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The DIGEST Of Equal Employment Opportunity Law


Volume XXII, No. 4

Office of Federal Operations

Fall 2011


Inside

Selected EEOC Decisions on:

SELECTED NOTABLE EEOC DECISIONS FROM FY 2011


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

Carlton M. Hadden, Director, OFO
Douglas A. Gallegos, Acting Director, OFO's Special Services Staff
Digest Staff
Editor and Writer: Robyn Dupont

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

(The Fall 2011 edition of the Digest contains a sampling of summaries of decisions of note, some appearing in previous issues, selected by the staff of the Digest from among the volume of decisions the EEOC issues each fiscal year. The summaries are neither intended to be exhaustive or definitive as to the selected subject matter, nor are they to be given the legal weight of case law in citations. For summaries of decisions involving claims of harassment, see by statute as well as under multiple bases. - Ed.)


SELECTED EEOC DECISIONS

Attorney's Fees

(See also, "Findings on the Merits," this issue. - Ed.)

Attorney's Fees Proper for Work Pursuing Claim for Damages. The Agency found that Complainant was subjected to a discriminatory hostile work environment, and conducted a supplemental investigation regarding Complainant's claim for damages and other relief. The Agency did not issue its final decision regarding damages for nearly one year. Complainant appealed the decision solely on the issue of attorney's fees and costs, stating that she incurred additional fees during the Agency's investigation regarding the issue of damages. On appeal, the Commission initially noted that the Agency had found that the Attorney's hourly rate was reasonable. In addition, the Commission stated that Complainant prevailed when she was awarded damages with respect to her claim of harassment. Based upon the submissions on appeal, the Commission found that Complainant did accrue additional attorney's fees pursuing her claim for damages. The Commission determined that the Attorney continued to be involved in Complainant's case because of the delays by the Agency in processing the claim for damages. During the investigation, the Agency changed Investigators, and did not issue its decision until December 2010 despite receiving supporting evidence from Complainant 10 months earlier. Thus, the Commission concluded that the request for additional fees was reasonable. Rivera v. Nat'l Aeronautics & Space Admin., EEOC Appeal No. 0120111416 (July 19, 2011).

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

Class Complaints

Breach of Class Action Settlement Agreement Found. Complainants, acting as class agents, filed a class complaint that was certified and defined as all African-American male employees employed at the agency's headquarters office, who on or after June 23, 1995, were not selected or promoted, or who were otherwise subjected to disparate treatment in regard to performance appraisals, awards, bonuses, and disciplinary actions. The class was later expanded to include those who worked at the Agency's headquarters on or after January 1987. On January 11, 2002, the parties signed a class settlement agreement, which was subsequently approved on April 7, 2003. The settlement provided, among other things, that the Agency would correct any misapplications of its policies for granting performance awards and Quality Step Increases (QSIs) to ensure fair and equitable distribution of such awards, consistent with merit principles. The settlement also provided that the agency would pay $6,350,000 to the class and that an AJ would retain jurisdiction over the matter for four years to monitor implementation of the agreement. The class alleged breach of the agreement and the AJ issued a decision finding no breach. On appeal, the Commission found that the Agency breached the class settlement agreement. The Commission relied on evidence in the record revealing that between April 1, 2003, and September 30, 2005, African-American males were underrepresented as compared to their peers with regard to honor awards, monetary awards, and QSIs. Based on the foregoing, the Commission concluded that the Agency did not ensure that its policies and practices for granting performance awards and QSIs were equitable and fair during the relevant time period, and that this constituted a breach of the agreement. Furthermore, the instant decision found that the Agency breached the agreement by failing to correct any misapplications of its policies for granting performance awards and QSIs to ensure fair and equitable distribution of such awards, consistent with merit principles. The Commission ordered the Agency to comply with the terms of the agreement and required the Agency to request that an AJ oversee the relief. The relief required that all African-American males working at the Agency's headquarters office from April 1, 2003, through September 30, 2005, were presumptively entitled to the average honor award, monetary award, and QSI received during the relevant time. Additionally, the Commission's decision required that the AJ ensure that the Agency complied with the provision of the settlement agreement requiring it to correct any misapplications of its policies for granting performance awards and Quality Step Increases to ensure fair and equitable distribution of such awards, consistent with merit principles. Jefferson, Burden & Dunbar, et al. v. Soc. Sec. Admin., EEOC Appeal Nos. 0120081816, 0120081817, 0120081818, et al. (April 28, 2011).

Compensatory Damages

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

$150,000 Awarded for Sexual Harassment and Retaliation. Following a hearing, an EEOC Administrative Judge (AJ) found that a co-worker subjected Complainant to sexual harassment for more than seven years, and that the Agency retaliated against Complainant when it assigned her fewer overtime hours than male employees. The AJ awarded Complainant $35,000 in compensatory damages, and Complainant filed an appeal with the Commission challenging the adequacy of the award. On appeal, the Commission found that the AJ's award was inadequate. Complainant provided detailed testimony regarding the effects of the harassment, stating that she could not concentrate, could not think, had difficulty sleeping, was depressed, and suffered nightmares. In addition, Complainant stated that she yelled at her children, and the harassment affected her friendships and romantic relationships, making her "want to be away from people." Complainant stated that she experienced chest pains, sought counseling from a psychologist, and saw a physician, but was unable to take medication for anxiety and depression because it made her ill. Two co-workers confirmed that Complainant was scared of the harasser and distraught. The Commission found the testimony compelling, showing that Complainant suffered extreme, prolonged emotional distress and harm because of the Agency's seven-year failure to promptly and effectively address the harassment. Thus, the Commission concluded that Complainant was entitled to an award of $150,000 in non-pecuniary compensatory damages. Lopez-Rosende v. U.S. Postal Serv., EEOC Appeal No. 0120102789 (November 30, 2010).

$150,000 Awarded for Sex, Race and Reprisal Discrimination. In a prior decision, the Commission found that the Agency discriminated against Complainant on the bases of her sex, race, and prior EEO activity when it denied her request to attend training and terminated her employment. The Commission ordered the Agency to conduct a supplemental investigation with regard to Complainant's claim for compensatory damages, and the Agency awarded Complainant $40,000. On appeal, the Commission found that the evidence of record supported a higher award of $150,000. Specifically, the record showed that Complainant suffered from depression, anxiety, stress, insomnia, difficulty concentrating, disassociation, crying spells, social isolation, damage to her professional reputation, withdrawal from relationships, and short-term memory loss. In addition, Complainant experienced nightmares, panic, worsening abdominal pain, worsening hypertension, weight loss, and worsening psoriasis brought on by stress. The Commission stated that despite Complainant's pre-existing conditions and additional stressors, the Agency's discriminatory termination was the proximate cause of her emotional and physical problems. The Commission concluded that an award of $150,000 was clearly supported by the evidence, and based on the actual harm experienced as a result of the Agency's actions. The Commission also found that Complainant was entitled to payment of $39,121.59 in pecuniary damages representing foregone interest and penalties incurred as a result of the withdrawal of funds from her Thrift Savings account. Brown-Fleming v. Dep't of Justice, EEOC Appeal No. 0120082667 (October 28, 2010).

$115,000 Awarded for Reprisal. Following a hearing, an AJ found that Complainant was subjected to unlawful reprisal when the Agency forced him to resign in lieu of termination. As relief, the AJ awarded, among other things, $15,000 in non-pecuniary compensatory damages. Complainant filed an appeal with the Commission challenging the award of damages. On appeal, the Commission found that the AJ's award was inadequate. The record contained testimony from Complainant and his spouse showing that he suffered significant weight gain, an inability to sleep, nightmares, aggravation of physical injuries, stomach distress, change in personality, loss of enjoyment of life, withdrawal from family and friends, increased use of alcohol, lack of desire to socialize, isolation and bouts of anger. In addition, Complainant saw a therapist twice a week for depression until he could no longer afford the treatment. Complainant's psychologist testified that he diagnosed Complainant with major depression, and that without treatment, Complainant's prognosis was only fair. The record also showed that the discrimination resulted in a deterioration of Complainant's relationship with his wife and daughter, leading to a separation and pending divorce. Thus, the Commission concluded that the record supported an award of non-pecuniary compensatory damages in the amount of $115,000. Chastain v. Dep't of the Navy, EEOC Appeal No. 0120102409 (November 17, 2010), request for reconsideration denied EEOC Request No. 0520110240 (March 31, 2011).

$80,000 Awarded for Sex Discrimination. Following a hearing, an AJ found that the Agency discriminated against Complainant on the basis of her sex when it failed to select her for a Postmaster position, and awarded Complainant, among other things, $80,000 in non-pecuniary compensatory damages. On appeal, the Commission found that the AJ's award was proper. Complainant's testimony, as corroborated by her husband, showed that she became physically ill and suffered severe emotional distress as a result of the discrimination. She experienced various symptoms, including headaches, difficulty eating, nightmares, difficulty sleeping, the loss of enjoyment of life, sadness, and feelings of helplessness. She sought medical treatment as a result of her physical and psychological symptoms. Complainant's psychologist testified that she diagnosed Complainant with major depression and prescribed medication for Complainant. The Commission concluded that substantial evidence supported the AJ's finding that there was significant evidence of harm as a result of the Agency's discrimination. The Commission noted that, contrary to the Agency's assertion, the amount of damages does not correlate to the type of personnel action at issue, but must be determined based on the extent of the harm suffered by the particular complainant. Pendleton v. U.S. Postal Serv., EEOC Appeal No. 0720090054 (September 21, 2011).

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

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

$25,000 Awarded for Race, National Origin, Color, and Reprisal Discrimination. The Commission previously affirmed the Agency's finding that Complainant was discriminated against with regard to his working conditions because of his race, national origin, color, and prior EEO activity. In addition, the Commission found that Complainant was subjected to retaliatory harassment. Following a supplemental investigation, the Agency awarded Complainant pecuniary damages for moving expenses, storage, temporary living quarters and job search expenses, but made no award for non-pecuniary damages. On appeal, the Commission initially found that Complainant was not entitled to an award of pecuniary damages for lost profits on the sale of his home because while Complainant asserted that he was threatened with termination, he did not allege that he was constructively discharged. The Commission concluded, however, that Complainant was entitled to an award of $25,000 in proven non-pecuniary compensatory damages. Complainant submitted a statement indicating that he suffered emotional pain, inconvenience, mental anguish, and loss of enjoyment of life. He noted that, because of the over two and one-half years of discrimination, he gained weight, and began to drink more. His relationships with his wife and sons deteriorated, and he felt humiliated by the racially derogatory comments of his Supervisor. Complainant further stated that he experienced tightness in his back and headaches, and had trouble sleeping. Rodriguez v. Dep't of Energy, EEOC Appeal No. 0120101138 (July 14, 2011), request for reconsideration denied, EEOC Request No. 0520110599 (January 23, 2012).

$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).

$13,000 Awarded for Disability Discrimination. Following a hearing, an AJ found that the Agency discriminated against Complainant on the basis of his disability with regard to his assignment. The relief awarded by the AJ included payment of $4,000 in non-pecuniary compensatory damages, and Complainant ultimately appealed the issue of damages to the Commission. On appeal, the Commission found that the AJ's award was inadequate. The Commission initially determined that the AJ properly denied Complainant's request for pecuniary damages related to the sale of his mobile home and purchase of a new home, as there was no nexus between those expenses and the discrimination. The Commission found, however, that the record supported an award of $13,000 in non-pecuniary damages. Complainant testified that the discrimination caused him to feel angry, frustrated and defeated, and he went to see a counselor. Complainant's wife stated that, after the Agency changed Complainant's assignment, Complainant became angry, and family life was difficult. Complainant's stepson and a co-worker confirmed these statements. Wolfe v. U.S. Postal Serv., EEOC Appeal No. 0120081060 (October 29, 2010), request for reconsideration denied, EEOC Request No. 0520110194 (November 17, 2011).

$8,000 Awarded for Nonselection. In a prior decision, the Commission found that the Agency discriminated against Complainant when it failed to select her for a Paralegal Specialist position. The Commission ordered the Agency to conduct a supplemental investigation with regard to Complainant's claim for compensatory damages, and the Agency ultimately issued a decision awarding Complainant $8,000 in non-pecuniary damages. The Commission affirmed the Agency's decision on appeal. The Commission initially found that Complainant was not entitled to an award of pecuniary damages because she failed to establish a nexus between the medical issues she cited and her nonselection. With regard to non-pecuniary damages, the Commission noted that Complainant provided a statement indicating that she was stressed and upset when she was not selected for the position. The Commission further stated, however, that Complainant's supporting evidence from her family and friends did not establish that all of her stress and pain were because of the nonselection. Many of Complainant's medical conditions existed well before the date of the nonselection, and there was no finding of a discriminatory hostile work environment. Thus, the Commission concluded that the award of $8,000 in non-pecuniary compensatory damages was proper. Johnson v. Soc. Sec. Admin., EEOC Appeal No. 0120082129 (September 9, 2011).

$500 Awarded for Reprisal. In a prior decision, the Commission found that certain statements made by Complainant's supervisor constituted a per se violation of Title VII, and that the Supervisor retaliated against Complainant when he failed to assist her in filling out a worker's compensation form and instructed her to refrain from certain practices. The Commission ordered the Agency to conduct a supplemental investigation with regard to Complainant's claim for damages, and the Agency ultimately determined that Complainant was entitled to an award of $500. On appeal, the Commission affirmed the Agency's damage award. Complainant stated that she had difficulty sleeping, felt sick to her stomach, and became anxious when coming to work. She also alleged that her blood pressure became elevated, but acknowledged that it returned to normal once her Supervisor was relocated to another office. The Commission found that, based upon the evidence submitted by Complainant, the Agency's award was adequate. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120101454 (December 16, 2010).

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).

Compliance

Compliance with Final Agency Decision Addressed. Following a hearing, the AJ found that the Agency discriminated against Complainant on the bases of his age, sex, and prior EEO activity when it failed to select him for a Supervisory Customs Entry Officer position. The Agency implemented the AJ's order which required the Agency to, among other things, compensate Complainant for all additional pay and benefits including Agency Thrift Savings Plan (TSP) contributions, pay interest on lost back pay and benefits, and provide Complainant with a detailed statement of its calculations regarding back pay and other benefits. According to the record, Complainant and the Agency exchanged regular correspondence regarding implementation of the order. Nevertheless, Complainant, believing the Agency had not fully complied, filed an appeal with the Commission. On appeal, the Commission initially determined that the Agency provided appropriate documentation showing how it calculated back pay, and Complainant failed to show that the Agency's back pay calculations or the amount of money withheld was erroneous. The Commission, however, found that it was unclear from the record how the Agency calculated the interest on the back pay award. While the Agency claimed that the interest rate fluctuated, it did not specify what interest rates it applied during the relevant periods. In addition, the spreadsheets provided by the Agency did not correspond with the amount the Agency stated that it paid. With regard to the Agency's TSP contributions, the Commission found that it was unclear whether the Agency had paid the earnings which Complainant's account would have accrued but for the discriminatory nonselection. The Commission noted that, to the extent a complainant would have received contributions to his retirement fund as a component of his salary, he was entitled to have his retirement benefits adjusted as part of his back pay award, including receiving earnings which the account would have accrued during the relevant period. The Commission stated that the Agency must clearly document its calculations for all TSP contributions, and provide evidence showing whether it had reimbursed the lost earnings to Complainant's account, as well as pay prejudgment interest on lost back pay and benefits, to the extent the Agency had not yet done so, at the annual percentage rate or rates established by the U.S. Secretary of the Treasury. Yovan v. Dep't of Homeland Sec., EEOC Appeal No. 0120083601 (October 20, 2010).

Dismissals

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

Agency Improperly Fragmented Claim. Complainant filed a formal EEO complainant alleging that the Agency discriminated against him on the bases of his race and color when a co-worker attempted to disrupt his operations, discredit him and have him removed, and when he was removed from his position and not given information necessary to process his travel voucher. The Agency dismissed the claims regarding the co-worker's actions and Complainant's removal from his position for failure to timely contact an EEO Counselor, and the remaining allegation as being moot. On appeal, the Commission stated that a review of Complainant's claims and the EEO Counselor's report showed that Complainant was actually alleging that the Agency subjected him to a pattern of harassment. The Commission found that the Agency improperly fragmented Complainant's claim by separating the complaint into stand-alone claims. Taken together, Complainant's allegations were sufficient to state a hostile work environment claim. Given that one of the actions comprising the claim occurred within 45 days of Complainant's contact with the EEO Counselor, the claim was timely. Further, given that Complainant could seek relief for the harassment to which he was subjected, his claim was not moot. The Agency was ordered to process the claim of harassment. Farrow v. Dep't of Def., EEOC Appeal No. 0120111776 (July 18, 2011), request for reconsideration denied, EEOC Request No. 0520110624 (November 22, 2011).

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

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. Complainant filed a formal EEO complaint alleging that the Agency denied her request for reasonable accommodation. The Agency dismissed the matter as alleging dissatisfaction with the processing of a previously filed complaint. The Agency asserted that the matter had been settled. On appeal, the Commission initially noted that the language of the settlement agreement stated that the Agency would continue to assign Complainant work pending her application to the District Reasonable Accommodation Committee. Subsequently, the Committee denied Complainant's request for reasonable accommodation, and suggested that Complainant seek disability retirement. Complainant asserted that the Committee failed to engage in the interactive process, and made assumptions about her ability to work. The Commission stated that it was clear from the record that Complainant's claim concerned the denial of reasonable accommodation, and that Complainant did not know she would be denied accommodation at the time she signed the agreement. The Commission stated that a complainant may validly waive only those claims arising from discriminatory acts or practices which pre-date the execution of the agreement, and a release or agreement that waives prospective rights is invalid. In this case, while the agreement did not include language barring Complainant from filing complaints regarding her request for accommodation, the Agency improperly treated it as such. Thus, the matter concerning Complainant's claim that she was denied reasonable accommodation was remanded to the Agency for further processing. Wheeler v. U.S. Postal Serv., EEOC Appeal No. 0120102837 (October 7, 2010).

Findings on the Merits and Related Decisions

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

Under the Age Discrimination in Employment Act

Age Discrimination Found with Regard to Nonselection. Complainant, a 42-year old Air Traffic Control Specialist (ATCS), became a displaced employee when a private contractor assumed control of his facility pursuant to an agreement with the Agency. Complainant applied for various ATCS positions throughout the country pursuant to three vacancy announcements which were advertised specifically for displaced employees. Complainant was not selected for any of the positions. He then filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of his age when it failed to select him for any of the ATCS positions. On appeal, the Commission initially found that Complainant failed to establish a prima facie case of age discrimination with regard to a position in Atlanta, because he failed to show that a significantly younger person was selected instead. The Commission found, however, that Complainant did establish a prima facie case of age discrimination with regard to his nonselection for other positions, as he was qualified for the positions and not selected in favor of others who were outside of his protected age group. The Commission further determined that the Agency failed to carry its burden to articulate a legitimate, non-discriminatory reason for Complainant's nonselection. While the Agency asserted that a special crediting plan was used to grade and rank candidates, the Agency failed to produce the plan. In addition, the Agency indicated that Complainant received a lower score than most of the selectees, but did not provide any information about the bases, factors, or assessments motivating its decision. The Commission found the Agency's explanation to be non-descriptive and vague, and therefore, the Agency did not satisfy its burden to produce a legitimate reason for its actions. The Commission noted that it has only upheld the confidentiality of crediting plans when the record adequately provided enough information to sufficiently determine the Agency's legitimate, non-discriminatory explanation for a nonselection. Thus, the Commission found that Complainant was discriminated against when he was not selected for positions under the three vacancy announcements. The Agency was ordered to offer Complainant retroactive placement into the position, with appropriate back pay and benefits, and provide training to the responsible management officials. Bakken v. Dep't of Transp., EEOC Appeal No. 0120093529 (August 8, 2011).

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

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

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

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

Under the Equal Pay Act

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

Under the Rehabilitation Act

Denial of Reasonable Accommodation Found. Complainant worked as a Claims Assistant, Receptionist in an office which had a flexible time band for employees to arrive at work in the morning. Complainant often arrived at work later than the time specified in the time band. Complainant initially used various forms of leave, but the Agency subsequently began charging her with being absent without leave (AWOL), reprimanded her for being tardy, and suspended her for two days. During this time, Complainant requested reasonable accommodation, and submitted notes from her psychologist indicating that she had depression and a generalized anxiety disorder. Complainant told the Agency that her conditions affected her ability to sleep, caused her chronic fatigue, and affected her ability to function early in the morning. She asked to use credit hours when her condition prevented her from arriving within the time band, for the Agency to consider her requests for leave without pay, and for the Agency to restructure her job so that she had one to two "quiet days" each month to relieve the stress and anxiety of ongoing public contact. The Agency denied Complainant's requests. Complainant subsequently filed a formal EEO complaint alleging that the Agency discriminated against her, among other things, on the basis of her disability. Complainant also asked the Agency to reconsider her request for accommodation, and submitted additional information from her licensed counselor. The Agency again denied Complainant's request. At the conclusion of the EEO investigation, Complainant requested an administrative hearing. Following a hearing in the matter, the AJ found that the Agency discriminated against Complainant on the basis of her disability when it failed to reasonably accommodate her.

On appeal, the Commission concurred with the AJ that the Agency discriminated against Complainant. The Commission initially found that Complainant was an individual with a disability. Complainant's psychologist indicated that Complainant experienced depression and a generalized anxiety disorder. In addition, Complainant informed the Agency, when she requested an accommodation, that her impairment and the medication she took to manage her impairment limited her ability to sleep and function in the early morning. A licensed counselor also noted that Complainant's depression interfered with her ability to sleep such that Complainant had not been able to get a restful night's sleep for more than a year. The Agency's own medical expert testified that Complainant's condition created a substantial limitation in the major life activity of sleep, and led to Complainant's difficulty organizing herself, and concentrating, particularly in the early hours. The Commission also determined that the record supported the AJ's finding that Complainant was a qualified individual with a disability. The medical expert testified that Complainant was qualified and could perform the essential functions of her job with an accommodation. Complainant had been employed in the same position since February 2007. Finally, the Commission stated that the Agency failed to show that it would have been an undue hardship to accommodate Complainant by allowing her to extend the flexible time band. The record showed that the Agency did eventually grant Complainant that precise accommodation, and therefore, the Agency violated the Rehabilitation Act when it initially denied her a reasonable accommodation. The Commission further determined that the charge of AWOL and discipline for attendance would not have occurred if the Agency had provided Complainant with reasonable accommodation, and therefore, the Agency discriminated against Complainant with regard to those actions. The Agency was ordered, among other things, to pay Complainant $12,000 in proven compensatory damages, as well as back pay and proven attorney's fees. Harden v. Soc. Sec. Admin., EEOC Appeal No. 0720080002 (August 12, 2011).

Disability Discrimination Found. Complainant applied for a Contract Representative position at the Agency. The duties of the position included taking calls from the general public. Complainant had previously sustained a head injury, at which time a neuropsychological evaluation noted that he had a "slow rate of processing more than one thing at a time," below average recall of new information, and poor verbal fluency. Complainant was rated qualified for the position. He was then asked to undergo a "Meet and Deal Assessment" which consisted of an interview involving "situational questions," and a telephone assessment involving a role playing exercise. Complainant notified the Agency of his need for accommodation, and was given a fact sheet he could refer to only during the telephone assessment. During his interview, Complainant had difficulty with the questions and informed the interviewer that he had a head injury. He asked to see the questions in writing, but his request was denied. Complainant did not pass the assessment and was described as a poor listener who took too much time to express ideas and failed to address major points. Complainant was not selected for the position, and subsequently filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his disability.

Following a hearing in the matter, an AJ found that the Agency discriminated against Complainant when it failed to accommodate him during the interview, and the Commission concurred with the AJ's decision. The Commission initially found that the Agency's use of the Meet and Deal Assessment was an employment test as described in the EEOC's Regulations. The Commission noted that it is unlawful for the Agency to use qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability unless the test is shown to be job-related and consistent with business necessity. The Commission stated that there was substantial evidence in the record to support the AJ's finding that Complainant requested that written questions be provided simultaneously with the oral questions during the interview.

Further, the Agency did not show that the use of the test, without an accommodation, was job related and consistent with business necessity. The Commission found insufficient evidence that providing the questions in both written and oral form was unreasonable or would have undermined or changed the nature of the task being assessed. In addition, there was insufficient evidence that auditory processing of information alone was an essential function of the job. The Commission stated that there were multiple ways Complainant could communicate with the public. For example, it was possible to provide Complainant the written form of the questions posed by callers via voice to text computer software, which the Agency admitted to having used in the past. The Commission noted that, had the Agency provided Complainant with the questions in both written and oral form, it would have assessed his ability to perform the essential functions of the job if accommodated. Instead, the test failed to measure what it was supposed to, that is, the ability of the applicant to absorb and process information. Finally, the Agency did not establish that providing Complainant his requested accommodation would have been an undue hardship. The Commission ordered the Agency to, among other things, reschedule Complainant to take the Meet and Deal Assessment and provide Complainant a reasonable accommodation. If Complainant successfully passed the interview, the Agency was instructed to offer him the position or a substantially equivalent position with appropriate back pay and benefits. Jones v. Soc. Sec. Admin., EEOC Appeal No. 0720070002 (August 2, 2011).

Disability Discrimination Found with Regard to Disclosure of Medical Information. Complainant, a Mail Handler, filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him when his Supervisor released or disclosed his medical information. On appeal, the Commission found that the Agency violated the Rehabilitation Act when it released Complainant's confidential medical information. Complainant claimed that a psychiatrist who was treating him told his Supervisor that Complainant had threatened to kill one of his co-workers (Co-worker 1). Sometime later, another co-worker (Co-worker 2) asked the Supervisor why Complainant had been absent from work. The Supervisor told Co-worker 2 that Complainant was being treated by a psychiatrist who had diagnosed Complainant as "very nervous." The Supervisor also repeated what the psychiatrist had said about Complainant threatening Co-worker 1's life. Complainant stated that the information about his medical condition was then disseminated widely among Agency employees. The Commission found that the Supervisor's disclosure to Co-worker 2 violated the Rehabilitation Act's confidentiality provisions. The fact that Complainant was undergoing treatment by a psychiatrist and had been diagnosed with a nervous condition was medical information which the Agency was obliged to keep confidential, and Co-worker 2 had no need for the medical information. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide EEO training to all officials responsible for improperly releasing Complainant's medical information. Cruz v. U.S. Postal Serv., EEOC Appeal No. 0120101339 (July 21, 2011).

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

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

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

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

Denial of Reasonable Accommodation and Harassment Found. Complainant worked as an Aviation Safety Inspector. After undergoing treatment for cancer, he experienced high frequency hearing loss which required him to wear hearing aids. In addition, while at work, he was exposed to noise from two military planes and the noise blew out both of his hearing aids, causing severe trauma and a 71 percent hearing loss. Complainant was provided with a microphone and hearing aid through the Department of Labor. Complainant indicated, however, that he needed the cooperation of others at meetings to wear or hold the microphone so that he could hear them. Complainant stated that management resisted using the microphone even after repeated requests to do so. Complainant subsequently experienced further hearing loss, at which time he requested an office that would allow him to use a speaker phone so as not to disturb his co-workers. Complainant was provided with an office without windows which he initially accepted, but later rejected because it made him feel claustrophobic. Complainant requested an office with windows, but the Agency stated that such an office would be located too close to others and the noise from the speaker phone would be disruptive. Complainant then requested a special telephone that would transcribe speech into text. Complainant also requested an alternative job. Both of these requests were denied by Complainant's Manager. Complainant ultimately filed a formal EEO complaint alleging that the Agency discriminated against him and harassed him on the basis of his disability.

The Agency did not contest that Complainant was a qualified person with a disability. With regard to the claim that Complainant was denied reasonable accommodation, the Commission noted that Complainant made several requests for accommodation, and was ultimately provided with the special telephone that could transcribe speech so that Complainant was able to perform his duties in his cubicle. Thus, the Commission concluded that the Agency provided Complainant with an effective accommodation in the form of the special telephone. Nevertheless, the Commission found that the Agency failed to provide an effective accommodation so that he could hear managers and co-workers. Complainant stated that his Managers refused to hold the microphone during meetings. Further, the Commission noted that since management did not set an appropriate example for how to use the microphone, other co-workers would similarly refuse to hold it. As a result, Complainant was unable to hear and understand what the speakers were saying to him. Thus, although the Agency provided Complainant with the microphone, management did not cooperate to make sure the device was effective, and, as such, the Commission found that Complainant was denied an effective accommodation.

The Commission also determined that Complainant was subjected to hostile work environment harassment, in part because of his disability. The Commission noted that the events concerning the microphone were not only a denial of reasonable accommodation, but also created a hostile environment. As stated, Managers regularly refused to properly place the microphone close to the individual speaking so that Complainant could understand what was being said, and, based on management's actions, co-workers believed they were not required to properly use the microphone. In addition, two Managers mentioned medical retirement to Complainant. One of the Managers also commented on Complainant's cough, a remaining side effect of Complainant's cancer treatments, and used the cough to assert that Complainant had hygiene issues. The Commission concluded that the discriminatory hostile work environment and the denial of reasonable accommodation were sufficiently severe as to result in objectively intolerable working conditions such that Complainant felt compelled to resign. Thus, Complainant proved his claim of constructive discharge. The Agency was ordered, among other things, to offer Complainant reinstatement to his position, with appropriate back pay and benefits, conduct an investigation with regard to Complainant's claim for damages, and provide EEO training to all employees in the office where Complainant worked. Wagner v. Dep't of Transp., EEOC Appeal No. 0120103125 (December 1, 2010).

Under Title VII

Sexual Harassment Found. Complainant filed a formal EEO complaint alleging, among other things, that she was subjected to sexual harassment while employed as a Staff Action Control Officer. Specifically, Complainant stated that her Supervisor intimidated and threatened her, made sexually offensive comments, and exposed herself to Complainant. Complainant further stated that her second level Supervisor failed to take any action with regard to the harassment. The record contained a copy of a memorandum detailing the results of the Agency's internal investigation of Complainant's claim of harassment which found that the Supervisor "repeatedly, at various times and to various employees" including Complainant exposed herself, told jokes of a sexual nature, used sexually explicit profanity, and made sexually related gestures. The memorandum also noted that the Supervisor, on one occasion, entered Complainant's office, screamed at and made a threatening gesture to Complainant, and failed to stop or leave when asked to do so, such that Complainant feared for her safety.

On appeal, the Commission found that, based upon the results of the Agency's own investigation, Complainant was subjected to unwelcome conduct on the basis of sex, and the conduct was sufficiently severe or pervasive to alter the conditions of Complainant's work environment. The Commission noted that the Supervisor was responsible for evaluating Complainant's performance and providing direction to Complainant regarding her duties. Further, the Agency failed to prove the elements of an affirmative defense. The evidence of record showed that Complainant immediately reported each incident of harassment to her second-level Supervisor. Statements from co-workers and management officials, as well as the report from the Agency's internal investigation confirmed that management was aware of the harassing conduct. The Commission found the record devoid of any evidence that the Agency took or attempted to take corrective action. While there were several recommendations made as a result of the investigation, there was no indication in the record that the Agency actually took any action to resolve the harassment. Instead, the record supported Complainant's contention that she accepted an involuntary transfer to another Department in order to escape the intolerable working conditions. Thus, the Commission concluded that Complainant was subjected to unlawful sexual harassment. The Agency was ordered to, among other things, offer to reinstate Complainant to her former position or a substantially equivalent position, and conduct a supplemental investigation with regard to her claim for damages. Laventure v. Dep't of the Army, EEOC Appeal No. 0120082569 (September 2, 2011).

Sex-Based Harassment Found. Complainant, a Sales Clerk, filed a formal EEO complaint alleging, among other things, that the Agency subjected her to harassment because of her sex. It was undisputed that on one occasion, the Postmaster called Complainant into a room with three other female employees, directed Complainant to turn around, pointed to Complainant's buttocks, and made a comment about Complainant wearing lace underwear. The Postmaster then pushed Complainant. The record further showed that, on a prior occasion, the Postmaster made a statement to Complainant concerning a picture in a magazine of a woman wearing a bikini. On appeal, the Commission found that Complainant was subjected to harassment on the basis of her sex. The Commission noted that an Agency Manager initially investigated Complainant's harassment allegations, and determined that the Postmaster made two inappropriate statements to Complainant. The Postmaster also acknowledged making the statement concerning Complainant's underwear in the presence of other employees. The Commission further found that the record supported a finding that, after making the underwear comment, the Postmaster pushed Complainant and caused her to cry out in pain. The Commission rejected the Agency's assertion that the conduct was not unwelcome, stating that it was unlikely Complainant reacted with good humor to the Postmaster humiliating her in front of other employees, pushing her, and causing her pain. The Commission stated that the Postmaster's remarks about bikinis and underwear, when considered with physically pushing Complainant, constituted unusually severe conduct such that it was sufficient to create an abusive work environment. The Commission noted that Complainant initially took reasonable steps to avoid harm by ignoring the early incident, and on other occasions telling the Postmaster to stop certain types of conduct, since those strategies successfully halted or reduced some of the unwelcome actions. Thus, the Agency failed to establish an affirmative defense in this case, and the Agency was vicariously liable for the Postmaster's harassment. The Agency was ordered to, among other things, offer to reassign Complainant to another facility, and conduct a supplemental investigation with regard to her claim for compensatory damages. Smith-Riggins v. U.S. Postal Serv., EEOC Appeal No. 0120093837 (August 31, 2011), request for reconsideration denied, EEOC Request No. 0520120009 (January 6, 2012).

Sexual Harassment Found. Complainant began working for the Agency as a Food Service Worker. She was subject to a one-year probationary period. During the first three months, the Canteen Chief supervised Complainant, and rated her "satisfactory" for overall performance and for all performance factors. After that time, Complainant was supervised by the Assistant Canteen Chief who had not previously worked with her. According to Complainant, the Assistant Chief asked her out on a date on two occasions, but she declined to go out with him. Complainant stated that the Assistant Chief then caused problems for her at work and terminated her employment. The record included a memorandum from a Union Representative to the Alternative Dispute Resolution Coordinator requesting a meeting to "address concerns" that Complainant had in reference to harassment and the creation of a hostile work environment. Complainant subsequently filed a formal EEO complaint alleging that she was subjected to sexual harassment.

On appeal, the Commission found that Complainant did establish a claim of sexual harassment. The Commission initially stated that Complainant was subjected to unwelcome verbal conduct based on her sex when the Assistant Chief asked her to go out on a date. The Commission found the Assistant Chief's denial that the conduct occurred to be less credible than Complainant's testimony. The Commission also found that the Assistant Chief's conduct was unwelcome, given that Complainant made a contemporaneous complaint to the Union Representative. The Commission stated that the harassment culminated in a tangible employment action, that is Complainant's termination, and the Assistant Chief had significant input with regard to that action. According to the record, Complainant's alleged performance problems began the same day Complainant rejected the Assistant Chief's advances, and Complainant had received "satisfactory" performance evaluations for the three months prior thereto. The Commission noted that the Assistant Chief and the Chief each provided a different reason for Complainant's termination, and the reasons cited by the Chief were not supported by the record. Thus, the Commission concluded that there was a basis for imputing liability to the Agency because the sexual harassment by the Assistant Chief, Complainant's immediate supervisor, culminated in a tangible employment action. The Agency was ordered to, among other things, offer Complainant a Food Service Worker position or a substantially equivalent position, with appropriate back pay and benefits, and conduct a supplemental investigation with regard to her claim for compensatory damages. Greene v. Dep't of Veterans Affairs, EEOC Appeal No. 0120090106 (August 25, 2011), request for reconsideration denied, EEOC Request No. 0520120002 (January 11, 2012).

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, 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).

Religious Discrimination Found. Complainant, a Civil Aviation Security Specialist, asked his Supervisor for leave to take part in his nephew's confirmation. The Supervisor asked if it was possible to change the date of the confirmation, and, after making an inquiry, Complainant informed the Supervisor that the date could not be changed. Complainant's request was forwarded to the second-line Supervisor, who denied the request citing his disbelief that Complainant needed to attend. Complainant subsequently filed a formal EEO complaint alleging, among other things, that the Agency denied his request for leave to perform the religious rites for his nephew's confirmation. On appeal, the Commission initially found that Complainant established a prima facie case of religious discrimination. Complainant was an active member in his church, and his beliefs were genuine. In addition, he asked his Supervisor for leave to participate in a religious ceremony. The Commission further found that the Agency failed to show that accommodating Complainant's request would have caused an undue burden. In this case, the second-level Supervisor decided on his own initiative that Complainant's beliefs were not genuine and therefore did not require consideration. Citing Questions and Answers: Religious Discrimination in the Workplace, Q. 8 (July 22, 2008), the Commission noted that the issue of whether an employee's beliefs are sincerely held is ordinarily not in question, but if so, the employer may make a limited inquiry into the facts and circumstances of the employee's claim that the belief or practice at issue is religious and sincerely held, and gives rise to the need for accommodation. In this case, despite Complainant having provided such information to the Agency, the second-level Supervisor merely asserted his own opinion that Complainant did not need to attend his nephew's confirmation. The Commission stated that, in doing so, the Agency failed to provide Complainant with reasonable accommodation of his religious beliefs, without the requisite showing of undue hardship. Thus, Complainant established his claim of religious discrimination. The Agency was ordered, among other things, to investigate Complainant's claim for compensatory damages, and provide training to the Supervisors involved in the discrimination. Robledo v. Dep't of Homeland Sec., EEOC Appeal No. 0120073884 (November 18, 2010).

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

Under Multiple Bases

Race, Sex and Age Discrimination Found. Complainant, an Air Traffic Control Specialist, filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race, sex, and age when it did not select him for positions at another facility. In a previous decision, the Commission affirmed the Agency's finding of discrimination with regard to one of the positions, but remanded the issue concerning the second nonselection to the Agency for a supplemental investigation. The Agency was instructed to obtain evidence relevant to determining the merits of Complainant's claim, including affidavits from relevant parties, documentation concerning the selection process, and application material from all of the candidates. The Agency conducted a supplemental investigation, and issued a final decision finding no discrimination. According to the record, the Selecting Official stated that he did not know the full process the Operations Manager and another Supervisor followed in selecting the applicants they referred, and there was no procedure for how an operations manager should handle bid packages. The Selecting Official further indicated that he did not select Complainant because the Operations Manager did not recommend him. The Operations Manager stated that he gave the applications a "cursory review" and then turned them over to the Supervisor for review. He stated that he did not recommend Complainant for the position because his name was not on the list he received from the Supervisor. The Operations Manager stated that, after Complainant filed his formal complaint, he reviewed Complainant's application and noticed that he did not successfully complete certain training at two facilities. The Operations Manager opined that was the reason Complainant was not selected. The Supervisor noted that he did not remember working on the selection or getting applications from the Operations Manager.

After reviewing the record on appeal, including the supplemental investigation, the Commission determined that the Agency failed to set forth the reasons for Complainant's nonselection with sufficient clarity such that Complainant could show pretext. The Commission noted that Complainant appeared to have qualifications and experience similar to that of the Selectees. In addition, Complainant disputed the Operations Manager's assessment concerning his training, and the Commission stated that the training occurred over 20 years before the selection decision was made. Finally, the Commission found the Operations Manager's assertion that the lack of training could have been a reason the Agency may not have selected Complainant to be pure speculation. Thus, the Commission concluded that, because of Complainant's qualifications and the Agency's failure to sufficiently articulate the reasons for Complainant's nonselection, Complainant's prima facie inference of discrimination stood unrebutted. The Agency was ordered to, among other things, offer Complainant the position in question or a substantially equivalent position, with appropriate back pay and benefits, and conduct a supplemental investigation with regard to Complainant's claim for damages. Beresh v. Dep't of Transp., EEOC Appeal No. 0120092732 (August 25, 2011).

Race and Sex Discrimination Found. Complainant, a Management Analyst, filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race and sex when it failed to select her for a Supervisory Accountant position. According to the record, the Agency had two previous vacancy announcements for the position, and Complainant and the Selectee were among the applicants for those positions. The competitive candidate referral for the current position at issue included the names of both Complainant and the Selectee. The Selecting Official relied upon the rankings from the previous panel, and chose the Selectee. Following a hearing in the matter, an AJ found that Complainant was discriminated against as alleged, and the Commission concurred with the AJ on appeal. The Selecting Official stated that he chose the Selectee because of his strong background in accounting, degrees in accounting, and in-depth knowledge of what Agency teams were doing. The AJ found, however, that Complainant's qualifications were observably superior to those of the Selectee. Specifically, Complainant had six and one-half years of experience as a supervisor compared to the Selectee's one year of experience. In addition, the AJ did not find management's testimony about Complainant's alleged poor supervisory skills to be credible. Complainant's Supervisor admitted that nothing was mentioned on Complainant's performance evaluations in that regard, and the Supervisor stated that she did not know if Complainant was ever counseled regarding her alleged shortcomings as a supervisor. In addition, there was little evidence in the record concerning the actions of the panel which rated the candidates. There was no indication as to who the panel members were, what questions were asked during the interviews, how the candidates were graded, and what criteria were used to grade the candidates. The AJ noted that Complainant requested this information during discovery and the Agency indicated that it did not exist. Finally, the AJ stated that the Agency deliberately excluded the individual who would actually be supervising the person chosen for the position from the selection process. The Commission found that the AJ's findings were supported by substantial evidence in the record. Therefore, the Commission concluded that the Agency discriminated against Complainant when it failed to select her for the Supervisory Accountant position. The Agency was ordered to, among other things, retroactively place Complainant into the position with appropriate back pay and benefits, and pay Complainant $20,000 in compensatory damages. Roberts v. Dep't of Homeland Sec., EEOC Appeal Nos. 0120090533 & 0720110033 (August 18, 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 as 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 attorney's 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).

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

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

Race, Sex, and Reprisal Found. Complainant had been employed as a Disaster Assistance Employee at the Federal Emergency Management Agency since 1996. She had a consistent work history of being deployed over eight years in senior-level management positions for catastrophic events, and received numerous awards and bonuses. In 2005, while serving as a Branch Chief of Community Education and Outreach, the Agency conducted an administrative investigation based on written complaints filed by two of Complainant's newly employed subordinate staff members, and shortly thereafter, the Agency released her from her position. Complainant filed a formal EEO complaint alleging that the Agency's actions were discriminatory based on her race, sex, and prior EEO activity. Following a hearing in the matter, an AJ found that the Agency discriminated against Complainant as alleged. The Commission affirmed the AJ's findings on appeal.

According to the record, three months prior to the investigation, Complainant had a conversation with her immediate Supervisor about her belief that the Supervisor engaged in on-going negative actions towards non-white staff. Complainant told her Supervisor that she believed the Supervisor had used the word "darkie," and Complainant indicated that she would file an EEO complaint if the Supervisor continued to undermine her authority. The Commission found that this evidence was sufficient to support an inference of discrimination and establish a prima facie case. Specifically, shortly after accusing her Supervisor of acting in a racially discriminatory manner, Complainant was subjected to an investigation of her management style and released from her position with a recommendation that she be terminated. In addition, the Commission concluded that substantial evidence of record supported the AJ's finding that Complainant proved that the Agency's explanations of its actions were a pretext for discrimination and retaliation. Three high-level management officials outside of the office testified that there were flaws in the investigation and questioned its objectivity. In addition, the officials testified as to the unusual nature of the penalty imposed in this case. Further, there was evidence that a similarly situated Manager not of Complainant's protected groups was treated much more favorably during the same time period and was only informally counseled by the Supervisor. Thus, the Commission concluded that the evidence supported the AJ's finding of discrimination and retaliation. The Agency was ordered, among other things, to pay Complainant $60,000 in proven compensatory damages, expunge evaluation reports of any documents referencing the administrative investigation from Complainant's personnel file, and place Complainant in a managerial position comparable to the one she held at the time of the discrimination, with appropriate back pay and benefits. Farrington v. Dep't of Homeland Sec., EEOC Appeal No. 0720090011 (January 19, 2011), request for reconsideration denied, EEOC Request No. 0520110295 (May 12, 2011).

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

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

National Origin and Sex Discrimination Found. Complainant was appointed to a Clerk position contingent upon his completion of a 90-day probationary period. The Postmaster who appointed Complainant rated him "unacceptable" in all of his rating areas for his 30 and 60-day evaluations. Complainant was ultimately issued a Notice of Separation which stated that he failed to meet the requirements of his position and had been absent without leave (AWOL) on one occasion. The record contained statements from several employees showing that the Postmaster had a history of uttering ethnic slurs to her Hispanic employees. In addition, one employee stated that she overheard the Postmaster state that she was forced to hire Complainant, and was going to make it difficult for Complainant to pass his probationary period. Complainant subsequently filed a formal EEO complaint alleging that the Agency's actions were discriminatory.

On appeal, the Commission found that the Agency discriminated against Complainant on the bases of his sex and national origin when it terminated him during his probationary period. The Commission noted that the Agency articulated legitimate, non-discriminatory reasons for terminating Complainant, namely that he failed to meet the requirements of the position and had been AWOL. Nevertheless, the Commission ultimately concluded that Complainant proved, by a preponderance of the evidence, that the Agency's stated reasons were a pretext for discrimination. Specifically, while the Agency asserted that Complainant could not sort three or four trays of mail per hour, two employees testified that the trays Complainant was given were intentionally over packed with mail. One of the employees, who had 14 years of experience, noted that he counted 880 pieces of mail in one of Complainant's trays while there were supposed to be only 453 pieces of mail. In addition, the Commission noted that Complainant's Supervisor offered inconsistent testimony as to whether the AWOL contributed to Complainant's termination, stating once that it was a factor and later that Complainant was not terminated for attendance or tardiness. Further, the Supervisor on duty on the date in question testified that he only marked Complainant AWOL because he was instructed to do so by the Postmaster. Finally, the Commission stated that the Agency failed to sufficiently explain why the Postmaster rated Complainant "unacceptable" in all six areas of performance. The Agency was ordered, among other things, to offer Complainant reinstatement to the position in question with appropriate back pay and benefits, and investigate Complainant's claim for compensatory damages. Bustamante v. U.S. Postal Serv., EEOC Appeal No. 0120080104 (December 10, 2010), request for reconsideration denied, EEOC Request No. 0520110231 (June 30, 2011).

Retaliation

Per Se Finding of Retaliation. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her sex and prior EEO activity when her job assignment and work hours were changed and her position was reposted for bid. According to the record, a co-worker had previously raised allegations of sexual harassment against the Postmaster at Complainant's facility which was investigated by the Agency's Office of the Inspector General (OIG). Complainant was interviewed during the investigation. After receiving the OIG's report, the Postmaster held a stand-up talk with employees at the facility. Following an investigation, Complainant requested a hearing with regard to her complaint. The AJ held a hearing and ultimately issued a decision finding no discrimination with regard to the matters concerning Complainant's job assignment. On appeal, the Commission found that the AJ's findings of fact with regard to the change in Complainant's work assignment and hours and the rebid of her position were supported by substantial evidence in the record. The Commission found, however, that statements made by the Postmaster during the stand-up talk constituted a per se violation of the EEOC Regulations. Specifically, the Commission stated that the evidence showed that the Postmaster held the stand-up talk within days of receiving the OIG report containing statements from 14 employees at the facility in response to sexual harassment allegations. Based upon the evidence of record, the Commission found it more likely than not that the Postmaster made statements to the effect that he knew which employees gave statements during the investigation, and he would not forget the employees who made statements against him. The Commission determined that the Postmaster's comments were likely to have a chilling effect and deter employees from fully exercising their EEO rights. The Agency was ordered, among other things, to conduct a supplemental investigation regarding Complainant's entitlement to compensatory damages, and provide training to the responsible official. Tanks v. U.S. Postal Serv., EEOC Appeal No. 0120093549 (August 19, 2011).

Retaliation Found with Regard to Removal of Duties. Complainant, a disabled Veteran with back and neck injuries, worked as a Materials Handler Supervisor performing various duties and served in a collateral capacity as a Firearms Instructor. Years after he sustained a knee injury at work, Complainant asked to no longer work in the commissary as an accommodation. At that time, the Agency removed all of his Material Handler Supervisor, as well as his Firearm Instructor responsibilities. Complainant then filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him when it no longer allowed him to serve as a Firearms Instructor and lowered his quarterly performance evaluation from "outstanding" to "exceeds." According to the record, Complainant served in the position approximately one week each year, and Complainant asserted that he can perform all of the Instructor duties because he can sit and move as needed.

On appeal, the Commission found that the Agency retaliated against Complainant when it removed him from the Firearms Instructor position and lowered his performance evaluation. The Commission noted that the testimony of Complainant's Supervisor showed that the Firearms Instructor duties were removed because Complainant was complaining. While the Supervisor indicated that he was motivated by concern for further harm to Complainant, the Supervisor admitted that he did not know the physical requirements of the role. With regard to the evaluation, the Commission found a "blaring absence" in the Agency's analysis of a legitimate reason for reducing the rating. The Commission stated that the lowered evaluation was in writing, retained in Complainant's files, and considered in determining his yearly evaluation. Nevertheless, the evaluation, which was the first completed by Complainant's current Supervisor, was not contained in the record. Instead, the record included appraisals completed by Complainant's prior Supervisor which showed that Complainant was "outstanding, professional and dedicated," and the prior Supervisor repeatedly used the terms "outstanding" and "exceptional" to describe Complainant's performance. Finally, the Commission noted that, when asked during the EEO investigation if there was anything he had a problem with, Complainant's current Supervisor stated Complainant's "constantly complaining," and proceeded to describe the various requests for accommodation that Complainant had made. Thus, the Commission concluded that the Agency retaliated against Complainant when it lowered his quarterly rating, and removed his Firearms Instructor duties. The Agency was ordered to, among other things, ensure that Complainant's records reflected an "outstanding" quarterly rating, and investigate Complainant's claim for compensatory damages. McKenzie v. Dep't of Justice, EEOC Appeal No. 0120100034 (July 7, 2011).

Per Se Finding of Retaliation. 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).

Retaliation 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).

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

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

Retaliation Found. Complainant, a Criminal Investigator, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him in March 2007 when the Special Agent in Charge (SAC) informed the Office of Professional Responsibility that Complainant made false statements on an official document. According to the record, Complainant was scheduled to attend a meeting with the SAC and another Manager. Complainant, however, called the Manager stating that he would not be in the office because he was not feeling well. Several days later, the Manager advised Complainant that the SAC wanted him to prepare a statement regarding his absence on the date in question. Complainant submitted a prepared statement noting that he had been instructed that if he did not provide the statement he would be subject to discipline up to removal for insubordination. Complainant explained that he left the office for lunch on the date in question, and went to the hospital because of health concerns. The SAC later asked Complainant whether the Manager threatened him with discipline, and Complainant did not directly answer the question, but stated that his union representative told him to include the statement. The SAC then told Complainant that she was mandated to report the matter to the Office of Professional Responsibility because it was a falsification of an official government document.

Complainant contacted an EEO Counselor, at which time he mentioned, among other things, that the SAC threatened him with an internal investigation for making an allegedly false statement. The EEO Counselor spoke with the SAC about Complainant's charges of discrimination. Approximately two weeks later, the SAC submitted a written referral to the Office of Professional Responsibility, which declined to investigate the matter and referred it back to the SAC for her to address internally. The SAC assigned a Special Agent to investigate the alleged falsification of a government document. Following a hearing, an AJ found that the Agency retaliated against Complainant with regard to the written referral to the Office of Professional Responsibility. On appeal, the Commission affirmed the AJ's finding. The Commission noted that while the SAC stated that, at the time Complainant initially gave his statement, she found Complainant's actions to have been an egregious act that amounted to falsifying a government document, the SAC did not initiate any disciplinary actions or an investigation until approximately two months later after she learned that Complainant had contacted an EEO Counselor. Thus, the Commission concluded that substantial evidence supported the AJ's finding that the written referral to the Office of Professional Responsibility was meant to intimidate Complainant in response to his EEO filing, and constituted retaliation. The Agency was ordered, among other things, to pay Complainant $2,000 in proven compensatory damages, as well as attorney's fees and costs. Santiago v. Dep't of Homeland Sec., EEOC Appeal No. 0720100038 (March 2, 2011).

Retaliation Found. Complainant worked as a Supervisory Assistant to the Special Agent in Charge. In November 2005, he provided an affidavit for a subordinate employee's EEO complaint. In addition, Complainant provided notes and affidavit statements in support of a co-worker's EEO complaint. Complainant subsequently filed a formal EEO complaint himself alleging, among other things, that the Agency subjected him to retaliation. On appeal, the Commission noted that the record contained an e-mail from an Assistant Special Agent in Charge stating that he was ready to file a counter complaint against Complainant and asking two other officials for documentation of comments allegedly made by Complainant. The e-mail contained a forwarded e-mail from an EEO Counselor stating that Complainant had filed an informal EEO complaint. The Commission found that the Assistant Special Agent in Charge improperly publicized Complainant's EEO activity by forwarding the e-mail from the EEO Counselor to other management officials. Further, pairing that e-mail with a solicitation of negative information to use against Complainant underscored the retaliatory motive for sending the e-mail. The Commission also stated that, by threatening to file a counter claim against Complainant, the Assistant Special Agent in Charge acknowledged that his e-mail was intended to challenge Complainant's EEO activity. In addition, the Assistant Special Agent in Charge acknowledged that he ordered Complainant to give him notes that he, Complainant, had shared with an EEO Counselor regarding another official's conduct on a selection panel, and that the Assistant Special Agent in Charge then shared the contents of the notes with that official. The Commission found that the Assistant Special Agent in Charge's actions were reasonably likely to deter employees from engaging in EEO activity and therefore constituted unlawful reprisal. The Agency was ordered, among other things, to provide EEO training to all managers and supervisors at the facility where the discrimination occurred, and investigate Complainant's claim for compensatory damages. Schofield v. Dep't of Homeland Sec., EEOC Appeal No. 0120082521 (November 2, 2010), request for reconsideration denied, EEOC Request No. 0520110173 (February 18, 2011).

Mixed Motive

Mixed Motive Discussed in Claim of Retaliation. Complainant, an Electrical Helper, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him when it issued him a written reprimand. Complainant stated that he went to an Agency Park Ranger and confronted him about inappropriately speaking to another employee whom Complainant represented in an EEO complaint. Complainant stated that he told the Ranger that he was part of a "good ole boy system," and the Ranger indicated that Complainant told him he (Complainant) would be watching him. Another Ranger stated that Complainant approached him while he was talking to a member of the public, and stated that he was "going to see if I can get him [the Ranger] fired." The Ranger stated that he informed management about what Complainant said because Complainant "was always" intimidating him and asking him questions. Complainant's Manager stated that he issued Complainant the written reprimand because of Complainant's actions toward the Rangers, noting that Complainant had several verbal altercations with numerous employees, management had spoken to Complainant about changing his behavior, and "it was time for it to stop." The record showed that Complainant confronted the first Ranger after receiving a Letter of Warning. The written reprimand noted that Complainant mentioned a conversation the Ranger had with the employee Complainant represented in which the Ranger told the employee she was "breaking up the family by filing an EEO complaint."

On appeal, the Commission found that Complainant engaged in protected EEO activity when he confronted the first Ranger over a discussion the Ranger had with the employee Complainant represented regarding the employee's filing an EEO complaint. In addition, the Commission found direct evidence of reprisal because the written reprimand was given to Complainant, in part, for protesting what he felt was unlawful activity by the first Ranger. The Commission noted that the reprimand specifically referenced the fact that Complainant mentioned the Ranger's conversation with the employee about filing an EEO complaint, and showed that the Agency unlawfully considered Complainant's EEO activity as a motivating factor in issuing him the reprimand. The Commission further found, however, that the Agency also reprimanded Complainant for reasons that were not related to his EEO activity, specifically accusations made to the first Ranger, and Complainant's conduct toward the second Ranger. The Commission stated that, given the testimony of two management officials and the fact that Complainant received a Letter of Warning and counseling session over similar behavior two days earlier, the Agency would have reprimanded Complainant for his confrontation with the second Ranger alone. Thus, the Commission concluded that the Agency would have reprimanded Complainant even if it had not considered his EEO activity, and, as such, Complainant was not entitled to personal relief. The Agency was ordered, among other things, to pay Complainant any costs to which he was entitled, and provide training to the responsible management official. Nelson v. Dep't of the Army, EEOC Appeal No. 0120090598 (August 10, 2011).

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

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

Official Time

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

Remedies

Remedies Discussed. Complainant filed various EEO complaints, which were consolidated for a hearing, alleging that the Agency retaliated against her. An AJ ultimately found that the Agency subjected Complainant to retaliatory harassment. Both parties appealed to the Commission, accepting the AJ's determination of liability, but challenging the amount and type of relief ordered. The Commission initially noted that the AJ found liability for retaliatory harassment based upon incidents which occurred from September 2004 through January 2005, and from December 2005 until May 2006. Thus, the Commission stated that Complainant was entitled to back pay for lost time from work during those periods, as well as the restoration of any leave she used because of the Agency's discriminatory conduct during those time frames. The Commission further noted that Complainant was entitled to a tax offset payment for the tax year in which she received the lump sum payment for back pay. With regard to the AJ's award of compensatory damages, the Commission noted that the record showed Complainant suffered major depression and post traumatic stress disorder, which a psychologist testified was related to the Agency's retaliatory harassment. Testimony from the psychologist, as well as Complainant's treating therapist, her friends, and Complainant herself confirmed that she underwent a complete transformation from an outgoing, happy person to one riddled by anxiety, depression and self-loathing. Complainant testified that she almost committed suicide. The Commission also noted that Complainant was entitled to damages for emotional harm she experienced with regard to a slanderous e-mail, in that she reasonably felt she had been maligned, and that her reputation and career were ruined. The Commission stated that while not all of Complainant's emotional distress could be attributed to the Agency's discriminatory conduct, the more severe aspects could be, and the record showed that incidents which occurred outside the time frame at issue did not appear to have significantly contributed to Complainant's emotional distress. Thus, the Commission concluded that the AJ's award of $100,000 in compensatory damages was appropriate.

Finally, with regard to the award of attorney's fees, the Commission concluded that the Agency failed to show that Complainant acted unreasonably when she retained out-of-town counsel to represent her. In addition, the Commission found a reduction in fees because Complainant was only partially successful was not warranted. In so finding, the Commission noted that all of Complainant's claims derived from a common core of facts, and the evidence on the claims where she did not prevail was material to the successful claims. While the AJ did not find that the harassment was a result of Complainant's disability, the Commission stated that the remedies were the same and the harassment was based on the same incidents. The Commission did, however, find that the fee petition contained unnecessary layers of review, and included too much time spent by too many people. For example, the petition indicated that nine attorneys and four paralegals worked on the case. Thus, the Commission determined that a 15 percent across-the-board reduction of fees was warranted. The Commission also denied the request for costs associated with maintaining an online legal research service. The Commission noted that such a service was analogous to maintaining an updated legal library and should properly be characterized as overhead, a cost already captured by the attorney's hourly rate. Mohar v. U.S. Postal Serv., EEOC Appeal No. 0720100019 (August 29, 2011).

Back Pay and Front Pay Discussed. Following an administrative hearing, the AJ found that the Agency subjected Complainant to unlawful harassment based on his race and prior EEO activity. The AJ awarded Complainant, among other things, back pay, front pay, and attorney's fees. The Agency subsequently issued a final order implementing the AJ's finding of discrimination, but rejecting the AJ's award of front pay. On appeal, the Commission initially noted that the AJ determined that Complainant could not be reinstated to his former position because of the hostility of the environment, as well as Agency managers' demonstrated resistance to EEO laws. Thus, the AJ ended the back pay period as of the date of his decision and began a period of front pay. The AJ limited the monetary award of back pay however, due to concerns that Complainant did not mitigate his damages once he was able to work. The Commission noted that while the AJ indicated that Complainant had stopped taking his medication by August 2007, he also noted that, at that time, Complainant was "still fixated on the proposed removal and related actions which caused him to have a second panic attack," and Complainant was "frustrated by his inability to overcome pain and depression." In addition, the record reflected that Complainant was still on medication in 2008. Thus, the Commission found that Complainant was unable to work until August 2008 and was entitled to back pay until that time. The Commission also found that Complainant was entitled to two years of front pay starting with the date the AJ issued his decision on remedies. The Commission noted that the AJ found that reinstatement was not possible, and stated that the Agency did not provide any concrete proof that there was a specific position available at another facility that would have addressed the concerns about management hostility and resistance to EEO. The Commission further stated that Complainant, a long-time resident and member of the community, should not be required to move or endure a long commute. In making the front pay award, the AJ stated that Complainant was required to seek comparable work. Thus, the Commission concluded that the purpose of the award was to allow Complainant time to look for a job, and that two years was a reasonable period of time for Complainant to accomplish this goal. Knott v. U.S. Postal Serv., EEOC Appeal No. 0720100049 (July 5, 2010).

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).

Front Pay Awarded. In a previous decision, the Commission found that the Agency discriminated against Petitioner on the bases of her sex, race, and in reprisal for prior EEO activity when it denied her request to attend a training conference, and terminated her employment. As relief, the Commission ordered the Agency to, among other things, offer to reinstate Petitioner to her former position, and provide Petitioner with front pay in the event that she rejected the offer of reinstatement. Petitioner subsequently filed a petition for enforcement with the Commission, stating that the Agency failed to provide her with front pay. The Commission initially rejected the Agency's assertion that Petitioner was not entitled to front pay because she was medically unavailable for work, stating that a psychiatric report provided by Petitioner stated that she was in fact able to return to work, although not at the same location where the discriminatory conduct occurred. In addition, the Commission found that Petitioner was entitled to an award of front pay for a period of two years. While Petitioner requested front pay until retirement, the Commission found that such an award would constitute a windfall. The record showed that Petitioner was medically available for work, and an award of front pay until retirement would place Petitioner in a better position than she would have enjoyed in the absence of the discrimination. Brown-Fleming v. Dep't of Justice, EEOC Petition No. 0420080016 (October 28, 2010).

Reinstatement to Temporary Position Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it did not select him for a temporary position. The term of the position was limited to one year and one day. Following a hearing, an AJ found that Complainant was discriminated against as alleged. As a remedy, the AJ ordered the Agency, among other things, to offer Complainant the position in question. Complainant ultimately appealed to the Commission, stating that the Agency only offered him a temporary appointment not to exceed one year and one day without the possibility of permanent appointment. On appeal, the Commission concurred with the AJ. Specifically, the Commission stated that retroactive reinstatement to a comparable position for the same appointment length was the appropriate remedy in this case. Complainant acknowledged that the Agency offered him a position for one year and one day, which was the length of time for the underlying appointment. While Complainant asserted that most people who hold temporary positions at the facility have received permanent appointments, he failed to produce any evidence to support his contention. Whitson v. Dep't of the Army, EEOC Appeal No. 0120102567 (October 15, 2010).

Sanctions

AJ's Decision to Sanction Complainant for Failing to Comply with Orders Was Proper. Complainant, a Psychologist, filed a formal EEO complaint alleging that the Agency discriminated against him when it failed to select him for three positions. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately dismissed Complainant's complaint after issuing an Order to Show Cause as to why sanctions should not be imposed, because Complainant failed to submit requested documents and failed to appear at the hearing. The AJ noted that the complaint could not be resolved without a hearing. On appeal, the Commission found that the AJ properly dismissed Complainant's complaint with prejudice. The Commission noted that Complainant admitted that he knew when the hearing was scheduled to occur, and stated that he cleared his schedule for that date. The Commission stated that Complainant was given adequate notice that the hearing would be held on the date in question, and he did not explicitly inform the AJ that he would not participate in the hearing until the AJ contacted him on the date of the hearing. Thus, the AJ's use of sanctions was appropriate. Goldberg v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112178 (August 17, 2011); 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).

AJ properly sanctioned the Agency for Failing to Submit Complete Case File. 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. 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. 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. Myvett v. Court Serv. & Offender Supervision Agency, EEOC Appeal No. 0120103671 (February 8, 2011).

Commission Sanctioned Agency for Failing to Submit 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. Vu v. Soc. Sec. Admin., EEOC Appeal No. 0120072632 (January 20, 2011).

Settlement Agreements

Settlement Agreement Invalid. Complainant contacted an EEO Counselor to initiate the EEO process, and signed a settlement agreement prepared by the Counselor. Complainant, however, immediately signed a letter which alleged a breach of the agreement. Complainant stated that she contacted the Counselor to inquire about documents the Counselor had previously requested for Complainant's case, and was told that her case had been closed and she would have to sign the settlement agreement and letter in order for her case to be reopened. Complainant stated that she was pressured into signing the agreement, and that the EEO Counselor told her that the letter would make the agreement "null and void." On appeal, the Commission found that the settlement agreement was void. The Commission noted that Complainant could not read the settlement agreement or the letter prepared for her because she did not speak English, and relied solely on the EEO Counselor's verbal assurances. Complainant was not given sufficient time to review the agreement or consult with her representative. In addition, the Agency submitted two copies of the agreement, both of which indicate that the date on which Complainant signed the agreement was altered. The Commission noted that it did not expressly determine that the Agency pressured and deceived Complainant, but the language barrier affected Complainant's comprehension of the proceedings such that she did not knowingly and voluntarily sign the agreement. The Agency was ordered to resume processing the underlying complaint. Cintron v. U.S. Postal Serv., EEOC Appeal No. 0120111786 (August 17, 2011).

Settlement Agreement Invalid Due to Lack of Consideration. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that management agreed that Complainant would not be negatively discussed at a stand-up meeting, and that management would use their best efforts to expedite Complainant's transfer request. Complainant's attorney subsequently alleged that Complainant did not receive any consideration with respect to the agreement. On appeal, the Commission found that the agreement was invalid due to a lack of consideration. Specifically, the Agency did not promise anything beyond what it was already obligated to go. The Commission noted that the provision regarding not speaking negatively to Complainant was an example of appropriate management techniques and provided nothing more than that to which Complainant was already entitled to as an employee. Further, the Commission noted that the Agency was only agreeing to treat the transfer request in accordance with existing policies and agreements, and did not obligate itself to transfer Complainant or even provide a specific preference or consideration for the transfer. Thus, the Agency was ordered to reinstate Complainant's complaint for processing. Torres v. U.S. Postal Serv., EEOC Appeal No. 0120112198 (August 3, 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 position 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, Filosi v. U.S. Postal Serv., EEOC Appeal No. 0120100152 (August 12, 2011) (the Agency complied with the settlement agreement when it promoted Complainant, and the elimination of her position more than three years later via restructuring did not breach the agreement); Marano v. U.S. Postal Serv., EEOC Appeal No. 0120112069 (July 29, 2011) (the Agency did not breach the settlement agreement where it maintained Complainant's assignment with the same start time for seven years. The Commission noted that the settlement agreement cannot be expected to continue ad infinitum); Thorton-Davis v. U.S. Postal Serv., EEOC Appeal No. 0120110779 (June 29, 2011) (the Agency did not breach the settlement agreement where it placed Complainant into the position specified in the settlement agreement and retained her in the position for more than two years. Agency witnesses adequately explained why the decision was made to remove Complainant from the position and search for another available position within her medical restrictions, specifically that a decline in work load had resulted in the excessing of clerks who had retreat rights to certain positions under the collective bargaining agreement); 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 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).

Settlement Agreement Void: No Meeting of the Minds. Complainant and the Agency entered into a settlement agreement which provided, in pertinent part, that the Agency would research the overtime schedule to determine whether Complainant was passed over for such hours. If the Agency determined that Complainant was improperly passed over, "a makeup opportunity" would be afforded to her. Complainant alleged that the Agency breached the agreement when it failed to provide her with make-up overtime hours. On appeal, the Commission found that the terms of the agreement concerning overtime were too vague and general to have allowed for a meeting of the minds. The Agency conceded that a review of the overtime tracking sheet showed that Complainant was by-passed for overtime for a total of 60 hours, but stated that Complainant was given 60 hours of make-up overtime. Complainant, on the other hand, asserted that the overtime offered her was not make-up overtime because it was offered on days that she normally worked overtime, and on days when all employees were required to work. Thus, the Commission concluded that there was no contemporaneous meeting of the minds between the parties concerning the make-up overtime, and the settlement agreement was void. Crutcher v. U.S. Postal Serv., EEOC Appeal No. 0120102764 (December 10, 2010).

Breach of Settlement Found: Agency Acted in Bad Faith. Complainant and the Agency entered into a settlement agreement which provided, in pertinent part, that the Agency would place Complainant into a specific Building Management Custodian position and pay her back pay. Approximately six months later, Complainant notified the Agency that she believed the agreement had been breached. Specifically, Complainant asserted that the Agency knew that the building where the position was located would be closing but failed to disclose the information to her before she signed the agreement. On appeal, the Commission found that the Agency acted in bad faith when, despite having knowledge of the pending closure of the building where the position specified in the agreement was located, the Agency failed to disclose the information to Complainant or her representative. Thus, the Commission found that the Agency breached the agreement, and remanded the matter for further processing. Suter v. U.S. Postal Serv., EEOC Appeal No. 0120093523 (October 19, 2010).

Stating a Claim

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

Hardeman v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112671 (August 30, 2011) (Complainant's claim that the Agency denied her request for continuation of pay and then used her sick leave to cover the time she was absent stated a viable claim of retaliation. Contrary to the Agency's assertion, the matters at issue do not refer to an explicit dissatisfaction with the Office of Worker's Compensation Programs process).

Lopez v. U.S. Postal Serv., EEOC Appeal No. 0120112164 (August 18, 2011) (Complainant's claim that the Agency did not allow him to work his bid assignment stated a viable claim of national origin and age discrimination. One of the terms and conditions of employment at the Agency was the right to bid on positions and perform the duties of the awarded position, and, as such, Complainant met the definition of an aggrieved employee).

Galloway v. Dep't of the Army, EEOC Appeal No. 0120082836 (August 8, 2011) (the Agency improperly fragmented the claim by separating the claims into discrete acts when a fair reading of the complaint, in conjunction with the related EEO counseling report, indicated that Complainant was actually alleging a single claim of harassment sufficient to create a discriminatory hostile work environment. Complainant identified a series of harassing incidents including being investigated for allegedly sleeping on duty, being required to submit to a drug test, being restricted from operating government equipment, and being required to have medical testing conducted by his physician which stated a cognizable claim of harassment).

O'Connor v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112072 (July 28, 2011) (Complainant's allegation that he was not selected for a position stated a viable claim of race and sex discrimination. Even though Complainant did not apply for the position, he alleged that management preselected and prequalified the female selectee, and that management actively discouraged him from applying).

Slaughter v. U.S. Postal Serv., EEOC Appeal No. 0120111774 (July 25, 2011) (Complainant's allegation that management assigned him to supervise three work areas simultaneously in an attempt to see him fail because he filed prior EEO complaints, when considered with his assertion that the Agency gave him a proposed letter of warning for not completing safety reports for employees not assigned to his supervision could have a chilling effect on his willingness to engage in the EEO process and was sufficiently severe to state a claim of retaliation).

Kubera v. U.S. Postal Serv., EEOC Appeal No. 0120111967 (July 25, 2011) (Complainant's allegation that he was removed from a voluntary position on the Agency's medical emergency response team stated a viable claim of disability discrimination. Complainant was alleging that he was denied a benefit and privilege of employment that was afforded to similarly situated employees without a disability, and that the Coordinator of the team told him that "higher up" ordered the removal of volunteers with medical restrictions).

Roberts v. Dep't of Energy, EEOC Appeal No. 0120101389 (July 22, 2011), request for reconsideration denied, EEOC Request No. 0520120030 (December 21, 2011) (the Agency exercised sufficient control over Complainant's position to qualify her as an Agency employee for purposes of stating a claim under the EEOC's regulations. Although the contractor paid Complainant's wages and benefits, Complainant was treated as an Agency employee on a day-to-day basis, and worked under the supervision and direction of Agency personnel who controlled the means and manner of her performance. She also worked in a facility and used equipment provided by the Agency, the Agency dictated her work schedule, and the Agency decided to end its employment relationship with her); see also Tucker v. Gen. Serv. Admin., EEOC Appeal No. 0120102242 (September 15, 2011) (the record showed that the Agency exercised sufficient control over Complainant's position to qualify as a joint employer where Complainant worked continuously for the Agency for a number of years, Complainant's employment was terminated at the Agency's request, the Agency controlled Complainant's work assignments and workspace, the Agency provided Complainant with day-to-day work directions, and Complainant had to clear her leave with Agency management. While the contract between the Agency and the contractor stated there was no direct employment relationship between a contractor employee and the Agency, such language was not controlling given the nature of the working relationship between the Agency and Complainant).

Jean-Louis v. U.S. Postal Serv., EEOC Appeal No. 0120112101 (July 21, 2011) (Complainant's claim that co-workers complained about her to management, made threatening gestures and comments, and physically touched her after she complained that one of the co-workers was sexually harassing her stated a viable claim of retaliatory harassment. The incidents, when taken as a whole, were reasonably likely to deter Complainant and others from engaging in protected activity).

Saracino v. Nuclear Regulatory Comm'n, EEOC Appeal No. 0120111365 (June 16, 2011), request for reconsideration denied, EEOC Request No. 0520110592 (December 20, 2011) (Complainant's claim that the Agency discriminated against him in retaliation for prior EEO activity when it provided negative information to another agency at which he applied for a position stated a viable claim. The Commission noted that Complainant, a former employee, was alleging that the Agency provided him with a negative reference which caused the other agency to hold Complainant's security clearance in abeyance. Complainant was not alleging discrimination with regard to the security clearance decision itself, which is not subject to EEO challenge, but rather was contesting statements provided by Agency management officials, and, as such, stated a viable claim of retaliation); see also Upshaw v. Office of Mgmt. & Budget, EEOC Appeal No. 0120102241 (June 15, 2011) (Complainant's allegation that the Agency discriminated against him in retaliation for prior EEO activity when it provided negative references to another agency during a background check stated a viable claim. Complainant was challenging the actions and motivation of Agency managers in providing what he alleged to be false information to the other agency, and not the other agency's security clearance decision).

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).

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 severe and pervasive to state a claim of harassment).

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

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

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

Doster v. Dep't of the Army, EEOC Appeal No. 0120103411 (December 14, 2010) (the Complainant, a former Agency employee, stated a viable claim of retaliation when he alleged that the Agency requested that his current employer terminate him from his position. The Commission noted that the action was akin to the Agency refusing to provide post-employment letters or offering negative references to prospective employers).

Brown v. Dep't of Def., EEOC Appeal No. 0120103139 (December 8, 2010) (the Complainant's claim that the Agency discriminated against him when it placed him on a performance improvement plan stated a viable claim of retaliation. Although, in most cases, a performance improvement plan does not constitute an adverse action sufficient to render an employee aggrieved, the Commission has a policy of considering reprisal claims with a broad view of coverage).

Clark v. Dep't of Veterans Affairs, EEOC Appeal No. 0120102177 (October 15, 2010) (the Complainant stated a viable claim of harassment by the Agency's Chief, Office of Business Oversight. Complainant listed numerous incidents involving the Chief which occurred for over one year, and included comments such as "you think I got it made as a White man," and if anyone accused him of racism, he would "meet them in the alley" which the Commission found troubling).

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

Clark v. U.S. Postal Serv., EEOC Appeal No. 0120092635 (September 1, 2011) (Complainant's allegation that, on one occasion, a Supervisor verbally admonished him and others regarding what the Supervisor perceived as poor performance and warned employees of the consequences of such performance did not state a viable claim of hostile work environment harassment. The allegation, even if proven true, was insufficient to state a claim of harassment, and Complainant did not show that he was harmed by the action or suffered any personal loss related to a term, condition or privilege of employment).

Radke v. U.S. Postal Serv., EEOC Appeal No. 0120100201 (August 18, 2011) (Complainant's claim that the Agency responded to a Congressional inquiry did not state a viable claim of retaliation. The Congressional inquiry occurred as a result of Complainant asking the member of Congress to investigate Complainant's case. The Agency apparently responded that no discrimination occurred and the inquiry ended. The Commission stated that the Agency has an obligation to respond to Congressional inquiries, and the Agency's response was not the kind of action that is reasonably likely to deter EEO activity).

Wells v. Dep't of Transp., EEOC Appeal No. 0120100445 (July 27, 2011) (Complainant, who was hired by an Agency contractor and placed on a temporary assignment with the Agency, was not an employee of the Agency and her complaint was properly dismissed. Complainant stated that she was hired by the contracting firm, and the contract between the firm and the Agency stated that the contractor was responsible for hiring staff, conducting training, and "assuming day-to-day operations." The contract further stated that Agency personnel "are not authorized or permitted to supervise any contract personnel").

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).

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).

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).

Felt v. Nat'l Aeronautics & Space Admin., EEOC Appeal No. 0120103036 (November 29, 2010) (the Complainant's allegation that the Agency discriminated against him with regard to an unsolicited proposal he submitted failed to state a viable claim. The Agency's rejection of Complainant's unsolicited proposal concerned his capacity as a private individual and did not affect a term, condition or privilege of employment).

Summary Judgment

Summary Judgment Improper. Complainant, a Special Agent/Criminal Investigator, filed a formal complaint alleging that her immediate Supervisor discriminated against her on the bases of her sex and in reprisal for prior EEO activity when he denied her requests for leave and training, suggested that she quit her job and then began micromanaging her work, accused her of attempting to defraud the government, assigned her only one case, issued her a written reprimand for falsifying a travel voucher, and revoked her work at home privileges. At the conclusion of the investigation, Complainant requested an administrative hearing. The AJ ultimately issued a decision without a hearing in the matter finding no discrimination. On appeal, the Commission found that the AJ erred when he concluded that there were no genuine issues of material fact in dispute or issues of credibility in the case. Specifically, the Commission stated that the record contained a dispute as to whether the actions in question were based on Complainant's gender. The Commission noted that a male Special Agent stated that, during the Agent's performance review, the Supervisor told him he was not sure what he was "going to do with" Complainant, and planned to assign her to be the representative at task force meetings. The Supervisor also told the Agent that Complainant would get along with the other attendees because she "had a pretty face," and got along well with men. The Agent stated that he believed the remarks were derogatory and were inappropriately sexually oriented, and he got the impression the Supervisor did not view Complainant in a favorable light. Further affidavits in the record showed that there were questions about the Supervisor's motive, which the Commission stated should be explained at a hearing under cross examination. For example, a Male Special Agent in Charge from another office averred that women had expressed that they had difficulties with the Supervisor, but they did not see male employees having similar problems. Another of Complainant's co-workers averred that it appeared Complainant was subject to sex-based harassment. Finally, a former male Special Agent stated that the Supervisor acknowledged that Complainant would not knowingly falsify her travel voucher, but he issued her the reprimand because he "needed to get her attention." The Commission noted that the Agency provided supporting information that Complainant made mistakes on some of her work products, and made a mistake when she submitted her travel voucher. The Commission was not satisfied however, based upon the affidavits showing that the Supervisor apparently did not think highly of Complainant, that the record contained sufficient information as to whether Complainant was scrutinized more carefully compared to male employees. The Commission stated that the AJ's holding that Complainant did not produce evidence of similarly situated employees was disingenuous given the AJ's failure to allow for discovery. Therefore, in order to avoid fragmentation of the complaint, the whole matter was remanded to the Agency for processing. Gilbert v. Envtl. Prot. Agency, EEOC Appeal No. 0120092078 (August 19, 2011).

Summary Judgment Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his race, sex, disability and age when it did not fully consider him for 24 positions. Complainant had a Masters of Social Work and Masters of Public Health Degree, served for approximately 29 years as a Public Health Commissioned Corps Officer, and worked for the Agency's Human Resources Administration Program. He had extensive experience as a senior program management officer and within the grants division, and was a licensed clinical social worker. According to the record, the Agency selected candidates from outside of Complainant's protected groups for the positions. One of the selecting officials averred that the Agency was seeking to promote individuals from the Honors Program, which the official noted was "crafted to bring in young people." In addition, the Agency cancelled 10 vacancy announcements in which Complainant was the only candidate referred on the Certificate of Eligible Candidates. The AJ ultimately granted the Agency's motion for a decision without a hearing, and found no discrimination. On appeal, the Commission found that the AJ erred when he concluded that there was no genuine issue of material fact with respect to the Agency's reasons for not selecting Complainant for any of the positions. The Commission noted that the management official's statement regarding the Honors Program and the Agency's desire to hire younger candidates, if true, could serve as evidence of discriminatory motive and age bias. Thus, there was a genuine dispute of material fact as to why Complainant was not selected and whether age was an impermissible factor in the decision not to select him. Further, the Commission noted that one of the persons selected did not actually have the experience and qualifications relied on by the Agency, while the evidence suggested that Complainant had significantly more experience. Finally, the Commission stated that there was an issue as to why the Agency canceled the vacancy announcements for those certificates on which only Complainant's name appeared. In those cases, Complainant was certified by personnel as the best qualified, and the record contained statements from the Selecting Officials that Complainant presented himself well, and a statement from one Selecting Official who noted that Complainant was an excellent candidate. Thus, the Commission concluded that the AJ failed to draw all inferences in the light most favorable to Complainant, and too many unresolved issues existed which required an assessment as to the credibility of various management officials. The case was remanded for an administrative hearing. Spirer v. Dep't of Health & Human Serv., EEOC Appeal No. 0120080551 (July 1, 2011).

Summary Judgment Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her sex and age when it did not promote her, and did not give her certain training and development opportunities. Following an investigation, the AJ issued a decision in the matter without a hearing finding no discrimination. The AJ found that Complainant failed to establish a prima facie case with respect to either claim in that she failed to identify any similarly situated employees outside of her protected groups who received better treatment. On appeal, the Commission found that the AJ properly issued a decision without a hearing given that the material facts were not in dispute and Complainant failed to establish a prima facie case of discrimination. The Commission concurred with the AJ that the employees to whom Complainant sought to compare herself were not employed in the same position, and did not report to the same supervisor. Further, the record supported the AJ's determination that Complainant presented no evidence that her sex or age motivated the Agency's decisions. Gearhart v. Nat'l Sec. Agency, EEOC Appeal No. 0120090474 (August 8, 2011).

Timeliness

Formal Complaint Timely Filed. Complainant contacted an EEO Counselor and subsequently filed a formal complaint alleging that the Agency discriminated against him on the bases of his race and prior EEO activity. The Agency dismissed the complaint as untimely, stating that Complainant received notice of his right to file a formal complaint by e-mail on September 23, 2010, but did not actually file his complaint until October 20, 2010, which was beyond the 15 day limitation period. On appeal, the Commission stated that it is the Agency's burden to obtain sufficient information to support a determination as to timeliness. 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. Burns v. Dep't of Justice, EEOC Appeal No. 0120112104 (July 28, 2011), request for reconsideration denied, EEOC Request No. 0520110662 (November 23, 2011); see also, Fletcher v. Dep't of Commerce, EEOC Appeal No. 0120100071 (March 30, 2011), request for reconsideration denied, EEOC Request No. 0520110423 (July 20, 2011) (Complainant asserted that he did not receive and read the notice of his right to file a formal complaint, which was e-mailed by the EEO Counselor on July 9, 2009, at 4:53 pm, until July 10, 2009. Thus, the Commission found that Complainant's formal complaint filed on July 25, 2009, was timely).

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, though 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).

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 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. Complaint contacted an EEO Counselor alleging that the Agency subjected him to discriminatory harassment. Complainant was issued a Notice of Right to File a formal complaint on March 24, 2010. Complainant contacted the EEO Counselor in April, indicating that he did not believe he had an actual final interview and that he did not believe that counseling had ceased. The EEO Counselor told Complainant that she had completed counseling and stated that she would mail Complainant a second Notice of Right to File. Complainant received the second Notice on April 24, 2010, and filed his formal complaint on April 27, 2010. The Agency subsequently dismissed the complaint as untimely based upon the date of the first Notice. On appeal, the Commission found that Complainant timely filed his formal complaint. The Commission noted that the EEO Counselor volunteered to send Complainant a second Notice of Right to File, and, therefore, the second Notice superseded the first Notice for purposes of determining the timeliness of the formal complaint. Middleton v. Dep't of Veterans Affairs, EEOC Appeal No. 0120103021 (November 12, 2010).

EEO Contact Was Timely. Complainant filed a formal EEO complaint alleging that her Supervisor subjected her to discriminatory harassment. The Agency dismissed the complaint on the grounds that Complainant failed to timely contact an EEO Counselor. On appeal, the Commission noted that Complainant met with an EEO Specialist on September 22, 2010, just five days after an alleged sexual assault by her Supervisor. The record contained conflicting statements from the EEO Specialist and Complainant as to what the Specialist told Complainant about filing her complaint. The Specialist stated that she told Complainant she had 45 days from the date of the incident to return to the EEO Office to pursue her complaint. Complainant, on the other hand, indicated that the Specialist stated she did not think the EEO Office could take the complaint because Complainant had initiated criminal charges and Complainant had 45 days from her meeting with the Specialist in which to decide whether to file an EEO complaint. The Commission noted that, where there is an issue of timeliness, the Agency bears the burden of obtaining sufficient information to support its determination, and the Specialist's statement was not a sworn statement. Complainant's statement, on the other hand, was a sworn statement which gave Complainant's statement more credibility. In addition, the record showed that Complainant did not intend to abandon her complaint. Specifically, Complainant contacted the EEO Counselor the day after obtaining a court order against the Supervisor, and shortly thereafter, obtained the services of an attorney and filed a formal complaint. Thus, the Commission remanded the complaint to the Agency for processing. Robinson v. Dep't of the Army, EEOC Appeal No. 0120111526 (July 28, 2011).

Contact with EEO Counselor Subject to Equitable Tolling. Complainant contacted an EEO Counselor on July 9, 2009, and subsequently filed a formal complaint alleging that the Agency discriminated against her on the bases of her race and sex, and subjected her to harassment. The Agency dismissed the complaint, stating that Complainant reasonably suspected the alleged discrimination in May 2009 when she received her performance review. On appeal, the Commission concluded that the time limit for contacting the EEO Counselor should be tolled in this case. Complainant claimed she was not notified of the 45 day limitation period for contacting a Counselor. While the Agency contended that it gave Complainant constructive notice of the time period, the evidence submitted did not support that assertion. Specifically, a certificate showing that Complainant completed sexual harassment prevention training did not mention the 45 day time limit and the Agency did not provide any evidence showing that the limitation period was included in the training. In addition, while a Supervisor indicated in an affidavit that the issue of contacting a Counselor was discussed, he did not state that the time limit was discussed. Thus, the Agency failed to show that Complainant had constructive knowledge of the EEO time limit. Tse-Au v. Dep't of the Army, EEOC Appeal No. 0120101359 (July 22, 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 regulatory 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).

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 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).

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

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

EEO Counselor Contact Deemed Timely. Complainant contacted the Agency's EEO Officer and Chief of Human Resources to advise them that, from August 2003 until February 2005, she served as the acting Ethics Officer without receiving higher pay. Complainant indicated that she was told the matter was a prohibited personnel practice that should be raised with the Office of Special Counsel (OSC). Complainant received a letter from OSC on January 12, 2007, informing her that the matter she raised concerned discrimination, and was appropriate for the EEO complaint process. Complainant contacted the Agency's EEO Office on February 23, 2007, and subsequently filed a formal complaint with regard to the matter in question. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission noted that a high ranking Agency official initially told Complainant that she did not have an EEO matter and she needed to contact OSC. The Commission found that the Agency's EEO Officer and Chief of Human Resources dissuaded Complainant from initiating an EEO complaint, and Complainant timely contacted the EEO Office once she was informed by OSC that her claim constituted an EEO matter. Thus, the Commission concluded that the Agency improperly dismissed Complainant's complaint, and remanded the matter for further processing. Bolden v. Dep't of Agric., EEOC Appeal No. 0120093444 (October 21, 2010).

Claims Regarding Allegedly Discriminatory Pay and Pension Checks Were Not Timely Raised with EEO Counselor. Complainant retired from the Agency in 1997. In May 2009, Complainant contacted an EEO Counselor, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it paid her less than similarly situated male employees during the last three years of her employment. In addition, Complainant alleged that she has been receiving less in retirement pay than she is entitled to receive. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission initially found that the Agency properly dismissed the allegation concerning the pay Complainant received while she was employed. The Commission noted that Complainant retired and received her last paycheck over 12 years prior to the time she contacted the Counselor. In addition, the Commission found that Complainant failed to timely raise the claim concerning her pension checks. In a matter of first impression, the Commission stated that Section 2(4) of the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (January 29, 2009), provides that "[n]othing in this Act is intended to change current law treatment of when pension distributions are considered paid." The Commission noted that the legislative history of this provision of the Act supports differentiating between wage-based claims and claims based on pension payments. In addition, the Commission stated that Complainant did not point to any convincing evidence that the reasoning applied to date, that is a series of payments of discriminatory wages may constitute a continuing violation while a series of payments of discriminatory pension benefits usually does not, should not apply in the instant case. Brakeall v. Envtl. Prot. Agency, EEOC Appeal No. 0120093805 (November 30, 2010).