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The DIGEST Of Equal Employment Opportunity Law


Volume XXIII, No. 1

Office of Federal Operations

Winter 2012


Inside

Selected EEOC Decisions on:


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/federal/digest/index.cfm.


SELECTED EEOC DECISIONS

Agency Processing

Agency’s Submission of Evidence in Support of Request for Reconsideration Insufficient. In the previous decision, the Commission vacated the final Agency decision which found that Complainant had not been discriminated against. The Commission noted that the Agency had not shown that it had properly served Complainant with the notice of her right to request a hearing. There was no evidence that Complainant received notice of her right to request a hearing at the time the Report of Investigation was issued, and the Agency did not address the issue of Complainant’s outstanding hearing request before issuing its final decision. In its request for reconsideration, the Agency provided evidence for the first time which demonstrated that Complainant had in actuality received the notice. The Commission ultimately denied the Agency’s request for reconsideration, finding that it would be improper to consider evidence that was available at the time of the initial appeal, but which was not provided by the Agency at that time. The Commission noted that Agencies are required to send the complete complaint file upon notification that an appeal has been filed, including the report of investigation and any supporting documentation such as correspondence sent to Complainants and proof of receipt. While the Agency argued that the Commission was newly imposing a requirement to document information sent to Complainants and the contents of what was sent, the Commission stated that was already required. Lawson v. Dep’t of Agric., EEOC Request No. 0520110446 (October 28, 2011).

Attorney’s Fees

Reduction in Fees Not Warranted. In a prior decision, the Commission found that the Agency violated the Equal Pay Act with regard to Complainant’s position. The Commission affirmed the Agency’s finding that it did not subject Complainant to harassment. The Commission ordered to Agency to pay reasonable attorney’s fees. The Agency ultimately reduced the amount of fees requested by 90 percent, reasoning that Complainant prevailed on only one of 10 claims. On appeal, the Commission found that the Agency’s reduction in the requested attorney’s fees was improper. The Commission noted that Complainant submitted invoices evidencing that his attorneys expended a total of 125.5 hours for work performed on the entire complaint, but Complainant requested payment for only 82.9 hours of work related to the Equal Pay Act claim upon which he prevailed. Thus, the amount requested already included a 33 percent reduction, which the Commission found fairly addressed the Agency’s concerns. Since Complainant prevailed on one of the most material claims in his complaint, the Commission concluded that any further fee reduction was not warranted. Smith v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120112724 (October 17, 2011).

Compensatory Damages

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

$175,000 Awarded for Sexual Harassment. The Commission previously found that Complainant, a Prison Guard, was subjected to sexual harassment when an inmate exposed himself to her on four occasions and ultimately violently sexually assaulted her, and that management officials failed to take immediate and appropriate corrective action when made aware of the indecent exposure. Following a supplemental investigation, the Agency issued a final decision awarding Complainant $25,000 in non-pecuniary compensatory damages. On appeal, the Commission concluded that the Agency’s award was insufficient. The Commission noted that Complainant suffered both physical and emotional injuries from the harassment and attack, and was diagnosed with post traumatic stress disorder, depression, and agoraphobia. She also sustained a physical injury during the assault which caused her extreme pain and required her to go to therapy. Complainant’s doctor stated that Complainant could no longer work as a prison guard, and years after the attack, Complainant still had issues with leaving her house. Complainant experienced severe difficulty concentrating, low energy, difficulty enjoying things, and insomnia. Complainant submitted documentation from her psychiatrist, as well as statements from family members and friends attesting to her symptoms. The Commission concluded that Complainant was entitled to an award of $175,000 in non-pecuniary compensatory damages. The Commission further found that Complainant was entitled to compensation for her loss of future earning potential because her inability to work as a prison guard narrowed the range of economic opportunities available to her with reasonable certainty or probability, particularly since her only remaining job possibilities are outside of her relevant work experience. Lemons v. Dep’t of Justice, EEOC Appeal No. 0120102516 (November 16, 2011).

$50,000 Awarded for Non-selection. In a prior decision, the Commission found that the Agency retaliated against Complainant when it failed to select him for a Store Director position. The Agency conducted a supplemental investigation, and awarded Complainant $13,000 in non-pecuniary damages. On appeal, the Commission found that the evidence of record supported an award of $50,000. Following the retaliatory non-selection, Complainant experienced hypertension, depression, stress, anxiety, headaches, chest pain, stomach cramps, sleep problems, nightmares, irritability, a lack of interest in social activity, and thoughts of violence. Complainant’s psychiatrist found that he was unable to work, and Complainant ultimately filed for disability retirement. The Commission noted that while many of the symptoms were present before the retaliation, the non-selection significantly exacerbated Complainant’s symptoms as evidenced by his seeking psychiatric help shortly thereafter. The Commission also found that Complainant was entitled to payment in the amount of $3,962 for medical bills which were substantiated in the record. In addition, the Commission ordered the Agency to compensate Complainant for loss of future earning capacity. Just before the non-selection, Complainant went on leave due, at least in part, to stress related to his work environment. The Commission noted, however, that there was no evidence that he was too disabled to return to work until after the non-selection. The Commission stated that Complainant’s earning capacity was clearly diminished in that his disability retirement payments will be less than the salary he would have earned if selected for the Store Manager position. Lovett v. Dep’t of Def., EEOC Appeal No. 0120102682 (December 20, 2011).

$15,000 Awarded for Harassment. Following an administrative hearing, an AJ found that the Agency perceived Complainant as disabled and management officials harassed him on the bases of this perceived disability. The AJ awarded Complainant, among other things, $15,000 in non-pecuniary compensatory damages. The Agency fully adopted the AJ’s decision. Complainant filed an appeal, contesting only the issue of non-pecuniary damages. On appeal, the Commission found that the AJ’s award of $15,000 in damages was supported by substantial evidence. According to the record, the harassment took place over a period of five months, and Complainant saw his physician because he was experiencing a rapid heart beat, elevated blood pressure, and dizziness. Complainant then saw a psychiatrist who diagnosed him with an adjustment disorder with mixed features including anxiety, depression and occupational problems. The psychiatrist noted that Complainant said he did not want to leave his home, had insomnia, and was worried, anxious, and ruminated. Complainant took medication for his condition. The Commission concluded that the AJ’s award was appropriate considering the severity of the harm suffered, and the length of time Complainant suffered the harm, and was consistent with prior Commission precedent. Thompson v. U.S. Postal Serv., EEOC Appeal Nol. 0120100682 (October 21, 2011).

$10,000 Awarded for Discriminatory Non-selection. In a previous decision, the Commission determined that the Agency discriminated against Complainant when it did not select him for a Supervisory Grants Management Specialist position. Following a supplemental investigation, the Agency issued a decision awarding Complainant $2,000 in non-pecuniary damages. On appeal, the Commission initially found that Complainant failed to provide any evidence of pecuniary losses. With regard to non-pecuniary damages, the Commission concluded that Complainant was entitled to an award in the amount of $10,000. The Agency found that Complainant established a nexus between the discriminatory selection process and the specific harm incurred. Complainant indicated that he had been diagnosed with post traumatic stress disorder, depression, and other physical and emotional conditions. The record, however, showed that Complainant had been under the care of various health professionals for years due to other factors. Complainant’s medical information did note that his medical conditions worsened due to the hostility in the workplace. Harris v. Dep’t of Labor, EEOC Appeal No. 0120113120 (December 9, 2011).

$3,000 Awarded for Denial of Religious Accommodation. In a prior decision, the Commission found that the Agency failed to accommodate Complainant’s request for religious accommodation, and ordered the Agency to conduct a supplemental investigation regarding Complainant’s claim for compensatory damages. Following the investigation, the Agency awarded Complainant $3,000 for non-pecuniary damages, and the Commission affirmed the Agency’s decision on appeal. The Commission initially noted that Complainant produced no evidence showing that he sustained any pecuniary losses as a result of the discrimination. In addition, the Commission stated that the Agency’s award of non-pecuniary damages was proper given the nature and duration of the distress Complainant experienced. Complainant’s wife averred that she was worried Complainant would not be able to attend the ceremony and that everyone was disappointed, and Complainant’s friend stated that Complainant was negatively affected and referred to the matter for several weeks. While Complainant stated that he experienced emotional pain and suffering he attributed that to the “violation of [his] civil rights and the subsequent termination.” The Commission noted that no discrimination was found with regard to Complainant’s termination. Robledo v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113438 (October 21, 2011), request for reconsideration denied, EEOC Request No. 0520120132 (May 24, 2012).

Dismissals

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

Complaint Properly Dismissed for Abuse of Process. Complainant, a former employee of the Agency, filed several formal EEO complaints alleging that the Agency discriminated against him when it did not refer or select him for various positions. The Agency, among other things, dismissed the claims on the grounds that Complainant abused the EEO process. The Agency stated that Complainant repeatedly filed similar or identical allegations of non-selection, and applied for positions for which he was not qualified and which were reserved for current employees. On appeal, the Commission found that the Agency properly dismissed the complaints. The Commission stated that the complaints were part of a pattern of abuse perpetrated by Complainant to punish the Agency by burdening the EEO system despite his knowing that the complaints were meritless. Complainant had filed over 50 EEO complaints, and recently began applying for positions for which he knew he was not qualified. Specifically, since Complainant was terminated in March 2010, he had applied for at least 17 positions for which non-employees were ineligible, and subsequently filed EEO complaints when he was found not qualified. The Commission concluded that the facts of the case showed that Complainant’s only objective in applying for these positions was to file futile EEO claims against the Agency. The Commission stated that, in essence, Complainant aimed to use the EEO process to retaliate against the Agency for his removal. Complainant misrepresented himself as a current employee on his applications and refused to cooperate with Agency officials to correct the false information. He then improperly used the EEO process to “strike back” at the Agency. Stoyanov v. Dep’t of the Navy, EEOC Appeal Nos. 0120113142, 0120113817, & 0120114019 (December 6, 2011).

Complaint Improperly Dismissed for Filing a Grievance. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it did not select him for an Electronic Mechanic position. The Agency dismissed the complaint stating that Complainant elected to raise the matter in a negotiated grievance procedure. On appeal, the Commission found that the dismissal was improper. The Commission noted that the union filed a grievance on behalf of all “Repromotion Eligible Employees.” While the grievance challenged two Electronic Mechanic selections, there was no evidence that Complainant elected to file a grievance on this matter. Further, the union’s grievance was not filed on Complainant’s individual behalf, and his name did not appear in the grievance. Thus, the Agency failed to prove that Complainant elected to pursue the matter through the grievance process prior to filing his EEO complaint. Cate v. Dep’t of the Army, EEOC Appeal No. 0120110083 (November 21, 2011).

Complaint Improperly Dismissed as Being Moot. Complainant, a Laborer, filed a formal EEO complaint alleging that the Agency discriminated against her when she was not allowed to work as a Dual-Rate Foreman during two periods of time. The Agency completed its investigation and Complainant requested a hearing before an AJ. The AJ ultimately dismissed the complaint, stating that Complainant rejected the Agency’s certified offer of full relief. On appeal, the Commission initially noted that the EEOC’s regulations in effect since 1999 no longer provide for the dismissal of a complaint on the basis cited by the AJ. Instead, the Commission examined the record to determine whether the complaint was properly dismissed as being moot. The Commission first stated that the Agency did not provide any assurance that the alleged discrimination, that is the denial of work as a Dual-Rate Foreman, would not recur. In addition, there was no indication that the responsible management officials had changed their position on the matter or received guidance or training. Finally, the record did not show that interim relief or events had completely and irrevocably eradicated the effects of the alleged discrimination. While the Agency asserted that it offered Complainant full relief, there was no evidence that Complainant was actually provided with all of the relief she would be entitled to, including back pay and a guarantee that future Dual-Rate Foreman work would be provided to her in a non-discriminatory manner. Thus, the complaint was remanded for an administrative hearing. Vess v. Tenn. Valley Auth., EEOC Appeal No. 0120111039 (November 14, 2011).

Agency’s Dismissal Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race and sex. The complaint was unsigned, but Complainant included a document providing information regarding his claim, a signed copy of the notice of right to file a formal complaint, and a copy of his signed pre-complaint form. The Agency dismissed the complaint due to a technical defect, stating that Complainant failed to provide a signed formal complaint or a reason for failing to sign the form. On appeal, the Commission stated that while the formal complaint form was not signed by Complainant, the information submitted in support of his complaint included documents bearing Complainant’s signature. Further, although the Agency stated that it tried to cure the defect, the Agency failed to include documentation supporting that assertion. The Commission noted that it appeared from Complainant’s affidavit that he did not understand how the complaint was incomplete. Thus, the Commission could not find that the Agency clearly identified to Complainant how the formal complaint was defective or provided sufficient direction to Complainant on how to cure the defect. The matter was remanded to the Agency for further processing. Floyd v. U.S. Postal Serv., EEOC Appeal No. 0120113269 (November 2, 2011).

Agency Failed to Support Its Final Decision. Complainant alleged that the Agency discriminated against her in reprisal for prior protected EEO activity when it issued her an official reprimand, and placed her on a performance assistance plan. The Agency dismissed the complaint for having previously raised the matters in a grievance. On appeal, the Commission found that the Agency, despite multiple requests, had failed to produce the complaint file. Noting that the Agency did not meet its burden of providing sufficient evidence or proof to support its final decision, the Commission remanded the case for continued processing. Lundy v. Soc. Sec. Admin., EEOC Appeal No. 0120080213 (October 28, 2011).

Complaint Improperly Dismissed for Failure to Cooperate. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it issued him a letter of concern regarding sick leave, and subjected him to harassment. The Agency dismissed the complaint for failure to cooperate, stating that Complainant failed to clarify his allegations. The Commission reversed the Agency’s decision on appeal. The Commission found that sufficient information existed in the record which clearly identified Complainant’s claims. The EEO counseling report and formal complaint contained pages of statements from Complainant describing his claims, including the names of the alleged responsible management officials and relevant dates. In addition, the record contained a letter from Complainant in response to the Agency’s request for clarification, which restated the allegations and explained the incident concerning the letter of concern as well as the harassment claim. Thus, the Commission found that the record was sufficient to allow for the adjudication of Complainant’s claims. Thorbs v. Dep’t of Def., EEOC Appeal No. 0120112481 (December 16, 2011).

Complaint Improperly Dismissed for Failure to Cooperate. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her race when management failed to investigate harassment by a co-worker, and initially denied her request for leave. The Agency initiated an EEO investigation, and requested that Complainant complete an affidavit. The Agency ultimately dismissed the complaint for failure to cooperate, stating that Complainant failed to return the affidavit. On appeal, the Commission found insufficient evidence to support a conclusion that Complainant purposely engaged in delay or contumacious conduct. Further, there was sufficient information in the record for the Agency to have completed the investigation by collecting evidence from management witnesses. Complainant spoke with the Agency’s Dispute Resolution Specialist and provided extensive information which identified the specific actions she was concerned with, the relevant timeframes, and responsible management officials. Thus, there was sufficient information to allow for adjudication on the merits without Complainant’s affidavit, and the Commission remanded the complaint for further processing. Slater v. U.S. Postal Serv., EEOC Appeal No. 0120110006 (October 25, 2011); see also Martinez v. U.S. Postal Serv., EEOC Appeal No. 0120113028 (November 2, 2011) (The Agency’s dismissal of Complainant’s complaint for failure to cooperate was improper where there was insufficient evidence to support a conclusion that Complainant purposely engaged in delay or contumacious conduct, and there was sufficient information in the record to have permitted the Agency to continue the investigation, including extensive information as to the alleged discriminatory action, and the responsible officials).

Findings on the Merits and Related Decisions

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

Under Title VII

Race Discrimination Found. Complainant, a Revenue Agent, filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of her race (African-American) when it denied her training needed to become an on-the-job instructor (OJI), issued her a low mid-year evaluation and placed her on a performance improvement plan, denied her a flexiplace working arrangement, and did not select her for an IRA Reviewer position. Following a hearing, an AJ found that Complainant was discriminated against with regard to these matters. On appeal, the Commission affirmed the AJ’s finding of race discrimination. The Commission found that the AJ properly relied upon testimony from various witnesses in determining that Complainant’s Supervisor was biased against African-American employees. With regard to training, the Commission noted that Complainant expressed a desire to become an OJI, but was never provided with the necessary training. The record reflected that all OJIs were White males. In addition, the record showed that, during a four-year period, all employees rated highly by Complainant’s Supervisor were White with the exception of one employee. The Commission agreed with the AJ that the discriminatory evaluation caused Complainant not to be placed on the best qualified list for the IRA Reviewer position. The Commission stated that the Agency failed to meet its burden of showing by clear and convincing evidence that Complainant would not have been selected absent the discrimination. The Agency was ordered to, among other things, raise Complainant's evaluation, pay appropriate back pay and benefits, move Complainant to a position in another group, and pay Complainant $20,000 in proven non-pecuniary compensatory damages. Eyslee v. Dep’t of the Treasury, EEOC Appeal No. 0720100050 (December 7, 2011).

Sexual Harassment Found. Complainant, a Contract Specialist, filed a formal EEO complaint alleging that she was subjected to sexual harassment by her first-level Supervisor. Specifically, Complainant stated that her Supervisor (S1) asked her out on a date and, on several occasions inquired as to why Complainant would not see him. Complainant further stated that, when she denied S1’s advances, he delayed her promotion for six months, and denied her a within-grade increase. The Agency ultimately issued a decision finding no discrimination. On appeal, the Commission found that Complainant established a prima facie case of sexual harassment, and that the Agency failed to overcome her claim.

Complainant provided a log detailing conversations between herself and S1. The Commission was not persuaded by the Agency’s assertion that Complainant failed to show that S1’s conduct was unwelcome. The Commission noted that the challenged conduct must be unwelcome in the sense that the employee did not solicit or incite it, and regarded the conduct as undesirable or offensive. While Complainant did not initially decline S1’s request, she stated that she “did not want to hurt his feelings because he was [her] boss.” In addition, a few days later, Complainant stated that she told S1 that she did not want to go out with him. According to Complainant, S1 continued to question her as to the reasons she did not want to go out with him, and told Complainant not to tell the second-level Supervisor (S2) about their conversations. Nevertheless, Complainant did tell S2 because she was “feeling very uneasy.” While S1 denied requesting a personal relationship with Complainant and stated he was “just making conversation,” the Commission rejected that assertion. The Commission noted that S1 ultimately felt compelled to apologize to Complainant for his comments, which the Commission stated did not support his claim that the conversation was innocent.

The Commission also found that, when Complainant turned down S1’s advances, he then delayed her promotion and denied her a step increase, thereby affecting the terms and conditions of her employment. The Commission noted that S1 never addressed why Complainant was not promoted at the time she became eligible instead of six months later. Further, while S2 averred that the delay resulted from Complainant’s changing to another job series, that reason was not supported by the applicable regulations, which made no mention of changes in series affecting the timing of a promotion. The Administrative Assistant who processed promotions and step increases disagreed with S2’s stated reason for the delay, and the record showed that S2 submitted the paperwork for Complainant’s promotion shortly after she initially became eligible to receive it. Finally, Complainant’s prior Supervisor (S3) stated that he believed S1 retaliated against Complainant, and Complainant’s time in grade in the prior series position counted toward her total time in grade. With regard to the within-grade increase, the Commission stated that both S1 and S2 were not responsive to the issue. Thus, the Agency failed to provide specific, clear and individualized explanations for the delay in promotion or the denial of within-grade increase. The Agency was ordered, among other things, to change Complainant’s personnel records to reflect a grade promotion 52 weeks after her initial hiring date and a step increase effective 104 weeks after that date, pay her appropriate back pay and benefits, and conduct a supplemental investigation with regard to her claim for damages. Hadley v. Dep’t of Health & Human Serv., EEOC Appeal No. 0120113029 (December 6, 2011), request for reconsideration denied, EEOC Request No. 0520120287 (March 23, 2012).

Race Discrimination Found with Regard to Nonselection. After serving five months as a Supervisory Transportation Security Screener, Complainant applied for one of seven available Transportation Security Screening Manager (TSSM) positions. Complainant supervised 50 employees, acted as a Lane Supervisor, and mentored his team members so that they could become certified Security Screeners. Complainant also successfully completed many training programs, had previously served in various management positions, and received a Bachelor of Science degree. Complainant applied for the TSSM position and was rated “qualified.” A selection panel reviewed the applications, and Complainant earned a total of eleven out of a possible 23 points on the selection panel’s evaluation. Complainant, while deemed qualified, was not deemed “best qualified” or recommended by the selection panel. He was ultimately not selected. Seven applicants (six White males, and 1 African-American male) who earned the highest scores from the selection panel were selected for the TSSM positions by the Selecting Official. Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of his race when it failed to select him for any of the vacancies. In a decision without a hearing, the AJ concluded that Complainant failed to provide any evidence to support a finding that the Agency’s explanation for the non-selection was a pretext for discrimination. The AJ’s findings were initially affirmed on appeal.

The Commission subsequently granted Complainant’s request for reconsideration. The Commission noted that the AJ ordered the Agency to conduct a supplemental investigation because the initial record did not include any specific documentation explaining how the ratings were derived and the deficiencies in the record meant that there was no specific reason provided for Complainant’s non-selection. The Commission found that the supplemental investigation did not cure the deficiencies in the investigation, and the record still did not contain the Agency’s explanation for the selection panel’s scores. In addition, the Commission noted that the AJ issued her decision prior to the date given the parties to respond to the notice of intent to issue a decision without a hearing.

The Commission stated that Complainant clearly established a prima facie case of race discrimination, because he was deemed qualified for the positions but not chosen in favor of six individuals outside of his protected group. Further, the Commission concluded that the Agency failed to articulate a legitimate, non-discriminatory reason for Complainant’s non-selection. Although the Selecting Official asserted that the selection panel’s scores were the reason why Complainant was not selected for the positions, the Agency failed to explain why Complainant received a score of 11 while other applicants received higher scores. The Commission noted that the Agency’s failure to explain why Complainant received a score of 11 was especially noteworthy in light of Complainant’s impressive qualifications. The Commission stated that there were no affidavit statements from the Selection Panelists pertaining to the deliberative scoring process or the specific reasons for Complainant’s score. Consequently, the Commission concluded that the Agency failed to meet its burden of production by articulating a legitimate, non-discriminatory reason for its actions, because the evidence presented by the Agency was insufficient to provide a specific, clear, and individualized explanation as to why Complainant was not selected for the position for which he was deemed qualified. The Commission noted that merely because it found that the Agency failed to satisfy its burden of production in this case, it did not stand for the proposition that scores cannot be used during the selection process. However, the Commission cautioned that when scores are the result of subjective evaluations, the Agency must provide some explanation for giving a Complainant and the Selectees particular scores. Consequently, the Commission granted Complainant’s request for reconsideration and found that, although the issuance of a decision without a hearing was appropriate, the AJ erred when she found in favor of the Agency rather than Complainant. The Agency was ordered, among other things, to offer Complainant the position in question, with appropriate back pay and benefits, and investigate Complainant’s claim for compensatory damages. Stewart v. Dep’t of Homeland Sec., EEOC Request No. 0520070124 (November 14, 2011).

Denial of Religious Accommodation Found. Complainant, a Laborer, filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of his religion when it denied his request not to work weekends so that he could perform his duties as a minister. Following an investigation, the AJ ultimately granted the Agency’s motion for a decision without a hearing, but found that the Agency discriminated against Complainant. The Commission affirmed the AJ’s finding on appeal. According to the record, Complainant requested religious accommodation in the form of a schedule that did not require him to work on Sunday so that he could serve as a minister at his church. Complainant’s second level Supervisor denied his request. The Commission noted that the Supervisor specifically stated that he did not look into the possibility of having other employees voluntarily switch schedules in order to accommodate Complainant. Thus, the Commission found that the Agency failed to meet its burden of showing that providing Complainant with religious accommodation would have been an undue hardship. The Commission did affirm the AJ’s finding that Complainant was not constructively discharged when he resigned soon after his accommodation request was denied. The Agency was ordered, among other things, to conduct training for the Supervisor addressing the responsibilities with respect to requests for religious accommodation. White v. Dep’t of the Air Force, EEOC Appeal No. 0120112943 (November 7, 2011).

Under Multiple Bases

Race and National Origin Discrimination Found with Regard to Termination. Complainant worked for the Agency as an Internal Revenue Agent and was subject to a probationary period. According to the record, the Agency notified her that she was being removed because her performance had “not been fully successful.” The notice of removal indicated that Complainant had been counseled about her performance, and cited several areas in which she was deficient. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race and national origin when it terminated her. Complainant stated that, at the time of her removal, her performance was improving and that her problems were no different than those experienced by others who were allowed to continue working at the Agency. Following a hearing in the matter, the AJ found that Complainant was discriminated against as alleged. The Commission affirmed the AJ’s findings on appeal. The AJ noted that while Complainant had been written up for incorrectly applying tax law in one case, Complainant subsequently demonstrated that her interpretation of the law was correct. In addition, a comparative employee (CW1) who received similar criticism was not placed under “maximum supervision” as was Complainant, and CW1 passed the training program despite continued difficulties. Two of Complainant’s fellow trainees as well as two Agency trainers stated that both Complainant and CW1 experienced similar deficiencies in performance. The AJ found that the only three trainees who were not retained by the Agency were all African-American. The Commission stated that the AJ was entitled to consider the different treatment afforded three individuals who shared the same protected class. Thus, the Commission concluded that the Agency discriminated against Complainant when it terminated her during her probationary period. The Agency was ordered, among other things, to offer Complainant an Internal Revenue Agent position, with appropriate back pay and benefits, and pay her $50,000 in proven compensatory damages. Oni v. Dep’t of the Treasury, EEOC Appeal No. 0720100015 (October 11, 2011).

Retaliation

Retaliation Found with Regard to Reassignment. Complainant, a Registered Nurse, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when it reassigned her to another unit. Following a hearing in the matter, the AJ found that retaliatory animus played a role in management’s decision to reassign Complainant. According to the record, Complainant sent a letter to management alleging that she was subjected to harassment on the basis of her religion. On appeal, the Commission found that the record clearly supported the AJ’s determination that Complainant engaged in protected activity when she sent the letter. In addition, management conceded that the decision to reassign Complainant was made, at least in part, because of Complainant’s allegations of harassment. Thus, there was a nexus between the protected activity and the reassignment. The Agency asserted that both Complainant and another employee accused each other of harassment, and both employees were reassigned because management could not determine who was at fault. The Commission found, however, that substantial evidence supported the AJ’s determination that this was not the reason for the action. Specifically, the Associate Chief Nurse, who claimed she learned of Complainant’s allegation of harassment through Complainant’s letter and during a meeting, stated that she recommended reassigning both Complainant and the co-worker because it would appear retaliatory to just move Complainant. The Commission concluded that the evidence of record supported the AJ’s determination that the decision to reassign Complainant was a “knee-jerk” reaction to her allegations of discriminatory harassment as being a sign she could not get along with the entire unit. The Agency was ordered, among other things, to

pay Complainant $7,000 in proven compensatory damages, and reassign Complainant back to her former unit. Mohammadi v. Dep’t of Veterrans Affairs, EEOC Appeal No. 0720110019 (November 15, 2011).

Retaliatory Harassment Found. Complainant, a Senior Correctional Officer, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her and subjected her to a hostile work environment. Specifically, Complainant stated that she was denied training, and threatened with a charge of Absent Without Leave (AWOL), and the Agency failed to sufficiently investigate an incident of vandalism to her car. Following a hearing in the matter, the AJ found that the Agency did retaliate against Complainant. According to the record, Complainant had filed at least one EEO complaint in which she identified the same responsible management official (S1). S1 then refused to allow Complainant to attend the second day of a training session after she left during the first day due to a medical emergency. Complainant’s husband and another employee who also left training were allowed to participate the second day. The Agency failed to offer any legitimate, non-discriminatory reason why Complainant could not participate in the training. With regard to her leave, the duty roster listed Complainant as AWOL on several occasions, including the day she left training, even though she had leave available. In addition, despite an obvious medical emergency on that day, Complainant was subjected to an investigation for being AWOL and a possible conduct issue. The Agency offered no reason for subjecting Complaint to this investigation. The Commission noted that even though Complainant was ultimately not charged with AWOL, the investigation carried with it the prospect of obstructing Complainant’s career and was sufficient to deter Complainant from participating in the EEO process. Finally, although management thoroughly investigated the vandalizing of a co-worker’s car, management took no action when Complainant reported that her vehicle had been vandalized. The Commission concluded that the AJ’s decision was supported by substantial evidence, and that Complainant was denied training, investigated and subjected to retaliatory harassment as alleged. The Agency was ordered, among other things, to pay Complainant $25,000 in proven compensatory damages, and provide training to all responsible management officials. Myers v. Dep’t of Justice, EEOC Appeal No. 0720110015 (October 13, 2011).

Mixed Motive

Mixed Motive Discussed in Claim of Retaliation. Complainant alleged, among other things, that the Agency discriminated against her on the basis of her prior EEO activity when it did not select her for a Personnel Management Specialist position. Following a hearing on the issue, an AJ found that there was a mixed motive for the non-selection. The AJ found that the Selecting Official was motivated not to select Complainant in part due to her prior accusation that the Agency was discriminating against Hispanics, and in part due to Complainant's conduct, including her refusal to cooperate with management and co-workers. The AJ found that the Agency would not have selected Complainant even if there had been no retaliation. On appeal, the Commission affirmed the AJ's findings. The AJ noted that the Selecting Official described an incident where Complainant accused the Agency of discriminating against Hispanics, and the AJ found that this incident was a motivating factor in the decision not to select Complainant for the position. The record also showed, however, that Complainant openly confronted Agency officials in a manner some co-workers found offensive, and voiced her disagreements using profanity in conversations with her Supervisors. The Commission found that Complainant's prior conduct was such that the Agency would not have selected Complainant even if it had not considered her protected activity, and, as such, Complainant was not entitled to personal relief. The Agency was ordered, among other things, to pay Complainant $731.29 in costs, and provide at least eight hours of EEO training to the Selecting Official. Montante v. Dep’t of Transp., EEOC Appeal No. 0120110240 (November 9, 2011), request for reconsideration denied, EEOC Request No. 0520120259 (June 8, 2012).

Remedies

Remedies Discussed. Complainant, a Registered Nurse, was terminated for being on duty under the influence of an illegal drug. Complainant filed a formal EEO complaint alleging that the Agency retaliated against her when it charged her with being Absent Without Leave (AWOL) and terminated. In addition, Complainant stated that her Supervisor accused her of not reporting for a program on time, and threatened to place her on a performance assessment plan, and that those actions, when considered with the AWOL charge, constituted harassment. Following an investigation, an AJ held a hearing in the matter and issued a decision finding that Complainant was retaliated against when she was charged with AWOL, and pressured to withdraw her EEO complaints. The AJ concluded, however, that the Agency did not retaliate against Complainant with regard to her termination or subject her to harassment. As relief, the AJ ordered the Agency to reinstate Complainant, upon passing a drug test, and awarded Complainant $35,000 in non-pecuniary compensatory damages. The Agency’s final order accepted the AJ’s finding of discrimination, but rejected the AJ’s decision to award Complainant reinstatement and damages.

On appeal, the Commission found that the remedy of reinstatement would place Complainant in a better position than she would have been absent the discrimination. The Commission noted that the only matters the AJ found to be discriminatory were the AWOL charge, and being asked to settle EEO complaints. The AJ explicitly found that Complainant was not subjected to retaliatory harassment, or discriminated against with regard to her termination. Complainant was terminated for reporting to work under the influence of an illegal drug. While the AJ faulted the Agency for not addressing Complainant’s abuse of alcohol and/or drugs, Complainant did not allege discrimination based on a disability and the AJ did not make such a finding. Thus, the Commission reversed the decision to conditionally reinstate Complainant.

In addition, the Commission found that the award of $35,000 in compensatory damages was excessive. The AJ found that the retaliation exacerbated Complainant’s stress and depression, which resulted in her “self-medicating” issues. The self-medicating began, however, prior to the AWOL charge and subsequent pressure to settle the complaints. In addition, while the AJ referred to Complainant’s testimony about being embarrassed and humiliated, that testimony related to her testing positive for drugs and being removed from employment, which the Commission noted was not found to be discriminatory. The Commission did find that the discriminatory AWOL charge and pressure to withdraw her complaints more likely than not exacerbated Complainant’s stress and depression, and consequent alcohol and drug use. Thus, the Commission concluded that an award of $10,000 in non-pecuniary compensatory damages was appropriate in this case. Riddick v. Dep’t of Veterans Affairs, EEOC Appeal No. 0720110011 (November 18, 2011), request for reconsideration denied, EEOC Request No. 0520120196 (May 10, 2012).

Sanctions

Dismissal of Hearing as a Sanction Was Improper. Complainant, a Registered Nurse, filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of her race, sex, and prior protected EEO activity. Following an investigation, Complainant requested a hearing before an AJ (AJ1). AJ1 scheduled a settlement conference in February 2011. Complainant’s Attorney was to handle the matter telephonically while Complainant and the Agency representative would appear in person. AJ1 would not be present but another AJ (AJ2) was asked to conduct the conference. On the day of the settlement conference, Complainant did not appear. AJ2 contacted the Attorney who indicated that he could reach Complainant by telephone. A discussion ensued between AJ2 and the Attorney which became heated. AJ2 recommended dismissal, and AJ1 ultimately dismissed the matter from the hearing based on Complainant’s failure to attend the settlement conference and the Attorney’s disrespectful conduct. On appeal, the Commission found that there was no written order issued by either AJ specifically requiring Complainant to physically attend the settlement conference. Further, the Attorney offered to have Complainant reached via telephone and indicated that he had the authority to settle the matter. The Commission stated that there was no evidence that Complainant’s physical presence at the conference was ordered or required for the parties to engage in meaningful settlement discussions. Therefore, the Commission concluded that the dismissal of the hearing was not an appropriate sanction in this case. Menchaca v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120112970 (November 23, 2011).

Dismissal of Hearing as Sanction Was Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to harassment. Following an investigation, Complainant requested an administrative hearing. The AJ issued an Acknowledgment and Order to the parties, including Complainant and his Attorney. The Agency served Complainant and his Attorney with discovery requests, but Complainant did not respond in any form. The Agency then filed a Motion to dismiss the matter or alternatively to impose sanctions on Complainant. Complainant did not respond to the Agency’s motion, and the AJ subsequently issued an Order dismissing the hearing request as a sanction for Complainant’s failure to respond to the Agency’s discovery requests, its follow-up letter, or its Motion. The Agency then issued a final decision finding no discrimination. On appeal, the Commission found that the AJ’s issuance of a sanction in the form of the dismissal of Complainant’s hearing request was not an abuse of discretion, and was narrowly tailored to Complainant’s actions. Commission precedent has held that the notice given in the Acknowledgment and Order of the possibility of sanctions may function as the equivalent of a Notice to Show Cause in cases such as this. Further, Complainant did not offer good cause in his appeal as to why he did not respond to the Agency’s discovery requests or Motion. The Commission also affirmed the Agency’s finding of no discrimination, stating that Complainant failed to show that the Agency’s actions were related to any protected basis. Campbell v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120112704 (October 21, 2011), request for reconsideration denied, EEOC Request No. 0520120169 (May 30, 2012).

Settlement Agreements

Settlement Agreement Void for Lack of Consideration. Complainant and the Agency entered into a settlement agreement which provided that the Agency would afford Complainant “all opportunities as all other employees for consideration for promotions, details, assignments, and other appropriate personnel actions.” Complainant subsequently notified the Agency that it was in breach of the agreement. Specifically, Complainant stated that a Manager was unwilling to consider her for detail assignments. On appeal, the Commission found that the agreement was unenforceable and void for lack of consideration. The agreement provided Complainant with nothing more than that to which she was already entitled as an employee, and so she received no consideration with respect to the agreement. The Agency was ordered to resume processing the underlying EEO complaint. Peters v. U.S. Postal Serv., EEOC Appeal No. 0120102922 (November 3, 2011).

Agency Failed to Support Its Finding Regarding Breach of Settlement. The parties entered into a settlement agreement which provided, among other things, that the individual who was alleged to have harassed Complainant (Respondent) would not be assigned to Complainant’s facility. Complainant subsequently notified the Agency that she believed it had breached the agreement because the Respondent had repeatedly been at her facility. On appeal, the Commission noted that while the Agency found that it did not breach the settlement agreement, the Agency failed to include copies of the affidavits referenced in their decision in the complaint file. Further, while the Agency stated, in response to a second request for the affidavits, that the person who prepared the breach response had retired, the Agency failed to indicate why the affidavit, if prepared before the decision was issued, was not available. Thus, the Agency failed to support its finding, and the Commission concluded that the Agency was in breach of the agreement. The Agency was ordered to specifically implement the terms of the agreement by ensuring that the Respondent was kept away from Complainant’s facility and from any contact with her. Fulton v. U.S. Postal Serv., EEOC Appeal No. 0120111380 (November 1, 2011).

Breach of Settlement Found. The parties entered into a settlement agreement in March 2010 which provided, among other things, that Complainant would remain at her front desk assignment. Subsequently, Complainant alleged that the Agency breached the agreement when it moved her from that assignment. On appeal, the Commission found that the Agency did breach the agreement. The Agency asserted that Complainant was reassigned to a bid position within her restrictions as part of the Agency’s National Reassessment Process (NRP). The Commission stated that Complainant’s position was changed only a few months after the parties signed the settlement agreement. In addition, the Commission was not convinced that the Agency did not know that the NRP was being carried out and might impact Complainant’s assignment at the time it entered into the agreement. In fact, the Commission stated that it was likely that the action raised in Complainant’s original complaint regarding her removal from the front desk assignment was the result of the NRP. The Commission noted that it was highly unlikely that Complainant would have agreed to withdraw her EEO complaint if she had known the Agency was only agreeing to return her to the front desk assignment for a brief period until she was processed through the NRP. The Agency was ordered to return Complainant to the front desk assignment. Reyes v. U.S. Postal Serv., EEOC Appeal No. 0120110197 (October 26, 2011).

Settlement Agreement Void. Complainant and the Agency entered into a settlement agreement resolving Complainant’s claim that the Agency discriminated against him when it failed to select him for an Administrative Law Judge (ALJ) position. The agreement specified several conditions under which Complainant would be given priority consideration for an ALJ position in a named Agency office. Complainant alleged that the Agency breached the agreement when it filled several ALJ positions in the office but did not consider him. On appeal, the Commission concluded that the agreement was deficient as a matter of policy and law. The Commission noted that while the agreement provided for Complainant to receive priority consideration for one ALJ position, the agreement also stated that priority consideration was to be provided when a vacancy “is determined solely by [the Agency] to exist.” Thus, the threshold condition for Complainant’s eligibility to receive priority consideration was completely within the Agency’s control, and only the Agency could determine what qualified as a vacancy. The Commission noted that nothing precluded the Agency from disregarding the commonly understood conceptions of what a vacancy was, and the Agency conceded that the agreement allowed it to place an individual in an “unencumbered” ALJ position while it declined to recognize the position as a vacancy for purposes of the settlement agreement. The Commission found the Agency’s promise to be illusory such that the entire agreement was void for lack of adequate consideration. The Agency was ordered to reinstate the underlying complaint for processing. The Commission declined to address Complainant’s allegations concerning actions which occurred subsequent to his appeal, noting that he could seek to amend his complaint if he wished to do so. Davidson v. Soc. Sec. Admin., EEOC Appeal No. 0120100016 (October 25, 2011), request for reconsideration denied, EEOC Request No. 0520120150 (May 25, 2012).

Settlement Agreement Void for Vagueness. The parties entered into a settlement agreement that provided, among other things, that the Agency would reassign Complainant to the developmental position of Administrative Assistant, which had promotion potential to the GS-9 level. Complainant subsequently alleged that the Agency breached the agreement when it failed to promote her. On appeal, the Commission found that the terms of the agreement were too vague and contradictory to have allowed for a meeting of the minds between the parties. Specifically, the Commission noted that the agreement contained contradictory provisions concerning the possibility for promotion. The agreement stated that Complainant would be evaluated for a minimum of six months before being promoted to the GS-9 level, which implied that Complainant would be unconditionally promoted following this period. The agreement also stated, however, that Complainant’s successful performance during that time would result in “special consideration” for promotion. The Commission determined that, given the contradictory terms, Complainant presumably believed that the promotion would be unconditional, while the Agency believed the promotion would be conditional. Thus, the Commission concluded that there was no contemporaneous meeting of the minds between the parties, and the settlement agreement was void. Doll v. Dep’t of the Army, EEOC Appeal No. 0120112596 (October 13, 2011), request for reconsideration denied, EEOC Request No. 0520120118 (May 10, 2012).

Stating a Claim

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

Blanchard v. Dep’t of Transp., EEOC Appeal No. 0120112216 (December 22, 2011) (The Agency improperly dismissed Complainant’s complaint alleging that the Agency retaliated against her when it subjected her to a security investigation. A fair reading of the complaint revealed that Complainant was not challenging the results of the security investigation or the process itself, but was claiming that the Agency targeted her for the investigation because of her prior EEO activity. Complainant’s allegations, if true, could have a chilling effect on an employee’s willingness to engage in the EEO process, and, as such, stated a viable claim of retaliation).

Castello v. U.S. Postal Serv., EEOC Appeal No. 0520110649 (December 20, 2011) (Complainant’s allegation that the Agency subjected her to a hostile work environment when a Manager made an offensive and derogatory comment about Complainant having relationships with women stated a plausible sex stereotyping case. The Commission noted that while Title VII’s prohibition of discrimination does not explicitly include sexual orientation as a basis, Title VII does prohibit sex stereotyping discrimination. In this case, Complainant essentially argued that the Manager was motivated by the sexual stereotype that having relationships with men was an essential part of being a woman, and made a negative comment based upon Complainant’s failure to adhere to this stereotype).

Hood v. Dep’t of Agric., EEOC Appeal No. 0120111403 (December 16, 2011) (The AJ improperly dismissed Complainant’s complaint as alleging reprisal for whistleblower activity. Although Complainant did not file a prior EEO complaint against the Agency, he stated that he was an EEO Program Manager at another Agency and provided testimony in multiple EEO investigations. In addition, Complainant alleged that the Agency managers responsible for the actions in his current complaint were aware of his EEO activity because he frequently and vocally opposed “illegal and discriminatory personnel management practices,” and referred to his prior experience in EEO. The Commission found that this activity was sufficiently protected to state a viable claim of retaliation).

Bjork v. U.S. Postal Serv., EEOC Appeal No. 0120111231 (December 16, 2011) (Complainant’s allegation that the Agency discriminated against her when it took away a bid assignment stated a viable claim of sex and reprisal discrimination. Complainant was not specifically challenging the Agency’s grievance process or the Memorandum of Understanding (MOU), but instead was challenging the Agency’s purported discriminatory application of the MOU. Thus, the claim was not a collateral attack on the grievance process. Further, the Agency’s argument concerning its compliance with the MOU addressed the merits of the complaint and was irrelevant to the procedural issue of whether Complainant stated a justiciable claim).

Simmons v. Dep’t of the Army, EEOC Appeal No. 0120111275 (December 9, 2011) (Complainant’s allegations that the Agency discriminated against him when it assigned him a heavier workload than other employees, and did not provide him with an opportunity to apply for a more desirable position stated a viable claim of retaliation. Examining the allegations together and in the light most favorable to Complainant, the claims were sufficiently adverse and would dissuade a reasonable person, under the same circumstances, from making or supporting a claim of discrimination).

Smith v. Dep’t of the Army, EEOC Appeal No. 0120113425 (December 5, 2011) (Complainant’s claim that she was discriminated against when her Supervisor refused to re-submit her position description for classification at a higher level due to an accretion of duties stated a viable claim. Complainant claimed that she was working outside of her position description, and that the Supervisor told her he would not re-submit it for classification because he did not want to go through the process and it gave him “a headache.” The Agency’s assertions that Complainant did not avail herself of the Human Resources regulation and collective bargaining agreement, signed her evaluation indicating that she was satisfied with her position description, and could have challenged her position description without the support of her Supervisor go to the merits of the complaint and are irrelevant to the procedural issue of whether Complainant stated a viable claim).

Hamilton v. U.S. Postal Serv., EEOC Appeal No. 0120113457 (November 25, 2011) (Complainant’s claim that the Agency discriminated against her when it removed her modified job duties stated a viable claim. The Commission found that, contrary to the Agency’s assertion that the matter amounted to merely a change in “routine work assignments,” the claim went well beyond the type of daily changes in work assignments made at the Agency. Complainant asserted that the modified job assignment she had held since 2002, provided to accommodate her work-related disabling medical condition, was suddenly removed from her and given to an employee outside of her protected groups).

Stamatiades v. Dep’t of the Navy, EEOC Appeal No. 0120112425 (November 21, 2011) (Complainant’s allegation that the Agency discriminated against him on the basis of his national origin when it canceled his reassignment to Greece stated a viable claim. The Agency’s characterization of the complaint as alleging discrimination based on citizenship and reliance on the Supreme Court’s decision in Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973) was misplaced. While the Supreme Court found that in that case citizenship was not covered by Title VII, the Court noted that it was not questioning the validity of the Commission’s belief that there may be situations where discrimination on the basis of citizenship would have the effect of discrimination on the basis of national origin. Further, the Agency’s assertion that Complainant was prohibited from being assigned to the unit in Greece due to his citizenship went to the merits of the complaint and was irrelevant to the procedural issue of whether he stated a justiciable claim).

DiLoreto v. Dep’t of Health & Human Serv., EEOC Appeal No. 0120111007 (November 18, 2011) (Complainant’s allegation that the Agency hosted a National Day of Prayer event and reversed its decision to credit her with administrative leave stated a viable claim of religious discrimination. Complainant asserted, in essence, that the event promoted one set of religious beliefs to the exclusion of her own. In addition, Complainant stated that the Agency provided employees who attended the event with administrative leave and excused them from work while she had to work).

Watson v. U.S. Postal Serv., EEOC Appeal No. 0120112767 (November 18, 2011) (The Agency improperly dismissed Complainant’s complaint for failure to state a claim, because Complainant’s allegations constituted a claim of hostile work environment harassment. Complainant alleged that after complaining to management about sexual harassment, management failed to take any action, but instead reassigned him to work outside of his area. If true, the allegations described behavior that would reasonably interfere with Complainant’s performance and render the work environment hostile).

Greenstein v. U.S. Postal Serv. EEOC Appeal No. 0520110467 (November 14, 2011) (Complainant’s allegation that the Agency discriminated against him when it adjusted his route stated a viable claim of age discrimination. Before the adjustment, Complainant drove a vehicle to deliver mail, but after the adjustment, he had to walk on foot and carry a 35-pound satchel. Thus, Complainant alleged that the route adjustment changed the physical requirements of his job to such an extent that it became physically difficult for him to perform).

Green v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120113115 (November 7, 2011) (Complainant’s allegations that his second level Supervisor did not provide him with office communication, access to e-mail, a computer, or a personal workspace, and spoke to him in a condescending tone, and yelled at him, and that his first level Supervisor warned him about his attire while allowing other employees to dress in a similar fashion on “casual” Friday stated a viable claim of discrimination. Although Complainant acknowledged that he was provided with a light duty assignment as an accommodation, a fair reading of his complaint indicated that he was claiming he was subjected to ongoing harassment by his Supervisors and poor working conditions).

Keck v. Dep’t of Transp., EEOC Appeal No. 0120113018 (November 7, 2011) (The Agency improperly dismissed Complainant’s claim alleging an on-going hostile work environment. While the Agency focused on one specific incident, Complainant alleged that he was “denied work opportunities, harassed, insulted and ostracized.” In addition, Complainant alleged that Managers frequently asked when he planned to retire making him feel that he was being pressured to leave because of his age. The allegations were sufficient to state a viable claim of discriminatory hostile work environment).

McDaniel v. U.S. Postal Serv., EEOC Appeal No. 0120111103 (November 7, 2011), request for reconsideration denied, EEOC Request No. 0520120128 (May 15, 2012) (Complainant’s claim that the Agency discriminated against him when it failed to correct his seniority ranking stated a viable claim of retaliation. The Agency’s assertion that Complainant’s seniority could not be changed because it had been set by a 1984 arbitration decision went to the merits of the complaint and was irrelevant to the procedural issue of whether Complainant stated a justiciable claim).

McPherson v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120112997 (November 4, 2011) (The Agency improperly dismissed Complainant’s complaint on the grounds that she failed to identify any basis of discrimination in her formal complaint. While she did not check a box on the complaint form, the narrative sections of her complaint suggested that she was alleging discrimination based on age. In addition, the record did not clearly support the Agency’s assertion that Complainant was given the opportunity to clarify her complaint during counseling because the Counselor stated only that she discussed “Title VII categories” with Complainant).

Clausell v. U.S. Postal Serv., EEOC Appeal No. 0120110710 (November 1, 2011) (Complainant’s allegation that his Supervisor touched him on one occasion stated a viable claim of hostile work environment based on sex).

Jorgensen v. U.S. Postal Serv., EEOC Appeal No. 0120112920 (October 28, 2011) (Complainant’s allegation that the Agency discriminated against him when it moved him from his bid assignment, and changed his lunch, break and start times stated a viable claim of discrimination. Complainant stated that 50 percent of his job duties were removed as a result of being moved from his bid assignment which was materially adverse to his employment. Complainant also noted that others outside of his protected class were treated more favorably).

Mungia v. U.S. Postal Serv., EEOC Appeal No. 0120112662 (October 20, 2011) (Complainant’s allegation that the Agency discriminated against him when it denied his requests to be changed to the “Sub of Record” stated a viable claim of national origin discrimination. Complainant provided a grievance settlement as support to his claim that he was denied a change of assignment to a better paying route, and was not alleging a failure to comply with the settlement itself).

Marmol v. U.S. Postal Serv., EEOC Appeal No. 0120112971 (October 20, 2011) (Complainant’s allegation that he was forced to work with chemicals that violated his medical restrictions stated a viable claim of discrimination. The record contained a letter from the reasonable accommodation committee indicating that Complainant’s medical condition prohibited him from working around chemicals, and Complainant was clearly stating a claim that the Agency failed to reasonably accommodate his condition).

Galloway v. U.S. Postal Serv., EEOC Appeal No. 0120112820 (October 19, 2011) (The Agency improperly dismissed Complainant’s complaint as a collateral attack on the negotiated grievance procedure. Complainant alleged that the Agency posted her bid position, the duties of which she had been performing as part of a modified job assignment. The Commission noted that there was no evidence that the grievance settlement referenced by the Agency involved Complainant).

Stanford v. U.S. Postal Serv., EEOC Appeal No. 0120112753 (October 14, 2011) (Complainant’s allegation that the Agency changed 16 hours of previously approved sick leave to unscheduled leave stated a viable claim of retaliation. Complainant stated that the change was made by an employee whom she had identified as a discriminatory party in a separate EEO matter, and that the action can affect her career progress and future leave status).

Caldwell v. U.S. Postal Serv., EEOC Appeal No. 0120112735 (October 14, 2011) (The Agency improperly dismissed Complainant’s complaint alleging that she was involuntarily reassigned without advance notice because of her sex. The Agency’s contention that it could not move Complainant into a position with promotion potential goes to the merits of the complaint and is not relevant to the procedural issue of whether she has stated a justiciable claim).

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

Hocutt v. Dep’t of Transp., EEOC Appeal No. 0120110104 (October 26, 2011) (The Agency properly dismissed Complainant’s allegation that she was denied a change of Trainer. Complainant passed her training and became certified less than one week after she requested a new Trainer, and the Agency indicated that Complainant’s request would have taken additional time. Thus, Complainant did not suffer any harm as a result of the denial of her request).

Alaimo v. U.S. Postal Serv., EEOC Appeal No. 0120113212 (October 24, 2011), request for reconsideration denied, EEOC Request No. 0520120138 (May 17, 2012) (Complainant’s allegation that the Postal Inspection Service decided not to launch an investigation into his complaints about unpleasant and aggressive verbal encounters with a co-worker, without more, did not state a viable claim of discrimination under Title VII. The administrative EEO complaint process is not the appropriate forum to challenge the investigative discretion of the law enforcement arm of the Agency).

Bynum v. U.S. Postal Serv., EEOC Appeal No. 0120112668 (October 17, 2011) (Complainant’s allegation that the Agency incorrectly calculated her seniority time resulting in a junior employee receiving preferential choice of vacation time failed to state a viable claim. Complainant did not allege that she was denied a vacation or required to work on a holiday when the co-worker was not, and Complainant conceded that she never informed management of the mistake with her seniority date until approximately three months later. Thus, Complainant did not allege a present harm or loss as a result of the mistake).

>Scheidel v. Fed. Deposit Ins. Corp., EEOC Appeal No. 0120111964 (October 17, 2011), request for reconsideration denied, EEOC Request No. 0520120087 (April 17, 2012) (The Agency properly dismissed Complainant’s claim that the Agency dissuaded him from applying for jobs because of an Agency bar against hiring anyone with a felony conviction. The Commission noted that an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics. In this case, however, the Agency was prohibited by statute from employing anyone with a felony conviction); see also, Norman v. Fed. Deposit Ins. Corp., EEOC Appeal No. 0120112899 (October 17, 2011).

Gorrell v. U.S. Postal Serv., EEOC Appeal No. 0120112683 (October 12, 2011) (Complainant’s allegation that employees with earlier start times received more favorable treatment did not state a viable claim. Although Complainant checked boxes on the complaint form to assert disparate treatment because of his race and gender, the Commission found that he was actually alleging disparate treatment based on his start time).

Walker v. Envtl. Prot. Agency, EEOC Appeal No. 0120112853 (October 6, 2011) (Complainant’s allegation that he was subjected to harassment and reprisal on the basis of his religious beliefs when he received an e-mail from the Acting Director announcing an on-site celebration of a same-sex marriage of an co-worker failed to state a viable claim. The initial e-mail, comported with the Agency’s long-standing practice of celebrating milestone events in the lives of its employees, was sent to all employees and invited them to a voluntary social gathering. In addition, it was a one time occurrence that could not be considered either sufficiently pervasive or severe to constitute a viable hostile work environment claim. While the co-worker received many congratulatory e-mails, none of them specifically mentioned Complainant or challenged his religious beliefs).

Summary Judgment

Summary Judgment Was Proper. Complainant worked for the Agency as a Manager of Customer Services. According to the record, there were numerous problems at the facility where he worked, and Complainant believed employees were leveling false accusations against him. Complainant had been the subject of multiple allegations of violence and harassment by female employees during a three-year period. Complainant stopped working and filed a claim with the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). The record detailed the parties’ actions regarding Complainant’s OWCP claim. Complainant’s psychiatrist indicated that Complainant “suffered from phobia of working with female employees [at the Agency],” and that the phobia caused him to experience “an overwhelming desire to flee any situation that include[d] working with or supervising any female” employees. Complainant ultimately returned to work, but was placed in emergency off-duty status following his arrest. Complainant subsequently filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his disability and prior EEO activity. Following an investigation, the AJ issued a decision without a hearing finding no discrimination. On appeal, the Commission affirmed the AJ’s decision. The Commission initially found that the record was adequately developed for summary disposition. The Commission stated that the AJ did not abuse her discretion in failing to compel the Agency to produce 10 years’ worth of threat assessments for Complainant’s facility, noting that the documents Complainant sought could only establish that he and other managers were subjected to unwelcome conduct based on their managerial status rather than a basis covered by the employment discrimination laws. Further, the record contained numerous, relevant medical documentation from Complainant’s physicians and psychiatrists, as well as copies of two limited duty job offers and Complainant’s reasons for rejecting those offers.

In addition, the Commission found that the AJ properly issued a decision on summary judgment in favor of the Agency, because there were no genuine issues of material fact in dispute, and Complainant failed to establish that he was denied a reasonable accommodation or subjected to hostile work environment harassment. One of the essential functions of Complainant’s position was to manage or supervise employees. The medical documentation, however, revealed that Complainant needed to work in a non-confrontational environment that immunized him from the possibility of further accusations by subordinates. Further, Complainant’s psychiatrist recommended that he always have another Supervisor present with him. The Commission stated that the Agency could not accommodate Complainant’s needs, suspicions and phobias of black females by restructuring a managerial or supervisory position, and reallocating to him marginal administrative tasks and eliminating the essential functions of managing and supervising employees. In addition, it was not apparent that there were any lower-graded positions for which Complainant was qualified given his work restrictions and the increased likelihood of interacting with formerly subordinate employees. Complainant had also previously declined an offer of a position in which he would work alone. Thus, Complainant was not a qualified individual with a disability. Finally, the Commission stated that the Agency was not required to rescind or mitigate the placement in off-duty status because Complainant violated a uniformly applied standard of conduct that was job-related for the position and consistent with business necessity. Kane v. U.S. Postal Serv., EEOC Appeal No. 0120112749 (October 25, 2011).

Summary Judgment Was Improper. Complainant, a Housing Management Specialist, filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his race and in reprisal for prior EEO activity when it did not select him for a Management and Program Analyst position. According to the record, Complainant was one of six candidates forwarded for consideration by a five-member panel, but was not chosen for an interview. The Selecting Official ultimately chose the Selectee who was recommended by the panel. Following a request for a hearing, an AJ granted the Agency’s motion for summary judgment and issued a decision finding no discrimination. On appeal, the Commission found that there was a genuine issue in dispute as to whether the action was taken in retaliation for Complainant’s prior EEO activity. Complainant stated that, during several conversations with one of the Panel Members, he was asked if filing a prior EEO complaint was the “right” or “sensible” action to take, and if Complainant would take the same action again. Complainant further stated the Panel Member questioned him regarding the outcome of the prior complaint, and seemed to dislike him after the prior Responsible Official left the Agency. The Panel Member acknowledged that he was aware of Complainant’s prior EEO activity, and paid the costs associated with Complainant’s EEO complaint while serving as Budget Manager. While the Panel Member stated that Complainant’s EEO activity had nothing to do with his decision not to recommend Complainant, the Commission found a “glaring omission” in the record, specifically, the Investigator’s failure to ask the Panel Member whether he made the statements described by Complainant. The Commission found that there were questions about the Panel Member’s motive which should be explained at a hearing under cross examination given that the remarks he allegedly made could be construed as a per se violation of the EEOC regulations. Thus, the issuance of a decision on summary judgment was inappropriate and the matter was remanded for an administrative hearing. Scott v. Dep’t of Homeland Sec., EEOC Appeal No. 0120112890 (October 24, 2011).

Summary Judgment Was Improper. Complainant, a Mail Handler Equipment Operator, filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his age and disability when it required him to successfully qualify to operate and agree to operate three power industrial trucks (PITs) before permitting him to begin the assignment for which he was the successful bidder. Following an investigation, the AJ issued a decision without a hearing in favor of the Agency. According to the record, Complainant had been working in the same position for approximately 10 years, and the only PIT he operated was the mule, which Complainant noted was within his limitations. When Complainant submitted his bid, the posting indicated that the position required operating all three PITs, and Complainant’s bid award indicated that it was pending qualification. Complainant requested to only work the mule as a reasonable accommodation and submitted documentation from his doctor, but the Agency would not permit Complainant to work in the bid position unless he could operate all three PITs.

On appeal, the Commission found that the AJ erred in finding that there was no genuine issue of material fact in the case. Specifically, Complainant disputed the Agency’s assertion that the duties of the bid position required the operation of a PIT other than the mule. The employee who was allegedly covering the bid indicated that he only operated the mule. This employee worked the same daily schedule as Complainant’s bid award. Complainant stated that another employee who occupies the same position did not operate any PITs most of the time, and that an increase in mail volume had also increased the need for mules. The Commission found that this evidence raised a genuine issue of fact as to whether the essential function of Complainant’s bid award was to operate a PIT other than the mule. Thus, the matter was remanded for a hearing. Farkas v. U.S. Postal Serv., EEOC Appeal No. 0120112686 (October 24, 2011).

Timeliness

Time for Contacting EEO Counselor Was Tolled. Complainant contacted an EEO Counselor on December 9, 2009, and subsequently filed a formal complaint alleging that the Agency discriminated against him when it terminated his employment effective January 23, 2009. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that Complainant presented a persuasive argument for extending the applicable limitation period. Specifically, Complainant asserted that her pervious Supervisor acted to prevent her from having access to EEO counseling. The EEO Counselor’s report indicated that Complainant stated the Supervisor would not allow her to see an EEO Counselor or provide her with any contact information. While the EEO Counselor’s report referenced a reduction in force letter that purportedly provided Complainant with EEO rights, the letter was not part of the record. Poitra v. Dep’t of the Interior, EEOC Appeal No. 0120111995 (November 10, 2011).

EEO Contact Was Timely. Complainant contacted an EEO Counselor, and subsequently filed a formal complaint alleging that the Agency discriminated against him in reprisal for prior EEO activity when it failed to approve his leave request. The Agency dismissed the complaint, stating that while the alleged discrimination occurred on March 23, 2010, Complainant did not contact the Counselor until May 12, 2010, which was beyond the 45-day limitation period. On appeal, the Commission found that the record contained sufficient documentation to support Complainant’s assertion that he contacted the Counselor on April 26, 2010. Specifically, Complainant submitted a copy of an e-mail he sent to the Agency’s EEO Office on that date which referenced his interest in amending a prior complaint. In addition, in another e-mail dated April 28, 2010, Complainant noted that he informed an agency EEO official of his intent to amend his complaint, and had left various voice mail messages to that effect. Garvin v. Dep’t of Homeland Sec., EEOC Appeal No. 0120110953 (November 10, 2011).

EEO Contact Was Timely. Complainant contacted an EEO Counselor on August 3, 2009, and subsequently filed a formal complaint alleging that the Agency discriminated against him when he was repeatedly denied light duty work. An AJ ultimately dismissed the complaint for failure to timely contact an EEO Counselor, indicating that Complainant had requested light duty from 2006 through October 2008. On appeal, the Commission noted that Complainant stated that he did not suspect the discrimination until he learned in July 2009 that an employee outside of his protected group was permitted to work light duty. Further, the Commission determined that a fair reading of the complaint and pre-complaint documents showed that Complainant had essentially raised a claim of on-going denial of reasonable accommodation. Thus, the Commission found that Complainant did timely contact the EEO Counselor. McKoy v. U.S. Postal Serv., EEOC Appeal No. 0120112721 (November 1, 2011).

EEO Contact Was Timely. Complainant contacted an EEO Counselor on March 15, 2010, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it misplaced her bid card and failed to take corrective action. The Agency ultimately dismissed the complaint for failure to timely contact an EEO Counselor. Complainant stated that she submitted a bid in September 2009 and put it in the bid box. Complainant did not receive the position, and was told that her bid had not been received. Complainant noted that she gave management a copy of the bid and requested a review of the situation, but the Agency failed to take any action. On February 13, 2010, a male employee submitted a bid in the same box, and, when the bid was lost, management took immediate action to rectify the situation. On appeal, the Commission found that the Agency mischaracterized Complainant’s claim. Complainant indicated that when her bid was located during the February 2010 search of the bid box, she did not receive the same corrective action as her male co-worker. The Commission stated that it was this disparity that was the crux of Complainant’s claim. Since both misplaced bids were found on February 13, 2010, Complainant contacted the EEO Counselor well within the 45-day limitation period. Bush v. U.S. Postal Serv., EEOC Appeal No. 0120103433 (October 26, 2011).

EEO Contact Was Timely. Complainant contacted an EEO Counselor on December 30, 2010, and subsequently filed a formal complaint alleging that the Agency discriminated against him on the bases of his age and sex when he did not receive the day off he requested under the Alternative Work Arrangement Pilot Program. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, asserting that Complainant was notified of the action in October 2010. On appeal, the Commission noted that Complainant did not suspect the discrimination until November 19, 2010, when he learned that two employees outside of his protected groups were granted the same day off that was denied Complainant. Citing the Commission’s decision in Sauls v. U.S. Postal Serv., EEOC Appeal No. 0120080532 (March 25, 2008), the Agency asserted that Complainant’s learning of a new comparator does not enable him to file a new complaint on the matter. The Commission stated, however, that the Sauls decision addressed a situation where the complainant filed an EEO complaint, reached a settlement with the Agency, and then sought to file a new complaint on the same matter after discovering a new comparator. In the instant case, Complainant had no reason to suspect the discrimination until he learned that others received better treatment. Thus, the Commission found that Complainant timely initiated contact with the EEO Counselor. Amey v. U.S. Postal Serv., EEOC Appeal No. 0120112727 (October 19, 2011).

Brief Delay in Filing Formal Complaint Waived. Complainant contacted an EEO Counselor alleging that the Agency discriminated against him when it failed to select him for a permanent position. Complainant received a notice of the right to file a formal complaint on January 29, 2010, stating that he must file his formal complaint within 15 days. Complainant did not file his formal complaint until February 17, 2010, and the Agency dismissed the complaint at untimely. On appeal, the Commission noted that Complainant explained that his wife had a serious illness and he missed the deadline because he was driving her to doctors’ appointments. Given the brief delay, the Commission exercised its discretion to waive the untimely filing, and remanded the complaint to the Agency for further processing. Dibrell v. Dep’t of the Army, EEOC Appeal No. 0120110149 (October 26, 2011).

Formal Complaint Timely Filed. Complainant filed a formal EEO complaint on April 1, 2011, alleging that the Agency discriminated against him when it assigned him work beyond his physical limitations, subjected him to harassment, and gave him a letter of warning. The Agency dismissed the complaint as untimely, stating that Complainant received the notice of right to file on March 14, 2011, as evidenced by information found through the “track and confirm” on the Postal Service website. On appeal, the Commission found insufficient evidence to show that Complainant actually received the notice of right to file on March 14. Specifically, the “track and confirm” print-out contained only a reference to a delivery made to a specific city and zip code without any indication that Complainant actually received the notice. In addition, the Agency mailed a second copy of the notice to Complainant on March 17, 2011, which included a “certificate of service” presuming the parties received the notice within five days of mailing. The Agency stated that it sent the second mailing because Complainant had not picked up the first notice in a timely manner. The Commission concluded that the Agency could not conclusively show that Complainant received the first mailing, and the formal complaint was timely filed in accordance with the second mailing. Foley v. Dep’t of Def., EEOC Appeal No. 0120113250 (October 19, 2011),, request for reconsideration denied, EEOC Request No. 0520120105 (May 4, 2012); see also Coulter v. U.S. Postal Serv., EEOC Appeal No. 0120112913 (October 20, 2011) (Complainant’s formal complaint was found to be timely where the “track/confirm” documents for the notice of right to file did not expressly identify the addresses of record of either Complainant or his Attorney, and there was no evidence of signatures by either individual that would reflect receipt of the notice on a particular date. Further, the formal complaint was transmitted in an envelope with an illegible postmark and was date-stamped by the Agency as having been received within five days of the applicable limitation period).

Time Limitation for Filing Formal Complaint Waived. Complainant filed a formal EEO complaint on March 18, 2011, alleging that the Agency discriminated against her with regard to her performance appraisal, and harassed her. The Agency dismissed the complaint as untimely, stating that Complainant received the notice of right to file on February 23, 2011. On appeal, the Commission initially noted that there was no evidence in the record submitted by the Agency as to when Complainant received the notice. Further, Complainant stated that she received the notice on February 24, 2011, and timely sought an extension of time to file her formal complaint. Complainant explained in detail how she sought medical treatment for a “MRSA” infection, and offered to provide medical documentation to support her claim. Thus, given the circumstances in the case, the Commission exercised its discretion to waive the original limitation period. Brown v. Soc. Sec. Admin., EEOC Appeal No. 0120112887 (October 19, 2011).