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The DIGEST Of Equal Employment Opportunity Law


Fiscal Year 2020, Volume 2                      

Office of Federal Operations

March 2020


Selected EEOC Decisions on:

Attorney’s Fees   

Compensatory Damages

Complaint Processing

Conflicts of Interest  

Dismissals 

Findings on the Merits

Under the Rehabilitation Act

Under Title VII

Under Multiple Bases

Remedies

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness

 

Article:

Claims of Harassment and the Problem of Fragmentation

 

______________________________

 

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

Carlton M. Hadden, Director, OFO

Virginia Andreu, Assistant Director, OFO’s Special Operations Division

Digest Staff

Editor: Robyn Dupont

Writers: Craig Barkley, Robyn Dupont, Kelvin Isom, Shalyn Lewis,

Joseph Popiden, Navarro Pulley

 

The Digest is available online through EEOC’s homepage at www.eeoc.gov/digest.

 

The Commission redacts Complainants' names when it publishes decisions, and all federal sector appellate decisions issued for publication use a randomly generated name as a substitute for the name of the complainant. This randomly generated first name and last initial is assigned using a computer program that selects names from a list of pseudonyms and bears no relation to the complainant's actual name.  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.

The summaries below are neither intended to be exhaustive or definitive as to the selected subject matter, nor are the summaries themselves to be given the legal weight of case law in citations. For summaries of decisions involving claims of harassment, see “Findings on the Merits” by statute, as well as “Under Multiple Bases.”

SELECTED EEOC DECISIONS

Attorney’s Fees

Commission Modified Award of Attorney’s Fees.  In a prior decision, the Commission found that the Agency failed to reasonably accommodate Complainant for approximately one month, and ordered the Agency, among other things, to pay Complainant reasonable attorney’s fees.  In the underlying decision, the Commission found that the one-page affidavit that Complainant’s attorney submitted to the Agency was insufficient to support the requested $450 hourly rate.  The referenced “Legal Representation Agreement” was not evidence of the attorney’s customary billing rate for clients in employment discrimination cases, and the attorney did not submit any additional evidence to corroborate the billing rate such as affidavits from attorneys in the same area who engaged in a similar practice.  The Commission noted that, for the first time on appeal, Complainant submitted evidence regarding the attorney’s hourly rate, but stated that it was inappropriate to submit such evidence at that stage.  Therefore, the Commission affirmed the Agency’s finding that Complainant’s attorney was entitled to a $300 hourly rate.  The Commission also found that the Agency correctly reduced the time claimed for pre-complaint work to two hours.  Nevertheless, the Commission modified the Agency’s overall reduction in fees to reflect work performed on unsuccessful claims from 50% to 25%, because the denial of reasonable accommodation accounted for the majority of the attorney’s time spent on the case.  The Commission agreed with the Agency that numerous hours claimed were redundant and excessive given the attorney’s experience and the fact that the issues were not novel or overly complex.  Therefore, the Commission found that a 20% across-the-board reduction in fees was also warranted.  The Commission also awarded Complainant $5,000 in compensatory damages based on information in the record showing that Complainant suffered some emotional harm as a result of the Agency’s failure to accommodate his condition.  Wayne C. v. Dep't of Transp. EEOC No. 0120182783 (Nov. 29, 2019).

Compensatory Damages

(See, also, “Findings on the Merits,” and “Remedies” this issue.)

Commission Affirmed Agency’s Award of $100,000 in Damages.  The Commission previously affirmed an Administrative Judge’s (AJ) issuance of a default judgment against the Agency, and finding that the Agency retaliated against Complainant when it terminated her from employment.  In the underlying decision, the Commission affirmed the Agency’s award of $100,000 in non-pecuniary compensatory damages.  Complainant submitted several statements and medical records to support her claim, emphasizing that the Agency’s actions tarnished her reputation and left her in fear of what would come next.  A sworn statement from Complainant’s colleague indicated that Complainant was subjected to embarrassing and demeaning treatment, including having her home searched and being put in jail three times without any charges.  Complainant’s colleague stated that the Agency’s discriminatory actions caused Complainant to experience debilitating headaches, anxiety, mental anguish, stress, acne breakouts, stomach problems, weight loss, night sweats, and insomnia.  The medical documentation showed that Complainant visited a medical facility on several occasions during this time for headaches, weight gain, neck stiffness, nightmares about work, and insomnia.  The Commission found that the Agency properly disallowed Complainant’s claim for debt owed to a car dealership, because Complainant failed to provide adequate documentation to substantiate her claim.  Karry S. v. Dep’t of the Air Force, EEOC Appeal No. 0120182301 (Nov. 21, 2019).

Commission Modified Award of Non-Pecuniary Damages to $75,000.  The Agency did not contest the AJ’s finding of retaliatory harassment and that substantial evidence supported an award of damages.  However, the Agency appealed the AJ’s award of $125,000.00 in non-pecuniary damages.  On appeal, the Commission modified the award, finding that $75,000 was a more appropriate remedy.  While Complainant experienced anxiety, exhaustion, fear, insomnia, post-traumatic stress disorder, depression, elevated blood pressure, marital stress, and humiliation, the evidence of record only supported the nature of his harm and did not address the severity or duration of the harm caused by the Agency’s discriminatory actions.  For example, Complainant’s statement that he had been dealing with stress for three years showed that part of his stated harm occurred prior to the discriminatory events.  The Commission determined that the modified award was more consistent with Commission precedent.  Hayden R. v. U.S. Postal Serv., EEOC Appeal No. 2019003428 (Dec. 10, 2019).

Commission Increased Award of Non-Pecuniary Damages to $20,000.  The Agency found that Complainant was subjected to reprisal when supervisors filed complaints against him with the Agency’s Office of Inspector General (OIG), and the Agency awarded Complainant $2,000 in non-pecuniary damages.  The Agency considered that the OIG investigation against Complainant lasted approximately nine to ten months and Complainant experienced damage to his professional reputation.  The Agency noted, however, that aside from Complainant’s affidavit and his attorney’s statement that he experienced physical and emotional ailments, Complainant did not submit any supporting documentation addressing his claim for compensatory damages. The Agency observed that Complainant did not submit any statements from his family or friends, medical bills, or any other documentation showing that there was damage to his reputation.  On appeal, the Commission noted that Complainant stated he broke down several times emotionally as a result of being subjected to the investigation, became physically ill, and experienced sleeping issues, and family problems, among other things, due to the stress of being subjected to the investigation. In considering the harm Complainant suffered, the Commission found that his request for $20,000 in non-pecuniary compensatory damages was in line with Complainant's harm and the Commission's case law. The Commission also found that $20,000 was not “monstrously excessive” standing alone and was not the product of passion or prejudice.  The Commission denied Complainant’s request for pecuniary damages.  Orlando O. v. Envtl. Prot. Agency, EEOC Appeal No. 0120182452 (Dec. 10, 2019).

Commission Awarded $2,000 in Non-Pecuniary Damages.  The Commission previously determined that the Agency violated the Rehabilitation Act when it failed to safeguard Complainant’s medical records, and instructed the Agency to investigate Complainant’s claim for damages.  The Agency subsequently issued a decision, finding that Complainant was not entitled to damages, because he did not establish a nexus between the harm he suffered and the Agency’s action.  On appeal, the Commission awarded Complainant $2,000 in non-pecuniary damages due to the worsening of his preexisting condition.  Specifically, while Complainant’s sleep apnea was a preexisting condition and there was more than one cause for Complainant’s other conditions, Complainant’s statement and medical records showed that the Agency’s violation of the Rehabilitation Act caused a worsening of Complainant’s sleep apnea and the onset of his anxiety, adjustment order, loss of professional reputation and interpersonal issues.  The Commission stated that an award of $2,000 was not “monstrously excessive,” and was consistent with awards in similar cases.  The Commission affirmed the Agency’s denial of pecuniary damages.  Foster M. v. Dep’t of Energy, EEOC Appeal No. 0120182008 (Dec. 13, 2019).

Complaint Processing

Agency Failed to Properly Process Informal EEO Complaint After MSPB Dismissed Appeal. Complainant sought EEO counseling regarding the Agency’s denial of a job offer, but elected to file a mixed case appeal with the Merit Systems Protection Board (MSPB).  Thereafter, the Agency issued Complainant a notice of his right to file an EEO complaint (Notice).  When the MSPB dismissed Complainant’s appeal for lack of jurisdiction, Complainant filed his formal EEO complaint.  Complainant acknowledged that his formal complaint was filed more than 15 days after he received the Notice.  The Agency dismissed the Complaint as untimely, and the Commission reversed the decision on appeal.  It was clear that Complainant made a valid election to proceed before the MSPB prior to the issuance of the Notice, and the Commission stated that  engaging in EEO counseling did not constitute an election to proceed in the EEO complaint process.  The Commission determined that, once the MSPB determined it did not have jurisdiction over the matter, the Agency should have contacted Complainant and recommenced EEO counseling at a point prior to the issuance of the Notice.  Horace H. v. Dep’t of Army, EEOC Appeal No. 2020000050 (Dec. 10, 2019).

Agency Improperly Issued Appeal Rights to the MSPB.  Complainant filed a formal complaint alleging discrimination and harassment, including being notified that she would be downgraded, moved or dismissed.  An AJ subsequently dismissed Complainant’s complaint as a mixed case, reasoning that Complainant’s claim involved an issue of constructive discharge.  The AJ instructed the Agency to issue a final decision with appeal rights to the Merit Systems Protection Board (MSPB), and noted that in the event that MSPB ruled that it lacked jurisdiction, Complainant would have 30 days from receiving notice from the MSPB to refile her request for a hearing before the EEOC.  The Agency then issued a final decision in September 2018, finding no discrimination, with appeal rights to the Commission.  Complainant, however, filed an appeal to the MSPB alleging that she was constructively discharged, and the MSPB dismissed Complainant’s claim for lack of jurisdiction.  On appeal, the Commission vacated the Agency’s final decision. The Commission noted that when the MSPB finds that is does not have jurisdiction over the matter, the burden is on the Agency to recommence processing of the mixed-case complaint as a non-mixed case EEO complaint.  Since the Agency’s EEO office erred by giving Complainant appeals rights to the Commission instead of the MSPB, the Commission ordered the Agency to file a request for a hearing on behalf of Complainant, and stated that the request should be deemed timely.  Brandee B. v. Dep’t of Agric., EEOC Appeal No. 2019000663, (Oct. 10, 2019).

Conflicts of Interest

Conflicts of Interest Discussed.  The Commission previously affirmed the Agency’s finding of no discrimination, but determined that the Agency’s Office of General Counsel (OGC) acted improperly during the pre-hearing stages of the EEO process by assisting management officials and other witnesses in the preparation of their affidavits.  The decision concluded that OGC’s involvement in the pre-hearing stages constituted egregious conduct warranting sanctions.  The Commission subsequently granted the Agency’s request for reconsideration and clarified its stance on the “interference principle” regarding federal agencies’ responsibility to avoid conflicts of interest with respect to the role of agency OGC.  The Commission stated, in pertinent part that the Commission’s Management Directive for 29 C.F.R. Part 1614 (MD-110) permits Agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office.  This means that Agency defense counsel may assist Agency management officials and witnesses in the preparation of their affidavits during the investigative stage.  However, Agency defense counsel may not instruct officials to make statements that are untrue or make changes to any affidavit without the affiant's approval.  Agencies may also be assisted by Agency defense counsel in informal resolution talks during the counseling stage so long as Agency defense counsel suggests, but does not dictate, settlement terms.  The Commission concluded that sanctions were not warranted under the circumstances of the case and vacated those provisions in the appellate Order.  Annalee D. v. Gen. Serv. Admin., EEOC Request No. 2019000778 (Nov. 27, 2019).

Dismissals

(See also by category, this issue.)

Complaint Improperly Dismissed for Abuse of Process.  Complainant filed two formal EEO complaints raising issues of discrimination and hostile work environment, specifically ongoing harassment, a nonselection and performance appraisal, and the denial of awards and a transfer.  The complaints were ultimately consolidated at the hearing stage, and the AJ granted the Agency’s motion to dismiss the matters for abuse of process.  On appeal, the Commission found that the dismissal was improper.  While the record showed that Complainant filed 20 complaints over 14 years, the Commission has stated that filing numerous complaints alone is not a sufficient basis for finding abuse of process, and the number of complaints filed by Complainant was not extraordinary.  Further, the Commission found that the AJ’s analysis regarding the quality of the evidence provided by Complainant, who was not represented by an attorney, was relevant only to the determination of whether Complainant had proven her allegations of discrimination, and did not address whether the filing of the complaints amounted to an abuse of process.  Further, Complainant’s claim that she was denied official time was not sufficient to be considered an abuse of process.  Finally, while the Commission stated that Complainant’s comment expressing desire to “ruin” the careers of management officials was intemperate, it was insufficient to overcome the Commission’s strong policy of preserving a complainant’s EEO rights.  A fair reading of the record showed that Complainant genuinely believed she was a victim of discrimination and could remedy her situation through the EEO process.  Kenyatta S. v. Envtl. Prot. Agency, EEOC Appeal No. 2019003653 (Nov. 8, 2019).

Complaint Improperly Dismissed as Untimely and for Failure to State a Claim.  The Commission found that the Agency improperly dismissed Complainant’s complaint for being untimely filed, and certain allegations for failure to state a claim.  While the Agency asserted that Complainant received a Notice of Right to File a Formal Complaint on March 28, 2019, there was no mail receipt confirmation showing that Complainant received the Notice on that date.  The record did, however, include a mail receipt showing that a document was issued to Complainant on March 28, and received by Complainant on April 8, the date Complainant stated he received the Notice.  Further, the record contained documentation showing that the Agency received an overnight delivery from Complainant on April 12, which corroborated Complainant’s assertion that he mailed his complaint to the Agency on April 11.  Therefore, the Commission found that Complainant timely filed his formal complaint.  The Commission also found that the Agency improperly dismissed three allegations for failure to state a claim, because those matters were part of Complainant’s claim of ongoing harassment.  Elias R. v. Dep’t of the Army, EEOC Appeal No. 2019005422 (Nov. 6, 2019).

Complaint Alleging Compensation Discrimination Improperly Dismissed for Untimely EEO Contact & Failure to State a Claim.  Complainant filed a formal EEO complaint alleging that he was discriminatorily denied overtime pay on days he worked more than eight hours, and incorrectly paid on holidays.  The Commission found that the Agency improperly dismissed Complainant’s claim for untimely EEO contact and failure to state a claim.  The Commission found that Complainant was essentially raising a discriminatory compensation claim pertaining to overtime and holiday pay, which set forth an actionable claim.  The Agency’s assertions that Complainant was paid in accordance with union agreements and the Fair Labor Standards Act addressed the merits of the complaint and were irrelevant to the procedural issue of whether Complainant stated such a claim.  Further, the Lilly Ledbetter Fair Pay Act provides that, with respect to discrimination in compensation, an unlawful employment practice occurs each time wages, benefits, or other compensation is paid.  Therefore, Complainant timely initiated EEO contact within 45 days of his discriminatory pay claim.Winford M. v. U.S. Postal Serv., EEOC Appeal No. 2019005757 (Nov. 5, 2019).

Complaint Improperly Dismissed as Stating the Same Claim Raised Previously.  The Commission found that the Agency failed to support its decision dismissing Complainant’s complaint on grounds that it stated the same claim as that raised in a prior complaint.  The Agency failed to provide copies of the purported prior complaints, or documents related to the complaints such as EEO counseling reports.  Therefore, the matter was remanded for processing.Heath P. v. U.S. Postal Serv., EEOC Appeal No. 2019003503 (Oct. 25, 2019).

Complaint Improperly Dismissed for Raising Matters Previously Addressed in the Grievance Process. The Commission found that the Agency improperly dismissed Complainant's discrimination claims when it determined that Complainant had previously raised the claims in a negotiated grievance procedure.  Although the Commission’s regulations allow agencies to dismiss complaints where a complainant has first elected to pursue the allegations under a negotiated grievance procedure, there was no evidence in this case that Complainant’s claim was covered by a collective bargaining agreement that permitted the adjudication of allegations of discrimination.  Therefore, the Commission found that the Agency failed to support its dismissal decision and that Complainant’s initial pursuit of the administrative grievance process concerning his performance appraisal was not a bar to his EEO complaint.  Alfredo S. v. Dep’t of the Army, EEOC Appeal No. 2019000418 (Oct. 8, 2019)Additional Decisions Addressing Dismissals for Raising Matters Addressed in the Grievance Process Include:  Bret E. v. Dep’t of Transp., EEOC Appeal No. 2019004190 (Oct. 25, 2019) (while the Agency provided a copy of the collective bargaining agreement showing that allegations of discrimination may be raised in the grievance process, the record did not contain a copy of the grievance, a decision on the grievance, or any other information regarding the grievance, and, as such, the Agency failed to support its assertion that Complainant raised the same claim in his EEO complaint as that raised in the grievance).

Complaint of Ongoing Harassment Improperly Dismissed for Failure to State a Claim and Untimely EEO Contact.  The Commission found that the Agency improperly dismissed Complainant’s complaint.  In addition to the 12 incidents identified by the Agency, the formal complaint and EEO Counselor’s report reflected a more detailed series of alleged incidents that comprised a claim of ongoing harassment.  Further, Complainant asserted that she was forced to retire due to the harassment.  Therefore, Complainant stated a viable claim.  Given that many of the alleged incidents occurred within the 45-day period preceding Complainant’s EEO Counselor contact, the Commission also found that Complainant’s entire harassment claim was timely.  Glenna O. v. Dep’t of the Army, EEOC Appeal No. 2019005222 (Oct. 25, 2019).

Findings on the Merits and Related Decisions

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

Under the Rehabilitation Act

Disability Discrimination Found.  Complainant, a Mail Handler, filed an EEO complaint alleging, among other things, that she was discriminated against on the basis of disability when she worked at a higher level but was denied the higher-level pay.  On appeal, the Commission found that the Agency discriminated against Complainant as alleged.  The Agency acknowledged that Complainant was an individual with a disability, and the Commission determined that Complainant was offered, and accepted a Clerk position within her restrictions.  The Agency did not dispute that Complainant was qualified for the Clerk position.  According to the record, Complainant’s manager stated that he was instructed by the Plant Manager to pay limited duty employees the same level as their base pay because if they were paid more “that would [be] encouraging others to get hurt on the job to get more pay.”  Therefore, the Commission found that the Agency paid Complainant only her base pay (and not the higher-level pay) because of her medical restrictions.  The Commission noted that the Agency did not identify which if any higher-level duties that Complainant was not performing.  The Agency was ordered, among other things, to pay Complainant any back pay and other benefits due, and investigate her claim for compensatory damages.  Annalee D. v. U.S. Postal Serv., EEOC Appeal No. 0120180911 (Oct. 30, 2019).

Denial of Reasonable Accommodation Found.  Complainant, a Supervisory Maintenance Mechanic, filed an EEO complaint alleging that he was denied reasonable accommodation when the Agency made him work the night shift, despite medical restrictions limiting him to the morning shift.  Following a hearing, the AJ found that, although Complainant established that he was an individual with a disability, he nevertheless did not establish a prima facie case of discrimination. The AJ found that Complainant did not connect his disability with the actions of his supervisor, and that similarly-situated employees were not treated differently than he was, as no one was given a reasonable accommodation for shift work at the time.  On appeal, the Commission found that Complainant was denied a reasonable accommodation for his disability as alleged.  The Commission specifically noted that Complainant presented the Agency with more than enough medical documentation connecting his disability with the requested accommodation.  The Commission also noted that the Agency had accommodated Complainant with day-shift work the previous year, which weakened its argument that Complainant’s medical documentation was insufficient, and the Agency did not assert that continuing Complainant’s accommodation would have resulted in an undue hardship.  The Commission ordered the Agency, among other things, to conduct a supplemental investigation of Complainant’s entitlement to compensatory damages, and provide training to Complainant’s supervisor.  The Commission affirmed the AJ’s finding that Complainant failed to prove his claim of harassment.  Wade K. v. Dep’t of Health & Human Serv., EEOC Appeal No. 0120180367 (Sept. 25, 2019).

Under Title VII

Denial of Religious Accommodation Found.  Complainant advised her supervisors that she would not work Sundays due to her religious beliefs, and did not report to work on Sunday, December 3 and 10, 2017.  Management issued Complainant a seven-day suspension (reduced to Letter of Warning) for the December 3rd absence and a 14-day suspension (reduced to a seven-day suspension) for the December 10th absence.  Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against her on the bases of religion (Christian) when she was issued the suspensions.  On appeal, the Commission found that it was undisputed that Complainant had a bona fide religious belief and she repeatedly requested to have Sundays off to observe her religion, which management denied.  Complainant’s supervisor (S1) explained that three employees were generally scheduled to work on “Amazon Sunday,” and each employee was given the fourth Sunday off.   S1 stated, without explanation, that if Complainant was not required to conform to Sunday delivery, there would not be anyone available to carry items for the Amazon Sunday program.   The Commission found that the Agency did not show that it made a good faith effort to reasonably accommodate Complainant's request.  S1 testified that he did not explore any type of accommodation for Complainant that would address her inability to work on Sundays.  Furthermore, the Commission found that there was insufficient evidence to demonstrate that it would have been an undue hardship to grant Complainant’s religious accommodation request.  The record lacked any documentation indicating the actual staffing or scheduling needs of the Amazon Sunday program.  As a result, the Commission found that the Agency violated Title VII when Complainant was disciplined for her refusal to work on Amazon Sundays.   The Commission affirmed the Agency’s finding that Complainant failed to prove her claim regarding an additional 14-day suspension.  The Agency was ordered, among other things, to provide Complainant a religious accommodation; remove and expunge all disciplinary actions and records that were related to Complainant’s failure to work on Sundays; restore any leave Complainant was forced to use to avoid working Sundays; and conduct a supplemental investigation into Complainant’s entitlement to compensatory damages.  Heidi B. v. U.S. Postal Serv., EEOC Appeal No. 0120182601 (Nov. 8, 2019).

Under Multiple Bases

National Origin & Age Discrimination Found When Agency Terminated Complainant’s Candidacy for a Position.  The Commission found that the Agency discriminated against Complainant when it terminated his candidacy for a Diplomatic Security Foreign Service Special Agent position because his score on an oral and written assessment was below the cut-off level. Agency officials averred that they asked all candidates the same questions and rated them according to pre-determined factors.  No one identified what the factors were, however, and Agency officials refused to provide information about the assessment questions and materials.  The EEO Investigator asked the Agency officials to provide the names of and pertinent information about the applicants who were found suitable to continue their candidacy for the position and information regarding the applicants whose candidacy was terminated, or not terminated, for the same reasons as Complainant’s candidacy.  The Agency stated only that it had assessed 726 candidates, that 272 passed the assessment, and that the candidates who passed as well as those who did not pass the assessment “ranged from all ages, races, and gender[s].”  Based on the Agency’s statement regarding the candidate pool, the Commission found that Complainant established prima facie cases of discrimination based on race/national origin and age.  The Commission further found that the Agency officials’ vague, conclusory statements about the assessment process did not explain why the Agency terminated Complainant’s candidacy.  The Agency provided no information about the pre-determined factors, the questions posed to the candidates, Complainant’s answers to the questions, how the reviewers scored Complainant’s answers, or the bases for the scores given to Complainant and the other candidates.  The Commission ordered the Agency to change Complainant’s assessment results to a passing score and to process his candidacy in the same manner that it processed the candidacies of other applicants who received passing scores.  Leon B. v. Dep’t of State, EEOC Appeal No. 0120182144 (Nov. 5, 2019).

Remedies

(See also “Findings on the Merits” in this issue.)

Remedies Discussed.  The Commission previously found that the Agency discriminated against Petitioner based on his disability, and ordered the Agency to, among other things, offer Petitioner reinstatement with back pay and benefits, and investigate Complainant’s claim for damages.  Petitioner subsequently filed a petition for enforcement, asserting that the Agency failed to provide him with all the relief to which he was entitled.  The Commission noted that back pay should include all forms of compensation and must include privileges of employment to which Petitioner would have been entitled but for the discrimination.  In this case, Petitioner’s back pay award would include mileage to reimburse commuting costs if the individual who was hired to replace Petitioner received such a benefit as a monetary value, that is, the use of a car and/or reimbursement or direct payment for the cost of gas to drive to/from work.  The Commission also stated that, based on management’s statements, Petitioner would have been eligible for promotion to the GS-12 level in December 2018, assuming he had the requisite knowledge, skills, and abilities.  The Commission rejected the Agency’s assertion that Petitioner did not have the necessary prior experience or training, stating that if that were true, the Agency would not have placed Petitioner into a GS-11 position which also required prior experience and training.  The Commission also noted that, when determining the proper grade level for reinstatement, the Agency must consider the grade level obtained by similarly situated employees who were not subjected to discrimination.  Since it was unclear from the record when Petitioner was reinstated, the Commission ordered the Agency to determine whether Petitioner would have received a promotion to the GS-12 grade level if he had not been subject to discrimination, and place him at the appropriate level considering the grade level he would have achieved assuming he started the position on the date of the discrimination.   Petitioner would not be entitled to payment for annual or sick leave, because he remained a federal employee during the back pay period and there was no variation in leave accrual rates based upon a federal employee’s grade level.  Petitioner was also not entitled to a higher performance rating, as there was no evidence he would have received one absent the discrimination.  Finally, the record failed to show that the Agency adequately investigated Petitioner’s claim for damages, and ordered the Agency to conduct a supplemental investigation into that matter.  Mark D. v. Dep’t of Justice, EEOC Appeal No. 2019001549 (Oct. 24, 2019).

Settlement Agreements

Settlement Agreement Void: No Meeting of the Minds.  Complainant and the Agency entered into a settlement agreement providing, in pertinent part, that the Agency’s detail rotation list would be adhered to “as written in the LMOU,” and Complainant would be afforded a minimum of nine weeks of detail prior to the use of the detail rotation list.  On appeal, the Commission found that the provisions were too vague and general to have allowed for a meeting of the minds between the parties.  The Commission noted that while “LMOU” may stand for “Local Memorandum of Understanding,” the settlement agreement did not expressly specify which union, date, or geographic region the LMOU adhered to with regard to the detail rotation list.  The Agency asserted that there was no agreement between the union and Complainant’s facility on this issue.  Complainant, however, stated that management told him at the time of the agreement that the LMOU addressed the matter.  Therefore, the Commission found that the agreement was void for vagueness.  Marvin D. v. U.S. Postal Serv., EEOC Appeal No. 2019004445 (Oct. 3, 2019).

Settlement Agreement Void.  Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that Complainant could ask for help and seek clarity regarding work assignments without being judged.  The agreement stated that, to the extent possible, Complainant should seek clarification within 24 hours of receipt of an assignment and should “be proactive and use all resources available” before reviewing documents with management.  Complainant alleged that the Agency breached the settlement agreement, citing several instances where she felt demeaned by her supervisor’s reactions when she asked a question.  On appeal, the Commission found the settlement agreement was void for vagueness.  Specifically, the agreement included preconditions for Complainant being allowed to ask questions, and did not specify what the cited provision meant.  The Commission also noted that the agreement did not provide Complainant with any monetary benefits or other benefits beyond what is already expected in the workplace.  Since the Agency did not incur any sort of legal detriment, the Commission set aside the settlement agreement for lack of consideration, and directed the Agency to reinstate Complainant’s complaint from the point processing ceased.  Natacha M. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019003184 (Oct. 1, 2019).

No Breach Found.  Complainant and the Agency entered into a settlement agreement in October 2012 that provided, in pertinent part, that the Agency would allow Complainant to teach one American Sign Language (ASL) course per year.  Complainant alleged that the Agency breached the settlement agreement when she was told that she needed supervisor approval to teach the course, and when she was not permitted to teach the course in 2017.  On appeal, the Commission found that the Agency did not breach the agreement.  The Commission noted that Complainant taught an ASL class each year from 2013 through 2016, and  ongoing attempts were made from May through September 2017 to schedule an ASL class for Complainant to teach.  Further,  Complainant continued to push back the date or failed to respond to the Agency’s inquiries.  Complainant’s window to teach the course closed on September 21, 2017, when  Complainant was placed on administrate leave, and Complainant ultimately resigned from the Agency on October 17, 2017,  Complainant knew or should have known at that time that she would not be teaching an ASL course in 2017, and did not timely notify the Agency’s EEO office of the alleged breach.  Nevertheless, the Commission found that Complainant’s resignation terminated the Agency’s obligation to fulfill the settlement agreement. Judie D. v. Nuclear Regulatory Comm’n., EEOC Appeal No. 0120182763 (Sept. 30, 2019).

Stating a Claim

Complaint Improperly Dismissed.  Complainant alleged that the Agency discriminated against her when it terminated her from employment during her probationary period.  The Agency dismissed the complaint for failure to state a claim, finding that Complainant did not raise a covered basis in the formal complaint.  On appeal, the Commission noted that complainants are given liberal latitude to clarify the bases of discrimination in their complaints, and to add bases of discrimination after filing their complaints.  While Complainant clearly did not check a box for covered bases on the formal complaint form, Complainant raised covered bases with the EEO Counselor, alleging that her removal was based on race, religion and sex.  Further, the Agency’s Notice advising Complainant of her right to file a complaint specifically referenced race, religion, and sex as bases for the alleged discrimination.  Therefore, the Agency improperly dismissed the complaint.  Doria D., v. U.S. Postal Serv., EEOC Appeal No. 2019005199 (Nov. 15, 2019).

Agency Not Considered Joint Employer.  Complainant worked for staffing firm (Staffing Firm 1) serving the Agency as a Personal Computer Technician.  Staffing Firm 1 was a subcontractor of Staffing Firm 2, which had an onsite supervisor who worked with Complainant, interacted with her, and was her direct supervisor (S1).  The Agency reported to Staffing Firm 1 and/or 2 that in a short amount of time, Complainant committed three security breaches when she left her Common Access Cards (CAC) unattended. A CAC gives the possessor access to classified information. The Agency also reported that the lanyard with the CAC contained a key fob, which gives the possessor access to the numerous buildings and the server room. Complainant conceded she committed two of these security breaches, including leaving her CAC cards and key fobs in her car, which were stolen when her car was broken into. Complainant contended that she was disparately treated when the Agency reported her security breaches to her staffing firm, and alleged that the Agency discriminated against her when she was terminated shortly after the Agency reported the security breaches.  The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency and was terminated by Staffing Firm 1.  The Commission found that because Complainant’s complaint concerned her termination, the control factor of the Agency having de facto ability to cause her to be terminated was especially significant.  However, Complainant did not contend that the Agency told Staffing Firms 1 and/or 2 that she was no longer wanted or allowed to serve the Agency, and there was no evidence of this in the record.  The Commission found that it was more likely that, because of the security breaches, Staffing Firm 2 made an independent decision to direct Staffing Firm 1 to remove Complainant from the contract, resulting in her termination.  Therefore, the record did not show that the Agency had de facto power to terminate Complainant, and hence it did not have sufficient control to be deemed her joint employer.   Zenobia K. v. Dep’t of the Army, EEOC Appeal No. 2019001706 (Nov. 21, 2019); Additional Decisions Addressing the Issue of Joint Employment Include:  Ciera B. v. Dep’t of Def., EEOC Appeal No. 2019001426 (Nov. 29, 2019) (while Complainant, a bagger, had access to the Agency Commissary so she could bag the purchases of customers and bring them to their cars, Complainant was chosen by a head bagger who was an independent contractor.  Head baggers also set her tour, schedule, and approved her requests for time off, and her compensation consisted of voluntary tips from customers.  Complainant acknowledged that her first-line supervisor was a contractor, she never was evaluated by the Agency, the Agency did not reimburse her for expenses, she did not work for the Agency, and she was an independent contractor. The Commission found that the Agency did not have sufficient control over her service to qualify as her employer for the purposes of the EEO complaint process);  Felicidad S. v. Dep’t of Def., EEOC Appeal No. 2019003976 (Nov. 6, 2019) (while Complainant worked at Agency facilities for nine years, and the Agency exerted some control over Complainant when it revoked her access to its worksite, the evidence of record indicated that the Agency did not exert sufficient control to be considered a joint employer.  Complainant identified herself as a contractor, and acknowledged that contract supervisors controlled the means and manner of her job.  The contractor also offered Complainant a severance package);  Joanna G. v. Dep’t of the Navy, EEOC Appeal No 2019003599 (Oct. 30, 2019) (while the Agency provided office space, equipment, and access to Agency networks, the contractor could change its staff, and set the work hours.  In addition, Complainant’s immediate supervisor was a contract employee and the contractor provided pay, benefits, and tax withholdings.  The Commission also noted the relatively short length of the work relationship and the intent of the parties in finding that the Agency did not exert sufficient control over Complainant to be considered a joint employer); Archie D. v. Tenn. Valley Auth., EEOC Appeal No. 2019003604 (Oct. 30, 2019) (the contractor decided where to assign Complainant, and Complainant alleged that a contract supervisor created a hostile work environment.  Complainant did not dispute that he was supervised by employees of the contractor, and the record showed that Complainant considered himself to be a contractor.  Thus, the Agency properly dismissed the complaint).

Complainant Stated Viable Claim of Disability Discrimination.  The Commission found that the Agency improperly dismissed Complainant’s claim of disability discrimination.  Complainant alleged that he was ridiculed by his supervisors and co-workers because of his disability and was the subject of jokes and sarcastic remarks.  Complainant also alleged that management failed to provide him with appropriate medical assistance on one occasion, and stated, on appeal, that he was denied reasonable accommodation.  By alleging a pattern of disability-based harassment, Complainant sufficiently asserted a viable claim of hostile work environment that required further investigation.  Dewitt L. v. Dep’t of the Army, EEOC Appeal No. 2019004922 (Nov. 6, 2019).

Agency Improperly Defined Claim of Harassment as Distinct Incidents & Dismissed Complaint for Failure to State a Claim.  The Commission found that the Agency erred in defining Complainant’s claim as concerning only two incidents relating to a work assignment and training.  A fair reading of the formal complaint and the related EEO counseling report showed that Complainant alleged harassment, and the two incidents were cited as examples thereof.  Complainant also raised other incidents, including negative comments made by her supervisor.  By alleging a pattern of harassment, Complainant stated a cognizable claim under the EEOC Regulations and the Agency improperly dismissed her complaint.  Simonne J. v. Dep’t of Transp., EEOC Appeal No. 2019003194 (Nov. 5, 2019).   Additional Decisions Addressing Viable Harassment Claims Include:  Delphia F. v. U.S. Postal Serv., EEOC Appeal No. 2019004004 (Nov. 7, 2019) (a fair reading of Complainant’s formal complaint and the EEO counseling report indicated that Complainant alleged an ongoing pattern of harassment, and not merely the two incidents identified by the Agency.  Complainant alleged that she was subjected to harassment by two management officials “almost daily,” and treated differently than her male co-workers.  Therefore, Complainant stated a cognizable claim under the Commission’s regulations); Minh G. v. Dep’t of the Army, EEOC Appeal No. 2019005009 (Oct. 31, 2019) (the Agency erroneously defined Complainant’s claim as consisting solely of one incident, while the EEO counseling report made it clear that Complainant was alleging that the same co-worker had been making racist comments and gestures for years and management failed to take effective action to stop the incidents. A fair reading of the complaint, in conjunction with the EEO counseling report showed that Complainant raised a viable claim of harassment).

Complaint Stated Viable Claim of Retaliation.  Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity.  The Agency dismissed Complainant's complaint for failure to state a claim, reasoning that the alleged incidents were not reasonably likely to deter Complainant or others from engaging in protected activity.  On appeal, the Commission found that the Agency’s dismissal was improper.  Complainant alleged that his former supervisor (FS), who he named as a responsible management official in a prior EEO case, made disparaging comments about him at a training, and also commented to a supervisor at Complainant’s current facility that he heard Complainant was continuing to cause trouble.  Complainant alleges that FS was intentionally looking to damage his reputation at his new facility.  The Commission found that these alleged incidents were reasonably like to deter Complainant or others from engaging in protected activity.  Elroy K. v. U.S. Postal Serv., EEOC Appeal No. 2019005742 (Nov. 6, 2019).

Complainant Stated Viable Claim of Harassment & Retaliation.  Complainant filed a formal EEO complaint alleging that the Officer-in-Charge (OIC) harassed and retaliated against him.  A review of the complaint and pre-complaint documents revealed that Complainant asserted that the OIC excessively scrutinized his work, told him to “clock out,” threatened to have the police remove him from the workroom floor, and questioned him regarding the amount of time it took to perform his route.  Viewing the incidents collectively, the Commission found that Complainant set forth an actionable claim of harassment.  Further, adverse actions need not qualify as “ultimate employment actions,” or materially affect the terms and conditions of employment to state a viable claim of retaliation.  Therefore, the Agency’s dismissal was improper.  Toney E. v. U.S. Postal Serv., EEOC Appeal No. 2019005346 (Nov. 5, 2019).

Complaint Stated Viable Claim of Religious Harassment.  Complainant alleged that the Agency discriminated against him on the basis of his religion when the Postmaster accused Complainant of requesting medical leave to miss work on Sundays in order to attend church, threatened to send Postal Inspectors to Complainant’s church to verify his attendance, gave him a pre-disciplinary interview, and warned him that he could be fired for missing work to attend church, and made a negative comment about Complainant attending church.  The Commission reversed the Agency’s dismissal of the complaint for failure to state a claim, finding that, when viewing all of Complainant’s allegations together and assuming they occurred as alleged, Complainant stated a viable claim of discriminatory hostile work environment.  The actions involved negative comments and threats by the Postmaster about Complainant’s religious belief that he should attend church on Sundays.  The Commission noted that it was unclear whether Complainant explicitly requested a religious accommodation seeking to change his work schedule to be off on Sundays.Ricky S. v. U.S. Postal Serv., EEOC Appeal No. 2019005078 (Sept. 30, 2019),

Complaint Properly Dismissed as Collateral Attack on Another Proceeding.  The Commission affirmed the Agency’s dismissal of Complainant’s complaint raising allegations concerning two Letters of Demand for failure to state a claim.  The Commission noted that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding, and Complainant’s allegations were related to a monetary dispute covered by the Debt Collection Act.  Therefore, Complainant should have raised her challenges under the Debt Collection Act process.  Theresia B. v. U.S. Postal Serv., EEOC Appeal No. 2019003473 (Oct. 22, 2019)Additional Decisions Addressing Claims Raising Collateral Attacks on Other Proceedings Include:  Corrina M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019005336 (Nov. 6, 2019) (Complainant alleged discrimination related to the processing of her OWCP claim, and, therefore, she must raise those matters with the Department of Labor, not within the EEO complaint process.  Complainant must also raise any allegations concerning a violation of the Health Insurance Portability and Accountability Act (HIPPA) under that process).

Allegation that a Co-worker Filed EEO Complaint Against Complainant Failed to State Viable Claim.  Complainant alleged that the Agency subjected him to reprisal when he was informed that a co-worker filed a hostile work environment claim against him, and he was not given the opportunity to defend himself. The Commission affirmed the Agency’s final decision dismissing the claim for failure to state a claim.  The Commission has previously held that a complainant fails to state a viable claim of retaliation when an agency is investigating allegations of discrimination that have been made by another employee who has named the complainant as the perpetrator.  Without more, this principle applied squarely to Complainant’s complaint.  Colby P. v. Dep’t of the Treasury, EEOC Appeal No. 2019001963 (Oct. 11, 2019).

Complaint Unrelated to Federal Employment Properly Dismissed.  Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and age, when it requested additional medical information in support of his application for a student pilot certification.  The Commission affirmed the Agency’s dismissal of the complaint for failure to state a claim.  The Commission’s jurisdiction is limited to employment discrimination, and Complainant failed to show a harm or loss with respect to federal employment.  Howard G. v. Dep’t of Transp., EEOC Appeal No. 2019004213 (Sept. 30, 2019).

Summary Judgment

Summary Judgment Affirmed.  Complainant filed a complaint alleging that the Agency discriminated against her when she was not selected for a Labor Liaison position. The AJ issued a decision without a hearing finding that the Complainant failed to prove that she was discriminated against, and the Commission affirmed the decision on appeal.  Complainant argued that there was a genuine issue of material fact at issue, specifically, that she was better qualified than the selectee because she ranked higher on the best qualified list.  The Commission found, however, that the fact that Complainant was ranked higher on the best qualified list, by itself, did not create a dispute because the ultimate selection decision was not based solely on those rankings.  Management explained that the selectee was chosen because she interviewed well, and had extensive experience working with labor group representatives, which was directly related to the position.  Therefore, the Commission found that the issuance of a decision without a hearing was appropriate.  Lidia B. v. Dep’t of Labor, EEOC Appeal No. 0120182004 (Oct. 11, 2019).

Summary Judgment Affirmed.  The Commission affirmed the AJ's issuance of a decision without a hearing finding that Complainant failed to prove his claims of discrimination.  The Commission concluded that it was appropriate for the AJ to have issued a decision without a hearing, because Complainant did not produce evidence which would create a genuine dispute of material fact.  Even assuming Complainant established a prima facie case of discrimination, his claims ultimately failed because the Agency articulated a legitimate non-discriminatory reason for terminating his employment.  Specifically, Complainant failed to follow procedures for protecting personally identifiable information on four occasions during a three-month period.  Other than Complainant's own subjective belief, he provided no evidence that he was treated differently than others under similar circumstances because of his protected statuses.  Complainant alleged that another similarly situated employee who was also on probation was treated more favorably; however, the record indicates that the other employee did not have any instances of failing to protect personally identifiable information.  The Commission determined that Complainant failed to prove  that he was subjected to discrimination, or that he had been subjected to a hostile work environment.  Bryan Y. v. Soc. Sec. Admin., EEOC Appeal No. 2019000531 (Oct. 1, 2019).

Summary Judgment Reversed.  The Commission vacated the AJ’s decision on summary judgment finding no discrimination.  The Commission found that the record was inadequate to render a decision and that there were genuine issues of material fact in dispute.  Complainant alleged the Agency’s policy of using salary history to determine the starting salaries of external hires caused a disparate impact on females and African Americans.  As part of discovery, Complainant requested information on the pay policy for all external hires between 2013 and the present as well as information on their former salaries, starting salaries, and their race, color, and sex at the time of hire.  The Agency objected, and Complainant filed a Motion to Compel, which the AJ denied, having apparently mistaken one interrogatory requesting information on all external hires between 2013 and 2015 with a similar interrogatory requesting different information for external hires to a certain position.  The Commission found the information requested in the denied interrogatory was relevant to Complainant’s disparate impact claim and the AJ improperly denied this discovery request.  The Commission concluded that the record must be further developed through additional discovery and a hearing to determine exactly what the Agency's policies and practices were for using salary history in determining the starting salaries of external hires, and the impact those policies and practices had on female and African-American employees.  Nancy D. v. U.S. Postal Serv., EEOC Appeal No. 0120180441 (Dec. 13, 2019).

Summary Judgment Reversed.  Complainant alleged she was discriminatorily removed from her work area and subject to a hostile work environment following a verbal altercation with a contract driver.  According to Complainant, when she instructed a contract driver he could not unload his shipment because it was improperly loaded and posed a safety risk to her staff, the driver became angry, entered a restricted area, and threatened her.  Complainant reported the incident to her manager who investigated the matter and moved Complainant to another location where Complainant would not have to interact with contract drivers or the public.  The AJ issued a decision on summary judgment finding no discrimination.  The AJ concluded that the driver “was simply attempting to make a delivery to the Agency and was inquiring why he was being sent away without accomplishing the job.”  On appeal, the Commission noted that the record did not contain any statement from the driver and although the AJ concluded that “it was Complainant’s obstructive behavior that resulted in interfering with the driver’s ability to deliver his load to the Agency,” four witnesses made statements that directly contradicted this finding and corroborated Complainant’s version of the incident.  Further, while the manager stated in her affidavit that she reassigned Complainant because Complainant acted “unprofessionally and improperly,” the record showed that the manager did not witness the alleged harassing incident with the driver but relied on the statements of witnesses in making her determination.  The Commission found that the evidence in the record directly contradicting the manager’s stated reasons for her decision to reassign Complainant raised both a credibility issue and issues of material fact that required a hearing and strident cross-examination.  Johana S. v. U.S. Postal Serv., EEOC Appeal No. 0120182005 (Dec. 13, 2019).

Summary Judgment Reversed.  Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment on the bases of sex (male/sexual orientation), and in reprisal for prior protected EEO activity.  Specifically, Complainant asserted that a co-worker yelled at him; made comments such as “This is a plantation ... they only hire whites and light skins... they always get someone big and Black to intimidate us;” and used the n-word more than once when talking to Complainant.  Complainant stated that another co-worker referred to him using a slur related to his sexual orientation.  Complainant also asserted that he was issued a three-day suspension, denied the proper tools to perform his assigned duties, and charged with being absent without leave and leave without pay.  An AJ granted the Agency's, motion for a decision without a hearing and found that Complainant failed to prove his claims of discrimination and harassment.  On appeal, the Commission found that a decision without a hearing was inappropriate because the record was inadequately developed, and there were genuine issues of material fact.  Specifically, the record did not contain statements from any of the named co-workers or management officials.  In addition, the record contained contradictory witness statements.  Therefore, a hearing was necessary to determine credibility.  Additional information was also needed to determine whether Complainant was subjected to a hostile work environment.  Accordingly, the complaint was remanded for a hearing.  Lynwood R., v. Dep't of Veterans Affairs, EEOC Appeal No. 0120171820 (Sept. 30, 2019).

Timeliness

Complainant Timely Initiated Counseling within 45 Days of Effective Date of Action.  The Commission found that the AJ improperly dismissed Complainant’s complaint for failure to timely initiate EEO contact.  According to the record, Complainant initiated EEO contact on August 25, 2017, after her July 2017 termination.  While Complainant may have learned that the Agency intended to terminate her in December 2016, the record showed that Complainant’s separation from employment was effective on July 18, 2017.  Therefore, Complainant timely initiated EEO contact within the 45-day limitation period.  Shaniqua S. v. U.S. Postal Serv., EEOC Appeal No. 2019005726 (Nov. 6, 2019).

Complainant Timely Initiated Claim of Harassment.  The Agency dismissed Complainant’s complaint for failure to timely contact an EEO Counselor, asserting that Complainant learned she was being investigated by the Office of Inspector General and reassigned more than 45 days prior to initiating EEO contact.  The Commission reversed the Agency’s decision on appeal, stating that Complainant was alleging an ongoing claim of harassment/hostile work environment.  Specifically, Complainant asserted that her duties continue to change, and she was not allowed to telework or attend monthly Executive Assistant award meetings.  The alleged incidents were ongoing and continued up until the 45 days preceding her EEO contact.  Therefore, Complainant’s entire hostile work environment claim was timely.  Queen L. v. Dep’t of Justice, EEOC Appeal No. 2019004002 (Oct. 3, 2019).

Agency Failed to Show that Complainant Was Aware of Limitation Period.  Complainant filed a formal complaint alleging that the Agency subjected her to discrimination when, on December 27, 2018, she was forced to resign in lieu of termination (constructive discharge).  Complainant asserted that when she had to take time off because of her brother’s terminal illness, she was told by her supervisor that she could either resign or be terminated.  The Agency dismissed the complaint for untimely EEO Counselor contact, asserting that Complainant did not initiate contact with an EEO Counselor until February 27, 2019, which is beyond the 45-day limitation period.  The Agency provided a sworn affidavit indicating that an EEO poster with the appropriate time limits for seeking EEO counseling and contact information was posted at the facility where Complainant was employed.  Complainant stated, however, that she did not see the poster because she was still at the training academy and, although she was assigned to the named facility, she never actually worked there.  On appeal, the Commission found that the Agency has not shown that Complainant was or should have been aware of the time limits for contacting an EEO counselor, or that EEO posters were displayed at the training academy.  Therefore, the Commission used its discretion to excuse Complainant’s delay in seeking contact with an EEO counselor within the required 45-day period.  Doria D. v. U.S. Postal Serv., EEOC Appeal No. 2019005073 (Sept. 30, 2019).

Claim Barred by Doctrine of Laches.  Complainant initiated EEO contact on March 1, 2019, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it terminated her from employment.  While Complainant indicated that she was told of her termination in January 2019, Complainant’s most recent personnel form showed that her last day in pay status was November 30, 2009, and correspondence relating to her OWCP claim indicated that her wage compensation benefits were  terminated by the Department of Labor in August 2015.  The Commission concurred with the Agency that Complainant’s claim was barred by the doctrine of laches, because she initiated EEO contact years after the alleged discrimination, and, as such, failed to diligently pursue her claim.  Bernardina N. v. U.S. Postal Serv., EEOC Appeal No. 2019005688 (Nov. 5, 2019).

Formal Complaint Timely Filed.  The Commission found that the AJ improperly dismissed Complainant’s formal complaint as untimely.  According to the record, Complainant received the notice of right to file a formal complaint on February 23, 2018, and filed her formal complaint on March 11, 2018.  Pursuant to the Commission’s regulations, when the last day of the applicable limitation period for filing a complaint falls on a Saturday, Sunday, or federal holiday, the period shall be extended to include the next business day.   In this case, the last day of the 15-day limitation period fell on a Saturday, and, as such, Complainant’s complaint was due on Monday, March 12.  As such, her formal complaint was timely filed.  Dionne W. v. Dep’t of the Treasury, EEOC Appeal No. 2019005917 (Nov. 7, 2019).

Agency Failed to Support Assertion that Complaint Was Untimely Filed.  Complainant filed a formal EEO complaint on May 29, 2019, alleging that the Agency subjected her to disability discrimination and retaliation.  The Commission found that the Agency improperly dismissed the complaint on grounds it was untimely filed.  According to the record, the EEO Counselor sent Complainant and her non-attorney representative a Notice of Right to File via email on May 13, 2019.  The email specifically provided that Complainant would have 15 days from the date she opened the email to file a formal complaint.  While Complainant’s representative indicated that she opened and read the email on the date it was sent, Complainant did not open and read the email until May 15.  The record did not contain a “read receipt” or other evidence showing when Complainant actually opened the email.  Therefore, the Agency failed to meet the burden of obtaining sufficient information to support a determination as to timeliness.  Since Complainant’s representative was not an attorney, the applicable time limitation began to run from the date Complainant received the Notice.  While the Agency also dismissed an allegation regarding a suspension on grounds that Complainant raised the matter in the grievance process, the record did not contain a copy of the relevant portions of the collective bargaining agreement showing that claims of discrimination were allowed to be raised in the negotiated grievance process.  Scarlet M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019005240 (Oct. 31, 2019).

Formal Complaint Timely Filed Based on Attorney’s Receipt of Notice of Right to File.  The Commission found that the Agency improperly dismissed Complainant’s complaint on grounds it was untimely.  While the Agency provided evidence that the Notice of Right to File was delivered to Complainant’s address of record on January 7, 2019, Complainant stated that he never received the Notice and the signature on the delivery receipt appeared different from Complainant’s signature on other documents of record.  Further, Complainant was represented by an attorney, and, as such, the timeframe for filing his complaint was based on the date of his attorney’s receipt of the Notice, not Complainant’s.  While the Agency asserted that Complainant did not provide notice of representation, the attorney met with Agency EEO officials when he represented Complainant during mediation.  Therefore, the Commission found that the Agency had sufficient notice that Complainant was represented by an attorney such that it was obligated to send the Notice to him.  The record showed that Complainant filed his complaint within 15 days of his attorney’s receipt of the Notice, and his complaint was therefore timely.  Orson R. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019005308 (Oct. 2, 2019).

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.)

Claims of Harassment and the Problem of Fragmentation

By: Robyn Dupont and Joseph Popiden

Introduction

The Commission has frequently addressed the issue of fragmentation of harassment claims, both in the context of dismissals for failure to state a claim and dismissals on the grounds of untimely EEO contact.  Fragmentation is the breaking up of a complainant's legal claim into separate factual allegations or incidents.  Hostile work environment claims are based on the cumulative effect of individual acts over a period of time.  An Agency should not ignore the “pattern aspect” of a harassment’s claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of.  Fragmented processing of a claim can compromise a complainant’s ability to present an integrated and coherent claim.[1]  This article assists agencies in identifying, and properly addressing and processing claims susceptible to fragmentation by discussing the law, and recent Commission decisions.

Background

To state a claim under the Commission's regulations, 29 C.F.R. Part 1614, a complaint must allege employment discrimination on a basis described in Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (race, color, sex, religion, and national origin); the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. (aggrieved individual at least 40 years of age); § 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. (disability); the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. § 206(d) (1978) (sex-based wage discrimination); or Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff, et seq (genetic information).  EEOC Regulation 29 C.F.R. § 1614.103(a) provides that complaints of discrimination also include complaints alleging retaliation prohibited by the foregoing statutes.  Agencies can dismiss allegations that fail to state a claim under 29 C.F.R. § 1614.107(a)(1).

An agency must accept and process a complaint from any aggrieved employee or applicant alleging the agency discriminated against them.  As set forth in Shantel H. v. U.S. Postal Service, the Commission has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. [2]  Further, in Annice N. v. Department of Defense, the Commission noted that an agency should not dismiss a formal complaint for failure to state a claim unless it appears beyond a doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. [3]

Fragmentation often occurs during EEO counseling and investigation, when the agency identifies and defines a complainant’s claim.[4]  Fragmentation can result from a failure to distinguish between the claim a complainant is raising, that is the alleged unlawful employment practice or policy, and the evidence, or factual information the complainant is offering in support of his/her claim.[5]  When an agency identifies each piece of factual evidence as a separate and distinct claim, the agency fails to recognize the underlying issue of a pattern of ongoing discrimination or harassment.[6]

In addition, one of the reasons the distinction between claims and supporting evidence is important is because, to pursue a complaint of discrimination, a federal sector complainant must initiate the EEO process by first raising his/her allegations with an EEO Counselor within the timeframe specified in the Commission’s regulations.  Specifically, the regulations require that complaints of discrimination be brought to the attention of the EEO Counselor within 45 days of the date of the alleged discrimination or the effective date of a personnel action.[7]   The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered. [8]  An agency can dismiss a complaint as untimely if the complainant does not raise the claim of discrimination within the specified 45-day limitation period.[9]  The Commission considers certain acts such as promotions, terminations, or denials of training which occur or become effective on a specific date as “discrete acts.”[10]  And, as the U.S. Supreme Court held in Nat’l R.R. Passenger Corp. v. Morgan, discrete acts that fall outside of the limitations period are generally not timely.[11]

Complainants, however, frequently raise factual incidents that occur outside of the 45-day time period for contacting an EEO Counselor.  Generally, a claim is timely raised if at least one of the incidents cited by the complainant as evidence in support of his/her claim occurred within the 45-day period for contacting an EEO Counselor.[12]  An agency must consider, at least as background, all relevant evidence offered in support of a timely raised claim, even if the incidents occurred outside of the 45-day limitation period.[13]

Harassment

Where a complainant does not allege discrimination regarding a specific term, condition, or privilege of employment, the Commission will consider whether the allegations, when considered together and assumed to be true, set forth an actionable claim of harassment.[14]  A complainant may state a claim of harassment by alleging conduct sufficiently severe or pervasive to create an abusive work environment that alters the conditions of the complainant’s employment.[15]

When the action is ongoing, complainant’s contact with an EEO Counselor is timely if the action occurs any time within the previous 45 days.  Hostile work environment claims generally include a number of incidents that occur over a period of time.  These incidents, taken together, collectively constitute one “unlawful employment practice.”[16]  In National Railroad Passenger Corp. v. Morgan, the Supreme Court recognized that hostile environment claims involve repeated conduct over a period of days or even years, and the unlawful practice cannot be said to occur on a particular day. [17]  Therefore, complaints of hostile environment are not time-barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period.[18]

As noted, agencies often fail to distinguish between the complainant’s factual allegations in support of the legal claim and the legal claim itself.  This leads to fragmentation of claims that involve a number of different incidents and can impede the complainant from presenting a unified and coherent claim of discrimination.  Specifically, agencies often separately dismiss these fragmented individual incidents raised in support of a claim of harassment and hostile work environment for failure to state a claim and/or failure to timely initiate the EEO process.  In so doing, the agencies assert that the incidents are trivial or insufficiently severe, and that the complainant suffered no harm regarding a term, condition, or privilege of employment.  Agencies also find that incidents occurring more than 45 days prior to the complainant’s contact with an EEO Counselor are untimely.  However, as we have indicated, processing a complaint this way fails to recognize the continuing pattern of alleged harassing conduct or the ongoing nature of such a claim.  To address and counter this perspective, the Commission considers both the language in the complaint itself, as well as the information in the related EEO counseling report, when reversing an agency’s dismissal of a fragmented harassment claim.  The Commission will address fragmentation and harassment, even if a complainant did not clearly characterize the claim as a harassment/hostile work environment claim.[19]

Recent Commission Decisions Addressing Fragmentation

In Aida E. v. U.S. Postal Service,[20] the Commission found that the Agency improperly dismissed Complainant’s harassment claim for failure to state a claim.  Complainant alleged that she was subjected to a series of events over a period of four months.  Instead of treating all alleged incidents as evidence presented in support of Complainant’s harassment claim, the Agency considered some of the incidents as individual claims of harassment.  Therefore, the Commission found that the Agency acted improperly by treating the matters raised in the complaint in a piecemeal manner.  The Commission noted that the Agency should not fragment, or break up a complainant’s legal claim during the EEO process, as fragmented processing compromises a complainant’s ability to present an integrated and coherent claim.  When all of the incidents raised by Complainant were viewed in the context of Complainant’s hostile work environment complaint, they stated a viable claim.

Complainant in Reita M. v. Department of Transportation [21] alleged that her supervisor and supervisor’s deputy subjected her to ongoing harassment.  Complainant submitted a 38-page document detailing events she experienced at work over a period of almost two years.  On appeal, the Commission found that the Agency erred when it dismissed various incidents in the complaint for failure to state a claim and untimely EEO Counselor contact.  The Agency failed to fully read Complainant’s document, which included timely events and alleged that the agency had subjected her to a hostile work environment.  While the Agency treated some of the incidents individually as claims of disparate treatment and others as part of the claim of harassment, the Agency failed to view the alleged incidents together as evidence to support Complainant’s hostile work environment claim.  Further, although the Commission found Complainant had alleged discrete acts that occurred outside of the 45-day time limit for initiating EEO contact, it stated that she could use these incidents as background evidence to support her timely claim of ongoing discriminatory harassment and hostile work environment.

In Hana D v. U.S. Postal Service. [22] the formal complaint and the EEO Counselor’s report revealed that Complainant had alleged that the Agency subjected her to harassment on a “daily” basis, of which the specific incidents in her complaint were only examples.  When viewing these alleged incidents collectively, they were sufficient to set forth an actionable hostile work environment claim.  The Agency also improperly dismissed 2 claims for untimely EEO counselor contact, because the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice.  Therefore, the entire claim is actionable, as long as at least one incident occurred within the filing period.

In Jermaine G. v. U.S. Postal Service, [23] the Commission found that the Agency improperly defined Complainant’s claim of harassment as a single incident provided as an example, and dismissed the complaint for failure to state a claim.  A fair reading of the complaint, however, reflected that Complainant alleged a pattern of harassment and the entire complaint did not exclusively consist of the one incident mentioned by the Agency.  Instead, the complaint addressed a variety of incidents preceding the one incident.  Additionally, Complainant’s appeal detailed further harassing incidents that occurred since he filed his claim.

In Christopher H. v. Department of Veterans Affairs, [24] the Commission found that a fair reading of the record showed that Complainant alleged his supervisor subjected him to discriminatory harassment concerning a series of events over a four month period, including speaking harshly to him in the presence of co-workers, going into fits of rage while speaking to Complainant about job related matters, chastising Complainant and his work products, and ignoring Complainant.  By alleging a pattern of harassment, Complainant stated a cognizable claim under the EEOC regulations, and the Agency erred in dismissing his complaint.

The Commission, in Rosendo F. v. U.S. Postal Service, [25] found that the Agency improperly dismissed Complainant's complaint, and a fair reading of the record showed Complainant alleged his supervisor subjected him to discriminatory harassment for a three-month period.  Specifically, Complainant contended that his supervisor failed to respond to his safety concerns, gave him instructions different from those given to other employees, failed to provide working equipment, subjected him to increased scrutiny in the form of daily counts, and required Complainant to obtain authorization for bathroom breaks.  By alleging a pattern of harassment, Complainant stated a cognizable claim under the EEOC regulations.

In Freddie K. v. U.S. Postal Service, [26] the Commission concluded that the Agency incorrectly characterized the claim as alleging discrimination only with regard to a Letter of Debt determination.  The formal complaint and EEO Counselor’s report reflected a more detailed series of alleged incidents.  Specifically, Complainant stated that the Agency subjected him to ongoing harassment, including his supervisor repeatedly undermining him and treating him differently than his co-workers.  On appeal, Complainant also contended that since the Manager’s arrival he has subjected Complainant to teasing, jokes, bullying and intimidating behavior.  The Commission concluded that by alleging a pattern of harassment, Complainant had stated a cognizable claim under the EEOC regulations.

Complainant in Rosie T. v. U.S. Postal Service [27] alleged that the Agency subjected her to ongoing harassment involving incidents beyond the one the Agency identified in its dismissal decision.  While the formal complaint form indicated that the alleged discriminatory event occurred in a specific month and year, the EEO Counselor’s Report indicated that Complainant raised two additional alleged incidents of harassment.  The Commission found that a fair reading of the complaint, in conjunction with the related EEO counseling report and Complainant’s statement on appeal, showed that she was raising a viable claim of ongoing discriminatory harassment sufficient to state a claim.

In Tyra T. v. U.S. Postal Service, [28] instead of treating Complainant’s complaint as a harassment claim, the Agency improperly identified the formal complaint as being comprised of two distinct events and then dismissed both individually for failure to state a claim.  Complainant asserted that her complaint involved more than the two incidents described by the Agency involving her supervisor’s conduct and an incorrect worker’s compensation form.  She also alleged the Agency summarily denied her request for an ergonomic chair and frequently relegated her to the least desirable assignments such as working in the lobby.  The Commission found that, taken together, Complainant’s allegations stated a viable claim of harassment.

In Krysten M. v. Department of Veterans Affairs, [29] the Agency, rather than addressing Complainant’s harassment claim, construed the claim as “consisting of one comment and other job-related management conduct,” including one event pertaining to her former supervisor, who had Complainant removed from a training class and accused Complainant of being the reason that a “customer/veteran” had complained about the facility.  The Agency found that Complainant was not aggrieved and that the alleged events were not severe or pervasive enough to state a claim.  On appeal, the Commission found that a fair reading of the complaint showed that Complainant was alleging that the Agency subjected  her to an ongoing series of related incidents by her former supervisor and the Chief of Human Resources, designed to interfere with her pursuit of her rights to contest the alleged denial of a reasonable accommodation, denial of leave, and the ongoing hostile work environment.

The Commission, in Shara D. v. Department of Veterans Affairs, [30] reversed the Agency’s dismissal for failure to state a claim.  Complainant alleged her supervisor accused her of not following proper protocol regarding facsimiles, and, when she tried to explain, the supervisor interrupted her and said she did not want to hear any more about it.  The Commission found that contrary to the manner in which the Agency identified the formal complaint in the final decision, the instant formal complaint and EEO Counselor’s report reflected a more detailed series of alleged incidents.  Specifically, Complainant stated the Agency subjected her to ongoing harassment.  In response to the EEO case manager’s email inquiring if she received any disciplinary action, Complainant asserted that her supervisor retaliated against her “by taking the duties I had been performing for the past 3 ½ years from me and they were given to someone else who she favored more.”  The Commission found that by alleging a pattern of harassment, complainant had stated a cognizable claim under the EEOC regulations.

In Bettyann B. v. Department of Veterans Affairs, [31] Complainant alleged that her supervisor sexually harassed her, including forcibly kissing her and grabbing and squeezing her face.  The Agency dismissed the complaint for failure to timely contact an EEO Counselor based solely on one incident.  On appeal, the Commission noted that, in her informal and formal complaints, Complainant detailed numerous incidents of alleged harassment beginning in 2014, several of which occurred within the 45-day limitation period.  Therefore, the Agency improperly dismissed Complainant’s claim of ongoing sexual harassment, as well as her claim that upper-level management did not properly respond after she reported the incidents.

[1] See Equal Employment Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 5, § III (Aug. 5, 2015).

[2] See Shantel H. v. U.S. Postal Serv., EEOC Appeal No. 0120181379 (May 16, 2018).

[3] See Annice N. v. Dep’t of Def., EEOC Appeal No. 0120182060 (Sept. 5, 2018).

[4] See Equal Employment Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 5, § III (Aug. 5, 2015).

[5] Id.

[6] Id.

[7] 29 C.F.R. § 1614.105(a)(1).

[8] See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 1999).

[9] 29 C.F.R. § 1614.107(a)(2).

[10] See EEOC Compliance Manual, No. 915.003 Section 2: Threshold Issues, § 2-IV C (rev. Aug. 2009).

[11] Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

[12] EEOC Compliance Manual, No. 915.003 Section 2: Threshold Issues, § 2-IV C (rev. Aug. 2009).

[13] Id.

[14] See Belinda K. v. U.S. Postal Serv., EEOC Appeal No. 0120180687 (Feb. 21, 2018).

[15] Id citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).

[16] See EEOC Compliance Manual, No. 915.003 Section 2: Threshold Issues, § 2-IV C (rev. Aug. 2009).

[17] 536 U.S. at 115.

[18] Id. At 117.

[19] See  “Preserving Access to the Legal System: Common Errors by Federal Agencies in Dismissing Complaints of Discrimination on Procedural Grounds,”  September 2014.

[20] Aida E. v. U.S. Postal Serv., EEOC Appeal No. 2019002920 (Aug. 8, 2019).

[21] Reita M. v. Dep’t of Transp., EEOC Appeal No. 2019001791 (June 4, 2019).

[22] Hana D v. U.S. Postal Serv., EEOC Appeal No. 2019002336 (June 11, 2019).

[23] Jermaine G. v. U.S. Postal Serv., EEOC Appeal No. 2019002255 (May 9, 2019).

[24] Christopher H. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002914 (Aug. 27, 2019).

[25] Rosendo F. v. U.S. Postal Serv., EEOC Appeal No. 2019003096 (July 17, 2019).

[26] Freddie K. v. U.S. Postal Serv., EEOC Appeal No. 2019003378 (July 11, 2019).

[27] Rosie T. v. U.S. Postal Serv., EEOC Appeal No. 2019002265 (May 10, 2019).

[28] Tyra T. v. U.S. Postal Serv., EEOC Appeal No. 2019002290 (May 3, 2019).

[29] Krysten M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002133 (Aug. 22, 2019).

[30] Shara D. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001412 (Mar. 8, 2019).

[31] Bettyann B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002089 (Apr. 24, 2019).