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The DIGEST Of Equal Employment Opportunity Law


Volume XXIV, No. 3

Office of Federal Operations

Summer 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: Robyn Dupont
Writers: Robyn Dupont, Sarah Jonas, Tanza Jones, Elizabeth LaForgia, Rosdaisy Rodriguez

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


(The Commission will now redact Complainants' names when it publishes decisions. There will be no change with regard to the way in which the Commission communicates its decisions to the parties. This change was made to address privacy concerns and to ensure consistency with the Commission's approach in the rest of its enforcement work and the investigations of complaints.- Ed)

SELECTED EEOC DECISIONS

Agency Processing

Agency Improperly Processed Complaint's Request for Counseling. In November 2011, Complainant contacted a Dispute Resolution Specialist to request EEO counseling regarding her claim that the Agency discriminated against her when it refused to provide her with a proper job offer. The Agency subsequently advised Complainant that since the issue related to its compliance with a prior order of the Commission, she could petition for enforcement of that order. The Agency noted that Complainant should raise any concerns regarding its decision with the Commission. According to the record, the Agency did not process Complainant's request for EEO counseling. On appeal, the Commission stated that an aggrieved person begins the EEO process by meeting with an EEO Counselor, and the Counselor should not, under any circumstances, dissuade a person from filing a complaint. The Commission, therefore, concluded that the Agency's dismissal of Complainant's request for EEO counseling was improper. The Commission noted that if Complainant has raised an issue that is not within the purview of the EEO process, the proper avenue for an Agency is to issue a final decision formally dismissing the complaint with appeal rights to the Commission. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121224 (May 9, 2013).

Final Agency Decision Vacated for Failure to Provide MSPB Appeal Rights. Complainant filed a formal EEO complaint alleging discrimination on the bases of age, race, disability, and reprisal for prior EEO activity, which manifested in the denial of employment opportunities, a hostile work environment, and constructive discharge. The Agency notified Complainant that his case was a mixed case, but only provided him appeal rights to the EEOC when it issued its final decision finding no discrimination. The Commission noted that a mixed case is a complaint of employment discrimination that is related to an Agency's action which may be appealed to the Merit Systems Protection Board (MSPB), and the Agency is required to inform employees of the right to file a mixed case complaint with the Agency or to file a mixed case appeal directly with the MSPB. Since the Agency only notified Complainant of his right to appeal to the EEOC, the final Agency decision was vacated, and the case was remanded with an order to issue a new final Agency decision with appeal rights to the MSPB. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120120080 (April 11, 2013).

Attorney's Fees

Award of Attorney's Fees Affirmed. Complainant, a Postmaster, filed a formal EEO complaint. Following a hearing that spanned four days, the Administrative Judge (AJ) determined that the Agency discriminated against Complainant on the basis of sex when it denied her a lateral transfer and did not select her for a position. The AJ issued a second decision on the issue of attorney's fees. The AJ found that the rate of $375 was reasonable for an attorney practicing in the area of comparable skill and experience, and that none of the specific hourly entries challenged by the Agency were excessive. In a prior decision, the Commission affirmed the finding of discrimination, and ordered the Agency, among other things, to pay attorney's fees awarded by the AJ. The Commission also indicated that Complainant was entitled to reasonable attorney's fees incurred in the processing of the appeal. The Agency issued a final decision finding that the request for work in connection with the appeal was excessive, and reducing the amount by 50 percent.

On appeal from the Agency's decision on attorney's fees, the Commission found that the AJ's reasoning that $375 was an appropriate hourly rate extended to the work performed on appeal. The Agency did not challenge that determination in the prior appeal when it had the opportunity to do so. Further, the record contained statements from two attorneys describing the typical hourly rate for attorneys of comparable skill and experience practicing in the same area as Complainant's attorney as $400 and $413. The Commission noted that the Agency's arguments in the final decision, specifically its arguments regarding the hours billed for consultation with Complainant and preparation of Complainant's brief, mirrored its arguments made before the AJ. The Commission rejected the Agency's argument that the number of hours was excessive. For example, while the Agency pointed to entries for May 2009 and September 2011 consultations regarding remedies as duplicative, the Commission found that the consultations were separated by more than two years during which time the Commission rendered a decision on the Agency's appeal of liability. Thus, the hours were not excessive but represented a reasonable amount of time expended in the representation of Complainant during the Agency's appeal. The Agency was ordered to pay Complainant $27,712.50 in attorney's fees. The Commission instructed Complainant to submit a verified statement of attorney's fees for work in pursuit of back pay and other benefits ordered by the AJ to the Agency, stating that it was premature to consider Complainant's request for those fees. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120120680 (May 9, 2013).

Reduction in Attorney's Fees Appropriate. Complainant filed a formal EEO complaint alleging discrimination based on disability and reprisal for prior protected activity when the Agency failed to accommodate her and issued her a Notice of Termination. After a hearing, the AJ found that Complainant had proven discrimination, but agreed with the Agency that the requested attorney's fees were excessive. Complainant's attorney initially requested $32,157.50 for over 128 hours of legal work billed at the rate of $250 an hour. The Agency argued that over 65 of the hours billed constituted work Complainant's attorney did prior to notifying the Agency of his representation, that the attorney improperly billed at his hourly rate for many hours of clerical work, that several of the billing entries were redundant or vague, that the attorney improperly billed for work performed on an unrelated case, and that hours billed for a frivolous motion should be excluded. The AJ agreed with the Agency and reduced the amount of attorney's fees to $9,570, but with a different basis for the pre-representation hours, finding that the work performed then was clerical. The Agency accepted the AJ's finding of discrimination and attorney's fee award. On appeal, the Commission affirmed the Agency's final order, finding that the reduction of fees by the AJ was not erroneous. The Commission noted that the EEOC guidance permits an attorney to claim reasonable time to determine whether to represent a complainant, but the seven months Complainant's attorney claims to have spent in this case was not reasonable. The AJ's award included 2.9 hours reasonably performed in reaching a determination to represent Complainant. Also, the Commission reiterated that clerical work is generally viewed as overhead and not reimbursable. The Commission further found that the AJ acted within her discretion in deducting a portion of fees on the bases of redundancy, a frivolous motion, and fees for unrelated matters. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130748 (May 1, 2013).

Compensatory Damages

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

$175,000 Awarded for Discriminatory Termination. In a prior decision, the Commission found that the Agency discriminated against Complainant when it terminated him from employment. The Agency subsequently conducted a supplemental investigation with regard to Complainant's claim for compensatory damages, and awarded Complainant $30,000 in non-pecuniary damages. On appeal, the Commission found that the Agency's award was inadequate. Complainant's psychiatrist stated that Complainant suffered severe depression as a result of the lose of his job, which subsequently contributed to Complainant losing his home and becoming homeless with his children for a period of time. Complainant experienced frustration, poor sleep, stress and suicidal thoughts. The psychiatrist stated that Complainant had severe difficulty dealing with the stress and concentration issues related to his depression which hampered his ability to work and attend college. The Commission noted that while Complainant suffered from depression prior to his termination, Complainant's psychiatrist and psychologist opined that the discrimination significantly worsened his depressive disorder. The Commission concluded that an award of $175,000 in non-pecuniary damages was appropriate in this case. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130887 (May 31, 2013).

$25,000 Awarded for Retaliatory Non-Selection. Following an administrative hearing, an AJ found that the Agency retaliated against Complainant when it did not select her for the position of Chief of Social Work. The AJ found that Complainant did not show that she was subjected to discrimination on any other basis and did not prove that she was harassed. On appeal, the Commission modified the AJ's award of $75,000 in compensatory damages. Complainant stated that she was humiliated, and experienced emotional distress, anger, helplessness, and apprehension as a result of the retaliation. The Commission concluded that the award should be modified to $25,000 which took into account the severity of the harm suffered, and was consistent with prior Commission precedent. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0720120033 (March 7, 2013).

$15,000 Awarded for Sexual Harassment. In a prior decision, the Commission found that Complainant's Supervisor subjected her to sexual harassment, and ordered the Agency to investigate Complainant's claim for compensatory damages. The Agency issued a decision awarding Complainant $5,000. On appeal, the Commission found that the record supported an increase in the award of damages for emotional distress to $15,000. Complainant stated that the harassment caused her significant stress and affected her health, requiring her to take extended sick leave for approximately eight weeks that included hospitalization. Complainant noted that she continued to have some interaction with the Supervisor as part of her work duties. She experienced difficulty sleeping, loss of appetite, and headaches and felt depressed for a period of about 14 months. She sought psychological counseling and provided notes from the Counselor to support her claim. Complainant also provided an affidavit from a friend who averred that there was a "stark change" in Complainant after the harassment, and that Complainant frequently sounded depressed and would "stay in bed all day." The Commission stated that the evidence presented showed that Complainant suffered from depression and stress for a period exceeding one year, and, therefore, it was reasonable to accept Complainant's testimony of emotional distress to support a higher award of damages. The Commission affirmed the Agency's finding that Complainant was not entitled to pecuniary damages, stating that Complainant did not provide any details or evidence to substantiate her claim. Complainant v. U.S. Postal Serv., EEOC Appeal Nos. 0120130923 & 0120130935 (May 15, 2013).

$5,000 Awarded for Retaliation. In a prior decision, the Commission found that the Agency retaliated against Complainant when it issued him a "successful" performance rating. The Agency was ordered, among other things, to investigate Complainant's claim for damages. The Agency notified Complainant of his right to submit objective evidence to support his request for damages, and ultimately issued a decision awarding Complainant only $2,500 for the cash award he would have received absent the discrimination. On appeal, the Commission noted that Complainant described the emotional stress he experienced as a result of the reprisal. Complainant stated that the stress and anxiety aggravated his hypertension, affected his sleep, caused headaches, impacted his relationships with co-workers, friends and family, and compromised his professional growth. Nevertheless, the Commission found that Complainant presented few details to support his assertions. Thus, the Commission could not conclude that the harm Complainant suffered was severe or lasted very long. The Commission found that, based on the emotional harm described by Complainant, he was entitled to an award of $5,000 in non-pecuniary damages. The Commission noted that the award of damages was to be made in addition to the cash award which was equitable relief. Complainant v. Dep't of Educ., EEOC Appeal No. 0120103308 (January 4, 2013), request for reconsideration denied, EEOC Request No. 0520130245 (October 25, 2013).

$2,500 Awarded for Improper Disclosure of Medical Records. In a prior decision, the Commission found that the Agency violated the Rehabilitation Act when it improperly transmitted Complainant's confidential medical information, and ordered the Agency to complete a supplemental investigation to determine Complainant's entitlement to compensatory damages. At the conclusion of the investigation, the Agency found that Complainant failed to establish an entitlement to pecuniary damages. The Agency also noted that Complainant failed to submit testimony and medical documentation to support his claim for non-pecuniary damages. On Appeal, the Commission found that the Agency properly assessed the Complainant's pecuniary damages because Complainant did not present any evidence concerning an entitlement to pecuniary compensatory damages. The Commission stated, however, that the Agency's finding regarding non-pecuniary damages was improper. By testifying that he suffered emotional distress, Complainant sustained his burden to present evidence of an entitlement to non-pecuniary damages. Therefore, the Commission found that Complainant was entitled to $2,500 in non-pecuniary compensatory damages. The Commission noted that the award was consistent with amounts awarded for similar impermissible disclosures. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121982 (April 19, 2013).

$2,000 Awarded for Violation of the Rehabilitation Act. In a prior decision, the Commission found that the Agency committed a per se violation of the Rehabilitation Act when Complainant's Supervisor took her personnel file containing confidential medical information to his house and left the file there unsecured for five years. The Agency conducted a supplemental investigation with regard to Complainant's claim for damages, and awarded her $500. On appeal, the Commission increased the award to $2,000. Complainant stated that the event aggravated her anxiety disorder, and Complainant sought treatment from a Counselor. By demonstrating a need for counseling soon after discovering that her confidential medical information was left unsecured, Complainant demonstrated tangible harm. Further, Complainant engaged in counseling for several months. Thus, the Agency's award of $500 was insufficient to remunerate Complainant for the harm she suffered. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131060 (June 5, 2013).

Dismissals

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

Complaint Properly Dismissed for Failure to Cooperate. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when he was not selected for two positions or given a detail assignment. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately dismissed the complaint for failure to cooperate, stating that Complainant failed to submit an affidavit despite being notified to do so on two separate occasions. On appeal, the Commission found that the dismissal was proper. Despite attempts by the Investigator to obtain an affidavit from Complainant, Complainant never provided one to the Investigator. In addition, while Complainant initially told the AJ that he had filed an affidavit, he later acknowledged that he had never done so, and Complainant never provided an explanation as to why he did not provide an affidavit. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131274 (June 19, 2013).

Dismissal of Complaint Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to harassment when management directed inappropriate comments toward him during class training sessions. The Agency dismissed the matter as being moot, stating that the harassment had ceased and Complainant was given training with a different instructor. On appeal, the Commission found that the Agency's dismissal was improper. The Commission initially noted that the alleged incidents, occurring over a two week period in front of other training participants, were sufficient to state a viable hostile work environment claim. In addition, the Commission concluded that the claim was not moot. Complainant informed the EEO Counselor that he was still affected by the Trainer's comments, and there was no indication that the Trainer was disciplined or removed from instructing responsibilities. Therefore, there was a chance Complainant would have to take training under the same Trainer at another time. Finally, Complainant stated that the incidents left him feeling embarrassed and hurt, which the Commission deemed a claim for compensatory damages. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120131294 (June 13, 2013).

Dismissal of Complaint Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to harassment. Complainant cited 19 incidents, including being taunted by his Supervisor and co-workers, closely watched, accused of sleeping on the job, not permitted to telework, threatened with termination, and denied sick leave for medical appointments. The Agency dismissed the complaint for untimely EEO contact. On appeal, the Commission found that the dismissal was improper. The Commission noted that Complainant raised a viable claim of discriminatory hostile work environment, supported by numerous incidents several of which occurred within 45 days of his initial counselor contact. Further, the harassment was ongoing and continued even after Complainant initiated his complaint. While the Agency asserted that it denied Complainant leave based on the Manager's interpretation of the rules, and rescinded Complainant's telework agreement for business reasons, the Agency's articulated reasons for the actions were irrelevant to the procedural issue of whether Complainant stated a justiciable claim. The Commission stated that a fair reading of the complaint indicated that all of the incidents cited by Complainant were part of the same alleged pattern of disparate treatment and harassment based on race. Taken together, the incidents also supported Complainant's hostile environment claim and raised an inference of retaliation. Thus, the Commission remanded the complaint for processing. Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120130495 (May 2, 2013); see also, Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120120889 (May 8, 2013) (the Agency improperly dismissed claims by looking at them in a piece meal fashion when the record showed that Complainant alleged a single claim of hostile work environment harassment. The most recent event occurred well within 45 days of Complainant's contact with the EEO Counselor and, as such, the claim of harassment was timely. In addition, Complainant's assertions that management verbally counseled her in front of co-workers, treated her differently regarding leave requests, provided her with less time to complete her collateral duties, and communicated differently with her were sufficient to state a claim of hostile work environment); Complainant v. Dep't of the Army, EEOC Appeal No. 0120130847 (May 3, 2013) (the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment by dismissing several incidents, including matters related to her leave and a threat of demotion, for failure to state a claim. A fair reading of the matters identified in the claims reflected that Complainant alleged she was subjected to a series of related harassing incidents. The Agency also improperly dismissed three incidents on the grounds of untimely EEO Counselor contact since the record reflected that certain incidents comprising Complainant's harassment claim occurred within the 45-day time period preceding her EEO Counselor contact).

Improper Dismissal. Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and harassment based on reprisal for prior protected EEO activity when management extended the overseas tour of two of Complainant's colleagues, but expressly denied his request for an extension of his tour. The Agency dismissed the complaint as alleging a preliminary step and for failure to state a claim. The Agency also asserted that Complainant did not suffer an adverse action that affected the terms, conditions, or privileges of employment as a result of not being offered an extension. The Agency dismissed the harassment claims for untimely EEO contact.

On appeal, the Commission stated that claimed retaliatory actions are not limited to those affecting terms, conditions, or privileges of employment, and a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Further, the Commission found that the Supervisor's refusal to authorize Complainant's extension was an adverse action and not a preliminary step. The Commission held that Complainant identified specific actions and offered statements supporting his claim that the disapproval was tied to his EEO activity. Complainant also alleged that the Supervisor subjected him to inconsistent terms and conditions of employment, specifically the privilege of an extended tour. Therefore, the Commission concluded that Complainant set forth an actionable claim of retaliatory harassment, which required investigation and further processing. The Agency's assertions that Complainant had already been granted one extension and was precluded from working beyond a five-year term, were irrelevant to the procedural issue of whether Complainant stated a justiciable claim. Finally, the Commission determined the Agency did not meet its burden of showing that the complaint was untimely filed. Thus, the Commission remanded the matter for further processing. Complainant v. Dep't of the Army, EEOC Appeal No. 0120130344 (April 23, 2013).

Complaint Improperly Dismissed as Being Moot. Complainant filed a formal EEO complaint alleging the Agency discriminated against him on the basis of disability when he received a Notice of Removal. The Agency accepted the complaint. Upon completion of the investigation, Complainant requested a hearing before an AJ. The AJ dismissed the complaint stating it was moot because Complainant had filed a grievance on the same issue and been made whole when the Arbitrator ordered Complainant's reinstatement. The AJ stated Complainant would not have been entitled to additional relief had he prevailed at the hearing. On appeal, the Commission determined the AJ improperly dismissed the complaint because the record contained an EEO Investigative Affidavit for Compensatory Damages completed by Complainant, which it construed as a request for compensatory damages that was not addressed in the grievance procedure. The Commission stated that, should Complainant prevail on his formal complaint, the possibility of an award of compensatory damages existed. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123493 (April 17, 2013).

Dismissal of Complaint as Moot Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him because of his disability and prior EEO activity when it issued him a letter of removal two weeks after his disability retirement began. The Agency dismissed the complaint as moot and for failure to state a claim, reasoning that since Complainant's retirement predated his removal he was not harmed by that action. On appeal, the Commission concluded that the Agency dismissed the claim in error. Complainant alleged that Agency management continued to pursue the removal action in retaliation for his prior EEO complaints, and the Commission stated that a removal action was of the type of adverse action that stated a viable retaliation claim. The Commission also reasoned that the Complainant's allegation was not made moot by his retirement because the effects of Complainant's removal did not permanently eliminate the consequence of the discrimination charged. Since the removal remained part of Complainant's employment history, and the removal was neither removed nor expunged from Complainant's record after retirement, the cumulative effect of the removal could adversely affect Complainant should he end his disability retirement and re-enter the workforce. Therefore, the Commission determined that Complainant's claim was not moot, and remanded the case for further processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130441 (April 9, 2013).

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. Complainant previously worked for the Agency as a Customer Services Supervisor, but became incapacitated due to a workplace incident and was unable to perform in his position for nearly four years. Complainant provided the Agency with documentation that he could return to work with certain medical restrictions, but the Agency placed him on enforced leave. Complainant appealed the matter to the MSPB. While the appeal was pending, Complainant applied for a Labor Relations Specialist position and was interviewed for the position. Complainant, however, was not selected, and filed a formal EEO complaint alleging disability discrimination and reprisal. Following a hearing in the matter, the AJ found that the Agency engaged in a per se violation of the Rehabilitation Act when it questioned Complainant regarding his restrictions and instructed him to provide clarifying documentation prior to extending him an offer of employment. The AJ concluded, however, that the impermissible inquiry did not taint the selection process and was not a determinative cause of Complainant's non-selection.

On appeal, the Commission disagreed with the AJ's finding. According to the record, the Selecting Official ultimately considered Complainant and the Selectee for the position. She contacted Complainant to clarify his medical restrictions and asked Complainant to send her medical documentation. The record showed that, during this conversation, the Selecting Official developed concerns regarding Complainant's integrity and credibility, and no longer considered Complainant a viable candidate after the conversation. The Commission found substantial evidence in the record to reflect that the crux of Complainant's non-selection was based on the Selecting Official's impermissible disability-related inquiry. The Commission stated that, even if the Selecting Official believed Complainant's responses regarding his medical restrictions to be less than truthful, she should not have used this perception to eliminate Complainant from further consideration, because such a perception stemmed from the impermissible medical inquiry. Thus, the Commission concluded that the Agency discriminated against Complainant when it did not select him for the position in question. The Agency was ordered, among other things, to offer Complainant the position or a substantially equivalent position with appropriate back pay and benefits, pay Complainant proven attorney's fees and costs, and investigate his claim for damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120120923 (May 3, 2013).

Denial of Reasonable Accommodation Found. Complainant, a Legal Assistant, was diagnosed with Multiple Sclerosis (MS), which severely limited her ability to walk and lift. Complainant filed an EEO complaint alleging, among other things, that the Agency subjected her to disability discrimination when it failed to provide a reasonable accommodation of her duties within her medical restrictions. Following an investigation, the Agency issued a final decision finding no discrimination. According to the record, Complainant's doctor informed the Agency and Complainant's Supervisor (S1), on several occasions, that Complainant needed permanent work restrictions, including a workload reduction and a handicapped parking space. In addition, the doctor indicated that Complainant could not lift more than 20 pounds. When Complainant asked to be excused from her mail-processing duties due to her lifting restrictions, S1 instructed her to request the assistance of other employees if she needed help lifting heavy boxes. Complainant informed S1 there were times when no one was available to assist her, but S1 advised Complainant that failure to complete her mail duties could result in disciplinary action. The Agency provided Complainant with a key card to access a temporary handicapped parking space. Nevertheless, management constantly asked Complainant to return the key card, and informed her that failure to return the card could also result in disciplinary action.

On appeal, the Commission initially noted that the Agency conceded Complainant was a qualified individual with a disability. The Commission concluded that the Agency failed to provide Complainant with an effective accommodation. The Commission found that providing a temporary handicapped parking space, which the Agency continuously threatened to take away, despite having Complainant's medical documentation and the EEO Manager's request for a permanent spot, was not an effective accommodation for a permanent condition. Further, the Commission noted that, given the Agency's resources, any claim that providing Complainant a permanent handicapped parking space would result in an undue hardship would be without merit. The Commission also found that S1's instruction to Complainant to find employees to help her lift heavy boxes did not constitute an effective accommodation. The record showed that there were times when no one was available to assist Complainant, and she continued to lift heavy boxes without assistance. Accordingly, the Commission held that the Agency engaged in discrimination based on disability when it failed to accommodate Complainant by providing her with a permanent handicapped parking space and work within her medical restrictions. The Commission found the Agency liable for compensatory damages for not acting in good faith when it continuously threatened to take away the temporary parking space and needlessly asked Complainant to provide medical documentation, which Complainant had already submitted. The Agency was ordered, among other things, to provide Complainant with a reasonable accommodation in the form of a permanent handicapped parking space, provide Complainant with job duties that were within her lifting restrictions, and conduct an investigation on the claim for compensatory damages. Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120110751 (April 19, 2013).

Denial of Reasonable Accommodation Found. Complainant, the Chief of Health Information Management Service, filed a formal EEO complaint alleging among other things that Agency discriminated against her on the basis of disability when it denied her request to telework and her formal request for reasonable accommodation. Complainant's requests for reasonable accommodation were made after her physician recommended hip replacement surgery which addressed her preexisting condition and its degenerative effect on her gait. After the surgery Complainant was unable to return to work due to complications. At the recommendation of, and with assistance from her Supervisor (S1), Complainant submitted a written telework request which would have allowed her to work remotely during recuperation. While S1 approved her request, Complainant's second-line Supervisor (S2) denied her request because of the nature of Complainant's position. Consequently, Complainant, through counsel, submitted her formal reasonable accommodation request to telework. This request was evaluated by the Agency's Reasonable Accommodation Committee (RAC) which, dissuaded by S2, denied Complainant's request. Following an investigation, the Agency issued a final decision finding no discrimination.

On appeal, the Commission initially noted that the Agency conceded that Complainant was an individual with a disability. The Commission rejected the Agency's assertion that Complainant was not a qualified individual with a disability, noting that an Agency's decision regarding a request for accommodation should not exclusively rely on whether an employee's essential job duties entail coordination and contact with other employees. Instead, since existing Commission guidance states that an employer may modify workplace policy when needed to accommodate limitations related to an employee's disability, the Commission reasoned that circumstances might allow an abbreviated telework schedule as an appropriate reasonable accommodation. Therefore, the Commission found that the Agency's automatic rejection of Complainant's request for reasonable accommodation based on the Agency's policy which prohibited telework by Chiefs, disabled and non-disabled alike, violated the Rehabilitation Act. The Commission also concluded that the Agency did not prove it would have experienced undue hardship if it granted Complainant's reasonable accommodation request. The Agency was ordered, among other things, to engage in the interactive process with Complainant to determine what accommodations may be necessary for her to perform the essential functions of her position, and investigate Complainant's claim for damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111937 (April 17, 2013).

Disability Discrimination Found. Complainant experienced a brain injury that impaired his ability to process more than one thing at a time, resulted in below average free recall of new information, and caused poor verbal fluency on the most challenging tasks. Complainant applied for the position of Contact Representative and met the minimum qualifications for the position. The next step in the hiring process involved an interview and telephone assessment in which the interviewer role-played as a customer and the applicant's ability to problem solve was evaluated. Complainant requested that he be given the interview questions in writing as a reasonable accommodation, which was denied by the Agency as an unfair advantage. Complainant was instead given a fact sheet to refer to and was permitted to take notes during the interview. Complainant's performance during the interview was deemed "not acceptable" and he was not offered a position.

Complainant filed a formal EEO complaint alleging discrimination based on his disability when the Agency denied his request for written interview questions. Complainant requested a hearing before an AJ, who found that Complainant was a qualified individual with a disability who could perform the essential functions of the job. Further, the AJ found that once put on notice of the need for an accommodation, the Agency should have accommodated Complainant so that the assessment would accurately reflect his abilities. The AJ found that the Agency only evaluated whether Complainant was capable of doing the job without an accommodation, and there was ample evidence in the record to support Complainant's position that he could have passed the interview successfully with the accommodation he requested. On appeal, the Commission found that the Agency discriminated against Complainant on the basis of his disability because it utilized a test which unlawfully screened out a disabled individual, and failed to modify the test so that it could assess Complainant's ability to absorb and process information, which were the essential functions of the job. Further, the Commission found that the Agency failed to prove that the use of its assessment, without an accommodation, was job related and consistent with business necessity or that Complainant's requested accommodation would be an undue hardship on the Agency. The Commission further noted that there was substantial evidence to support the AJ's finding that using voice-to-text computer software was a plausible method of accommodating Complainant by allowing him to perform the essential functions of the job, particularly since the Agency admitted to using the technology in the past. The Commission ordered the Agency to redo Complainant's entire assessment while providing written and verbal questions, to engage in an interactive process to clarify and identify what Complainant needed as an accommodation, and to offer Complainant the position with back pay if he passed the assessment. Additionally, the Commission ordered that the Agency pay Complainant $5,000 compensatory damages plus attorney's fees and costs, even if Complainant is not able to pass the assessment. The Commission noted that the voice-to-text technology could be used when providing the written version of the questions.

The Commission denied the Agency's request for reconsideration. The Commission rejected the Agency's arguments that the ability to immediately process information was an essential function of the job and that providing Complainant with the written questions through the voice-to-text technology was an undue burden because it was incompatible with its current digital telephone system. The Commission stated that while the Agency was correct that receiving, processing and disseminating information in a prompt manner were essential functions of the position, those essential functions could be performed by providing employees with questions through both written and oral means. Further, the Commission noted that utilization of voice-to-text was only one option the Agency could use to accommodate Complainant. The Commission found that the Agency failed to provide persuasive evidence to support assertions that the technology could not be configured with the telephone system, and there was no evidence to support a finding that providing written questions would have been unduly costly, would significantly disrupt the operations of the agency, or would have fundamentally altered the nature of the Agency's operation. The Commission also noted that the Agency failed to argue that the telephone system was incompatible on appeal, and refused to consider new evidence as a basis to reverse the previous decision. The Commission rejected Complainant's request that the Agency be ordered to place him in the position, and declined to speculate about how Complainant would have performed if he had been provided with a reasonable accommodation. The Commission stated that his performance must be assessed with a reasonable accommodation. Thus the Commission ordered the Agency to implement the previous decision by providing Complainant with a new assessment in which he is given a reasonable accommodation, and to offer Complainant the position with back pay if he passes the assessment. Complainant v. Soc. Sec. Admin., EEOC Request No. 0520110682 (April 12, 2013).

Disability Discrimination Found. Complainant, a Transportation Assistant, applied for the position of Motor Vehicle Operator, and the Agency considered his application under the Disabled Veteran Appointing Authority. Complainant was offered the position, but the Agency subsequently rescinded the offer because Complainant did not successfully complete a medical examination. The physician (Dr. T) who conducted the examination based solely on Complainant's medical records determined that Complainant was not medically qualified for the position because he did not "possess emotional and mental stability." The Office of Personnel Management (OPM) ultimately sustained the Agency's decision to "pass over" Complainant for the position. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it withdrew the job offer, and the Agency issued a final decision finding no discrimination.

On appeal, the Commission initially noted that the Agency conceded, in its final decision, that Complainant had a record of or was regarded as having a mental or physical impairment that substantially limited his major life activities. The Agency attempted to argue that Complainant was not qualified because he did not pass the medical examination. The Commission found, however, that Complainant was a qualified individual with a disability since he was otherwise qualified for the position and hired conditionally pending his completion of the medical examination. The Commission noted that the Agency admitted that it denied Complainant employment because of his perceived inability to safely perform the functions of the position, which the Commission found was essentially asserting that Complainant posed a direct threat to himself or others. According to the record, Dr. T stated that she did not clear Complainant because she had previously examined Complainant and he expressed that he had difficulty being in crowds of people, had verbal aggression toward his wife and kids, and had been physically aggressive and abusive to animals. At that time, Dr. T restricted Complainant from working with live ammunition, and she noted that Complainant made a threatening comment to her. Later it was confirmed that Complainant had been diagnosed with PTSD.

The Commission found that while the Agency had a legitimate concern regarding complainant's ability to safely perform the duties of the position, it did not meet its burden under the direct threat standard as required by the Rehabilitation Act. There was nothing in the record indicating that the Agency evaluated the duration of any risk in hiring Complainant, the nature and severity of any potential harm or risk, the likelihood that potential harm would occur, or the imminence of any potential harm. Rather, the record simply contained Dr. T's statement that Complainant was aggressive and threatened her. Dr. T added, as a requirement of the position, that the incumbent "possess emotional [and] mental stability," and concluded that Complainant was not medically cleared due to his PTSD diagnosis. The Commission found it troubling that the Agency's doctor believed a diagnosis of PTSD excluded all individuals from sensitive jobs without a further individualized assessment, and stated that such a bright line rule, without evidence to support it, demonstrated that Dr. T was motivated by stereotypes of individuals with PTSD. The Commission also stated that the Agency failed to sufficiently show that Complainant could not perform the work in a safe manner, or that he posted a direct threat to himself or others. Therefore, the Commission found that the Agency violated the Rehabilitation Act when it withdrew the job offer. The Agency was ordered, among other things, to retroactively offer Complainant a Motor Vehicle Operator position, with appropriate back pay and benefits, and investigate his claim for damages. Complainant v. Dep't of Def., EEOC Appeal No. 0120091162 (March 15, 2013).

Under Multiple Bases

Agency Failed to Rebut Prima Facie Case of Harassment Based on Race and Color. Complainant filed a formal EEO complaint alleging, among other things, that the Agency subjected her to hostile environment harassment based on her race and color. Complainant provided several incidents in support of her claim including being given unsafe work instructions by her Supervisor, being constantly monitored and berated in front of co-workers, being held to unreasonable expectations, being subjected to multiple disciplinary actions, and being forced to work overtime without compensation. During the investigation, Complainant submitted an affidavit providing further details about her claim, and indentifying comparators. The Agency ultimately issued a final decision finding no discrimination.

On appeal, the Commission found that Complainant established a prima facie case of a racially motivated hostile work environment. Complainant's affidavit, as well as supporting affidavits from several co-workers showed that Complainant was the frequent victim of badgering, berating, nitpicking, criticism in front of co-workers and excessive monitoring by her Supervisor. In addition, unlike employees outside of her race, Complainant was made to perform overtime work, issued three disciplinary suspensions that were later overturned, and subjected to 10 disciplinary interviews. Complainant also presented evidence that the Supervisor engaged in similar negative behavior to other Caucasian employees. Complainant stated that she reported the harassment to the Postmaster, but no investigation took place and the behavior continued. While the Agency claimed that Complainant's allegations were too vague to merit a response, the Commission found that Complainant's affidavit provided sufficient detail and definitive dates for many of her allegations. The Commission also found that the Supervisor's affidavit was largely unresponsive to the Investigator's questions. Specifically, the Supervisor responded "n/a" and "I don't recall" to every substantive question posed. The Postmaster also stated he did not recall anything about the situation. The Commission stated that, given the specificity with which Complainant articulated her allegations, the managers' affidavits did not meet the Agency's evidentiary burden to rebut Complainant's prima facie case of discriminatory harassment. Thus, the Commission concluded that Complainant proved she was discriminated against based on her race and color. The Agency was ordered, among other things, to conduct training for the Supervisor and Postmaster, take appropriate preventative steps to ensure that employees are not subjected to harassment, and investigate Complainant's claim for damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130848 (June 11, 2013).

Race Discrimination and Retaliation Found. Complainant worked for the Agency as the Chief of the Cryptologic Services Group as part of a Joint Inter Agency Task Force. Complainant began her tour of duty in August 2005. Complainant was rated as "exceeds objectives" on her 2005 and 2006 performance evaluations, and received a performance award in 2006. In March 2007, Complainant had a disagreement with her Deputy, and Complainant told him she believed she was being discriminated against. Complainant's Deputy then sent a letter to the ranking Agency representative (S1) outlining his version of the confrontation and indicating that Complainant felt she had been discriminated against. While Complainant was on scheduled leave, S1 informed her that the Chief of the Intelligence Directorate intended to recommend that Complainant's access to the facility be suspended upon her return, and later that he was going to curtail Complainant from her position. During both conversations, Complainant informed S1 of her intent to file an EEO complaint. Complainant was officially curtailed from her position in July 2007. She filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her race and in reprisal for prior EEO activity. Following a hearing, the AJ found that the Agency discriminated against Complainant when her position was curtailed.

On appeal, the Commission affirmed the AJ's findings. The Commission disagreed with the Agency's assertion that Complainant did not establish a prima facie case, stating that Complainant, an African-American, was subjected to an adverse action when she was curtailed and was treated differently than the two similarly situated employees who succeeded her, one of whom did not meet the minimum qualifications for the position and one of whom was not required to compete for the position. Further, the Agency was aware that Complainant thought she was being discriminated against and began the curtailment proceedings only six days after she told S1 she was going to file an EEO complaint. While the Agency articulated legitimate, non-discriminatory reasons for the curtailment, that is Complainant's work performance, interpersonal skills, ineffectiveness and customer dissatisfaction with the level of support from the Agency, the Commission found those reasons to be pretextual. The record supported the AJ's finding that some employees lied to Agency officials about Complainant's performance, and that the Chief of the Intelligence Directorate had a discriminatory preference for Caucasians in the workplace. The AJ also found that Complainant's leadership team lacked credibility and coordinated their stories in order to make Complainant look like an ineffective leader to Agency officials. The AJ determined that their accounts of Complainant's performance, interpersonal skills and ineffectiveness as a leader were contradicted during their testimony and they actively participated in the discriminatory conduct of the higher level officials. Further, Complainant's subordinate leadership team circumvented Complainant, went against her direct orders, and repeatedly undermined her decisions and authority, and there was no evidence that Complainant's Caucasian predecessor was treated in the same manner. The Commission stated that, even if it were to assume that Agency officials were unaware of the staff members' discriminatory motivations, the Agency was still liable under the "cat's paw" theory. The Commission concluded that the record contained no credible evidence to support the Agency's articulated reasons for curtailing Complainant from her position, and, as such, Complainant established discrimination with respect to the curtailment of her position.

With regard to relief, the Commission stated that because Complainant's husband obtained his position through a spousal accommodation and was dependent on Complainant's continued employment, back pay and interest for Complainant's husband's curtailment was necessary to make Complainant whole. In addition, Complainant proved that she was entitled to an award of $50,000 in non-pecuniary compensatory damages for emotional distress, anxiety, physical ailments, and damage to her reputation. The Agency was also ordered, among other things, to pay Complainant back pay and benefits, expunge the curtailment from her personnel files, and provide appropriate training for Agency staff. Complainant v. Nat'l Sec. Agency, EEOC Appeal No. 0720120011 (June 11, 2013), request for reconsideration denied, EEOC Request No. 0520130573 (December 13, 2013).

Race Discrimination and Retaliation Found. Complainant, a Senior Field Attorney, filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his race (African-American) when the Agency failed to select him for a Supervisory General Attorney position and in reprisal for having filed a discrimination complaint when his Supervisor subsequently issued him a memorandum criticizing his work performance. Following a hearing, the AJ issued a decision finding discrimination and retaliation. The Commission affirmed the AJ's findings on appeal.

The AJ initially found that Complainant established a prima facie case of disparate treatment because he was qualified for the position, but was not selected in favor of an individual outside of his protected group. While the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its selection of the Selectee over Complainant, the AJ ultimately concluded that these reasons were pretext to hide discrimination based on race. Complainant carried his burden by providing credible evidence of bias, pre-selection, and management deviation from standard selection procedure. The Commission rejected the Agency's argument that the AJ inappropriately substituted her own judgment for that of the Agency, noting that the caution the Commission exercises in interfering with Agency personnel actions is not allowed to undercut the intent of Title VII. The Commission agreed with the AJ that the testimony provided by management officials was inconsistent, contradictory, and purposefully vague, and that the hiring pattern in the region evidenced no non-White professional or supervisory employees. Further, the Commission noted that the selection process was patently and clearly not adhered to and disregarded with impunity. Although the Selectee's performance was rated as outstanding, the Commission stated that the AJ could not properly accord credence to the testimony of the management officials. The Commission concluded that, given the totality of the background information showing that the Regional Director treated African Americans less favorably in promotional and award opportunities, selected only Caucasians for professional supervisory positions over a 25 year period, failed to adhere to the required selection procedures, and engaged in blatant pre-selection, the AJ properly found that Complainant's non-selection was motivated by race.

With regard to the claim of retaliation, the AJ found that Complainant established a prima facie case in that he had engaged in protected activity, the management team was aware of the activity, and their actions occurred in temporal proximity to the EEO activity. Shortly after filing the complaint, Complainant received criticism of his work and was threatened with a lower performance rating despite previous and continuous performance ratings of commendable and outstanding. The AJ found that a reasonable person in Complainant's position would be dissuaded from opposing discrimination if the result would be to receive unwarranted criticism of his work and a potential downgrade of his annual evaluation. The AJ concluded that the Agency's articulated reason for its actions, that is Complainant was performing at an unsatisfactory level, was a pretext for retaliation based upon Complainant's overall rating of commendable and the absence of anything negative about his work until shortly after he filed his discrimination complaint. The Commission found substantial evidence in the record to support the AJ's findings. The Agency was ordered, among other things, to offer Complainant the Supervisory General Attorney position within 30 days retroactive to the date he would have been hired, and pay Complainant the appropriate amount of back pay and benefits with interest, as well as $15,000 in compensatory damages. Complainant v. Nat'l Labor Relations Bd., EEOC Appeal No. 0720110017 (May 1, 2013).

Retaliation

Retaliation Found. Complainant, a Supervisory Human Resources Specialist, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him. Complainant also noted that when he informed an Agency Manager that he had filed an EEO complaint, she said she could no longer trust him. Following an investigation, the AJ issued a decision without a hearing finding no discrimination. On appeal, the Commission found that the evidence supported the AJ's findings regarding the matters related to Complainant's working conditions at the Agency. The Commission concluded, however, that the Manager's statements were retaliatory. The Manager admitted that after she was told Complainant filed an EEO complaint she told Complainant she would have to document what was said in meetings and "that might result in trust concerns." She also told Complainant that his decision to file a complaint made her sad and she would have to be more careful about what she said. During the meeting, Complainant agreed to withdraw the complaint. The Commission stated that comments which, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC's regulations and evidence a violation of the law. The Commission found that the Manager's statements were reasonably likely to deter Complainant from engaging in the EEO process, especially in light of the fact that Complainant agreed to withdraw his EEO complaint at that time. The Commission noted that the fact that the Manager later apologized was of little consequence. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training for the Manager. Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120112323 (May 22, 2013), request for reconsideration denied, EEOC Request No. 0520130537 (December 13, 2013).

Official Time

Agency Met Burden Regarding Official Time. According to the record, Complainant had a case pending a hearing before an AJ, and was given the opportunity to prepare a proposal for a global agreement settling a number of EEO complaints. Complainant asserted that he needed approximately one month of official time from the Agency to prepare the agreement. Complainant's Supervisor provided him with two hours per day during the one-month period. Complainant alleged that the Agency failed to provide him with reasonable official time to prepare for his hearing. The Agency concluded that the time provided by the Supervisor was reasonable. On appeal, the Commission found that the Agency's decision was proper. EEOC regulations provide a complainant with a right to a reasonable amount of official time, if otherwise on duty. In this case, however, the record demonstrated that Complainant requested sick leave for the same period he requested official time. Therefore, Complainant was not "in duty status" during the period of time he requested and was allotted official time from the Agency. Thus, the Commission found that the Agency was within its right to deny Complainant's request for additional official time. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120130341 (April 4, 2013), request for reconsideration denied, EEOC Request No. 0520130415 (September 20, 2013).

Remedies

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

Remedies Discussed. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of her sex when it did not select her for the position of Manager, Financial Control and Support. Following a hearing, the AJ found discrimination with regard to that issue, and ordered the Agency to pay Complainant back pay with interest for an 18-month period and $1,500 in non-pecuniary compensatory damages. The AJ limited the back pay period because Complainant testified that the Agency abolished the Manager position during a restructuring and the incumbents had to apply for new positions after that time. The Agency fully implemented the AJ's decision, and Complainant filed an appeal with respect to "her salary, her pay grade, and the amount of damages." Complainant asserted that the remedy should be modified to reflect the Agency's policies concerning reductions in force that provide for save pay and save grade.

On appeal, the Commission initially noted that the Agency must provide Complainant with make-whole relief that places her in the position she would have occupied absent the discrimination, that is the Agency must provide Complainant with all compensation, benefits, and privileges, including any "save pay" or "save grade" compensation and benefits that Complainant would have received had she been selected for the position. The Commission noted that the Agency's argument that Complainant failed to demonstrate that its policies regarding save pay and save grade would have applied to her situation misconstrued the burden of proof. Having been found to have discriminated against Complainant, the Agency bore the burden of showing that Complainant would not have been entitled to such compensation and benefits even absent discrimination. Therefore, the Commission modified the remedy ordered to clarify that make-whole relief included all save pay and save grade compensation and benefits Complainant would have received. The Agency was also ordered to determine the date on which Complainant's tenure as the Manager would have ended if she had been chosen for the position and pay Complainant back pay until that date.

With regard to non-pecuniary damages, the Commission found that the AJ's award of $1,500 was reasonable and appropriate. The record contained doctor's statements noting that Complainant was treated for "work related stressors," and needed to be absent from work to reduce stress and attend appointments. Complainant testified that her doctor prescribed medication for stress, and that she experienced problems eating and sleeping, and anxiety attacks. Complainant also stated that she was "stressed out" and sick about a number of things, including actions that the AJ found not to be discriminatory. Thus, although the evidence showed that Complainant was harmed by the discriminatory non-selection, it also established that other matters contributed to the harm. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111119 (June 28, 2013).

Agency Found to Have Complied with Relief Ordered by the Commission. Following an administrative hearing, the AJ found discrimination and ordered the Agency to reinstate Petitioner to her former Limited Duty position, or a substantially equivalent position, ensure that the duties were in compliance with Petitioner's medical restrictions, and provide Petitioner with reasonable accommodation as needed, as well as pay her proven compensatory damages. The Agency filed an appeal solely on the issue of damages. In its decision on appeal, the Commission upheld the AJ's award, and restated the remedial orders. Petitioner subsequently filed a petition for enforcement of the Commission's order, stating that the Agency failed to place her into an appropriate position. The Commission reviewed the record, and concluded that the Agency was in compliance with its prior order. The Commission noted that the Agency provided Petitioner with a limited duty position. After Petitioner asserted that she could not successfully perform the duties of that position, she was placed on leave while another position was located. Her leave was restored to her. The Agency subsequently offered and placed Petitioner into another position. After several months, the Postmaster raised concerns as to Petitioner's ability to perform the duties of that position because of her physical limitations, and the Agency referred the matter to the District Reasonable Accommodation Committee (DRAC) to explore ways to accommodate Petitioner. A meeting was scheduled with the DRAC, but Petitioner notified the Agency that she would not attend. The Commission found that, because of Petitioner's failure to engage in the interactive process, the Agency could not determine if it was possible to accommodate Petitioner and could not find another vacant funded position within her medical restrictions. Petitioner also did not assert that there was a position to which she could have been reassigned. Therefore, the Commission concluded that the Agency provided Petitioner with a position as ordered. Complainant v. U.S. Postal Serv., EEOC Petition No. 0420120006 (May 9, 2013).

Sanctions

Complainant Sanctioned for Contumacious Conduct. Complainant, an applicant for employment at the Agency, filed a formal EEO complaint alleging that the Agency discriminated against him when it failed to hire him for several Legal Assistant positions. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately dismissed the complaint in its entirety with prejudice, stating that Complainant repeatedly failed to comply with his discovery obligations and engaged in a serious abuse of process. On appeal, the Commission found that the AJ's decision to sanction Complainant was proper. The record showed that Complainant initially expressed concerns about the Agency's representative, and did not respond to the Agency's requests for discovery even when ordered to do so by the AJ and repeatedly warned that the failure to do so would result in sanctions. In addition, Complainant left numerous voice mail messages for the AJ which the AJ stated were lengthy and erratic, and contained lewd and vulgar statements about Agency officials. Agency counsel also indicated that he received similar messages from Complainant, and the Agency reported these actions to the Federal Protective Services. The Commission concluded that the circumstances in the case supported the finding that Complainant engaged in contumacious conduct such that the dismissal of his complaint was appropriate. Complainant v. Dep't of Justice, EEOC Appeal No. 0120130893 (May 20, 2013).

Commission Sanctions Agency for Failure to Submit Complete Record. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of age when she was coerced to retire. Following a hearing, the AJ found that the Agency discriminated against Complainant as alleged. Upon receipt of the Agency's appeal, the Commission sent a letter to the Agency asking it to provide the complete record pertaining to the complaint within 30 calendar days. After the agency partially complied with the request, the Commission informed the Agency that documents pertaining to the hearing process and the hearing transcript were missing and requested they be submitted. When the Agency failed to provide the documents, the Commission issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed together with an order to submit the complete file within 20 days or risk the Commission drawing an adverse inference against the Agency. The Notice emphasized that the hearing record and transcript were missing from the record on appeal. The Agency failed to submit the requested documents, and responded to the request by providing documents it had previously submitted. The Commission found that sanctions were warranted based on the Agency's repeated failure to submit the complete record. The Commission noted that without the hearing transcript it was unable to determine whether the record supported the AJ's decision, and found that the most appropriate sanction for the Agency's failure to comply was to dismiss the Agency's appeal and to uphold the AJ's finding of discrimination. The Agency was ordered, among other things, to offer Complainant placement in her previous position with appropriate back pay. Complainant v. Dep't of Agric., EEOC Appeal No. 0720120026 (April 30, 2013).

Denial of Hearing Request as Sanction Was Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race, sex and reprisal for prior protected EEO activity when he was sent home and placed in off-duty status without pay and issued a notice of 14-day suspension. Complainant requested a hearing before an AJ, but the AJ denied the request on the grounds that Complainant refused to proceed with the hearing. The Agency then issued a final decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On Appeal, the Commission found that the AJ did not abuse her discretion by denying the hearing request because the record reflected that Complainant refused to proceed with the hearing. Complainant did not dispute that he failed to submit a witness list and failed to participate in a scheduled conference call. Complainant asserted that he was justified in refusing to proceed with the hearing because he had filed a motion for a decision without a hearing and there were no genuine issues of material fact. The AJ, however, denied the motions for a decision without a hearing filed by Complainant and the Agency. The Commission stated that although Complainant may have disagreed with the AJ's decision, Complainant had to proceed with the hearing once the AJ made the decision to deny the motions. The Commission found no abuse of discretion by the AJ. The Commission also affirmed the Agency's findings that Complainant failed to establish a prima facie case of reprisal because the uncontested record showed that the Supervisor was unaware of Complainant's previous EEO complaint and Complainant failed to show a nexus between the protected EEO activity in 2002 and the adverse treatment in 2009. Finally, the Commission found that the Agency articulated legitimate, nondiscriminatory reasons for sending Complainant home and issuing him the notice of suspension, and Complainant failed to prove that the Agency's reasons were a pretext for discrimination. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111948 (April 16, 2013), request for reconsideration denied, EEOC Request No. 0520130476 (October 31, 2013).

Settlement Agreements

Settlement Agreement Void. The parties entered into a settlement agreement that provided, in pertinent part, that the Postmaster would "continue with plans for cross-training" to improve the organization of duties for Agency personnel. In addition, the agreement referenced a meeting to be held in two months time, at which Complainant and a named Agency official were to review progress. Complainant alleged that the Agency breached the agreement when the meeting did not occur. On appeal, the Commission found that the agreement was void for lack of consideration. According to the wording of the agreement, the Agency agreed to continue with its plan for cross-training, which apparently was already in place, The Commission stated that, since the Agency was planning to provide cross training prior to the execution of the settlement agreement, Complainant did not receive any consideration. In addition, the wording of that particular provision did not clearly indicate what cross training would be provided or who would receive such training. The Commission also noted that the second provision regarding the meeting was merely an agreement to continue negotiating for an agreement. Thus, the underlying complaint was remanded for further processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121282 (May 22, 2013).

Settlement Agreement Void. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that Complainant would apply for a position "if and when it becomes available," and the Agency would recommend Complainant for a position "if a job becomes available." In addition, the agreement provided that in order for the agreement to "consummate," a position must become open within one week. Complainant alleged that the Agency breached the agreement when a position was not made available to her. On appeal, the Commission found that the settlement agreement was void. The language of the agreement required that a position become open before it took effect, and, thus, there was no consideration offered at the time the agreement was signed. By its very terms, the agreement was not effective until some action happened in the future. Therefore, Complainant received no consideration, and the settlement agreement was void. The Agency was ordered to reinstate Complainant's claim for processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122057 (May 15, 2013).

Breach of Settlement Found. The parties entered into a settlement agreement that provided, among other things, that Complainant would resign from the Agency, and the Agency would approve 10 days of administrative leave, pay attorney's fees and expunge any disciplinary actions from Complainant's employment record. The agreement also contained a confidentiality clause whereby the parties agreed not to disclose the terms of the agreement to any unrelated party. The Agency agreed to provide a neutral reference if contacted by prospective employers and provide only certain specified information. Complainant subsequently notified the Agency that it was in breach of the agreement when an Agency official made certain statements to the Federal Drug Administration (FDA), including stating that there was "a document that was negotiated" with Complainant that served as her letter of reference. On appeal, the Commission found that these statements constituted a breach of the settlement agreement. While the official did not explicitly state that Complainant had filed an EEO complaint which was resolved by a settlement agreement, he clearly indicated that there was a document negotiated with Complainant which provided a letter of reference. The Commission found the statement, in addition to other responses given to the FDA Official, did not comport with the confidentiality provision which limited the Agency's disclosure agreement to those officials who needed to take action pursuant to the agreement. In addition, an Agency official's comments about an illness in Complainant's family and the official's failure to comment when asked about Complainant's dependability led to a negative inference about the reasons for Complainant's resignation. The agreement allowed the Agency to provide only certain information about Complainant's employment, and the Agency exceeded the provisions in the agreement. The Commission noted that there was no cure to the Agency's breach, and ordered the Agency to provide Complainant with the option of reinstating the underlying complaint or pursuing a new claim of retaliation. Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120120698 (May 8, 2013).

Breach of Settlement Agreement Found. The parties entered into a settlement agreement that stated, in pertinent part, the Agency would pay Complainant $290,000.00, reduced by any wages earned by her for services rendered during the time period of January 1, 2012, and August 31, 2012. The Agency paid Complainant $166,319.62. Complainant alleged that the Agency breached the agreement when it deducted $18,258.16 from the amount agreed to in the settlement. On appeal, the Commission found that the Agency breached the agreement. The Agency cited several provisions from the Internal Revenue Code, and argued that because wages are recognized as earned and taxable at the time they are paid out the Agency did not breach the agreement when it deducted the $18,258.16 that Complainant received as performance pay and earnings in 2012. Complainant argued that although the subtracted amount was indeed paid in 2012, it was earned in 2011, outside the relevant period, and should not have been deducted. The Commission stated that settlement agreements, as contracts between the employee and the Agency, are interpreted using ordinary rules of contract construction and, when the language of the contract is unambiguous, the plain meaning rule is used to ascertain the parties' intent as expressed in the four corners of the instrument. In this case, the agreement stated the agreed amount would be "reduced by any wages earned by [Complainant] for services rendered during the [relevant] time period." Thus, regardless of how the IRS treats wages and earnings for tax purposes, wages earned for services rendered outside of the relevant time period should not have been used to reduce the total payment amount, even if actual payment of said wages occurred during the relevant time period. Therefore, the Agency was ordered to pay Complainant the deducted amount. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130781 (April 24, 2013).

Settlement Agreement Void. Complainant alleged the Agency breached terms of the settlement agreement which attempted to resolve Complainant's EEO complaint. Under the settlement agreement, the Station Manager, Supervisor and four employees, including Complainant, were scheduled to meet on a specific date and time to resolve Complainant's allegations. In addition, Complainant agreed to inform her Station Manager and EEO Representative, should similar circumstances arise in the future. Finally, the agreement provided that Complainant and the Supervisor would always communicate respectfully with each other. Complainant alleged that Agency breached the agreement because her Supervisor did not attend the agreed upon meeting, one employee at the meeting was verbally abusive, and the Supervisor gave Complainant a warning letter pertaining to attendance, one day following the second meeting concerning her attendance.  On appeal, the Commission found the settlement agreement to be void and unenforceable because it lacked consideration from the Agency. Specifically, the Agency merely agreed to treat Complainant in accordance with existing laws, rules and policies, and provided nothing additional to and outside of its legal requirement to treat her as an employee. The Commission ordered the Agency to reinstate Complainant's discrimination claims. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111842 (April 18, 2013).

No Breach of Settlement Found. In November, 2010, Complainant and the Agency entered into a settlement agreement which stated, among other things, that the Agency would pay Complainant a lump sum of $55,658, and Complainant "bear[ed] responsibility" for paying any taxes on that amount. In April and May 2012, Complainant contacted the Agency alleging that it was in breach of the agreement when, on February 18, 2012, she was issued a tax form from the Defense Finance Accounting Service (DFAS). On Appeal, the Commission found that Complainant failed to show that the Agency breached the terms of the settlement agreement. The Commission has held that the intent of the parties as expressed in the contract, and not some unexpressed intention, controls the contract. The settlement agreement between Complainant and the Agency expressly provided that if the Internal Revenue Service or any other state or local government determined that any of the lump sum paid to Complainant was taxable as income, Complainant would bear responsibility for those taxes. The Commission also noted that the agreement did not provide that the lump sum would be non-taxable. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120130499 (April 18, 2013).

No Breach of Settlement Agreement. Complainant and the Agency entered into a settlement agreement in April 2010, which provided, among other things, that Complainant could attend one training course provided by the U.S. Office of Personnel Management within 12 months from the effective date of the settlement agreement. The agreement further provided that the Agency would have no further obligation to Complainant if he did not attend and complete a course within the 12-month period. Complainant subsequently filed an appeal alleging the Agency breached the settlement agreement when it canceled Complainant's attendance at a training course scheduled for August 2011. On appeal, the Commission found the relevant provision to be clear and unambiguous on its face, and interpreted its meaning from the four corners of the instrument. The Commission determined that the settlement agreement expressly limited the Agency's obligation to allow Complainant to attend a training course to a 12-month time period, and there was no language requiring the Agency to allow Complainant to attend a course after that time. The action cited by Complainant occurred after the specified period ended. Further, the Commission found no evidence that the Agency took any action during the 12-month period to dissuade or delay Complainant from attending a course of his choice. Thus, the Commission concluded that the Agency did not breach the settlement agreement. Complainant v. Dep't of Agric., EEOC Appeal No. 0120121158 (April 11, 2013), request for reconsideration denied, EEOC Request No. 0520130473 (October 24, 2013).

Settlement Agreement Void for Lack of Consideration. The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would afford open communication between Complainant and Management, that Management would abide by the "Rural Contract," and that "Fair and Equal Treatment" would be maintained for all employees. Complainant alleged that the Agency failed to comply with the settlement agreement. Specifically, Complainant noted a discrepancy in the Supervisor's disciplinary decisions regarding different employees, and raised concerns regarding purported unscheduled absences. On appeal, the Commission found that the agreement was unenforceable for lack of consideration. The Commission noted that by agreeing to act within existing laws, rules, and policies, the Agency provided Complainant with nothing more than that to which she was entitled to as an employee. Complainant therefore received no consideration for her agreement to withdraw her EEO complaint. Thus the agreement was voided and the matter was remanded to the Agency to reinstate the underlying complaint from the point where processing had ceased. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111056 (April 11, 2013).

Settlement Agreement Void for Lack of Meeting of the Minds. The parties entered into a settlement agreement that provided, in pertinent part, that Complainant would be given a lateral transfer to a different department in which her duties would be determined by the Section Manager, and Complainant would maintain her current grade and salary level. When Complainant was asked to sign paperwork necessary to effectuate the transfer, she learned that the new position would entail duties different from her previous position. Complainant refused to sign the transfer documents, asserting that the Agency breached the agreement by not allowing her to retain her previous responsibilities while assuming additional duties. On appeal, the Commission found that the settlement agreement was void because there was no contemporaneous meeting of the minds as to whether Complainant would retain her responsibilities. Complainant argued that, during mediation, the parties specifically discussed her retention of her previous duties. The Commission noted that a contemporaneous meeting of the minds is required in a binding settlement agreement, and Complainant demonstrated a lack of mutual intent by failing to sign the necessary transfer documents. Further, Complainant revoked the agreement prior to the effective date thereof. Thus, the agreement was voided and the underlying EEO complaint was remanded to the Agency for further processing. Complainant v. Dep't of Transp., EEOC Appeal No. 0120130386 (April 9, 2013).

Stating a Claim

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

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131661 (June 26, 2013) (the Agency improperly dismissed Complainant's complaint of race discrimination and harassment involving the reinstatement of a co-worker. Complainant was part of a group of African-American employees who filed complaints over the co-worker's reinstatement. According to the Counselor's report, the co-worker had previously been terminated after being charged with having racist material and offensive political posters in her work area and found to have violated the Agency's "Zero Tolerance Policy" for racial discrimination. She was later reinstated pursuant to a grievance resolution. Complainant alleged that the co-worker kept racist material at her work station for a long time and management did nothing to address the matter. The Commission rejected the Agency's assertion that Complainant was not harmed by the return of the co-worker to the same workplace where she had kept racist materials for an extended period. The Commission stated that an Agency cannot use a grievance settlement as an excuse to allow a racially hostile work place).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122328 (June 20, 2013) (Complainant's allegation that his Supervisor urinated in front of him and made an inappropriate comment stated a viable claim of discriminatory hostile work environment. While generally a few isolated incidents of alleged harassment are not sufficient to state a claim, the Commission found that the Supervisor's conduct was sufficiently egregious as to warrant further investigation).

Complainant v. Dep't of Justice, EEOC Appeal No. 0120110412 (June 28, 2013) (the Agency improperly dismissed Complainant's complaint of discrimination because the record showed that the Agency exercised sufficient control over Complainant's position to establish a de facto employer-employee relationship. During their eight-month working relationship, the Agency controlled the means and manner of Complainant's performance, supervised his work, furnished the equipment used and place of work, and had the authority to terminate him. While the Agency did not provide Complainant with leave or benefits, or pay social security, the work Complainant performed was an integral part of the Agency's law enforcement mission); see also, Complainant v. Dep't of the Army, EEOC Appeal No. 0120120751 (June 24, 2013) (the Agency exercised sufficient control over Complainant's position to qualify as a joint employer for purposes of the EEO complaint process. Complainant worked as a Video Editor for an Agency contractor. The Agency did not pay Complainant directly, or provide her with leave, benefits, or pay social security, and the type of job and skill required reflected more of a contractor relationship. Nevertheless, Complainant performed her job at an Agency facility using Agency equipment, and was supervised by an Agency employee for a period of time); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120131148 (June 11, 2013) (the Agency improperly dismissed Complainant's complaint of discrimination on the grounds that she was not an employee or applicant for employment. Complainant worked for the Agency as an Assistant Program Analyst pursuant to a contract the Agency had with Brown Construction Services. Complainant's job was professional in nature, and the area in which she worked was not the mission of the Agency. The Agency also did not provide Complainant with benefits. Complainant, however, was not supervised by the contractor and Complainant stated that an Agency Manager gave her assignments. The record also showed that Complainant sought assistance or clarification from the Agency, and the Agency controlled where and when Complainant performed her job. Complainant worked on Agency premises and it provided her with the necessary equipment. The contractor stated that its decision to terminate Complainant was based on feedback from the Agency on Complainant's performance. Thus, the Agency had significant input into the termination decision, and exercised sufficient control over Complainant's position to qualify as her employer for purposes of the EEO complaint process); Complainant v. Broad. Bd. of Governors, EEOC Appeal No. 0120122211 (June 11, 2013) (the Agency exercised sufficient control over Complainant's position to qualify as her employer for purposes of the EEO complaint process. Complainant worked in Video Editing Services at the Agency. Complainant worked pursuant to a purchase agreement, did not receive benefits from the Agency, and was not considered an employee for purposes of social security. Complainant, however, had been working at the Agency continuously since 2006, the Agency set her assignments, the work she performed was essential to the Agency's mission, and the Agency could terminate the relationship with Complainant whenever it chose to do so. Complainant also performed her work at the Agency's workplace, used Agency equipment, followed Agency dictated protocols provided by Agency supervisors, received assignments from Agency supervisors, and had her work shifts and hours set by the Agency).

Complainant v. Dep't of Transp., EEOC Appeal No. 0120131247 (June 14, 2013) (Complainant's allegation that the Agency discriminated against her when it canceled and reposted a vacancy announcement stated a viable claim of discrimination. Generally, when an Agency cancels a vacancy announcement without making a selection, the Complainant suffers no personal harm that would render her aggrieved. In this case, however, Complainant asserted that the Agency cancelled the initial vacancy announcement for discriminatory reasons, specifically to give other applicants an opportunity to enhance their resumes in an effort not to select Complainant due to her protected classes).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131055 (June 13, 2013) (Complainant provided a narrative in her formal complaint which clearly alleged that the Agency violated the Rehabilitation Act when it required her to provide additional medical documentation for use of leave and in support of her medical limitations, made comments regarding her condition in the presence of co-workers, and failed to provide her with reasonable accommodation. The Agency failed to properly identify the claims raised in the formal complaint, and its dismissal was, therefore, improper).

Complainant v. Dep't of the Army, EEOC Appeal No. 0120131039 (May 23, 2013) (Complainant's claim that a co-worker hugged her and grabbed her breast stated a viable claim of sexual harassment. The Commission noted that, regardless of whether Complainant used the term sexual harassment or sexual assault, the alleged action, if proven true, was sufficiently severe to state a claim. The Agency's arguments concerning the criminal investigation of the incident and management's response to the situation addressed the merits of the complaint and were irrelevant to the procedural issue of whether Complainant presented a justiciable claim).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130992 (May 21, 2013) (the Agency improperly addressed Complainant's claims individually to determine whether the matters were severe and pervasive enough to constitute a hostile work environment, and should have instead amended Complainant's pending harassment complaint. Further, with regard to Complainant's allegation that her Supervisor repeatedly referred to her as "he," the Commission noted that supervisors and co-workers should use the name and pronoun of the gender the employee identifies with in communications with and about the employee, and the intentional misuse of the employee's name and pronoun may constitute sex based discrimination or harassment).

Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120130816 (May 8, 2013) (Complainant's claim that a co-worker, on one occasion, dropped a quarter down her buttocks in front of other individuals stated a viable claim of sexual harassment. The Agency's assertions regarding corrective action and the co-worker's motives go to the merits of the complaint and not to the procedural issue of whether Complainant set forth an actionable claim).

Complainant v. Gen. Serv. Admin., EEOC Appeal No. 0120130778 (May 8, 2013) (Complainant's claim that an Agency official, during a leadership meeting, mentioned that Complainant had filed an EEO complaint stated a viable claim of retaliation. Complainant's prior complaint was pending a hearing at the time of the comment, and the tone of the comment was purportedly negative. The Commission concluded that revealing and discussing Complainant's pending EEO complaint with management officials from another region was an action that would be reasonably likely to deter protected EEO activity).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121515 (April 25, 2013) (Complainant's allegation that the Agency discriminated against her when it converted her to a Non-Traditional Full Time position with a schedule of 30 hours per week stated a viable claim. Complainant alleged that none of her co-workers were required to work six days per week, her weekly hours and days off were reduced, and her start times changed. While the Agency asserted that the conversion was done pursuant to the collective bargaining agreement, the Agency's reasons for the action go to the merits of the complaint and are irrelevant to the procedural issue of whether Complainant has stated a viable claim under the EEOC's regulations).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130504 (April 18, 2013) (the Agency improperly dismissed Complainant's claim that the Agency discriminated against her when it did not reinstate her. While the Agency asserted that the claim was an impermissible collateral attack on the OPM disability retirement process, a fair reading of the complaint, as well as the related EEO counseling material, indicated that Complainant was alleging that the Agency was refusing to reinstate her for discriminatory reasons. The Agency's reasons for not reinstating Complainant addressed the merits of the claim without a proper investigation as required by the regulations).

Complainant v. Dep't of the Navy, EEOC Appeal No. 0120130736 (April 16, 2013) (Complainant raised a viable claim of age and disability discrimination with regard to a letter of counseling. Complainant asserted that he received a formal written counseling statement which was part of his personnel record, and the Commission has held that disciplinary letters or remarks placed in an employee's personnel file render the employee aggrieved).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130458 (April 5, 2013) (the Agency improperly dismissed Complainant's claim that the Agency retaliated against him when it issued him a letter of termination. The Agency erred in finding that Complainant did not elaborate on his retaliation charge. Complainant, by providing a basis cognizable under Title VII and detailing a set of facts, provided sufficient information to state a claim. The evidence in support of his claim will be developed during the investigation).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130431 (April 5, 2013) (Complainant's allegation that her Supervisor harassed her and threatened to beat her stated a viable claim of retaliation. Complainant claimed that the incident was part of a pattern of threatening behavior on the part of the Supervisor. The alleged language used in combination with the asserted history of the Supervisor led the Commission to conclude that the allegations were sufficient to state a claim of hostile work environment).

Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120130255 (March 20, 2013), request for reconsideration denied, EEOC Request No. 0520130487 (November 15, 2013) (Complainant's claim that the Agency discriminated against him with regard to the treatment of his service dog at an Agency lodging facility stated a viable claim. Complainant, an Inspector General, was on assignment when he was required to go to the Agency lodging facility, and the facility was only available to employees, dependents of employees, and veterans. Thus, access to the facility was considered a privilege of employment, and Complainant asserted that the Agency created a barrier to this privilege when he was required to repeatedly provide certification for his service animal).

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

Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120130942 (May 23, 2013) (the Agency properly dismissed Complainant's complaint of discrimination for failure to state a claim on the grounds that Complainant was not an employee or applicant for employment. Complainant was employed by a private contractor. While an Agency employee determined Complainant's schedule, and made general assignments, Complainant was not directly supervised by an Agency official, was paid by the contractor, did not earn leave from the Agency, and did not perform work integral to the Agency's mission. In addition, the intentions of the parties reflected that Complainant was not an employee. Thus, the Agency did not exercise sufficient control over Complainant's position to qualify as her employer or joint employer).

Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120122046 (May 1, 2013) (the Agency properly dismissed Complainant's allegations that the EEO Investigator interfered with his ability to represent other employees in their EEO complaints for failure to state a claim. Complainant, as a representative, did not have standing as he was not an aggrieved employee. The employees identified by Complainant, however, could bring the Agency's alleged improper processing of their complaints to the attention of the Agency's EEO Office).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130752 (April 17, 2013) (Complainant's claim that the Agency deducted money from her pay and applied it to an Agency debt failed to state a viable claim of discrimination. The incident related to a claim under the Debt Collection Act. The Commission has found that such actions are not within the scope of the EEO complaint process and the Commission's jurisdiction); see also, Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130801 (April 26, 2013) (Complainant's allegation that he was asked to sign debt collection paperwork without a union representative failed to state a viable claim. Challenges to an Agency's actions under the Debt Collection Act are not within the Commission's jurisdiction, and Complainant's assertion that he was denied a union representative constituted a collateral attack on another proceeding).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130595 (April 11, 2013), request for reconsideration denied, EEOC Request No. 0520130449 (September 26, 2013) (the Agency properly dismissed Complainant's claim that the Agency discriminated against him when his current private sector employer assigned him duties which aggravated his disability, and he was issued a child support order. Complainant was neither an employee nor an applicant for employment with the Agency at the time of the incidents. Further, to the extent Complainant was attempting to tie those matters to his removal from the Agency, that matter was settled before the MSPB which would have jurisdiction over any allegations of breach of settlement. Finally, the Commission noted that it had no jurisdiction over child support matters).

Complainant v. Envtl. Prot. Agency, EEOC Appeal No. 0120130442 (April 10, 2013) (the Agency properly dismissed Complainant's allegations of discrimination for failure to state a claim. Complainant was an "enrollee" under the Senior Environment Employment (SEE) Program under which the Agency entered into cooperative agreements with private, non-profit organizations. The courts have held that Congress intended SEE participants not to be federal employees, and, therefore, Complainant was not an employee of the Agency. Complainant was advised to follow the procedures referenced in the handbook for the cooperative which hired him if he believed the cooperative engaged in discrimination).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130485 (April 10, 2013) (Complainant's allegation that the Agency retaliated against him when it assigned another employee to a keying position leaving Complainant and a co-worker to work as sweepers, and subsequently assigned Complainant to a floor rotation did not state a viable claim. Complainant was told to perform tasks within his job description which, without more, was not likely to deter someone from engaging in protected activity).

Complainant v. Court Serv. & Offender Supervision Agency, EEOC Appeal No. 0120122510 (April 5, 2013), request for reconsideration denied, EEOC Request No. 0520130431 (September 20, 2013) (the Agency properly dismissed Complainant's claim that the Agency retaliated against him when it had third parties break into his apartment, install surveillance equipment, and steal documents. Complainant was neither an employee of the Agency nor an applicant for employment, and the actions about which he complained did not involve employment matters).

Summary Judgment

Summary Judgment Proper in Sex Stereotyping Case. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of sexual orientation when it demoted her and issued her a letter of reprimand. Following an investigation, an AJ issued a decision without a hearing. The AJ found that the claim was within the Commission's jurisdiction because Complainant was alleging that the Agency treated her differently because she did not conform to sexual stereotypes. Nevertheless, the AJ concluded that Complainant failed to establish that she was subjected to discrimination. The Agency rejected the AJ's decision, stating that the Commission did not have jurisdiction over claims of sexual orientation discrimination.

On appeal, the Commission initially found that the AJ was correct in determining that the Commission had jurisdiction over the complaint. The Commission has previously found that, if the allegations state a viable claim of sex discrimination, the fact that Complainant characterized the basis of discrimination as sexual orientation would not defeat an otherwise valid claim. Further, the Commission has recognized the viability of sex stereotyping claims. In this case, Complainant alleged that her Supervisor was motivated by his attitudes about stereotypes that women should only have relationships with men. Thus, Complainant's allegations were sufficient to state a claim that she was discriminated against for failure to match gender-conforming behavior. Nevertheless, the Commission concluded that the AJ correctly issued a decision without a hearing, and found no discrimination. The Agency articulated legitimate, nondiscriminatory reasons for its actions, specifically Complainant's performance and conduct, and Complainant failed to show that the Agency's reasons were a pretext for sex discrimination. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720130012 (May 7, 2013).

Summary Judgment Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior EEO activity when her access into the Main Interior Building (Building) was withdrawn, which resulted in the revocation of her security clearance. According to the record, Complainant filed prior EEO complaints against the former Director of Human Resources and her first level Supervisor. Following an investigation, the AJ granted the Agency's motion for a decision without a hearing. The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for withdrawing Complainant's access to the Building, specifically that there was an investigation pending regarding an incident involving Complainant and another employee, and that Complainant failed to proffer specific evidence to create an issue regarding whether the reason for withdrawing access was pretextual or motivated by retaliatory bias.

On appeal, the Commission found that the record had been adequately developed, and Complainant responded to the Agency's motion. The Commission determined there were no genuine issues of material fact, concluding that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor. While Complainant disputed the Agency's assertions that she was disorderly and irate, she did not dispute that the information was conveyed to an Agency Director who had no direct knowledge of what occurred. Accordingly, the Commission found that Complainant did not produce evidence to dispute the Agency's assertion that her access was revoked based on the reasonable and good faith belief that she had engaged in disruptive conduct. Complainant acknowledged, in her opposition to the Agency's motion for summary judgment that the Director did not discuss his plans with her Supervisor. Thus, Complainant's assertions about her Supervisor's participation in a subsequent inquiry did not create a factual dispute about whether the Director's decision was motivated by retaliatory animus. The Commission concluded that Complainant failed to establish the existence of a genuine issue of material fact, and that the AJ properly granted the Agency's motion for summary judgment. Complainant v. Dep't of the Interior, EEOC Appeal No. 0120110493 (April 19, 2013).

Summary Judgment Proper. While working as an Air Traffic Control Specialist, Complainant applied for the position of Front Line Manager at the same air traffic control tower, indicating on the application that he was Hispanic. Complainant and seven other applicants were found to be qualified. The Agency ultimately selected one of the other applicants for the position. Complainant filed an EEO complaint when he learned he was not selected for the position. At the conclusion of the Agency investigation, Complainant timely requested a hearing before an AJ. The AJ granted the Agency's motion for a decision without a hearing finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On appeal, the Commission found that the decision without a hearing was appropriate because there were no genuine issues of material fact in dispute, the record had been adequately developed and Complainant was given the opportunity to respond to the motion and engage in discovery. The Commission further noted that the Agency articulated legitimate, nondiscriminatory reasons for its actions specifically that the Selectee had more diverse experience and was recommended by six of the seven managers who reviewed the applications. Complainant failed to show that the Agency's articulated reasons were a pretext for discrimination because the evidence proffered by Complainant did not establish that Complainant's qualifications were superior to the qualifications of the Selectee. Complainant v. Dep't of Transp., EEOC Appeal No. 0120122358 (April 11, 2013).

Summary Judgment Improper. Complainant filed an EEO formal complaint alleging that the Agency subjected her to a hostile work environment on the bases of sex and in reprisal for prior protected EEO activity when a named Agency Official (Chief) rubbed Complainant's shoulder and stared at her during a presentation. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately granted the Agency's motion for a decision without a hearing. On appeal, the Commission concluded that granting summary judgment was improper. The record showed that Complainant filed a prior EEO complaint with regard to the Chief's behavior. While the Commission affirmed the dismissal of that complaint because it was an isolated incident, the behavior could be used as background evidence with respect to the current complaint. The Commission found that the facts in this case warranted further development because Complainant and Chief provided different versions of the incidents at issue. While the AJ found the alleged incidents were not sufficiently severe or pervasive to constitute a hostile work environment, the Commission stated that this determination must be done after the record is further developed and subsequent to credibility determinations. The Commission disagreed with the AJ's determination that Complainant failed to establish a nexus between the alleged incidents and her sex and/or prior EEO activity. Further, the Commission explained that Complainant's previously filed EEO complaint alleging that the Chief made a sexual comment referencing her created an inference that the incidents cited in this complaint may be based on Complainant's sex and/or prior EEO activity. The Commission also noted that, given the Chief's prior comment, the matter warranted further development with regard to whether the Agency took action to reasonably prevent and promptly correct the alleged harassing behavior. Therefore, the Commission remanded the complaint for a hearing. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112634 (April 23, 2013).

Summary Judgment Improper. Complainant, a male, hearing impaired Mail Equipment Operator, filed a formal complaint alleging that the Agency discriminated against him based on his sex and disability when it placed him on emergency placement off-duty status (emergency placement) and denied his request for reasonable accommodation during a disciplinary meeting prior to placement. The Agency's summary judgment motion was granted by an AJ. The AJ found that the Agency provided legitimate nondiscriminatory reasons for requiring that Complainant go on emergency placement, given Complainant's involvement in an accident, his hostile behavior in response to his Manager's questions, and the Manager's evaluation of Complainant's behavior as threatening. Second, the AJ determined that Complainant's allegation that he was denied reasonable accommodation was unsubstantiated because Complainant did not dispute that the Agency provided an interpreter for him. The AJ reasoned that (1) the Agency was not required to provide a "certified" interpreter to Complainant, (2) a "certified" interpreter was unavailable during emergency placement, and (3) the Agency assigned a sign language interpreter to Complainant during a subsequent meeting. Therefore the AJ found that, Complainant was afforded comprehensive understanding through sign language interpretation which, when coupled with Complainant's hearing aid and his ability to read lips, constituted a reasonable accommodation. Since Complainant did not attempt to prove that the Agency's actions were pretextual, the AJ found that the Agency neither denied Complainant reasonable accommodation nor discriminated against Complainant.

On appeal, the Commission found that the AJ erred in granting the Agency's motion for summary judgment because there were issues of material fact that differentiated each party's claim. Complainant and Agency presented different reasons for Complainant being placed on emergency placement. Complainant's Manager attested that Complainant was placed on emergency placement because he responded to her inquiry about an accident with threatening looks. In contrast, Complainant stated that his Manager was aggressive toward him because of his hearing disability. Facts were also in dispute regarding Complainant's second allegation, that the Agency did not provide reasonable accommodation to him during the disciplinary meeting. Complainant asserted that he had multiple limitations when using his hearing aid and had difficulty communicating and understanding various actions during the meeting. Therefore the Commission concluded that there was sufficient evidence that directly contradicted the Agency's position to raise an issue of material fact regarding whether the Agency provided Complainant with reasonable accommodation. The Commission found that a hearing was necessary to reconcile the conflicting evidence. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120114158 (April 18, 2013).

Summary Judgment Improper. Complainant filed a formal EEO complaint alleging discrimination based on race, national origin, and reprisal for prior protected EEO activity. Specifically, Complainant alleged that two of his supervisors subjected him to a hostile work environment, a low rating on a performance appraisal, and unfavorable comments on a close-out assessment. Following the Agency's investigation, Complainant timely requested a hearing before an AJ. The AJ granted the Agency's motion for a decision without a hearing, finding no discrimination. The AJ found that Complainant failed to prove pretext or a discriminatory motive because the Manager who reduced Complainant's performance rating was unaware of Complainant's national origin or prior EEO activity; the Supervisor's national origin-related statements lacked probative value because it was the Manager who reduced the rating; Complainant's evidence of the Supervisor referring to him as a "lazy Mexican" was not credible; and the disagreement over Complainant's performance did not raise an inference of discrimination.

On appeal, the Commission found that the AJ erred in issuing a decision without a hearing because genuine issues of material fact existed regarding whether the written assessment in Complainant's appraisal accurately reflected his performance. The Commission noted as an initial matter that the AJ defined the claim incorrectly by focusing on the Manager's decision to reduce Complainant's rating. The Commission stated that the essence of the claim was that Complainant experienced discrimination when his supervisors inaccurately portrayed his performance in his appraisal, which lead to the lower performance rating issued by the Manager. Complainant disputed several of the Agency's specific assertions in his testimony during the fact-finding conference, and the Commission found that the record contained little documentary evidence to either support or contradict the comments in the performance appraisal. Thus, the complaint was remanded for a hearing. Complainant v. Dep't of the Army, EEOC Appeal No. 0120120116 (April 12, 2013).

Summary Judgment Improper. Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination and hostile work environment on the bases of sex, religion, age, and reprisal for prior protected EEO activity. Complainant cited several incidents in support of his claim, including criticism for his work product and a downgrade of his 2007 performance rating. The AJ ultimately granted the Agency's motion for a decision without a hearing, to which Complainant did not object, and found no discrimination.

On appeal, the Commission concluded that the issuance of a decision without a hearing was improper. Although Complainant stated he did not have an opportunity to respond to the Agency's motion for summary judgment, the Commission found no evidence showing Complainant was denied such an opportunity. Nevertheless, the Commission held that the AJ erred in issuing a decision without a hearing because there was a genuine issue of material fact regarding whether Complainant's Second Level Supervisor's (S2) downgrade of Complainant's annual performance rating was motivated by reprisal or a desire to discriminate based on sex. According to the record, Complainant, his co-workers, and Complainant's First Level Supervisor (S1) provided evidence that S2 subjected the work of employees who had engaged in protected EEO activity and male employees to heightened scrutiny. In addition, S1 testified that S2 instructed her to downgrade the performance ratings of Complainant and three other male employees, and that S2 unfairly criticized her work after she filed an EEO complaint. A co-worker also averred that she was told S2 had downgraded the co-worker's rating because of her pending EEO complaint. S2 disputed these assertions and averred that the lower ratings were warranted based on her observations of the employees' performance. The Commission concluded there were unresolved issues that required an assessment of the credibility of witnesses, including S2 and Complainant. Therefore, the Commission stated that judgment as a matter of law should not have been granted in favor of the Agency, and remanded the entire complaint for a hearing. Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120114315 (April 2, 2013), request for reconsideration denied, EEOC Request No. 0520130425 (October 29, 2013).

Summary Judgment Improper. Complainant, a Student Trainee at the Agency, filed a formal complaint alleging that the Agency discriminated against her on the basis of sex when a Supervisor subjected her to sexual harassment which culminated in her non-recommendation for conversion to an Agency position. Following the investigation, Complainant timely requested a hearing. The AJ ultimately granted the Agency's motion for a decision without a hearing and found no discrimination. The AJ found that Complainant failed to establish a claim of sex-based hostile work environment or sexual harassment. On appeal the Commission found that the AJ erred when issuing a decision without a hearing. The Commission noted that there remained genuine issues of material fact in dispute, including why the Agency did not recommend Complainant for conversion to an Agency position. While the management officials averred that Complainant was not recommended for reasons related to her fitness level, inability to follow directions, and lack of interest in the Agency, the record contained evidence favorable to Complainant. Thus, the Commission remanded the entire complaint for a hearing. Complainant v. Dep't of Justice, EEOC Appeal No. 0120120070 (April 2, 2013).

Timeliness

Time for Contacting EEO Counselor Extended. Complainant contacted an EEO Counselor on May 7, 2012, and subsequently filed a formal EEO complaint alleging that the Agency discriminated against him when he was forced to resign. The Agency dismissed the matter for failure to timely contact an EEO Counselor stating that the alleged discrimination occurred on March 9, 2012. On appeal, the Commission found that Complainant credibly claimed he was not aware of the EEO regulations including the time limitation to contact an EEO Counselor. Complainant stated that he did not understand the EEO complaint process and the timelines for seeking counseling. The record contained no evidence that Complainant knew or should have known about the relevant deadline such as an affidavit concerning the availability of EEO posters in the workplace or an indication that Complainant received EEO training. Complainant indicated that he was told to resign instead of being terminated because of his physical disability, and, therefore, no adverse action was issued which might have informed him of his rights to contest the decision and the process for doing so. Complainant v. Dep't of Def., EEOC Appeal No. 0120131250 (June 14, 2013).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. Complainant filed a formal EEO complaint alleging that the Agency subjected him to discriminatory harassment. Complainant later retired from the Agency and initiated EEO Counselor contact raising a claim of constructive discharge. Complainant subsequently asked the Agency to amend his initial complaint to include that matter. The Agency found that the constructive discharge claim was like or related to the matters initially raised, but stated that Complainant failed to timely raise the issue with an EEO Counselor. The Commission initially affirmed the Agency's dismissal of the constructive discharge claim, but subsequently granted Complainant's request for reconsideration. The Commission noted that a complainant is permitted to amend a pending EEO complaint at any time prior to the Agency's mailing of the notice at the conclusion of the investigation, and there is no requirement that the complainant seek counseling on the new claims. Therefore, the Agency improperly dismissed Complainant's constructive discharge claim after finding that it was like or related to the initial claim of harassment. Further, the Agency's improper dismissal meant that Complainant's ongoing harassment claim was not addressed in its entirety. The Agency was ordered, among other things, to conduct a supplemental investigation with regard to the claim of constructive discharge, and issue a new report of investigation that included all matters in Complainant's ongoing harassment claim, including the claim of constructive discharge. Complainant v. U.S. Postal Serv., EEOC Request No. 0520120189 & EEOC Appeal No. 0120113350 (May 10, 2013).

EEO Counselor Contact Timely. Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin and sex when she was not accepted for a training program for a Postal Inspector position. The Agency dismissed the matter for failure to timely contact an EEO counselor. On appeal, the Commission found that the Agency erred in dismissing the complaint. Complainant asserted she applied for a position in December 2010, and contacted the Agency in January 2011 because she had not received a response to her application. Complainant stated that the Agency informed her she did not qualify because she did not pass the required examination. Complainant presented proof of passing the examination, and the Agency stated Complainant was disqualified due to age restrictions in the subject position. Complainant further asserted that the Agency nevertheless told her that it would keep her information on file. Complainant stated that on July 25, 2012, during an announced hiring freeze, she discovered a young male had been hired for the subject position, and realized she had been the victim of discrimination. The Commission concluded that Complainant developed a reasonable suspicion of discrimination on July 25, 2012, thus triggering the 45-day limitation on that date. Therefore, the Commission found that Complainant timely contacted the EEO Counselor. Complainant v. US. Postal Serv., EEOC Appeal No. 0120130561 (April 2, 2013).

EEO Counselor Contact Untimely. Complainant, an employee of the Agency, filed a formal EEO complaint on April 23, 2012 alleging that the Agency discriminated against him when, on November 22, 2011, he became aware that it did not select him for a new position. Complainant attempted to pursue the EEO complaint process through two of the Commission's District Offices which advised him to contact an Agency EEO Counselor and provided him with information about the 45-day limitation period. Complainant waited until January 14, 2012 before initiating contact with an Agency EEO Counselor. The Agency dismissed the formal complaint on the grounds of untimely EEO contact. On appeal, the Commission found that the Agency's dismissal was proper. Complainant had not provided an adequate explanation for why he did not promptly contact an Agency EEO Counselor within the 45-day limitation period once advised to do so by the EEOC. Further, the Agency's public website contained information about initiating a complaint of discrimination, including the 45-day limitation period. Complainant v. Fed. Hous. Fin. Agency, EEOC Appeal No. 0120130740 (April 19, 2013).

Formal Complaint Timely Filed. Complainant contacted an EEO Counselor alleging that the Agency discriminated against him on the bases of his sex, disability, age and prior EEO activity. The EEO Counselor sent Complainant a Notice of Right to File a formal complaint by e-mail on October 9, 2012, and Complainant filed his formal complaint on November 15, 2012. The Agency dismissed the complaint as untimely. On appeal, the Commission found that the Agency did not meet its burden of establishing when Complainant received the Notice. The Commission was not persuaded by the Agency's assertion that the e-mail was "delivered" to Complainant on the same day it was sent. Further, the Commission stated that the EEO complaint processing regulations do not expressly address or define service by electronic mail. Thus, the matter was remanded for processing. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120131022 (June 20, 2013).

Commission Found Adequate Justification for Extending Filing Period. Complainant contacted an EEO Counselor and subsequently filed a formal complaint raising a number of allegations of discrimination. The Agency dismissed the complaint as untimely, stating that Complainant received the Notice of Right to File a Discrimination Complainant on July 19, 2012, but did not file his formal complaint within the 15 day limitation period. On appeal, the Commission found sufficient justification for extending the filing period. Complainant asserted that his mental state at the time, which he claimed resulted from the alleged discrimination, prevented him from meeting the deadline. Complainant submitted a statement from his psychologist indicating that she spoke with Complainant on a series of occasions following his July 2012 removal from the Agency, and diagnosing him with significant depression with suicidal ideation. The Commission concluded that the psychologist's statement was sufficient evidence of incapacity to justify excusing Complainant's 17-day delay in filing his complaint. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130760 (April 30, 2013).

Formal Complaint Deemed Timely Filed. Complainant filed a formal EEO complaint alleging that the Agency, which did not select him to be interviewed for an advertised Maintenance Mechanic position, discriminated against him based on his color and race. The Agency dismissed the initial complaint because it was filed in an untimely manner. Specifically, the Agency alleged that although the formal complaint was received, it was postmarked three days after the filing period expired. On appeal, the Commission found that Complainant's formal complaint was timely filed. The Agency asserted that the Track and Confirm information showed that the notice of right to file was signed for on October 1, 2012. The Commission reasoned, however, that the Agency bore the burden of proof and the Track and Confirm receipt it provided did not specify the address to which the notice was delivered nor identify the person whose signature appeared on the receipt. Therefore the Commission found the Agency offered insufficient proof to support its finding that notice was received by Complainant on the date specified. Since the Agency acknowledged receipt of the complaint sent by certified mail, the Commission reversed the Agency's decision, and remanded the complaint to the Agency for processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130575 (April 16, 2013).

ARTICLE

(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 and court decisions. Some EEOC decisions cited may have appeared in previous editions of the Digest. -Ed)

Retaliation: An Evolving Area of the Law

By Tanza Jones and Rosdaisy Rodriguez

Introduction

The Commission has recently articulated that preserving access to the legal system is a national priority.1 Therefore, the Commission will target policies and practices that discourage or prohibit individuals from exercising their rights under the employment discrimination statutes.2 These policies and practices include retaliatory actions.3 In the past several years, there have been an increased number of findings of discrimination based on retaliation in the federal sector. This article attempts to examine the reasons behind this increase.

Background

Retaliation occurs when an employee, applicant for employment, or former employee4 is treated adversely because he or she has engaged in protected activity under the civil rights statutes prohibiting discrimination in the workplace. To establish a claim of retaliation, a complainant must prove three essential elements: (1) that he or she engaged in a protected activity; (2) that he or she suffered an adverse action; and (3) causation.5

Engaging in a protected activity consists of either opposing a discriminatory practice prohibited by one of the employment statutes (the "opposition" clause) or participating in an employment discrimination proceeding (the "participation" clause).6 Opposition can occur when an individual communicates to his or her employer that its action constitutes unlawful employment discrimination.7 This communication must be made explicitly or implicitly.8 Examples of opposition include, among other things, filing a formal complaint of discrimination, making complaints to management, threatening to file a formal complaint alleging discrimination, or refusing to obey an order that is believed to be discriminatory.9 The manner in which an employee manifests his or her opposition must be reasonable and with the good faith belief that the opposed activity is prohibited by the employment statutes.10

Participating in an employment discrimination proceeding is construed as participating in any manner in an investigation, proceeding, hearing, or litigation involving the discriminatory actions prohibited by the employment statutes.11 This includes actions such as filing a complaint, testifying, and assisting with the proceedings.12 Participation also occurs when an employee files a labor grievance and the employee raises issues of unlawful employment discrimination in such a grievance.13 The participation clause protects individuals against retaliatory actions even if the participation in the employment discrimination proceeding was not "reasonable" or made in good faith.14

To establish a prima facie case of retaliation, an individual must also have been subjected to an adverse action. Under Commission policy, an adverse action does not have to qualify as an ultimate employment action, such as termination or demotion, or even materially affect the terms, conditions, and privileges of employment.15 Adverse treatment satisfies this element of a retaliation claim if it is "reasonably likely to deter protected activity by the individual or other employees."16

Finally, an individual must prove that he or she suffered an adverse action because of his or her opposition to or participation in protected activity.17 The Commission's policy on retaliation prohibits any adverse treatment that is based on a retaliatory motive.18 Direct evidence of a retaliatory motive may be any policy or statement made by the agency or agency official that facially shows a bias against a protected group and is linked to the adverse action.19 A common method of showing causation circumstantially, however, is with evidence of temporal proximity of the adverse action to the protected activity.20 Causation cannot be proven without showing that the employer knew of the individual's prior protected activity.21

If the individual makes a prima facie showing of retaliation through indirect evidence, then the agency has the opportunity to show that the adverse action was legitimate, and not retaliatory.22 Once the agency provides the legitimate reason, the complainant can offer additional evidence showing that the reason provided is pretextual.23 Pretext can be shown by exposing inconsistencies or contradictions in the reasons provided by the agency, which would demonstrate that the articulated reason is not true.24

Federal Sector Retaliation Claims

In the federal sector, retaliation has been the most frequently alleged basis of discrimination for more than 10 years.25 In addition, the number of retaliation claims has been steadily increasing since 2006. Between the years 2006 and 2011, retaliation was alleged, on average, in 42.5 percent of the complaints filed.26

Since at least 1988, the Commission has broadly interpreted the anti-retaliation provisions.27 The Commission expressly disagreed with "unduly restrictive" constructions of adverse retaliatory actions.28 For the Commission, the anti-retaliation provisions "make it unlawful 'to discriminate' against an individual because of his or her protected activity . . . and therefore prohibit any discrimination that is reasonably likely to deter protected activity."29

Supreme Court Decisions Addressing Reprisal

Prior to 2000, the Supreme Court had not ruled directly on what standard to follow on claims of retaliation. The courts did not follow a defined standard of what constituted an adverse action. Some courts followed a narrow approach, and required the action to qualify as an ultimate employment action or to materially affect the terms, privileges, and conditions of employment.30 Other courts adopted a broader approach, and required the adverse action to have been material, such that it would dissuade a reasonable worker from opposing or participating in employment discrimination activity.31

In 2006, the Supreme Court decided Burlington No. & Santa Fe Ry. Co. v. White.32 Therein, the Court resolved the split among the circuit courts, and adopted the broader approach to retaliation. The Court held that an adverse retaliatory action was not limited to actions related to terms, privileges, and conditions of employment or to employment actions. Instead, the adverse action had to be a materially adverse action which might dissuade a reasonable worker from making or supporting a charge of discrimination. In an attempt to ascertain congressional intent and distinguish the difference in language in Title VII's antidiscrimination and antiretaliation provisions, the Supreme Court reasoned that while the antidiscrimination provision was based on an individual's status, antiretaliation was based on an individual's conduct.33 Additionally, Burlington clarified the degree of harm that the alleged action must reach to qualify as retaliation.34

The Supreme Court's decision in Thompson v. N. Am. Stainless, LP,35 also expanded the scope of retaliation claims. In Thompson, the Plaintiff was fired after his fiancée filed an EEO claim. Referring to its reasoning in Burlington, the Supreme Court read the coverage provided by the anti-retaliation provision of Title VII broadly.36 The Supreme Court reasoned that a reasonable party could be dissuaded from participating in protected activity if her fiancée were fired.37 The Court made a nuanced distinction reasoning that because the harm the Defendant caused the Plaintiff, a third party, was intended to harm the individual who engaged in the protected activity, the Plaintiff was an aggrieved person within the "zone of interest" that the anti-retaliation provision of Title VII was intended to protect.38 Thompson expanded the type of persons who had standing to file claims of retaliation by allowing third-party claims.

The Recent Supreme Court Decision in Nassar

In University of Texas Southwestern Medical Center v. Nassar,39 the Supreme Court narrowed the grounds under which private sector employer liability may arise under the anti-retaliation provision of the Civil Rights Act of 1964, as amended. The Respondent, an individual of Middle Eastern dissent, was employed as a faculty member at the University of Texas Southwestern Medical Center (the "University") and as a medical doctor at Parkland Memorial Hospital (the "Hospital"). He filed two claims of discrimination in the United States District Court for the Northern District of Texas (the "District Court").40 First, he alleged that his Supervisor engaged in status-based discrimination when she subjected him to heightened scrutiny and made remarks that individuals of Middle Eastern dissent were unproductive.41 Respondent informed an upper-level management official of the alleged discrimination on multiple occasions.42 After an internal attempt to remedy the alleged discriminatory behavior proved unsuccessful, Respondent tried to leave the University and transfer full time to the Hospital so that he would no longer work for this Supervisor.  The upper-level Manager, upon learning that Respondent resigned from his teaching position because of the alleged actions of his Supervisor, tried to prevent the Hospital from permitting him to work exclusively as a physician.43

The District Court ruled in favor of Respondent on both counts.44 The Fifth Circuit Court of Appeals (the "Court of Appeals") found insufficient evidence to support the first allegation of harassment, but affirmed the second allegation of retaliation, reasoning that, like section 2000e-2(a), section 2000e-3(a) only required that retaliation be a motivating component.45 The Court of Appeals found that the higher but-for causation was not required.46

The Supreme Court vacated the ruling of the Court of Appeals, and remanded the case for further proceedings.47 The Supreme Court reasoned that the tort law standard of but-for causation, under which the harm alleged to have been experienced by an employee would not have occurred absent the alleged action of the employer, should be applied to prove retaliation in Title VII claims of discrimination under section 2000e-3(a).48 The Court noted that the language of § 704 of Title VII prohibiting employers from taking adverse actions "because of" protected activity was essentially the same as the language in the private sector Age Discrimination in Employment Act provision which the Court interpreted as requiring a showing of "but-for" causation.49 In addition, the Court stated that neither the plain language nor the structure of Title VII supported applying the § 703(m) causation standard to private sector retaliation claims since that section referred only to "status" based prohibitions and not retaliation. Therefore, the Supreme Court applied the but-for causation test instead of the less stringent, motivating factor test, to a private sector retaliation claim.

Conclusion

Prior to Nassar, the Supreme Court's development of retaliation jurisprudence had been one that could be deemed to be pro-complainant. Accordingly, the increase in claims and in findings of reprisal could have been attributed to the development of the law of retaliation itself. Subsequently, the Supreme Court's expansion of the criteria for what constituted an adverse retaliatory action made the law applicable to more actions or types of conduct. Furthermore, the Court's expansion in who had standing to file a claim of retaliation allowed more individuals to file claims that otherwise would have been left unremedied if proven to be discriminatory.

This area of the law will continue to evolve under Nassar, as courts apply the standards articulated by the Supreme Court in that decision. The Commission has not yet announced its position on the applicability of Nassar to the federal sector. There is an argument, however, that the "but for" standard does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the federal sector statutory language does not employ the "because of" language on which the Court relied in Nassar and Gross. In fact, in contrast to the provisions analyzed in Nassar and Gross, these federal sector provisions contain a "broad prohibition of 'discrimination' rather than a list of specific prohibited practices." 50


Footnotes

1 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Strategic Enforcement Plan FY 2013-2016, 3, available at http://www.eeoc.gov/eeoc/plan/sep.cfm.

2 Id. at 1.

3 Id. at 10.

4 See Robinson v. Shell, 519 U.S. 337, 346 (1997) (holding that the term "employee" in the anti-retaliation provision includes "former employee," and thus a former employee is protected against retaliatory actions taken by his or her former employer).

5 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, EEOC Compliance Manual, § 8, iii (1998) [hereinafter Compliance Manual], available at http://www.eeoc.gov/laws/guidance/compliance.cfm; see also Complainant v. Tenn. Valley Auth., EEOC Appeal No. 01992977 (Feb. 21, 2002) (explaining the elements needed to establish a prima facie case of retaliation).

6 Compliance Manual, supra note 8, at 8-1.

7 Id. at 8-3; see, e.g., Complainant v. Small Bus. Admin., EEOC Request No. 05971046 (Mar. 4, 1999) (finding that complainant's opposition to what she believed was the discriminatory non-selection of a Hispanic co-worker for a particular position constituted engaging in protected activity).

8 Compliance Manual, supra note 8, at 8-3, 8-5; e.g., Complainant v. Dep't of the Army, EEOC Appeal No. 01A14110 (Sept. 9, 2002) (finding no retaliation because the record did not show that complainant, either explicitly or implicitly, indicated that her opposition to the selection of a supervisor was because she believed it was discriminatory).

9 Compliance Manual, supranote 8, at 8-4 see also, Crawford v. Metro Gov't Nashville & Davidson County, 555 U.S. 271 (2009) (holding that an employee may oppose unlawful employment discrimination not only by communicating his or her belief to the employer, but also by answering questions during an employer's internal investigation).

10 Compliance Manual, supra note 8, at 8-7.

11 Id., at 8-9.

12 E.g., 42 U.S.C. § 2000e-3(a) (2006) (describing what is participation for purposes of Title VII); 29 U.S.C. § 623 (d) (2006) (describing what is participation for purposes of the ADEA).

13 Complainant v. Dep't of the Navy, EEOC Request No. 05980598 (June 5, 2000) (stating that participation may occur by filing a grievance procedure when the employee raises issues of employment discrimination); Cf., e.g., Complainant v. EEOC, EEOC Appeal No. 0120070356 (April 18, 2011) (finding that complainant failed to establish a prima facie case of retaliation because she did not show participation in prior protected EEO activity, and her grievance process did not constitute participation because she did not raise allegations of employment discrimination therein).

14 Compliance Manual, supra note 8, at 8-9; Complainant v. Dep't of the Air Force, EEOC Appeal No. 01A00116 (Aug. 13, 2002) (asserting that the Commission "interprets Title VII to make it unlawful to retaliate even if the individual engaging in the protected activity makes false statements that would otherwise support a claim of defamation under state law").

15 See Compliance Manual, supra note 8, at 8-11 (providing the following examples of retaliatory actions: refusal to hire, discharge, harassment, negative evaluations; and post-employment actions, such as, giving unjustified negative references and informing a prospective employer that the individual had engaged in protected activity).

16 See Compliance Manual, supra note 8, at 8-15; accord Complainant v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000) (noting the Commission's policy of viewing reprisal claims with a broad view of coverage).

17 See Compliance Manual, supra note 8, at 8-15.

18 See Compliance Manual, supra note 8, at 8-15; Complainant v. U.S. Postal Serv., EEOC Appeal No. 01A04472 (Sept. 14, 2001) (stating that "the causal connection may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred"); See also Complainant v. U.S. Postal Serv., EEOC Appeal No. 01A10824 (June 19, 2002) (asserting that a prima facie case of reprisal discrimination can be established by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, and rejecting that a complainant has to show but-for causation).

19 Complainant v. Department of the Army, EEOC Appeal No. 0120090598 (August 10, 2011) (explaining what is direct evidence of discriminatory motive).

20 See, e.g., Complainant v. Dep't Of Housing & Urban Dev., EEOC Appeal No. 01A54280 (Sept. 22, 2005) (an inference of retaliation arises given the temporal proximity, and stating that additional proof of causation is not required); see also, Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120072556 (Feb. 26, 2009) (temporal proximity between an employer's knowledge of protected activity and an adverse action is sufficient evidence of causality to establish a prima facie of reprisal if such temporal proximity is "very close").

21 See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720100031 (Apr. 5, 2012) (to establish a prima facie case of reprisal the individual must show that the agency was aware of the employment discrimination activity).

22 Compliance Manual, supra note 8, at 8-17; see Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120065298 (June 26, 2007) (explaining that the burden shifts to the agency to show a nondiscriminatory reason for its action, and, if that occurs, then the complainant has the opportunity to show that the reason given was a pretext to hide the retaliatory motive).

23 E.g Complainant v. Dep't of Labor, EEOC Request No. 05940764 (Dec. 15, 1994) (finding no discrimination because complainant was not able to show that the reason provided by the agency for the adverse action was a pretext to hide the retaliatory motive).

24 Complainant v. U.S. Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (explaining that "pretext can be demonstrated by 'showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence'").

25 See U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Annual Report on the Federal Work Force Fiscal Year 2005, available at http://www.eeoc.gov/federal/reports/fsp2005/index.html (stating that the top basis alleged in 2005 was retaliation, and this trend remained unchanged since FY 2001); U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Annual Report on the Federal Work Force (Part 1) Fiscal Year 2011, available at http://www.eeoc.gov/federal/reports/fsp2011/index.cfm (stating that the top basis alleged in 2011 was retaliation, and this trend remained unchanged since FY 2007).

26 Statistics on the number of retaliation claims filed in the Fiscal Years 2001 through 2011 are available in the Commission's Annual Reports on the Federal Work Force, and may be found at http://www.eeoc.gov/federal/reports/index.cfm.

27 See U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, EEOC Compliance Manual, § 614 (1988) (reaffirming the Commission's "exceptionally broad" policy and position on protecting individuals who protest unlawful employment discrimination).

28 Compliance Manual, supra note 8, at 8-13 (expressing its disagreement with courts that required adverse actions to be ultimate employment actions or to materially affect the terms, conditions, or privileges of employment).

29 Compliance Manual, supra note 8, at 8-14.

30 See Joel A. Kravetz, Deterrence v. Material Harm: Finding the Appropriate Standard to Define an "Adverse Action" in Retaliation Claims Brought Under the Applicable Equal Employment Opportunity Statutes, 4 U. Pa. J. Lab. & Emp. L. 315, 321 (2002) (analyzing the different approaches followed by the courts and the Commission).

31 Id.

32 548 U.S. 53 (2006).

33 548 U.S. 53, 61-3.

34 Id. at 57, stating that the Title VII retaliation provision contains a materiality requirement which requires a showing that a reasonable employee would have found the employer's challenged action materially adverse.

35 131 S. Ct. 863 (2011).

36 Id. at 867-8.

37 Id. at 868.

38 Id. at 870.

39 133 S.Ct. 2517 (2013). 

40 Nassar, 133 S.Ct. 2517, 25223.

41 Id. at 2523-4; See also 42 U.S.C. § 2000e-2(a).

42 Nassar, 133 S.Ct. 2517, 2523.

43 Id.

44 Id.

45 Id.

46 Id. at 2526.

47 Id, the Nassar case settled in October 2013.

48 Id.

49 Gross v. FBL Financial Systems, Inc., 557 U.S. 167 (2009).

50 See Gomez-Perez, 553 U.S. at 487-88 (holding that the broad prohibition in 29 U.S.C. § 633a(a) that personnel actions affecting federal employees who are at least 40 years of age "shall be made free from any discrimination based on age" prohibits retaliation by federal agencies); see also 42 U.S.C. § 2000e-16(a) (personnel actions affecting federal employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin.