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The DIGEST Of Equal Employment Opportunity Law


Volume XXII, No.3

Office of Federal Operations

Summer 2011


Inside

Selected EEOC Decisions on:

Article:
Sanctions: An Update of Recent Commission Decisions


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

Carlton M. Hadden, Director, OFO
Douglas A. Gallegos, Acting Director, OFO's Special Services Staff
Digest Staff
Editor: Robyn Dupont
Writer: Writers: Justin T. Brown, Jasmin Copeland, Robyn Dupont, Saba Jote, Michelle Shapiro, Pennington Winberg

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


SELECTED EEOC DECISIONS

Agency Processing

Decision to Administratively Close Complaint Was Improper. Complainant contacted the Agency’s EEO Office alleging that the Agency discriminated against him on the bases of his race, sex, and reprisal with regard to an appraisal rating. Complainant subsequently filed a formal complaint alleging that the Agency discriminated against and harassed him. On the complaint form, Complainant indicated that the actions were based on his race, color, sex, and disability. With regard to the specifics of his complaint, Complainant included a series of phrases rather than a sequential recitation of the facts in complete sentences. The Agency contacted Complainant via e-mail asking for clarification as to the issues raised in his formal complaint as well as information regarding his disability, but Complainant did not respond. Complainant, more than six months later, contacted the EEO Office asking to continue with his complaint, and stating that he had been “out on OWCP.” The Agency responded that his complaint had been “closed” and he would have to “re-file” to begin the process again. According to the record, there was some communication between Complainant and the Agency regarding the matter, after which, Complainant filed an appeal with the Commission. On appeal, the Commission noted that Complainant filed a formal complaint with the Agency. The Commission stated that, once a formal complaint has been filed, an Agency cannot merely close the complaint file, and the Agency should have issued Complainant a final decision formally dismissing the complaint pursuant to the EEOC Regulations with appeal rights to the Commission. The Commission concluded that the record showed that the Agency was attempting to dismiss the complaint for failure to cooperate. The Agency, however, failed to notify Complainant that his failure to respond to its request for clarification could result in the dismissal of his complaint. Thus, the matter was remanded to the Agency for further processing. Williams v. Dep’t of the Air Force, EEOC Appeal No. 0120101255 (June 6, 2011).

Class Complaint Not Properly Processed. Complainant filed a formal complaint alleging that the Agency discriminated against her by offering Postal Inspectors self-referral counseling while not offering the same benefit to Postal Police Officers. The Agency dismissed the complaint for failure to state a claim, asserting that Complainant did not show that she suffered any harm or loss with regard to a term, condition or privilege of employment. On appeal, the Commission concluded that a fair reading of Complainant’s complaint revealed that she was alleging that the Agency, based on race, was providing a benefit to Postal Inspectors, who are predominately White that is denied to Postal Police Officers, who are predominately Black and Hispanic. The Commission noted that the EEOC Regulations provide that a Complainant may move for class certification at any reasonable point in the process when it becomes apparent that there are class implications to the claim raised in an individual complaint. Within 30 days of an Agency’s receipt of a class complaint, the Agency shall forward the complaint to the Commission for assignment to an Administrative Judge (AJ). The Commission stated that, in the instant complaint, the Agency did not comply with the applicable Regulations. The Commission noted that if the Agency believed Complainant did not have standing to file a class complaint, it should have made the Commission aware of its position when it forwarded the complaint to the appropriate Commission office for assignment to an AJ. The Agency did not have the authority to simply decline to process Complainant’s class allegation. Thus, the complaint was remanded to the Agency for processing as a class complaint. Clayton v. U.S. Postal Serv., EEOC Appeal No. 0120083615 (April 25, 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.)

$25,000 Awarded for Race Discrimination. In a prior decision, the Commission found that Complainant was subject to race discrimination when he was not selected for a Risk Management Specialist position, and the Commission ordered the Agency, inter alia, to conduct a supplemental investigation to determine Complainant’s entitlement to compensatory damages. The Agency ultimately awarded Complainant $10,000. On appeal, the Commission determined that Complainant was entitled to $25,000 in non-pecuniary damages. The record contained sufficient testimony from Complainant and family members as to the effects of the discrimination. The evidence showed that Complainant suffered from emotional distress, familial strain, stress, and difficulties in preparing his church sermons. Frazier v. Dep’t of Agriculture, EEOC Appeal No. 0120100064 (March 31, 2011).

$20,000 Awarded for Retaliatory Harassment. The Agency found that Complainant had been discriminated against on the basis of her prior protected activity when she was detailed after reporting allegations of harassment. Subsequently, the Agency issued a decision awarding Complainant $1,000 in non-pecuniary damages. On appeal, the Commission found that the Agency’s award was insufficient to compensate Complainant for her pain and suffering. The Commission noted that Complainant’s psychiatrist attributed her emotional pain and physical suffering to the Agency’s actions. Complainant’s psychiatrist noted that Complainant experienced depression, loss of appetite, difficulty sleeping, nightmares, nervousness, panic attacks, irritability, palpitations, a choking feeling, fear of passing out, and post traumatic stress disorder. Complainant had to take medication as a result of the discrimination. Complainant herself noted that she was embarrassed and scared when she was transferred. Thus, the Commission determined that Complainant was entitled to an award of $20,000 based upon the evidence of record. Compton v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120083066 (March 4, 2011), request for reconsideration denied, EEOC Request No. 0520110415 (September 22, 2011).

No Award of Compensatory Damages. In a previous decision, the Commission found that the Agency’s action of discussing Complainant’s EEO activity with other employees and soliciting their testimony constituted reprisal discrimination. The Commission ordered the Agency, among other things, to conduct a supplemental investigation into Complainant’s entitlement to compensatory damages. The Agency issued a decision finding that Complainant failed to prove that she was entitled to compensatory damages. The Commission affirmed the Agency’s decision on appeal. The Commission agreed with the Agency that Complainant failed to prove that the Responsible Official’s discussion of Complainant’s EEO case was the cause of Complainant’s expenses or mental suffering and anguish. The Commission noted that Complainant’s expenses stemmed from her termination, which the Commission found was not unlawful, and the Commission agreed with the Agency that there was no evidence to support the conclusion that it was something other than her termination which gave rise to her pain, suffering and injured professional standing. The Commission also agreed with the Agency’s conclusion that damages are unavailable for stress relating to participating in the EEO process. Medrano v. Dep’t of Homeland Sec., EEOC Appeal No. 0120093015 (May 18, 2011).

Dismissals

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

Dismissal of Complaint Improper in Part. Complainant worked as the Head Coach for the women’s volleyball team at the Agency’s Air Force Academy. She contacted an EEO Counselor on June 16, 2009, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it subjected her to harassment through April 2009, threatened not to renew her contract in December 2008, and gave her a lesser share of the revenue from a sports camp than male coaches. The Agency dismissed the first two issues for failure to timely contact an EEO Counselor, and the third issue for failure to state a claim, asserting that Complainant was an independent contractor. On appeal, the Commission initially found that the evidence supported a finding that Complainant was a federal employee for purposes of filing a discrimination complaint. While Complainant was identified as an “independent contractor,” the record showed that Complainant was paid by the Agency, and Agency officials determined the amount of compensation she received. In addition, Complainant earned retirement benefits, and the Agency was responsible for withholding taxes and providing Complainant with health benefits. Complainant participated in the Agency’s retirement plan, and had use of an Agency-owned car. The Agency provided the facilities and equipment, addressed all logistical issues required for successful performance of Complainant’s position, and had the ability to terminate her working relationship with the Academy. Thus, the issue concerning the revenue from the sports camp was remanded to the Agency for further processing. With regard to the remaining issues, the Commission found that they fell outside the 45-day contact period, and were not sufficiently related to the revenue matter to state an on-going claim of harassment. The Commission stated that the matter concerning the camp revenue was distinct from and not connected to the other two issues concerning harassment and the threat not to renew her contract. Instead, the Commission noted that the third claim raised a discrete compensation claim under the Equal Pay Act. Thus, the Commission found that the Agency properly dismissed the first two matters for failure to timely contact an EEO Counselor. Lucas-White v. Dep’t of the Air Force, EEOC Appeal No. 0120100131 (June 21, 2011).

Complaint Improperly Dismissed as Being Moot. Complainant, a Letter Carrier, filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of reprisal when he was terminated from his position. The Agency dismissed the complaint for failure to state a claim, stating that the matter was resolved through the negotiated grievance process and the removal was rescinded with a back pay award. On appeal, the Commission initially noted that while the Agency dismissed the complaint for failure to state a claim, the more appropriate analysis was whether the complaint had been rendered moot by the grievance decision. The Commission noted that employees of the Agency are not obligated to make an election between pursuing a claim of discrimination through the negotiated grievance process or the EEO complaint process. Thus, Complainant was entitled to challenge his termination under both the grievance and EEO process. While the settlement of his grievance resolved his rights under the collective bargaining agreement, his right to pursue his claim through the EEO process was not waived. Specifically, the Agency did not establish that the grievance settlement explicitly included Complainant’s EEO complaint. In addition, Complainant’s statement on appeal indicated that he was again fired before he could return to work pursuant to the grievance. Thus, the Commission found that it appeared the violation had recurred, and, as such, the matter was not moot. The matter was remanded to the Agency for further processing, and the Agency was instructed to amend the complaint to include the second removal. Kulibert v. U.S. Postal Serv., EEOC Appeal No. 0120111361 (June 16, 2011).

Complaint Improperly Dismissed as a Proposal to Take Action. Complainant, a Customs and Border Patrol Officer, filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his disability and in reprisal for prior EEO activity when it issued him an “option” letter informing him that he was unfit for duty and allowing him to choose between reassignment or retirement as alternatives to being discharged. Complainant stated that after receiving the letter, he was put on “light duty” and the Agency removed his firearm. The Agency dismissed the complaint, stating that the “option” letter constituted a preliminary step to taking a personnel action. On appeal, the Commission reversed the Agency’s decision. The Commission noted that it has only upheld the dismissal of a complaint based on a proposed action when there was no subsequent action taken. In this case, Complainant alleged that, after giving him the “option” letter, the Agency took a subsequent action in furtherance of the letter, specifically placing him on light duty and taking away his firearm. Thus, the dismissal was improper, and the matter was remanded for further processing. Simms v. Dept. of Homeland Sec., EEOC Appeal No. 0120102846 (June 24, 2011).

Complaint Improperly Dismissed for Failure to Cooperate. Complainant filed a formal EEO complaint alleging she was discriminated against when she was physically attacked by a supervisor and was issued an Emergency Placement in Off Duty Status for “Zero Tolerance and Conduct Unbecoming.” The Agency dismissed the complaint for failure to cooperate, stating that Complainant failed to respond to an affidavit package asking her to provide information relevant to the complaint. On appeal, the Commission found insufficient evidence to support a finding that Complainant engaged in delay or contumacious conduct that would warrant the dismissal of her complaint. In addition, the Agency failed to show the complaint could not be adjudicated without the affidavit. The Commission noted that Complainant identified the bases on which she alleged discrimination, the specific actions she believed to be discriminatory, the management officials who took those alleged actions, and the corrective action sought. The record also contained the Postal Inspection Service’s investigative memorandum and various documents related to the Complainant’s allegations of discriminatory incidents. Thus, the Commission concluded that the Agency had sufficient information to adjudicate the case. The Commission advised Complainant to cooperate with the Agency in continued processing of her formal complaint or face future dismissal of the matter if she did not do so. The matter was remanded to the Agency for further processing. Gillum v. U.S. Postal Serv., EEOC Appeal No. 0120111358 (May 31, 2011).

Complaint Properly Dismissed for Abuse of Process. Complainant, a former employee, filed multiple complaints alleging that the Agency discriminated against him on the bases of national origin, age, and prior protected EEO activity when it did not refer or select him for various positions. The Agency dismissed the claims on various grounds including that Complainant abused the EEO process by repeatedly filing similar or identical allegations of non-selection and applying for positions for which he was unqualified. On appeal, the Commission found that the Agency established that the complaints were part of a pattern of abuse perpetrated by Complainant to punish the Agency by burdening the EEO system despite knowing the complaints he filed were meritless. Complainant had filed over 50 EEO complaints with the Agency. Further, despite being terminated, Complainant continued to apply for positions which were open to only current employees, and then subsequently filed EEO complaints when he was not selected. The Commission found that, in essence, Complainant aimed to use the EEO process to retaliate against the Agency. The Commission noted that the EEO process serves to prevent and eliminate workplace discrimination; it is not used as a means to carry out a personal grudge. Thus the Commission concluded that Complainant’s claims were properly dismissed and affirmed the Agency’s final decisions. Stoyanov v. Dep’t of the Navy, EEOC Appeal Nos. 0120110604, 0120111454, & 0120111991 (April 20, 2011).

Dismissal Proper in Part. Complainant filed a formal EEO complaint alleging that the Agency subjected him to hostile environment harassment on the bases of his age, disability and prior protected activity, and discriminated against him when it terminated him from employment. The Agency dismissed the complaint on the grounds that Complainant elected to pursue the matters before the Merit Systems Protection Board (MSPB). On appeal, the Commission found that the Agency properly dismissed the claim concerning Complainant’s termination, given that Complainant initially challenged that action in an appeal to the MSPB. The Commission stated, however, that the MSPB does not adjudicate all claims of discrimination, and Complainant could only have raised his termination in that forum. The Commission noted that a review of Complainant’s MSPB appeal form reveals that he specifically indicated that he was pursuing his harassment and hostile environment claims in an EEO complaint. The Commission concluded that Complainant did not and could not have appealed his hostile environment claim to the MSPB. Thus, the matter was remanded to the Agency for further processing. Powers v. Dep’t of Homeland Sec., EEOC Appeal No. 0120110300 (April 18, 2011).

Complaint Improperly Dismissed. Complainant contacted an EEO Counselor on May 19, 2010, and subsequently filed a formal EEO complaint alleging that the Agency subjected him to a hostile work environment on basis of his race and in reprisal for prior EEO activity. Complainant cited seven incidents in support of his claim, including his supervisor’s making negative remarks about him, and not allowing him to perform other duties such as participate on a selection panel, as well as the Agency not allowing him to perform meaningful duties and giving him an unfair performance rating. The Agency dismissed all seven of Complainant’s claims. The Agency stated that the first two matters failed to state a claim as Complainant failed to show that he suffered a personal loss or harm to a term, condition, or privilege of employment. The Agency further stated that Complainant failed to timely contact an EEO Counselor with regard to the matter of his duties or performance rating. The Agency noted that the remaining matters, including his receipt of a proposed Letter of Suspension on April 29, 2010, had not been previously raised with the EEO Counselor and were not like or related to the claims on which he received counseling. On appeal, the Commission found that the Agency improperly dismissed Complainant’s complaint. The Commission noted that Complainant raised a hostile work environment claim, and some of the incidents occurred within the 45-day time period preceding his EEO Counselor contact. Thus, the entire claim was actionable. In addition, the matters which he raised in his formal complaint were like or related to his allegation that Agency management subjected him to a hostile work environment. Finally, the Commission found that Complainant’s entire claim was actionable, as Complainant raised an allegation of on-going harassment. Chatman v. Dep’t of Def., EEOC Appeal No. 0120110698 (April 14, 2011).

Findings on the Merits and Related Decisions

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

Under Title VII

Sexual Harassment Found. Complainant began working at the Agency as a Voucher Examiner in August 2007. Complainant stated that, less than one month later, a co-worker (EF) began to harass him, including among other things, calling him a derogatory name, placing chocolate in his desk with a paper towel blotted with lipstick, asking personal questions, making sexually suggestive comments sending him an e-mail stating that he should tell his wife he was planning to have an affair with EF, and exposing herself on one occasion. Complainant stated that he was forced to resign in January 2008 due to the harassment. Complainant noted that he reported the conduct to his supervisor on almost a daily basis. In addition, Complainant stated that the Chief Financial Officer (CFO) merely shrugged when he tried to tell her about the harassment and asked him if he could be professional. Complainant asked if he could submit a statement detailing the incidents of harassment, and the CFO responded that he could not and the matter was “over and done with.” Complainant stated that he felt that he was going to lose his job because nothing was being done about the harassment and the Agency would not protect him. EF denied that many of the incidents cited happened as Complainant described, and asserted that Complainant retaliated against her after she declined his suggestion that they have an affair. Complainant ultimately filed a formal EEO complaint alleging, among other things, that he was subjected to discriminatory sexual harassment.

On appeal, the Commission initially found that Complainant was more credible than EF with respect to the events at issue. The Commission noted that Complainant reported EF’s conduct to management on several occasions, while EF did not report that Complainant engaged in any harassing conduct until management confronted her about Complainant’s allegations. The Commission found it significant that Complainant not only reported that he was a victim of harassment before EF made her counter-allegations, but also that Complainant was persistent in reporting EF’s conduct to both his supervisor and the CFO. In addition, the record contained a memorandum from Complainant’s supervisor which corroborated Complainant’s assertions. Specifically, the supervisor indicated that EF constantly badgered Complainant to talk to her, and that Complainant continually informed the supervisor that EF sexually harassed him. The Commission noted that EF acknowledged many significant aspects of Complainant’s claims, and that e-mails confirm that she was very upset that Complainant stopped interacting with her.

The Commission found that Complainant established a prima facie case of sexual harassment. Complainant was subjected to conduct of a sexual nature by EF including sexual comments, romantic propositioning, vulgar taunting and name calling, indecent exposure, and unwanted exposure to sexually-oriented material in the workplace over a three-month period, all of which contributed to the overall sexually hostile work environment for Complainant. Further, the conduct was unwelcome as evidenced by the fact that Complainant reported the behavior to management several times and repeatedly told EF to cease communication with him. The Commission noted that Complainant was forced to work in the same area as the harasser even after he reported the offensive conduct to management.

The Commission concluded that the Agency was liable for Complainant’s harassment. The supervisor’s statement, EF’s e-mails, and Complainant’s statement all showed that Complainant reported the harassment by early October 2007. The Agency acknowledged that management was aware of Complainant’s allegations by early November, but asserted that it was unable to determine which party was the harasser because both Complainant and EF gave different versions of the events. The Commission stated, however, that the Agency is required to weigh each party’s credibility and make a determination as to whether harassment occurred. If the evidence is inconclusive, the Agency must undertake further preventative measures, such as providing targeted training and monitoring. In this case, the Agency merely directed EF to act professionally and not to harass Complainant, but did not conduct a fact-finding investigation until December 21. The Commission concluded that the Agency should have taken prompt and effective action to address the harassment after being notified of the incidents in early November. While the Agency stated that it placed an accordion door between Complainant’s and EF’s desks, neither that action, a sexual harassment policy, nor a verbal admonishment stopped EF from continuing to engage in harassing activity and, in fact, EF’s harassment escalated after Complainant reported that he was being sexually harassed. The Agency was ordered, among other things, to conduct a supplemental investigation with regard to Complainant’s claim for compensatory damages, as well as provide training to all management officials at the facility in question. The Commission found no constructive discharge and did not order the Agency to rehire Complainant. Miller v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120093073 (June 6, 2011).

Sex Discrimination Found. Complainant, a Physician Assistant (PA), filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of sex when he was not selected for a Nurse Practitioner position. Following a hearing, the AJ found that the Agency discriminated against Complainant with regard to the non-selection. On appeal, the Commission initially found that Complainant established a prima facie case of discrimination, in that he was qualified for the position but not selected in favor of a candidate outside of his protected group. While the Agency argued that Complainant was not qualified for the position because he did not meet the written qualification standard listed in the vacancy announcement, the Commission found, based on the Selecting Official’s (SO) testimony and a Referral Certificate in the record, that the Agency considered Complainant to be qualified at the time of the selection process. The SO testified that after he spoke with Complainant about the position and Complainant’s current duties, “it seemed like he [Complainant] could do what we were asking,” and the SO was “willing to consider him for the position.” The Commission stated that the SO’s testimony supported the AJ’s finding that the SO considered the written qualification standard to be irrelevant to whether Complainant was qualified for the position. In addition, the Commission found that substantial evidence supported the AJ’s finding that the Agency’s stated reasons for Complainant’s non-selection were pretext for discrimination. Although the SO stated that he did not select Complainant because there was no Referral Certificate with his name on it, the record contained a Referral Certificate with Complainant’s name and the SO in fact selected someone who was not on any certificate. In addition, while the SO stated that he did not select Complainant because only a Nurse Practitioner could prescribe narcotics, the hearing testimony reflected that PAs could be licensed to prescribe narcotics. The Commission also noted that the Agency failed to explain why it chose the Selectee even though she applied more than two months after the vacancy announcement closed, and the Agency had differing justifications at different times for Complainant’s non-selection. The Commission also found significant the Agency’s failure to follow through on SO’s request to re-post the position for consideration of PAs. The Agency never provided an explanation for why it did not re-post the position and the hearing testimony reflected that there may have been a gender disparity at the facility in Nurse Practitioners, which were predominately female, and PAs, which were predominately male. Finally, the Commission noted that substantial evidence supported the AJ’s determination that there was no need to compare the qualifications of Complainant and the Selectee, because the SO initially articulated that his selection was not based on a comparison of the applicants’ qualifications. Thus, the Commission affirmed the AJ’s finding of sex discrimination. The Agency was ordered, among other things, to offer Complainant the position in question or a substantially equivalent position, and pay Complainant $2,000 in non-pecuniary compensatory damages based upon evidence of emotional harm primarily related to loss of family time with his children. Mazurek v. Dep’t of Veterans Affairs, EEOC Appeal No. 0720100044 (April 11, 2011).

Sex Discrimination Found. Complainant, an Operations Support Specialist, EAS-17, filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of sex when she was not selected for the position of Operations Support Specialist, EAS-18. The Selecting Official (SO) was the Manager, In-Plant Support. Seven applicants were interviewed and a male applicant was selected (Selectee). The SO scored the applicant interviews from a high of 40 (Selectee’s score) to a low of 19. Complainant received a score of 26. The SO testified that the Selectee was the most qualified and the one who showed the highest potential to be the most successful in the position. Complainant did not believe the Selectee was the best qualified candidate for the position. Complainant stated she had been in In-Plant Support for 12 years, had been performing many of the duties of the position during that time, had been detailed into the position for 90 days, had to teach the Selectee and the previous selectee how to perform certain functions required of the position, and had twice previously not been selected for this position by the same SO. Furthermore, Complaint testified that she had been performing EAS-18 functions for some time without appropriate compensation. On appeal, the Commission held that, contrary to the Agency’s assertions, Complainant raised circumstances that, if left unexplained, would support an inference of sex discrimination. Specifically, Complainant stated that she previously applied for the same position on two occasions, and both times, the SO chose a male candidate. In addition, Complainant stated that the current Selectee and one of the prior selectees were incapable of performing one of the duties of the position, and Complainant had to teach them how to do so. The Commission noted that the Agency put forth statements from the SO to articulate a legitimate reason for Complainant’s non-selection. The Commission found, however, that SO did not elaborate in what way the Selectee was more qualified or demonstrated greater potential than Complainant, and failed to submit any documentary evidence to support his statement other than a scoring matrix created after the interview process. The Commission stated that the SO did not explain what the number values in the matrix represented in relation to interview questions. In addition, the Commission noted that the EEO Investigator asked the SO for each applicant’s responses to the interview questions, but the SO did not have a copy of the responses. Consequently, the Commission found that the Agency did not meet its burden of production, and Complainant was entitled to a finding of discrimination on the basis of sex. The Agency was ordered, among other things, to promote Complainant to the EAS-18 position, and conduct a supplemental investigation with regard to the issue of Complainant’s entitlement to compensatory damages. Goblirsch-Erikson v. U.S. Postal Serv., EEOC Appeal No. 0120110390 (March 31, 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).

Under Multiple Bases

Sex and Age Discrimination and Reprisal Found. Complainant worked as a Mail Processing Clerk (MPC) at a Self-Service Postal Center with Saturdays and Sundays off. He filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him: 1) on the bases of sex and age when the days off for the position he successfully bid on were changed; and 2) in reprisal for prior EEO activity when the Supervisor of Customer Service (S2) failed to process his FMLA paperwork. The record showed that after working for 26 years at the Center with Saturdays and Sundays off, Complainant bid on another position. Another employee (C1) was then assigned to Complainant’s original position in a relief status with Saturdays and Sundays off. Approximately eight months later, the Agency posted the vacancy with the same days off, and Complainant bid on the position. Shortly after Complainant bid on the position, the Agency changed the days off to Sunday and Thursday. Complainant was awarded the bid, but C1 remained in the position because Complainant became ill and retired.

On appeal, the Commission noted that Complainant did not specifically address the issues of harassment or constructive discharge on appeal. The Commission found that the Agency discriminated against Complainant on the bases of his sex and age when it changed the days off for the position. The Commission found that Complainant and C1 were similarly situated because Complainant had bid on and was awarded the position C1 was working in at the time and continued to work in after. In addition, the same Agency supervisors were responsible for determining the days off for the position both during the time when Complaint was bidding on the position and when C1 was working in the position. The Agency contended that the days off were changed for the needs of the service. The Commission found, however, that the Agency’s reason for changing the days off was a pretext for discrimination. The Commission noted that the schedule alteration occurred only after Complainant, a senior male employee bid on the position, and was abandoned when he retired. In addition, the supervisors failed to provide a credible reason for why they changed the days off. Further, a younger, female employee was allowed to keep the position’s Saturday and Sunday off days after Complainant retired.

With regard to the issue of the FMLA paperwork, the record showed that Complainant engaged in protected EEO activity of which the Agency was aware. Specifically, Complainant submitted FMLA paperwork to S2, which included a request for reasonable accommodation. Complainant was then subjected to adverse treatment by S2 within a very close period of time. The Commission noted that S2 provided inconsistent statements about whether he processed or retained Complainant’s FMLA paperwork. Specifically, although S2 stated that he did not retain the paperwork, he told the EEO Counselor that he did not submit the paperwork because it was outdated. Nevertheless, the District FMLA Coordinator did not receive the paperwork until two days after Complainant’s wife submitted it directly to the District Office, but over 11 days after Complainant had submitted the paperwork to S2. The Commission concluded that, based upon S2’s inconsistent statements and the timeline of events, S2’s explanation was not credible. Thus, the Commission concluded that the Agency retaliated against Complainant when it failed to forward his paperwork for further processing. The Commission ordered the Agency to, among other things, investigate Complainant’s claim for compensatory damages. Hudson v. U.S. Postal Serv., EEOC Appeal No. 0120093843 (June 6, 2011).

Race and Color Discrimination Found. Complainant, a Secretary, filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race and color when she was not selected for the position of Division Secretary. The AJ determined that the Complainant established a prima facie case of discrimination on the bases of race and color, and that the Agency articulated a legitimate reason for choosing the Selectee, that is the Selectee’s application showed that she had more education, variety in training, and relevant experience. The AJ, however, concluded that the Agency’s explanation was “so fraught with contradiction as not to be credible,” and was a pretext for discrimination. Specifically, the AJ found that the Selecting Official (SO) read the Selectee’s application in great detail and gave the Selectee credit for experience and training that SO said others did not have. When Complainant showed the same experience or training, however, SO gave her no credit. The AJ noted that SO was willing to infer that the Selectee had coordination experience, but discounted when Complainant specifically described such experience. Further, SO admitted that she may have been reading between the lines in determining that the Selectee’s Head Teller experience involved coordination, and the AJ found that SO did not credibly explain why she gave no credit to the fact that Complainant served as Acting Division Secretary, the same or very similar position to that for which she applied. While SO stated that the experience was not listed on Complainant’s application, Complainant described her experience as Acting Division Secretary in her answer to a KSA question about coordinating work activities. Finally, the AJ found that Complainant credibly testified that SO told her during a meeting following Complainant’s non-selection, that she did not review Complainant’s application, but instead recognized the Selectee’s name and chose the Selectee. The AJ concluded that Complainant proved, by a preponderance of the evidence that she was discriminated against on the bases of race and color when she was not selected for the Division Secretary position. On appeal, the Commission found no basis to disturb the AJ’s finding of discrimination. The Commission stated that substantial evidence in the record supported the AJ’s determination that SO’s explanation for Complainant’s non-selection was not credible. The AJ’s determination was based not only on her review of the applications of Complainant and the Selectee, but also on her observations of Complainant and SO at the hearing. Regarding the Agency’s argument that Complainant’s qualifications were not so plainly superior to those of the Selectee to allow the AJ to infer discrimination, the Commission noted that pretext may be demonstrated in a number of ways, not merely by showing that a complainant’s qualifications were observably superior to those of the selectee. The Commission agreed with the AJ that SO failed to credibly explain why she understated Complainant’s qualifications while emphasizing similar or less significant experience of the Selectee. Specifically, the Commission noted that Complainant discussed her experience as Acting Division Secretary in her KSA responses, and, contrary to SO’s assertion, made numerous references to acting as a Division Secretary in her application. Thus the Commission concluded that substantial evidence in the record supported the AJ’s finding that the Agency discriminated against Complainant on the bases of race and color when she was not selected for the Division Secretary position. The Agency was ordered, among other things, to place Complainant into the Division Secretary position or a substantially equivalent position, with appropriate back pay and benefits, and pay Complainant attorneys fees and costs. Bowers v. Dep’t of Transp., EEOC Appeal No. 0720100034 (April 15, 2011).

Disability Discrimination and Retaliation Found. Complainant worked as a Manual Distribution Clerk. In 2000, Complainant was injured at work while sorting parcels. For several years the Agency accommodated Complainant’s limitations. Subsequently, his bid position was abolished and he became an unassigned regular. In October 2005, Complainant was given a new job offer that required him to perform functions that he had not performed during the time he was accommodated. Complainant told his supervisors he could not perform certain of these duties every night because they were making his physical condition worse. Ultimately, Complainant became unable to work, and filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his disability and in reprisal for prior protected activity when it failed to accommodate him, and subjected him to a pattern of retaliation including issuing him a letter of warning. Following a hearing, the AJ found that the Agency discriminated against Complainant as alleged. On appeal, the Commission noted that Complainant’s prolonged 20-pound lifting restriction was sufficient to constitute a substantial impairment in the major life activity of lifting. In addition, the Commission found no basis to disturb the AJ’s credibility determinations with respect to Complainant’s description of his limitations. The Commission further found Complainant to be qualified based on his ability to perform the duties of the Modified Clerk position for several years, and the Agency failed to show that it would have been an undue hardship to continue to accommodate Complainant by providing him work within his restrictions. The Commission agreed with the AJ that while the Agency asserted that the job offer it gave Complainant was approved by the Office of Workers’ Compensation Programs (OWCP), OWCP’s approval of a job offer does not bar a denial of reasonable accommodation claim under the Rehabilitation Act. Further, the allegation was not a collateral attack on the OWCP process, but rather an allegation that the Agency denied him reasonable accommodation. According to the record, Complainant informed the Agency’s Injury Compensation Specialist that he could not perform many of the duties in the job offer. The Specialist testified that she did not speak with Complainant or anyone in management regarding the situation, and merely wrote a letter to Complainant informing him that no changes would be made since OWCP approved the offer. The Commission stated that there was no evidence in the record that the Agency engaged in the interactive process with Complainant.

With regard to the retaliation claim, the record reflected that Complainant engaged in prior protected activity by repeatedly asking management for an accommodation and by filing a prior EEO complaint in which he named the same Manager that issued Complainant the letter of warning. In addition, a Supervisor testified that Complainant was a “thorn in the side” of management due to his medical restrictions. The Agency articulated a legitimate reason for the letter of warning that is Complainant’s poor attendance and failure to submit medical documentation for his absences. The Commission concluded, however, that there was substantial evidence in the record to support the AJ’s finding of pretext. Complainant testified that 90 percent of the absences cited in the letter of warning were due to flare ups of his condition resulting from working beyond his medical restrictions. Complainant stated that he submitted documentation for his absences either personally or through a co-worker. The co-worker, who was a union steward, testified that he did submit the documentation to management, and an Agency manager indicated that he was aware the co-worker had done so. Thus, the Commission found that the AJ’s finding of disability discrimination and reprisal was supported by substantial evidence. The Agency was ordered, among other things, to pay Complainant back pay, with interest and applicable benefits, as well as 15 months of front pay and $102,000 in proven compensatory damages. Huddleson v. U.S. Postal Serv., EEOC Appeal No.0720090005 (April 4, 2011).

Retaliation

Per Se Finding of Reprisal. Complainant, an Air Traffic Controller, filed a formal EEO complaint alleging that the Agency failed to select him for the position of Supervisory Air Traffic Control Specialist and gave him an overall performance evaluation of “successful.” According to the record, when Complainant was initially engaged in the EEO process, his second-level Supervisor approached him and told him it would not be in Complainant’s best interest to file an EEO complaint. The Supervisor acknowledged making the comment, and that he told Complainant that co-workers had approached him about not wanting to work with Complainant, and Complainant created racial strife in the office. While the Commission found that Complainant failed to prove discrimination with regard to his nonselection and performance appraisal, the Commission did find that the Supervisor’s comment constituted an impermissible per se interference with the EEO process. The Supervisor improperly injected himself into the EEO process, and his comments were a flagrant attempt to dissuade Complainant from engaging in the EEO process. In addition, the Supervisor compounded his interference with Complainant’s EEO activity by telling Complainant that his EEO activity impaired his relationship with his co-workers, was divisive, and created racial strife in the workplace. The Commission concluded that it does not matter that Complainant continued to pursue his EEO claims despite the Supervisor’s interference. The Agency was ordered to provide training to all managers at the facility in question, as well as conduct a supplemental investigation with regard to Complainant’s claim for compensatory damages. Williams v. Dep’t of the Army, EEOC Appeal No. 0120090596 (April 29, 2011).

Reprisal Found. Complainant worked for the Agency as a Supervisory Border Patrol Agent. He previously filed an EEO complaint regarding a non-selection and, during the hearing, presented certain documents which the Agency asserted were classified and considered sensitive. The AJ assigned to the case admitted the documents without further objection by the Agency. The Agency had also failed to object prior to the hearing when Complainant provided the Agency with copies of his proposed exhibits. Agency management officials reported the alleged disclosure to the Agency’s Office of the Inspector General (OIG) as a possible criminal violation, and placed Complainant on administrative leave. The matter was also referred to the Office of Professional Responsibility (OPR) which conducts misconduct investigations for the Agency. The Agency did not charge Complainant with any criminal violations, but did charge him with “unauthorized disclosure of sensitive government material.” The Agency initially proposed removing Complainant, but ultimately demoted him to a Border Patrol Agent position and reassigned him to another location. Complainant then filed a formal EEO complaint alleging that the Agency discriminated against him in reprisal for prior EEO activity when it placed him on administrative leave, demoted him, and reassigned him. Following a hearing, an AJ found that Complainant was subjected to unlawful reprisal when the Agency placed him on paid administrative leave pending completion of an investigation and subsequently demoted him from his position. On appeal, the Commission affirmed the AJ, finding that the record supported the AJ’s finding that there was a strong inference of retaliatory animus as management twice sought to upgrade the characterization of Complainant’s alleged misconduct after the matter was downgraded by various investigatory entities. The Commission also stated that the record supported the AJ’s determination that the Agency’s heavy-handed action was intended to send a message to Agency employees engaging in EEO activity and those represented by Complainant’s attorney. While the Agency asserted that it had a legitimate right to safeguard its sensitive documents and information, the record did not establish that Agency officials had a clear understanding of the applicable policies and procedures regarding the use of that information. Finally, the Agency had many opportunities and options during the EEO process to protect any sensitive documents, but failed to avail itself of the Commission’s safeguards. Instead, the Agency began a series of events that included a prolonged investigation and kept Complainant in an indefinite and unsettled state and ultimately resulted in his demotion. With regard to remedies, the Commission affirmed the AJ’s decision that the Complainant was entitled to reinstatement, back pay, administratively uncontrolled overtime payments, and lost benefits, including the Agency’s TSP contributions and a $10,000 early withdrawal fee incurred when he withdrew money so that he could make house and car payments. The Commission further affirmed the AJ’s finding that Complainant was entitled to compensatory damages in the amount of $125,000, taking into account Complainant’s testimony regarding the effect that the discrimination had on his personal life, and professional standing, character and reputation. Duran v. Dep’t of Homeland Sec., EEOC Appeal No. 0720100042 (April 13, 2011).

Remedies

Remedies Discussed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race and prior EEO activity. Following a hearing in the matter, an AJ found that the Agency subjected Complainant to a discriminatory hostile work environment and retaliation. Specifically, the AJ found, among other things, that the Warden at the facility where Complainant worked spoke to her in a condescending manner, downgraded her performance evaluation rating, spoke with her co-workers about her, and reported her as having an inappropriate relationship with her supervisor. The Agency issued a final order accepting the AJ’s finding of discrimination. The Agency, however, rejected the AJ’s remedial awards of training for all managers and supervisors, and payment of $1,633 as reimbursement for sick leave. On appeal, the Commission noted that restoration of leave taken for purposes of avoiding or recovering from discriminatory harassment is a valid component of equitable relief. Thus, Complainant was entitled to restoration of sick leave. The Commission noted, however, that the Agency should restore 30.5 hours of sick leave to Complainant’s sick leave balance rather than make a monetary award. With regard to the training, the Commission noted that one of the responsible management officials found to have engaged in unlawful discrimination and retaliation was the Warden who served in a position that set the leadership tone for the entire facility. Thus, the Commission found that the AJ’s order requiring five hours of EEO training for all facility management and supervisory staff was proper. Burton v. Dep’t of Justice, EEOC Appeal No. 0720090046 (June 9, 2011).

Settlement Agreements

Settlement Agreement Void. Complainant contacted an EEO Counselor alleging that the Agency denied her reasonable accommodation. Complainant and the Agency subsequently entered into a settlement agreement that provided that Complainant would send updated medical information to a specified Agency official, and another Agency official was to research a carbon filter mask. The agreement also provided that “Complainant understands that another District Reasonable Accommodation Committee review does not necessarily guarantee the position.” Approximately two months later, Complainant notified the Agency that she believed it had breached the agreement when it filled a position which she had asked for as an accommodation and did not set up a reasonable accommodation meeting. On appeal, the Commission stated that the Agency had merely agreed to process Complainant’s request for reasonable accommodation, which provided her with nothing more that that to which she was already entitled to as an employee. Thus, Complainant received no consideration with respect to the agreement, and the Commission found that the agreement was void. The Agency was ordered to resume processing the underlying complaint of discrimination. McDonald v. U.S. Postal Serv., EEOC Appeal No. 0120101087 (June 8, 2011).

No Breach Where Complainant Placed into Position for Reasonable Length of Time. Complainant and the Agency entered into a settlement agreement in May 2005 which provided, in pertinent part, that Complainant would be assigned to a Full-Time Unassigned Regular Mail Processing Clerk in Automation. In August 2009, Complainant sent a letter to the Agency asserting that it breached the settlement agreement when it sent her home after she was injured on duty. On appeal, the Commission found that the Agency did not breach the settlement agreement. The Commission noted that the Agency assigned Complainant to the position specified in the agreement in May 2005, and Complainant remained in that position for approximately four years until she was sent home in August 2009. The Agency indicated that it sent Complainant home because of an injury she sustained in accordance with its Employee and Labor Relations Manual. The Commission stated that a settlement agreement that places a Complainant into a specific position, without defining the length of service will not be interpreted to require the Agency to employ the Complainant in the identical job forever. Thus, the Commission concluded that, under the circumstance of the case, the Agency was not obligated to further maintain Complainant’s assignment. Jones v. U.S. Postal Serv., EEOC Appeal No. 0120100853 (May 27, 2011); see also, Ogbonna v. U.S. Postal Serv., EEOC Appeal No. 0120101289 (May 19, 2011) (Agency did not breach a settlement agreement when a specific management official gave Complainant instructions to perform certain duties over four and one-half years after settlement agreement which provided that the official would not require Complainant to perform a task. It is unreasonable to interpret the terms of a settlement agreement to go on forever, and the official’s instructions were within the scope of her responsibilities); Lasso v. U.S. Postal Serv., EEOC Appeal No. 0120111023 (May 10, 2011) (Agency complied with the terms of a settlement agreement when it moved Complainant’s case closest to the door for approximately two and one-half years. The Commission noted that, absent a specific time frame, the terms of a settlement agreement are interpreted to be for a reasonable amount of time); Brandao v. U.S. Postal Serv., EEOC Appeal No. 0120101562 (May 3, 2011) (Agency complied with the terms of a settlement agreement when it continually detailed Complainant to a 204-B Supervisor position for nearly two years. The settlement agreement only required that Complainant be given consideration for 204-B assignments not that he be retained in a 204-B detail for any prescribed length of time); Link v. Envtl. Prot. Agency, EEOC Appeal No. 0120100336 (May 2, 2011), request for reconsideration denied, EEOC Request No. 0520110527 (September 22, 2011) (Agency complied with settlement agreement when it temporarily promoted Complainant for five years and permanently rotated him to a specific Group. The settlement agreement did not provide that the promotion would become permanent, and thus, the Agency did not breach the agreement when it converted him to a lower-level position).

Breach of Settlement Found. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it demoted her from her probationary position of Frontline Manager, Air Traffic Control Specialist, to a non-managerial position. The parties subsequently entered into a settlement agreement which provided that the Agency would submit a personnel form extending her supervisory assignment until October 3, 2009, after which time, she would be returned to the bargaining unit and her duties as a Controller. The agreement also provided that Complainant would retain her current pay pursuant to guidelines set forth in “HRPM Core Comp-2.13c, Pay Retention in the Core Compensations Plan,” and pursuant to the Collective Bargaining Agreement. The Agency also agreed to pay Complainant $590.04. Complainant stated that approximately four months later, the Agency informed her that it could not comply with the agreement, and Complainant raised an allegation of breach of settlement. On appeal, the Commission found that the Agency failed to comply with the terms of the settlement agreement. The Commission noted that while the Agency stated that complying with the terms of the agreement would violate its personnel policy, the Agency did not identify the specific personnel policy, explain how it was violated, or submit an affidavit from a subject matter expert verifying how a personnel policy would be violated. The Agency also did not indicate that the personnel policy was derived from a higher source such as a statute or regulation. Thus, the Commission was not persuaded by the Agency’s argument that it could not implement the terms of the settlement agreement. The Commission also noted that the Agency failed to provide any specific documentation to support its argument that Complainant would not be able to retain her pay plan because the retention rules in the HRPM were inconsistent with those in the applicable Collective Bargaining Agreement. The Commission stated that the Agency did not provide documentation such as copies of the relevant portions of the HRPM or Collective Bargaining Agreement to support its assertions. The Commission noted that, to the extent the HRPM and the Collective Bargaining Agreement were inconsistent, compliance would require an attempt to harmonize their provisions, and, if that were not possible, to apply the HRPM since the settlement agreement specifically mentioned the applicable provision, which showed intent to implement it. Morrison v. Dep’t of Transp., EEOC Appeal No. 0120111326 (May 19, 2011).

Breach of Settlement Agreement Found. Complainant and Agency entered into a settlement agreement which provided, in pertinent part, that the Agency would “Issue the Supervisor, General Engineer (S1) a directive prohibiting him from intentionally coming into contact or otherwise communicating with complainant.” The Agency issued the directive, which also instructed S1 to maintain 50 feet of distance between S1 and Complainant at all times. On November 3, 2010, Complainant alleged a breach of the applicable portion of the agreement, stating that, on two occasions, S1 violated the above directive by: 1. approaching Complainant and passing within on foot of her; and 2. passing within a few feet of her as she sat on a bench with another employee. Complainant noted that on the second occasion, S1 spoke to the other employee “flaunting” the fact that he violated the 50 feet requirement. On appeal, the Commission found that the Agency was in breach of the agreement. The Commission noted that implicit in the directive was the Agency’s obligation to enforce the directive. Given Complainant’s assertions about S1’s conduct, the Commission found that the Agency failed to take reasonable measures to ensure that its directive would be enforced. The Commission ordered specific enforcement of the settlement agreement. Kobayakawa v. Dep’t of Def., EEOC Appeal No. 0120110871 (May 11, 2011).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement which provided, among other things, that Complainant would complete certain training, including in-house supervisory skills training, in-house refresher training in supervisory and leadership skills, and two external leadership training courses at the USDA Graduate School which the agreement indicated Complainant was already scheduled to attend. The agreement further provided that Complainant would complete an “Executive Potential Program” (EP) after she completed the other courses specified in the agreement, and her Manager “feels that Complainant has reached a leadership and supervisory skill level acceptable to the Manager.” According to the record, Complainant was to report for the EP in fiscal year 2008, but her participation was deferred by the Manager due to staff shortages and mission requirements. Complainant was again informed by the Manager in 2009 that her attendance at the EP was deferred due to staff shortages. Complainant then alleged that the Agency breached the settlement agreement, and the Commission made such a finding on appeal. The Commission noted that the agreement specified that Complainant was to take the EP at such time when she had finished the other listed courses, and her Manager found that she had reached an acceptable level with respect to leadership and supervisory skills. The record showed that Complainant’s deferment was based on staff shortages and not Complainant’s skills. Thus, the Commission concluded that the Agency’s continued deferment of Complainant’s participation in the EP program constituted a breach of the settlement agreement. The Agency was ordered to provide Complainant with authorization to attend the EP. Williams v. Dep’t of Def., EEOC Appeal No. 0120093237 (May 6, 2011).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement which provided, in pertinent part, that the Agency would “reinstate [Complainant] for the remainder of her 360 day” appointment and that Complainant would be “made whole for lost wages” from a specified date. Complainant subsequently alleged that the Agency breached the settlement agreement when it laid her off and failed to pay her wages. On appeal, the Commission found that the Agency did breach the settlement agreement. While the Agency asserted that Complainant was a casual clerk and could be released at any time, the Commission found that the plain language of the settlement agreement was that Complainant would be reinstated to the end of her 360 day appointment. Moreover, if the Agency wanted the right to terminate Complainant before the end of her 360 day appointment, it should have made that clear in the language of the agreement. The Commission noted that there was also no accounting of the wages paid to Complainant. The Agency was ordered to pay Complainant all wages and benefits she would have accrued had she completed her 360 day appointment. Beers v. U.S. Postal Serv., EEOC Appeal No. 0120093241 (March 25 2011).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement in which two disciplinary actions taken against Complainant would be rescinded and the records thereof would be removed from her file. Complainant alleged a breach of the settlement agreement when the January 2009 letter of warning that was supposed to have been rescinded was cited in an Administrative Action Request Form submitted by Complainant’s current Manager. Complainant asserted that the Manager could not have known of the letter unless it remained in her file. On appeal, the Commission found that the Agency did breach the settlement agreement. The Agency stated that the two referenced disciplinary actions were not in Complainant’s file, and were not referenced in the subsequent letter of warning. The record, however, showed that Complainant’s current Manager did in fact reference the January 2009 letter of warning in the Administrative Action Request. In addition, the Manager noted that Complainant was previously disciplined for attendance issues. The Commission concluded that the weight of the evidence indicated that the Agency breached the settlement agreement. It was clear that Complainant’s new Manager was somehow aware of the prior disciplinary action, making it more likely than not that a record of the prior disciplinary actions was retained in some sort of file by the Agency. The Agency was ordered to take all necessary steps to insure that the two disciplinary actions cited in the agreement have been rescinded and that reference to them is removed from any official or unofficial files maintained by the Agency. In addition, the Agency was ordered to rescind the subsequent letter of warning that was affected, at least in part, by the Agency’s breach. Collins v. U.S. Postal Serv., EEOC Appeal No. 0120092576 (March 21, 2011).

No Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement on April 29, 2009, which provided, in pertinent part, that the Agency would: 1) retroactively promote Complainant; 2) pay Complainant his retroactive salary, benefits and interest; 3) withhold applicable payroll deductions, including taxes, before paying Complainant any retroactive salary, benefits, or interest; and 4) notify the union once the retroactive salary, benefits and interest had been paid to Complainant. Complainant alleged that the Agency was in breach of the settlement agreement when the Agency failed to timely promote him, to pay him all of his entitled back pay, and to advise the union regarding the retroactive salary, benefits and interest owed to Complainant. On appeal, the Commission noted that the settlement agreement provided no specific time frame in which the Agency was obligated to carry out its obligations, and, in the absence of a specific time frame, the agreement is interpreted to be for a reasonable amount of time. Complainant was promoted on June 19, 2009 and received all back pay in July and August of 2009. The Commission held that this two-month time frame was reasonable and that Complainant failed to demonstrate the Agency breached the settlement agreement. Resayo v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120100097 (May 12, 2011).

Stating a Claim

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

Goff v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 0120101712 (June 24, 2011) (the Agency’s dismissal of Complainant’s complaint for failure to state a claim was improper. While the Agency stated that Complainant failed to indicated a basis for discrimination in her informal complaint or during EEO counseling, Complainant clearly identified sex and reprisal as bases in her formal complaint. Given the Commission’s “liberal latitude to clarify the bases of discrimination” and previous decisions permitting amendments to the stated bases up to the filing of an appeal, Complainant’s failure to include a discriminatory basis until she filed her formal complaint did not justify a dismissal).

Watson v. U.S. Postal Serv., EEOC Appeal No. 0120111693 (June 22, 2011) (Complainant’s allegations that the Agency requested that he undergo a fitness for duty examination (FFD) and subjected him to harassment stated a viable claim. The Agency improperly fragmented the claim. The Commission has previously held that a requirement to undergo a FFD concerns a term, condition, or privilege of employment. When considered with Complainant’s assertion that five individuals constantly yell at him and demand to know his whereabouts and the Agency takes no action, Complainant has stated an actionable claim of harassment).

White v. Dep’t of Commerce, EEOC Appeal No. 0120111759 (June 16, 2011) (Complainant stated a viable claim of retaliatory harassment. Complainant engaged in protected EEO activity when he reported alleged violations of the Pregnancy Discrimination Act to two management officials. Specifically, Complainant stated that he reported his supervisor’s actions in directing him to place a named employee at the end of the call-back process due to her pregnancy).

Meza v. U.S. Postal Serv., EEOC Appeal No. 0120111253 (June 10, 2011) (Complainant alleged that the Agency discriminated against him in reprisal for prior protected activity when, approximately one month after he settled two EEO complaints, it denied his request for annual leave and moved his work station in close proximity to individuals who wrote statements about him and gave hostile testimony at his prior EEO hearing. Taken together, the incidents could have a chilling effect on an employee’s willingness to engage in the EEO process and are sufficiently severe to state a claim of hostile work environment harassment based on retaliation); see also Patel v. U.S. Postal Serv., EEOC Appeal No. 0120110308 (April 12, 2011) (Complainant stated a viable claim of retaliation when he alleged that his Supervisors falsely accused him of being uncooperative, undermined his office performance, and subjected him to unwarranted scrutiny. When considered together, Complainant’s claims were clearly adverse and would dissuade a reasonable employee from engaging in protected activity).

Laviolette v. U.S. Postal Serv., EEOC Appeal No. 0120111764 (June 9, 2011) (Complainant stated a viable claim of sex discrimination when he alleged that the Agency issued him a letter of warning that was later reduced to an official discussion. Complainant specifically stated that the Agency issued the letter to him on the workroom floor in front of his co-workers, while similarly situated female employees received letters of warning in the privacy of an office).

Kapic v. U.S. Postal Serv., EEOC Appeal No. 0120101369 (May 26, 2011) (Complainant stated a viable claim of religious discrimination when the Agency did not permit her to have a potluck dinner to celebrate a Muslim holiday. Complainant stated that co-workers were allowed to celebrate other religious holidays with facility-wide potluck dinners that were broadly advertised with fliers posted at the Agency. The Agency’s assertion that management removed the fliers for Complainant’s event after receiving complaints from other employees goes to the merits of Complainant’s complaint and is irrelevant to the procedural issue of whether Complainant has stated a viable claim).

Karp v. U.S. Postal Serv., EEOC Appeal No. 0120111011 (May 20, 2011) (Complainant’s claim that the Agency discriminated against him when it issued him a proposed letter of warning stated a viable claim. While the Agency asserted that Complainant was not aggrieved, Complainant maintained that the letter was placed in his personnel folder, and the Commission has long held that disciplinary letters or remarks placed in an employee’s personnel folder render the employee aggrieved); see also Little v. Soc. Sec. Admin., EEOC Appeal No. 0120110488 (April 15, 2011) (Complainant’s allegation that his Supervisor discriminated and retaliated against him when he gave Complainant negative feedback during performance discussions stated a viable claim. Complainant stated that a review was placed in his personnel folder and used as a basis for lowering his end of the year appraisal. In addition, the Commission found that the comments could be reasonably likely to deter Complainant or others from engaging in protected activity).

Cassell v. U.S. Postal Serv., EEOC Appeal No. 0120110998 (May 4, 2011) (Complainant’s allegation that the Agency discriminated against him when it removed him from one position and then offered him a different position stated a viable claim of sex discrimination. Regardless of the Agency’s characterization of the action as a “reassignment,” and although the record indicated that Complainant’s pay grade remained the same, the action clearly impacted his terms and conditions of employment, including a significant change in his duties and a change of craft with seniority implications, as well as potential changes to his days off and opportunities for overtime).

Foltz v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120110536 (April 26, 2011) (the Agency improperly focused on one issue, the issuance of a letter of direction, when it dismissed Complainant’s complaint. A fair reading of the complaint and related EEO counseling materials showed that Complainant was raising a claim of on-going sex-based harassment which included various comments made by her Supervisor, such as “women should be seen and not heard,” and Complainant was “not acting like a lady.” In addition, Complainant indicated that she was denied the opportunity to work from home, made to share an office, and denied the opportunity to attend a conference).

Zurlo v. U.S. Postal Serv., EEOC Appeal No. 0120110143 (March 25, 2011) (the Agency improperly dismissed Complainant’s complaint for failure to state characterizing the incidents raised by Complainant as “petty workplace disputes,” and “common workplace occurrences.” Complainant asserted that he was subjected to an on-going pattern of discriminatory harassment that included being subjected to offensive racial slurs, physically threatened by a co-worker, and subjected to sexually explicit language, all of which were reported to management. When considered together, these incidents were sufficiently sever and pervasive to state a claim of harassment).

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

Palmer v. Dep’t of Homeland Sec., EEOC Appeal No. 0120110153 (June 9, 2011), request for reconsideration denied, EEOC Request No. 0520110534 (August 30, 2011) (Complainant was not an employee of the Agency, but was employed by a subcontractor, and therefore, her complaint failed to state a claim. The subcontractor paid Complainant’s salary and insurance, and approved her leave, as well as prepared her job evaluation, removed her from a project, and ultimately terminated her employment); see also Stalnaker v. Dep’t of the Navy, EEOC Appeal No. 0120110763 (May 5, 2011), request for reconsideration denied, EEOC Request No. 0520110489 (September 22, 2011) (Agency properly dismissed Complainant’s complaint because Complaint was not an employee. The contract between the Agency and the contractor for which Complainant worked provided that the contractor controlled, directed, and supervised its employees, and the contractor provided an on-site supervisor to monitor employees. Complainant failed to show that the Agency exercised sufficient control over her activities to be considered a joint employer).

Gallogly v. Nat’l Sec. Agency, EEOC Appeal No. 0120101806 (May 31, 2011) (the Agency’s dismissal was proper, as the record did not show that Complainant, who included only reprisal as a basis for discrimination, had any prior EEO activity. While Complainant stated that she was named in an EEO complaint filed by her subordinates, the Commission had previously held that status as a individual accused of discrimination in another employee’s EEO complaint does not, without more, constitute protected activity).

Brown v. U.S. Postal Serv., EEOC Appeal No. 0120100291 (May 18, 2011) (Complainant’s allegation that the Agency discriminated against him when it allowed a process server into the workplace to attempt to serve him with a protection order sought by his wife as part of a personal domestic legal action did not state a viable claim. The Agency has no duty to shield Complainant from the exercise of judicial authority, and Complainant was attempting to use the EEO complaint process to lodge a collateral attack on the proceedings of another forum).

Puklich v. U.S. Postal Serv., EEOC Appeal No. 0120093230 (May 4, 2011) (Complainant’s claim that, on a single occasion, a co-worker placed his hand over Complainant’s and squeezed it while asking why she had not been at work the night before did not state an actionable claim. The incident, even if considered with Complainant’s statement on appeal that the same co-worker pinched her on her birthday three years previously, was not sufficiently pervasive to state a viable hostile environment claim).

Thomas v. U.S. Postal Serv., EEOC Appeal No. 0120110678 (April 12, 2011) (Complainant’s claim that an Agency employee denied her continuation of pay did not state an actionable claim of discrimination. The Commission has no jurisdiction over such matters and the proper forum for raising challenges regarding the Office of Worker’s Compensation Programs (OWCP) process is with the Department of Labor) see also Johnson v. U.S. Postal Serv., EEOC Appeal No. 0120110371 (March 25, 2011), request for reconsideration denied, EEOC Request No. 0520110407 (June 23, 2011) (the Agency properly dismissed Complainant’s complaint concerning OWCP’s decision regarding her pay for failure to state a claim. OWCP issued multiple decisions on Complainant’s pay, and Complainant appealed those decisions. It is inappropriate for Complainant to attempt to use the EEO process to collaterally attack decisions made in the OWCP process).

Summary Judgment

AJ Improperly Fragmented Claims. Complainant was competitively selected for a temporary position with the Agency is 2003, but was subsequently diagnosed with Parkinson’s disease. Complainant alleged that within a week of informing management of her condition, she was removed from her temporary position. Complainant contacted an EEO Counselor, but later withdrew her complaint because, according to Complainant, the EEO Counselor discouraged her from pursuing the matter. Complainant subsequently filed a formal EEO complaint alleging that the Agency discriminated against her based on disability when she was not selected for a particular detail and not selected to serve in a backup roll for several key employees. The Agency did not accept Complainant’s removal issue for investigation, but did investigate the issue by asking management about the removal during the investigation. Complainant subsequently requested to amend her complaint to include an allegation of hostile work environment harassment, citing her removal, as well as the denial of her request to serve in a back-up role and the denial of training. Over Complainant’s objection, the AJ held a hearing with regard to her non-selection for a detail. The AJ granted the Agency’s motion for a decision without a hearing with regard to the denial of training and denial of her request to serve in a back up roll. The AJ did not address the matter of Complainant’s removal from her temporary position. The AJ analyzed the claims separately and found that Complainant failed to establish discrimination on the basis of disability. On appeal, the Commission found that the AJ improperly fragmented Complainant’s claim, and by doing so, the AJ failed to recognize that Complainant was raising a claim of harassment that began with her removal. Specifically, the Commission found dispositive that Complainant maintained that she was harassed and cited to all four claims in her request to amend her complaint and in her affidavit. The Commission determined that Complainant’s complaint should be viewed as alleging one on-going claim of hostile work environment harassment when, after learning of her medical condition and initial EEO activity, management officials repeatedly denied her career development opportunities. Thus, the Commission found that the AJ improperly fragmented Complainant’s claim of harassment and remanded the matter for an administrative hearing. Rodriguez v. Dep’t of the Treasury, EEOC Appeal No. 0120092043 (April 14, 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, a 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 Complainant 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), request for reconsideration denied, EEOC Request No. 0520110480 (October 14, 2011).

Timeliness

Time Limit for Filing Formal Complaint Tolled. Complainant stated that he attempted to contact an EEO Counselor on two occasions in July and August 2010 respectively to raise an allegation of race and age discrimination. Complainant’s attorney subsequently sent a letter to the Agency in October 2010, alleging that the Agency discriminated against Complainant when it terminated his employment and forced him to tender a letter of resignation. On November 20, 2010, the Agency sent Complainant’s attorney a Notice of Right to File a Discrimination Complaint (Notice), and Complainant’s attorney filed a formal complaint on November 30, 2010. The Agency dismissed the complaint as untimely. On appeal, the Commission exercised its discretion to equitably toll the 15-day limitation period for filing a complaint. The Commission noted that Complainant initially telephoned the Agency’s EEO Office in July 2010. The Commission stated that, pursuant to the EEOC Regulations, once EEO Counselor contact is initiated, counseling must be concluded within 30 days unless the parties agree to an extension. On October 6, 2010, Complainant, thought his attorney, requested that the Agency “accept his prior contact of the EEO Office” and regard the letter as Complainant’s formal complaint. The Commission further noted that when Complainant’s attorney received the Notice, it did not contain the Formal Complaint form, and Complainant’s attorney stated that it was necessary for Complainant to have the form or draft a letter “containing the same information” as found in the form. Thus, the Commission found that the chronology of events in the case justified tolling the limitation period for filing the formal complaint. Lee v. Dep’t of Commerce, EEOC Appeal No. 0120111584 (June 21, 2011).

Waiver of Time Limit for Filing Formal Complaint. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her sex when she was not selected for the position of Director of Human Resources, and subjected her to sexual harassment. The Agency dismissed the complaint as untimely, stating that Complainant received the notice of right to file a formal complaint on August 13, 2009, but did not file her complaint until September 9, 2009, which was beyond the 15-day limitation period. On appeal, the Commission determined that the limitation period should be waived in this case. Complainant asserted that although she initially raised the issue of sexual harassment with the EEO Counselor, the Counselor focused on only the non-selection. Complainant stated that the EEO office was “always closed” and she was unable to reach the EEO Counselor or other EEO staff to resolve the issue. The Commission concluded that it appeared Complainant was seeking to have her EEO counseling period extended because she felt that all of her claims were not being properly recognized. Thus, the Commission found sufficient justification to excuse Complainant’s brief delay in filing her complaint. Quinn v. Dep’t of the Army, EEOC Appeal No. 0120100067 (May 26, 2011).

Deadline for Filing Formal Complaint Tolled. Complainant filed a formal EEO complaint on October 2, 2010, alleging that the Agency subjected her to harassment on the bases of her race, sex and prior protected EEO activity. The Agency dismissed the complaint because the Complainant received a Notice of Right to File on September 10, 2010, and did not file her complaint within the 15-day limitation period. On appeal, the Commission found the deadline for filing the complaint should be tolled. Complainant stated that she was involved in settlement negotiations with the Chief of the Office of Financial Management. Complainant noted that she signed a settlement agreement on September 17, 2010, but did not learn until September 24, 2010 that the Chief would not settle her complaint. The Commission noted that Complainant believed the settlement negotiations were ongoing during the period in question and was diligently pursuing her claim. In addition, Complainant filed her formal complaint shortly after discovering that the Agency would not sign the settlement. Thus, the complaint was considered timely. Prices-Gaines v. Dep’t of the Treasury, EEOC Appeal No. 0120111001 (May 13, 2011).

Formal Complaint Timely Filed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it continually detailed her without a temporary promotion and subjected her to a hostile work environment. The Agency dismissed the complaint as untimely, stating that Complainant received the notice of right to file her complaint on August 13, 2009, but did not file her formal complaint until August 31, 2009. On appeal, the Commission concluded that Complainant did timely file her complaint. The Commission initially noted that the record did not contain any evidence showing when Complainant actually received the notice of her right to file her complaint. Further, the Commission stated that, even if she received the notice on August 13, Complainant indicated that she “slipped” her formal complaint under the door of the EEO Office on August 28 and had another employee witness this. Complainant submitted a copy of her complaint which had a notation by the witness including the August 28 date. Thus, the Commission remanded the matter to the Agency for further processing. Hadley v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 0120100594 (April 21, 2011).

Formal Complaint Improperly Dismissed as Untimely. Complainant contacted an EEO Counselor alleging that the Agency discriminated against her when it reduced her work hours. Complainant received a Notice of Right to File a Formal Complaint on July 22, 2009, and filed her formal complaint on August 7, 2009. The Agency dismissed the complaint as untimely. On appeal, the Commission found that Complainant offered a reasonable justification for the one-day delay in filing her complaint due to the medical emergency of an immediate family member. Specifically, Complainant stated that her 12-year old granddaughter was hit by a car and was taken to the hospital in critical condition two days before her complaint was due. Complainant indicated that she spent the next week at the hospital with her granddaughter. Thus, the Commission remanded the matter to the Agency for further processing. White v. U.S. Postal Serv., EEOC Appeal No. 0120100076 (March 31, 2011).

Formal Complaint Timely Filed. Complainant contacted an EEO Counselor alleging that the Agency discriminated against him on the basis of his disability. The EEO Counselor issued the Notice of Right to File a Formal Complaint by e-mail on July 9, 2009, at 4:53 pm. Complainant filed his formal complaint on July 25, 2009, and the Agency dismissed the complaint on the grounds that it was not timely filed. On appeal, the Commission found that Complainant did file his formal complaint within the 15-day limitation period. Complainant asserted that he did not receive and read the Notice until after the business day on July 9, and therefore, the time period did not start until July 10. The Commission noted that the EEO complaint processing regulations do not expressly address or define service by electronic mail. Thus, the Commission concluded that the Agency did not meet its burden of establishing that the formal complaint was not timely filed given the circumstances of this case. Fletcher v. Dep’t of Commerce, EEOC Appeal No. 0120100071 (March 30, 2011), request for reconsideration denied, EEOC Request No. 0520110423 (July 20, 2011).

Formal Complaint Properly Dismissed as Untimely. Complainant contacted an EEO Counselor alleging that the Agency discriminated against him on the basis of his age. Complainant received a Notice of Right to File a Complaint on August 18, 2009, which provided an Agency address for filing a complaint. Contrary to the instructions in the Notice, Complainant submitted his formal complaint to the Commission. The Commission transmitted the formal complaint to the Agency, and the Agency received it on September 11, 2009. The Agency then dismissed the complaint as untimely. On appeal, the Commission found that Complainant’s formal complaint was properly dismissed. Although the Notice indicated that Complainant had to file a formal complaint at the Agency address listed, Complainant submitted it to the Commission. The Commission noted that it has previously held that filing a complaint at the wrong address does not constitute a proper filing when the Complainant has been provided with the proper address. Meggers v. U.S. Postal Serv., EEOC Appeal No. 0120100176 (March 23, 2011).

Complainant Timely Initiated EEO Process. Complainant worked as a Civil Service Mariner and was assigned to work on ships within the Agency’s Military Sealift Command. According to the record, Civil Service Mariners were assigned to ships for periods of approximately four months. On April 13, 2009, Complainant filed a formal EEO complaint alleging that she was sexually harassed when she was aboard a ship from April 10 until May 8, 2008, and discriminated against when she was terminated effective August 19, 2008. According to the record, Complainant reported the first incident of sexual harassment to the ship’s Chief Mate, and provided a statement regarding her claims to him on May 6, 2008. Complainant asserted that the Chief Mate stated that he would see that an EEO complaint was filed on her behalf. Following her termination, Complainant contacted the EEO Office by e-mail. The Agency subsequently dismissed Complainant’s complaint for failure to timely contact an EEO Counselor. On appeal, the Commission stated that Complainant was aboard a ship when the alleged harassment occurred, and the ship did not have an EEO Counselor or an EEO Office. It was undisputed that she promptly reported the alleged harassment to the Agency official available to her, that is, the Chief Mate, who took her statement and apparently conducted an inquiry into her allegations. The Commission concluded that, given the facts of the case, Complainant was deemed to have timely contacted an appropriate Agency official available to her and exhibited the intent to begin the EEO process. Thus, the Commission deemed Complainant’s initial EEO contact to be timely. Hyman v. Dep’t of the Navy, EEOC Appeal No. 0120100060 (May 26, 2011). See also, Walters v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120110980 (May 18, 2011) (Complainant timely initiated EEO contact when she met with an EEO Assistant at the facility where she worked within 45 days of the alleged discriminatory harassment to “discuss her complaint.” The EEO Assistant was logically connected to the EEO process and Complainant exhibited the intent to begin the EEO process); Lodge v. Soc. Sec. Admin., EEOC Appeal No. 0120110847 (May 12, 2011) (Complainant’s e-mail to a high ranking management official reporting alleged discriminatory harassment and stating that he wanted to file a complaint, as well as a letter to the Agency’s EEO Office concerning his claims, both of which were sent within the 45-day limitation period, satisfied the EEOC Regulations requirement for initiating EEO contact. In addition, it appeared that Complainant, a new probationary employee, was not aware of his EEO rights or the limitation period for initiating an EEO complaint).

Extension of Time for Contacting EEO Counselor Granted. Complainant, a Registered Nurse, contacted an EEO Counselor on January 28, 2010, and subsequently filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race and sex when it detailed her out of the Emergency Room in September 2009. The Agency subsequently dismissed Complainant’s complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found sufficient reasons to extend the time limit for contacting an EEO Counselor. Specifically, Complainant stated she was not granted access to the patient chart for the incident preceding her detail until January 15, 2010, and only then learned that several male employees who were also involved had no action taken against them. Complainant initiated EEO counseling within one week of reviewing the chart. Thus, the Commission concluded that Complainant did not develop a reasonable suspicion of disparate treatment until she reviewed the patient chart in January 2010. Piper v. Dep’t of Health & Human Serv., EEOC Appeal No. 0120102304 (May 20, 2011).

Complaint Improperly Dismissed for Untimely EEO Contact. Complainant contacted an EEO Counselor on March 5, 2010, and subsequently filed a formal complaint alleging that the Agency discriminated against her on the bases of her race and prior EEO activity when it did not select her for a Traffic Management Coordinator position in January 2010. The Agency subsequently dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission noted that Complainant stated, without contradiction, that she was previously told by the EEO Counselor that she had 45 days to initiate the EEO process from the date she spoke with the Selecting Official regarding her non-selection. The Commission stated that the Agency cannot dismiss a complaint as untimely if that untimeliness is caused by the Agency’s misleading or misinforming the Complainant. Therefore, the Commission determined that the Agency improperly dismissed Complainant’s formal complaint. Adams v. Dep’t of Transp., EEOC Appeal No. 0120110900 (May 6, 2011).

EEO Contact Timely. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his national origin and sex when it terminated him effective May 12, 2010. The Agency dismissed Complainant’s complaint for failure to timely contact an EEO Counselor. The Agency reasoned that Complainant’s contact with the EEO Counselor on July 21, 2010 was beyond the 45 day limitation period. On appeal, the Commission found that the Agency erred when it dismissed Complainant’s complaint. Complainant asserted that he contacted the EEO Office seeking counseling on May 13, and June 16, 2010, but was told he could not pursue an EEO complaint because he had filed a grievance. Complainant stated that he later contacted the EEO Office on July 21 after being told by a Supervisor that he could not be denied counseling. Complainant provided copies of his telephone records in support of his claim that he called the EEO Office within the 45 day limitation period. The Commission noted that the Agency did not address Complainant’s assertion regarding the earlier attempts to initiate counseling in its statement in response to the appeal. Achamfour v. U.S. Postal Serv., EEOC Appeal No. 0120110898 (May 4, 2011). See also, Engle v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120110872 (April 29, 2011) (The Commission found that Complainant, more likely than not, did timely request EEO counseling. Complainant asserted that that he repeatedly contacted the EEO Counselor in a timely manner, and the Agency made reference in its final decision to several contacts Complainant made with EEO Officials prior to the date the Agency determined to be the date of initial EEO contact).

EEO Counselor Contact Timely. Complainant contacted the EEO office on August 3, 2010, regarding claims of discrimination on the basis of disability. The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency determined that the August 3, 2010 contact was beyond the 45 day limitation period, because the last alleged discriminatory incident, the “reassignment/ failure to accommodate his disability,” occurred in April 2008. The Commission determined the claim must be characterized as a recurring violation. The EEOC Compliance Manual provides that because an employer has an ongoing obligation to provide a reasonable accommodation, the failure to provide such accommodation constitutes a violation each time the employee needs it. Complainant alleged that the Agency failed to accommodate his disability on a continuous basis. The Commission held that the denial of reasonable accommodation constitutes a recurring violation that repeats each time the accommodation is needed. Therefore, the Commission found that the Complainant’s EEO counselor contact was timely. Jones v. Dep’t of the Air Force, EEOC Appeal No. 0120110673 (April 18, 2011).

ARTICLE
Sanctions: An Update of Recent Commission Decisions

(The following article is not intended to be an exhaustive or definitive discussion of a complex area of law, nor is it intended as legal advice. The article is generally based on EEOC documents available to the public at the Commission’s website at www.eeoc.gov, as well as on Commission case law. For a discussion of prior Commission decisions addressing the issue of sanctions see Digest of EEO Law, “The Sanctions Cases of 2009: Preserving the Integrity of the EEO Process,” Vol. XXI, No 1. (Winter 2010). Some decisions cited may have appeared in previous editions of the Digest. –Ed)

INTRODUCTION

The EEOC Regulations provide for the imposition of sanctions when a party fails to comply with an order or request from an AJ or the Commission. Specifically, the Regulations state that when the Complainant or the Agency fails without good cause shown to respond fully and in a timely fashion to an order or requests for the investigative file, documents, records, comparative data, statistics, affidavits, or the attendance of witnesses, the AJ shall, in appropriate circumstances take certain actions.1 These may include drawing an adverse inference that the requested information or testimony would have reflected unfavorably on the party refusing to provide the information, considering the matters to which the information or testimony pertains to be established in favor of the opposing party, excluding the evidence, or issuing a decision fully or partially in favor of the opposing party.2 In addition, when either party to an appeal to the Commission fails without good cause to comply with a request for information, the Commission may take similar actions.3

The Commission noted, in Matheny v. Dep’t of Justice,4 that the authority to impose sanctions is necessary for the Commission to effectively enforce the prohibition on employment discrimination in the federal workplace because the Commission cannot subpoena other agencies, and sanctions ensure that federal agencies will comply with the administrative process. Further, in Gray v. Dep’t of Def.,5 the Commission articulated five factors to consider when determining whether a party’s non-compliance warranted a sanction and also what sanction is appropriate: (1) the extent and nature of the non-compliance; (2) the justification presented by the non-complying party; (3) the prejudicial effect of the non-compliance on the opposing party; (4) the consequences resulting from the delay in justice; and (5) the effect on the integrity of the EEO process. In evaluating these factors, the Commission counseled that sanctions are designed to serve the purpose of “deterring the [offending party] from engaging in similar conduct in the future, without being overly harsh in light of the nature of the offense.”6 The following Commission decisions address the imposition of sanctions in the EEO hearings and appeal processes.

Recent Commission Decisions

Sanctions Imposed by the Commission

In Vu v. Soc. Sec. Admin.,7 the Commission sanctioned the Agency for failing to submit the complete complaint file. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her national origin and prior EEO activity when it subjected her to harassment and a hostile work environment. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately issued a decision without a hearing finding no discrimination. The Agency failed to issue a final order within the specified 40-day period, and, therefore, the AJ’s decision became the Agency’s final action. On appeal, the Commission noted that the record submitted on appeal was not the same record presented to the AJ. Specifically, the AJ stated that she relied upon the Agency’s original motion and supplemental brief, neither of which was provided to the Commission on appeal. The Commission stated that it requested the complete file from the Agency on at least four occasions, including in a Notice to Show Cause Why Sanctions Should Not Be Imposed. The Notice ordered the Agency to submit the complete file or good cause evidence or argument within 20 days, and notified the Agency that sanctions were possible if the Agency failed to comply. The Agency, however, failed to timely submit the requested documents. The Commission found that the Agency’s failure to submit a complete complaint file and its failure to issue a final order rendered the record on appeal insufficient for a determination on the merits. The Commission was unable to make a determination on the merits without the Agency’s motion for a decision without a hearing because the AJ’s decision adopted that motion. Thus, the Commission concluded that the Agency’s conduct in the case warranted the imposition of sanctions. Given that the record remained incomplete as a direct result of the Agency’s failure to submit the complete case file, the Commission vacated the AJ’s decision, and remanded the matter for a full hearing on the merits. In addition, the Commission found that an additional sanction was warranted, and ordered the Agency to notify Complainant of her entitlement to retain an attorney for the hearing. The Commission stated that the Agency would be required to pay Complainant’s attorneys fees for the entire hearing process.

Sanctions Imposed by the AJ

The Complainant, in Murphy v. Dep’t of Veterans Affairs,8 filed a formal EEO complaint alleging that the Agency subjected her to sexual harassment. Following the investigation, Complainant requested an administrative hearing. The AJ ultimately denied the hearing request on the grounds that Complainant failed to comply with a Scheduling Order, and a subsequent Order extending the deadline for discovery completion by not providing any of the requested information. The Agency then issued a final decision finding that Complainant had not been subjected to harassment as alleged. On appeal, the Commission noted that the EEOC Regulations afford broad authority to AJs for the conduct of hearings, including the authority to sanction a party for failure, without good cause shown, to fully comply with an order. In this case, the AJ informed Complainant that her failure to respond to the second Order, in the absence of a timely request for an extension, would be considered abandonment or a waiver of her request for a hearing. Complainant failed to submit any of the information required by the AJ. Thus, the Commission found that the imposition of a sanction was properly within the AJ’s discretion, and the AJ properly remanded the case to the Agency for a decision on the record.9

In Myvett v. Court Serv. & Offender Supervision Agency,10 the Commission found that the AJ properly sanctioned the Agency by issuing a default judgment in favor of Complainant. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the bases of his sex and prior EEO activity when it placed him in absent without leave (AWOL) status and suspended him. Following an investigation, Complainant requested an administrative hearing. In August 2007, the AJ issued an Order directing the Agency to produce the complaint file, including the report of investigation (ROI) within 15 days. The Order indicated that the Agency could be sanctioned if it did not provide the requested material. The Agency forwarded an incomplete complaint file which did not include the ROI, and the AJ issued an Order to Complete Investigation in September 2007. The Order provided the Agency with 45 days in which to complete the investigation. The Agency subsequently requested an extension of time in December 2007, and then issued a final decision in January 2008 dismissing most of the complaint. The AJ then issued an Order to rescind the final Agency decision, noting that the Agency is precluded from dismissing a complaint after the Complainant has properly requested a hearing. The Agency did rescind the final decision, but did not submit the ROI. In July 2008, the AJ issued a Show Cause Order requiring the Agency to show cause why it had failed to comply with his Orders to produce a completed ROI. The Agency ultimately submitted a copy of the ROI at that time. Subsequently, the AJ issued a decision noting that while Complainant filed his formal complaint in December 2006, the Agency did not produce a copy of the ROI until July 2008. Further, the Agency failed to comply with the AJ’s Orders instructing it to produce the ROI, and did not in fact begin the investigation until March 2008. The AJ found that the Agency did not show good cause for the delay in producing the ROI, and its delay constituted an egregious abuse of the process. Therefore, the AJ concluded that the imposition of sanctions was warranted, and entered a default judgment in Complainant’s favor with regard to the AWOL charge and suspension.11 On appeal, the Commission concluded that the AJ’s findings were supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies and laws. Further, the Commission determined that the record supported the AJ’s determination that the Agency did not show good cause for the delay in the production of the ROI.

The Commission also found that the AJ properly sanctioned the Agency by imposing a default judgment in Giza v. Dep’t of Justice.12 Complainant served as a pilot for the Agency’s Prisoner and Alien Transportation System. She filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of sex when it suspended her on a charge of careless workmanship. When 180 days had passed from the time she filed her complaint, Complainant requested an administrative hearing before an AJ. At that time, the Agency had not completed its investigation. An AJ (AJ1) subsequently issued an Order directing the Agency to produce the complaint file or, in the alternative, show good cause why it had not done so. Approximately one month later, Complainant filed a Motion for Sanctions based upon the Agency’s failure to respond to AJ1’s Order. AJ1 then issued an interim decision summarily finding that a default judgment was warranted because the Agency did not submit the complaint file or show good cause why it had not done so. The Agency then submitted the complaint file, asserting in a letter that it had never received AJ1’s Order, and requested that the sanction be withdrawn. The Agency also submitted a Motion to re-establish the date of the Acknowledgment and Order.

A second AJ (AJ2) was subsequently assigned to the case. AJ2 issued an Order rejecting the Agency’s requests to withdraw the sanctions. AJ2 found that the Agency did not submit any evidence in support of its assertions about not having received AJ1’s Order, noting that all of the Agency’s arguments were contained in a letter as opposed to its Motion. AJ2 noted that the address used to request the complaint file was the same address the Agency specifically instructed the AJ to use to transmit the transcript, exhibits and decision at the conclusion of the hearing. The Agency offered no persuasive explanation as to why that address was “wrong” or why AJ1’s Order was not promptly forwarded to the “correct” office. It was undisputed that the Agency received a copy of Complainant’s hearing request, and AJ2 noted that the Agency never offered an explanation for failing to produce the complaint file in response to that request. In addition, AJ2 found that the Agency made “misstatements and omissions” including stating that it only received one letter from Complainant concerning the complaint file, when Complainant sent two letters to the same Agency address, and claiming that AJ1’s Acknowledgment and Order was mailed on March 27, 2009, when the certificate of service showed that it was mailed on February 13, 2009. Thus, AJ2 found that the Agency’s conduct showed a disregard for the hearing process. AJ2 concluded that the evidence was sufficient to support an inference of unlawful sex discrimination, and conducted a hearing on the issue of damages.

On appeal, the Commission stated that, where a party fails to respond to an order from an AJ, the AJ may, as appropriate, take action against the non-complying party including issuing a decision fully or partially in favor of the opposing party.13 The Commission stated that the Agency was aware of Complainant’s request for a hearing and completed its investigation in early September 2008. The Agency, however, never explained why it did not promptly send Complainant a copy of the report of investigation. Further, the Agency was well aware of its obligation to submit the complaint file to the EEOC Hearings Unit, and provided no explanation as to why it took almost six months for the Agency to submit the complaint file. The Commission noted that while the Agency devoted considerable argument to the issue of the correct address, the Agency failed to adequately explain why the AJ was expected to use no less than three different Agency addresses, depending on the nature of the document being sent. Further the Commission was not persuaded that the Agency was somehow excused from responding if an AJ sent an Order directing the Agency to produce the complaint file to the same office which the Agency demanded that the hearing materials be ultimately sent. The Commission noted that a default judgment is a serious sanction, but concluded that the record in this case supported both AJ1’s and AJ2’s decisions. The Commission considered the Agency’s failure to respond to AJ1, as well as the casual response AJ1 received as a justification for the Agency’s inaction. In addition, the Commission stated that AJ2’s concerns about the integrity of the EEO process were persuasive and sincere. Finally, Complainant’s testimony regarding the suffering she endured as a result of the suspension showed that the consequences of a delay would have been especially severe for her. Thus, the Commission concluded that the imposition of the default judgment would deter the Agency from failing to expeditiously respond when hearings are requested in the future, and provide an equitable remedy to Complaint for her undeserved suspension.

Other Relevant Cases Which Do Not Impose Sanctions

The Commission has also issued two decisions which, while not sanctioning the Agency pursuant to the applicable provisions of the EEOC Regulations, demonstrate the consequences an Agency could face if it fails to conduct an adequate investigation. In Koudry v. Dep’t of Educ., 14 Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his disability and prior EEO activity when it rated him “successful” rather than “highly successful” or “outstanding,” and did not select him for a Supervisory Management and Program Analyst position. In the initial appellate decision, the Commission found that the Agency failed to provide a specific, clear, and individualized explanation for its decision to rate Complainant as “successful” rather than “highly successful,” or for its decision not to select him for a Supervisory Management and Program Analyst position. Thus, Complainant did not have a full and fair opportunity to demonstrate that the Agency’s reasons were pretextual. The Commission noted that the Supervisor’s response to Complainant with regard to his evaluation, and the Supervisor’s affidavit provided only a general description of the evaluation process; broadly stated that Complainant performed only at the “successful level;” and provided no specific information explaining the rating. With regard to the non-selection, the Agency relied on an unsigned, undated statement regarding the Selectee’s experience which was not attributed to any particular individual, as well as an affidavit from Complainant’s first-line Supervisor who was not involved in any way in the selection process and who himself had applied for the position. The Commission did not find these documents to be probative evidence of the criteria the Selecting Official or Interview Panel used to compare the candidates. Further, the record did not contain any rating or voting sheets, notes taken contemporaneous with the interviews, sworn declarations, or signed statements of any person connected to the selection process that explained the rankings of the candidates and why the Selectee was chosen for the position. Thus, because the Agency failed to meet its burden of production, the Commission concluded on appeal that the Agency failed to overcome Complainant’s prima facie case.

The Agency subsequently filed a request for reconsideration, asserting that the matter should be remanded so that it could supplement the record with further evidence supporting its actions. The Commission denied the Agency’s request for reconsideration. The Commission initially noted that the Agency did not challenge its finding that Complainant established a prima facie case of reprisal and disability discrimination. The Commission noted that while the Agency asserted that its decision not to select Complainant for the Supervisory position was supported by the best qualified list and Complainant’s and the Selectee’s applications, those documents did not provide a specific, individualized explanation of why the Agency chose the Selectee instead of Complainant, and provided no insight on how Complainant’s qualifications were evaluated in comparison to those of the Selectee. In addition, the Agency only explained the general mechanics of the performance evaluation process but failed to provide an individualized explanation for Complainant’s specific rating. The Commission further stated that while the Agency attributed its failure to sufficiently explain its actions to the lack of an administrative hearing, the EEOC Regulations require the Agency to develop an adequate investigative record whether or not the matter will be heard by an AJ. Thus, the Commission concluded that the Agency failed to set forth a legitimate reason for its actions, which deprived Complainant of a full and fair opportunity to demonstrate that the Agency’s explanations were a pretext for unlawful discrimination. The Commission noted that it has often found discrimination outright when Agencies have failed to sufficiently explain their actions. Thus, the Commission determined that the underlying appellate decision properly found that Complainant was subjected to reprisal and disability discrimination.

In Finch v. Dep’t of Agric.,15 the Commission found that the AJ erred in granting the Agency’s request for summary judgment and finding no sex or reprisal discrimination with regard to Complainant’s claim of discriminatory non-selection. The Commission initially found that the record had not been adequately developed as it did not contain evidence regarding how the first interview panel scored the applicants or what their individual scores were. The record did contain statements from the interview panel members to the effect that the Selectee had an outstanding initial interview and that Complainant’s answers to the interview questions regarding management experience were short and lacked detail. The record also contained a statement from a witness who indicated that he spoke with a member of the selection panel about selecting Complainant for the position, and the individual stated that the Agency was not interested in Complainant because of her success in receipt of a settlement in a prior EEO class action. The witness noted that the panel member expressed “in strong words” that Complainant should not be in a management position. The Commission noted that a reasonable fact finder could conclude that this statement by a panel member influenced the selection process to Complainant’s detriment. The Commission stated that, at the summary judgment stage, Complainant’s evidence must be believed and all justifiable inferences drawn in her favor. While the interview panel noted that the interview was the deciding factor in which applicants were recommended for a second interview, the Commission noted that there was no supporting documentation regarding the interview process. Thus, summary judgment was not appropriate in this case given that the record contained genuine issues of material fact and credibility.


Footnotes

1 29 C.F.R. § 1614.109(f)(3).

2 Id., see also,Waller v. Dep’t of Transp., EEOC Appeal No. 0720030069 (May 25, 2007) (stating that AJs possess the authority to order a party to pay attorney’s fees and costs to prevent a party’s future misconduct and must tailor their orders to each situation to respond to the party’s failure to show good cause for its actions, as well as to equitably remedy the opposing party).

3 29 C.F.R. § 1614.404(c).

4 EEOC Request No. 05A30373 (April 21, 2005).

5 EEOC Appeal No. 07A50030 (March 1, 2007).

6 Id; see also Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000).

7 EEOC Appeal No. 0120072632 (January 20, 2011).

8 EEOC Appeal No. 0120091774 (October 15, 2010), request for reconsideration denied EEOC Request No. 0520110144 (February 3, 2011).

9 See also, Skipper-Scott v. Dep’t of Justice, EEOC Appeal No. 0120110941 (May 18, 2011) (The Commission found the AJ’s decision to dismiss Complainant’s hearing request was proper, because she failed to comply with the AJ’s scheduling order requiring her to submit a variety of pre-hearing information within a set time frame); Black v. Dep’t of the Treasury, EEOC Appeal No. 0120073275 (February 11, 2011) (The Commission agreed with the AJ that Complainant’s failure to respond to the Agency’s discovery request, the AJ’s Order, and a Show Cause Order warranted a sanction, but found the AJ erred in dismissing her claim. Complainant’s actions did not rise to the level of contumacious conduct, and, therefore, the appropriate sanction was to dismiss the hearing request and remand the complaint to the Agency for a final decision on the record).

10 EEOC Appeal No. 0120103671 (February 8, 2011).

11 The AJ found that Complainant failed to state a claim of actionable harassment, and that his claim concerning his removal was within the jurisdiction of the Merit Systems Protection Board.

12 EEOC Appeal No. 0720100051 (April 1, 2011).

13 Citing 29 C.F.R. § 1614.109(f)(3).

14 Koudry v. Dep’t of Educ., EEOC Appeal No. 0120080343 (November 2, 2009), request for reconsideration denied, EEOC Request No. 0520100196 (April 13, 2010).

15 EEOC Appeal No. 0120080535 (November 4, 2010).