Skip top navigation Skip to content

print   email  Share

The DIGEST Of Equal Employment Opportunity Law


Volume XXIV, No. 1

Office of Federal Operations

Winter 2013


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 & Writer: Robyn Dupont

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


SELECTED EEOC DECISIONS

Agency Processing

Dismissal of Complaint Improper. Complainant filed a formal EEO complaint in April 2012, alleging that the Agency retaliated against him for prior protected activity. The Agency dismissed the matter, stating that Complainant withdrew the matters by e-mail on March 16, 2012. On appeal, the Commission found that the Agency failed to show that Complainant withdrew his informal complaint. The Commission noted that the record contained an e-mail from Complainant to the assigned EEO Counselor in which he stated he was withdrawing "the EEO complaints we discussed yesterday." Complainant indicated that he intended to continue with his original complaints that were already in the formal complaint stage. The record showed, however, that the Agency did not view the e-mail as a final withdrawal and continued to process Complainant's informal claims. The EEO Counselor sent Complainant a Notice of Withdrawal and stated that the Agency needed Complainant's signature in order to close his complaint. Complainant responded that he needed additional "guidance/counseling" before he could make a final decision with respect to withdrawal. Complainant never signed the Notice of Withdrawal, and subsequently filed a formal complaint of retaliation. Therefore, the Commission remanded the matter for processing. Murphy v. Dep't of Veterans Affairs, EEOC Appeal No. 0120123024 (December 20, 2012).

Attorney's Fees

Attorney's Fees Discussed. In a prior decision, the Commission found that the Agency discriminated against Complainant and ordered remedial action, including back pay and other compensation. Thereafter, the Commission issued several decisions in response to petitions for enforcement filed by Complainant, the most recent of which ordered the Agency to pay Complainant for penalties and interest for taxes incurred as a result of the back pay award. The Commission declined to make a finding regarding attorney's fees at that time because the Agency had not issued a decision on that matter.

Subsequently, Complainant filed an appeal with the Commission on the issue of attorney's fees after the Agency declined to award fees on the grounds that Complainant's attorney did not represent her in the matters before the Commission. On appeal, the Commission noted that the fact that the attorney represented Complainant in both the district court matter and her EEOC proceedings did not change the fact that Complainant was entitled to fees for successful legal work performed on Complainant's behalf before the Commission. While Complainant's husband stated that he served as Complainant's representative in seeking enforcement of the original Order, the Commission stated that the attorney's intervention actually led to the docketing of the third petition for enforcement. In addition, the attorney submitted supplemental information as Complainant's attorney representative in an effort to secure Agency compliance in paying the tax penalties. Thus, the Commission found that the attorney successfully represented Complainant during the processing of one of the petitions for enforcement and was entitled to fees for his work. In addition, the attorney successfully represented Complainant in the most recent petition for enforcement and eventually secured enforcement of the decision requiring the Agency to pay the tax penalties. While Complainant's husband and the attorney made statements indicating that Complainant was not represented by the attorney before the Commission, those statements were made prior to the attorney's involvement in the later two petitions for enforcement. Thus, the Commission concluded that Complainant was entitled to payment of $7,132.50 in attorney's fees. Ulloa v. U.S. Postal Serv., EEOC Appeal No. 0120111564 (November 21, 2012).

Compensatory Damages

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

$15,000 Awarded for Denial of Accommodation and Harassment. In a prior decision, the Commission found that the Agency discriminated against Complainant when it denied him reasonable accommodation and subjected him to harassment, and that the conduct was so severe that Complainant reasonably felt compelled to retire. Following a supplemental investigation, the Agency awarded Complainant $15,000 in non-pecuniary compensatory damages. On appeal, the Commission affirmed the Agency's award. Complainant asserted that he experienced anxiety, loss of sleep, and was diagnosed with clinical depression. Nevertheless, Complainant stated that he only saw his counselor once after his retirement and did not see the counselor at all during the following year. Further, Complainant identified additional causes of the harm, specifically additional alleged acts of discrimination, which were not part of the underlying complaint. The Commission found that the award of $15,000 was sufficient to remedy the harm the Agency's actions caused Complainant. The Commission also affirmed the Agency's award of $140 in pecuniary damages. Wagner v. Dep't of Transp., EEOC Appeal No. 0120113419 (November 21, 2012).

$500 Awarded for Retaliation. An Administrative Judge (AJ) found that Complainant's Supervisor's comments, made after Complainant reported finding a pornographic magazine that she needed to watch when and where she said things, constituted per se retaliation. As relief, the AJ, among other things, awarded Complainant $500 in non-pecuniary compensatory damages. On appeal, the Commission found that the award of damages was proper. Complainant stated that she experienced stress, migraine headaches, hair loss, insomnia, and an extreme paranoia of her workplace. The Commission found that, considering the evidence submitted, the award of $500 was consistent with awards in similar cases and met the goals of not being motivated by passion or prejudice and not being "monstrously excessive." Carter v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122266 (October 18, 2012).

Dismissals

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

Dismissal for Filing Grievance Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it terminated her during her probationary period. The Agency dismissed the matter on the grounds that Complainant filed a grievance on her termination under the applicable collective bargaining agreement. On appeal, the Commission found that the dismissal was improper. The relevant portions of the agreement made it clear that probationary employees could not file a grievance on a removal. Complainant was in a probationary status at the time of her removal, and, as such, did not make a valid election of the grievance process. Wilson v. Dep't of the Treasury, EEOC Appeal No. 0120123304 (January 4, 2013).

Dismissal for Filing a Grievance Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his age when it assigned him to perform certain duties. The Agency dismissed the complaint, stating that the matter was raised in a grievance. On appeal, the Commission noted that it appeared the union filed a grievance regarding the reassignment of duties. There was no indication, however, that Complainant filed a grievance on that matter, or that Complainant was involved with the grievance filed by the union. Thus, the Commission concluded that Complainant did not file a grievance concerning the assignment of duties, and the Agency's dismissal was improper. Goodson v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122525 (October 15, 2012).

Dismissal of Complaint for Raising a Matter Not Brought to Attention of Counselor Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it forced her to attend a specific course on four occasions, she received e-mails from an unknown source on her Agency computer, and other employees continuously followed her to the restroom and lunchroom, and said unpleasant things to her. The Agency dismissed the complaint on the grounds that Complainant raised a matter that was not brought to the attention of the EEO Counselor. The Agency stated that the Counselor attempted to contact Complainant regarding her issues but did not receive a response. On appeal, the Commission found that there was documentation in the record which included the information as to the issues encompassed in the complaint. The EEO Counselor noted that Complainant claimed she was subjected to non-sexual harassment and a hostile work environment, and a memorandum indicated that Complainant's Supervisor was informed that Complainant believed employees were watching her and following her to the restroom. Complainant also claimed discrimination as to the assignment of duties. The Commission stated that Complainant referenced instances of harassment in her formal complaint, and those matters were closely related to the issues she raised with the EEO Counselor. The Commission found it reasonable to infer that the claim concerning assignments pertained to the requirement to attend a particular course. While the Commission did not condone Complainant's lack of responsiveness to the Counselor's initial inquiries, Complainant did contact the Counselor two months thereafter, and the Commission found sufficient information in the record to preclude dismissal on the grounds that these issues were not brought to the attention of the EEO Counselor. Dobbins v. Dep't of Health & Human Serv., EEOC Appeal No. 0120113233 (December 19, 2012).

Dismissal of Complaint Improper. Complainant filed a formal EEO complaint in June 2012, alleging that the Agency discriminated against him when it abolished his position and made him bid on a job. Complainant stated that he learned, on February 27, 2012, that a comparative employee was allowed to stay in her position in the same location Complainant had previously worked. The Agency dismissed the complaint on various grounds. On appeal, the Commission found that the dismissal was improper. While the Agency found that Complainant's EEO Counselor contact was untimely because he learned of the matter on January 5, 2012, the Commission noted that he did not develop a reasonable suspicion of discrimination until he learned the other employee received better treatment. According to the Counselor's report, Complainant was initially led to believe that position held by the other employee was also going to be abolished. Thus, the Commission found that Complainant timely contacted the EEO Counselor within 45 days of suspecting discrimination. The Agency also found that Complainant failed to state a claim because he bid on another position. The Commission stated, however, that the fact Complainant lost his former position stated a valid claim. While Complainant successfully bid on another position and did not lose any pay or benefits, that fact may go to mitigate any damages should Complainant ultimately prevail on the merits of his claim. Finally, the Agency failed to present any evidence, such as a copy of the collective bargaining agreement, showing that Complainant could have used the negotiated grievance process to complain about the abolition of his position. Matthews v. U.S. Postal Serv., EEOC Appeal No. 0120122956 (December 18, 2012).

Complaint Improperly Dismissed for Failure to Cooperate. Complainant applied for employment with the Agency. He subsequently filed a formal EEO complaint alleging that the Agency discriminated against him when he was not selected for two positions. The Agency dismissed the complaint for failure to cooperate, stating that Complainant did not respond to the Investigator's letters. On appeal, the Commission found that the Agency's dismissal was improper. The Commission noted that as a general rule, the Agency should not dismiss a complaint when it has sufficient information on which to base adjudication. The record in this case was sufficiently developed. There were statements from witnesses, including the Selecting Officials and Human Resources officials. The EEO Counselor's report and formal complaint contained the information regarding the alleged discrimination. The Commission stated that the Agency failed to show why the record was not sufficient for adjudication on the merits. Thus, the matter was remanded for further processing. Stewart v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113696 (November 9, 2012).

Dismissal for Failure to Cooperate Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated and retaliated against him when, among other things, it denied him reasonable accommodation and threatened him with removal from his bid assignment and separation. The Agency dismissed the complaint for failure to cooperate, stating that Complainant failed to return his affidavit to the Investigator. On appeal, the Commission found no persuasive evidence that Complainant engaged in delay or contumacious conduct in regard to the processing of his complaint. Further, Complainant provided extensive information to the EEO Counselor about his allegations, including information about the alleged discriminatory actions, the names of the alleged discriminatory officials and the corrective action sought. Thus, the Commission concluded that the Agency should have completed its investigation of the complaint rather than dismissing it for failure to cooperate. Perez v. U.S. Postal Serv., EEOC Appeal No. 0120121903 (October 11, 2012), request for reconsideration denied, EEOC Request No. 0520130126 (May 9, 2013).

Dismissal for Alleging Preliminary Step to an Employment Action Improper. Complainant applied for a position with the Agency, and filed a formal EEO complaint when he was not selected. The Agency dismissed the complaint on the grounds that Complainant alleged a preliminary step to taking an employment action. Specifically, the Agency stated that Complainant had not received official notification regarding his nonselection. On appeal, the Commission disagreed with the Agency's assertion. The record indicated that Complainant received an e-mail stating that "based on the results of [Complainant's] background investigation (which may have included a polygraph examination)…[he was] found unsuitable for employment." Thus, the Commission found that the record was clear that Complainant had been found unsuitable for employment in the position. Despite the fact that Complainant was advised he would receive a letter rescinding the tentative job offer, there was no ambiguity in the Agency's language that would cause Complainant to believe the decision was not final or that he was still being considered for the position. Thus, the Commission found that the Agency's dismissal was improper. Hamad v. Dep't of Homeland Sec., EEOC Appeal No. 0120122210 (October 16, 2012).

Findings on the Merits and Related Decisions

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

Under the Rehabilitation Act

Disability Discrimination Found with Regard to Letter of Warning. Complainant, a Mail Handler, needed intermittent time off due to his medical conditions. Complainant filed for disability retirement in May 2011, and the Agency forwarded his application to the Office of Personnel Management (OPM). Subsequently, Complainant was sent home from work. Complainant provided documentation from his physician, but the Manager notified Complainant that he was on sick without pay (SWOP) and expected to return to work after September 2, 2011. Complainant requested reasonable accommodation in the form of excused absences from September 3, 2011 through October 3, 2011. The Agency instead placed Complainant in Absent Without Official Leave (AWOL) status during that time, and issued him a Letter of Warning (LOW). Complainant subsequently filed a formal EEO complaint alleging that the Agency retaliated against him when it issued the LOW. The Agency issued a final decision finding no discrimination.

On appeal, the Commission initially found that Complainant established a prima facie case of reprisal because he engaged in protected EEO activity when he requested reasonable accommodation in the form of excused leave and filed a prior complaint. Management officials were aware of the activity, and there was a temporal nexus between the LOW and Complainant's EEO activity. The Agency asserted that it issued the LOW because of Complainant's attendance issues. The Commission found, however, that the reason was pretextual. The record clearly showed that management was aware of Complainant's condition and its impact on his ability to perform his job. Further, Complainant had submitted an application for disability retirement, and provided medical documentation to the Agency showing that he could not work in August and September. Thus, management was clearly aware that Complainant was out due to his medical condition when it issued the LOW. The Commission found that it was more likely than not that the LOW was issued in retaliation for Complainant's request for accommodation rather than a willful failure to come to work that required disciplinary action. The Agency was ordered, among other things, to remove the LOW from Complainant's personnel record, and investigate his claim for damages. Gary v. U.S. Postal Serv., EEOC Appeal No. 0120122504 (October 24, 2012).

Retaliation

Retaliation Found. Complainant filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him when his Supervisor made certain remarks about employees who file EEO complaints, stated that employees must contact him before going to the EEO Office, and checked on Complainant twice each day. Following an investigation, an AJ held a hearing. The AJ found no discrimination with regard to a number of matters, but concluded that the Agency retaliated against Complainant with regard to the referenced issues. On appeal, the Commission affirmed the AJ's findings. According to the record, an EEO Counselor sent an e-mail to the Supervisor informing him that the Counselor would be meeting with Complainant. That same day and the following day, the Supervisor told his subordinates that they must go through him before going to the EEO Office, and that those who file EEO complaints or union grievances without first coming to him were "not men and had no integrity."

The Commission stated that the Supervisor did have a need to know, for purposes of scheduling work, if an employee was going to the EEO Office. In this case, however, the Supervisor's comments would deter a reasonable person from engaging in protected EEO activity. Given the close proximity between the e-mail from the EEO Counselor and the Supervisor's statements, the Commission found that a nexus existed between Complainant's protected activity and the adverse treatment. Further, the record supported the AJ's finding that the Supervisor made the comments in an effort to discourage the filing of EEO complaints. The Administrative Assistant corroborated Complainant's assertion that the Supervisor checked on him more frequently after he filed his EEO complaint. The Commission stated that being subjected to increased scrutiny by a supervisor on a continuing basis and checked on twice daily would likely deter a reasonable person from engaging in protected EEO activity. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and notify the employees in Complainant's office in writing that they do not need to inform supervisors of their reasons for visiting the EEO office or get permission to do so except for scheduling reasons. Coronado v. Dep't of the Air Force, EEOC Appeal No. 0120122196 (October 24, 2012).

Retaliation Found: Cat's Paw Theory Discussed. Complainant worked as a contract linguist for the Agency's Federal Bureau of Investigation, listening to foreign language recordings and translating them into English. Complainant was sensitive to certain sounds, as they caused him pain, distraction, and disruption. His supervisors tried to accommodate his noise sensitivity by allowing him to move his workstation, and work on the weekends, when the office was quieter with fewer people. After several incidents involving coworkers and management, Complainant's first-level Supervisor instructed Complainant not to work on weekends for six weeks in order to give the Supervisors an opportunity to address the situation. The Supervisor then drafted an "electronic communication," asking the Intelligence Directorate to decide on whether to remove Complainant for alleged professional misconduct. One of the stated grounds for removal was that Complainant "had his personal work space moved numerous times in order to avoid the peripheral noise created in the normal course of business." This statement had been added by a Regional Program Manager who had previously supervised Complainant but, at the time, was on another assignment. The electronic communication also noted that Complainant was belligerent and disrespectful to others who allegedly created noise, and was intolerant of noise and unreasonable as to its cause. Complainant was later escorted out of the building, and management began a formal inquiry into allegations of misconduct by Complainant. After the Agency let Complainant's annual contract expire, Complainant filed an EEO complaint alleging his removal was based on his disability and protected activity. Following a hearing, an AJ found that the Regional Program Manager's asserted ground for removal constituted direct evidence that it was motivated, in part, by Complainant's disability. Relying, however, on a mixed motive analysis, the AJ limited Complainant's relief upon finding that he would have been removed even absent the impermissible consideration.

On appeal, the Commission initially found that the AJ correctly determined that Complainant was an Agency employee. The Commission further found that the Agency erred in dismissing the basis of reprisal because Complainant engaged in EEO activity when he requested to be moved to a quieter area as reasonable accommodation. Thus, the Commission stated that it was more appropriate to address Complainant's claim in the context of reprisal, and determine whether the Agency removed Complainant, in part, because he had engaged in protected activity by requesting reasonable accommodations for his disability.

With regard to the merits of the claim, the Commission found that the electronic communication was direct evidence of a retaliatory motive by the Regional Program Manager because it facially showed that he had informed the deciding official about Complainant's protected activity and had recommended removal on that basis. The Commission did not accept the AJ's finding that the Investigator recommended Complainant's termination strictly based upon allegations concerning Complainant's behavior without consideration of his sensitivity to noise. The Commission stated that the investigative report which specifically mentioned having investigated Complainant's work station being moved because of noise, so contradicted the Investigator's testimony that a reasonable fact finder would not credit it. The investigative report summarized an interview with the Regional Program Manager in which he expressed annoyance with Complainant's complaints about noise, and indicated that the only problem with Complainant was that his desk had to be moved on several occasions. The Commission concluded that the electronic communication was direct evidence of a retaliatory motive by management officials at Complainant's facility, especially the Regional Program Manager, because it proved on its face that they informed the Deciding Official about Complainant's protected activity and asked that Complainant be removed because of that activity. The Commission noted, however, that while the electronic communication was direct evidence that management officials at Complainant's facility initiated removal proceedings for retaliatory reasons, the communication was not direct evidence that the Deciding Official chose to remove Complainant for retaliatory reasons. Nevertheless, the Commission concluded that the Agency was liable under the "cat's paw" theory, based on the retaliatory animus of the Regional Program Manager who had influenced, but did not make, the ultimate decision to remove Complainant. The Commission stated that the evidence of record showed that under the "influence or leverage" standard the Regional Program Manager wielded sufficiently great informal power within the Agency to influence the ultimate deciding official, making it appropriate to impute the Manager's retaliatory animus to the Deciding Official and hold the Agency liable for retaliatory discrimination. Similarly, under the "conduit" standard, the Commission found that the Deciding Official acted as the conduit of the Regional Program Manager's retaliatory animus against Complainant.

The Commission reviewed the matter under a mixed motive analysis because the Deciding Official also provided a non-retaliatory reason for removing Complainant, specifically that Complainant was threatening and harassing a female co-worker. The Commission noted that the there were serious deficiencies in the investigative report which was the sole source of information that the Deciding Official relied on when making his decision. The Investigator only spoke with Complainant's accusers who gave unsworn statements. The Investigator did not review Complainant's written statements or letters and did not interview Complainant. Thus, the Agency did not offer objective evidence that Complainant engaged in a pattern of misconduct, and the Commission found the Agency had failed to prove by clear and convincing evidence that Complainant would have been removed in any event. The Commission denied the Agency's request for reconsideration, but modified the Order in the appellate decision. The Agency was ordered, among other things, to forward Complainant's claim for damages and entitlement to back pay for an administrative hearing, and offer Complainant a one-year reinstatement to his contract position. Feder v. Dep't of Justice, EEOC Appeal No. 0720110014 (July 19, 2012), request for reconsideration denied, EEOC Request No. 0520130004 (May 14, 2013).

Remedies

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

Back Pay Discussed. Following an administrative hearing, an AJ found that the Agency discriminated against Complainant when it did not select her for a Flight Services Manager position. The AJ ordered the Agency to, among other things place Complainant into the dual-status military technician position with back pay. The Agency adopted the AJ's finding of discrimination and agreed to abide by the ordered relief. Complainant subsequently filed an appeal with the Commission alleging that the Agency did not provide adequate information to demonstrate how it calculated the amount of back pay. On appeal, the Commission initially noted that while the complaint was properly processed under the EEOC's regulations given that it arose within Complainant's civilian capacity as a dual-status technician, portions of the AJ's ordered relief, including promoting Complainant to a higher military rank and paying military back pay, were beyond the Commission's jurisdiction to enforce. Nevertheless, the Commission stated that there was still relief available that was not military in nature. With regard to the matter of civilian back pay, the Commission stated that the Agency must provide detailed documentation regarding its calculations. Appropriate documentation should include evidence indicating the applicable pay rate used, such as salary tables, and a detailed statement clarifying how the back pay award was reached. The Commission found that the vague, one-page spread sheet provided by the Agency did not clearly explain the calculation of Complainant's civilian dual-status back pay award. Thus, the Agency was ordered to provide Complainant with all dual-status back pay information, including a detailed documentation regarding its calculations. Daniel v. Dep't of the Army, EEOC Appeal No. 0120083463 (October 9, 2012).

Sanctions

Hearing Request Properly Dismissed as Sanction. Complainant, a former Agency employee, filed a formal EEO complaint alleging that the Agency subjected her to a hostile work environment and removed her from employment during her probationary period. Following an investigation, Complainant requested an administrative hearing. The AJ, however, subsequently dismissed the hearing request and the Agency issued a final decision finding no discrimination. On appeal, the Commission found that the AJ's actions were proper. Prior to dismissing the hearing request, the AJ issued an Order to Complainant to refrain from communicating about the complaint with Agency officials other than the designated representative. Complainant was informed of the possibility of sanctions for failure to comply with the Order. After Complainant sent additional correspondence to the Agency's General Counsel who was not the designated representative and asserted that a typographical error in the Agency's interrogatories were an attempt to avoid discovery, the AJ issued a second Order again advising Complainant that her failure to follow the Orders would result in a sanction. Complainant, nevertheless, sent correspondence concerning the complaint to the Agency's Secretary. Thus, the Commission found that the AJ properly dismissed Complainant's request for a hearing and remanded the case to the Agency for the issuance of a final decision. The Commission further found that Complainant failed to show that the alleged incidents of harassment were related to any protected basis, or that the stated reasons for her termination were a pretext for discrimination. Sonnier v. Dep't of Commerce, EEOC Appeal No. 0120111951 (November 2, 2012).

Agency Sanctioned for Failure to Provide Complaint File. Complainant filed an appeal with the Commission in 2010. Complainant had filed a formal EEO complaint alleging that the Agency subjected her to ongoing harassment, including issuing her an unsuccessful performance appraisal, placing her on administrative leave, and forcing her to leave her job site. The appeal was from a final Agency decision dismissing the complaint as untimely. The Commission notified the Agency of the appeal and its requirement to submit a copy of the complaint file within 30 days. The notice indicated that the Agency's failure to submit the complaint file within the specified period could result in the Commission drawing an adverse inference. When the Agency failed to respond, the Commission contacted the Agency by electronic mail and again requested the complaint file. The Commission subsequently issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed in which it ordered the Agency to submit the complaint file within 20 days and notified the Agency that the failure to do so could result in sanctions. The Agency did not submit the record to the Commission until six days after the specified period and did not explain the delay. In addition, the Agency issued a final decision dismissing the complaint as untimely. The Commission stated that it began requesting the complaint file from the Agency in November 2010 and the Agency failed to respond to any of its requests. While the Agency finally provided the file in October 2012, it did so after the time frame required by the Notice and without any explanation for failing to submit the file for nearly two years. The Commission sanctioned the Agency by reversing the Agency's procedural dismissal of the complaint, thus denying the Agency the right to argue timeliness. The matter was remanded for processing. Baker v. Dep't of Health & Human Serv., EEOC Appeal No. 0120110385 (October 15, 2012).

Settlement Agreements

Breach of Settlement Found. Complainant, a disabled veteran, was terminated from his position during a probationary period. The termination was effective February 25, 2011. Complainant performed an exit check-out on that day and was cleared by every department. Complainant filed a formal EEO complaint with regard to his termination. The parties ultimately entered into a settlement agreement which provided, in pertinent part, that the Agency would accept Complainant's resignation effective February 25, 2011, and correct his official personnel file to reflect that status. In addition, Complainant was to be treated the same as other patients while on Agency property and receive a lump sum payment of $950. Complainant subsequently alleged that the Agency breached the agreement when it failed to accept his resignation and change his personnel records, and when he was subjected to undue scrutiny by Agency police officers.

On appeal, the Commission found that the Agency breached two provisions of the settlement agreement. The record showed that the Agency sought reimbursement for a debt generated for the pay period ending April 9, 2011, due to an overpayment resulting from a "personnel change." The Commission found that this action was evidence that the Agency failed to accept February 25, 2011, as Complainant's resignation date, and ensure that Complainant's records reflected that date. The Agency did not dispute that Complainant had gone through the clearance process and was told he had been cleared of any outstanding debts as of February 25, 2011. While the Agency's finance unit may have automatically generated the debt action, this did not absolve the Agency of its duty to abide by the terms of the settlement agreement. Further, the Commission expressed concern about the Agency's reluctance to remedy the situation by waiving the debt, and its requirement that Complainant submit additional explanation or payment. The Commission noted that this requirement was not part of the settlement agreement, and the Agency's action in seeking repayment of the debt breached the agreement.

Further, the Commission found that the Agency breached the agreement when, on more than one occasion, the Agency's Police Officers monitored and followed Complainant when he came to a facility for medical treatment. The Police detained Complainant because they viewed him not as a patient but as a former employee. While Complainant requested that his complaint be reinstated, the Commission noted that action would require him to return any benefits received, such as the lump sum payment, and would not provide him with the benefit of specific performance of the terms of the agreement. Thus, the Agency was ordered to provide proof that it had accepted Complainant's resignation effective February 25, 2011, reimburse Complainant for any payments made or benefits lost as a result of the April 2011 notice of overpayment, absolve Complainant of any debts claimed after February 25, 2011, and afford Complainant the same treatment that it provides other patients while of Agency property. Jackson v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113963 (December 7, 2012).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement which provided, in pertinent part, that Complainant's Supervisor would conduct a Stand-up Talk with employees to clarify exceptions to the Agency's policies for disabled employees. On appeal, the Commission found that the Agency breached the agreement when the Supervisor, rather than conducting the Stand-up Talk, told employees they could come to her in private if they wanted information about policy exceptions. The agreement specified that the discussion of exceptions was to be held as part of a Stand-up Talk and not conducted in private. While the Commission found the Supervisor's desire to maintain the privacy of employees commendable, it noted that the goal could have been met by addressing exceptions by hypothetical situations and then telling employees that specific questions could be addressed to the Supervisor in private. The Commission presumed that since the requirement for the Stand-up Talk was included in the agreement, it was important to Complainant to have all employees hear and learn about the exceptions. The Commission noted that the Agency complied with another provision of the agreement requiring the Supervisor to undergo training. As such, reinstatement of the underlying complaint would provide Complainant with the benefit of allowing her to continue with her complaint while the Agency partially complied with the agreement. Therefore, the Commission ordered specific performance of the provision of the agreement concerning the Stand-up Talk. Wolf v. U.S. Postal Serv., EEOC Appeal No. 0120113147 (November 20, 2012).

Breach of Settlement Found. The parties entered into a settlement agreement which provided, in pertinent part, that the Agency would cancel a one-day suspension and provide Complainant with back pay for wages and benefits lost as a consequence thereof; correct Complainant's pay records to show that she was present on a specific date and not absent-without-leave, and pay her for wages and benefits lost; and pay Complainant $32,500 in compensatory damages. The agreement also provided that the Agency would submit the necessary paperwork for the back pay and damages. After learning that the Agency had reported the payments to the Internal Revenue Service (IRS) as "non employee compensation," Complainant alleged that the Agency breached the agreement.

On appeal, the Commission initially rejected the Agency's assertion that Complainant's appeal should be dismissed because she failed to notify the Deputy Assistant Secretary for Resolution Management of her breach claim. The record showed that Complainant sent a letter to the "EEO Manager" of the Office of Resolution Management stating that she believed the Agency was not complying with the agreement. Thus, Complainant was in substantial compliance with the terms of the agreement for notifying the Agency of a breach claim.

With regard to the actual breach allegation, Complainant was seeking implementation of the provision requiring that the necessary paperwork reflect her status as an employee and the payment be made to her as an employee for lost back pay, wages, benefits and damages. The Commission stated that it was clear from the wording of the agreement that the nature of the payments provided to Complainant directly arose from her status as an employee, and the Agency's representation to the IRS of the payments as "non-employee compensation" was inconsistent with the terms of the agreement. While the agreement specifically provided that the Agency made no representations as to the tax consequences of the payment that provision did not permit the Agency to incorrectly report the nature of the payment to the IRS to Complainant's detriment. The agreement required the Agency to submit the necessary paperwork to effectuate the terms expressed in the agreement, and the paperwork should have accurately reflected payment to Complainant as an employee. Thus, the Agency was ordered to provide Complainant with an accurate and corrected IRS form that reflected the monies provided under the agreement as "Other Income." Snyder v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113923 (November 19, 2012).

Settlement Agreement Void. The parties entered into a settlement agreement which provided, in pertinent part, that Complainant and a named Management Official would "work together to seek an opportunity" for a reassignment for Complainant to a residual position. Complainant alleged that the Agency breached the agreement when it failed to select him from a list of positions provided during mediation. The Agency asserted that Complainant was informed during mediation that residual positions were being withheld pursuant to the collective bargaining agreement. On appeal, the Commission found that the settlement agreement was unenforceable and void for lack of consideration. The Commission stated that the Agency's obligation provided merely a generalized commitment to work with Complainant, and was silent as to what method the Agency would use to cooperate with Complainant or what express steps would be taken to seek a reassignment. Thus, the Commission concluded that Complainant received no consideration under the terms of the agreement. Rivera v. U.S. Postal Serv., EEOC Appeal No. 0120113712 (November 8, 2012).

Settlement Agreement Void. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that Complainant would be considered for the next available AMS position and training, and that management "should use the resources available" to perform Carrier duties. Complainant alleged that the Agency breached the agreement when it failed to create a new AMS position. The Agency countered that there has not been a vacancy or opportunity to provide Complainant with training. On appeal, the Commission found that the agreement was void for lack of consideration. With regard to the first provision, the Commission noted that the Agency could avoid its contractual duties by simply deciding not to create a new AMS position. Therefore, any consideration offered to Complainant was illusory. Further, the Commission noted that since the condition precedent to the Agency's obligation to consider Complainant for an AMS position did not materialize, that is there was no need to create a new AMS position, the Agency was not required to do anything in exchange for Complainant's withdrawal of her EEO complaint. Finally, the Commission stated that the language was too vague to enforce in that anyone who applied for a position could be said to be "considered" even if they were not qualified and were rejected. Thus, the Agency did not promise Complainant anything beyond what it was already obligated to do. The Commission found that the second provision of the agreement was also void, because the Agency had again promised nothing beyond what it was already obligated to do. The Agency was ordered to reinstate the underlying complaint for processing. Beal v. U.S. Postal Serv., EEOC Appeal No. 0120113156 (November 6, 2012), request for reconsideration denied, EEOC Request No. 0520130169 (May 23, 2013).

No Breach of Settlement Found. The parties entered into a settlement agreement which provided, in pertinent part, that the Agency would pay complaint a lump sum of $30,000. The agreement noted that the payment must go through procedures outside the control of the parties, and, therefore, the actual date of payment was outside of the Agency's control. Complainant alleged that the Agency breached the agreement when it withheld $7,500 for tax purposes. On appeal, the Commission found that the Agency complied with the settlement agreement. The Commission noted that the Agency processed payment through Complainant's current employer, and there was no evidence suggesting that the Agency acted improperly in doing so. Further, the agreement was silent as to the tax treatment of the lump sum payment. The Commission noted that if Complainant wanted the payment in a specific manner she should have included this, in writing, in the agreement. Finally, the record showed that while the Agency did not make full payment within 30 days, any breach was cured. The Agency redirected the amount withheld for tax purposes to Complainant when she raised her objections, and Complainant acknowledged that she received the full $30,000 payment. Armel v. Dep't of the Air Force, EEOC Appeal No. 0120113477 (November 8, 2012).

Stating a Claim

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

Charvat v. Dep't of Veterans Affairs, EEOC Appeal Nos. 0120120075 & 0120122771 (January 4, 2013) (Complainant alleged a series of sexual overtures by an Agency Director, followed by allegations of professional misconduct after they were rebuffed, as well as a series of denied or withdrawn professional opportunities. When considered together and viewed in a light most favorable to Complainant, the allegations were sufficiently severe or pervasive to state a viable claim of discriminatory harassment. In addition, the allegation contained in a second complaint concerning the termination of her appointment was entirely related to the first complaint such that the complaints should be investigated together in order to avoid fragmentation).

Makuch v. Dep't of Def., EEOC Appeal No. 0120114324 (December 18, 2012) (the Agency improperly dismissed Complainant's complaint on the grounds that she failed to state a claim because she was not an employee. An Agency employee was identified as Complainant's Supervisor and approved her leave. Complainant stated that the Agency Supervisor directed her performance and the Agency had the right to assign her to additional projects. The Agency conceded that it provided Complainant with the necessary equipment and facilities to perform her work, and Complainant's work was part of the Agency's regular mission. Complainant was paid a salary and was terminated by the Agency. While the Agency did not provide Complainant with benefits or withhold taxes, the Agency exercised sufficient control over Complainant's position to qualify as her employer for purposes of the EEO complaint process); See also, Taylor v. Dep't of the Army, EEOC Appeal No. 0120103315 (December 19, 2012) (the Agency's dismissal of Complainant's complaint on the grounds that she was an employee of a private contractor was improper. The Agency controlled the means and manner of Complainant's daily performance; Agency employees were actively involved in Complainant's hiring and termination; the Agency provided Complainant with all necessary equipment, materials and supplies; and the Agency set Complainant's work schedule and paid her an hourly rate. While Complainant was hired to perform services under a contract, and did not receive benefits from the Agency, an examination of all the evidence of the working relationship between the parties showed that the Agency exercised sufficient control over Complainant's position to establish a de facto employer-employee relationship such that it was a joint employer).

Padda v. Dep't of Justice, EEOC Appeal No. 0120120979 (December 20, 2012) (the Agency improperly dismissed Complainant's claim that Agency officials gave derogatory information about him to a reporter in an attempt to damage his reputation on the grounds that he was no longer an Agency employee. Complainant was alleging that the Agency unlawfully retaliated against him for engaging in protected EEO activity while he was an employee, and, as such, stated a viable claim).

Parker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122790 (December 13, 2012) (Complainant's allegation that the Agency issued her a notice of proposed termination stated a viable claim of retaliation. The Commission has held that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms, conditions or privileges of employment to constitute retaliation, and being issued a proposed removal would likely deter a person from engaging in protected EEO activity).

Lowe v. Dep't of the Army, EEOC Appeal No. 0120120906 (December 13, 2012) (the Agency improperly dismissed Complainant's claim of discrimination. Complainant asserted that he was no longer given pay retention under the Priority Placement Program after he declined an offer of placement. The Agency's contentions that Complainant failed to sign the Offer and did not appeal the matter to the Office of Personnel Management go to the merits of the complaint and are not relevant to the procedural issue of whether he stated a justiciable claim).

Alexander v. Dep't of the Navy, EEOC Appeal No. 0120122888 (December 12, 2012) (Complainant's allegations that her Supervisor made threatening comments to her, assigned her duties not within her position description, refused to allow her to see complaints allegedly filed against her by patients and staff, and did not provide her with access to computer keys that would allow her to perform her work, when viewed collectively, stated an actionable claim of discriminatory harassment).

Jenkins v. U.S. Postal Serv., EEOC Appeal No. 0120120039 (December 5, 2012) (Complainant's assertion that she was placed on administrative leave for approximately two months stated a viable claim of sex discrimination and reprisal. Under certain circumstances, placement on paid administrative leave for brief periods would not result in harm sufficient to state a justiciable claim. In this case, however, Complainant claimed a personal loss or harm regarding a term, condition, or privilege of her employment given her extended absence from the work site, the fact that she alleged a loss of overtime opportunities while on administrative leave, and the fact that she asserted that her reputation was "dishonored" while she was on leave).

Smith v. U.S. Postal Serv., EEOC Appeal No. 0120113378 (November 21, 2012) (Complainant's allegation that the Postmaster gave better work hours and assignments to a younger female clerk to whom he was sexually attracted stated a viable claim of discrimination. The Commission has taken the position that sexual favoritism in the workplace which adversely affects the employment opportunities of a third party may, under certain circumstances, constitute sexual harassment. While Complainant checked only the box for age discrimination on the complaint form, the Commission found implicit in her complaint, a claim of sexual favoritism where she was alleging she was disadvantaged because she is an older woman).

Johnson v. U.S. Postal Serv., EEOC Appeal No. 0120121385 (November 16, 2012) (Complainant's allegation that an Acting Manager verbally assaulted her on one occasion using racial slurs and profanity, when considered with her statement that prior incidents of alleged racial slurs and profanity were not addressed by management, stated a viable claim of discriminatory harassment).

Thurman v. U.S. Postal Serv., EEOC Appeal No. 0120112902 (November 15, 2012) (Complainant's allegation that his Supervisors threatened to put him off the clock and instructed him to move his vehicle from a "visitors" parking space designated for individuals with disabilities stated a viable claim of disability discrimination. While the Agency asserted that it was in compliance with the Architectural Barriers Act, the Commission noted that the Rehabilitation Act places different requirements on the Agency. Complainant alleged that the Agency failed to provide him with reasonable accommodation in the form of a parking space designated for individuals with disabilities. The Agency's assertions concerning the Architectural Barriers Act addressed the merits of the complaint without a proper investigation).

Williams v. U.S. Postal Serv., EEOC Appeal No. 0120113617 (November 7, 2012) (Complainant's allegation that the Agency changed his start time by one hour thereby causing him to earn less overtime stated a viable claim of discrimination and reprisal. Complainant was aggrieved by the schedule change because of the allegedly resulting harm from having less overtime opportunities).

Pham v. U.S. Postal Serv., EEOC Appeal No. 0120114220 (November 5, 2012) (Complainant's allegations that an Agency Official subjected him to harassment by yelling at him in front of co-workers, requiring him to work more than eight hours without paying him for the extra time, changing his schedule without telling him, and assigning him work that took more than eight hours to complete stated a viable claim of harassment and were reasonably likely to deter Complainant and others from engaging in protected activity).

Robinson-Brooks v. U.S. Postal Serv., EEOC Appeal No. 0120120732 (October 25, 2012) (Complainant's allegation that she was not granted sufficient time to attend doctors' and physical therapy appointments stated a viable claim of disability discrimination, and should be analyzed as a denial of a request for reasonable accommodation. The Agency's assertion that Complainant was allowed to attend her appointments addressed the merits of her complaint without a proper investigation).

Thompson v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122386 (October 18, 2012) (Complainant identified a series of alleged incidents, including being denied a promotion, not being compensated for higher level duties, and being reassigned which when taken together stated a viable claim of retaliatory harassment. The actions occurred after Complainant contacted the EEO Program Manager and were sufficiently severe to render Complainant aggrieved).

Richards v. U.S. Postal Serv., EEOC Appeal No. 0120113631 (October 12, 2012) (Complainant's allegation that she was threatened with being placed off the clock, subjected to two investigative interviews, accused of stealing, singled out, and issued a Letter of Warning, when taken together, stated a viable claim of retaliatory harassment. These actions could have a chilling effect upon a reasonable employee's exercise of EEO rights).

Purifoy v. Dep't of the Navy, EEOC Appeal No. 0120122234 (October 10, 2012) (the Agency improperly dismissed Complainant's claim that Agency officials retaliated against him for prior EEO activity when they maintained memorandums of record pertaining to alleged performance issues. While the Agency provided the documents to an EEO Investigator during the investigation of a prior complaint, the documents were not mere statements provided as part of an affidavit in another EEO case, and the Agency asserted that it maintained the memoranda for the record in a locked cabinet in the Supervisor's office. As such, the matter was reasonably likely to deter Complainant or others from engaging in protected activity. The Agency properly dismissed two issues concerning statements made by Agency officials solely as part of the investigation of a prior EEO complaint).

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

Lopez v. Dep't of the Army, EEOC Appeal No. 0120122949 (December 12, 2012), request for reconsideration denied, EEOC Request No. 0520130262 (May 31, 2013) (the Agency properly dismissed Complainant's claim that the Agency, on two occasions, did not approve him to serve as another employee's representative. While an employee alleging discrimination may select the representative of his or her choice, it is the aggrieved employee and not the representative who has standing to file a complaint concerning an Agency's actions affecting the duties of the representative. The Commission noted that the other employees may file a complaint over the denial of permission for Complainant to serve as their representative, but Complainant may not do so).

Bacus v. U.S. Postal Serv., EEOC Appeal No. 0120122886 (December 7, 2012) (Complainant's allegation that, on two occasions, he was not allowed to work a specific route failed to state a claim. The record showed that the work involved was not appreciably different and the compensation paid was the same as the route he did work. Thus, Complainant failed to show that he suffered harm or loss with respect to his employment).

Elkin v. Dep't of the Army, EEOC Appeal No. 0120122211 (November 8, 2012) (the Agency properly dismissed Complainant's complaint because the record showed that the Agency did not exercise sufficient control over Complainant's position to qualify as her employer or a joint employer. While Complainant worked on Agency premises using Agency equipment and the Agency had some control over her hours, the record did not show that the Agency supervised her work and her performance evaluation was done by the contractor with little input from the Agency. The Agency also did not pay Complainant and did not provide her insurance or training); See also Good v. Dep't of the Navy, EEOC Appeal No. 0120103404 (October 10, 2012), request for reconsideration denied, EEOC Request No. 0520130129 (May 7, 2013) (the underlying complaint of discrimination was properly dismissed because the weight of the evidence showed that the Agency did not exercise sufficient control over Complainant's job to qualify as an employer or joint employer for purposes of the federal sector EEO process. Despite the fact that the Agency provided Complainant with a workstation with a government issued computer and there was a continuing relationship between Complainant and the Agency, those factors did not outweigh the other factors, including the fact that Complainant was directly supervised by an employee of the contractor, was paid and had his leave approved by the contractor, and did not perform work that was an integral part of the Agency's mission, which indicated that Complainant was not an employee of the Agency).

Kusy-Carpenter v. U.S. Postal Serv., EEOC Appeal No. 0120120642 (November 5, 2012) (the Agency properly dismissed Complainant's complaint concerning the denial of her request to change her start time from 7:30 am to 7:15 am. Complainant failed to show that she was harmed by the denial of a 15 minute start time on one day, and did not assert that she had to use leave or was late to her medical appointment).

Sugai v. Dep't of the Navy, EEOC Appeal No. 0120122288 (October 23, 2012) (Complainant's complaint of discrimination with regard to matters that occurred at the Agency's Navy Exchange in Italy was properly dismissed. Complainant, who was not a U.S. citizen, worked in a position located outside the limits of the United States, and the EEOC's regulations expressly do not apply to non-citizens in such positions).

Cooper v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122445 (October 15, 2012) (Complainant's allegations that the Agency discriminated against her when it gave her a letter directing her to check in with the Agency's Police and Security Service whenever she entered a particular medical center and be at the center only for medical appointments was properly dismissed for failure to state a claim. While Complainant was a former employee of the Agency, the matters raised in her complaint related to her status as a patient of the medical center).

Cooper v. Dep't of the Army, EEOC Appeal No. 0120122536 (October 10, 2012) (the Agency properly dismissed Complainant's complaint because Complainant's allegations that Agency officials altered his worker's compensation form and attempted to have his worker's compensation claim denied constituted a collateral attack on the OWCP process).

Summary Judgment

Summary Judgment Proper. Complainant worked for the Agency as a Supervisory CBP Agriculture Specialist. In 2008, the Agency implemented enhanced retirement coverage to CBP employees. Complainant inquired of the Office of Human Resources Management (OHRM) as to whether she qualified for enhanced retirement coverage, and was told she was ineligible since she did not have the requisite three years of primary frontline experience. Subsequently, the Agency instituted a new policy requiring a percentage of CBP Supervisors at each location to rotate between units. Management then reassigned Complainant to a unit which required her to supervise more employees. In addition, her office was relocated. Complainant ultimately filed a formal EEO complaint alleging that the Agency discriminated against her with regard to these matters, as well as when it did not select her for an Assistant Port Director position. 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. The record was adequately developed, and Complainant was given a comprehensive statement of the allegedly undisputed material facts as well as the opportunity to respond thereto. Complainant also had the opportunity to engage in discovery. The Commission found that, even assuming all facts in favor of Complainant, a reasonable fact finder could not find in her favor. With regard to the enhanced retirement coverage, Complainant failed to show that the Agency's explanation, that is Complainant did not meet the criteria for coverage, was a pretext for discrimination. Further, the Agency stated that Complainant was reassigned pursuant to Agency policy and because the position would allow her to better oversee the CBP Agriculture Specialists. Although Complainant disagreed with the decision, she did not show that it was based on her race or sex. With regard to the non-selection, the record showed that while Complainant had more years of supervisory experience, the Selectee had more experience in the areas related to the position. Thus, Complainant failed to show that her qualifications were plainly superior to those of the Selectee. Finally, the Commission found that Complainant's allegations, even if true, were not sufficiently severe or pervasive to constitute a hostile work environment. Thus, the Commission affirmed the AJ's findings of no discrimination. Frazier v. Dep't of Homeland Sec., EEOC Appeal No. 0120111300 (November 9, 2012).

Summary Judgment Improper in Equal Pay Act Case. Complainant worked as a Unit Supervisor, Senior Reactor Operator at an Agency Nuclear Plant. She filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her sex when it paid her a lower salary than males occupying the same position. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately issued a decision without a hearing finding no discrimination. On appeal, the Commission found that the AJ erred in issuing a decision without a hearing because the record was not adequately developed in this case.

The Commission noted that, to establish a violation of the Equal Pay Act (EPA), a complainant must show that he or she received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort and responsibility under similar working conditions within the same establishment. The Commission stated that the AJ erred by finding that Complainant did not establish a prima facie case of discrimination under the EPA. The record showed that Complainant's base salary over a two year period was lower than most of her male counterparts. While the Agency asserted that three male employees received less base compensation than Complainant, the Commission noted that Complainant need not compare herself to all similarly situated employees or even all similarly classified male employees. Instead, Complainant may choose to compare herself to one or more male employees doing the same work.

In addition, the Commission found that the AJ improperly added compensation from a deferred agreement to Complainant's base compensation. The Commission stated that the focus in terms of establishing a pay disparity under the EPA should be with respect to "wage rate" rather than total remuneration, and an employer cannot pay a higher hourly wage to one employee and then attempt to equalize the difference by periodically paying a bonus to an employee of the opposite sex. The Commission stated that Complainant's agreement relating to her continued employment with the Agency was not part of her base compensation. Since the compensation was based on a retention agreement it was not in the same form as Complainant's base compensation. Further, even if Complainant's total remuneration was higher for the specified time due to the agreement, the wage rate for her base compensation was lower than most of her male comparators. When solely looking at Complainant's base compensation for the period in question, the Commission found that Complainant established that her base compensation was lower than a number of male comparators. The Commission noted that the record warranted further development as to whether the disparity in Complainant's base compensation was due to a factor other than sex, such as her performance as was asserted by the Agency. Thus, the matter was remanded for an administrative hearing. Branam v. Tenn. Valley Auth., EEOC Appeal No. 0120112831 (November 8, 2012).

Summary Judgment Improper. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of his age when it did not select him for a Division Director position. Following an investigation, the AJ issued a decision without a hearing finding no discrimination. On appeal, the Commission found that the issuance of a decision without a hearing was improper because the record was not adequately developed. The Commission noted that Complainant established a prima facie case of age discrimination given that he applied and was qualified for the position and was significantly older than the selectee and other applicants referred for an interview. While the record contained brief statements from four Agency officials, the Commission stated that these statements did not provide any substantive reason for Complainant's non-referral. Specifically, two officials stated that they did not know why Complainant was not referred, and one official recounted the general mechanics of the selection process without any further explanation regarding why Complainant was not selected. The Selecting Official also did not explain why Complainant was not referred or selected. Further, although the Agency asserted that Complainant was not referred because of the scores he received from a selection panel, the Selecting Officials failed to explain why Complainant received a lower score, and the ranking forms did not reveal the reasoning or justification for the scores. Thus, the Commission concluded that the record was inadequately developed for a determination on the merits of Complainant's complaint. The Commission noted that when scores are used during the selection process, employers must meet the burden of providing a legitimate, non-discriminatory basis for their decision by producing evidence of the reasons for their evaluations. The Commission remanded the matter for a supplemental investigation. Materi v. Dep't of Hous. & Urban Dev., EEOC Appeal No. 0120103646 (October 9, 2012).

Timeliness

Complainant Timely Initiated Contact with EEO Counselor. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when he was terminated effective January 28, 2012. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission noted that Complainant provided a copy of the Agency's EEO poster with the contact information for its EEO Officials. Complainant also included a copy of his telephone records which indicated that he called a Counselor on January 17, 2012. Complainant's attorney also sent an e-mail to the Counselor on April 27, 2012, stating that Complainant had faxed his termination letter and left messages in January, but that the EEO Counselor failed to respond. Based upon the evidence submitted, the Commission determined that Complainant clearly attempted to contact the EEO Counselor in January 2012, and that any delay in processing was caused by the Counselor's failure to respond to Complaint and his Attorney. As such, Complainant's contact was made in a timely manner. Bray v. Dep't of Def., EEOC Appeal No. 0120122966 (December 20, 2012).

EEO Counselor Contact Deemed Timely. Complainant, an applicant for employment, filed a formal EEO complaint alleging that the Agency discriminated against her when it rescinded a job offer in July 2010. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant learned the job offer had been rescinded in July 2010 but did not contact a Counselor until April 2011. On appeal, the Commission found that the Agency erred by dismissing the complaint. Complainant stated that she was unaware of the limitation period for contacting an EEO Counselor. The Agency did not assert that Complainant had actual or constructive knowledge of the limitation period. The Commission has previously held that EEO Counselor contact by a non-federal employee is timely although it occurs outside of the applicable time period where the Complainant is not familiar with EEO procedures and is not informed of the procedures by the Agency. Thus, Complainant's EEO contact was deemed timely. LeVan v. Tenn. Valley Auth., EEOC Appeal No. 0120113518 (December 19, 2012).

Extension of Time to Contact EEO Counselor Warranted. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on June 2, 2011, when it did not select her for an Administrative Officer position. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that her contact on August 23, 2011, was beyond the 45-day limitation period. On appeal, the Commission noted that Complainant contended that she was not aware of the relevant time limitation for seeking EEO counseling. Further, the Agency failed to support its assertion that Complainant had actual or constructive knowledge of the limitation period. The Agency did not show that EEO posters containing the information were on display at Complainant's work site, or that she actually knew of the 45-day limitation period. Thus, the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination of timeliness. Quander v. Dep't of State, EEOC Appeal No. 0120122369 (December 7, 2012).

Extension of Time to Contact EEO Counselor Warranted. Complainant was issued a notice of removal dated March 15, 2010. The effective date of the removal was April 18, 2010. Complainant filed a formal EEO complaint, alleging that the Agency discriminated against her when it subjected her to a hostile work environment and issued her the notice of removal. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that she did not do so until May 2, 2011. On appeal, the Commission initially noted that the Agency provided an affidavit from the Supervisor of Customer Services stating that EEO posters were displayed in Complainant's facility which included the applicable time limits for contacting an EEO Counselor. The Agency also provided a copy of the poster, and the information was sufficient to show that Complainant had constructive knowledge of the time limitations. Nevertheless, Complainant provided two letters from a medical provider stating that she was so incapacitated during the relevant period so as to prevent her from timely initiating EEO contact within 45 days of the effective date of removal. Further, the mental incapacitation was alleged to be a direct result of the hostile work environment that was the subject of the complaint. Medical evidence showed that Complainant had recovered sufficiently as of April 27, 2011, and contacted an EEO Counselor on May 2, 2011, which was within 45 days. Butler v. U.S. Postal Serv., EEOC Appeal No. 0120113723 (November 21, 2012).

Dismissal for Failure to Timely Contact EEO Counselor Improper. Complainant contacted an EEO Counselor on April 7, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against him when it classified his position at the GS-12 level. According to the record, the Agency underwent a grade conversion beginning in 2010. Complainant provided input to his Supervisor regarding his duties, but the Supervisor purportedly informed Complainant that he would submit a draft position description without the duties Complainant suggested. Complainant indicated that the Supervisor assured him that the duties submitted should warrant a higher grade. Complainant spoke with an EEO Specialist who advised him to file a Freedom of Information Act (FOIA) request to obtain information regarding the grade level of the position. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant knew in September 2010 that the Supervisor's submissions would not include his input. On appeal, the Commission stated that the complaint concerned the impact of the Supervisor's submissions on the classification of Complainant's position, and Complainant stated that the Agency was hindering his promotion because of his national origin. Thus, the Commission found that it was reasonable to start the time period for contacting a Counselor at the point Complainant learned that his position had been classified at the lower level. This occurred on April 2, 2011 when Complainant received the response to his FOIA request. In addition, the Agency did not dispute Complainant's assertion that the EEO Specialist advised him to defer initiating the EEO process until he had the results from the FOIA request. Thus, the Commission found that the Agency's dismissal of the complaint was improper. Arellanes v. Dep't of Def., EEOC Appeal No. 0120114041 (November 5, 2012).

Complaint Improperly Dismissed for Failure to Timely Contact EEO Counselor. Complainant contacted an EEO Counselor and subsequently filed a formal complaint alleging that the Agency discriminated against her when a male employee assaulted her in December 2010, and management failed to take any action. The Agency dismissed the matter for failure to timely contact an EEO Counselor, stating that Complainant received training in October 2010 which included the time limits for initiating an EEO complaint. On appeal, the Commission found that the Agency's dismissal was improper. Complainant denied knowing the time limits for contacting a Counselor. In addition, she provided proof that she attended only the morning portion of the first day of training. The Agency did not respond to Complainant's assertions that the EEO matters were discussed in the afternoon training session and not the morning. Thus, the Commission was not convinced that Complainant was aware of the time limitations for contacting a Counselor. Parker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120338 (November 5, 2012).

Waiver of Time Limit for Contacting EEO Counselor Appropriate. Complainant contacted an EEO Counselor on December 2, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it did not renew her teaching contract in August 2011, did not select her for a teaching position on September 23, 2011, and subjected her to a hostile work environment. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission noted that it was undisputed that Complainant did not initiate contact with the Counselor until approximately three and one-half weeks after the expiration of the applicable limitation period. The Commission found, however, that waiver of the time limit was appropriate in this case. Complainant asserted her lack of knowledge of the EEO complaint process, and there was nothing in the record showing that the Complainant had either actual or constructive knowledge of the limitation period. The Agency did not provide evidence that there were EEO posters accessible to Complainant that contained the relevant time limitations or that Complainant received EEO training that included the information. The Commission found nothing in Complainant's EEO complaint history which would support a finding that Complainant, who the Agency characterized as a contractor at the time of her prior complaint, was made aware of the applicable limitation period as a result of her prior pursuit of the EEO complaint process. Thus, the matter was remanded for further processing. Kareem v. Dep't of State, EEOC Appeal No. 0120122132 (October 19, 2012).

EEO Counselor Contact Was Timely. Complainant contacted an EEO Counselor in October 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against him when it removed certain Letter Box Mechanic duties from his position. The Agency dismissed the complaint for failure to timely contact an EEO Counselor reasoning that Complainant received a letter in May 2011 notifying him that his job as a Letter Box Mechanic would be abolished. The record showed that Complainant did receive a letter notifying him that his job would be abolished effective June 4, 2011. The letter, however, further stated that Complainant would remain in his current position until further notice. Therefore, the Commission found that while it appeared Complainant's position was abolished on paper, he was still allowed to function in the Letter Box Mechanic position and perform those duties. In October 2011, Complainant's union representative informed him that management was going to actually remove the duties in question, and Complainant sought EEO counseling within 45 days of this notification. Thus, the Commission concluded that the removal of Complainant's Letter Box Mechanic duties did not in fact become effective until at least October 2011, thereby rendering his EEO contact timely. Booty v. U.S. Postal Serv., EEOC Appeal No. 0120122575 (October 16, 2012).

Complaint Properly Dismissed for Failure to Timely Contact EEO Counselor. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her in 2009 and 2010, and subsequently terminated her on March 7, 2011. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant did not contact the EEO Counselor until April 28, 2011, which was beyond the 45 day limitation period. The Commission affirmed the Agency's dismissal on appeal. The Commission noted that Complainant acknowledged receiving the notice of termination on March 12, 2011, and the Agency provided documentation showing that she attended EEO training which included information on the applicable limitation period for contacting a Counselor. According to the record, Complainant contacted an Agency employee (Person A) in February 2010. Person A served as both an EEO Specialist and the ADR Program Manager. At that time, Complainant's attorney alleged that the Agency was not accommodating Complainant under the Longshore and Harbor Worker's Compensation Act, mentioned an "employment contract ADR procedure," and indicated that Complainant would file a grievance for harassment and reduction in her hourly wages. On February 2011, Complainant sent an e-mail to Person A requesting ADR to resolve the denial of reasonable accommodation for her work-related injury. Complainant's attorney then sent an e-mail to Person A on March 4, 2011, referencing Complainant's rights under the collective bargaining agreement, and stating that he would be advising Complainant as to whether the alleged harassment would be the basis for an EEO complaint. The Commission found that Complainant contacted Person A during this time to pursue ADR on her workplace concerns, and that the attorney's March e-mail stating that the actions "might be the basis" for an EEO complaint confirmed that Complainant had not previously initiated the EEO process. The Commission noted that there was no further contact between Complainant and the EEO Office until April 28, 2011, when Complainant asked Person A to send her the forms to file an EEO complaint. The Commission concluded that there was no evidence that Complainant exhibited any intent to pursue an EEO complaint prior to April 28, 2011, which was beyond the applicable limitation period. Nyarko v. Dep't of the Navy, EEOC Appeal No. 0120113654 (December 5, 2012).

Dismissal for Failure to Timely Contact an EEO Counselor Proper. Complainant contacted an EEO Counselor in January 2012 and subsequently filed a formal complaint alleging, among other things, that he received less compensation than a female Project Manager. The Agency dismissed the matter for failure to timely contact an EEO Counselor, noting that Complainant did not challenge the other employee's promotion when she was selected in 2010. On appeal, the Commission found that the Agency properly dismissed the issue. The record showed that Complainant applied for the same position in 2010 but was not selected. The Commission rejected Complainant's assertion that he raised a claim of discriminatory compensation under the provisions of the Lilly Ledbetter Fair Pay Act. The Commission noted that most courts have concluded that the time frame for challenging the denial of a standard promotion, in which someone was denied the opportunity to move to another position at higher pay, are not affected by the Lilly Ledbetter Fair Pay Act. Kannaby v. Dep't of the Army, EEOC Appeal No. 0120122346 (October 23, 2012).

Complaint Properly Dismissed for Failure to Contact an EEO Counselor. According to the record, Complainant was a member of a class action filed on behalf of supervisors in a particular district who were required to use their personal vehicles for Agency business. The class complaint was forwarded to an AJ who ultimately denied class certification. The Agency issued a final order on November 9, 2011, implementing the AJ's decision. Complainant sought EEO counseling on January 13, 2012, and subsequently filed an individual complaint alleging that the Agency discriminated against him when it required him to use his personal vehicle without compensation in March 2009 and placed him in an off-duty status in September 2009. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that the dismissal was proper. The Commission noted that the commencement of a class action suspends the applicable time limit for all asserted members of the class who would have been parties if the class had been certified. Therefore, Complainant's duty to contact an EEO Counselor was suspended during the pendency of the class certification decision. The suspension period ended, however, when the Agency issued its final order adopting the AJ's denial of class certification, and Complainant did not initiate contact with a Counselor within 45 days. Complainant asserted that the Agency failed to notify him of his right to pursue an individual complaint after the class was not certified. The Commission held, however, that where class certification has been denied, there is no regulatory requirement that an Agency notify potential class members of the dismissal of the class complaint or their right to file individual complaints of discrimination. Further, the Commission noted that the class agent in this case also served as Complainant's representative and had personal knowledge that the class complaint had not been certified. Ramirez v. U.S. Postal Serv., EEOC Appeal No. 0120122172 (October 17, 2012).

Justification for Extending Time Limit for Filing Complaint Found. Complainant contacted an EEO Counselor in July 2011 with regard to various allegations of discrimination. When the matters could not be resolved informally, Complainant was issued a Notice of Right to File a Formal Complaint on January 13, 2012. Complainant received the notice on January 17, and attempted to contact the EEO Counselor regarding the phrasing of his claims. The EEO Counselor responded to Complainant on or about January 30, and Complainant filed his formal complaint on February 7, 2012. The Agency dismissed the matter as untimely. On appeal, the Commission found that Complainant provided sufficient reason to excuse the brief delay in filing. Complainant explained that he contacted the EEO Counselor during the filing period in order to discuss changes in the characterization of his claims, and Complainant filed his complaint within one week of his discussion with the Counselor. The record showed that Complainant and the Agency did not engage in traditional EEO counseling, and, therefore, Complainant did not have an opportunity to raise such questions with a Counselor prior to the issuance of the Notice. Cowgill v. Dep't of Homeland Sec., EEOC Appeal No. 0120123131 (January 4, 2013).

Justification for Extending Time Limit for Filing Complaint Found. Complainant contacted an EEO Counselor and subsequently filed a formal complaint alleging that the Agency discriminated against her when it issued her a 15 day suspension. According to the record, Complainant filed her formal complaint two days after the expiration of the 15-day filing period, and the Agency dismissed the complaint as untimely. Complainant's representative informed the Agency that Complainant experienced a medical condition and was on medication that resulted in some difficulties with memory. The representative also provided documentation showing that Complainant was experiencing significant depression and bouts of memory loss. On appeal, the Commission found that although Complainant's medical documentation did not explicitly establish that she was totally incapacitated during the period in question, the seriousness of her medical condition and the briefness of the delay was sufficient justification for excusing the delay. Thus, the complaint was remanded for further processing. Holmes v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120802 (November 13, 2012).

Formal Complaint Improperly Dismissed as Untimely. Complainant filed a formal EEO complaint on March 5, 2011, alleging that the Agency subjected her to discrimination on the bases of her race, sex, and color. The Agency dismissed the complaint as untimely, stating that Complainant received the Notice of Right to File on February 17, 2011. On appeal, the Commission found that the Agency's dismissal was improper. Complainant stated that the Agency sent the Notice to her work e-mail address after work hours on February 17, and that she did not actually receive the Notice until the following day. The Agency did not submit any evidence that Complainant actually received the Notice on February 17, 2011. The Commission noted that its regulations do not expressly address or define service by electronic mail. Thus, Complainant's complaint was timely filed on March 5, 2011, as the last day of the limitation period fell on a Saturday and that was the next business day. Hines v. Dep't of the Navy, EEOC Appeal No. 0120114124 (November 8, 2012).

Formal Complaint Improperly Dismissed as Untimely. Complainant filed a formal EEO complaint on March 16, 2012, alleging that the Agency discriminated against her when it denied her detail and training opportunities, and reduced her pay. According to the record, Complainant contacted an EEO Counselor regarding the matters in June 2011, and filed an appeal with the Merit Systems Protection Board (MSPB) on the same matters in August 2011. The MSPB ultimately denied jurisdiction, and the Agency dismissed Complainant's EEO complaint as untimely. On appeal, the Commission noted that the Agency conceded that it told Complainant that she must file her formal complaint within 45 days of the date the MSPB determined that it did not have jurisdiction. Further, it was undisputed that Complainant was told that the filing of her formal EEO complaint could be held in abeyance until the MSPB made a determination regarding jurisdiction. When the MSPB upheld the denial of jurisdiction, Complainant promptly filed her formal complaint. Thus, the Commission concluded that Complainant's EEO complaint was timely filed, and remanded the matter for processing. Buss v. U.S. Postal Serv., EEOC Appeal No. 0120122733 (October 17, 2012).

Formal Complaint Timely Filed. Complainant filed a formal EEO complaint on February 24, 2012, alleging that the Agency subjected him to a discriminatory hostile work environment. The Agency dismissed the complaint as untimely, stating that it served Complainant's attorney with a copy of the Notice of Right to File a Formal Complaint on February 7, 2012. On appeal, the Commission found that the dismissal was improper. Complainant asserted that, although he had used the attorney on a separate matter, he was not represented by an attorney for the instant complaint. Further, the record supported this claim as Complainant did not identify the attorney as his representative on his formal complaint. Thus, the Commission found that the Agency mistakenly sent the Notice to the attorney. Complainant stated that he received the Notice on February 10, 2012, and the Agency did not present any evidence to the contrary. Thus, the Commission found that the complaint was timely filed. Compagna v. Dep't of Homeland Sec., EEOC Appeal No. 0120122465 (October 15, 2012).

Formal Complaint Properly Dismissed as Untimely. Complainant filed a formal EEO complaint on February 24, 2012, alleging that the Agency discriminated against her when she was not selected for two positions. The Agency dismissed the complaint as untimely, stating that since the Notice of Right to File a Formal Complaint was delivered to Complainant on November 26, 2011, her complaint was filed beyond the 15-day limitation period. On appeal, the Commission noted that Complainant's representative filed the formal complaint with the Commission rather than the Agency. The record showed, however, that the Agency provided Complainant with the proper address for filing her complaint, and the Commission has previously held that, when provided with the proper address, filing at the wrong address does not constitute a proper filing. Thus, the dismissal was affirmed. Jones v. Dep't of Hous. & Urban Dev., EEOC Appeal No. 0120122272 (October 11, 2012).

ARTICLE
Sanctions for Contumacious Conduct

(The following article is not intended to be an exhaustive or definitive discussion of a complex area of law, nor is it intended as legal advice. The article is generally based on EEOC documents available to the public at the Commission's website at http://www.eeoc.gov/, as well as on Commission case law. For a discussion of prior Commission decisions addressing the issue of sanctions see Digest of EEO Law, "Sanctions: An Update of Recent Commission Decisions," Vol. XXII, No. 3 (Summer 2011): & "The Sanctions Cases of 2009: Preserving the Integrity of the EEO Process," Vol. XXI, No. 1 (Winter 2010). Some decisions cited may have appeared in previous editions of the Digest. -Ed)

INTRODUCTION

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

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

The AJ has the power to regulate the conduct of a hearing and to exclude any person for contumacious conduct or misbehavior that obstructs the hearing.7 This includes the complainant, and the complainant's or Agency's representative. This sanction generally applies to conduct occurring at any point during the hearing process, including pre-hearing proceedings. Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances where the complainant has engaged in contumacious conduct, not simple negligence.8 A person's conduct is considered contumacious when it is "willfully stubborn and disobedient."9 It can include any unprofessional or disrespectful behavior; degrading, insulting or threatening verbal remarks or conduct; the use of profanity; or conduct engaged in for the purpose of improperly delaying the hearing. It may be based on a single incident, and the AJ may take into consideration other improper conduct engaged in by the individual on any previous occasion.10

In each case, the sanctions must be tailored to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would sufficiently meet these objectives, it may be an abuse of discretion to impose a harsher sanction. Sanctions should be proportional to the nature and degree of the improper conduct, and, with regard to representatives, should be weighed against the party's right to be represented by an individual of the party's choice.11

Recent Commission Cases

The Commission addressed the AJ's imposition of sanctions for contumacious conduct in Stoyanov v. Dep't of the Navy.12 Complainant filed numerous complaints of discrimination which were consolidated for hearing. The AJ issued an Acknowledgment and Order setting out the parameters for the conduct of the hearing process, directing the parties to commence discovery, and notifying the parties of the potential for sanctions in the event either party failed to comply with the Orders of the AJ. The AJ adopted Orders issued in relation to Complainant's previous hearing requests. The AJ also denied Complainant's motions for a change of venue; motions to disqualify the Agency Counsel; motions to compel the Agency to audiotape and transcribe future teleconferences and hearing; motions to compel the Agency's representative to certify the content of Agency correspondence under penalty of perjury; and motion to compel the Agency to send confirmation of every correspondence sent to the AJ. Complainant was admonished not to submit motions to the Supervisory AJ, but rather to the AJ assigned to the hearing. Complainant was also reminded to comply with prior Orders to cease personal attacks on Agency Counsel in which he alleged that Counsel committed fraud, perjury and other criminal acts. The AJ issued an Order Striking Complainant's Improper Motions after Complainant failed to remove offending language. The AJ ultimately issued an Order of Dismissal of Hearing recounting in detail the contents of his previous Orders, Complainant's past behavior, and Complainant's persistent refusal to comply with the AJ's Orders. The AJ also included examples of Complainant's repeated accusations of criminal behavior against the Agency Counsel and AJ. The AJ found that Complainant demonstrated "willful, disobedient, contumacious conduct" in his refusal to appear for an in-person status conference, and that no less a sanction than the dismissal of Complainant's hearing requests would be effective in controlling the proceedings. On appeal, the Commission noted that Complainant had been repeatedly warned and ordered not to engage in disrespectful conduct toward the Agency Counsel and the AJ. He was also ordered not to file frivolous and repetitive motions. Nevertheless, Complainant persisted in the same conduct, and, therefore, the AJ's dismissal of Complainant's hearing request, with prejudice, was proper. The appeal also upheld the final Agency decisions on the substance of the complaints at issue, determining that the Complainant had not demonstrated that the Agency's reasons for not selecting Complainant were pretext for discrimination.

The Commission also found that the AJ properly dismissed Complainant's hearing requests in Stoyanov v. Dep't of the Navy.13 Complainant filed six formal EEO complaints, which were ultimately consolidated for an administrative hearing in March 2011. The AJ adopted previous Orders which had ruled on issues such as the amount of official time for Complainant to work on his EEO complaints; Complainant's motions to disqualify Agency Counsel and for a change of venue and AJ; and various other discovery disputes that had arisen. Complainant was warned that further acts of contumacious conduct would not be tolerated and would result in sanctions including the dismissal of his hearing request and any other sanction that was deemed reasonable. Complainant then filed a Motion to Reconsider Adoption of Previous Orders, as well as several other motions. He also filed a Motion to Disqualify the Agency's Representative in which he many several accusations of wrong-doing against the Agency Counsel and the EEOC AJs who had previously handled his cases. Complainant continued to make statements against the Agency Counsel such as referring to him as a "blatant criminal," and stating that he engaged in "vicious attacks with baseless accusations…to cover up the escalation of corruption."

The AJ ultimately granted the Agency's motion and dismissed Complainant's hearing requests. The AJ recounted examples of instances in which Complainant had used "vituperative language" in reference to the Agency Counsel and Commission AJs, in clear contravention of previous Orders. The AJ stated that the "continuous and flagrant disregard" of the Commission's Orders could not be tolerated. On appeal, the Commission noted that an AJ has inherent powers to conduct a hearing and issue appropriate sanctions. The Commission concluded that the AJ was well within the bounds of discretion when he dismissed Complainant's hearing requests, as clearly no other sanction seemed to have any effect on modifying Complainant's behavior.14

In Jarrell v. U.S. Postal Serv.,15 Complainant requested an administrative hearing with regard to her complaint of disability discrimination and harassment. The AJ, however, dismissed the hearing request due to Complainant's failure to prosecute her complaint. According to the record, the AJ issued a Scheduling Order instructing the parties to submit Prehearing Reports by July 29, 2008. Complainant did not submit a report, and the AJ issued an Order to Compel Discovery on August 18, 2008. Complainant subsequently submitted a "voluminous, unordered, and incomplete package of documents" which purported to include the Prehearing Report. The AJ held a prehearing conference on September 3, 2008, at which time Complainant's Counsel indicated that Complainant had not participated in a scheduled deposition. The Counsel acknowledged that the Agency asked what was needed to ensure the deposition occurred, but was not provided with any specific information by Complainant. The AJ noted that Complainant had an opportunity to show just cause for her failure to prosecute, and her Counsel cited her work on other legal matters, lack of assistance, printing problems and personal injuries. The AJ stated that the Scheduling Order and Order to Compel advised Complainant that the failure to comply could lead to sanctions, including dismissal of the hearing request. On appeal, the Commission found that the AJ properly determined that the appropriate sanction was to dismiss Complainant's hearing request. Although Complainant argued that the AJ should have issued a Show Cause Order, Complainant had the opportunity to show just cause for her failure to prosecute her claim and failed to do so. The Commission noted that, rather than dismiss the complaint, the AJ chose the lesser sanction of remanding the matter to the Agency for a final decision.16

Finally, in Muller v. Dep't of Agric.,17 Complainant requested an administrative hearing on two complaints of discrimination. The AJ issued an Order scheduling a Case Management and Status Conference. Complainant did not appear at the conference or otherwise respond to the Order. The AJ then issued a Notice to Show Cause why Complainant did not appear at the conference. The Notice advised Complainant that his failure to respond would be construed as a withdrawal of his request for a hearing and would constitute grounds for dismissal of his complaint. Complainant contacted the Commission's Office of Inspector General, requesting that the Commission "tentatively" stop processing his complaints, and asking that the AJ recuse himself. The AJ denied the request, and provided Complainant an additional 15 days to respond to the Notice to Show Cause. After Complainant failed to respond, the AJ dismissed the complaint. On appeal, the Commission found that the dismissal of the complaint was appropriate. Complainant did not dispute that he refused to participate in the Conference and refused to respond to the Notice to Show Cause. Instead, when Complainant learned that the AJ refused to recuse himself, Complainant delayed the proceedings by requesting that the Commission stop proceedings on his complaint. The Commission found that Complainant's behavior was not simply negligence, but was the type of contumacious conduct that warranted dismissal of his complaint.


Footnotes

129 C.F.R. § 1614.109(f)(3).

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

3 29 C.F.R. § 1614.404(c).

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

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

6 Id; see also Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (December 8, 2000).

7 EEOC Management Directive 110, 7-V(A) (February 24, 2011), 29 C.F.R. § 1614.109(e).

8 See Hale v. Dep't of Justice, EEOC Appeal No. 01A03342 (December 12, 2000) citing Thomas v. Dep't of Transp., EEOC Appeal No. 01870232 (March 4, 1998).

9 EEOC Management Directive 110, 7-V (February 24, 2011) citing Black's Law Dictionary 330 (6th ed. 1990).

10 EEOC Management Directive 100, 7-V (February 24, 2011).

11 Id.

12 EEOC Appeal Nos. 0120110398 et seq. (January 27, 2012).

13 EEOC Appeal Nos. 0120113931, et seq. (October 11, 2012).

14 The Commission affirmed the Agency's decisions finding that Complainant did not establish that he was subjected to unlawful discrimination. It is noted that in a subsequent decision, the Commission expressed support for an Order of the Supervisory AJ admonishing Complainant for continuing to use similar language and placing him on notice that he was prohibited from engaging in such accusations against any AJ assigned to his case or an Agency representative. Stoyanov v. Dep't of the Navy, EEOC Appeal Nos. 0120110405 & 0120110406 (October 19, 2012). The Commission stated that it would not hesitate to affirm dismissals of hearing requests for any of Complainant's pending complaints if he continued to use disrespectful language and make unfounded accusations against Agency Counsel and Commission AJs.

15 EEOC Appeal No. 0120090443 (January 24, 2013).

16 The Commission ultimately upheld the Agency's finding of no discrimination.

17 EEOC Appeal No. 0120101015 (February 1, 2013).