no explanation why the Agency chose to allow Complainant only 15 minutes of official time after she had already been approved and scheduled for two and one-half hours. In addition, the Commission found that the Agency’s assertion that the Manager telephoned the EEO Office to determine what was reasonable was not consistent with the Manager’s statement, as related in the final decision, that all employees requesting official time were treated the same, or with the Agency’s assertion that there was a policy advising managers that 15 to 30 minutes was reasonable. Thus, the Commission concluded that Complainant was not allowed a reasonable amount of official time. The Agency was ordered to require all Managers and Supervisors at the facility to read and affirm that they understood the process for requesting official time, and reimburse Complainant for any leave or leave without pay taken as a result of being denied official time. Maddox v. U.S. Postal Serv. EEOC Appeal No. 0120081760 (February 17, 2011).

Remedies

Remedies Discussed. Following a hearing, an AJ found that the Agency discriminated against Complainant on the basis of her prior EEO activity when it issued her a 14 day suspension letter and letter of termination. The AJ found that the suspension and removal concerned time and attendance matters that were associated with Complainant’s disability and were addressed in the settlement of a prior EEO complaint. Complainant was ultimately reinstated to her position and paid back pay with interest as a result of a grievance decision. On appeal, the Commission addressed the additional relief awarded by the AJ. The Commission initially determined that Complainant was not entitled to recoup losses incurred from selling her home or moving and rental expenses. The Commission noted that the Agency did not relocate Complainant. In addition, Complainant stated that she “panicked” three days after her removal and put her house on the market. The Commission noted that Complainant’s choice to sell her home out of fear and before she received unemployment benefits, withdrew a hardship loan, or searched for other jobs attenuated the link between the Agency’s discrimination and the sale of her home.

The Commission concluded, however, that Complainant was entitled to recover a $1,000 tax penalty for early withdrawal from her Thrift Savings Plan (TSP). The record contained a letter to Complainant from the TSP office regarding a $10,000 hardship loan that Complainant withdrew, which noted a $1,000 deduction for federal income tax withholding. The Commission found that this penalty amounted to an out-of-pocket expense resulting from the discrimination. In addition, the Commission stated that Complainant was entitled to payment in the amount of $1,140 representing the loss of the Agency’s TSP matching contributions. The matching contributions were equitable relief because they were job benefits that Complainant would have received if she had not been unlawfully terminated. The Commission further concluded that Complainant was entitled to an award of $25,000 in non-pecuniary compensatory damages. The record showed that Complainant suffered from stress, anxiety, depression, social withdrawal, and embarrassment, and her disability was exacerbated by the stress of the discrimination. The emotional and physical distress lasted for more than one year. Complainant provided a note from her doctor indicating that the loss of her job severely affected her medical condition, and there were days when she could not get out of bed. The record also contained two letters from licensed clinical social workers that corroborate Complainant’s statements. Barrington v. U.S. Postal Serv., EEOC Appeal No. 0120101822 (February 23, 2011).

Settlement Agreements

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement which, among other things, provided that Complainant was entitled to “first consideration” for three positions with the Agency. The agreement specifically stated that “first consideration” meant that Complainant was entitled to be interviewed for a position prior to a vacancy announcement being issued. On appeal, the Commission found that the Agency breached the agreement. The record showed that Complainant did receive first consideration for one position. In addition, the Commission agreed with the Agency that it appeared Complainant received first consideration for a second position. The Commission noted, however, that the Agency acknowledged that Complainant had not received an additional first consideration as provided for in the agreement. The Commission remanded that matter to the Agency for specific performance. In doing so, the Commission noted that while the agreement provided that it was Complainant’s burden to locate and apply for a position, the Agency was obligated to cooperate with Complainant in that regard. The Commission noted that statements from the Human Resources Official show that she was “less than cooperative,” and there was no evidence she assisted Complainant in locating unannounced positions. Instead, the Official ignored Complainant’s requests for information about unannounced positions and simply processed Complainant’s applications for announced vacancies. Thus, the Commission ordered the Agency to cooperate with Complainant in locating a position for which she would like to apply. Tellis v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120103627 (January 11, 2011).

Settlement Agreement Set Aside. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that 1. the parties would talk to each other in a professional, normal tone, acknowledge the presence and statements of the other party; discuss their grievances in private; not smirk, sigh loudly, or roll their eyes; keep a calm demeanor; and attempt to recognize any need for a break; 2. the parties would treat their fellow employees with this same dignity and respect; 3. the Postmaster would attempt a near equalization of clerk hours; 4. the Postmaster would rotate all higher level assignments; and 5. the Postmaster would rotate schedules. On appeal, the Commission initially determined that Terms 1, 2 and 3 were too vague to be enforceable. Specifically, the types of behavior listed in Terms 1 and 2 are merely those generally expected in the workplace. In addition, Term 3 only required the Postmaster to “attempt” a near equalization of work hours and did not require this. The Commission also found that the Agency breached Terms 4 and 5, since the evidence did not show that all higher level hours and schedules were rotated. The Commission noted that, in fact, the Agency indicated that the Postmaster stopped allowing Complainant to work higher level hours altogether. Thus, the Agency was ordered to reinstate the underlying EEO complaint for processing. Eberle v. U.S. Postal Serv., EEOC Appeal No. 0120091299 (January 21, 2011), request for reconsideration denied, EEOC Request No. 0520110316 (July 22, 2011).

Stating a Claim

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

Donelan v. U.S. Postal Serv., EEOC Appeal No. 0120103073 (December 2, 2010) (the Complainant’s claim that he was targeted by management and not permitted to gain the skills needed for promotion stated a viable claim of discriminatory harassment. Complainant alleged tangible and non-tangible employment actions in support of his claim).

Lincke v. U.S. Postal Serv., EEOC Appeal No. 0120103339 (December 29, 2010) (the Agency’s dismissal of the complaint was improper given that Complainant raised more than a dozen instances of alleged discriminatory harassment by a co-worker including the co-worker affecting the completion of Complainant’s duties, spreading gossip about Complainant, and following Complainant around the workplace to the point of stalking Complainant).

Brensinger v. Dep’t of the Navy, EEOC Appeal No. 0120103675 (January 14, 2011) (the Complainant’s allegation that the Agency denied her reasonable accommodation stated a viable claim of disability discrimination. The Agency’s assertions regarding Complainant’s failure to complete a reasonable accommodation request and failure to update her resume went to the merits of the complaint and were not relevant to the procedural issue of whether Complainant stated a claim).

Canonica v. U.S. Postal Serv., EEOC Appeal No. 0120102408 (January 20, 2011) (the Complainant’s claim that the Agency retaliated against him when it issued him two letters of warning on the same day stated a viable claim, because such actions could be reasonably likely to deter protected EEO activity).

Srinivas v. Dep’t of Agric., EEOC Appeal No. 0120103559 (February 3, 2011) (the Commission found that the Agency improperly isolated several examples of harassment given by Complainant and then dismissed the complaint. A fair reading of the complaint, EEO Counselor’s report, and statement on appeal showed that Complainant painted a larger picture of an alleged pervasive atmosphere of significant ongoing harassment based on Complainant’s national origin and religion that continued for a three-year period).

Khatami v. Dep’t of Health & Human Serv., EEOC Appeal No. 0120110001 (February 4, 2011) (the Complainant, a former Agency employee, raised a valid claim of discrimination and retaliation with regard to the Agency’s actions taken against her in relation to meetings and conferences held at an Agency facility. Complainant asserted that the Agency’s actions were motivated by a desire to retaliate against her for engaging in protected activity while she was an Agency employee, and were designed to intimidate her and interfere with her right to attend public conferences).

Jordan v. Dep’t of Health & Human Serv, EEOC Appeal No. 0120103744 (February 24, 2011) (the Complainant’s claim that the Agency discriminated against him when it issued him a Memorandum of Warning stated a viable claim given that the Memorandum was in writing, placed in a department file, and the Agency did not provide any evidence that it would not be considered in future disciplinary actions).

Szczesny v. U.S. Postal Serv., EEOC Appeal No. 0120103622 (March 1, 2011) (the Complainant stated a viable claim of retaliation when he alleged that a Supervisor suggested, during an employee meeting and in front of two management officials, that employees hold a “blanket party” for Complainant to restore overtime. Complainant asserted that the meeting was scheduled as a result of an EEO settlement agreement in which Complainant had served as a representative, and that a “blanket party” referred to a violent group attack on a unpopular soldier).

Williams v. U.S. Postal Serv., EEOC Appeal No. 0120110193 (March 4, 2011) (the Complainant raised a viable claim of retaliation when he alleged that an Acting Supervisor subjected him to intrusive and repeated monitoring, told employees not to trust Complainant because he filed EEO claims, and “laid down the law” on lunch and breaks indicating that she was doing so to cover herself because Complainant filed EEO claims).

Wiley v. U.S. Postal Serv., EEOC Appeal No. 0120092567 (March 11, 2011) (the Complainant’s allegation that the Agency announced that that employees on light and limited duty would be placed at the end of the line for selecting daily tasks rather than by order of seniority stated a viable claim of disability discrimination. Complainant was alleging that she was treated less favorably because of her disability with regard to the daily assignment of work).

Odom v. U.S. Postal Serv., EEOC Appeal No. 0120110523 (March 16, 2011) (the Complainant’s allegation that the Agency cancelled a vacancy announcement for which he had been found qualified stated a viable claim of retaliation. Complainant was alleging that the vacancy announcement was cancelled for a discriminatory reason, that is his prior EEO activity, to avoid giving him the position).

(In the following cases, the Commission affirmed the Agency’s determination that the Complainant failed to state a claim. –Ed.)

Duncan v. U.S. Postal Serv., EEOC Appeal No. 0120103401 (January 4, 2011) (the Complainant’s claim that the Agency retaliated against him for his “opposition” as a union representative when the Family and Medical Leave Act Coordinator obtained clarification of his documentation did not state a viable claim under the EEOC Regulations. There was no allegation that Complainant engaged in protected EEO activity, and the allegation regarding the Coordinator’s actions constituted an impermissible collateral attack on the FMLA process).

Richards v. Gen. Serv. Admin., EEOC Appeal No. 0120091188 (January 21, 2011) (the Complainant worked for as a Site Supervisor for FedServ Industries. Since, he was not an Agency employee, his complaint was properly dismissed. There was no evidence Complainant was hired by the Agency, nor that the Agency paid his salary, provided him with tools or instructions regarding the execution of his daily tasks, or directly supervised him in the performance of his duties).

Gibbs v. U.S. Postal Serv., EEOC Appeal No. 0120110226 (February 18, 2011) (the Complainant’s allegations that the Agency harassed her husband and changed his non scheduled days did not state a claim under the EEOC Regulations, since Complainant specified no adverse incident affecting a term, condition, or privilege of her employment).

Summary Judgment

Summary Judgment Was Proper. According to the record, Complainant worked as a Distribution Process Worker. On a particular date, she was assigned to work in a warehouse where she did not normally work. Employees at the warehouse chose whatever workstation they wanted. On the date in question, Complainant found a stick figure drawn with thick black marker at the station she selected. Complainant initially tore the drawing into pieces and threw the pieces in a trash can, but later removed the pieces from the trash can and showed them to co-workers. Various co-workers indicated that the drawing had been at the workstation for months, and one co-worker stated that he tried to “scribble it out.” Complainant subsequently filed a formal EEO complaint alleging that the Agency subjected her to harassment by making her work in the same area as the co-worker who Complainant claimed drew the figure. Complainant stated that the drawing was a portrayal of a black person and was left at the workstation to make fun of her. Following an investigation, Complainant requested an administrative hearing. The AJ granted the Agency’s motion for a decision without a hearing, and found that Complainant failed to prove that the Agency subjected her to harassment. On appeal, the Commission concurred with the AJ’s decision. The Commission initially found that the AJ appropriately issued a decision without a hearing, as there were no genuine issues of material fact. The Commission noted that it was undisputed that the drawing did not have Complainant’s name or any offensive words on it. Further, there was no offensive behavior from the co-worker or any other co-worker pertaining to the drawing, and the drawing had been at the workstation for months prior to Complainant discovering it. Finally, the Lieutenant Commander investigated the matter and brought the drawing to the attention of the EEO Counselor. The Commission concluded that, drawing every inference in Complainant’s favor, she did not show that she was subjected to a discriminatory hostile environment. Mays v. Dep’t of Def., EEOC Appeal No. 0120102128 (January 4, 2011).

Summary Judgment Improper. Complainant, a Canine Technician, filed two formal EEO complaints alleging that the Agency discriminated against him on the bases of race, and prior protected EEO activity. Complainant raised a number of issues concerning statements and actions of three supervisors, including one supervisor sending a racially insensitive note, page from one of his supervisors; the supervisor calling his doctor without Complainant’s permission; another supervisor telling Complainant that the supervisor did not like the complaints Complainant had been making and the supervisor making subtle threats such as asking Complainant if he wanted to remain in his job; and being given a notice of suspension. The AJ issued a decision without a hearing for both complaints, and found that Complainant failed to prove discrimination as alleged. On appeal, the Commission found that the AJ erred when he concluded that there was no genuine issue of material fact. With respect to Complainant’s first complaint, the Commission determined that there were numerous statements alleged by Complainant that support a claim of retaliation that could only be resolved by weighing conflicting evidence. For example, the Commission noted that management’s serving Complainant with a suspension on the exact same day as the first supervisor met with him to discuss his complaints, and the fact that the supervisor allegedly threatened Complainant was suspect. In addition, the AJ had to make credibility findings with respect to Complainant’s assertion about a meeting. With regard to the second complaint, the Commission noted that the record contained statements from Complainant’s co-workers which support Complainant’s allegations of retaliation and discrimination which raise an issue of material fact sufficient to entitle Complainant to a hearing. Finally, the Commission stated that the record was not sufficiently developed with regard to several allegations, including the matter of the suspension. The Commission found that there were too many unresolved issues which required an assessment as to the credibility of the various management officials, co-workers, and Complainant, himself. Thus, the Commission concluded that judgment as a matter of law for the Agency should not have been granted, and the matter was remanded for an administrative hearing. Blount v. Dep’t of Homeland Sec., EEOC Appeal Nos. 0120092692, 0120103369 (April 13, 2011).

Summary Judgment Was Improper. Complainant, a Supervisory Detention Specialist, filed a formal EEO complaint alleging that the Agency harassed and discriminated against her, including placing her on administrative leave, and undermining her ability to function. At the conclusion of the investigation, Complainant requested an administrative hearing. Prior to a hearing being held, the AJ accepted amended complaints from Complainant which raised additional issues such as the removal of her supervisory duties, a charge of absence without leave, and a letter of warning. The AJ ultimately granted the Agency’s motion for summary judgment, and found that Complainant had not been discriminated against or subjected to harassment. On appeal, the Commission found that the AJ erred in concluding that there were no genuine issues of material facts in the case. The Commission noted that Complainant asserted, among other things, that several management officials made statements to the effect that Complainant did not belong in the Bureau of Indian Affairs because she was a white female, and that Complainant did not understand Indian people because she was white. In addition, Complainant stated that one official referred to an internal affairs investigation, stating that it showed Complainant had no integrity or credibility even though the main charges of the investigation concerning financial impropriety were not sustained. Complainant stated that this was an especially undermining accusation against a law enforcement official. The Commission concluded that, construing the evidence in the light most favorable to Complainant, an inference of discrimination was raised. The Commission noted that Complainant raised many specific examples of alleged harassment that, when taken together, would rise to the level of actionable harassment. Finally, the Commission stated that Complainant raised a claim under the Equal Pay Act that was not adequately developed, as there was little information as to whether the comparison positions cited were substantially equivalent to Complainant’s position. Thus, the complaint was remanded for an administrative hearing. Wilson v. Dep’t of the Interior, EEOC Appeal No. 0120100318 (January 11, 2011).

Timeliness

Formal Complaint Deemed Timely Filed. Complainant filed a formal EEO complaint on August 25, 2010, alleging that the Agency subjected her to hostile work environment harassment on the bases of her disability and prior EEO activity. The Agency dismissed the complaint, stating that Complainant received a Notice of Right to File a Discrimination Complaint on August 9, 2010. On appeal, the Commission found sufficient justification to extend the limitation period for filing a formal complaint by one day. Specifically, Complainant stated that, in her town, mail is not delivered to her house, but to a post office box. Complainant then noted that, due to her medical condition, she cannot walk far. Complainant also noted that she cannot drive and must rely on a third party to pick up her mail. Complainant stated that the individual who retrieved her mail did not provide it to her until August 10, 2010. The Commission stated that the specific circumstances in the case, including Complainant’s medical condition, and her reliance upon third parties to retrieve her mail from a post office box, warranted an extension of the filing period. Albright v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120110509 (March 18, 2011).

EEO Counselor Contact Timely. Complainant contacted an EEO Counselor on January 15, 2010, and subsequently filed a formal complaint alleging that the Agency discriminated against him on the bases of his race and color when it terminated him. Complainant stated that he received a Notice of Proposed Removal on July 18, 2008, and believed that his sole avenue to appeal his termination was to file an action with the Agency’s Disciplinary Review Board. The Agency subsequently dismissed the complaint for failure to timely contact an EEO Counselor. The Agency noted that Complainant initially filed an appeal with the Merit Systems Protection Board on September 14, 2009, and deemed that the date of contact for purposes of his EEO complaint. Nevertheless, the Agency asserted that Complainant still failed to timely raise his claim. On appeal, the Commission found that the time limitation for Complainant’s EEO contact should be subject to equitable tolling. The Commission noted that while the record contained a list of EEO training courses attended by Complainant, the record did not contain copies of the training material utilized in any of the classes or other information which would clearly demonstrate that the 45-day limitation period for contacting an EEO Counselor was discussed. Further, there was nothing in the record showing that there were posters in the workplace notifying employees of their rights. Thus, the Commission found insufficient evidence to show that Complainant had constructive knowledge of the time limits. Further, the Commission stated that the Agency did not provide a copy of the Notice of Proposed Removal to rebut Complainant’s contention that he was led to believe that the Disciplinary Review Board was his sole avenue of appeal. Grant v. Dep’t of Homeland Sec., EEOC Appeal No. 0120103037 (February 17, 2011)

.

EEO Counselor Contact Timely. Complainant contacted an EEO Counselor, alleging that the Agency discriminated against her when it issued her a Notice of Removal. The Agency ultimately dismissed the complaint for failure to timely contact an EEO Counselor, stating that while Complainant received notice of her termination on March 19, 2010, she did not initiate contact with the Counselor until May 10, 2010, which was beyond the 45-day limitation period. On appeal, the Commission stated that the effective date of Complainant’s removal was actually April 2, 2010. Thus, Complainant timely contacted the EEO Counselor, and the Agency’s dismissal of her complaint was improper. Grannison v. Soc. Sec. Admin., EEOC Appeal No. 0120103504 (February 4, 2011). See, also, Araco .v U.S. Postal Serv., EEOC Appeal No. 0120092075 (January 25, 2011) (finding that the effective date on which the Agency carried out a disciplinary action and not the date of the notice of proposed disciplinary action was the appropriate date on which to begin the time period for contacting an EEO Counselor).

Agency Estopped from Dismissing Complaint. Complainant contacted an EEO Counselor and subsequently filed a formal complaint alleging that the Agency discriminated against him when a supervisor allowed derogatory rumors to be spread about him from May 2009 until March 2010. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant’s contact on May 14, 2010 was beyond the limitation period. On appeal, the Commission found that the Agency was estopped from dismissing Complainant’s complaint for untimely EEO Counselor contact. Complainant contended that he went to the EEO Office on March 31, 2010, and was told by an EEO Specialist that he had 45 days from that date to initiate the EEO process. In addition, the record contains an Information Inquiry Summary signed by the EEO Specialist on which was written “45 days = 15 May 2010,” which indicated that Complainant was told he had 45 days from March 31, 2010 to initiate the EEO complaint process. The Commission found that Complainant reasonably relied upon what he was told by the EEO Specialist. Thus, the Agency was precluded from dismissing the claim. Fearns v. Dep’t of the Army, EEOC Appeal No. 0120103499 (February 4, 2011).

EEO Counselor Contact Timely. Complainant contacted an EEO Counselor on April 20, 2010, and subsequently filed a formal complaint alleging that the Agency subjected him, among other things, to a “continuing violation of harassment, disparate treatment, [and] hostile work environment.” In its final decision, the Agency characterized the complaint as concerning the Agency’s failure to assist him in resolving a debt to the Agency. The Agency then dismissed the complaint for failure to timely initiate EEO counseling, stating that Complainant waited at least 78 days before contacting a Counselor. On appeal, the Commission initially found that Complainant’s complaint should have been viewed in the context of stating a variety of alleged incidents of harassment and the creation of a hostile work environment. The Commission further stated that the matters raised by Complainant also included a claim of ongoing denial of reasonable accommodation. Since it was clear from the record that Complainant initiated contact with an EEO Counselor within the regulatory time frame, at a minimum, in regard to the reasonable accommodation issue, the Commission construed the other incidents of alleged harassment to have been timely raised as well. Palomo v. U.S. Postal Serv., EEOC Appeal No. 0120103596 (January 5, 2011).

ARTICLE
CLAIMS OF SEX DISCRIMINATION USING THE GENDER STEREOTYPING THEORY

(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 discussion below also does not constitute official Commission policy. The article is generally based on EEOC documents available to the public at the Commission’s website at , as well as on Commission case law. Some decisions cited may have appeared in previous editions of the Digest. –Ed)

INTRODUCTION

In order to state a claim of discrimination under the Commission’s regulations set forth at 29 C.F.R. Part 1614, a federal sector complaint must allege a type of discrimination that comes within the purview of the administrative EEO process. Claims of sex discrimination under Title VII of the Civil Rights Act of 1964 are within that purview.1 Questions sometimes arise over whether a complaint of discrimination brought by a lesbian, gay, bisexual, or transgender (LGBT) individual states a cognizable Title VII claim of sex discrimination (and thus can be brought under Part 1614). This article reviews some recent case law on this topic.

In the past, many courts ruled that discrimination experienced by LGBT applicants and employees was not sex discrimination within the meaning of Title VII, but rather was “sexual orientation discrimination” or “transgender (or transsexual) discrimination” not protected by Title VII.2 Similarly, the Commission historically issued decisions finding that such claims were not actionable under Title VII, and thus could not be brought in the federal sector process.3 However, since many of these cases were decided, the law in this area has changed significantly.

In Price Waterhouse v. Hopkins, the Supreme Court ruled that discrimination based on the assumption or insistence that men or women comply with stereotypical gender norms constitutes discrimination because of sex within the meaning of Title VII.4 Later, in Oncale v. Sundowner Offshore Services, Inc.,5 the Court held that same-sex harassment, while not the “principal evil” Congress was originally attempting to combat, was nevertheless actionable under Title VII. Post Price Waterhouse and Oncale, the law in the federal courts governing when or whether LGBT individuals can bring sex-discrimination claims under Title VII has continued to evolve. Courts have begun to recognize that discrimination often is aimed at LGBT individuals precisely because they do not conform to traditional gender stereotypes. Accordingly, courts have begun to hold that such discrimination is actionable under Title VII as a form of sex discrimination.6

The Commission’s approach to these claims also is evolving. In its Compliance Manual, the Commission has taken the official position that discrimination on a protected basis includes discrimination based on stereotypical assumptions about individuals covered by the protected basis, as well as discrimination perpetrated by a member of a protected group against another member of that same group.7 Consistent with this position, the Commission has now issued a number of federal sector decisions concluding that LGBT employees (or applicants) have stated cognizable federal sector claims of sex discrimination under the sex-stereotyping theory. Some of these cases are discussed below.

COMMISSION CASE LAW

In Veretto v. U.S. Postal Service,8 Complainant alleged that the Agency subjected him to a hostile work environment because of his sex. According to the record, an announcement appeared in the local paper indicating that Complainant was going to marry his male partner. A co-worker saw the article, approached another employee, and when the other employee indicated he had been invited to the wedding, the co-worker became upset, and began yelling about Complainant and the wedding. Subsequently, when Complainant had a minor disagreement with the co-worker’s wife (who worked near Complainant), the co-worker “charged” into Complainant’s work area, bumped Complainant in the chest, backed Complainant up and trapped him. Complainant stated that, throughout the incident, the co-worker screamed and swore, including threatening Complainant that “I will beat you up, you … queer.” Complainant reported the incident to management, and the co-worker was removed from Complainant’s work area for three months. The co-worker, however, then returned to Complainant’s location. Complainant filed a formal EEO complaint which the Agency dismissed for failure to state a claim, arguing that Complainant was really alleging discrimination based on sexual orientation, not his gender.

On appeal, the Commission concluded that Complainant alleged a plausible sex-stereotyping case which would entitle him to relief under Title VII if he were to ultimately prevail on the merits. The Commission stated that while the Agency was correct that Title VII’s prohibition of discrimination does not explicitly include sexual preference or orientation as a protected class, Title VII does prohibit sex-stereotyping discrimination. The Commission cited Price Waterhouse for this proposition, and also relied on Schroer v. Billington, a landmark case out of the U.S. District Court for the District of Columbia holding that an employer’s decision to withdraw a job offer from a transgender applicant constituted sex-stereotyping discrimination in violation of Title VII.9 The Commission noted that Complainant alleged that he was subjected to a hostile work environment because the co-worker learned that he was marrying a man, and the co-worker was motivated by the sexual stereotype that marrying a woman is an essential part of being a man. The co-worker then became enraged when Complainant did not adhere to this stereotype by announcing his marriage to a man in the local paper. In other words, Complainant alleged that the co-worker’s actions were motivated by his attitudes about stereotypical gender roles in marriage. Thus, the Commission found that the Agency erred in dismissing Complainant’s complaint, and remanded the matter to the Agency for processing.

In Hitchcock v. Department of Homeland Security,10 the Commission remanded Complainant’s allegation of sex-based harassment for a hearing. Complainant worked for the Agency as a Supervisory Transportation Security Screener. In his formal EEO complaint, Complainant alleged, among other things, that the Agency subjected him to a hostile work environment on the basis of his sex. Specifically, Complainant indicated that co-workers made comments to him such as stating he did “women’s work,” asking “why are you doing such feminine work,” telling him he would “make someone a good wife one day,” telling him he complained “like his old woman,” and stating “a real man does not … ask opinions, he just does it.”

An AJ ultimately issued a decision without a hearing finding no discrimination. The AJ reasoned that the Commission did not have jurisdiction over Complainant’s hostile environment claim because the evidence demonstrated that the claim was based on Complainant’s belief that his co-workers perceived him “as being a homosexual.” On appeal, the Commission found that the AJ erred, as a matter of law, when he dismissed Complainant’s claims of sex-based discrimination and hostile environment for stating a claim of only sexual orientation discrimination. Citing Price Waterhouse, the Commission stated that the record clearly reflected that Complainant believed he was being discriminated against and harassed because of his failure to conform to gender stereotypes. Complainant stated that there were several witnesses who could corroborate the rumors and allegations concerning his “lack of masculinity.” In addition, the Commission noted that there was “voluminous” deposition testimony that various co-workers subjected Complainant to comments regarding his lack of masculinity, including non-masculine clothes, baking skills, managerial skills and work style. Thus, the Commission remanded the matter for an administrative hearing...

In Rosa v. Department of Veterans Affairs,11 Complainant filed a formal EEO complaint alleging that the Agency subjected him to a hostile work environment on the basis of his sex. Specifically, Complainant stated that a male co-worker made repeated innuendos about Complainant’s sexuality. The Agency dismissed the complaint for failure to state a claim, reasoning that the complaint was based on sexual orientation and did not constitute discrimination based on sex actionable under Title VII. Specifically, the Agency cited complaints of “homophobic gestures,” “homosexual mannerisms,” and verbal mocking using “very feminine voices.” On appeal, the Commission reversed the Agency’s decision. Citing Oncale and the Commission’s own decision in Sexton v. Dep’t of Transp.,12 the Commission concluded that a fair reading of the complaint and related materials revealed that Complainant was alleging that he was harassed because he was male and that Title VII protected him on the sex basis.

In Morin v. Dep’t of Health & Human Serv.,13 the Complainant worked for the Agency as a Program Analyst in the Office of Equal Opportunity and Diversity Management. Complainant filed a formal EEO complaint alleging, among other things, that he was subjected to sexual harassment. Complainant included various actions in support of his claim, including the cancellation of a vacancy announcement, the Deputy Director’s conduct during a performance review, and the denial of a request to attend a conference. Complainant stated that the discrimination was based upon both his sex and sexual orientation. The Agency accepted several incidents for investigation, but dismissed others. On appeal, the Commission found that Complainant stated one on-going unlawful employment practice claim, that is, that the Agency harassed him and created a hostile work environment. Citing the Supreme Court’s ruling in Price Waterhouse, the D.C. District Court’s opinion in Schroer, and the Commission’s own prior decision in Hitchcock, the Commission noted that Title VII’s prohibition of discrimination does not include sexual preference or orientation as a basis, but does prohibits discrimination based on sex stereotyping, and that there was evidence of such stereotyping in this case.14

In Nicholas v. Dep’t of Veterans Affairs,15 the Complainant worked in the plumbing shop of the Veterans Affairs Medical Center in Salem, Virginia. The only woman in a staff of nine, the Complainant stated that her co-workers repeatedly spoke to her in sexually explicit ways, for instance by asking her to “set up” a co-worker by asking him to have sex with her in the service room, challenging her to a contest in performing oral sex on women, repeatedly telling her that she had a nice “bootie,” and taking a photograph of her behind and sharing it with a co-worker. The AJ concluded that the harassment was based on her sexual orientation rather than her sex, and was therefore not protected under Title VII. On appeal, the Commission found that there was a genuine issue as to whether the harassment was due at least in part to her sex, and the AJ had thus erred in issuing a decision without a hearing. The Commission noted that even if the harassment is directed both at the Complainant’s sex and sexual orientation, the claim could be cognizable under Title VII.16

Conclusion

These federal sector decisions involved factual situations where Complainants alleged some discriminatory conduct patently directed against their actual or perceived sexual orientation. However, the Commission, by squarely applying Price Waterhouse’s gender stereotyping theory or Oncale’s proscription of same-sex harassment to the facts, found actionable Title VII sex discrimination.


Footnotes

1 See 42 U.S.C. § 2000e et seq.; see also 29 C.F.R. § 1614.103(a).

2 See, e.g., Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1087 (7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982); DeSantis v. Pac. Tel. & Tel. Co., Inc., 608 F.2d 327, 329-30 (9th Cir. 1979).

3 See, e.g., Casoni v. U.S. Postal Serv., EEOC Appeal No. 01840104 (Sept. 28, 1984); Campbell v. Dep’t of Health & Human Serv., EEOC Appeal No. 01831816 (Dec. 13, 1983).

4 490 U.S. 228, 250-51, 255-56 (1989).

5 523 U.S. 75, 80-82 (1998).

6 See, e.g., Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290-92 (3d Cir. 2009); Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004); Rene v. MGM Grand, 305 F.3d 1061, 1065-66 (9th Cir. 2002); Schroer v. Billington, 577 F. Supp. 2d 293, 305, 308 (D.D.C. 2008).

7 EEOC Compliance Manual, Section 2 Threshold Issues, Part 2-II (A) (No. 915.003) (citing Price Waterhouse and Oncale).

8 EEOC Appeal No. 0120110873 (July 1, 2011).

9 See Schroer, 577 F. Supp. 2d at 303-05. In Schroer, the district court also held that refusing to hire someone after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery “was literally discrimination ‘because of ... sex.’” Id.

10 EEOC Appeal No. 0120051461 (May 3, 2007).

11 EEOC Appeal No. 0120091318 (August 3, 2009).

12 EEOC Appeal No. 05970111 (June 17, 1999) (holding that a claim is actionable under Title VII where there is evidence of harassment based at least in part on gender).

13 EEOC Appeal No. 0120092626 (August 26, 2010).

14 See also Ball v. U.S. Postal Serv., EEOC Appeal No. 0120102678 (September 10, 2010) (also citing Price Waterhouse, Schroer, and Hitchcock).

15 EEOC Appeal No. 01A51368 (March 23, 2006).

16 Citing Sexton v. Dep’t of Transp., EEOC Appeal No. 05970111 (June 17, 1999) (holding that a claim is actionable under Title VII where there is evidence of harassment based at least in part on gender).