Skip top navigation Skip to content

print   email  Share

The DIGEST Of Equal Employment Opportunity Law


Volume XXIII, No. 4

Office of Federal Operations

Fall 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
Robert Barnhart, Acting Director, OFO's Special Services Staff
Digest Staff
Editor: Robyn Dupont
Writers: Robyn Dupont, Caroline Hyatt, Alexandra Robinson, Pennington Winberg

The Digest is now available online through EEOC's homepage at www.eeoc.gov/federal/digest/index.cfm.


(The Fall 2012 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

Agency Processing

Agency's Dismissal of Request for EEO Counseling Improper. Complainant contacted a Dispute Resolution Specialist to request EEO counseling. She alleged that the Agency discriminated against her when she received a letter from the Office of Personnel Management (OPM) indicating that the Agency had advised OPM that Complainant owed a debt for past-due health benefits. The Agency's Acting Manager for EEO Dispute Resolution subsequently advised Complainant that the issue was not an EEO matter, and her request for counseling would not be processed. The Acting Manager stated that Complainant could raise her concerns with the Commission if she disagreed with the decision. On appeal, the Commission noted that the EEO Counselor plays a crucial role in the complaint process, and under no circumstances should an EEO Counselor dissuade someone from filing a complaint. The Commission found that the Agency's dismissal of Complainant's request for EEO counseling was improper. The Commission noted that if Complainant filed a formal complaint that raised an issue not within the purview of the EEO process, the Agency could then issue a final decision dismissing the matter with appeal rights to the Commission. Hayes v. U.S. Postal Serv., EEOC Appeal No. 0120112568 (August 29, 2012).

Agency Processing Discussed. Complainant filed a formal EEO complaint on July 30, 2010, alleging that the Agency discriminated against him and subjected him to harassment for approximately 18 months. After more than 180 days passed from the filing of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency received a copy of the request and continued the investigation. The Agency mailed the report of investigation and the notice of right to request a hearing to Complainant's attorney in June 2011. After Complainant did not respond to this mailing, the Agency issued a final decision in January 2012 finding no discrimination. On appeal, the Commission stated that, pursuant to the EEOC's regulations, Complainant timely requested a hearing in January 2011. While the Agency asserted that it continued the investigation in good faith, that fact did not negate Complainant's request which was still pending at the time the Agency issued the report of investigation and notice. The Commission stated that a second request was not required to perfect the first hearing request, and, therefore, the Agency improperly issued a decision on the merits of the complaint. The matter was remanded for an administrative hearing. Hodge v. Dep't of the Army, EEOC Appeal No. 0120121575 (July 30, 2012).

Agency Failed to Properly Process Complainant's Complaint. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it denied her a promotion. In addition, Complainant alleged that she was subjected to a retaliatory hostile work environment by her Supervisor. Complainant cited several incidents in support of her claim of harassment. The Agency investigated the complaint and provided Complainant with a report of investigation and notice of her right to request an administrative hearing. Complainant requested a final decision from the Agency. Before issuing the final decision, the Agency determined that the record was inadequate with regard to the issue of the promotion, and the Agency conducted a supplemental investigation. The Agency notified Complainant that it would provide her with a copy of the supplemental investigation report, and, "if there is no right to request a hearing," forward the report for issuance of a final decision. The Agency ultimately issued a decision finding no discrimination. On appeal, the Commission found that the Agency improperly processed Complainant's complaint. Nothing in the record showed that the Agency provided Complainant with the supplemental investigation report or gave her a chance to respond to the evidence therein. Further, the Commission stated that, when the Agency conducts a supplemental investigation, it must provide the results to Complainant and afford her the opportunity to request a final decision or a hearing. The Agency argued that Complainant had the opportunity to rebut its arguments on appeal. The Commission found, however, that the Agency was required to provide Complainant with an opportunity to review and respond to the supplemental investigation before it made its final decision, and to revisit her decision whether to ask for a final decision or an administrative hearing. The matter was remanded to the Agency for further processing. Harrison v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121105 (May 22, 2012), request for reconsideration denied, EEOC Request No. 0520120480 (October 24, 2012).

Notice of Right to Hearing Did Not Sufficiently Advise Complainant of Rights. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it placed her on a Performance Improvement Plan. After determining that Complainant failed to timely request a hearing, the Agency issued a final decision finding no discrimination. On appeal, the Commission found that the Agency improperly issued a final decision in the matter. According to the record, Complainant received the investigative file and notice of her right to request a hearing, and faxed a hearing request to the Commission within 30 days. While there was no evidence that Complainant sent a copy of the request to the Agency, the Commission noted that the notice did not inform Complainant that she risked forfeiture of her right to a hearing if she failed to do so. Instead, the Agency advised Complainant only that her failure to provide a copy of her request to the Agency could result in "non-processing" of the request or placement on an inactive docket which could be remedied by Complainant subsequently notifying the Agency of her request for a hearing. The Commission found that the language was fundamentally insufficient to put Complainant on notice that she risked forfeiture of her right to a hearing, and would have lead her to believe that she risked far less dire consequences for the omission. The Commission stated that, lacking this notice, Complainant's request for a hearing effectively transferred jurisdiction of the complaint to the Commission such that the Agency had no jurisdiction to issue a final decision. The Commission remanded the matter for an administrative hearing. Pearsey v. Dep't of Veterans Affairs, EEOC Appeal No. 0120103636 (April 19, 2012).

Attorney's Fees

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

Attorney's Fees Modified. Following an AJ's finding that the Agency discriminated against Complainant when it charged him leave without pay, the Agency was ordered to provide Complainant with certain specified relief. Subsequently, the Commission issued several decisions addressing whether the Agency had complied with this order. Complainant submitted various petitions for attorney's fees to the Agency for work seeking compliance with the order, and ultimately appealed the Agency's decision on that matter to the Commission. On appeal, the Commission initially concurred with the Agency's determination that the appropriate hourly rate was the prevailing market rate in the area where the action arose. Complainant did not explain his decision to retain out-of-town counsel and presented no evidence to rebut the Agency's showing of locally available counsel. The Agency provided an affidavit from an attorney addressing the hourly rate for local employment litigators, as well as information demonstrating the presence of advertisements for employment law attorneys in the local area. Thus, the Agency met its burden of showing that Complainant's decision to use non-local counsel was not required. With regard to the hours claimed, the Commission declined to engage in a line-by-line analysis of each charge. The Commission noted that Complainant retained his attorney following the finding of discrimination by the AJ and the Commission's dismissal of the Agency's appeal, thus reducing the risk of an unfavorable outcome for any prospective work undertaken. The Commission considered that Complainant was only partially successful over the course of his enforcement efforts, and modified the Agency's calculation of reasonable hours expended to reflect an across the board reduction of two thirds. The Commission concurred with the Agency that Complainant failed to adequately document his costs for facsimile transmissions and postage, and that charges for "administration" or file set-up were properly excluded as overhead expenses. The Commission modified the award of costs to one third of the costs billed. Finally, the Commission determined that costs incurred for a loan obtained to secure the attorney's representation were not reimbursable. Woodley v. U.S. Postal Serv., EEOC Appeal Nos. 0120103425 & 0120110727 (August 6, 2012).

Hourly Rate Calculated Based on the Area Where Claim Occurred. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of his disability when it did not detail him to a Group Leader position, and retaliated against him when it did not place him on official duty or provide travel time to attend an EEO hearing. Following a hearing, the AJ found that Complainant was discriminated against with regard to the detail. Complainant then submitted a petition for attorney's fees. The amount requested reflected the hourly rate in Washington, D.C. where the attorney was located. The AJ adjusted the hourly rate downward to reflect the prevailing rate paid for services in North Carolina where the claim arose. The AJ also reduced the award by 15 percent across the board, stating that the number of attorneys involved in the case was excessive, and Complainant did not prevail on his claim of retaliation.

Complainant appealed the issue of attorney's fees to the Commission, and the Commission modified the award. The Commission noted that the matter arose and was litigated in North Carolina. Further, the Agency submitted evidence showing that attorneys specializing in employment discrimination were readily available in Complainant's area. Complainant did not produce any countervailing evidence. Thus, the Commission concluded that the Agency proved, by a preponderance of the evidence, that it was unreasonable for Complainant to retain counsel from outside North Carolina. Complainant did not submit any evidence as to the prevailing rates in North Carolina. The Commission noted, however, that the Agency did not object to the hourly rates determined by the AJ with the exception of the rate awarded for attorneys with a great deal of experience. Therefore, the Commission affirmed the AJ's decision regarding the hourly rates for all other attorneys, and modified the rate for experienced attorneys to reflect the evidence presented by the Agency. With regard to the across the board reduction, the Commission stated that the retaliation claim upon which Complainant did not prevail was distinct from the claim regarding the detail, because the claims did not involve common legal theories or facts. Thus, the Commission found that an across the board reduction of 15 percent was appropriate. Taber v. U.S. Postal Serv., EEOC Appeal No. 0120110658 (June 28, 2012).

Attorney's Fees Discussed. Complainant filed a formal EEO complaint alleging, among other things, that the Agency failed to provide him with reasonable accommodation. Following a hearing, the AJ found that the Agency acted in good faith when it provided Complainant with temporary measures to accommodate his disability. The AJ concluded, however, that the Agency violated the Rehabilitation Act when it failed to provide Complainant with a permanent, effective accommodation for a period of approximately seven months. Complainant's attorney ultimately submitted a fee petition, and the Agency awarded Complainant $12,320.95 in attorney's fees.

On appeal, the Commission modified the award. The Commission initially noted that the reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community. While the Agency's award was based on the prevailing rate in Atlanta, Georgia, where the action arose, the Commission found that the Agency did not present sufficient evidence that Complainant's decision to use out-of-state counsel was unreasonable. Specifically, the Agency failed to provide any evidence that local counsel was available with the experience in EEO law, or who had practice experience with the Commission like Complainant's first attorney (A1). Complainant stated that he could not find a suitable attorney in Atlanta, and was referred to A1 who practiced in Washington, D.C. Thus, the Commission found that it was appropriate to use the Washington, D.C. hourly rate.

The Commission found, however, that the presence of a second attorney (A2) was duplicative and unnecessary, and his fee petition was properly disallowed. Both A1 and A2 billed for the same services, and there was no showing that the case was unusually complex or difficult such that it would have required the presence of two legal experts. It was undisputed that A1 had 20 years of EEO legal experience. With regard to the hours expended, the Commission stated that, in certain instances, the hours claimed by A1 were vague and inadequately documented. For example, A1 included two entries totaling 13.5 hours for "Preparation for Hearing," and "Witness Preparation for Hearing," without any indication of what work was performed. In addition, the Commission stated that the fee petition indicated that a large number of people, including three paralegals and four law clerks, spent time working on the case for no readily apparent reason. The Commission noted that Complainant did not establish that the Agency acted in bad faith with respect to his accommodation request, and, thus, did not prevail in his claim for damages. Therefore, the Commission concluded that a 15 percent across-the-board reduction in attorney's fees was appropriate in the case. The Commission stated that, consistent with prevailing case law, an adjustment for a delay caused by the length of time of the litigation justified granting a request for current hourly rates, and, based upon the Laffey Matrix, A1's hourly rate should be $475. Thus, the Commission determined that Complainant was entitled to $58,422.20 in attorney's fees. Jimenez v . Dep't of Health & Human Serv., EEOC Appeal No. 0120083765 (June 12, 2012).

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).

Class Complaints

Class Certification Granted. Complainant filed a formal EEO complaint alleging that the Agency denied her promotional opportunities based on her race and sex, and stating that these non-selections were part of a continuing pattern and practice of discriminatory promotion practices. Complainant sought certification of a class of all African-American female Postal Inspectors at the ISLE-12 level and above who were denied, or deterred from applying for promotions at the Agency. An AJ initially denied class certification, and the Commission remanded the matter for additional information. Specifically, the Commission ordered the Agency to obtain information concerning the race and sex of persons who were not selected for the Career Ladder Program, and ISLE-13 and ISLE-15 level positions, and who were not placed on the ISLE-15 Selection Register during the applicable period. On remand, the AJ again denied class certification, finding that Complainant failed to establish commonality, typicality, and numerosity.

On appeal, the Commission reversed the AJ's decision. The Commission found that Complainant's and other African-American female Postal Inspector's lack of promotional opportunity combined with the Agency's internal review, which noted that the Chief Inspector and the Assistant Chief Inspector were directly accountable for the assignment of Postal Inspectors, was a sufficient factual basis to infer a policy or practice of discrimination. There was no dispute that the Inspector in Charge (IC) was Chairman of the review board and was involved in many promotional decisions for Postal Inspectors. Further, the record contained an e-mail from the IC which the Commission noted translated to "be careful with Blacks," which was further evidence from which to infer that there was a policy or practice of discrimination. The record contained evidence from Complainant and others showing that African-American female Inspectors applied for many promotions but were not selected for those positions. Thus, Complainant established commonality. The Commission also found that Complainant satisfied the criteria of numerosity, as she specifically identified three other African-American female Inspectors who were affected by the alleged discriminatory practice, and stated that as many as 85 other individuals suffered similar treatment. Finally, the Commission noted that the law firm representing Complainant as the class agent was experienced in class actions, and had more than sufficient legal training and experience to purse the claim. Jones et. al. v. U.S. Postal Serv., EEOC Appeal No. 0120101848 (May 25, 2012), request for reconsideration denied EEOC Request No. 0520120504 (February 1, 2013).

Class Certification Granted. At the time the complaint arose, one of the named Complainants (C) was a "light duty" Mail Processing Clerk who had medical restrictions due to a non-work related injury. C alleged that the Agency denied her reasonable accommodation forcing her to use leave or work in violation of her restrictions. The other named Complainant (W) was a "limited duty" Letter Carrier who had sustained a work-related injury. W alleged that the Agency sent her home rather than provide her work within her medical restrictions and ordered her to perform work in violation of those restrictions. Both of the claims were subsumed in another pending class action, and ultimately C and W were designated the class agents. An AJ ultimately granted class certification, and defined the class to include all limited and light duty employees in a specific district whose hours had been limited, including being sent home and told not to return to work, since June 12, 2007.

On appeal, the Commission affirmed the AJ's findings. The Commission initially noted that the record contained evidence showing that C had an impairment which substantially limited her ability to perform manual tasks, and that W was substantially limited in the major life activities of walking and standing. The Commission stated that was a sufficient showing by the class agents at the certification stage. With regard to the actual class certification, the Commission found that the class submitted evidence specifically identifying over 100 potential class members, and the record supported the AJ's determination that there were sufficient individuals to establish numerosity. Further, the evidence supported an inference that there existed a class of individuals who were harmed by the identified policy of refusing work to disabled employees and sending them home. Thus, the class shared common questions of fact. The Commission rejected the Agency's arguments concerning the differences in craft and workers' compensation status of C and W, stating that the issue concerned the underlying question was whether the Agency satisfied its obligations under the Rehabilitation Act concerning reasonably accommodating its employees. Thus, the complaint met the elements of commonality and typicality. Finally, the Agency did not dispute that the Class Counsel was able to adequately represent the interests of the class. The matter was remanded to the Agency for further processing. Cooper & West, et al. v. U.S. Postal Serv., EEOC Appeal No. 0720090043 (May 9, 2012).

Compensatory Damages

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

$150,000 in Non-pecuniary Damages Awarded for Retaliation. In a prior decision, the Commission found that the Agency retaliated against Complainant when it terminated her training, and ordered the Agency, among other things, to investigate Complainant's claim for damages. The Agency ultimately issued a decision awarding Complainant $35,000 in non-pecuniary compensatory damages. On appeal, the Commission found that award was insufficient. The affidavits and medical documents in the record showed that the discrimination caused Complainant to suffer severe emotional pain and mental anguish, including severe depression, vomiting, uncontrollable crying spells, difficulty concentrating, frequent panic attacks, fear for her safety, nightmares, and insomnia. In addition, Complainant experienced loss of enjoyment of life, withdrew from her relationships, and experienced significant injury to her professional standing and reputation, dramatic weight fluctuation, and worsening stomach problems. The record included an affidavit from Complainant's Counselor who treated Complainant for two years, as well as affidavits from Complainant's neighbor and brother. Given the persistent duration and severity of the emotional, physical, and professional harm Complainant suffered, the Commission found that she was entitled to an award of $150,000 in non-pecuniary damages. Coopwood v. Dep't of Transp., EEOC Appeal No. 0120083127 (May 2, 2012).

$125,000 Awarded for Sexual Harassment. The Commission affirmed the Administrative Judge's (AJ's) finding that the Agency subjected Complainant to hostile work environment sexual harassment for over 19 months, and that the record supported the AJ's award of $125,000 in non-pecuniary compensatory damages. Statements from Complainant, her Licensed Clinical Social Worker, her husband and a co-worker all showed that Complainant suffered severe emotional distress. Complainant stated that she was embarrassed, humiliated, and felt powerless. The Social Worker treated Complainant for acute stress, anxiety, depression, and post-traumatic stress disorder, and stated that Complainant experienced excessive crying, excessive sleeping, difficulty concentrating, feelings of fearfulness and helplessness, intrusive thoughts, guilt, hypervigilance, and paranoia. Complainant's husband stated that she lost interest in most things, became withdrawn, and did not socialize. Jackson v. Dep't of the Air Force, EEOC Appeal No. 0720110036 (March 13, 2012).

$100,000 Awarded for Disability Discrimination and Retaliation. The Agency initially found that Complainant was discriminated against on the basis of his disability and in retaliation for prior EEO activity when he was placed into a position he could not perform due to his health issues, not provided with an accommodation, and then issued a suspension, forced to take leave without pay, and terminated for his inability to perform the job. The Agency subsequently determined that Complainant was entitled to an award of $40,000 in non-pecuniary damages. On appeal, the Commission found that the award was insufficient. Complainant provided detailed testimony as to how the Agency's failure to accommodate him placed him in an impossible situation which caused extreme emotional distress. Complainant stated that the discrimination compromised his health such that he was on constant antibiotics, and subjected to increased medical evaluation to ensure he had not contracted infections. Complainant further stated that he was treated for anxiety and depression, lost his appetite, had ulcers and lost weight. He noted that he suffered from worsened insomnia, irritability, and repeated asthma attacks. Complainant stated that he was forced to borrow money from family and take an equity line of credit out on his house. Thus, his family relations were strained. Complainant's wife stated that the discrimination influenced their personal and marital life and placed intense financial hardships on the family. The Commission noted that in cases such as this, where the emotional distress is severe and lasted several years, a higher damage award was appropriate. The Commission considered the fact that Complainant suffered a job-related injury and car accident in the months prior to the discrimination noting that a Complainant is entitled to recover damages only for injury or additional injury caused by the discrimination. Nevertheless, the Commission found that an award of $100,000 was warranted given the evidence presented. Auston v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112574 (July 19, 2012).

$100,000 Awarded for Denial of Reasonable Accommodation. In a prior decision, the Commission found that the Agency discriminated against Complainant on the basis of his disability when it denied him reasonable accommodation. The Commission also found that the Agency did not demonstrate that it made a good faith effort to provide accommodation, and, therefore, ordered the Agency to investigate Complainant's claim for compensatory damages. The Agency ultimately determined that Complainant was entitled to an award of $100,000 in non-pecuniary compensatory damages. On appeal, the Commission found that the award was appropriate. It was clear from the record that Complainant suffered significantly due to his physical condition, and the Agency's actions contributed to the short-term aggravation of Complainant's back condition. The Commission stated, however, that much of the damages claimed were not shown to be proximately caused by the denial of accommodation. The previous decision found discrimination with regard to three acts that occurred within a specified time period. Therefore, the Commission rejected Complainant's argument that he was entitled to damages for events that occurred outside of that timeframe. Further, the medical evidence showed that Complainant's degenerative back condition was preexisting, exacerbated by his weight, and likely to worsen absent the discriminatory conduct. In addition, the Commission found insufficient evidence to show that Complainant's stroke was attributable to the failure to provide him with accommodation. With regard to Complainant's claim for pecuniary damages, the Commission found that the Agency properly awarded Complainant compensation for lost wages for the period in which he could have worked had the Agency granted his request to work at home. In addition, the Agency properly awarded costs Complainant incurred for certain medication expenses. The Commission found no evidence that the discrimination proximately caused Complainant's disability retirement. Medical evidence supported the conclusion that Complainant's degenerative condition would have worsened absent the discrimination. In addition, the Commission found that Complainant's claim for lost workers' compensation benefits constituted a collateral attack on the workers' compensation process because workers' compensation claims must be filed with the Department of Labor's Office of Workers' Compensation Programs and not the Agency or the Commission. The Commission noted that the purpose of compensatory damages under the Rehabilitation Act is to remedy the effects of discrimination, not to circumvent the workers' compensation process. Spence v. Nuclear Regulatory Comm'n, EEOC Appeal No. 0120093196 (September 13, 2012), request for reconsideration denied, EEOC Request No. 0520130050 (March 15, 2013).

$75,000 Awarded for Hostile Work Environment. The Commission previously affirmed the Agency's finding that Complainant was subjected to a hostile work environment on the basis of her sex. The Agency then issued a final decision awarding Complainant $25,000 in non-pecuniary compensatory damages. On appeal, the Commission found that the award was insufficient. The Commission noted that Complainant was subjected to hostile work environment harassment, consisting of unwelcome conduct of a sexual and non-sexual nature, for approximately one year. Complainant and various witnesses provided detailed testimony regarding how the harassment affected Complainant's life. Complainant found her workplace treatment to be "totally debilitating," and felt ashamed and humiliated. Complainant had an extreme fear of the harasser, and stated that she took actions at work to "avoid him at all costs." Complainant changed the way she presented herself, regularly cried on her way home, and became distant and fearful to the point that it created a strain on her personal relationships. Complainant further indicated that she continued to experience the residual effects of the harassment long after it ended, including being uncomfortable around male employees. Complainant's husband described the effect of the harassment on Complainant as "devastating," stating that it affected her relationship with her family. He noted that Complainant cried on a daily basis, became very depressed, stopped socializing, and had difficulty sleeping. Complainant's co-workers also testified as to the stress the harassment caused for Complainant. The Commission noted that, despite the lack of medical documentation, the record contained detailed testimony from Complainant and corroborating testimony from her husband and co-workers. In addition, Complainant continued to experience lingering symptoms after 2006. Thus, the Commission concluded that an award of $75,000 was an appropriate award of damages based upon the evidence Complainant presented. The Commission also granted Complainant's request for additional attorney's fees. Diaz v. Dep't of Justice, EEOC Appeal No. 0120101054 (July 18, 2012).

$50,000 Awarded for Retaliation. The Agency issued a final decision finding that it retaliated against Complainant when it rated him only "Fully Successful," and did not allow him to participate in an annual international collaborative meeting. In order to remedy the discrimination, the Agency, among other things, conducted a supplemental investigation with regard to Complainant's claim for damages and awarded him $3,500. On appeal, the Commission found that the award was inadequate. Complainant provided detailed statements regarding the effects of the retaliation on his life, stating that he sustained ongoing emotional distress on an almost daily basis. Complainant noted that the discrimination negatively impacted his interactions with two supervisors, his spiritual life, his family life and his professional relationships. The record contained a letter from Complainant's physician stating that Complainant reported that he was having problems at work and experienced chest pain, abdominal pain, and bloating. The physician believed that Complainant's stress ultimately caused these symptoms, as Complainant had no prior history of hypertension and previously had a normal electrocardiogram. A former supervisor stated that the discrimination caused Complainant to transform from a confident person to one who "felt doom and gloom hanging over him." The Commission concluded that an award of $50,000 was appropriate to compensate Complainant for his pain and suffering resulting from the retaliation. Welker v. Dep't of Agric., EEOC Appeal Nos. 0120120330 & 0120093426 (July 27, 2012).

$50,000 Awarded for Hostile Work Environment. In a prior decision, the Commission found that the Agency subjected Complainant to a discriminatory hostile work environment from December 2001 until August 2004. The Agency conducted a supplemental investigation with regard to Complainant's claim for pecuniary and non-pecuniary compensatory damages. On appeal, the Commission found that Complainant was entitled to past pecuniary damages for documented housing expenses he incurred from the time he was denied a transfer in August 2002 until the time he voluntarily retired in October 2007. The Commission noted that Complainant did not provide evidence to support his claim for reimbursement for utilities, other living expenses, the repair of his home, real estate taxes, insurance, or association fees. In addition, the Commission stated that Complainant did not establish an entitlement to payment for work-related expenses, or temporary duty allowance. Complainant was likewise not entitled to a cash award or pay differential as those claims were not raised in the underlying complaint. Finally, Complainant was not entitled to an award of future pecuniary damages for a possible Gold Medal Award or the potential loss of value to his home as those claims were speculative in nature.

With regard to Complainant's claim for non-pecuniary damages, the Commission found that an award of $50,000 was appropriate. Complainant submitted a personal statement in which he indicated that the harassment caused him severe emotional suffering including anger, frustration, loss of self esteem, embarrassment, anxiety, stress, decreased energy, and depression. Complainant also stated that he suffered a loss of enjoyment of life, separation from his family, headaches, upset stomach, and difficulty sleeping. Complainant's wife and brother submitted affidavits that supported Complainant's assertions. Complainant also submitted statements from his doctor regarding his diabetes. While the documentation did not indicate the cause of Complainant's diabetes, the doctor noted that stress could greatly affect glucose levels, and that Complainant had reported that he suffered stress due to being away from his family. Finally, a co-worker indicated that the discrimination made Complainant upset and embarrassed, and Complainant often talked about how much he missed his family due to the Agency's failure to relocate him. De Los Santos v. Envtl. Prot. Agency, EEOC Appeal No. 0120091233 (July 12, 2012).

$50,000 Awarded for Sex-Based Harassment. The Agency issued a final decision finding that Complainant was subjected to hostile work environment harassment because of her sex. The Agency noted that Complainant may be entitled to an award of compensatory damages provided she was able to establish a causal relationship between the discrimination and any losses. On appeal, the Commission stated that, despite the fact that Complainant failed to submit a formal claim for damages, she did provide significant statements indicating that the hostile work environment affected her health and caused her a great deal of stress, as well as headaches, and an upset stomach. She had trouble sleeping and concentrating, and experienced depression and anxiety. Complainant stated that the stress negatively affected her relationship with her husband and son. Complainant stated that she called in sick once or twice a month because she did not want to be at work due to the hostile environment. The Agency acknowledged that the work environment degraded Complainant's trust in her fellow employees. The record also showed that Complainant was off work for approximately three months due to the stress of the harassing events. The Agency did not specifically dispute any of the testimony pertaining to the pain and suffering Complainant experienced. Therefore, the Commission concluded that Complainant was entitled to an award of $50,000 in compensatory damages. Bradstreet v. Dep't of the Army, EEOC Appeal No. 0120112517 (June 27, 2012).

$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).

$30,000 Awarded for Harassment. Following a hearing, an AJ found that the Agency subjected Complainant to unlawful national origin and retaliatory harassment. The AJ awarded Complainant $10,000 in non-pecuniary compensatory damages. Complainant ultimately appealed the matter to the Commission, and the Commission concluded that Complainant was entitled to a compensatory damages award of $30,000. Complainant testified that the stress caused by the discrimination exacerbated his asthma, for which Complainant received medical attention. Additionally, the record showed that Complainant was diagnosed with hypertension and high blood pressure, which Complainant stated worsened as a result of the discrimination. Complainant also noted that he suffered harm to his career, status at the Agency, reputation, personal friendships, and relationship with his wife and family. The Commission was not persuaded by Complainant's arguments with respect to pecuniary damages. Specifically, there was no evidence to support Complainant's contention that he was forced into early retirement as a result of the harassment, and such a claim was not pending before the AJ at the time of the hearing. Morgan v. Dep't of Agric., EEOC Appeal No. 0120101559 (September 13, 2012).

$25,000 Awarded for Denial of Religious Accommodation. In a prior decision, the Commission found that the Agency failed to accommodate Complainant's religious beliefs. Following a supplemental investigation, the Agency awarded Complainant $5,000 in non-pecuniary compensatory damages. On appeal, the Commission raised the award to $25,000, because Complainant provided evidence that she suffered "a great deal of emotional stress" by not being allowed to participate in Sunday worship for a 13-month period. Complainant stated she spent "countless" hours being counseled by her pastor. In addition, the denial of Complainant's accommodation request resulted in her having to resign from several leadership positions she held within her church. Complainant claimed that the emotional stress exacerbated her pre-existing hypertension, causing her physician to prescribe additional medication for the condition. The Commission found that while the evidence did not show that the stress caused Complainant's hypertension, it more likely than not aggravated the condition. Complainant stated that the stress caused ongoing difficulties with sleeping and extreme fatigue, and resulted in significant and ongoing hair loss which affected her sense of self esteem. Complainant presented statements from her doctor, pastor and beautician in support of her claim. White v. Dep't of Def., EEOC Appeal No. 0120103295 (February 27, 2012).

$20,000 Awarded for Denial of Reasonable Accommodation. In a prior decision, the Commission found that the Agency denied Complainant reasonable accommodation in the form of an ergonomic chair and workstation, and ordered the Agency, among other things, to investigate Complainant's claim for damages. The Agency subsequently determined that Complainant was entitled to $2,500 in non-pecuniary damages. On appeal, the Commission found the Agency's award insufficient, and concluded that Complainant was entitled to an award of $20,000. While Complainant experienced back problems prior to the discrimination, the Commission found that the denial of a doctor-prescribed accommodation for a period of 18 months resulted in an aggravation of his condition. In addition, Complainant stated that he suffered from depression, sleeplessness, irritability, problems with concentration, and loss of self-esteem. The Commission also determined that Complainant was entitled to an award of $61 in pecuniary damages for prescription co-payments based upon supporting documentation. Rafalski v. U.S. Postal Serv., EEOC Appeal No. 0120093891 (March 15, 2012).

$15,000 Awarded for Retaliation. In a prior decision, the Commission found that Complainant's Supervisor retaliated against him when he sent an e-mail to senior officials which referenced Complainant's prior EEO complaint. The Agency conducted an investigation, and awarded Complainant $15,000 in non-pecuniary compensatory damages. On appeal, the Commission found that the award was proper. Complainant stated that in the days immediately following the retaliatory e-mail, he felt humiliated, ashamed and embarrassed and was unable to sleep. Affidavits from Complainant's wife and friends indicated that Complainant suffered "unbearable" emotional pain and anguish and loss of enjoyment of life. The Commission noted that, in this case, the intentional discrimination comprised one retaliatory e-mail and a response by another management official which led to uncertainty about Complainant's status as co-chair of an Advisory Council. Thus, for the days immediately following the retaliatory acts, Complainant suffered acute emotional pain and mental anguish, and slept little as he coped with the uncertainty surrounding his leadership status on the Council. While Complainant asserted that the harm persisted for many years, the Commission found it unlikely that any emotional or physical harm attributable to the retaliation extended beyond the date that Complainant learned he would remain as the co-chair of the Council. Complainant acknowledged that he had not been subjected to any subsequent discriminatory acts, and the Commission found little evidence to indicate that Complainant suffered additional attributable harm. There was no medical evidence showing that Complainant suffered any ailments as a direct result of the retaliatory act or suffered permanent or long-lasting harm. Chavez v. Dep't of Agric., EEOC Appeal No. 0120100118 (July 11, 2012).

$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).

$4,000 in Non-pecuniary Compensatory Damages Awarded. In a prior decision, the Commission found that the Agency discriminated against Complainant when it changed his days off and failed to forward his Family Medical Leave Act paperwork. The Agency conducted a supplemental investigation, and awarded Complainant $600 in non-pecuniary compensatory damages. On appeal, the Commission found that the Agency's award was insufficient and raised the amount to $4,000. A preponderance of the evidence showed that Complainant was made to feel unwelcome, got extremely upset and stressed, and experienced a flare up of his anxiety, hypertension, and intestinal problems from late October 2007 until January 2008 as a result of the discrimination. The record contained statements from Complainant and his wife, as well as medical documentation to support these assertions. The Commission noted, however, that Complainant did not show a causal connection after the specified period. Further, the acts of discrimination occurred over a short period of time and were not severe. The Commission concluded that an award of $4,000 for the symptoms Complainant experienced over approximately four weeks was consistent with Commission precedent. The Commission also found that Complainant was entitled to payment for some medical expenses, including doctors' visits, diagnostic procedures, and short term medications which to some extent were more likely than not connected to the flare ups resulting from the discrimination. Hudson v. U.S. Postal Serv., EEOC Appeal No. 0120120891 (May 9, 2012).

$1,500 Awarded for Discriminatory Retaliation. In a previous decision, the Commission found that the Agency retaliated against Complainant when his supervisor interfered with his EEO activity. Following an investigation regarding Complainant's claim for compensatory damages, the Agency issued a final decision finding that no award of damages was warranted because there was no evidence that its reprisal had caused Complainant mental or emotional harm.  On appeal, the Commission noted that Complainant stated in an affidavit that the supervisor's conduct was humiliating, threatening, abusive, stressful and demeaning, and that it caused him anxiety, emotional distress and physical pain.  Beyond the affidavit, however, Complainant did not provide other evidence in support of his damages claim.  Although Complainant provided documentation for neck, shoulder and back injuries, those injuries predated the Agency's reprisal. Moreover, there was no evidence that the reprisal exacerbated or aggravated those injuries.   After considering the nature of the unlawful acts, and the severity and extent of the demonstrated harm, the Commission awarded Complainant $1,500 in non-pecuniary damages. Minor v. U.S. Postal Serv., EEOC Appeal No. 0120103711 (May 17, 2012).

Dismissals

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

Dismissal Improper in Part. Complainant was placed at the Agency through a private contractor. On January 20, 2012, she filed a formal complaint alleging that the Agency discriminated against her when it terminated her from her position in August 2011, and when it interfered with an employment offer she received from another private company. The Agency dismissed the first claim for failure to timely contact an EEO Counselor, stating that Complainant initiated EEO counseling in September 2011, but withdrew from the process. Thus, when she contacted another Counselor in November 2011, she was not timely. In addition, the Agency dismissed both claims for failure to state a claim reasoning that Complainant was not an Agency employee. On appeal, the Commission noted that in an e-mail to the first EEO Counselor, Complainant indicated that when she discussed withdrawing her complaint, the Counselor told her she could always refile it. There was nothing in the record disputing Complainant's assertion, and the Commission found that such advice would have likely misled Complainant into believing that she could rescind her withdrawal. Thus, the Commission concluded that equities weighed in favor of waiving Complainant's withdrawal because of the misleading advice of the first EEO Counselor. The Commission further determined that the weight of the evidence showed that the Agency exercised sufficient control over Complainant's position to qualify as a joint employer for purposes of the EEO complaint process. The Agency controlled the means and manner of Complainant's work, and provided her with training and direction. Complainant worked on Agency premises, used Agency equipment, served in a continuing relationship, and submitted weekly time sheets. Thus, the Agency improperly dismissed the claim concerning Complainant's termination. The Commission found, however, that the matter of the other employment offer failed to state a claim as Complainant's assertion was speculative and did not allege that any specific information was given by the Agency. DiDonato v. Dep't of the Navy, EEOC Appeal No. 0120121705 (August 6, 2012).

Dismissal Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it would not allow him to drive a government-owned vehicle to perform work, and asked him to provide a note from his psychiatrist releasing him to drive. The Agency dismissed the complaint for failure to timely contact an EEO Counselor and as being moot. On appeal, the Commission initially noted that since the alleged discriminatory event occurred on July 14, 2011, Complainant's contact with the EEO Counselor on August 26, 2011 was timely. While the Agency asserted that Complainant did not then follow through and make a counseling appointment until October, the Commission stated that its regulations only require that an aggrieved individual "initiate contact" within the 45-day period. Complainant asserted that he told the EEO Manager in August that he wanted to go forward with EEO counseling. Thus, his complaint was timely raised. The Commission further found that the matter at issue in the complaint was not moot. Although the Agency stated that Complainant's driving privileges were restored in January 2012, Complainant sought restoration of the leave he used as a result of the Agency's actions. Thus, there was other relief to which Complainant could have been entitled. Woodruff v. Dep't of the Interior, EEOC Appeal No. 0120121584 (July 25, 2012).

Complaint Improperly Dismissed. Complainant contacted an EEO Counselor on October 17, 2011, and subsequently filed a formal complaint alleging, among other things, that the Agency discriminated against him on the basis of his disability. The Agency defined the claims as separate incidents relating to his medical condition and accommodation, and his separation from employment, and dismissed the matters on various grounds. On appeal, the Commission found that the Agency's dismissal was improper. The Commission initially stated that the Agency treated the complaint in a piecemeal fashion. Based on a fair reading of the formal complaint, the Commission found that Complainant was, in essence, raising a single claim of ongoing denial of reasonable accommodation which culminated in his termination due to his disability. Thus, since the Agency had an ongoing obligation to provide a reasonable accommodation, the failure to provide such an accommodation constituted a violation each time Complainant needed it, and his EEO Counselor contact was timely. In addition, Complainant retired only after receiving a Notice of Decision on Separation for Medical Inability, and was, therefore, raising a viable claim of discriminatory constructive discharge. Finally, while Complainant initially filed an appeal with the Merit Systems Protection Board (MSPB) which he withdrew, Complainant alleged that the Agency did not properly advise him regarding his election rights. The Commission noted that the Agency's termination letter stated only that Complainant could appeal his termination to the MSPB without mentioning the EEO complaint process, leading Complainant to the reasonable conclusion that his only redress was through a direct appeal to the MSPB. Thus, the Commission could not conclude that Complainant knowingly made an informed waiver of his EEO rights. Torquemada v. Dep't of Commerce, EEOC Appeal No. 0120121604 (July 11, 2012).

Dismissal Was Improper. Complainant contacted an EEO Counselor on March 8, 2011, and subsequently filed a formal complaint alleging that two Supervisors subjected him to ongoing discriminatory harassment. Complainant cited several specific incidents, including a February 15, 2011 mid-year performance counseling, in support of his claim. He also stated that, after he testified as a witness in a co-worker's EEO complaint, he was subjected to additional retaliatory harassment. The Agency defined Complainant's complaint as including six specific incidents, and dismissed two allegations for failure to state a claim, one allegation as being moot, and four allegations for untimely EEO Counselor contact. On appeal, the Commission stated that the Agency improperly split Complainant's claim of harassment into separate events and treated them in a piecemeal manner. The Commission then found that, in viewing the events as a single claim of harassment, Complainant contacted the EEO Counselor well within 45 days of the most recent event. In addition, while the record showed that the performance counseling document had been removed from Complainant's records, the Commission stated that the counseling was part of the larger claim of harassment. Finally, the Commission found that, when all of the incidents were viewed in the context of Complainant's complaint of harassment, they stated a viable claim. The Commission noted that this was particularly true in the context of Complainant's retaliation claim. Thus, the entire complaint was remanded to the Agency for further processing. Penarendondo v. Dep't of the Army, EEOC Appeal No. 0120120037 (March 8, 2012).

Complaint Improperly Dismissed for Failure to Cooperate. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to harassment. Complainant listed a number of incidents in support of her claim. The Agency initially accepted the complaint for investigation, and the Investigator requested that Complainant complete an affidavit. Complainant returned the unsigned affidavit with a note indicating that "incorrect information was sent" and stating that she was still in the hospital. The Agency then dismissed the complaint for failure to cooperate. On appeal, the Commission found that the Agency's dismissal was improper. The Commission noted that Complainant replied to the Investigator's request, indicating that she was hospitalized, and provided a telephone number where she could be reached. Thus, the Commission found insufficient evidence to support the conclusion that Complainant intentionally engaged in delay or contumacious conduct. Further, Complainant provided extensive information in her pre-complaint counseling form and formal complaint, and the Investigator obtained affidavits from five witnesses, including four management officials. Thus, the matter was remanded to the Agency for further processing. Jarrett v. U.S. Postal Serv., EEOC Appeal No. 0120120348 (March 16, 2012).

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).

Dismissal for Filing a Grievance Was Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it terminated her from her position. The Agency dismissed the complaint stating that Complainant filed a grievance on the same matter prior to filing her formal complaint. Complainant denied filing a grievance concerning her termination. Complainant indicated that she wrote to the Human Resources Manager and had a brief meeting concerning her termination, but stated that the meeting was not part of the negotiated grievance process and no union representative was present. The Commission noted that the record did not contain a copy of any grievance filed by Complainant concerning her termination. Further, the Agency did not provide a copy of the collective bargaining agreement to support its assertion that it provided for claims of discrimination. Thus, the Commission concluded that Complainant's formal complaint was improperly dismissed. Arias v. Dep't of the Navy, EEOC Appeal No. 0120121225 (May 25, 2012).

Dismissal for Filing Grievance Improper. Complainant filed a formal EEO complaint on December 2, 2011, alleging that the Agency discriminated against him on the basis of his age when it failed to select him for a position. The Agency dismissed the complaint on the grounds that Complainant previously elected to raise the claim in the negotiated grievance process. On appeal, the Commission found that the dismissal was improper. Complainant stated that the grievance was dismissed as untimely prior to the time he filed his EEO complaint. The Commission noted that it has previously held that a grievance must be timely in order to preclude subsequent initiation of an EEO complaint. Thus, Complainant was not precluded from filing an EEO complaint with regard to his non-selection. Lee v. Small Bus. Admin., EEOC Appeal No. 0120121147 (May 10, 2012); see also Williams v. Small Bus. Admin., EEOC Appeal No. 0120121148 (May 11, 2012) (prior grievance regarding Complainant's non-selection which was dismissed as untimely did not preclude Complainant from filing an EEO complaint on that matter).

Complaint Improperly Dismissed for Filing a Grievance. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race, national origin and color when it did not select him for a Maintenance Worker position. The Agency dismissed the complaint on the grounds that the union had filed a grievance with regard to the selection for that position. On appeal, the Commission found that the Agency failed to conclusively prove that Complainant elected to pursue the grievance process. According to the record, the union filed a grievance on behalf of 10 employees who were not selected for the position in question, including Complainant. The Commission stated, however, that there was no evidence that Complainant participated in the grievance or authorized the union to act on his behalf. Robbins v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112612 (January 13, 2012); see also Cate v. Dep't of the Army, EEOC Appeal No. 0120110083 (November 21, 2011) (the Agency failed to prove that Complainant elected to pursue the matter through the grievance process prior to filing his EEO complaint where the union filed a grievance on behalf of all "Repromotion Eligible Employees" challenging two Electronic Mechanic selections, but there was no evidence that Complainant elected to file a grievance on this matter. The union's grievance was not filed on Complainant's individual behalf, and his name did not appear in the grievance).

Issue Improperly Dismissed for Filing a Grievance. Complainant filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him when it issued him a letter of reprimand regarding a safety issue. The Agency dismissed the matter, stating that Complainant had previously raised the claim in a negotiated grievance procedure. On appeal, the Commission found that the dismissal was improper. Complainant stated that the union filed a grievance without his knowledge. Further, there was no evidence in the record that Complainant was involved in filing the grievance. The Commission noted that an agency cannot deny a complainant his statutory and regulatory right to file an EEO complaint because the union exercised its right to file its own grievance pursuant to the terms of a Collective Bargaining Agreement. Thus, the matter was remanded to the Agency for further processing. The Commission affirmed the Agency's dismissal of an allegation concerning the posting of Complainant's EEO contact information, finding that the matter stated the same claim as that raised in a prior complaint. Callahan v. Dep't of the Interior, EEOC Appeal No. 0120110309 (January 5, 2012).

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).

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

Direct Evidence of Age Discrimination Found. Complainant, an applicant for reappointment, 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 of Medical Support Assistant. The Agency issued a final decision finding no discrimination. On appeal, the Commission found that Complainant provided direct evidence of age-based discrimination. Specifically, the record reflected that Complainant's Colleague contacted the Recommending Official (RO) to ask that she consider Complainant for the position in question. According to the Colleague, the RO indicated that Complainant was "too old" and that he should enjoy his retirement. The Commission stated that the Agency failed to recognize that Complainant had provided direct evidence of age-based discrimination. The Commission noted that the RO denied having the conversation with the Colleague, but the RO failed to expand on the answers she gave to the Investigator and the Investigator did not press the RO on the issue. Thus, the Commission found that Complainant provided direct evidence of age-based discrimination. Nevertheless, the Commission concluded that the Agency showed by clear and convincing evidence that it would have taken the same action absent the discrimination. Specifically, all management officials stated that, based on an agreement with the union, the Agency provided first consideration for positions to internal candidates such as the Selectee. Thus, the Commission found that the Agency limited its liability. The Agency was ordered, among other things, to provide EEO training to the responsible management officials. Arroyo v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121771 (July 11, 2012), request for reconsideration denied EEOC Request No. 0520120563 (January 25, 2013).

Under the Rehabilitation Act

Improper Disclosure of Medical Records. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her disability and prior EEO activity when she learned that the former Postmaster had her medical files at his home. On appeal, the Commission found that although the Postmaster's initial reasons for reviewing Complainant's personnel file, that is to provide work within her restrictions and respond to workers' compensation and EEO claims, were legitimate, he failed to treat the documents as a confidential medical record. The Postmaster left Complainant's facility more than five years before the documents were found at his home. The Commission stated that a fair reading of the record reflected that the documents were not securely stored, but instead were kept in a closet in the Postmaster's home where they were accessible to other family members. Thus, the Commission concluded that the Postmaster's actions violated the Rehabilitation Act. 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 confidential medical information. Grey v. U.S. Postal Serv., EEOC Appeal No. 0120121846 (September 10, 2012).

Improper Disclosure of Medical Records Found. Complainant previously worked for the Agency as a Customer Services Representative, but resigned after advising his Supervisor that he could not handle the detailed nature of the position due to his hearing impairment, tinnitus, learning disability and Attention Deficit Hyperactivity Disorder (ADHD). Several months later, he applied for a Forest Technician position and was selected. However, he only worked three days before separating from the Agency again, this time due to a dispute regarding whether he met the requirements for the position. After his separation, Complainant learned that his position classification had been "reduced." Complainant applied for a number of other positions within the Agency, but was not successful. In an effort to determine why he had not been selected, he retained Global Verification Services (Global) to contact his references. Global reported that when it contacted his former Customer Services Representative Supervisor, the Supervisor disclosed that Complainant had resigned, in part, due to his ADHD.

Complainant filed an EEO complaint alleging that the Agency made an unauthorized medical disclosure. After holding a hearing on the matter, the AJ concluded that, although Complainant's supervisor had disclosed his medical information while providing a reference, it was not a violation of the Rehabilitation Act. The AJ cited authority indicating that voluntarily disclosed medical documentation is not confidential, unless disclosed in an employee health program or medical examination. On appeal, the Commission concluded that the AJ erred as a matter of law. Citing EEOC guidance and relevant case law, the Commission noted that it has long recognized that an employer's confidentiality obligation extends to all medical information disclosed by an employee including information voluntarily disclosed. The Commission remanded the issues of compensatory damages and attorney's fees. Humphries v. Dep't of Agric., EEOC Appeal No. 0120083870 (June 12, 2012).

Denial of Reasonable Accommodation Found. Complainant, who was legally blind in her left eye, filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her when it delayed providing her with reasonable accommodation. Complainant's work required her to review applications for passports. As an accommodation, she was previously provided with a larger computer monitor. In January 2010, Complainant contacted Human Resources stating that she needed a large key/print keyboard. In April 2010, Complainant again contacted Human Resources about the keyboard. In June, Complainant was informed that the keyboard was out of stock and would not be available until July. According to the record, Complainant had discussions with two Supervisors about the keyboard. Complainant tried to use a different keyboard but the contrast was too strong. One of the Supervisors finally ordered the keyboard and it was installed in April 2011.

The Agency conceded that Complainant was an individual with a disability. Further, it was uncontested that Complainant could perform the essential functions of her position. While the Agency found that Complainant received an alternate accommodation of not being required to work at a public counter, the Commission noted that Complainant still needed the keyboard at her desk. In addition, Complainant worked at the public counter without the accommodation on two occasions. The Commission noted that an employer should respond expeditiously to a request for accommodation, and should engage in the interactive process as quickly as possible. Thus, the Commission found that the alternate accommodation was not effective and that the Agency violated the Rehabilitation Act by engaging in undue delay in providing the requested keyboard. The Agency was ordered, among other things, to ensure that it has a system in place to track the processing of reasonable accommodation requests, and pay Complainant proven compensatory damages. Guerrero-Smith v. Dep't of State, EEOC Appeal No. 0120121698 (August 31, 2012).

Denial of Reasonable Accommodation Found. Complainant, a Carrier Technician, worked for approximately two years in a limited duty assignment at the Main Post Office. In March 2007, Complainant was told that she was needed at her regular facility but could continue to report to the Main Post Office on alternating days. Complainant stated that she had little work to do at her regular facility and was given minimal and demeaning assignments or no assignments at all. Complainant subsequently had surgery and returned to work wearing an open-toed boot. Complainant's first level supervisor informed her that she could not work wearing the boot. Complainant then filed a formal EEO complaint alleging, among other things, that the Agency denied her reasonable accommodation. At Complainant's request, the Agency issued a final decision finding no discrimination.

The Agency conceded that Complainant had a substantial walking restriction, had a record of an impairment, and was regarded as having an impairment. The Agency also found that Complainant was an individual with a disability. Further, the Commission determined that Complainant was qualified for her modified assignment based upon the Manager of Customer Service's statement. The Commission stated that the Agency admitted that it denied Complainant the opportunity to work wearing the open-toed boot because of the perceived inability to safely perform the functions of her position. Nevertheless, the Agency failed to demonstrate that the boot posed a direct threat to Complainant or others. The Agency did not provide any evidence regarding the nature and severity of the potential harm, the likelihood that the harm would occur, the imminence of the potential harm, or its duration. The Commission also stated that the Agency failed to individually assess Complainant's situation in the workplace itself to determine what harm, if any, Complainant would have been subjected to if she wore the boot. The Agency merely applied a blanket policy that did not allow for an individualized determination as to whether a further accommodation would have eliminated the risk of harm or reduce it to an acceptable level. Thus, the Commission found that the Agency violated the Rehabilitation Act. The Agency was ordered, among other things, to provide Complainant with reasonable accommodation, restore any leave used due to the Agency's failure to provide Complainant with accommodation, and provide Complainant with appropriate back pay and benefits. Egresi v. U.S. Postal Serv., EEOC Appeal No. 0120081555 (August 16, 2012).

Denial of Reasonable Accommodation Found. In October 2005, Complainant requested reasonable accommodation for his heart condition in the form of telework. Complainant's supervisor asked him to provide medical documentation which Complainant forwarded to the Agency's Medical Officer. Complainant was subsequently assigned a new first-level Supervisor (S1). The Disability Program Manager ultimately notified S1 and the prior supervisor that Complainant was a qualified individual with a disability, and reiterated that Complainant had requested telework as an accommodation. S1 never approached Complainant with regard to the matter and no management official notified Complainant of the status of his request. Complainant subsequently filed a formal EEO complaint alleging, among other things, that the Agency denied him reasonable accommodation. The Agency did not dispute that Complainant was a qualified individual with a disability. The Commission stated that when Complainant made his request to the previous supervisor, he put the Agency on notice of his need for reasonable accommodation. In addition, the Manager notified S1 of Complainant's request and instructed him to engage Complainant. Having been placed on notice, the Agency was required, as part of the interactive process, to discuss with Complainant his accommodation request. As of May 2006, Complainant had not been provided with any form of accommodation. Thus, the Commission concluded that the Agency violated the Rehabilitation Act. The Agency was ordered, among other things, to provide Complainant with reasonable accommodation, restore any leave used due to the failure to provide him with accommodation, and conduct a supplemental investigation with regard to Complainant's claim for damages. Jones v. Dep't of Agric., EEOC Appeal No. 0120080833 (July 18, 2012).

Disability Discrimination Found with Regard to Job Offer. Complainant applied for the position of Electrician (Student Trainee), and received a conditional offer of employment. He was advised that his employment was conditional upon successfully passing a pre-employment physical. During the physical, Complainant's hearing was tested twice and the results reviewed by an Agency Audiologist. Complainant had a high-frequency hearing loss, and the Audiologist determined that he did not meet the requirements for the position. The Agency restricted Complainant from working in industrial environments. Complainant's hearing was subsequently tested by two private Audiologists, with similar results. The Agency's Occupational Health Physician (OHP) medically cleared Complainant, included work area restrictions, and indicated that Complainant should use hearing aids. Nevertheless, the Agency rescinded the job offer. Following the investigation, the AJ issued a decision in the matter without a hearing finding that the Agency discriminated against Complainant as alleged.

On appeal, the Commission concluded that a decision without a hearing was appropriate because there were no genuine issues of material fact. The Commission found that the Agency regarded Complainant as an individual with a disability who was substantially limited in the major life activity of working. Specifically, even viewing the facts in the light most favorable to the Agency, the record showed that the Agency perceived Complainant to be substantially limited in performing any job in an industrial environment. The Agency Audiologist stated that the results of Complainant's hearing tests indicated that he could not perform shipboard work, dry dock work or "roaming" work. Further, the Commission found that Complainant was qualified for the Electrician apprentice position, and the only bar to his employment was the Agency's perception that he was medically unsuitable because of his need to use hearing aids.

The Commission found that the Agency failed to establish that Complainant posed a direct threat to himself or others. The record clearly showed that the Agency was motivated by concern based upon a fear of a future risk of injury. The record did not show, however, that the Agency conducted an individualized assessment to determine what harm, if any, Complainant would have been subjected to if he had used his hearing aids in the specific work environment. The record only contained the Agency Audiologist's opinion in general terms that individuals could be harmed if they used hearing aids in an industrial environment. In addition, while it was clear from the record that hearing protection was required to work in the location where the job was located, the Agency did not assess what types of hearing protection, if any, would have been available to Complainant. Thus, the Commission found that the Agency discriminated against Complainant when it rescinded the job offer. The Agency was ordered, among other things, to offer Complainant the position with appropriate back pay and benefits, and pay him $85,000 in proven non-pecuniary compensatory damages. Ward v. Dep't of the Navy, EEOC Appeal No. 0720070029 (April 26, 2012), request for reconsideration denied, EEOC Request No. 0520120430 (July 20, 2012).

Denial of Reasonable Accommodation Found. Complainant, an Administrative Assistant, was diagnosed with various conditions, and in 2004 requested to be allowed to report to work after the beginning of her office's core hours. Her request was denied, but her Supervisor at the time allowed her to earn compensatory time on weekday evenings and use the time the following morning. Based on this arrangement, Complainant was permitted to report to work at 10:00 each day. In 2008, Complainant was assigned a new supervisor who required that she report to work earlier. Complainant completed a request for reasonable accommodation asking for flexibility in her scheduled arrival time, but the new Supervisor noted that flexibility already existed and Complainant could have arrived between the hours of 6:30 a.m. and 9:30 a.m. Complainant submitted additional medical documents, but her request for accommodation was denied. Complainant then filed a formal EEO complaint alleging, among other things, that the Agency denied her reasonable accommodation.

On appeal, the Commission found that Complainant was an individual with a disability under the pre-ADA Amendments Act framework, noting that she was born with a missing right hand and that such a congenital condition constituted a "targeted" disability in the federal government. The Commission noted that Complainant, due to her medical conditions, required flexibility to allow her to begin her work day at 10:00 a.m. The Commission stated that requiring Complainant to arrive at work by 9:30 a.m. was not an accommodation as the Agency had asserted. The Commission rejected the Agency's assertions that the flexible schedule presented a risk of harm to Complainant because she would be in the building alone after 6:00 p.m., and that providing Complainant with a work schedule beginning at 10:00 a.m. would have been an undue hardship. The Commission noted that Complainant had been arriving at work at 10:00 a.m. for approximately four years without incident. Thus, the Commission concluded that the Agency failed to provide Complainant with a reasonable accommodation in violation of the Rehabilitation Act. The Agency was ordered, among other things, to provide Complainant with a reasonable accommodation in the form of a flexible work schedule, restore any leave used by Complainant due to the failure to provide her with a reasonable accommodation, and investigate Complainant's claim for damages. Lamb v. Soc. Sec. Admin., EEOC Appeal No. 0120103232 (March 21, 2012), request for reconsideration denied, EEOC Request No. 0520120399 (October 10, 2012).

Denial of Reasonable Accommodation Found. Complainant, a Benefits Authorizer, used a space heater at her work station for many years to help alleviate symptoms and complications of Crohn's disease. After the Agency issued a memorandum limiting employees' use of space heaters, Complainant submitted a written request for authorization to use a heater. The Agency authorized Complainant to use a heater based upon documentation in her personnel file, however, her old space heater was not approved by Underwriters Laboratories (UL). The Agency instructed Complainant to purchase a new heater and removed her old heater from her workstation. Complainant then began bringing in blankets to work and wearing coats and gloves to try to cope with her symptoms. Subsequently, Complainant formally requested that the Agency buy her a space heater to help ease her symptoms. The Agency denied her request, relying on a workplace policy that held employees responsible for purchasing heaters once the Agency authorized their use. Complainant filed a formal EEO complaint alleging, among other things, that the Agency denied her reasonable accommodation. Following an administrative hearing, an AJ found that the Agency denied Complainant a reasonable accommodation when it refused to provide her with a space heater.

On appeal, the Commission found substantial evidence to support the AJ's finding that Complainant's Crohn's disease resulted in a physical impairment that substantially limited one or more major life activities. Complainant testified that her condition was chronic, recurring, severe, and frequent. The condition caused various symptoms that made it painful and uncomfortable to perform an essential function of her job when it was cold. In addition, the condition caused severe abdominal and joint pain, inflammation, anemia, and frequent elimination of waste. Thus, the testimony supported the AJ's finding that Complainant was substantially limited in one or more major life activities, such as food digestion and waste elimination. In weighing this evidence, the Commission rejected the Agency's argument that Complainant's hearing testimony did not constitute substantial evidence, and that only contemporaneous medical documentation and physician testimony would suffice to support a conclusion of discrimination on the basis of disability.

The Commission then concluded that the AJ's finding that the Agency failed to reasonably accommodate Complainant's disability was supported by substantial evidence. The Commission stated that the accommodation of a space heater was reasonable because it removed a workplace barrier, that is, the cold work environment, when the job could be effectively performed with more radiant heat. Further, the accommodation was effective because it addressed Complainant's severe physical pain and inflammation and enabled her to perform her job. The Commission noted that rather than request reasonable medical documentation from Complainant or ask her questions about her limitations in order to identify an effective accommodation, Complainant's Supervisors merely denied her request for a heater. The Commission noted that employers are not categorically prohibited from providing personal-use items as reasonable accommodations. Items that might otherwise be considered personal use may be required as reasonable accommodations where they are specifically designed or required to meet job-related rather than personal needs. In this case, the record did not show that Complainant intended to use the heater as a personal-use item off the job. The Agency was ordered, among other things, to provide Complainant with a space heater, and pay attorney's fees and costs. Hunter v. Soc. Sec. Admin., EEOC Appeal No. 0720070053 (February 16, 2012).

Denial of Reasonable Accommodation Found. Complainant, a Recreation Assistant, filed a formal EEO complaint alleging discrimination on the basis of disability (hearing impairment) when in February 2009 she was denied reasonable accommodation (an interpreter) for mandatory CPR training. Complainant stated that her Supervisor (S1) did not know how to obtain an interpreter, and did not provide one for her. The Agency found that Complainant failed to prove she was denied a reasonable accommodation because the training session was scheduled at the last minute and even though the Agency could not obtain an interpreter in time, Complainant agreed to attend, and successfully completed the training. On appeal, the Commission concluded that the Agency was on notice that Complainant needed to take the mandatory CPR training class in February 2009 and that it needed to obtain an interpreter. Complainant indicated that she asked S1 for an interpreter at the time she learned of the training, and reminded S1 two months prior to the training that it generally took two weeks to reserve an interpreter. The Commission was not persuaded by the Agency's assertion that an interpreter could not be arranged because the CPR training class in question was scheduled at the last minute. According to the record, S1 and another Supervisor were aware that Complainant's CPR certification was near expiration, and Complainant attended the same annual training class the previous year, at which time she was also not provided with an interpreter. The Commission stated that the Agency was obligated to provide Complainant with an interpreter, and no evidence in the record supported that providing an interpreter would have been unduly costly, extensive, substantial or disruptive or that it would have fundamentally altered the nature of the Agency's operation. Thus, the Commission found that the Agency discriminated against Complainant when it failed to provide her with a reasonable accommodation for the mandatory CPR training class. The Agency was ordered, among other things, to provide Complainant with an interpreter for all future mandatory training, and investigate her claim for compensatory damages, as well as provide training to the responsible officials regarding their obligations in providing reasonable accommodation under the Rehabilitation Act. Krewsky v. Dep't of Navy, EEOC Appeal No. 0120102511 (January 12, 2012).

Denial of Reasonable Accommodation Found. Complainant, an Air Conditioning Equipment Mechanic, WG-10, sustained an injury on the job when he was exposed to unsafe levels of bacteria. As a result, he was diagnosed with asthma which caused difficulty breathing when he was exposed to certain substances. Complainant submitted requests for reasonable accommodation in 2005 and 2006. Specifically, Complainant requested that the Agency reduce the amount of time he worked on air handlers. A Reasonable Accommodation Review Committee (RARC) concluded that Complainant would not be able to work in his current position, and recommended that Complainant be moved to another assignment. In March 2006, the Agency's Engineering Service staff meeting agenda listed 10 vacant positions, including an Electronics Mechanic and Vehicle Operator position. In May 2006, the Agency began a search for vacant positions for Complainant, and ultimately assigned him to a GS-6 level clerical position with rotating shifts. The Department of Labor deemed this position unsuitable for Complainant. Complainant then applied for an Electronic Mechanic position, but was not referred to the Selecting Official. Complainant filed two formal EEO complaints alleging, among other things, that the Agency discriminated against him when it denied him reasonable accommodation. Following an investigation, an AJ issued a decision without a hearing finding no discrimination.

On appeal, the Commission initially found that the AJ's issuance of a decision without a hearing was appropriate because there were no genuine issues of material fact. The Commission concluded, however, that Complainant was denied reasonable accommodation. According to the record, the RARC determined that Complainant was an individual with a disability, and was substantially limited in the major life activity of breathing. The Commission noted that the Agency did not consider Complainant to be a qualified individual with a disability with respect to his Air Conditioning Equipment Mechanic position. The Commission stated, however, that the Agency must look beyond the position which the employee presently encumbered when determining whether the employee was "qualified." The record reflected that Complainant asked to be assigned to an available position in the Engineering Department, where at least nine positions were available. The Agency did not dispute that Complainant could perform the essential functions of the Motor Vehicle Operator position, and there was no evidence that the position would have affected Complainant's medical condition. Therefore, Complainant was a qualified individual with a disability. While the Agency stated that the Motor Vehicle Operator position was filled in April 2006, the RARC recommended that management perform a search for vacant positions for Complainant in March 2006, more than one month prior to the time the position was filled. Thus, Complainant showed that there was a vacant position for which he was qualified at the time he sought accommodation, and the Agency should have assigned him to that position. The Commission noted that the GS-6 level clerical position was not equivalent to Complainant's prior position in terms of pay, status, or related factors. Thus, the Commission concluded that the Agency failed to make a good faith effort to accommodate Complainant. The Agency was ordered, among other things, to offer Complainant a Vehicle Operator position or substantially equivalent position in the Engineering Department, pay Complainant appropriate back pay and benefits, and conduct a supplemental investigation with regard to Complainant's claim for damages. Petted v. Dep't of Veterans Affairs, EEOC Appeal No. 0120090266 (December 14, 2011), request for reconsideration denied, EEOC Request No. 0520120240 (December 7, 2012).

Under Title VII

Racial Harassment Found. The Commission reversed the Agency's final decision and found that Complainant, a Supervisory Park Ranger, was subjected to a hostile work environment based on her race (African-American) when the Agency failed to take prompt and appropriate action after learning that Complainant's subordinate employees had: posted racially derogatory personal attacks about her in the men's locker room, including a reference to "Ebonics"; left an "Ethnic Expression" catalogue underneath her office door; placed a blank "warning notice" of the type issued by the Agency in her office mailbox; engaged in a confrontation with Complainant; and left a notice about the Agency's policy on hair color in her mailbox. The Commission further found that the Agency's decision to revoke Complainant's law enforcement commission was related to the racial harassment to which Complainant had been subjected. Regarding the Agency's liability, the Commission noted that the employees responsible for posting the derogatory material confessed to their actions during the Agency's investigation of the matter. Although the Agency proposed to suspend the employees responsible for the locker room postings, it did not do so. Instead, one of them received a verbal counseling because of his actions and the other left the Agency shortly thereafter having not been disciplined at all. The Commission concluded that the Agency's response to the harassment was inadequate. It found that, once the responsible individuals confessed to their behavior with regard to the racially charged locker room postings, the Agency should have taken prompt corrective action, such as disciplining them and providing them with anti-harassment training. The Commission stated that, because the discriminatory posting was in a space frequented by other employees, the Agency should have promptly provided all employees in the office with anti-harassment training and guidance in order to prevent others from engaging in such actions. The Agency's inadequate response to the initial racist message emboldened other employees to likewise show disrespect to and intimidate Complainant. This conveyed the message that employees could harass Complainant with impunity, which they did.

The Commission rejected the Agency's reliance on Complainant's distressed behavior and leave use as justification for suspending her law enforcement commission. Instead, the Commission concluded that Complainant's behavior was a reasonable and foreseeable reaction to the racial harassment and the Agency's inadequate response. The Commission ultimately held that the Agency must remedy all consequences of its failure to properly respond to the harassment, including the suspension of Complainant's commission. The Agency was ordered, among other things, to pay Complainant compensatory damages and attorney's fees and costs; to remove any reference to revocation of Complainant's law enforcement commission from her record; and to provide EEO training for responsible management officials and all employees at Complainant's facility. Bryant v. Dep't of the Interior, EEOC Appeal No. 0120091468 (August 31, 2012).

Sex-Based Harassment Found. Complainant filed a formal EEO complaint alleging, among other things, discrimination on the basis of sex when she was continuously subjected to a hostile work environment by her Supervisor beginning in July 2008. Following an investigation, Complainant requested an administrative hearing. Complainant testified that her Supervisor was overly friendly, shared too much information about his life, and stared at her inappropriately. Complainant asserted that he would routinely come into her office and stare at her chest and crotch. She also asserted that the Supervisor made various remarks to the effect that she was attractive and needed to find a man. Testimony from other individuals, both male and female, corroborated Complainant's assertion that the Supervisor generally stared at women's chests in the office. An AJ concluded that the Agency was not liable because the conduct in question was not sufficiently severe to constitute a hostile work environment.

On appeal, the Commission reversed the AJ's finding regarding sex-based harassment, concluding that the conduct in question was severe enough to constitute a hostile work environment. The Commission noted that the record showed that Complainant was subjected to unwelcome verbal and physical conduct based on her sex, and that the Supervisor's conduct became "progressively worse" such that it interfered with Complainant's ability to do her job. Thus, from a reasonable person's point of view, the conduct had the purpose or effect of unreasonably interfering with Complainant's work environment. The Commission also found that, while the Agency did quickly commence an investigation into Complainant's allegations, it did not take prompt action to address the situation. The record reflected that it was almost four months before any corrective action was taken and Complainant was provided with a different supervisor. Thus, the Agency was liable for the harassment. The Agency was ordered to, among other things, determine Complainant's entitlement to compensatory damages, and provide EEO training to responsible management officials. Schmid v. U.S. Postal Serv., EEOC Appeal No. 0120101575 (June 12, 2012).

Race Discrimination Found. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it did not select her for a Social Worker Executive position in 2006. According to the record, the retiring Social Worker Executive recommended Complainant to be Acting Social Worker Executive in 2003. The Chief of Staff, however, appointed another employee (SE1) to the Acting position. In 2006, Complainant applied for the position of Supervisory Social Worker (Social Worker Executive) and was referred for consideration. A panel reviewed the applications, and recommended that the Chief of Staff re-advertise the position since none of the candidates demonstrated the necessary leadership and management skills. The Chief of Staff disagreed, and convened a second panel to re-evaluate Complainant, SE1, and two other candidates. The panel recommended SE1, and the Chief of Staff ultimately chose SE1 for the position. Complainant had 27 years of social work experience at the Agency, including a six month appointment as an Acting Social Worker Executive. SE1 had 26 years of social work experience, 20 of which were at the Agency and served as an Acting Social Worker Executive for three years. Following the investigation, Complainant requested an administrative hearing in the matter. During the hearing, the Chief of Staff testified that SE1 had done "an outstanding job" in the Acting position, and he thought she got along with others better than Complainant. The Chief acknowledged that he had "probably" made disparaging or derogatory statements about African-Americans at some point at time, but stated that he did not do so in a public forum. He denied making derogatory statements about Complainant, but stated that he had heard concerns from other people about Complainant's inability to collaborate with others. Complainant's Supervisor, however, stated that the Chief called Complainant "divisive" and "a troublemaker," and stated that she "caused problems." Complainant stated that there had never been an African-American Social Worker Executive during her 30 years at the facility. The AJ ultimately issued a decision finding that the Agency did not discriminate against Complainant.

On appeal, the Commission found that the evidence showed, more likely than not, that Complainant's non-selection was motivated by race. Complainant, an African-American, was on the list of qualified candidates referred to the second panel, but was not selected in favor of a candidate outside of her protected group. While the Agency articulated a legitimate, nondiscriminatory reason for selecting SE1, that is her experience in the Acting position, ability to work well with others, and responses to interview questions, the Commission found that, given the totality of the circumstances, the Agency's reasons were a pretext for race discrimination. The record contained an admission by the Chief that he made negative race-related statements about African-Americans. The Commission found that this admission constituted relevant evidence of racial bias or animus. Further, there was unrebutted evidence of the lack of African-Americans in Supervisory Social Worker positions, and the demographic breakdown of employees in the Office of the Chief of Staff showed that all four of the GS-13 or higher level employees were Caucasian. The record also showed that SE1's three-year appointment to the Acting position was an unusual personnel practice, and the Chief failed to provide an explanation for why he appointed SE1 instead of following through with the recommendation to appoint Complainant. Thus, the Commission concluded that the Agency's explanation for Complainant's non-selection was a pretext for race discrimination. The Commission noted that the AJ erred in not allowing a statement from the retiring Social Worker Executive that Complainant was the strongest candidate and surpassed SE1, and in failing to reconcile the testimony of the Chief that he did not make derogatory comments about Complainant with the Supervisor's testimony that he had done so. Thus, Complainant proved, by a preponderance of the evidence that she was discriminated against on the basis of her race. The Agency was ordered, among other things, to retroactively offer Complainant the Supervisory Social Worker (Social Worker Executive) position or a substantially equivalent position with appropriate back pay and benefits, and conduct a supplemental investigation with regard to Complainant's claim for damages. Barnette v. Dep't of Veterans Affairs, EEOC Appeal No. 0120100558 (May 11, 2012), request for reconsideration denied, EEOC Request No. 0520120469 (October 24, 2012).

Agency Liable for Racial Harassment. Complainant filed a formal EEO complaint alleging, among other things, that the Agency harassed him on the bases of his race and color. Specifically, Complainant stated that his Supervisor (S1) subjected him to a hostile work environment. Complainant cited a number of incidents in support of his claim. The Agency ultimately issued a decision finding that the weight of the evidence supported Complainant's claim that he had been subjected to ongoing harassment. In addition to the numerous incidents cited by Complainant, the investigation revealed that S1 used racial epithets in the workplace. Nevertheless, the Agency concluded that it had no liability for the harassment because the Agency took prompt remedial action when Complainant's allegations were brought to management's attention.

On appeal, the Commission focused on the Agency's determination regarding liability. The Commission noted that Complainant's second-level Supervisor (S2), with Complainant's consent, immediately moved Complainant to another shop while he conducted an investigation of the allegations. As a result of the investigation, S1 was removed from his supervisory position. On appeal, however, Complainant contended that S1 continued to harass him by repeatedly calling in work orders for Complainant and "taunting" him. Complainant stated that he complained about the continuing harassment to S2, who said he would talk with S1, but that the harassment continued. In addition, Complainant reported to S2 that he was being harassed by co-workers who were friends with S1. Finally, Complainant stated that, after S2 retired, management tried to force Complainant back into the area where S1 worked, and the union had to intervene. Therefore, the Commission found that the Agency's actions were insufficient to remedy the situation. Although Complainant was removed from S1's supervision, S1 and his friends continued to harass Complainant. Further, Complainant reported the continued harassment to management, but it did not stop, and Complainant presented evidence of physical and emotional harm he suffered as a result of the continuing harassment. The Commission stated that the Agency's actions neither corrected the effects of the discriminatory harassment, nor stopped it from recurring. Thus, the Agency was liable for the harassment. The Agency was ordered, among other things, to take all necessary steps to ensure that Complainant had no contact with S1, provide Complainant with a designated management official to inform if subsequent acts of alleged harassment occurred, and investigate Complainant's claim for compensatory damages. Cheeks v. Dep't of the Army, EEOC Appeal No. 0120091345 (February 1, 2012).

Sex Discrimination Found. Complainant worked for the Agency as a Witness Protection Inspector. Approximately six months after starting work, Complainant was subjected to a stressful environment by her first level supervisor (Supervisor 2). In order to address the problem, Complainant's second-level supervisor (Supervisor 1), among other things, discussed relocating Complainant to a facility in a different city. In December 2005, Supervisor 1 sent Complainant to the other office to take inventory, and determine whether she wanted to move there. Complainant stated that she was told the position at the other office would probably be a noncompetitive lateral transfer. Complainant subsequently announced that she was pregnant. Complainant stated that she decided that, if she were to take the job, she would move with her two younger children, while her husband would stay behind with Complainant's step-daughter, who was nearing the end of high-school. Complainant applied for the position when it was posted as a lateral reassignment. The Assistant Director testified that he was aware that both Supervisor 1 and the Chief of Witness Security Division supported Complainant's selection for the position. Complainant testified, however, that the Chief subsequently told her that he did not believe the Assistant Director would relocate Complainant away from her family. Supervisor 1 then informed Complainant that she would not get the position because the Assistant Director did not think it was a good "business practice." Complainant stated that when she asked Supervisor 1 whether it was because she was pregnant, Supervisor 1 nodded in agreement. Ultimately, another applicant was selected for the position. The Selectee was not from the Witness Security Division, had not completed training, and did not have a security clearance. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her sex when it did not select her for a lateral transfer.

Following a hearing in the matter, the AJ found that the Agency discriminated against Complainant as alleged. While the AJ found that the Agency articulated a legitimate, non-discriminatory reason for not selecting Complainant, namely that the Assistant Director did not want Complainant to transfer and leave the office because they had upcoming major operations, the AJ ultimately concluded that the reason was a pretext for discrimination. Supervisor 1's conduct prior to Complainant's announcement of her pregnancy indicated that the Agency considered her the most qualified individual for the position. In addition, the Assistant Director provided inconsistent testimony as to whether the Selectee was the most qualified applicant. The AJ noted that neither Supervisor 1 nor the Chief ever mentioned operational needs as the reason for Complainant's non-selection. Supervisor 1 stated that he could not remember an applicant from outside of the Division being selected over an employee from within the Division for a lateral reassignment in the past. In addition, the Chief discussed with the EEO Counselor the fact that there were concerns about separating Complainant from her family. The Commission stated that it was clear from the testimony provided at the hearing and during the investigation that Complainant's family situation was considered when making the selection for the position. Rather than judging Complainant on her qualifications, Agency officials believed her family should not be separated. Further, the Commission noted that the evidence showed that male employees were not subjected to such considerations when relocations were considered. Thus, the Commission concluded that the AJ's decision finding discrimination was supported by substantial evidence. The Agency was ordered, among other things, to pay Complainant $15,000 in non-pecuniary damages, offer to transfer Complainant to the position or a substantially equivalent position, and pay her appropriate benefits, and moving expenses. Doe v. Dep't of Justice, EEOC Appeal No. 0720090006 (February 1, 2012).

Religious Discrimination Found. Complainant, a Customs and Border Patrol Officer, filed a formal EEO complaint alleging religious discrimination when, in October 2007, the Agency denied his religious accommodation request to observe the Sunday Sabbath. Prior to the events in question, Complainant had Sunday as his regularly scheduled day off (RDO). In July 2007 the Agency's rotation system changed and Complainant was scheduled to work Sundays. In August 2007, Complainant made a religious accommodation request to the EEO Manager. Complainant did not hear back from the Manager, and contacted the EEO Counselor. In October 2007 the EEO Counselor told Complainant that he could not have Sundays off, but could seek his own swaps with other employees. During the informal EEO complaint process, the EEO Manager offered to allow Complainant to seek his own swaps for the Sunday shifts, to provide him with a different shift on Sundays so that he could attend services, or to reassign him to another team with a different assignment. Complainant informed the Agency that the tenets of his religion required him to refrain from work on Sundays and from soliciting others to work on Sundays. Complainant and the Agency did not reach a solution, and Complainant continued to work Sundays. In June 2008, the Agency's Port Director sought accommodation suggestions from Complainant, and informed Complainant that the Agency was willing to notify employees of the opportunity to voluntarily swap with Complainant to alleviate Complainant having to solicit swaps. The Manager also offered to transfer Complainant to an administrative position which did not require work on Saturdays or Sundays. Complainant rejected these proposals.

Following an investigation, an AJ found that Complainant established a prima facie case of religious discrimination. Further the AJ found the Agency failed to show it could not have reasonably accommodated Complainant without undue hardship from September 2007 through June 2008. However, the AJ found that by June 2008, the Agency offered a reasonable accommodation that would alleviate Complainant's conflict between his work schedule and religious tenets. The Commission affirmed the AJ's finding of discrimination on appeal. The Agency denied Complainant's request to have Sundays off in October 2007, and merely informed Complainant that he could seek his own shift swaps. While Complainant continued to work on Sundays, the Commission noted that the fact that an employee acquiesces to the employer's work rule, continuing to work without an accommodation after the employer has denied the request, should not defeat the employee's legal claim. The Commission stated the evidence supported Complainant's contention that his religion prevented him from working on Sundays, and from asking others to work on Sundays. Therefore, the Commission agreed with the AJ's finding that requiring Complainant to seek his own swaps after he indicated it was against his faith was not a reasonable accommodation. The Commission stated that the AJ correctly determined that a reasonable accommodation would have been for the Agency to facilitate the shift swapping, which the Agency did not provide until June 18, 2008. The Agency was ordered to, among other things, immediately provide Complainant with a reasonable accommodation of his religious beliefs by seeking the voluntary swap of Complainant's Sunday work obligation, and pay Complainant $7,000 in proven non-pecuniary compensatory damages, plus proven attorney's fees and costs. Hyde v. Dep't of Homeland Sec., EEOC Appeal No. 0720110003 (January 6, 2012).

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, Sex and Reprisal Discrimination Found. Complainant worked for the Agency as an Electrician and Temporary Electrical Instructor. He filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race and sex, and in reprisal for prior EEO activity when it did not select him for a Maintenance Specialist Nuclear (Electrical Planner) position. According to the record, Complainant applied for four Electrical Planner positions advertised under the same vacancy announcement. Complainant had an electrical license, two associate degrees, and 19 years of electrical experience, 17 of which were in maintenance. Complainant also served as an Instructor. Neither Complainant nor any of the four African-American males who applied for the positions were offered an interview. Four Caucasian males who had no prior EEO activity were selected. The record showed that there were no African-American Planners at the facility during the period in question.

On appeal, the Commission found that the Agency discriminated against Complainant when it did not select him for the Electrical Planner position. The Commission initially noted that Complainant was qualified for the position, but was not referred for an interview while others outside of his protected class with lesser qualifications were interviewed and selected. In addition, one of the officials involved in the selection process (S2) was a participant in Complainant's first EEO complaint and had been deposed less than one month before Complainant applied for the position herein. While the Agency maintained that Complainant did not receive a high enough rating of an objective matrix to be offered an interview, the Commission found that Complainant proved, by a preponderance of the evidence, that the Agency's reasons were a pretext for discrimination and retaliation. The record showed that Complainant was credited with only five to 10 years of experience, and did not receive credit for his degrees or his specialized license. The Agency selected individuals with less education, experience, and years of service than Complainant, and even credited some individuals with more experience than was warranted by their resumes. The responses provided by management officials did not explain why they deviated from Agency standards or why Complainant did not receive full credit for his education and experience. The Commission found that the matrix was based on subjective criteria that adversely denied Complainant an equal and fair opportunity to compete for the position based on his actual qualifications. The Agency's reasons for not selecting Complainant were inconsistent with the objective evidence in the record, and, thus, the Commission found that they were not true or legitimate. The Agency was ordered, among other things, to retroactively place Complainant into an Electrical Planner position or a substantially equivalent position, with back pay and benefits, and investigate his claim for compensatory damages. Thirlkill v. Tenn. Valley Auth., EEOC Appeal No. 0120121029 (June 6, 2012).

Race Discrimination and Retaliation Found. Complainant, a Vehicle Operator, filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his race (African-American) and in reprisal for prior EEO activity when he was not provided with training and higher-level detail assignments. Complainant asserted that other employees outside of his protected groups received these benefits. Following a hearing, the AJ issued a decision finding discrimination. Specifically, the AJ found that the Agency discriminated against Complainant when it did not select him for an Acting Supervisor detail. The AJ determined that Complainant was well qualified for higher-level details, had a positive performance record with no performance problems or disciplinary action, and every witness agreed that Complainant had been a superb employee. Nevertheless, Complainant never once was afforded the opportunity for Acting Supervisor details or training in his over 20 years with the Agency. Complainant expressly requested the opportunity to serve as an Acting Supervisor in 2004, but was not placed into the position even though there was a regular rotation of other employees into the detail. The Acting Supervisor positions were not posted, and Complainant never received feedback from management as to why he was not selected. One Supervisor (S1) testified that he told the Manager on a number of occasions that Complainant could do the work of an Acting Supervisor and that the Manager should give Complainant the opportunity. The AJ acknowledged that some Caucasian employees chosen for the detail assignments were well qualified, but found that others were not, and specifically pointed to several individuals who were less qualified than Complainant. The AJ allowed the Agency to submit the Manager's deposition to be used in lieu of testimony because of the Manager's health, but found him not to be a credible witness because he was evasive and frequently stated that he did not recall incidents and conversations.

On appeal, the Commission affirmed the AJ's finding of discrimination. The Commission rejected the Agency's argument that Complainant could only establish a prima facie case by comparing himself to others in the same job title. The record showed that all employees at the facility were eligible for temporary assignments to Acting Supervisor positions provided they were qualified, and, as such, Complainant could be compared to all employees at the facility. Further, Complainant engaged in protected EEO activity when he filed prior complaints of discrimination, the Agency officials were aware of his activity, and he was subsequently denied supervisory details. With regard to the Manager's statements, the Commission found that even if the Manager's lack of recollection was due to his illness, his testimony did not rebut the assertions of Complainant and S1 concerning the Manager's unwillingness to consider Complainant for a detail assignment. The Agency was ordered, among other things, to pay Complainant $20,000 in proven compensatory damages, give Complainant the next available Acting Supervisor assignment, give Complainant future assignments in rotation with his co-workers, and provide him with back pay representing the times his co-workers were detailed into the Acting Supervisor position. Johnson v. U.S. Postal Serv., EEOC Appeal No. 0720100024 (May 15, 2012).

Race, Sex, Age and Reprisal Discrimination and Harassment Found. Complainant, a Service Representative, filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race, sex, age and in reprisal for prior EEO activity when her Supervisor subjected her to a hostile work environment for over one and one-half years, and when the Agency announced a Claims Representative position as a bilingual position in a deliberate effort to preclude her from applying. Following a hearing, the AJ found that Complainant was discriminated against and harassed as alleged. On appeal, the Commission affirmed the AJ's findings. Complainant cited a number of incidents when co-workers outside of her protected groups were treated more favorably. For example, some Trainees were allowed to train each other while Complainant was told not to do so. In addition, another employee was permitted to have someone from outside of the office observe his work. Complainant stated that her Supervisor threatened her career, yelled at and contradicted her at an office-wide meeting, told her not to use the front door, and delayed approval of her Family and Medical Leave Act request. Even after the individual was no longer supervising Complainant, he continued to have significant interactions with her, and witnesses testified that the Supervisor singled Complainant out for harsh treatment. The AJ found that while the Agency removed the individual from his position as Complainant's immediate Supervisor, the action did little good and the Supervisor continued to harass Complainant. The Commission found that substantial evidence, coupled with the AJ's determination that Complainant's testimony concerning her treatment by the Supervisor was credible, supported the AJ's determination that the actions complained of occurred as Complainant described and were sufficiently severe or pervasive to create a discriminatory hostile work environment. The Commission also concluded that the Agency failed to meet its burden of proving its affirmative defense that it exercised reasonable care to prevent and promptly correct the harassing behavior.

With regard to the Claims Representative position, the record showed that it was widely known at the Agency that Complainant wanted such a position. Complainant argued that the Agency advertised the position with the requirement that the successful applicant speak both Spanish and English for the sole purpose of preventing her from qualifying for the position. The Commission rejected the Agency's assertion that the AJ improperly used a disparate impact analysis, stating that the AJ found that the Agency discriminated against Complainant by deliberately preventing her from applying or qualifying for the position. While the Agency articulated a legitimate reason for its action, that is it needed a Spanish-language Representative to handle claimants who spoke only Spanish, Complainant successfully established pretext. The Agency took no action to determine if there was a need for a bilingual Claims Representative in the area, and the office conducted an average of only three Spanish-speaking interviews per month. In addition, 19 percent of the employees in the office were bilingual, Agency employees had access to an interpreter service, and the individual selected had not conducted interviews with Spanish-speaking clients since being hired. The Commission noted that it was not ruling that, in general, the hiring of bilingual employees constituted discrimination, only that, in this case, the AJ's findings were supported by substantial evidence. The Agency was ordered, among other things, to provide Complainant with priority consideration for the next available Claims Representative position, and pay her $65,000 in proven compensatory damages. Banks v. Soc. Sec. Admin., EEOC Appeal No. 0720100014 (April 27, 2012).

Disability Discrimination and Retaliation Found. Complainant began working for the Agency in the mid-1990s, and injured his back in 2004. During his employment, Complainant had various problems with the Postmaster (S1) and filed several claims against her. In 2005, the Agency converted Complainant from a part-time flexible Carrier to a full-time regular Carrier, and changed his route. Complainant subsequently re-injured his back while on the job. Complainant indicated that the re-injury occurred from carrying more weight and for a longer distance during his route. In November 2005, Complainant's neurologist asked the Agency to allow Complainant to use a pull cart to carry mail. In July 2006, Complainant's family physician restricted Complainant to no lifting over 15 pounds and no bending, prolonged standing or walking, and requested that Complainant be allowed to use roller bags when carrying mail. The record reveals that the physician and a neurosurgeon subsequently provided additional restrictions, and the neurosurgeon stated that Complainant was totally disabled in June 2007. Complainant underwent additional examinations by two different neurosurgeons, and returned to work on May 8, 2010.

Complainant ultimately filed a formal EEO complaint in May 2007 alleging that the Agency discriminated against him on the bases of his sex and disability, and in reprisal for prior EEO activity when it denied him reasonable accommodation and subjected him to a hostile work environment. Complainant asserted that S1 assigned him to a different route because she knew he had residual issues from his original injury. Complainant also stated that S1 tried to get others to dislike Complainant, made negative comments about him, and subjected him to greater scrutiny. Following an investigation, an AJ held a hearing in the matter, and found that the Agency discriminated against Complainant on the basis of his disability when it failed to provide him with reasonable accommodation, and subjected him to a retaliatory hostile work environment.

The Commission affirmed the AJ's findings on appeal. The record showed that Complainant was unable to lift more than 15 pounds, had difficulty walking and could not reach above his head. Thus, the record supported the AJ's finding that Complainant was an individual with a disability because he was substantially limited in the ability to lift, walk, and reach. Further, the Commission found that Complainant was qualified, since he was able to perform the essential function of "casing and delivering mail" with the assistance of the requested reasonable accommodations. Complainant's doctors requested a pull/push cart for Complainant and no lifting over 15 pounds, which the Agency did not provide. Instead, the Agency continued to require Complainant to deliver and collect mail without the cart. The Commission found that the accommodations which the Agency did provide, a satchel weighing no more than 20 pounds and a limited dismount exception were not effective. While the Agency stated that it did not provide the cart because it would not have been safe due to the lack of sidewalks and amount of traffic, the Agency allowed Complainant to walk the same route wearing simply an orange safety vest. In addition, a co-worker testified that he carried Complainant's route at some time and used a push cart. The AJ did not credit S1's testimony concerning accommodation of Complainant and the circumstances of his route. Thus, the Commission concluded that the Agency failed to present credible evidence that it would have been an undue burden to provide Complainant an effective accommodation, and, as such, the Agency violated the Rehabilitation Act.

With regard to the AJ's finding of retaliation, the Commission noted that Complainant filed prior complaints against S1, and S1 was aware of Complainant's prior EEO activity. Given the timeline in the case, the history between Complainant and S1, and the adverse actions S1 took against Complainant, the record supported the AJ's finding of reprisal. Complainant testified that, among other things, S1 publicly referred to him as an overweight television character, tried to isolate him from his co-workers, subjected him to greater scrutiny, sought a fraud investigation against him, and talked about Complainant and his EEO matters to others. The Commission found the testimony and evidence supported Complainant's assertions. Thus, the Commission found that substantial evidence supported the AJ's finding of hostile work environment harassment based on reprisal. As relief, the Agency was ordered to, among other things, offer to reinstate Complainant to his position or a substantially equivalent position, with appropriate back pay and benefits, and pay Complainant $100,000 in proven compensatory damages. Small v. U.S. Postal Serv., EEOC Appeal No. 0720100031 (April 5, 2012).

Retaliation

Retaliation Found. Complainant worked as a Postal Inspector, and was assigned to a new group in March 2007. Complainant's duty station remained the same. In June 2007, Complainant submitted an e-mail request for approval to engage in outside employment as a real estate agent. Complainant's Supervisor stated that the e-mail contained insufficient information, and she told Complainant that they could discuss the matter. The Supervisor stated that she asked the Inspector in Charge (INC) at Complainant's facility about Complainant's real estate activities, and the INC thought that they went beyond personal investments. The Supervisor ultimately did not approve Complainant's request because they did not fully discuss the matter and Complainant went out on extended sick leave. The Supervisor later denied the request citing Complainant's medical restrictions. According to the record, the Supervisor approved a request from a male Postal Inspector (Comparator 1) to engage in outside employment as a real estate agent. The Supervisor stated that Comparator 1 provided detailed information about his planned activities. In November 2007, Complainant sent an e-mail to the Acting Assistant Inspector in Charge (AAIC) stating that she needed to work at home on two days because the city was doing work on her property. The Supervisor questioned why Complainant had not contacted her directly and refused to authorize Complainant to work at home. The Agency subsequently placed Complainant on administrative leave in connection with a fitness for duty examination. Complainant filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when it denied her requests to engage in outside employment and work at home, and placed her on administrative leave. After Complainant withdrew her request for a hearing, the Agency issued a final decision finding no discrimination.

On appeal, the Commission found that Complainant engaged in protected EEO activity when she participated in a class action, and when she sought EEO counseling. In addition, Complainant made various requests for sick leave, and reasonable accommodation that also constituted protected activity. The Commission stated that the denial of Complainant's request to engage in outside employment and her request to work at home were adverse actions that were reasonably likely to deter her from engaging in protected activity. The Commission found that the Supervisor's reference to Complainant's medical restrictions in both instances was direct evidence of retaliatory motive, and her reliance on the restrictions as a reason for denying Complainant's requests constituted retaliation. The Commission stated that, absent the retaliatory motive, the Agency would have allowed Complainant to submit additional information to support her request to engage in outside employment. In addition, there was no evidence that Complainant's restrictions prevented her from working at home.

Finally, the Commission found that the Agency retaliated against Complainant when it placed her on administrative leave for four days pending the request for a fitness for duty examination. The Commission noted that, in her attempt to justify the examination, the Supervisor expressly noted that Complainant had accused her of harassment and cited Complainant's EEO complaint as support for her assertion that Complainant had a "distorted picture of what was going on around her at work." Although the Agency ultimately did not send Complainant for the examination, it subjected her to an adverse action when it placed her on administrative leave. The Commission found that a reasonable person would likely be deterred from complaining about harassment or filing an EEO complaint if such complaints resulted in requests for examinations and placement on administrative leave. The Supervisor's explicit references to Complainant's harassment allegation and EEO complaint constituted direct evidence of retaliatory motive. Thus, the Commission concluded that the Agency retaliated against Complainant when it placed her on administrative leave. The Agency was ordered, among other things, to make a determination on Complainant's request to engage in outside employment without regard to her EEO activity or protected bases, restore sick leave taken as a result of the denial of her request to work at home, pay Complainant back pay lost as a result of being placed on administrative leave, and investigate Complainant's claim for damages. Watkins v. U.S. Postal Serv., EEOC Appeal No. 0120092749 (June 29, 2012), request for reconsideration denied EEOC Request No. 0520120553 (January 30, 2013).

Retaliation Found. Complainant, an Inventory Management Specialist, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when it initiated an investigation into comments she made as a possible violation of the Agency's code of conduct. According to the record, Complainant and the Associate Warden were involved in e-mail discussions regarding the retrieval of Agency property, and the Associate Warden strongly disagreed with Complainant's approach to the matter. In recounting the situation to her Supervisor (S1), Complainant made a profane comment. S1 reported the comment to Complainant's second-level Supervisor (S2) who asked S1 to record the comment in a memorandum. In the memorandum, S1 noted that another employee also made a profane comment. S2 forwarded the memorandum to the Warden who initiated an investigation into Complainant's comments as a possible violation of the Agency's code of conduct regarding profane and obscene language. The investigation sustained the charge and S2 issued Complainant a Notice of Proposed Suspension. S2, however, declined to impose the suspension.

Following a hearing in the matter, an AJ found that Complainant was subjected to retaliation with regard to the investigation. On appeal, the Commission affirmed the AJ's findings. The Commission found that Complainant established a prima facie case of retaliation when the union sent an e-mail to S2, which was copied to Complainant, asserting that S2 was creating a hostile working environment "for people of color." The e-mail was forwarded to the Associate Warden, and, therefore, both S2 and the Associate Warden were aware that Complainant believed she was being subjected to a hostile work environment on the basis of her race. Further, the Commission noted that while the Warden, who had only recently arrived at the facility, was the ultimate decision-maker regarding whether to initiate the investigation, there was considerable evidence that the Warden only made the decision after S2 decided to forward the matter through the supervisory chain. While the Agency maintained that its policy required it to investigate unprofessional conduct, the Commission found that reason was a pretext for retaliation. The record showed that S2 took action to ensure that Complainant's comments were investigated, and did not take similar action regarding profane comments made by two other employees. S2 was notified on at least two occasions that the other employees used profanity, but took no action except with respect to Complainant's statement. While the Agency asserted that Complainant's comments were "racially tainted," that justification was not mentioned by any of the management witnesses as the reason for the investigation. Thus, the Commission concluded that the Agency retaliated against Complainant when it initiated the investigation. The Agency was ordered, among other things, to pay Complainant $15,000 in proven compensatory damages, restore 80 hours of annual leave and 80 hours of sick leave, and expunge any reference to the investigation from Complainant's personnel files. McFadden v. Dep't of Justice, EEOC Appeal No. 0720110034 (April 4, 2012).

Retaliation Found with Regard to Termination. Complainant, an Aviation Security Officer, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when it terminated her from her position. Complainant stated that she was never told there were concerns with her performance, and the termination occurred one month after she filed a complaint regarding job assignments. Following an investigation, the Agency issued a final decision finding no discrimination. On appeal, the Commission concluded that Complainant was discriminated against when she was terminated. A number of reasons were given for the termination by one of Complainant's Supervisors (S2), including that she was a "problem employee" who needed to be counseled about her work. However, another Supervisor (S1) did not support S2's articulated reasons, stating only that the Agency was allowed to terminate a Security Officer's employment contract for any reason. Two other Supervisors denied that Complainant had any performance problems, and one of those Supervisors even described Complainant as "one of the best hands" the Agency had. Thus, the Commission found a lack of evidence to support S2's proffered reason for Complainant's termination, which, when considered with the fact that Complainant's termination occurred only one month after filing her complaint, was sufficient to show that the Agency engaged in unlawful retaliation. The Agency was ordered, among other things, to offer Complainant reinstatement to her position, with appropriate back pay and benefits, and investigate her claim for damages. King v. Dep't of Justice, EEOC Appeal No. 0120111958 (April 3, 2012), request for reconsideration denied, EEOC Request No. 0520120397 (October 3, 2012).

Per Se Retaliation Found. Complainant worked as a Telephone Operator. According to the record, Complainant became involved in a confrontation with the Shift Supervisor, after which she met with the Telecommunications Manager to discuss the matter. Subsequently, Complainant had a discussion with the Manager after Complainant heard the Manager mention her name to another employee. The Manager testified that she told Complainant that "we have settled our differences, but instead [Complainant] continues to file complaints." The Manager stated that she became upset and told Complainant she could repeat the statement to anyone she wished. Complainant subsequently filed a formal EEO complaint alleging, among other things, that the Manager disclosed information regarding her prior EEO activity to a co-worker. On appeal, the Commission found that the Manager's comments constituted a per se violation of Title VII, because they were likely to have a chilling effect and deter employees from the full exercise of their EEO rights. The Agency acknowledged in a memorandum that the Manager made inappropriate comments to Complainant about her EEO complaints, and that the Manager "may not fully understand her obligations to avoid statements that may have a chilling effect upon the willingness of individuals to…participate in the EEO process." The Commission noted that the Manager was named in Complainant's prior EEO complaints, and the Manager did not dispute that she made the comments in question. The Commission found no discrimination with regard to Complainant's other allegations of disparate treatment. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training to the Manager. Ashby v. Dep't of the Treasury, EEOC Appeal No. 0120090364 (February 27, 2012), request for reconsideration denied, EEOC Request No. 0520120435 (July 12, 2012).

Retaliation Found. Complainant, a former Correctional Officer, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when it failed to select her for a Senior Correctional Officer position, and subjected her to harassment. According to the record, Complainant had filed a prior EEO complaint alleging that another Correctional Officer locked her in a watch tower and forced her to clean toilets. Complainant asserted that when the Warden announced the selections for the Senior Correctional Officer position, he indicated that "people who file EEO complaints…would not have been selected," and "those people that filed EEO complaints don't get promoted." On appeal, the Commission found that Complainant established that the Agency's reasons for not selecting her for the position were, more likely than not, a pretext for retaliation. The Agency acknowledged that the Warden was aware of Complainant's prior EEO activity. In addition, Complainant provided evidence that supported her assertion that the Warden did not want to select people for the position who had filed EEO complaints. Specifically, one of Complainant's co-workers indicated that the Warden stated that Officers who filed complaints should not expect to be promoted. The Commission noted that none of the individuals who were selected had prior EEO activity. The Commission was also not persuaded by the Agency's negative assessment of Complainant's performance, noting that her most recent appraisal was comparable in all respects to those of the Selectees. The Commission also drew an adverse inference from the Agency's failure to retain "vouchers" from Supervisors regarding the applicants' performance, which could have supported Complainant's application. Accordingly, the Commission found the Agency retaliated against Complainant when it did not select her for the position in question.

The Commission also found that Complainant was subjected to a hostile work environment. Complainant asserted that another Correctional Officer failed to respond to her distress call, failed to open a locked door which trapped her, and failed to respond to her request for equipment. The Agency's Investigator failed to ask the Officer about any of the incidents, and another co-worker corroborated Complainant's claim regarding the equipment. While the Agency claimed that it conducted an investigation of the incidents once Complainant reported them, there was no documentation supporting that assertion. Complainant further stated that when she complained about a certain event, a Lieutenant told her "you chose to take you complaint outside the house, now you have to suffer the consequences." The Commission stated that this evidence was not rebutted. Thus, the Commission found the Agency failed to satisfy its burden of showing it investigated and remedied Complainant's harassment allegations. The Agency was ordered, among other things, to offer Complainant a retroactive promotion to the Senior Correctional Officer position or a substantially equivalent position, with appropriate back pay and benefits, and conduct an investigation into her entitlement to compensatory damages. Carson v. Dep't of Justice, EEOC Appeal No. 0120100078 (February 16, 2012). Retaliation Found. Complainant, an Aerospace Engineer, filed formal EEO complaints alleging, among other things, that the Agency retaliated against him when his Supervisor threatened him because he declined to participate in mediation. Following a hearing, the AJ found that the Agency retaliated against Complainant when it publicly humiliated him for not attending EEO mediation. The Commission affirmed the AJ's finding on appeal. Agency officials were aware that Complainant contacted an EEO Counselor approximately two months prior to the incident. In addition, the Supervisor's yelling at and threatening Complainant regarding the mediation of his EEO complaint were likely to dissuade a reasonable employee from making or supporting a claim of discrimination. While the Agency stated that the Supervisor's comments concerned Complainant's attendance at a team building conference, the AJ properly found that reason to be pretextual. Several witnesses stated that Complainant indicated he did not want to jeopardize his EEO claim by participating in mediation, he did not want to resolve any issues related to his EEO complaint in mediation, management officials were attempting to force him to attend mediation, and he was threatened with discipline when he refused to attend. The Commission noted the Agency's argument that mediation did not go forward and no action was taken against Complainant for his failure to attend. The Commission stated, however, that claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Instead, complainants are protected from any discrimination that is reasonably likely to deter protected activity. Thus, the Commission concluded that the AJ properly found that the Agency retaliated against Complainant. The Agency was ordered, among other things, to pay Complainant $3,000 in proven compensatory damages, and provide appropriate training to the responsible management officials. Malekpour v. Dep't of Transp., EEOC Appeal No. 0720100016 (December 16, 2011), request for reconsideration denied, EEOC Request No. 0520120340 (June 21, 2012).

No Retaliation Found: Nexus Not Shown. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her in reprisal for prior EEO activity with regard to several incidents that occurred in 2011. The record showed that Complainant previously engaged in EEO activity in December 2005. The Agency ultimately issued a decision finding no discrimination. On appeal, the Commission found that Complainant did not establish a prima facie case of reprisal. Complainant's prior EEO complaint was filed six years before the incidents at issue in the current complaint and did not involve the same management officials. The named officials in the underlying complaint stated that they were unaware of Complainant's prior EEO activity. Thus, Complainant did not establish a nexus between her prior EEO activity and the alleged discrimination in the underlying complaint. Ransom v. U.S. Postal Serv., EEOC Appeal No. 0120121840 (September 7, 2012).

Mixed Motive

Mixed Motive Discussed in Claim of Retaliation. Complainant worked for the Agency as a seasonal employee performing various forestry tasks from June 29 through August 5, 1998. Complainant complained about an incident involving his Assistant Supervisor claiming that the Assistant Supervisor harassed him. The record reveals that there were other incidents involving Complainant and his Supervisors and co-workers. Complainant sustained an on-the-job injury in July and filed a workers' compensation claim. Complainant was ultimately terminated from employment. The letter of termination stated that while Complainant was a hard worker, the Agency was terminating him because of his inability to work in a "crew environment." The letter also noted that Complainant failed to list "several convictions [and]/or parole or probations" on his application. The Notice of Personnel Action lists "performance" as the reason for termination. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him when it terminated his employment. The Agency subsequently issued a final decision finding that while Complainant's termination was motivated in part by his prior EEO activity, it properly terminated Complainant's employment for "nondisclosure of his criminal past" and falsifying his application.

On appeal, the Commission noted that while Complainant did not list reprisal as a basis in his formal complaint, a fair reading of the record revealed that Complainant alleged during counseling and the investigation that the Agency discriminated against him on that basis. The Commission stated that Complainant engaged in protected EEO activity when he submitted a letter alleging that he had been subjected to sexual and non-sexual harassment. Agency officials, including the Personnel Officer, were aware of the harassment allegations, and the Agency terminated Complainant's employment only 15 days after his protected activity. Thus, there was a nexus between Complainant's protected activity and his termination. While the termination letter cited Complainant's inability to work with the crew, the only documentary evidence concerning Complainant's interactions with the crew was his letter complaining of harassment. In addition, although the Agency asserted that it reviewed Complainant's application because he exhibited threatening behavior, the record contained no statements from Complainant's Supervisors or co-workers concerning his alleged behavior. There was also no evidence that anyone expressed concern about Complainant's behavior prior to his harassment complaint. Given the lack of evidence of threatening or objectionable behavior by Complainant, the Commission found that his protected EEO activity, rather than his alleged inability to work with the crew motivated his termination. Thus, the Commission found that the Agency discriminated against Complainant on the basis of reprisal when it terminated him.

The Commission stated that the Agency erroneously placed the burden on Complainant to show that its assertions concerning the non-discriminatory reasons for his termination were inaccurate. Instead, once it is established that reprisal was a motivating factor, it was the Agency's burden to demonstrate that it would have taken the same action absent the impermissible motive. The Commission found that the Agency did not meet that burden. The Agency produced no documentary evidence to support its assertion that Complainant falsified his employment application. Although the Personnel Officer stated that she had a file reflecting various arrests, convictions and probation, that file was not part of the record in this case. In addition, the termination letter did not specifically identify the matters which Complainant allegedly failed to disclose, and the Personnel Officer did not provide the dates of the alleged offenses. Thus, the Commission found that the Agency's vague and varying references to Complainant's alleged criminal record did not satisfy the Agency's burden of proof. The Commission concluded that Complainant's termination was motivated by reprisal for his prior EEO activity, and the Agency did not demonstrate that it would have terminated his employment in the absence of the impermissible motivating factor. As such, Complainant was entitled to full, make-whole relief. The Agency was ordered, among other things, to pay Complainant back pay and applicable benefits, expunge all documentation connected to his termination from its records, and investigate Complainant's claim for damages. Armijo v. Dep't of Agric., EEOC Appeal No. 0120110109 (September 6, 2012).

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).

Official Time

Agency Did Not Meet Its Burden Regarding Official Time. Complainant, a Meat Cutter, filed a formal EEO complaint alleging, among other things, that the Agency denied his request for official time to work on a settlement discussion. The Agency issued a final decision finding that Complainant's request was denied because his "job comes first." On appeal, the Commission found that the Agency failed to meet its burden under the EEOC's regulations of addressing Complainant's request for official time. The record contained a handwritten note that indicated that Complainant's request was denied in part because the meat case had not been filled. The Store Director averred that Complainant requested official time "fairly regularly," and that he had denied Complainant's requests on many occasions. The Director noted that the denials were "always based on work requirements," and "work load and manning needs." In addition, the Meat Manager stated that the Director denied Complainant's request because Complainant needed to stock the meat case, and Complainant's job "came first." The Commission stated that none of the statements indicated why Complainant could not have been granted official time after the meat case was filled, or on a different day. The Commission found no discrimination with regard to Complainant's other allegations of harassment and disparate treatment. The Agency was ordered to require the Director and Manager to read and affirm that they understand the process for requesting official time, and reimburse Complainant for any leave he may have taken as a result of the denial of his request. Dillard v. Dep't of Def., EEOC Appeal No. 0120113984 (February 28, 2012).

Remedies

Remedies Discussed. Complainant filed a formal EEO complaint alleging that she was subjected to discriminatory harassment by an Agency Branch Chief. Following an investigation, Complainant requested that the Agency issue a final decision in the matter. While the Agency found that Complainant failed to prove her claim of age and national origin discrimination, the Agency did find that she was subjected to retaliatory harassment. Complainant was a non-supporting witness in the Chief's EEO case, and there was evidence in the record that the Chief escalated her harassment of Complainant to deter Complainant and others from pursuing any future EEO action. In the final decision, the Agency was ordered to conduct training for all responsible management officials, issue a decision on the issue of attorney's fees and costs, and post notice of the finding of discrimination. On appeal, the Commission found that Complainant was entitled to additional relief as a result of the finding of harassment. Specifically, the Commission stated that Complainant was entitled to have any leave she took because of the retaliatory harassment restored to her. One of Complainant's co-workers stated that Complainant was "harassed so much" by the Chief that she was out of work on sick leave for approximately three months. In addition, the Commission concluded that the Agency should offer Complainant a substantially equivalent lateral position in another branch that is not supervised by the Chief. The record showed that the Chief sent Complainant hostile e-mails, ridiculed her, accused her of engaging in improper conduct, and at least eight witnesses stated that the Chief engaged in extraordinary acts of harassment against subordinate employees. Thus, the Commission stated that the retaliatory harassment could not be remedied as long as the Chief remained in Complainant's chain of command. Jordan v. Dep't of Agric., EEOC Appeal No. 0120103446 (May 25, 2012).

Back Pay Discussed. In a prior decision, the Commission affirmed an AJ's finding that Petitioner was discriminated against on the basis of his age when he was terminated during his probationary period. The Commission ordered the Agency, among other things, to pay Petitioner back pay. Petitioner subsequently notified the Commission that he believed the Agency failed to accurately calculate his back pay award. The Commission initially denied the petition for enforcement, finding that the Agency afforded Petitioner an explanation for its back pay calculations and Petitioner failed to show that he was entitled to an additional award. The Commission subsequently issued the instant decision to address additional issues concerning the back pay award. The Agency excluded the period from June 2006 through July 2006 from the back pay award, stating that Petitioner was not making efforts to find alternate employment. The Commission noted that a back pay claimant generally has a duty to mitigate damages, and it is the Agency's burden to establish that the employee failed in his duty to mitigate. The Commission found that the Agency carried its burden of proof in this regard. During the two months at issue, Petitioner was not engaging in reasonable efforts to find comparable employment. While Petitioner was attempting to obtain a teaching certificate and may have accepted a few sporadic substitute teaching assignments, the record did not show that he was looking for comparable work or that he was ready, willing and able to work in a comparable position. The Commission stated that Petitioner voluntarily abandoned the job market during the time in question and focused on obtaining his teaching certificate. Since Petitioner made no reasonable efforts to mitigate his damages and failed to adequate explain his lack of effort, the Commission concluded that the Agency did not have to show that there were suitable positions available which Petitioner could have discovered. The Commission noted that the Agency provided a clear and concise statement of the method used to calculate Petitioner's back pay. The Acting Manager of Labor Relations stated that while the normal process is to use a 13 pay period history, Petitioner was only employed for five pay periods. Therefore, the Agency determined the hours Petitioner would have worked by adding the hours worked by the other employee in his position and the overtime hours utilized, then dividing that number by two which represented the number of employees in his position who would have worked had Petitioner not been separated. The Commission was not persuaded by Petitioner's assertion that the Agency should have used another formula to calculate back pay, and denied the petition for enforcement. Takahashi v. U.S. Postal Serv., EEOC Petition No. 0420100011 (April 11, 2012).

Sanctions

Commission Sanctions Agency by Drawing Adverse Inference Complainant filed a mixed case appeal with the MSPB, alleging that she had been constructively discharged and subjected to a hostile works environment based on gender and reprisal. Specifically, Complainant alleged that her Supervisor subjected her to a hostile work environment by: (1) getting unjustifiably angry with her; (2) disparaging her to other employees; (3) excluding her from management meetings and memoranda; (4) taking her position off an Agency organizational chart; and (5) saying that her job was in jeopardy. Complainant appealed the matter to the MSPB, which retained jurisdiction over Complainant's constructive discharge claims, but remanded Complainant's retaliatory and gender hostile work environment claims to the Agency for processing as a non-mixed complaint. After receiving the Agency's final decision, Complainant appealed the matter to the Commission. The Commission notified the Agency that it must provide the complete record pertaining to the complaint within 30 calendar days. When the Agency failed to comply with the request, the Commission sent two e-mail notifications to the Agency advising the Agency that it still had not received the record. The Agency acknowledged the requests and indicated that efforts to provide the information were underway. When the Commission did not receive the record, it issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed ordering the Agency to submit the complete file or provide good cause why it could not do so. The Agency failed to respond to the Notice.

The Commission took judicial notice of the MSPB's finding that the Agency intentionally abolished Complainant's position because of her gender. The Commission also credited evidence in the MSPB record which Complainant presented in support of her appeal to support the finding that the actions of Complainant's supervisor were based on Complainant's gender and reprisal for prior EEO activity. The Commission stated that the evidence showed that Complainant was subjected to an objectively hostile and abusive work environment, which was sufficiently severe and pervasive to alter the conditions of her employment. The Commission noted that the Agency failed to respond to the Notice to Show Good Cause, and drew an adverse inference against the Agency, finding that, had the Report of Investigation been provided, it would have established that Complainant was subjected to hostile work environment harassment based on gender and reprisal. Finally, because the harassment culminated in a tangible employment action, the Commission found the Agency vicariously liable for the Supervisor's actions. The Agency was ordered, among other things, to investigate Complainant's claim for damages, pay attorney's fees, and provide training for the responsible official. Tsosie v. Dep't of the Interior, EEOC Appeal No. 0120081612 (August 31, 2012).

Commission Sanctions Agency for Failure to Submit Complete Record. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it did not select her for a specific position. Following an investigation, the AJ issued a decision without a hearing in favor of the Agency. Upon receipt of Complainant's appeal, the Commission sent a letter to the Agency asking it to provide the complete record within 30 calendar days. The letter advised the Agency that failure to provide the complete record could result in the Commission drawing an adverse inference in the matter. A follow-up request was sent by e-mail, but the Agency did not respond to either request. On July 3, 2012, the Commission issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed. The Notice stated that various documents were missing from the record, and ordered the Agency to submit the complete file or provide good cause for not doing so. The Agency did not respond to the Notice. The Commission found that the Agency's failure to submit the complete record made it impossible to determine whether the AJ appropriately issued a decision without a hearing. Thus, the Commission concluded that the imposition of sanctions was warranted, and remanded the matter for an administrative hearing. In addition, the Commission stated that an additional sanction was warranted in this case. The Commission ordered the Agency to notify Complainant of his right to retain an attorney for the hearing which would be paid for by the Agency. James v. Dep't of Agric., EEOC Appeal No. 0120093668 (August 29, 2012); see also Chattopadhyay v. Dep't of Health & Human Serv., EEOC Appeal No. 0120091142 (September 28, 2012) (the Commission sanctioned the Agency for its repeated failure to submit the complete record by remanding the underlying complaint for an administrative hearing, and ordering the Agency to notify Complainant of his right to retain an attorney who would be paid for by the Agency); .

Remand for a Hearing Was Appropriate Sanction. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race, national origin, and in reprisal for prior EEO activity when it terminated him from his position. Following an investigation, the AJ issued a decision without a hearing in favor of the Agency. The Agency issued a final order implementing the AJ's decision from which Complainant appealed.

Upon determining that the Agency had not complied with the initial order to forward the complaint file, the Commission issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed, directing the Agency to forward the file immediately. The Agency responded by submitting a file that was not complete. Specifically, the file did not include any documents associated with the hearing stage proceedings. As a result, the Commission could not determine if the AJ had appropriately issued a decision without a hearing. The Commission stated that a sanction was warranted as a result of the Agency's failure to forward a complete record. The Commission concluded that the appropriate sanction was to vacate the final order and remand the matter to the Agency with instructions to arrange for a hearing. Shehata v. Dep't of Veterans Affairs, EEOC Appeal No. 0120102315 (May 9, 2012).

Default Judgment Proper as Sanction for Agency's Failure to Produce Complete Record. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her disability and in reprisal for prior EEO activity when it denied her request for administrative leave. The matter had been before the Commission previously. At that time, the Commission reversed an AJ's decision without a hearing, and remanded the matter for further processing. Subsequently, a hearing was held resulting in a finding no discrimination. Complainant appealed that decision to the Commission.

The Commission noted that it made several requests to the Agency for the complete record pertaining to the complaint, including the hearing record. In addition, the Commission issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed (Notice to Show Cause). The Notice to Show Cause ordered the Agency to submit the complete file, including the hearing record or provide good cause why it could not do so. The Agency responded to the Notice to Show Cause; however, it still failed to provide a copy of the hearing record and offered no explanation for the omission. The Commission stated that the Agency's failure to submit the complete record made it impossible to determine whether the AJ's findings and credibility determinations were supported by the record. Thus, the Commission entered default judgment against the Agency as a sanction for its repeated failure to forward a complete copy of the record. The Commission noted that it had previously found that Complainant established a prima facie case of discrimination sufficient to create an inference of discrimination based on disability and reprisal which was sufficient to support the default judgment entitling Complainant to relief. The Agency was ordered, among other things, to change Complainant's leave record to show that she used administrative leave on the dates in question, and investigate her claim for compensatory damages. Smith v. Soc. Sec. Admin., EEOC Appeal No. 0120092646 (April 11, 2012).

Commission Sanctions Agency for Failing to Produce Evidence. Petitioner worked for the Agency as a Management and Program Analyst. In 2003, he filed a formal EEO complaint with regard to a non-selection. The individual who was selected for the position became Petitioner's Supervisor. The Agency subsequently issued Petitioner a 30-day suspension for providing certain information to the EEO Investigator and his attorney. Petitioner filed a mixed case appeal with the Merit Systems Protection Board (MSPB) alleging that the Agency retaliated against him when it issued him the suspension. The MSPB AJ issued an initial decision finding reprisal discrimination. The full Board granted the Agency's petition for review and reversed that finding. The Commission's decision on the prior petition for review found that Petitioner established a prima facie case of reprisal, and that the Agency articulated a legitimate, nondiscriminatory reason for the suspension, that is Petitioner violated a conduct standard by improperly disclosing government information during the EEO process. With respect to pretext, however, the Commission found that the record was not developed as to whether the Agency would have issued the suspension absent a retaliatory motive. The Commission remanded the matter to the MSPB for additional comparator evidence, with specific instructions to the Agency to provide evidence of how it disciplined other employees who violated the same conduct standard. On remand, the Agency submitted a copy of its standards of conduct, as well as documentation concerning two employees who were disciplined for disclosing information during the EEO complaint process. Petitioner submitted documentation concerning a Manager who Petitioner stated had not engaged in EEO activity and was not disciplined for similar disclosures. The Agency noted that it confined its comparator evidence to that which was actually considered in suspending Petitioner, and that Petitioner was aware of other instances when employees were disciplined for unauthorized disclosure of information which did not involve the EEO complaint process.

After reviewing the supplemented record, the Commission differed with the MSPB's final decision and found reprisal discrimination. The Commission noted that the purpose of remanding the matter to the Agency was to supplement the record which was devoid of comparative treatment evidence. The Commission stated that the Agency was instructed to provide evidence regarding how it disciplined other employees who violated the standards of conduct concerning the disclosure of information. The Commission noted that the Agency elected not to provide the information even though it was apparently aware of existing, relevant comparative treatment evidence. Instead, the Agency merely asserted, without proof, that it had disciplined employees for similar violations that did not occur in the EEO process without providing further information about those cases. The Commission found that the Agency failed to comply with the explicit order to produce comparative treatment evidence showing the types of discipline other employees received for similar infractions. Thus, the Commission exercised its discretion to sanction the Agency for its noncompliance, drawing an adverse inference that the requested comparative evidence would have reflected unfavorably on the Agency by showing that the Agency disciplined employees for unauthorized disclosure of government information more harshly when such disclosure occurred in the EEO process. The Commission then found that drawing such an adverse inference against the Agency was sufficient to establish pretext for Petitioner's retaliation claim. Specifically, the Commission determined that the Agency failed to provide any evidence of non-EEO uses of government information it considered unauthorized. The only evidence in the record reflected that the Agency considered the disclosure of such information and documents in the EEO process, to an EEO Investigator and to an attorney, to be unauthorized. The Commission remanded the case to the MSPB to consider all remedies appropriate with a finding of reprisal under Title VII. Smith v. Dep't of Transp., EEOC Petition No. 0320080085 (March 21, 2012).

Decision in Favor of Complainant as Sanction for Agency's Delay Was Proper. Complainant, a Senior Attorney, filed a formal EEO complaint and two subsequent amendments alleging race, sex, and age discrimination when he was not selected for other Senior Attorney positions. Complainant noted that, as a result of the discrimination, he would likely be terminated due to the proposed closing of his facility. A contract Investigator sent the final report of investigation to the Agency in January 2001, but the Agency did not send a copy of the investigative file to Complainant for over two years even though Complainant made several requests for the file. Complainant ultimately requested an administrative hearing, and the AJ ordered the Agency to produce the complaint file and notified the Agency that it could face sanctions if it failed to do so. The Agency did not properly or timely respond to Complainant's motions or the AJ's order to produce the complaint file. Instead, it unilaterally converted what had been for years an EEO complaint into a mixed-case complaint, stating that it had amended the complaint to include an allegation of constructive discharge. The Agency then attempted to issue a mixed-case final decision finding no discrimination before the AJ could exercise his inherent power to determine whether he had jurisdiction over the complaint. Without access to the complaint file, report of investigation, or final Agency decision, the AJ issued an order to retain jurisdiction over the complaint in June 2003. The AJ allowed Complainant, however, to appeal the constructive discharge claim to the MSPB. No appeal was ever filed with the MSPB, and, because no one ever informed the AJ of this fact, the AJ continued to hold the case in abeyance. This contributed to an additional four-year delay in processing the complaint. Eventually, the AJ issued a decision fully in favor of Complainant as a sanction against the Agency for failing to timely complete the investigation.

On appeal, the Commission concluded the AJ did not abuse his discretion in issuing a decision fully in favor of Complainant. Specifically, the Agency was 862 days late in sending Complainant a copy of the report of investigation. Therefore there was a basis in the record and law for the AJ to characterize the Agency's non-compliance as a failure to timely complete the investigation. The Commission noted that its regulations are clear that an investigation is "complete" only when the Agency successfully performs several actions, including providing a copy of the investigative file to the Complainant. The Commission stated that one of the most serious consequences of the delay in completing the investigation was the failure to timely interview the subordinate Agency officials who actually reviewed and evaluated Complainant's application for two of the positions. The Commission also found that the Agency failed to show good cause for the 862 day delay. There was no legal authority permitting agencies to deliberately withhold finished reports of investigation from complainants. The Commission found that the Agency's assertions that it was processing the complaint as a mixed case before the AJ ordered it to produce the complaint file, and that it was holding the complaint in abeyance due to the processing of a related class complaint were not credible. There was no documentary evidence to support the Agency's account of how it processed the complaint, and the Agency gave inconsistent and contradictory accounts of when it allegedly amended and investigated the constructive discharge claim. Finally, the cumulative effect of the Agency's failure to properly process this complaint eroded the integrity of the EEO process to such an extent that it warranted the ultimate sanction of issuing a decision in favor of Complainant. The Agency failed to follow the proper motion practices and procedures for resolving jurisdictional issues before the AJ, and exacerbated the delay initially caused by its failure to timely complete the investigation.

The Commission also found that the AJ did not abuse his discretion in determining that the limited evidence before him supported Complainant's age discrimination claim with regard to one of the non-selections. Complainant, who was more than 40 years old, was found to be highly qualified and was one of three finalists, but was not selected in favor of someone substantially younger than he was. Further, the Selecting Official averred that neither the Selectee nor Complainant had direct experience in the type of work done in that position, but the Selecting Official chose the Selectee because he thought the Selectee would be "more productive" than Complainant. The Commission found that evidence sufficient to create an inference that the Selecting Official denied Complainant an employment opportunity based on a discriminatory criterion, specifically, that older workers were less efficient or productive than younger workers. The Agency was ordered, among other things, to unconditionally offer Complainant a Senior Attorney position, or a substantially equivalent position, with appropriate back pay and benefits, and pay Complainant reasonable attorney's fees and costs. Adkins v. Fed. Deposit Ins. Corp., EEOC Appeal No. 0720080052 (January 13, 2012).

Commission Issues Default Judgment Against the Agency as Sanction. Complainant, an Animal Care Taker, filed a formal EEO complaint alleging national origin discrimination when the Agency terminated her employment during her probationary period. The Agency initially dismissed the complaint for untimely EEO Counselor contact. On appeal, the Commission reversed the Agency's decision and remanded the matter ordering the Agency to process the complaint, issue Complainant a copy of the investigative file, and notify her of the appropriate rights within 150 calendar days of the date its decision became final. The Agency initiated the investigation into Complainant's complaint 202 days after the Commission's appellate decision became final, and provided Complainant with the report of investigation and notice of her right to request a hearing 299 days after the Commission's decision became final. Complainant requested a hearing in the matter. Later when Complainant did not comply with the AJ's Motion to Compel Discovery, the Agency filed a motion for sanctions. Complainant filed a reply, providing several reasons for her delay, urging the AJ not to issue sanctions against her, and alleging that the Agency failed to keep her appraised of her rights during the process or conduct the investigation within the time frame previously ordered by the Commission. The AJ granted the Agency's motion and sanctioned Complainant. The AJ also denied Complainant's motion to sanction the Agency for failing to comply with the Commission's prior order. After a hearing, the AJ found no discrimination.

On appeal, the Commission agreed with Complainant that the AJ erred in denying her motion to sanction the Agency for its delay. The Commission noted that the Agency was well aware that it was bound by the Commission's previous decision to investigate the complaint in accordance with the Commission's order, but it delayed in doing so. Thus, the AJ should have granted Complainant's motion for sanctions for the Agency's failure to follow the Commission's order to complete the investigation within 150 days. The Commission noted that the Agency was given the opportunity to show cause as to why sanctions were not warranted, but the Agency did not provide documentation or otherwise explain its delay and also did not cite authority for the proposition that its delay was less harmful than were Complainant's own procedural delays. The Commission concluded that default judgment in Complainant's favor was an appropriate sanction in this case. With regard to the remedy, the Commission concluded that Complainant was not entitled to reinstatement into her former position with back pay and restoration of her benefits, because she failed to establish a prima facie case of discrimination. Specifically, Complainant did not identify any similarly situated individuals outside of her protected class who were treated more favorably than she, nor did she submit evidence establishing an inference of discrimination. Complainant's failure to establish a prima facie case of discrimination did not, however, preclude her from the award of other remedies, and the Commission remanded the matter to determine Complainant's entitlement to compensatory damages and/or attorney's fees. Montes-Rodriguez v. Dep't of Agric., EEOC Appeal No. 0120080282 (January 12, 2012), request for reconsideration denied, EEOC Request No. 0520120295 (December 20, 2012).

AJ's Dismissal of Hearing Request Was Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his national origin and age, and subjected him to a hostile work environment. Complainant cited a number of incidents in support of his claim including various issues regarding his working conditions, assignments, counseling regarding his performance, and the termination of his contract position. The Agency accepted the complaint and conducted an investigation, after which time Complainant requested an administrative hearing. The AJ ultimately denied the hearing request as a sanction for failing to provide complete responses to the Agency's discovery requests. On appeal, the Commission found that the AJ's imposition of a sanction was improper. The Commission noted that Complainant, who was not represented by counsel, indicated that he was not pursuing sex discrimination as a basis, which was responsive to one of the Agency's interrogatories. Further, several of the interrogatories broadly asked Complainant to specifically provide comprehensive information regarding every incident of alleged harassment. The Commission stated that, given the numerous alleged incidents, Complainant's reference to the report of investigation, which contained extensive information and documentation regarding his claim, was sufficiently responsive. Further, the Commission indicated that Complainant's reference to his discovery request which set forth in detail his beliefs about credibility, was a complete response to an interrogatory concerning the credibility of witnesses. Complainant also sufficiently responded to interrogatories regarding damages. Finally, the Commission found that Complainant did not ignore the Agency's discovery requests, and was responsive to them. Thus, the Commission remanded the matter for an administrative hearing. Abulsaad v. Dep't of the Navy, EEOC Appeal No. 0120102379 (March 26, 2012).

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

Breach of Settlement Found. The parties entered into a settlement agreement that provided, among other things, that following a detail assignment, Complainant's Supervisor or a designated management official would "act in good faith" in making a determination whether or not to certify Complainant as successfully completing his probationary period, and the Agency would notify Complainant before a decision was made to terminate him. On appeal, the Commission found that the Agency breached the agreement. The Commission found no evidence that the Supervisor acted in good faith in making the determination regarding Complainant's completion of his probationary period. The Commission stated that implicit in the terms of the agreement was the expectation that the Supervisor would consider the recommendation from Complainant's detail as part of her decision making process. The record, however, indicated that the Supervisor's pre-settlement position regarding Complainant's performance was identical to her prior statements. In addition, the record was devoid of evidence to conclude that the Supervisor gave any consideration to the positive recommendation of Complainant's performance during the detail. The Commission further found that the Agency failed to comply with the requirement to notify Complainant before a decision was made to terminate him. The termination letter was addressed directly to Complainant and there was no evidence that Complainant was aware of the Supervisor's recommendation before he received the decision letter. The Agency was ordered to reinstate the matter for processing. Nash v. Dep't of the Interior, EEOC Appeal No. 0120110314 (August 31, 2012).

Settlement Agreement Void. Complainant and the Agency entered into a settlement agreement which provided, in pertinent part, that Agency management would make decisions based on the workload of all routes, "including carrier input," and assign overtime pursuant to the collective bargaining agreement, as well as provide Complainant with the same rights and privileges as all other employees. Complainant subsequently alleged that the Agency breached the agreement when it required him to work overtime without carrier input on the assignment. On appeal, the Commission found that the settlement agreement was void due to a lack of consideration and for being too vague to enforce. The Commission noted that the Agency essentially agreed to treat Complainant in accordance with existing policies and the collective bargaining agreement which it was already required to do under the union contract. Further, it was unclear what type of action on Complainant's part was considered "carrier input" and for what decisions the Agency was required to consider such input. Therefore, the terms were too vague to be enforced. The Agency was ordered to resume processing the underlying complaint. Mann v. U.S. Postal Serv., EEOC Appeal No. 0120121892 (August 21, 2012).

Breach of Settlement Found. The parties entered into a settlement agreement in December 2011, pursuant to which the Agency would reduce a three-day suspension to a one-day suspension with back pay for the two days served, and change the terminology of the suspension from "falsification of records" to "misconduct." Complainant alleged that the Agency breached the agreement when it issued him a Notice of Decision to Suspend that stated he had previously been notified of a decision to suspend him for three days based upon the charge of falsification, and in "accordance with the settlement agreement," the suspension was reduced to one day based upon the charge of misconduct. On appeal, the Commission found that the Agency breached the agreement. The Commission found that the express wording of the agreement simply stated that the suspension would be reduced without mentioning the settlement, and that the terminology of "falsification of records" would be replaced by the word misconduct. Thus, the Agency was ordered to implement the terms of the agreement. McGregor v. Dep't of the Air Force, EEOC Appeal No. 0120121839 (July 20, 2012).

Settlement Agreement Void for Not Meeting Requirements of OWBPA. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his age when it did not rehire him to a vacant position. The parties subsequently entered into a settlement agreement which provided, in pertinent part, that the Agency would give Complainant the opportunity to re-apply for employment if an opportunity arose within a one-year period. Following Complainant's allegation of breach, the Commission, on appeal, found that the agreement was void because it did not meet the requirements of the Older Workers' Benefits Protection Act (OWBPA). Specifically, the agreement did not mention Complainant's rights or claims under the ADEA, and there was no indication that Complainant was advised in writing to consult with an attorney. Further, there was no indication that Complainant was given a reasonable period of time in which to consider the agreement, and the agreement did not state that Complainant had seven days to revoke the agreement. Thus, the underlying complaint was remanded to the Agency for further processing. Daniels v. U.S. Postal Serv., EEOC Appeal No. 0120103252 (May 31, 2012).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement that stated, in pertinent part, that the Agency would provide Complainant with informal training regarding Complement Coordinator duties, and a "fair" opportunity to act for the Manager of Labor Relations when necessary. On appeal, the Commission found that the Agency breached the agreement when it failed to give Complainant the agreed upon training. While the Agency stated that it sent Complainant to an Advanced Complement Coordinator Training course, the record showed that Complainant had previously attended that course. The Commission stated that "informal training" did not mean sending Complainant to a class he had already taken. Further, given Complainant's assertions that another employee received constant informal training on the job which allowed the person to better qualify for future positions, the Commission concluded that the training Complainant was given was not informal training. With regard to the Manager position, the Agency stated that Complainant served in an acting capacity for one day. The Commission, however, noted that this occurred after Complainant filed his notice of breach. In addition, the Agency did not dispute Complainant's assertion that another employee was allowed to serve in the acting position for several weeks. Thus, the Commission was not convinced that the Agency gave Complainant a "fair opportunity" to serve as an Acting Manager. The Agency was ordered to specifically implement the terms of the agreement. Milito v. U.S. Postal Serv., EEOC Appeal No. 0120121051 (May 18, 2012).

Settlement Agreement Void for Lack of Consideration. The parties entered into a settlement agreement whereby the Agency agreed to refer Complainant to its District Reasonable Accommodation Committee (DRAC) and engage in the reasonable accommodation interactive process. It was also agreed that if Complainant could not continue in her carrier position, DRAC would explore whether she could be reassigned to a position to which "she is entitled by law" at or below her grade level, and if so, offer it to her. The settlement agreement contained a parenthetical that a part-time job would only be offered if no full-time job existed. It also provided that management retained the final decision on all accommodations after DRAC made its recommendations. Complainant was ultimately offered a part-time Mail Handler position, which she accepted. Later, she contended the Agency breached the settlement agreement because full time Mail Handler positions were available. On appeal, the Commission found that the settlement agreement was void because it did not offer Complainant anything more than that to which she was entitled by law, that is, reasonable accommodation for a disability. To the extent the agreement's contradictory language regarding full and part time positions created ambiguity, the Commission turned to extrinsic evidence to aid in the interpretation, noting that the Agency's attorney who negotiated the agreement stated that he believed Complainant was a full time employee and the Agency did not intend to give her a promotion to a full time position as a reasonable accommodation but only that to which she was "entitled by law." Thus, the settlement agreement was void for lack of consideration, and the complaint was remanded to the Agency for further processing. The Commission advised the Agency that since the record suggested Complainant received her part time Mail Handler position as a result of the reasonable accommodation process required by the Rehabilitation Act, nothing in its decision should disturb her placement into that position. Hawkins v. U.S. Postal Serv., EEOC Appeal No. 0120120966 (April 20, 2012), request for reconsideration denied, EEOC Request No. 0520120439 (October 24, 2012).

Agency has Burden of Proof in Dispute over Whether Settlement Agreement Violates a Pre-existing CBA. Complainant entered into a settlement agreement with the Agency resolving his EEO complaint. Pursuant to the terms of the agreement, the Agency was to award Complainant a specific bid job. When the Agency did not place Complainant in the agreed upon bid job, he alleged that the Agency breached the settlement agreement. The Agency determined that the agreement violated the provisions of the collective bargaining agreement (CBA). The Agency noted that the settlement agreement would be set aside, and the underlying complaint reinstated. On appeal, the Commission originally found the Agency's final decision proper. The Commission subsequently reconsidered the matter on its own motion, noting that the case raised an issue regarding which party has the burden of proof when there was a dispute over whether a settlement agreement violated a pre-existing CBA. The Commission sought to clarify the previous decision's application of the decision in Pyles v. U.S. Postal Serv., EEOC Request No. 05920044 (April 22, 1992), and stated that Pyles stood for the principle that the Commission will examine whether a settlement agreement does in fact violate a relevant CBA before setting aside the settlement. The Commission went on to find that the Agency failed to meet its burden of establishing that the agreement was in violation of the CBA. While the Agency asserted that the agreement violated the CBA because the position at issue should have been posted for bid, the record did not clearly support that contention. Complainant stated that he received the highest score for the position when he initially applied, and should have been awarded the position. Further, a union official averred that the agreement was not in conflict with the CBA, and that Complainant was entitled to the position. Thus, the Commission remanded the matter to the Agency to implement the terms of the settlement agreement. The Commission emphasized the importance of having the Agency's Labor Relations personnel review agreements prior to execution in order to avoid conflicts with relevant CBAs. Iglesias v. U.S. Postal Serv., EEOC Request No. 0520110503 (March 30, 2012).

Settlement Agreement Void for Lack of Consideration. Complainant and the Agency entered into a settlement agreement on July 12, 2011, that provided, in pertinent part, that the Agency would reassign Complainant from the Contracting section to the Transportation section. After receiving a letter from Complainant, the Agency issued a final decision finding that it had complied with the terms of the agreement. Specifically, the Agency stated that it reassigned Complainant prior to the execution of the settlement agreement. On appeal, the Commission found that the settlement agreement was void for lack of consideration, stating that the Agency only provided as consideration something it had previously provided. The Agency acknowledged that it had already transferred Complainant to the Transportation section, and, as such, incurred no legal detriment as a result of the settlement agreement. Pagan-Nunez v. Dep't of the Army, EEOC Appeal No. 0120120257 (February 27, 2012).

Settlement Agreement Void. Complainant and the Agency entered into a settlement agreement that provided, among other things, that Complainant would be scheduled "consistently" for vacant routes when otherwise scheduled, and that if Complainant failed to "consistently" demonstrate her availability, she could forfeit those scheduling opportunities. On appeal, the Commission found that the term "consistently" was too vague to permit enforcement of the agreement. In addition, the Commission concluded that there did not appear to be a meeting of the minds as to what that term meant and the effect of Complainant not being "consistently" available to work vacant routes. Complainant apparently believed that her non-availability did not preclude her from all scheduling opportunities, while the Agency believed that, once Complainant was consistently unavailable, she was precluded from all scheduling opportunities. The Commission noted that a binding settlement agreement requires a contemporaneous meeting of the minds. Thus, the matter was remanded to the Agency to reinstate the underlying complaint for processing. Lukas v. U.S. Postal Serv., EEOC Appeal No. 0120103165 (February 23, 2012).

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).

No Breach Found. Complainant and the Agency entered into a settlement agreement which provided, among other things, that Complainant and two other employees would be scheduled for elevator duty on a rotating basis. Complainant subsequently alleged that the Agency breached the agreement when the rotation schedule did not allow for adjustments due to illness, holidays or other factors. On appeal, the Commission found that the Agency did not breach the agreement. Complainant did not refute the Agency's assertion that elevator duties were rotated on a daily basis as provided for in the agreement. The Commission stated that the agreement did not contain an affirmative obligation on the Agency to schedule Complainant for a specific rotation of his preference. Thus, Complainant's objection to the rotation schedule was beyond the scope of the agreement. The Commission noted that, to the extent Complainant wanted the agreement to provide a specific schedule rotation, the requirement should have been reduced to writing as part of the agreement. Williams v. U.S. Postal Serv., EEOC Appeal No. 0120122065 (August 24, 2012), request for reconsideration denied, EEOC Request No. 0520120597 (January 3, 2013).

Stating a Claim

Claims of Discrimination Based on Transgender Status Cognizable Under Title VII. The Commission accepted an appeal for the limited purpose of clarifying Title VII's coverage of claims involving transgender status. Complainant, a transgender female, alleged in her complaint that she was discriminated against based on sex, transgender status and gender identity when her job offer was canceled after the Agency learned that she was in the process of transitioning from a male to a female. The Agency refused to process the transgender status and gender identity aspects of her claim, finding those "claims" not covered by Title VII and, thus, outside EEOC's jurisdiction.

The Commission held that claims of discrimination based on transgender status, also referred to as gender identity claims, are cognizable under Title VII's sex discrimination ban and may, therefore, be processed under EEOC's regulations. The Commission noted that the Supreme Court held, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that sex discrimination under Title VII was not limited to discrimination because of biological sex. It also encompassed gender stereotyping, that is, when an employer treats an employee adversely for failing to conform to gender-based expectations or norms. The Commission noted that federal courts have widely recognized the availability of the Price Waterhouse "sex stereotyping" theory as a valid method of establishing sex discrimination in cases involving individuals who act or present in gender non-conforming ways. The Commission added that transgender individuals are not limited to proving sex discrimination under a sex stereotyping theory, but may establish sex discrimination in the same ways non transgendered individuals establish such discrimination. The Commission remanded the complaint to the Agency for processing in accordance with its ruling. The decision made no findings with respect to the merits of the claim. The decision makes clear that Commission policy is that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex in violation of Title VII. Therefore, complaints of discrimination on the basis of transgender status should be processed under Title VII as claims of sex discrimination. Macy v. Dep't of Justice, EEOC Appeal No. 0120120821(April 20, 2012).

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

Talley v. Nuclear Regulatory Comm'n, EEOC Appeal No. 0120110737 (September 26, 2012) (Complainant's allegation that, during her mid-year review, her Supervisor angrily and at length commented on the questioning the Supervisor underwent concerning Complainant's pending EEO claim stated a viable claim of retaliation. Complainant stated that the comments led her to believe that the Supervisor would take action to lower her performance evaluation or make it more difficult for Complainant to receive a promotion. Thus, the Supervisor's comments could have had a chilling effect on a reasonable employee's exercise of her rights under the EEO laws).

Hill v. Dep't of Justice, EEOC Appeal No. 0120121735 (August 24, 2012) (the record showed that the Agency exercised sufficient control over Complainant's position to qualify as an employer for purposes of the EEO complaint process. The Agency directly assigned Complainant work, controlled the means of his performance, approved his requests for time off, evaluated him, and had the power to unilaterally suspend him. Further, the preponderance of the evidence showed that Complainant worked under Agency supervision); see also, Shamloo v. Dep't of Justice, EEOC Appeal No. 0120121323 (June 15, 2012) (Complainant met the definition of an employee for purposes of stating a claim of discrimination. The contract between Complainant and the Agency indicated that the Agency controlled the means and manner of Complainant's performance. An Agency Supervisor assigned and monitored Complainant's work, and the Agency periodically evaluated Complainant's work product. While Complainant did not earn leave or retirement benefits, and the Agency did not pay taxes on Complainant's services, Complainant did nearly all of his work on Agency premises using Agency equipment, and had a continuing relationship serving the Agency for several years. Thus, the Commission found that the Agency exercised sufficient control over Complainant's position to qualify as his employer); Pugh v. U.S. Postal Serv., EEOC Appeal No. 0120121010 (June 15, 2012) (the Agency exercised sufficient control over Complainant's position to qualify as her employer for purposes of the EEO complaint process. The Agency conceded that it oversaw Complainant's duties, and had the right to control the means and manner of her performance, including her schedule, the precise nature of her work and her personal appearance. An Agency employee supervised Complainant's work, some of which was performed at the Agency's premises. While Complainant was required to provide her own vehicle, the Agency dictated the type of vehicle she needed. In addition, Complainant was paid monthly based on the number of hours worked each day. Complainant did not earn leave or retirement benefits and the Agency did not pay taxes, but her duties picking up and delivering mail was an integral part of the Agency's business).

Hunter v. Dep't of Def., EEOC Appeal No. 0120122147 (August 15, 2012) (the Agency improperly dismissed Complainant's complaint for failure to state a claim on the grounds that she did not check an appropriate box on the complaint form indicating the bases of the alleged discrimination. The EEO Counselor's report indicated that Complainant claimed the Agency retaliated against her, and on appeal, Complainant identified age and reprisal as the bases for her claim. The Commission has held that a complainant may delete or add bases of discrimination during the complaint process, and Complainant clarified the bases of her allegations).

Thomas v. Dep't of the Army, EEOC Appeal No. 0120122076 (August 7, 2012) (Complainant's allegation that the Agency failed to post a vacancy and reassigned another employee to the position in order to avoid promoting her because of her protected classes stated an actionable claim of discrimination. The Agency's assertion that the other employee was a good fit for the position went to the merits of the complaint and was not relevant to the procedural issue of whether Complainant stated a justiciable claim).

Brumfield v. Soc. Sec. Admin., EEOC Appeal No. 0120121700 (July 30, 2012) (the Agency improperly defined Complainant's allegation of discriminatory harassment as comprising only three incidents and dismissed the matter for failure to state a claim. A fair reading of Complainant's EEO complaint and the related counseling report reveals that Complainant also provided other examples to support her claim including not being allowed to serve as a mentor or act as a Technical Training Instructor, and her Supervisor physically preventing her from performing her duties. Thus, Complainant set forth an actionable claim of retaliatory harassment).

Smyth v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121729 (July 25, 2012), request for reconsideration denied, EEOC Request No. 0520120564 (December 7, 2012) (Complainant's allegation that she was paid less than other similarly situated clinical dieticians who were younger stated a viable claim of age discrimination. The Agency's assertion that determinations concerning locality pay were made pursuant to OPM salary rules addressed the merits of the claim without a proper investigation).

Harris v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121897 (July 20, 2012) (Complainant's allegation that management sent an e-mail to other employees which contained statements about his performance appraisal stated a viable claim of retaliation. Despite the Agency's assertion that the e-mail was sent out "inadvertently," it was sent out shortly after Complainant settled an EEO complaint involving the appraisal).

Browning v. Dep't of Labor, EEOC Appeal No. 0120121405 (June 27, 2012) (Complainant's allegations of sexual harassment by her Manager, including a dozen incidents in which the Manager hugged or kissed her, stated a viable claim under Title VII. A fact finder could conclude that the Manager's conduct was severe enough to create a hostile work environment. Complainant stated that she found herself the target of repeated hugs and kisses to the point that she altered her work routine and assignments to avoid contact with the Manager. The Agency's assertions that the incidents occurred at infrequent intervals and were not sexual in nature go to the merits of the claims).

Gladle v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121572 (June 13, 2012) (Complainant's allegation that her first level Supervisor told a co-worker that Complainant was filing false EEO claims and "faking" a disability, when considered with her second level Supervisor's alleged failure to take action in the matter could have a chilling effect on Complainant's use of the EEO process and stated a viable claim of reprisal).

Azadpour v. Dep't of Transp., EEOC Appeal No. 0120121414 (June 12, 2012) (Although Complainant failed to check a box on his formal complaint form to indicate the basis of alleged discrimination he was claiming, the EEO Counselor's report clearly indicated that Complainant was raising the basis of retaliation, and Complainant confirmed this on appeal. Thus, Complainant stated a viable claim); see also, 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).

Murbach v. Nat'l Sec. Agency, EEOC Appeal No. 0120121283 (May 30, 2012) (Complainant's allegation that the Agency did not provide her with a sign language interpreter for a networking dinner reception stated a viable claim of disability discrimination. The dinner was part of a conference Complainant attended. Complainant asserted that the dinner reception was a valuable part of the conference and she was deprived of the ability to effectively participate in the networking opportunity. The Commission noted that the Agency is not relieved of its obligations to provide reasonable accommodation when it contracts with a third party to conduct an event).

Marbly v. U.S. Postal Serv., EEOC Appeal No. 0120111499 (May 15, 2012) (Complainant's claim that a management official threatened to fire him while quoting from Complainant's testimony in a prior EEO complaint, was sufficient to state a claim of reprisal because such behavior would be reasonably likely to deter Complainant or others from engaging in protected activity).

Harris v. Soc. Sec. Admin., EEOC Appeal No. 0120121157 (May 9, 2012) (Complainant stated a viable claim of discriminatory harassment when she asserted that, after she notified the Agency that she needed to work close to the restroom due to a medical condition related to her pregnancy, the Office Manager told her to move to a work station away from the restroom, told her he "didn't care about her Doctor's note," and directed her to remove the chair she was using to move files in excess of her lifting restrictions. Based on the severity of the alleged events, the Commission concluded that Complainant stated a claim of harassment. The Agency's discussion regarding whether or not Complainant was denied an accommodation went to the merits of the complaint without a proper investigation as required by the regulations).

Robinson v. Dep't of Transp., EEOC Appeal No. 0120120704 (March 26, 2012) (Complainant's allegation that the Agency permanently reassigned her to another Division stated a viable claim of retaliation. Complainant alleged that the new position involved significantly more lower-level administrative support work than her former position, impacted her ability to receive career ladder promotions, and exposed her to a greater chance of being affected by a reorganization or reduction in force. When viewed in the context of the allegations concerning the same Supervisor raised in the earlier complaint, Complainant stated a viable claim of retaliation. The Commission also noted that the Agency may have procedurally erred in not accepting the claim as an amendment to Complainant's prior complaint, and instructed the Agency to consolidate the claims if possible).

Jefferson v. U.S. Postal Serv., EEOC Appeal No. 0120120086 (March 23, 2012) (Complainant's allegation that the Agency discriminated against her when it failed to investigate an incident involving an envelope she received from another employee which contained a racial and sexist slur and the phrase "I'll get you," stated a viable claim of harassment. The Agency's alleged tolerance of the racial epithet in combination with a significantly threatening comment was sufficiently severe to state a claim of discriminatory harassment. The Agency's assertion regarding an ongoing investigation into the matter went to the merits of Complainant's claim and was not relevant to the issue of whether Complainant set forth an actionable claim).

Ballard-Collins v. Dep't of the Army, EEOC Appeal No. 0120120047 (March 6, 2012) (Complainant alleged a series of tangible and intangible actions, including her Supervisor denying her requests for compensatory time, accusing her of falsely requesting compensatory time, drafting a disciplinary action against her, and refusing to correct the leave calendar, which stated a viable claim of hostile work environment harassment. The Agency improperly treated the matters raised in the complaint in a piecemeal manner instead of as incidents supporting a single claim of ongoing harassment); see also McCarty v. U.S. Postal Serv., EEOC Appeal No. 0120114329 (March 9, 2012) (the Agency improperly fragmented Complainant's claim and dismissed parts of it on various procedural grounds. When viewed together, Complainant's claim that he was subjected to consecutive disciplinary actions and false accusations, and denied work based on a perceived medical condition, were part of a series of alleged discriminatory and retaliatory events that alleged an ongoing pattern of harassment).

Voss v. U.S. Postal Serv., EEOC Appeal No. 0120113871 (January 31, 2012) (Complainant's claim that the Agency discriminated against him when it changed his start time from 5:50 a.m. to 9:30 a.m. stated a viable claim. While the Commission has affirmed the dismissal of claims involving minor changes in start time, the change in this case of over three and one-half hours resulted in a far different work schedule).

Guice v. U.S. Postal Serv., EEOC Appeal No. 0120113857 (January 30, 2012) (Complainant stated a viable claim of discriminatory/retaliatory harassment. While the Agency defined the claims as only alleging that Complainant was placed on the "deems desirable" list without prior notification, Complainant specifically referenced her "pre-complaint" when asked to explain her claim. The EEO Counselor's report shows that in addition to the "deems desirable" list issue, Complainant indicated that she was having difficulty with her leave, management was not accommodating her medical restrictions, and she was placed off work. The Commission stated that those allegations, raised during counseling and incorporated by reference in the formal complaint, stated an ongoing claim of harassment); see also, Jagdhane v. Gen. Serv. Admin., EEOC Appeal No. 0120110457 (January 27, 2012) (the Agency improperly dismissed Complainant's claim of sex and age discrimination. The formal complaint, standing alone, did not sufficiently state a claim. The Commission stated, however, that, in defining the issues raised in a complaint, the Agency should also review the EEO Counselor's report. In this case, information contained in the Counselor's report made clear that Complainant was alleging that she was improperly denied specific details and promotions, such that Complainant had shown an injury or harm to a term, condition or privilege of employment for which there was a remedy); Tesoro v. U.S. Postal Serv., EEOC Appeal No. 0120113672 (January 17, 2012) (While Complainant indicated in his formal complaint that his prior protected activity was "union steward," the pre-complaint counseling report and EEO ADR Inquiry report noted that Complainant was alleging retaliation for filing two prior EEO complaints. In order to clearly define the issues of a complaint, the Agency should not only look at a formal complaint but also consider its pre-complaint documents. Thus, the Agency's dismissal of the complaint for failure to state a claim was improper); Lee v. U.S. Postal Serv., EEOC Appeal No. 0120113980 (March 23, 2012) (where there is a thematic nexus between issues in the formal complaint and claims that were in the pre-complaint not presented in the formal complaint, those pre-complaint issues should not be considered abandoned and the issues in the formal complaint should be construed as one part of the entire claim. Complainant's complaint was in essence a continuation of the harassment claim she started during the pre-complaint process, and thus, the issues raised in the pre-complaint stage were not abandoned and Complainant stated a viable claim under the EEOC regulations).

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).

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).

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

Wesley v. Office of Pers. Mgmt., EEOC Appeal No. 0120100713 (July 16, 2012), request for reconsideration denied, EEOC Request No. 0520120576 (February 6, 2013) (Complainant's allegation that he was charged a higher premium for optional insurance under the Federal Employee Group Life Insurance (FEGLI) program failed to state a claim under the ADEA. The statute governing additional optional life insurance under FEGLI specifically stated that the Agency could establish the cost of the additional insurance based on the employee's age. Thus, Congress created a statutory exemption to the ADEA when it permitted the Agency to make an age-based determination. Because Congress enacted the statute after the ADEA with full knowledge of the provisions of both, the Commission concluded that Congress intended to create an exception to the ADEA in this case).

Friedman v. Dep't of the Army, EEOC Appeal No. 0120121009 (May 31, 2012) (the Agency properly dismissed Complainant's complaint for failure to state a claim because the record showed that Complainant was not an employee of the Agency. Complainant owned a cleaning service which was awarded a contract by the Agency. The record showed that the Agency did not have the right to control when, where or how Complainant performed her job, nor did it have the right to assign her additional projects or set the hours of work or duration of the job, and Complainant's company furnished all supplies, materials, equipment and transportation necessary to do the work. The Agency paid the company on a monthly basis, and did not provide benefits or withhold taxes. While Complainant performed work on the Agency's premises and there was a continuing work relationship between Complainant and the Agency, the contract and nature of the relationship between the parties did not support a finding that there was an employment relationship); see also Hicks v. Nat'l Aeronautics & Space Admin., EEOC Appeal No. 0120121424 (July 2, 2012) (Complainant was employed by an Agency contractor to provide security services, and the Agency did not exercise sufficient control over Complainant's job to qualify as an employer. Complainant's function involved a moderate level of expertise, she held a top secret security clearance, and worked on Agency premises with materials and equipment provided by the Agency. However, Complainant was not in a "main mission" position, her duties were dictated by the contract, and Agency managers did not provide day-to-day supervision to Complainant or assign her additional projects. The contractor dictated the specific hours she worked, paid her salary and benefits, and both parties stated that Complainant was considered an employee of the contractor for purposes of social security and taxes. The Agency acknowledged that it requested that the contractor identify positions it could cut to reduce its budget, but the contractor identified Complainant's position); Murphy v.U.S. Postal Serv., EEOC Appeal No. 0120121249 (June 27, 2012) (Complainant was solely an employee of an Agency contractor that provided mail transportation service under a term contract. The contractor hired and paid Complainant. The Agency did not provide Complainant with a vehicle or vacation time or assign him work, Complainant was not entitled to participate in the Agency's retirement plan and the contractor paid taxes for Complainant. While the Agency controlled when and where Complainant picked up and dropped off mail, as well as his access to its facilities, there was little else of Complainant's employment that was under the Agency's control); Casiana v. Dep't of the Interior, EEOC Appeal No. 0120121318 (June 15, 2012) (Complainant served as a contractor performing custodial duties for the Agency and was not an employee. While Complainant worked on Agency premises, Complainant provided all equipment and materials, and had flexibility on when she cleaned. Further, under the contract, Complainant supervised her own services, and received payment in installments after submitting invoices. She did not receive leave, did not accumulate retirement benefits, and the Agency did not pay taxes on her services); Timmons v. U.S. Postal Serv., EEOC Appeal No. 0120120899 (May 9, 2012) (the Agency properly dismissed Complainant's complaint for failure to state a claim because the evidence showed that Complainant was solely an employee of one of the Agency's contractors. The documentation of record reflected that this was the parties' intention, and the contractor provided Complainant with the vehicle necessary to perform his duties and paid him for his work. While the Agency controlled when and where Complainant received mail and his access to Agency facilities, there was little else under the Agency's control. Complainant was not allowed to participate in the Agency's retirement plans, the Agency did not withhold taxes, and there was no indication that the Agency had the power to discipline Complainant, approve his leave, or terminate him).

Cote v. Dep't of the Air Force, EEOC Appeal Nos. 0120110601 & 0120121032 (March 28, 2012) (Complainant's allegations that the Agency discriminated against him when it placed his application for an extension of a mandatory separation date on hold pending a successful military fitness test, and that the Agency's Physical Fitness Assessment Program was discriminatory were properly dismissed for failure to state a claim. Complainant's claims addressed matters that were strictly military in nature, and were not within the purview of the EEO process. The actions applied only to uniformed members of the military, and did not apply to Complainant in his civilian employment status).

Morton-Hamlet v. U.S. Postal Serv., EEOC Appeal No. 0120114003 (February 3, 2012) (the Agency properly dismissed Complainant's claim of discrimination alleging that her Supervisor told another manager to deny a change in schedule that Complainant signed for a co-worker because Complainant was not a union steward. Complainant's claim concerned her status as a union steward rather than an employee and, therefore, the proper forum for Complainant to have raised the matters was within the negotiated grievance process. Complainant stated that the matter involved management's conversations as to "who is a steward and who the membership should go to for union business," and should be addressed within the process delineated by the negotiated bargaining agreement).

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).

Timeliness

EEO Counselor Contact Timely. Complainant filed a formal EEO complaint alleging that the Agency subjected her to various incidents of discriminatory harassment from October 2008 through September 2009. The Agency dismissed the matter for failure to timely contact an EEO Counselor. On appeal, the Commission found that the Agency erred in dismissing the complaint. Complainant asserted that she attempted to contact an EEO Counselor by telephone and e-mail, and the record contained a copy of a September 10, 2009, e-mail sent to the Agency's EEO Director. In that e-mail, Complainant stated that she had been subjected to a racially hostile work environment and was seeking assistance. While the Agency asserted that Complainant sent the e-mail twice and on one occasion used an incorrect e-mail address, the Commission stated that the September 10 e-mail appeared to be sent to the Director's correct work e-mail address. The Commission stated that the Agency improperly placed the burden of proof on the issue of timeliness on Complainant rather than itself, and found that the Agency failed to meet its burden. In addition, Complainant was alleging a hostile work environment, and at least one of the incidents occurred within 45 days of her September 10, 2009 contact date. Thus, Complainant timely initiated her EEO complaint. Roney v. Dep't of the Air Force, EEOC Appeal No. 0120121588 (July 18, 2012).

Extension of Time for Contacting Counselor Warranted. Complainant contacted an EEO Counselor in September 2009, and subsequently filed a formal complaint alleging that his Supervisor subjected him to discriminatory sexual harassment from 2003 through 2008. The Agency dismissed the matter for failure to timely contact an EEO Counselor. On appeal, the Commission noted that Complainant's contact with the Counselor was well beyond the 45 day limitation period. Complainant, however, alleged that his Supervisor made a threat against his life if he reported the harassment. The Commission stated that Complainant's account of the threat was specific, and that two individuals confirmed that Complainant informed them a threat had been made against his life. Therefore, in light of the evidence supporting Complainant's legitimate fear of violent, physical reprisal, the Commission found reason to extend the limitation period in this case. Harris v. Dep't of the Air Force, EEOC Appeal No. 0120103332 (July 12, 2012).

EEO Counselor Contact Timely. Complainant contacted an EEO Counselor on September 8, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against him when it changed his duty station. The Agency dismissed the matter for failure to timely contact an EEO Counselor, stating that management notified Complainant of the reassignment on April 14, 2011, which was more than 45 days prior to his contact. On appeal, the Commission found that the dismissal of Complainant's complaint was improper. The effective date of the reassignment was August 14, 2011. Thus, Complainant's contact was within the 45 day limitation period. Leaton v. Dep't of Homeland Sec., EEOC Appeal No. 0120121089 (May 2, 2012); see also, Schwenke v. U.S. Postal Serv., EEOC Appeal No. 0120121445 (June 6, 2012) (Complainant timely contacted the EEO Counselor within 45 days of the effective date of his removal); Mothersole v. U.S. Postal Serv., EEOC Appeal No. 0120121102 (June 5, 2012) (While the record contained a Notice of Removal stating that Complainant would be removed from employment on December 18, 2010, the Commission determined that the Notice was not dispositive for computation of the 45-day limitation period for contacting an EEO Counselor. The record included a Notification of Personnel Action form indicating that Complainant's removal was effective on July 3, 2011, and that the action was processed on July 13, 2011. The later date corroborated Complainant's assertion that a decision from an Arbitrator made his removal officially effective on July 13, 2011, and, therefore, his contact with the EEO Counselor on August 19, 2011, was timely).

EEO Counselor Contact Was Timely. Complainant applied for the position of Production Controller. He interviewed for the position on May 4, 2011, and subsequently took a leave of absence from May 23, 2011, until August 1, 2011. Complainant stated that shortly after his return, he learned from an e-mail that he was not selected for the position. Complainant contacted an EEO Counselor on August 22, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against him on the bases of his age and prior EEO activity when it did not select him. The Agency dismissed the complaint for failure to timely contact an EEO Counselor stating that it sent an e-mail to Complainant on May 26, 2011, notifying him of the non-selection. On appeal, the Commission found that the dismissal was Improper. The Commission noted that the Agency did not have any evidence that Complainant opened the e-mail notifying him of his non-selection prior to his return to work in August. While Complainant reported to work for one hour on May 26, the Agency did not show that Complainant opened the e-mail during that time. Complainant stated on appeal that he did not get the e-mail until after his return to work on August 1, and the EEO Counselor's report showed that Complainant did not learn of his non-selection until August. Thus, the Commission found that Complainant timely contacted the EEO Counselor in this case. Mendoza v. Dep't of the Army, EEOC Appeal No. 0120120599 (March 21, 2012).

Complainant Was Entitled to Waiver of the Time Limit for Contacting EEO Counselor. Complainant, a Probationary Management Assistant, filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her sex when it terminated her from her position. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant initiated EEO contact on September 15, 2011, which was more than 45 days after her December 2010 termination. On appeal, the Commission initially noted that the record supported a finding that Complainant contacted an Agency EEO office at the number listed in the termination letter as early as December 2, 2010, with the intent to pursue the EEO complaint process. At that time, Complainant spoke with the EEO Specialist, the same person who conducted her employee training program about the EEO process when she joined the Agency, and discussed filing an EEO complaint. Complainant asserted that the EEO Specialist dissuaded her from filing a complaint because she was a probationary employee, and advised her to contact the Employee Relations Specialist or the union to file a grievance. Complainant submitted a telephone log reflecting various contacts with the Agency EEO office in December 2010. The Commission found that Complainant followed the directions from the Agency and contacted the EEO office, which misdirected her from timely contacting an EEO Counselor. Thus, Complainant was entitled to a waiver of the time limit to contact a Counselor. Phillips v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120243 (March 7, 2012).

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 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).

Complaint Properly Dismissed for Failure to Timely Contact EEO Counselor. Complainant filed a formal EEO complaint in November 2005 alleging that the Agency discriminated against her from approximately March 2003 through September 2004. The Agency ultimately dismissed the complaint for failure to timely contact an EEO Counselor stating that Complainant's contact with the Counselor in August 2005 was beyond the 45-day limitation period. On appeal, the Commission noted that the record supported Complainant's assertion that she initially contacted an EEO Counselor in May 2003. Specifically, there were two letters from the Counselor in June and July 2003 respectively acknowledging the receipt of her inquiry. The record, however, did not show that Complainant returned the forms sent to her or had any further contact with the EEO Office until August 2005. Thus, the Commission found that Complainant abandoned her claims in 2003, and did not exhibit the intent to pursue the EEO process until 2005 thereby rendering her contact untimely. Caballero v. Dep't of Homeland Sec., EEOC Appeal No. 0120102853 (August 17, 2012).

Formal Complaint Deemed Timely Filed. Complainant filed a formal EEO complaint on January 18, 2012, alleging that the Agency discriminated against him when it suspended him for five days. The Agency dismissed the complaint stating that Complainant received the notice of right to file by e-mail on December 28, 2011. On appeal, the Commission noted that Complainant agreed to receive correspondence from the Agency by e-mail, and the Agency sent Complainant the notice on December 28. The Agency, however, did not present any evidence as to when Complainant opened the e-mail, such as a response or print out of a computer window showing that the e-mail was opened on that date. Thus, the Agency did not show that Complainant actually received the notice on December 28, and his formal complaint was deemed timely filed. Villamar v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121904 (July 26, 2012).

Formal Complaint Deemed Timely Filed. Complainant contacted the Agency's EEO representative and subsequently filed a formal complaint on November 27, 2011, alleging that the Agency subjected him to an ongoing hostile work environment and denied him reasonable accommodation. The Agency dismissed the complaint as untimely, stating that it sent Complainant a Notice of Right to File via the United Parcel Service (USP) which left the package at Complainant's house on November 7, 2011. On appeal, the Commission found that Complainant was not aware of the delivery of the Notice until November 14, 2011. The Commission noted that the time limit for filing a complaint is not triggered until Complainant actually receives the Notice. The Agency acknowledged that "unbeknownst" to Complainant the Notice was delivered on November 7. The Commission noted that while the package may have been left on that date, there was insufficient evidence to show that Complainant had actual receipt. Thus, the Agency failed to meet its burden of obtaining sufficient information to support its determination as to timeliness. Zinski v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121402 (June 29, 2012); see also Goodson v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112431 (March 14, 2012) (While the Agency stated that the EEO Counselor sent the Notice to Complainant via UPS, and the Agency submitted information showing that a UPS package was delivered to Complainant's home address on December 21, 2010, Complainant stated that neither he nor his wife received the Notice on that date. The signature on the UPS delivery notice was not legible, and it was unclear who received the Notice. Complainant indicated that he contacted the EEO Counselor on January 14, 2011, after he did not receive a Notice. Thus, Complainant's formal complaint was filed in a timely manner).

Adequate Justification for Extending the Period for Filing a Formal Complaint Found. Complainant filed a formal complaint on November 4, 2011, alleging that the Agency discriminated against him on the bases of his race and age. The Agency dismissed the complaint as untimely, stating that Complainant received the Notice of Right to File a Complaint (Notice) on September 26, 2011. On appeal, the Commission found that there was adequate justification for extending the limitation period for filing a complaint. Specifically, Complainant stated that he was on a temporary, overseas assignment for five weeks from September 25, 2011, through October 28, 2011, and that the Notice was sent to his office where it was signed for without his authorization. Complainant stated that he did not receive the Notice until he returned to work on October 31, 2011. Thus, the complaint was remanded for processing. Scharein v. Dep't of the Army, EEOC Appeal No. 0120121135 (May 11, 2012).

Formal Complaint Timely Filed. Complainant contacted an EEO Counselor and subsequently filed a formal complaint on December 20, 2010, alleging that the Agency discriminated against her when it did not give her a performance award. The Agency dismissed the complaint as untimely, stating that the EEO Counselor e-mailed Complainant the Notice of Final Interview/Notice of Right to File a Formal Complaint (Notice) on November 24, 2010. On appeal, the Commission noted that the Agency bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. While it appeared that Complainant spoke with the EEO Counselor on November 23, Complainant disputed many of the details of that conversation. Specifically, Complainant stated that she never received a final interview and the EEO Counselor did not advise her to read her e-mail when she returned to work on November 30. The Commission stated that the Agency did not present any evidence, such as the property page of the transmitted e-mail, showing if or when Complainant received the Notice, and, therefore, failed to meet its burden of establishing that the formal complaint was not timely filed. Stover v. Dep't of the Navy, EEOC Appeal No. 0120112732 (April 24, 2012); see also Butler v. Dep't of the Navy, EEOC Appeal No. 0120112636 (May 9, 2012) (While the EEO Counselor asserted that she sent Complainant the Notice of Final Interview/Notice of Right to File a Formal Complaint by e-mail and told Complainant to read the e-mail when she returned to work, Complainant disputed those assertions and stated that she did not receive a final interview. The Agency did not meet its burden of showing if or when Complainant received the notice by, for example, including the property page of the transmitted e-mail, and thus, the complaint was timely).

Adequate Justification Found for Excusing Untimely Filing of Complaint. Complaint filed a formal EEO complaint on August 4, 2010, alleging that the Agency discriminated against her when it ignored her medical documentation and denied her reasonable accommodation. According to the record, the Agency mailed Complainant a notice of her right to file a formal complaint which was received at Complainant's address of record on July 1, 2010. Therefore, the Agency dismissed the complaint as untimely. On appeal, the Commission noted that, generally, a certified mail return receipt signed by an individual at the Complainant's residence on a certain date establishes a presumption of constructive receipt by the Complainant on that date. In this case, however, Complainant stated that her 15-year old daughter signed for the notice. The Commission found that Complainant's daughter was not a household member of suitable age and discretion to accept important legal documents. Further, Complainant promptly responded to the Agency's notice once she was made aware of it on August 1, 2010. Thus, the Commission found adequate justification for excusing Complainant's untimely filing of her formal complaint. Meza v. U.S. Postal Serv., EEOC Appeal No. 0120103757 (January 24, 2012).

Commission Finds Sufficient Grounds to Excuse Untimely Filing of Complaint. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his age when he resigned in lieu of termination. The Agency dismissed the complaint as untimely. On appeal, the Commission noted that while Complainant received the Notice of Right to File a Formal Complaint in November 2010, he did not file his formal complaint until April 2011. Complainant asserted, however, that he felt discouraged from continuing his complaint after talking with the EEO Counselor. Complainant contacted his Senator regarding the matter, and, as a result of the Senator's inquiry, the EEO Counselor admitted telling Complainant that the EEO complaint process could be burdensome and time consuming. Subsequently, another Counselor contacted Complainant and sent him a second formal complaint form on April 8, 2011. Complainant was told at that time that he must file the complaint form with the Complaints Processing Center, and he did so on April 11, 2011. The Commission concluded that Complainant did not sit on his rights in this matter, promptly sought assistance from his Senator, and submitted his complaint form to the Complaints Processing Center in a timely manner when instructed to do so. Thus, the Commission exercised its discretion and excused Complainant's untimely filing. Rush v. Dep't of Homeland Sec., EEOC Appeal No. 0120113868 (January 23, 2012).

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).

Complaint Properly Dismissed as Untimely When Sent to the Wrong Address. Complainant contacted an EEO Counselor alleging that the Agency discriminated against her when it did not allow her to return to work. According to the record, Complainant received the Notice of Right to File a Formal Complaint on August 30, 2010. Although the Notice indicated that Complainant had to file a formal complaint within 15 calendar days, she did not file her complaint until August 8, 2011. The Agency dismissed the complaint as untimely, and the Commission affirmed the dismissal on appeal. The Commission noted that Complainant initially and incorrectly filed her formal complaint with its Office of Federal Operations rather than the Agency. The record showed that the Agency provided Complainant with the proper Agency address for filing her complaint. The Commission stated that, when provided with the proper address, filing a complaint at the wrong address does not constitute a proper filing, and Complainant did not offer any justification to warrant an extension of the applicable limitation period. Pinckney v. U.S. Postal Serv., EEOC Appeal No. 0120114299 (February 21, 2012), request for reconsideration denied, EEOC Request No. 0520120326 (July 10, 2012); see also Wuestefeld v. U.S. Postal Serv., EEOC Appeal No. 0120120540 (March 23, 2012) (complaint properly dismissed where Complainant sent the formal complaint to the Commission despite the Agency having provided her with the proper Agency address for filing a complaint and the applicable 15-day limitation period).