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The DIGEST of Equal Employment Opportunity Law


Fiscal Year 2020, Volume 3

Office of Federal Operations

June 2020


Inside

Selected EEOC Decisions on:

Attorney’s Fees

Compensatory Damages

Dismissals 

Findings on the Merits 

Under the ADEA 

Under the EPA

Under the Rehabilitation Act

Under Title VII

Under Multiple Bases

Retaliation

Remedies

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness

Article:

National Origin Discrimination: An Overview of the Law and Commission Decisions

______________________________

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, Joseph Popiden, Navarro Pulley

The Digest is available online through EEOC’s homepage at https://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 Affirmed Agency’s Award of Attorney’s Fees. In response to Complainant’s petition for attorney’s fees, the Agency awarded Complainant a total of $13,171.91, which the Commission affirmed on appeal. Complainant’s petition included work performed by three attorneys. Of the three attorneys’ requests, the Agency accepted one attorney’s (A1’s) hourly rate of $350 per hour. The Agency determined that the second attorney (A2) was entitled to only $175 per hour, because A2 did not submit any supporting affidavits, resume, or list of cases which she had worked on to justify a higher hourly rate. The Agency disallowed the third attorney’s (A3’s) fee petition in its entirety, noting that A3 did not submit an affidavit or an affidavit from another attorney in his community with comparable experience showing the reasonableness of his hourly rate, and his request contained very little information, including his address. The Commission concurred with the Agency’s findings. The Commission also found that a number of billable hours which were claimed in one fee petition appeared to have been excessive and/or duplicative, and appeared to contain identical entries. In addition, most of the entries were vague and not sufficiently detailed, and many of A2’s billing entries appeared to be comingled with A1’s. The Commission concluded the Agency’s reduction of A1 and A2’s fee petitions was proper. Chi E. v. U.S. Postal Serv., EEOC Appeal No. 2019002476 (Feb. 21, 2020).

Compensatory Damages

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

Commission Affirmed AJ’s Award of $150,000 in Compensatory Damages. Following a hearing, the AJ determined that the Agency discriminated against Complainant when it failed to provide him a reasonable accommodation for his hearing impairment, and did not select him for the position of Postmaster. While the Agency’s Final Order adopted the AJ’s finding that Complainant was subjected to discrimination as alleged, the Agency appealed the AJ’s award of $150,000 in damages. The Commission determined that the AJ’s past pecuniary damages award was proper because Complainant endured a significant financial burden in commuting 177 miles each way and renting an apartment during the workweek during the time he was reassigned to a temporary position as the result of his non-selection. The Commission further concluded that the AJ’s nonpecuniary damages determination was supported by substantial evidence. In this regard, the award was consistent with previous awards for emotional distress in cases lacking documentary evidence of medical treatment. Complainant presented evidence of severe distress, and the near dissolution of his marriage. The AJ emphasized the severity of the emotional distress, stating that Complainant took steps toward committing suicide shortly after learning of his non-selection. The AJ also noted the ongoing nature of the distress, based on the pain Complainant exhibited during his testimony, and Complainant’s wife’s testimony that the nonselection caused a permanent “crack” in their marriage. Miguel G. v. U.S. Postal Serv., EEOC Appeal No. 2020000182 (Mar. 4, 2020).

Commission Increased Award of Nonpecuniary Damages to $110,000. In a prior decision, the Commission found that the Agency discriminated against Complainant when it terminated him during his probationary period, and ordered the Agency, among other things, to investigate his claim for damages. The Agency awarded Complainant $25,000, and the Commission increased the award on appeal. In addition to his own statement, Complainant provided statements from his physicians, friends, colleagues, pastor, and family members supporting his claim for damages. When Complainant was terminated, he was forced to move his family from South Korea to the United States, and Complainant stated that the termination caused him anxiety and depression which he continued to experience over a six-year period. His friends and colleagues noted a drastic change in his demeanor and personality. Complainant stated that he was diagnosed with anxiety, depression, and Post Traumatic Stress Disorder, for which he sought counseling. The Commission concluded that Complainant was entitled to an award of $110,000. The Commission found no reason to disturb the Agency’s award of $4,150 in pecuniary damages. Hayden K. v. Dep’t of Def., EEOC Appeal No. 2018000020 (Feb. 11, 2020).

Commission Affirmed AJ’s Award of $90,000 in Nonpecuniary Damages. Following a hearing, an AJ found that the Agency retaliated against Complainant when it reassigned him to a “sub-office,” and the AJ awarded Complainant $90,000 in nonpecuniary compensatory damages. The Commission affirmed the AJ’s award on appeal. Complainant testified that the additional commuting time was mentally and physically exhausting, and left him less time to spend with his wife and children. Complainant also noted that he needed to take leave to attend medical appointments, pick up his children, and attend special events. Complainant’s wife confirmed that Complainant was no longer able to drop his children off at school, and the family had to “scramble” to make transportation arrangements. Complainant’s wife described herself as a “single parent for all intents and purposes” as a result of Complainant’s reassignment. Further, as a result of Complainant using leave to compensate for his commute, the family was unable to go on vacations, and Complainant was unable to spend time with his terminally ill mother-in-law. The Agency disregarded the length of time, four and one-half years, that Complainant suffered as a result of the reassignment, and the information Complainant presented regarding the impact the increased commute had on his quality of life. Therefore, the Commission concluded that the $90,000 awarded by the AJ was not monstrously excessive, and was consistent with Commission precedent. The Commission also found that the AJ properly included training concerning reprisal under the Rehabilitation Act as a remedy, because Complainant’s prior protected EEO activity included allegations of disability discrimination. Donte L. v. Dep’t of Justice, EEOC Appeal No. 2019005117 (Jan. 22, 2020).

Commission Increased Award of Nonpecuniary Damages to $85,000. The Commission previously found that the Agency discriminated against Complainant based on his disability when it denied him reasonable accommodation, and ordered the Agency, among other things, to investigate Complainant’s claim for damages. The Agency then awarded Complainant $10,000 in nonpecuniary damages, and the Commission increased the award on appeal. The Agency did not dispute Complainant’s assertion that, just after he was subjected to discrimination, he was diagnosed with Major Depressive Disorder due to the denial of accommodation. Complainant and his witnesses provided detailed statements explaining the extent of distress he experienced, including mental anguish, headaches, stomach aches, mood changes, crying, irritability, insomnia, depression, and anxiety. Based on the totality of the evidence, the Commission concluded that Complainant was entitled to $85,000 in nonpecuniary damages, which was consistent with awards in similar cases. Scott K. v. U.S. Postal Serv. EEOC Appeal No. 0120182127 (Feb. 20, 2020).

Agency Award of $15,000 in Nonpecuniary Compensatory Damages Affirmed. The Commission previously issued a default judgment in favor of Complainant as a sanction for the Agency’s failure to submit the entire record on appeal, and ordered the Agency, among other things, to investigate Complainant’s claim for damages. The Commission subsequently affirmed the Agency’s award of $15,000 in nonpecuniary damages. While the discriminatory events occurred in 1998, Complainant made several references to an unrelated accident which happened in 1996. In addition, most of the medical documentation in the record, which dated back to 2000, referenced distress Complainant experienced due to the 1996 accident. Therefore, Complainant had not shown that all of her depression and anxiety were connected to her two non-selections. Consequently, the Commission found that the $15,000 awarded by the Agency was sufficient to compensate Complainant for the anxiety, sleep problems, and sadness she experienced related to the discrimination. The Commission also affirmed the Agency’s back pay award of $25,308.08 plus any interest. Amina W. v. Dep’t of Energy, EEOC Appeal No. 0120181366 (Feb. 25, 2020).

Commission Increased Award of Nonpecuniary Damages to $5,000. The Commission previously found that Complainant was retaliated against when an Agency Director disclosed Complainant’s prior EEO activity to another employee. Following a supplemental investigation, the Agency awarded Complainant $3,000 in nonpecuniary damages. The Commission increased the award on appeal. While the Commission acknowledged that Complainant presented minimal evidence of emotional distress caused by the discrimination, the Commission found that an award of $5,000 was more appropriate given that Complainant presented evidence that at least some of her emotional distress was caused by the retaliation. The Commission found no reason to disturb the Agency’s denial of past pecuniary damages, and noted that Complainant was not entitled to an award of future pecuniary damages because there was no finding that she had been constructively discharged. Karin C. v. Dep’t of Agric., EEOC Appeal No. 2019000821 (Feb. 21, 2020).

Dismissals

(See also by category, this issue.)

Complaint Improperly Dismissed in Part. The Commission found that the Agency improperly dismissed Complainant’s complaint as untimely. The record clearly indicated that Complainant received the notice of right to file a formal complaint on July 9, 2019, but the envelope containing the formal complaint had an illegible postmark. The Commission stated that a formal complaint is deemed timely if received or postmarked before the expiration of the applicable filing period, or in the absence of a legible postmark, if received by mail within five days of the expiration of the applicable filing period. While the Agency asserted that Complainant filed her formal complaint on July 26, 2019, the Agency’s administrative record included an incomplete image of the envelope purporting to contain Complainant’s formal complaint. Therefore, the Agency failed to carry its evidentiary burden of proving the formal complaint was untimely filed. The Commission affirmed the Agency’s dismissal of two allegations for failure to state a claim, noting that those matters constituted a collateral attack on a non-EEO administrative process. Ranae P. v. U.S. Postal Serv., EEOC Appeal No. 2020000538 (Feb. 14, 2020).

Complaint Improperly Dismissed for Raising Matter Not Brought to Attention of EEO Counselor. The Commission reversed the Agency’s dismissal of Complainant’s complaint on grounds that it raised a matter that was not brought to the attention of an EEO Counselor. In dismissing the complaint, the Agency relied on Complainant’s failure to participate in the EEO counseling process, stating that the assigned Counselor attempted to engage Complainant multiple times by email and telephone, but was unable to do so. Complainant stated, however, that he did not receive an initial or final interview or counseling to attempt to informally resolve the matter. The assigned Counselor stated that she could not engage Complainant to conduct counseling, so she issued Complainant a notice of right to file a formal complaint, which he timely did. The Commission found that, contrary to the Agency’s assertions, Complainant raised the instant issues with an EEO Counselor even though no actual counseling sessions occurred, and timely filed a formal complaint when given the opportunity to do so. The Commission noted that it is the Agency’s burden to provide evidence to support its final decisions. Ian G. v. Dep’t of State, EEOC Appeal No. 2019005132 (Jan. 8, 2020).

Harassment Complaint Improperly Dismissed for Failure to Timely Initiate EEO Contact & Failure to State a Claim. The Commission reversed the Agency’s dismissal of Complainant’s complaint for untimely EEO counseling and failure to state a claim. Complainant raised a number of incidents that occurred between February 2018 and March 2019, and the Commission found the Agency erred in narrowing the definition of Complainant’s claims. A more accurate definition of the claim was one of an ongoing pattern of harassment of which the seven incidents addressed in the Agency’s dismissal were examples. Further, the various incidents comprising Complainant’s hostile work environment claim occurred within the 45-day period preceding Complainant’s EEO Counselor contact. Therefore, Complainant’s claim of harassment was timely. Willie P. v. Dep’t of the Navy, EEOC Appeal No. 2020000309 (Dec. 17, 2019); Additional Decisions Addressing the Improper Fragmentation and Dismissal of Harassment Claims Include: Annalee D. v. U.S. Postal Serv., EEOC Appeal No. 2020001076 (Jan. 29, 2020) (the Agency improperly fragmented Complainant’s hostile work environment claim and dismissed some incidents for failure to timely contact an EEO Counselor and some incidents for failure to state a claim. Complainant claimed that she was retained in leave-without-pay status up to the time she sought EEO counseling. Further, contrary to the Agency’s assertion, Complainant was not challenging a determination by the Occupational Safety and Health Administration, but was alleging that Agency management failed to respond to her reports that she was working in an unsafe environment).

Findings on the Merits and Related Decisions

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

Under the ADEA

Agency Failed to Rebut Prima Facie Case of Age Discrimination. The Commission found that the Agency failed to meet its burden of production to rebut Complainant’s prima facie case of age discrimination in regard to Complainant’s nonselection for the position of Budget Analyst, GS- 12/13. Specifically, the record did not support the Agency’s proffered reason for not selecting Complainant for the position, that is, because the Selectee (age 29 and 20 years younger than Complainant) was more qualified for the position. While the selecting official testified that she based her decision on the candidates’ resumes, interview responses, and relevant experience, the selecting official also said she relied on her impressions of both Complainant’s and the Selectee’s “personal attributes” based on her experience as their supervisor. However, the selecting official did not explain how the interview helped her conclude that the selectee was more qualified for the position. The interviewers’ notes showed that although Complainant and the Selectee both conveyed enthusiasm for the opportunities the position provided, Complainant’s responses to each question were far more detailed than the Selectee’s, and appeared to demonstrate a depth of familiarity with the Budget Division’s role within the Agency, its processes, and the nature of the position, that was not evident in the Selectee’s responses. The Commission also found the selecting official did not identify how the Selectee’s resume helped her conclude that the Selectee was more qualified for the position than Complainant, who had worked as a GS-12 Budget Analyst in the current office for 16 years, and had earned an accounting certification six years prior. The selecting official acknowledged that Complainant was, as a GS-12 Budget Analyst, already performing the duties described in the vacancy announcement for the position. The Commission found the selecting official’s statement that Complainant’s work product was “not as reliable, and her communication skills were not as developed for her grade” contradicted the selecting official’s own statements on Complainant’s most recent performance evaluation where Complainant received the highest ratings on the three elements reflecting reliability and communication skills. Therefore, the Commission concluded that Complainant showed that her qualifications were demonstrably superior to those of the Selectee, and successfully established that the Agency’s articulated reasons for her non-selection were pretext for discrimination based on age. Joannie V. v. Dep’t of Labor, EEOC Appeal No. 2019004947 (Feb. 19, 2020).

Under the Equal Pay Act

Discrimination Under Equal Pay Act Discussed. Complainant filed a formal complaint alleging, among other things, that she was discriminated against under the Equal Pay Act (EPA) when she was paid less than two male employees for performing the same work. On appeal, the Commission affirmed the Agency’s finding that Complainant failed to prove her EPA claim. Complainant, who was employed as a GS-11 Project Management Specialist, claimed she was performing work involving similar skill sets and job responsibilities as two male employee outside of her organization. Specifically, Complainant focused on the fact that all three employees completed award Compact Discs (CDs). The record showed, however, that while Complainant’s primary duty was to complete the CDs, the other two employees had other primary job functions. In addition, the positions held by the other two employees required specialized degrees. Therefore, while Complainant showed that she was paid less than the other two employees, she did not establish that she was being paid less for equal work, requiring equal skill, effort, and responsibility. Complainant acknowledged as much in her affidavit, stating that her job was “totally different” than any other job in her organization. The Commission also affirmed the Agency’s finding that Complainant failed to prove that she was subjected to disparate treatment discrimination. Lidia B. v. Dep’t of the Army, EEOC Appeal No. 0120182047 (Jan. 28, 2020).

Under the Rehabilitation Act

Improper Medical Inquiry. In support of her claim that she was subjected to unlawful harassment, Complainant provided credible evidence that her Postmaster asked if she was dyslexic in front of a customer. While Complainant failed to show that she was discriminatorily harassed, the Commission concluded that the Postmaster’s statement constituted an improper medical inquiry in violation of the Rehabilitation Act. An employer may only pose a disability-related inquiry or require a medical examination of an employee if it is job-related and consistent with business necessity. This requirement is met when the employer has a reasonable belief, based on objective evidence, that: 1. an employee’s ability to perform essential job functions is impaired by a medical condition; or 2. an employee poses a direct threat due to a medical condition. Here, the Agency failed to show that the Postmaster’s query was job-related and consistent with business necessity, because it did not show that the Postmaster believed that Complainant’s ability to perform the essential functions of her position was impaired or that Complainant posed a direct threat due to a medical condition. Francine M. v. U.S. Postal Serv., EEOC Appeal No. 0120180519 (Mar. 5, 2020).

Denial of Effective Accommodation Found. Complainant, who experienced paralysis in his hand, was provided with a special keyboard as an accommodation for his disability from the time he was hired in 2005 through 2012. The keyboard allowed Complainant to conduct one-handed data entry. In 2012, Complainant requested that the Agency provide Dragon Voice recognition software on his computer to accommodate his disability due to an increased workload. Although the Agency granted Complainant’s request for the software, an AJ determined that the Agency failed to provide Complainant with an effective accommodation when his computer, over a two-year period, failed to work properly with the Dragon software. As a result of this ineffective accommodation, Complainant sustained a work-related injury to his right hand when he returned to using the special keyboard. On appeal, the Commission found that the efforts the Agency made to resolve Complainant’s computer issues with the Dragon software were either unduly delayed or only partially implemented, and as a result, the Dragon software was not an effective accommodation. The Commission noted that the Department of Defense’s Computer/Electronic Accommodations Program (“CAP”) is available as a resource for agencies to use to help identify potential computer-related solutions to assist federal employees with disabilities. The Commission ordered the Agency, among other things, to engage in a rigorous interactive process with Complainant for a period of 60 days to determine what effective accommodation(s) the Agency could provide Complainant. Kristopher M. v. Dep’t of the Treasury, EEOC Appeal No. 2019001911 (Feb. 28, 2020).

Denial of Reasonable Accommodation Found. Complainant filed two EEO complaints alleging, among other things, that the Agency discriminated against him on the basis of disability when it failed to address his requests for reasonable accommodation, and when it issued him disciplinary actions for leave and attendance issues, and a letter notifying him that he would be separated from employment if he did not apply for a disability retirement. On appeal, the Commission stated that most of the events alleged in the two complaints were a result of the Agency’s failure to provide Complainant with reasonable accommodation. Complainant established that he was an individual with a disability, because he was substantially limited in the major life activity of lifting.  The record reflected that, because of his restrictions, Complainant was not qualified to perform his Mail Handler duties. The Commission found that there were no effective means available to accommodate Complainant in the position he held, which raised the issue of reassignment. The Agency, absent undue hardship, was obligated to offer to reassign him to a different position, consistent with the Commission’s regulations. The Agency did not do so. The burden then shifted to the Agency to provide case-specific evidence proving that providing reasonable accommodation would cause an undue hardship in the particular circumstances. The Agency failed in its decision or on appeal to show that reassigning Complainant to a different position would have resulted in an undue hardship on its operations. Therefore, based on the record, the Commission found that Complainant established he was denied reasonable accommodation for his disability. The Agency was ordered, among other things to immediately identify vacant, funded positions or assignments for Complainant, restore leave used by Complainant as a result of the Agency’s failure to provide him with an effective reasonable accommodation, calculate backpay, and conduct a supplemental investigation on compensatory damages. The Commission affirmed the Agency’s final decision finding no discrimination as to Complainant’s additional claims of disparate treatment. Bill A. v. U.S. Postal Serv., EEOC Appeal Nos. 0120182340, 2019005819 (Feb. 26, 2020).

Denial of Reasonable Accommodation Found. The Commission found that the Agency discriminated against Complainant based on his disability when it failed to provide him with reasonable accommodation. Complainant, who is blind, uses hearing aids in both ears, and periodically uses the assistance of a guide dog, asserted, among other things, that he was not provided with productive work assignments, and that the Agency did not make arrangements for his dog. Complainant noted that while his computer was equipped with software to allow him to answer the telephone, he was never provided with the appropriate training on the software or other software used by the Agency. The record showed that the Agency’s District Reasonable Accommodation Committee met with Complainant to identify appropriate accommodations. However, there was no evidence regarding any accommodations that were recommended or instituted, or evidence demonstrating that management sought or provided training to assist Complainant with the software. Further, while management identified a location for a relief station for Complainant’s dog, they were still waiting for the project to be installed at the time of the EEO investigation. The Agency proffered no evidence that any of the accommodations would cause an undue hardship. The Agency was ordered to immediately engage in the interactive process with Complainant to provide him with reasonable accommodation to the extent Complainant still required it, and investigate his claim for damages. The Commission affirmed the Agency’s finding of no discrimination with regard to Complainant’s claim that he was charged with leave-without-pay. Clifford L. v. U.S. Postal Serv., EEOC Appeal No. 0120181528 (Feb. 19, 2020).

AJ’s Finding that Agency Failed to Reasonably Accommodate Complainant Affirmed. Complainant filed an EEO complaint alleging, among other things, that she was discriminated against based on disability when her Supervisor continuously refused to enter into the interactive process to discuss her disability limitations and multiple requests for reasonable accommodation, and failed to permit her to work a maxi-flex schedule.   Following a hearing on the claim, an AJ found Complainant was a qualified individual with a disability, and that the Agency discriminated against her when it unreasonably delayed providing her reasonable accommodation.  Further, the AJ found the Agency failed to provide Complainant telework as a form of reasonable accommodation. On appeal, the Commission affirmed the AJ’s findings. The Agency did not dispute that Complainant was a qualified individual with a disability. The Commission found that Complainant demonstrated that she needed the reasonable accommodation of situational telework, because her medical condition sometimes caused her to experience frequent episodes of diarrhea, episodic bowel incontinence, and abdominal pain. The Agency unreasonably delayed granting Complainant accommodations for a period of 75 days, and failed to justify the delay. The Commission noted that Complainant had to submit multiple requests for accommodation, and, in one instance, her supervisor required Complainant to resubmit her request because the supervisor objected to Complainant’s use of capitalized letters and a particular font. The Commission rejected the Agency’s assertion that Complainant was allowed to telework during the period in question, noting that Complainant was only granted telework for her disability one time despite requesting it as often as twice a week. While the Agency indicated that Complainant could have used leave, the Commission stated that forcing an employee to use leave when another accommodation would permit the employee to continue to work was not an effective accommodation. The Agency failed to prove it would have been an undue hardship to allow Complainant to telework as requested. The Agency was ordered, among other things, to pay Complainant $100,000 in proven nonpecuniary compensatory damages, based on Complainant’s testimony that she experienced stress and embarrassment at work as a result of the Agency’s failure to accommodate her.  The Commission found that Complainant failed to establish discrimination on all remaining claims. Elsa S. v. Nat’l Aeronautics & Space Admin., EEOC Appeal No. 0720180021 (Feb. 14, 2020).

Disability Discrimination Found Regarding Fitness for Duty Examination. The Commission found that the Agency discriminated against Complainant when it referred her for a follow-up psychological examination. According to the record, the Agency began requiring employees in Complainant’s position, which was covered under the “primary/rigorous” category for Law Enforcement Officer (LEO) retirement, to undergo annual physical examinations due to the position’s lifting requirement. After completing the examination, and a Patient Health-Somatic Anxiety and Depressive Systems questionnaire, Complainant was examined by another physician (DR1) who recommended that she be separated from her position due to her lifting restriction. DR1 noted that Complainant was very emotional, anxious, and depressed during the exam. After Complainant provided the Agency with medical documentation from her personal physicians indicating she was physically and mentally fit for her position, the Agency referred Complainant for a consultation with a contract psychologist, and ultimately issued her a Notice of Proposed Removal. The Commission determined that the physical examination was job-related and consistent with business necessity because it was necessary for positions with LEO retirement coverage. The Commission concluded, however, that the Agency failed to establish by a preponderance of the evidence that the psychological fitness-for-duty examination with the psychologist was job-related and consistent with business necessity. While the Agency justified sending Complainant for the psychological examination based on the conflicting statements of DR1 and Complainant’s physicians, Complainant presented unrebutted evidence that the questionnaire she completed was incorrectly scored by the Agency. Further, Complainant was allowed to remain on the job for more than two months after completing the questionnaire, suggesting that the Agency was not seriously concerned about her mental or emotional stability. The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide appropriate training for the responsible officials. The Commission affirmed the Agency’s findings that Complainant failed to prove her additional claims of harassment, disparate treatment, and disparate impact discrimination. Linn A. v. Dep’t of the Army, EEOC Appeal No. 0120171148 (Feb. 14, 2020).

Denial of Reasonable Accommodation Found. Complainant filed an EEO complaint alleging that she was discriminated against on the basis of disability when she was not provided with a reasonable accommodation of situational telework as her medical circumstances required. Complainant had been teleworking for several years, but her telework agreement expired. According to the record, Agency managers repeatedly asked Complainant to resubmit her request or provide additional information over a period of several months. Approximately six months after Complainant requested accommodation, the Agency informed Complainant that she could telework on Mondays, Wednesdays, and Fridays and would have a one-hour window to report her duty station to her supervisor on those days. The Commission found that the Agency discriminated against Complainant when it did not approve her request for situational telework. The Agency acknowledged that Complainant was a qualified individual with a disability. Complainant demonstrated that she needed to be able to telework when she experienced symptoms related to her condition, and these symptoms occurred without notice and were not limited to the three days specified. Therefore, the Agency’s offer, which was essentially the same telework schedule Complainant had before she requested reasonable accommodation, was not an effective accommodation. The Commission found that the Agency failed to prove it would have been an undue hardship to allow Complainant to telework when her medical conditions warranted.  The Agency was ordered, among other things, to provide Complainant with the ability to situationally telework, restore any lost leave or pay, and investigate her claim for compensatory damages.  Jona R. v. Dep’t of State, EEOC Appeal No. 0120182063 (Jan. 23, 2020).

Denial of Reasonable Accommodation Found. Complainant was diagnosed with recurrent facial angioedema and asthma which causes itchy and runny eyes and difficulty in breathing when she walks into any carpeted room at her worksite, as well as when people come into her workspace from any carpeted area.  Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against her based on her disability when it denied her reasonable accommodation. Specifically, Complainant asserted that her supervisor (S2) denied her request for full-time telework, and granted only one day of telework per week, which had not been implemented. The Commission found that the Agency discriminated against Complainant when it failed to provide Complainant a reasonable accommodation. The Agency acknowledged that Complainant was a qualified individual with a disability. The record showed that Complainant requested full-time telework in or about July 2017.  The Agency engaged in the interactive process and requested medical documentation in support of Complainant’s request.  S2 notified Complainant in August 2017 that the Agency’s Medical Director determined that Complainant should not work in any carpeted workspace. However, S2 seemingly ignored Complainant’s request for telework until October 16, 2017, when S2 advised Complainant that the Agency would agree to one day of telework per week.  Nevertheless, the record showed that the one day of telework was not implemented until February 2018.  The Commission concluded that the accommodations provided by the Agency, that is, moving Complainant to a workspace without carpet and permitting Complainant to attend meetings that take place in carpeted areas via teleconference from her office, were not effective.  Despite the accommodations provided by the Agency, Complainant continued to experience allergic reactions approximately three times per week.  Accordingly, the Commission found full-time telework to be the only appropriate accommodation in this case.  Thus, the Commission concluded that Complainant was denied a reasonable accommodation. The Agency was ordered, among other things, to reimburse Complainant for any leave taken because of the Agency’s failure to accommodate her, and investigate her claim for damages. The Commission affirmed the Agency’s finding that Complainant failed to show that she was subjected to a retaliatory hostile work environment. Tricia B. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019000539 (Jan. 22, 2020).

Disability Discrimination Found When Agency Delayed Providing Reasonable Accommodation for Pregnant Employee. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the bases of sex and disability (pregnancy) when the Agency did not accommodate her medical restrictions for approximately two months, and she was not permitted to work. The Agency asserted that Complainant had not presented evidence that there was work available within her restrictions during the period in question. On appeal, the Commission noted the Agency’s position that pregnancy does not render one an individual with a disability under the Rehabilitation Act. However, the Commission clarified that a pregnant employee may be entitled to reasonable accommodation for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment. The Commission explained that Complainant’s request could be construed as a request for reasonable accommodation because she identified her exact medical restrictions, and requested an accommodation of a temporary light duty assignment. The Commission noted that conditions, if severe, constitute disabilities if they are expected to last for more than several months. Here, Complainant’s condition began in August 2017, and was expected to last until October 2018. Accordingly, the Commission found that Complainant was a qualified, disabled individual who requested a reasonable accommodation. The Commission found that the requested accommodation would have allowed Complainant to work within her restrictions, and Complainant stated that had she been granted the accommodation two months earlier, she would have been able to work. The Commission concluded that Complainant did not contribute to the two-month delay, and that the Agency simply failed to act on her request until late October 2017. Therefore, the Agency violated the Rehabilitation Act when it delayed responding to Complainant’s request for a reasonable accommodation. Since the Agency failed to show that it made a good faith effort to timely respond to Complainant’s request for an accommodation, the Commission determined that she was entitled to present a claim for compensatory damages. Ria T. v. U.S. Postal Serv., EEOC Appeal No. 0120182257 (Jan. 14, 2020).

Under Title VII

Denial of Religious Accommodation Found. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his religion (Jewish) when he was forced to use Leave Without Pay (LWOP) to observe the Sabbath.  On appeal, the Commission stated that it was undisputed that Complainant had a bona fide religious belief, and that he sought a schedule that would allow him to observe the Sabbath which he defined as from sunset Friday until sunset Saturday.   Complainant had a schedule that included Sundays off, as well as a rotating day off.  Complainant requested to work Monday through Friday or on Sundays, but was denied the schedule he sought. Instead, the District Reasonable Accommodation Committee (DRAC) advised Complainant to submit requests for LWOP on a weekly basis, which they would attempt to accommodate based on Complainant’s seniority and operational needs.  The Commission found that the Agency failed to meet its burden to demonstrate that it made a good faith effort to reasonably accommodate Complainant’s religious beliefs, or that doing so would have imposed an undue hardship upon the Agency’s operations.  There was no evidence in the record that the Agency attempted to obtain voluntary substitutes or swaps for the Saturdays that Complainant was scheduled to work.  Further, the Agency provided no evidence as to why Complainant could not have rotated schedules with other employees who had Saturday off.  Furthermore, the Agency failed to present evidence of the impact allowing Complainant to have Saturdays off without requiring him to utilize some form of leave would have had on its operations.  The Commission determined that the Agency improperly framed the complaint as including only the period beginning in November 2017.  The Commission reminded the Agency that its duty to accommodate was ongoing and the Agency’s denial of a religious accommodation was a continuing violation.  Therefore, the Commission concluded that the Agency violated Title VII when it failed to provide Complainant with the religious accommodation of having the Sabbath as a regular day off. The Agency was ordered, among other things, to provide Complainant a religious accommodation, restore or compensate Complainant for any leave or LWOP he was forced to use to avoid working on the Sabbath, and investigate Complainant’s entitlement to compensatory damages. Don T. v. U.S. Postal Serv., EEOC Appeal No. 2019001176 (Jan. 30, 2020).

Under Multiple Bases

Agency Violated Rehabilitation Act & Retaliated Against Complainant. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (Post Traumatic Stress Disorder or PTSD) and in reprisal for prior protected EEO activity when Complainant’s supervisor (Supervisor) informed the Union Steward of Complainant’s medical condition, and when Complainant was not permitted to enter the facility. Complainant, who was attempting to enter the facility to represent someone in an EEO matter, contended that the Union Steward informed him that he was barred from the facility because he was on a “threat assessment list” due to his medical condition. Complainant alleged that the Supervisor’s comments made the Union Steward aware of his medical condition. On appeal, the Commission found that Complainant established that he was subjected to an unlawful medical disclosure.  During the investigation, the Union Steward was not questioned about the incident even though he would have been in the best position to address the matter.  In the absence of this evidence, the Commission relied on the statements provided by Complainant and the Supervisor, finding that the Supervisor’s affidavit was very limited in terms of providing information and not reliable.  Accordingly, the Commission found that Complainant established that the Supervisor released his medical information to the Union Steward in violation of the Rehabilitation Act.

As to the second claim, Complainant established a prima facie case of unlawful retaliation in that he was coming to the workplace to represent a coworker in an EEO matter.  While the Agency argued that Complainant was denied entry to the facility because he was on a “threat assessment list,” the Commission found that the record was filled with inconsistencies and lacked supporting evidence.  For example, although a manager stated that there was no such thing as a “threat assessment list,” the Supervisor averred that the manager informed her that was the reason Complainant could not enter the facility.  Therefore, based on the inconsistencies, the Commission concluded that the Agency did not substantiate its claim that Complainant was on a “threat assessment list,” and Complainant was subjected to unlawful retaliation when he was not permitted to enter the facility. The Agency was ordered, among other things, to investigate Complainant’s entitlement to compensatory damages.  Felton A. v. U.S. Postal Serv., EEOC Appeal No. 0120182134 (Dec. 17, 2019).

Retaliation

Retaliatory Harassment Found. The Commission found that Complainant was subjected to retaliatory harassment. Complainant’s supervisor was aware of Complainant’s prior EEO complaint, which was sufficiently close in time to the actions in the instant complaint to establish a nexus between his EEO activity and the complained of conduct. Complainant was subjected to numerous investigative interviews; placed on a “deems desirable list;” instructed to submit documentation for every absence; and issued seven and 14-day suspensions, all within a two-month period. The Commission found that, taken together, this conduct was sufficiently material to deter protected activity and constitute a hostile work environment. The Commission noted that the two suspensions, issued approximately three weeks apart, were especially chilling because they were not substantiated. The Commission further noted that an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. As such, the Commission found that Complainant was subjected to retaliatory harassment by his supervisor. The Agency was ordered, among other things, to remove the suspensions and deems desirable list from Complainant’s personnel records, pay any back pay due, and investigate Complainant’s claim for damages. The Commission affirmed the Agency’s finding that Complainant failed to prove his claim of race discrimination, or discrimination regarding a letter of warning. Reggie D. v. U.S. Postal Serv., EEOC Appeal No. 0120182401 (Jan. 15, 2020).

Remedies

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

Agency Improperly Deducted Unemployment Compensation from Back Pay Award. The Commission found that the Agency appropriately provided a clear and concise calculation of its net back-pay award, except for the Agency’s deduction of $9,000 Complainant received as unemployment compensation in 2012. The Commission noted that unemployment compensation must not be deducted from back pay. Unemployment compensation is an interim source of income, but it is a collateral source in that it comes from the state and not the involved federal employer. An employer cannot offset its damages through a collateral source, such as state unemployment compensation. Recoupment of unemployment compensation is generally a matter between Petitioner and the state. Consequently, the Commission ordered the Agency to award Petitioner an additional $9,000, which it improperly deducted from Petitioner’s back pay award. Concerning any additional tax liability, the Commission ordered the Agency to request that Petitioner submit his claim for compensation (with tax return support) for all additional federal and state income tax liability that he has incurred or will incur. Clay W. v. Dep’t of the Army, EEOC Petition No. 2019005317 (Feb. 25, 2020).

Remedies Discussed. Following a hearing, the AJ found that the Agency retaliated against Complainant when it demoted him, and subjected him to harassment. The AJ’s decision became final when the Agency failed to issue a final order in the matter, and Complainant appealed certain elements of relief ordered by the AJ. On appeal, the Commission found that the record did not support the AJ’s conclusion that the case involved the types of acts of extraordinary acrimony and bias that would make reinstatement inappropriate. Specifically, the AJ only found that two Agency officials engaged in unlawful discrimination, and Complainant himself requested reinstatement to his previous position. Therefore, the Commission ordered the Agency to offer Complainant reinstatement. The Commission affirmed the AJ’s award of $20,000 in nonpecuniary compensatory damages. While Complainant felt embarrassed, isolated, disgraced and paranoid, and sought therapy four years after his demotion, Complainant suffered from Post-Traumatic Stress Disorder (PTSD) related to childhood trauma, and Complainant’s psychotherapist declined to address the effects Complainant’s arrest and incarceration and other stressors had on his condition. The Commission found that the record was not adequately developed to determine whether Complainant was entitled to compensation for adverse tax liability, and instructed the Agency to supplement the record on that matter. Finally, the Commission concluded that the AJ properly determined that Complainant was not entitled to attorney’s fees and costs, because the invoices submitted did not constitute a verified statement from his attorneys as required, and Complainant’s attorneys failed to cooperate with Complainant’s attempt to provide a statement. Garland C. v. Dep’t of Transp., EEOC Appeal No. 0120182009 (Jan. 29, 2020).

Sanctions

AJ Prematurely Imposed Sanction. On its own motion, the Commission reconsidered a prior appellate decision to address whether the AJ erred when, in the absence of an order, he sanctioned the Agency for failing to timely complete the EEO investigation by issuing a default judgment in favor of Complainant. The appellate decision concluded that the AJ did not abuse his discretion when he sanctioned the Agency. On reconsideration, the Commission determined that an AJ’s ability to issue the sanctions set forth in the Commission’s Regulations, including default judgment, is limited to conduct by the parties involving a failure “to comply with the Administrative Judge’s order or request.” Specifically, an AJ must issue an order to the Agency or request documents or records before the AJ may sanction the Agency for failing to develop an impartial and appropriate factual record. In this case, the record reflected that the AJ imposed the default judgment sanction for the Agency’s failure to meet the regulatory timeframes for conducting the investigation without first issuing a show cause order.  Therefore, the Commission vacated the default judgment and remanded the matter back to the AJ to either issue a show cause order or process the complaint on its merits.  Miguelina S. v. Dep’t of Justice, EEOC Request No. 2019002953 (Jan. 27, 2020).

AJ Did Not Abuse her Discretion in Dismissing Hearing Request as Sanction. Following an investigation of Complainant’s claim of reprisal related to her seniority date, Complainant requested an administrative hearing. The AJ subsequently dismissed Complainant’s hearing request as a sanction for her failure to appear at a scheduled conference without explanation. According to the record, the AJ issued an Order acknowledging the hearing request, and a second Order setting a date and time for an initial conference. Both Orders indicated that there was a risk of a sanction for failing to appear at a scheduled event, including the possible dismissal of the hearing request. When Complainant failed to appear at the scheduled conference, the AJ unsuccessfully attempted to reach her twice by telephone. Complainant never explained her failure to appear for the conference. The Commission found no evidence that the AJ abused her discretion when she dismissed Complainant’s hearing request. There was no dispute that Complainant received the Order setting the conference date, and that she was notified of the risk of a sanction if she failed to appear. While Complainant asserted that she did not regularly look at her emails, the Commission found it reasonable to conclude that she would have examined them during the month following the issuance of the AJ’s Order. Further, Complainant did not deny receiving the two calls from the AJ and one voice message the day of the conference. The Commission found that the AJ appropriately tailored the sanction to ensure compliance with future AJ Orders. The Commission affirmed the Agency’s finding of no discrimination. Vickie T. v. U.S. Postal Serv., EEOC Appeal No. 0120181675 (Jan. 27, 2020).

AJ Erred in Dismissing Hearing Request. Complainant requested an administrative hearing following the investigation of his discriminatory hostile work environment complaint. Complainant subsequently informed the parties that his then-attorney was hospitalized, and the AJ agreed to keep the matter on hold until the attorney’s condition improved. The following day, Complainant sent the AJ a lengthy email containing information about his pending complaint. The AJ cautioned Complainant to “refrain from sending communications without [his] attorney’s knowledge or consent.” Complainant retained a new attorney, and amended his complaint. The AJ then resumed processing the amended complaint following a supplemental investigation. After being notified that Complainant emailed the Commission’s Office of Federal Operations inquiring about the EEO process, the AJ cancelled the hearing, citing her earlier email in which she cautioned Complainant about sending communication without his counsel’s knowledge or consent. On appeal, the Commission found that the AJ erred when she sanctioned Complainant by dismissing his hearing request. The Commission stated that the AJ’s initial email was sufficiently vague to confuse Complainant and did not expressly prohibit Complainant from sending communication without his attorney’s knowledge or consent. Further, the AJ did not use the term “order” in her email, and specifically mentioned only Agency staff. There was no language in the email that would have reasonably led Complainant to understand that he should not contact the Office of Federal Operations. Therefore, Complainant’s confusion over the email was justified, and the AJ’s decision to dismiss Complainant’s hearing request for failure to obey an order was not appropriate. The Commission remanded the matter for an administrative hearing. Lenard T. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120181937 (Jan. 24, 2020).

Settlement Agreements

No Breach of Settlement Found. The parties entered into a settlement agreement that provided, among other things, that Complainant would received two specific types of training. On appeal, the Commission found that the Agency did not breach the agreement. Complainant did not dispute the Agency’s assertion that it provided her with the agreed upon training. Complainant asserted, however, that she was not provided with full-time work. The Commission stated that this expectation was not included in the terms of the agreement. The Commission noted that, according to the Agency, Complainant’s assertions regarding full-time work were being processed as a new complaint. Anglea R. v. U.S. Postal Serv., EEOC Appeal No. 2019002834 (Jan. 29, 2020).

Settlement Agreement Invalid Due to Mutual Mistake. The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would offer Complainant a Criminal Investigator position, with an effective hiring date of July 12, 2015. The Agency acknowledged that it did not comply with the terms of the agreement, maintaining it was unable to back-date Complainant’s date of entry into the position. According to the record, Complainant was employed by another federal agency until April 16, 2016, and the Office of Personnel Management (OPM) advised the Agency that it could not back-date Complainant’s effective start date. Therefore, the record showed that the agreement was the product of a mutual mistake. It was clear that the parties intended that Complainant would have an earlier start date, but the parties erred as to the date on which this could be done. Thus, Complainant could choose to either reinstate the underlying EEO complaint, or have the terms of the agreement specifically enforced using April 17, 2016, as his start date. The Commission noted that if Complainant chose to reinstate his complaint, he would have to return the monetary payment and any other benefits he received. Lupe M. v. Dep’t of the Treasury, EEOC Appeal No. 2019002273 (Jan. 28, 2020).

Settlement Agreement Void. The parties entered into a settlement agreement that provided, among other things, that Complainant would receive “priority consideration” for any acting assignment for two specific positions that became available within 48 months. The agreement further stated that Complainant would be considered for one such opportunity “in the normal course of business, consistent with workloads and schedules.” Complainant alleged that the Agency breached the agreement when it failed to provide priority consideration for a number of acting positions. The Agency conceded that the precise meaning of the two provisions in question was ambiguous, and the Commission agreed. There was no explanation of what was meant by “priority consideration,” and much of the Agency’s justification for not choosing Complainant for the acting positions was that Complainant was treated the same as three similarly situated managers. Complainant, on the other hand, appeared to believe he was entitled to more favorable treatment. It was also unclear what was meant by “in the normal course of business.” Therefore, the Commission found that the agreement was void due to the vagueness of the language. In addition, given the numerous disputes between the parties regarding the type of details contemplated under the agreement, the Commission found there was no meeting of the minds. The Agency was ordered to reinstate Complainant’s underlying EEO complaint. Terrance A. v. Dep’t of the Treasury, EEOC Appeal No. 2019005518 (Jan. 24, 2020).

Settlement Agreement Void. The Commission reversed the Agency’s finding of no breach of settlement and found the agreement void due to vagueness and lack of consideration. The parties agreed the Agency would authorize Complainant to take his currently due commercial drivers’ license (CDL) test, and reimburse him for the late or additional fees if he presented an itemized bill or other official document from the testing authority to his manager showing the actual costs. Complainant was to cover his own normal license fees. The agreement noted, “by way of background and for informational purposes only,” that the parties had discussed Complainant’s current restrictions which appeared to limit his ability to work more than four hours per day, and that Complainant could discuss with his doctor how his current restrictions affect his ability to work more than four hours. The agreement further stated that the Agency would review any changes to Complainant’s restrictions, and take appropriate action under applicable law, agency policy, and labor contract provisions. On appeal, the Commission found a fair reading of the entire settlement agreement revealed that the Agency provided no consideration beyond which was normally provided to all employees and that therefore, the agreement was null and void for lack of consideration. Wayne C. v. U.S. Postal Serv., EEOC Appeal No. 2019004273 (Dec. 17, 2019).

Stating a Claim

Complainant Stated Viable Claim of Harassment and Retaliation. The Commission found that the Agency improperly dismissed Complainant’s formal complaint for failure to state a claim. Based upon a fair reading of the formal complaint as well as appellate submissions, Complainant sufficiently stated a complaint of discriminatory harassment. Complainant described Agency adverse actions from June 2018 through January 2019, which could be construed as disparate treatment or a hostile work environment. Moreover, Complainant sufficiently articulated a third-party reprisal claim against the Agency. Specifically, Complainant argued that the Agency conducted an inappropriate investigation at the facility where his spouse was a Postmaster based on Complainant’s protected EEO activity. Harry E. v. U.S. Postal Serv., EEOC Appeal No. 2020000585 (Feb. 26, 2020).

Complaint Alleged Viable Claim of Unlawful Medical Disclosure. The Commission found that the Agency improperly dismissed Complainant’s allegation that the Agency disseminated her private medical information for failure to state a claim. While the Agency determined that the matter was a collateral attack on the Health Insurance Portability and Accountability Act (HIPAA), the Commission noted that its regulations implementing the Rehabilitation Act also provide for the confidentiality of medical records. The Commission stated that the requirement to maintain confidential medical information applies to medical information obtained from “any employee,” and is not limited to individuals with disabilities. Although not all medically-related information falls within this provision, documentation or information of an individual's diagnosis is without question medical information that must be treated as confidential except in those circumstances described in the Commission’s regulations. Therefore, the Commission found that Complainant alleged a viable claim of unlawful medical disclosure which must be investigated before a decision could be made on the merits of that claim. Shanti N. v. U.S. Postal Serv., EEOC Appeal No. 2019005987 (Feb. 21, 2020).

Complainant Stated Viable Claim of Disability Discrimination. The Agency determined that Complainant raised four incidents of disability discrimination, and dismissed the complaint for failure to state a claim. On appeal, the Commission found that a fair reading of Complainant’s hand-written narrative accompanying his initial EEO Counselor contact showed that Complainant raised a variety of justiciable matters that were not confined exclusively to the four incidents identified in the formal complaint. Specifically, Complainant stated that his supervisor would only communicate with him by email, denied him break times, aggressively monitored his bathroom breaks, denied him leave to attend to health issues, and denied his accommodation request for an ASL interpreter. Further, Complainant asserted on appeal that his complaint was more expansive than the Agency identified. The Commission found that by alleging a pattern of harassment, Complainant had stated a cognizable claim. Dewitt L. v. U.S. Postal Serv., EEOC Appeal No. 2020000439 (Feb. 20, 2020).

Agency Failed to Support Dismissal on Grounds it Was Not Complainant’s Joint Employer. The Commission reversed the Agency’s dismissal of Complainant’s complaint for failure to state a claim because the Agency failed to support its finding that Complainant was not an employee. Complainant worked for a contractor who had a contract with the Federal Protection Services (FPS). The FPS then contracted with the Agency to provide security for Agency facilities. The Commission concluded that the Agency’s decision failed to adequately analyze factors relating to joint employment, and the record lacked relevant evidence. The Commission stated that while contract language is not dispositive in joint employer cases, it should be considered, and, in this case, the record contained neither a copy of the contract with FPS, nor the sub-contract. There were also no documents related to the contractor. Further, the record did not include affidavits from the relevant contract officials and/or Agency officials regarding the day-to-day responsibilities and management of Complainant’s security officer position. While the Agency stated in its decision that Complainant was tasked with checking construction workers in and out of the facility, there was no evidence to support this statement. Therefore, the Agency failed to meet is burden of proof to support the dismissal of Complainant’s complaint. Bertram K. v. Dep’t of Justice, EEOC Appeal No. 2020000974 (Feb. 11, 2020).

Complainant Stated Viable Claim of Harassment. Complainant filed a formal EEO complaint that included a number of allegations, including management’s failure to appropriately address harassment by a co-worker, failure to provide a safety representative when Complainant had an on-the-job injury, accusations that Complainant falsified a work injury, and various other matters. The Commission found that Complainant was alleging that he had been subjected to a hostile work environment and a series of related incidents of disparate treatment based on his sex, disability, and retaliation, after he raised concerns with his manager about perceived harassment, and non-compliance with the national bargaining agreement. Complainant indicated that after he told his manager he did not believe that the manager was doing enough to address Complainant’s harassment claims, his supervisor began stalking him and management sent other officials to “strong-arm” him into rescinding his claims. The Commission found that Complainant was alleging a pattern of harassment based on his sex, disability, and reprisal. The Commission stated that the issue of whether complainant had engaged in protected EEO activity went to the merits of the complaint and did not determine the procedural issue of whether the complaint stated a justiciable claim. Porter P. v. U.S. Postal Serv., EEOC Appeal No. 2019002521 (Dec. 26, 2019).

Complaint Properly Dismissed as Collateral Attack on Another Process. The Commission affirmed the Agency’s dismissal of Complainant’s complaint alleging discrimination when, during a Step B meeting, the District Manager questioned him about failing to follow instructions and upheld a Letter of Warning. The Commission found that Complainant improperly challenged the outcome of the Step 2 grievance adjudication through his EEO complaint, and, therefore, his complaint failed to state a claim. The proper forum for Complainant to challenge the denial of his Step 2 grievance was within the grievance process itself. Tasia C. v. U.S. Postal Serv., EEOC Appeal No. 2020000820 (Jan. 24, 2020).

Summary Judgment

Summary Judgment Reversed. Complainant filed a formal EEO complaint raising a number of incidents of alleged discrimination and harassment, as well as a claim of pay discrimination under the EPA. An AJ determined that the case did not warrant a hearing, and, over Complainant’s objections, issued a decision on summary judgement finding that Complainant failed to prove the Agency discriminated against her as alleged. On appeal, the Commission found that, at the very least, the record was not sufficiently developed to justify issuing a decision without a hearing with respect to the EPA claim. Complainant repeatedly asserted that a named employee who was similarly situated was treated better than she was. The record did not contain that individual’s position description. Further, there was no explanation in the record for why Complainant received lower-level pay while filling a position that was seemingly graded at a higher level. In addition, none of the Agency witnesses addressed Complainant’s or the comparative employee’s level of skill, effort or responsibility, nor was there any testimony on the subject. Therefore, there was insufficient evidence upon which the AJ could have determined that Complainant’s and the comparative employee’s positions were not substantially equal. Given the lack of evidence addressing the critical elements of Complainant’s EPA claim, and the lack of discovery, the Commission found that a decision on summary judgment was improper. Bertie T. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120182196 (Feb. 11, 2020).

Summary Judgment Reversed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it reassigned him to a lower-grad position. An AJ determined, on his own motion, that the complaint did not warrant a hearing. After noting that neither party submitted a response to his determination, the AJ issued a decision finding no discrimination. On appeal, the Commission initially noted that Complainant filed a response to the AJ’s notice of intent to issue summary judgment in which he articulated arguments that demonstrated genuine issues of material fact that remained in dispute. For example, the parties differed as to whether a certain chemical that caused Complainant to experience an allergic reaction remained in use. In addition, it was unclear from the record whether the Agency engaged in a proper interactive process. Complainant claimed that there were other positions available to which he could have been assigned. The Commission stated that the AJ failed to view the evidence in a light most favorable to Complainant, and Complainant’s arguments demonstrated that he could potentially return to his position with or without accommodation. The Commission concluded that there were too many unresolved issues that required resolution, including the credibility of various witnesses, and remanded the matter for a hearing. Miles N. v. Dep’t of the Treasury, EEOC Appeal No. 2019001889 (Feb. 11, 2020).

Summary Judgment Reversed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment in reprisal for his prior EEO activity after he reported his supervisor was sexually harassing one of Complainant’s subordinates. An AJ issued a decision without a hearing, finding that Complainant failed to establish that he was subjected to retaliatory harassment as alleged. On appeal, the Commission concluded that summary judgment in favor of the Agency should not have been granted. The AJ failed to view the evidence in a light most favorable to Complainant and improperly determined that there were no genuine issues of material fact that merited a hearing. The AJ also made improper credibility determinations. While the AJ determined that the supervisor did not issue a letter of caution based on retaliatory motives, Complainant noted that the supervisor contacted Human Resources the day after the supervisor was interviewed about the alleged sexual harassment, and then allegedly made disparaging remarks about Complainant, imposed unreasonable deadlines on Complainant’s assignments, and questioned Complainant in a hostile manner. The Commission noted that when credibility is at issue, there is a need for “strident cross-examination,” and summary judgment is improper. In this case, there were too many unresolved issues that required a hearing. Mark D. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019002035 (Jan. 24, 2020).

Timeliness

Complainant Timely Contacted EEO Counselor Upon Reasonably Suspecting Discrimination. The Commission reversed the Agency’s dismissal of Complainant’s complaint for failure to timely contact an EEO counselor. Complainant contended that she reasonably suspected discrimination upon learning that the selectee was of a different sex than herself, and contacted the EEO Counselor within 45 days. Complainant stated that she did not suspect discrimination at the time she was notified of her nonselection. The Commission noted that the Agency did not point to specific facts to support its contention that Complainant should have developed a reasonable suspicion of discrimination prior to the time she learned of the selectee’s sex. Complainant’s contact with the EEO counselor 41 days after that time was therefore timely. Cleotilde G. v. Dep’t of Def., EEOC Appeal No. 2020000305 (Feb. 11, 2020).

Commission Waived Time Limitation for Contacting EEO Counselor. Complainant filed a formal complaint alleging discrimination when the Agency did not grant her request to reinstate her exam score for a position in 2018. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, noting that Complainant’s contact in April 2019 was beyond the 45-day limitation period. On appeal, the Commission found sufficient justification to waive the applicable limitation period. Complainant was a temporary employee, and asserted that she was unaware of the time limit for seeking EEO counseling. While an Agency manager stated that an EEO poster dated November 2018 was on display in lobbies and bulletin boards in facilities at the time of Complainant’s complaint, the Agency did not claim Complainant received any other notice of the relevant time frames. Further, Complainant asserted that the poster was not conspicuously posted, and submitted a photo of the referenced EEO poster in an inaccessible location, and partially covered by a bookshelf. The Commission found that Complainant also credibly stated that she had not seen the poster prior to the Agency’s final decision. Therefore, the Commission found that waiver of the applicable time limit was justified, and the dismissal of Complainant’s claim was improper. Bell S. v. U.S. Postal Serv., EEOC Appeal No. 2020000691 (Jan. 29, 2020).

Complainant Timely Initiated EEO Contact Upon Learning of Discrimination. Complainant initiated EEO contact on April 5, 2019, and subsequently filed a formal complaint alleging that the Agency discriminated against him when it appointed others not in his protected group, without competition, to a position for which he was rejected. Complainant stated that he became aware of the discrimination on April 1, 2019. The Agency dismissed the complaint for untimely EEO contact, reasoning that Complainant was challenging its August 31, 2018 notice to Complainant of his non-selection for a specific vacancy announcement and the subsequent denial of his request for reconsideration. On appeal, the Commission noted that Complainant learned that others had received a benefit allegedly denied to him on April 1, 2019, and made EEO contact four days later. Complainant did not learn that others outside his protected groups were provided advantages and held to a lower standard than he had been until the announcements of the promotions were made. The Agency acknowledged that the record included “evidence of additional hires weeks and months after the vacancy closed.” The Commission found that Complainant’s EEO contact was therefore timely. Kristofer E. v. Dep’t of Justice, EEOC Appeal No. 2019005196 (Jan. 14, 2020).

Agency Properly Dismissed Complaint for Untimely EEO Counselor Contact. The Commission found that the Agency properly dismissed Complainant’s formal complaint alleging discrimination regarding the failure to recommend Complainant for a performance award and quality step increase for failure to timely contact an EEO Counselor. Both of the actions occurred on or about May 3, 2019. Complainant, however, failed to contact an EEO Counselor until July 8, 2019, which was beyond the 45-day limitation period. The Commission rejected Complainant’s assertion that she did not suspect discrimination until May 29 when management failed to respond to her request for an explanation. Complainant acknowledged that she did not believe the decisions were correct when she was told, on May 3, that she would not receive an award or step increase. In addition, Complainant was aware that her coworkers received an award the previous year, and filed a prior EEO complaint on that matter. Therefore, the Commission concluded that Complainant reasonably suspected discrimination when she learned she was not being recommended for the award and step increase on or about May 3. To the extent Complainant asserted that she was waiting for an explanation, the Commission noted that utilization of agency procedures, and other remedial processes does not toll the limit for contacting an EEO Counselor. Tiffanie S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020000484 (Jan. 24, 2020).

Agency Properly Dismissed Complaint for Untimely EEO Counselor Contact. Complainant contacted an EEO Counselor in May 2018, and subsequently filed a formal complaint alleging that, in 2009, he was hired at a lower grade than another employee who performed the same duties. The Commission rejected Complainant’s assertion that he requested counseling after taking a course on workplace harassment. The record showed Complainant was aware of his rights eight years earlier when he took No Fear Act training that included the applicable time limits. Further, the record showed he had been aware of the pay disparity long before the harassment training. The Commission relied on the doctrine of laches in affirming the Agency’s dismissal. Chong T. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019003571 (Dec. 17, 2019).

Agency Failed to Meet Burden to Show When Complainant’s Attorney Received Notification of Complainant’s Right to File a Complaint. The Commission reversed the Agency’s dismissal of Complainant’s complaint as untimely. Complainant received the Notice of Right to File a Formal Complaint and forwarded it to her attorney by email that same day. Complainant’s attorney received the official Notice five days later by certified mail and filed the complaint within fifteen days of receipt of the official Notice. The Commission rejected the Agency’s contention that the attorney received the Notice on the date Complainant sent it by email. The Commission held the Agency had the burden to obtain sufficient information to support a determination as to timeliness, which it failed to satisfy. Kimberly H. v. Dep’t of the Navy, EEOC Appeal No. 2020000316 (Dec. 17, 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 https://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.)

National Origin Discrimination:

An Overview of the Law and Commission Decisions

Introduction

Title VII of the Civil Rights Act of 1964 protects employees and applicants from employment discrimination on the basis of national origin.[1] National origin discrimination involves, among other things, treating employees or applicants for employment unfavorably because they are from a particular country or part of the world.[2] The American workforce is increasingly ethnically diverse, and immigrant workers are present in every occupation in the United States.[3] No matter what country an employee or applicant is from, or what ethnic group they belong to, the individual is entitled to the same employment opportunities as anyone else.[4] This article attempts to assist agencies in preventing national origin discrimination by discussing the law, and recent Commission decisions.

Background

It is unlawful to discriminate against any employee or applicant because of the individual’s national origin. The Commission defines national origin discrimination broadly as including unfavorable treatment because of an employee’s or applicant’s place of origin, or the place of origin of their ancestors.[5] The place of origin may be a country, a former country, or a geographic region, including a region that was never a country but is closely associated with a particular national origin group.[6] National origin discrimination can also include discrimination because of an individual’s ethnicity or accent, or because the individual appears to be of a certain ethnic background even if they are not.[7] An ethnic group is a group of people sharing a common language, culture, ancestry, race, or other social characteristics.[8]

Claims of national origin discrimination can involve unfavorable treatment that raises national origin considerations, such as an individual’s marriage to or association with persons of a national origin group.[9] These claims can also include an individual’s membership in, or association with an organization identified with a particular national origin group, and attendance or participation in schools, or places of worship generally used by persons of a national origin group.[10] Employment discrimination against an individual because he/she has physical, linguistic, and/or cultural characteristics closely associated with a national origin group, for example an accent or particular style of dress, can also constitute national origin discrimination.[11] National origin discrimination includes discrimination by a member of one national origin group against a member of the same group.[12]

The Commission has noted that national origin discrimination often overlaps with race, color, or religious discrimination.[13] This is because a national origin group may be associated with or perceived to be associated with a particular race or religion.[14] For example, complaints filed by Asian Americans may involve allegations of discrimination based on both race and national origin/ancestry.[15] Discrimination against people with origins in the Middle East may be motivated by race, national origin, or the perception that the individuals follow particular religious practices.[16]

Title VII forbids discrimination with regard to any aspect of employment, including hiring, firing, pay, job assignments, promotions, and any other term or condition of employment.[17] Title VII also makes it illegal for an employer to use an employment policy or practice that applies to everyone, regardless of national origin, if it has a negative impact on people of a certain national origin and is not job-related or necessary to the agency’s operations.[18] Retaliation against someone who complains about a discriminatory practice, files a complaint of discrimination, or assists in the EEO complaint process also violates Title VII.

Discrete Employment Decisions

The Title VII principles of disparate treatment discrimination equally apply to national origin discrimination.[19] As noted, national origin discrimination is prohibited in all aspects of employment, including recruitment, hiring, promotions, and terminations. For example, the Commission has noted that an employer who declined to hire a Muslim woman wearing a hijab, an article of clothing often worn by women from various Middle Eastern countries, but who hired a women of different ethnicity with similar qualifications one week later would violate Title VII if the employer chose not to hire the Muslim woman because of concerns about the reactions of customers to the hijab.[20] This would also be true if the employer declined to hire a woman of South Asian ancestry who wore a sari, a garment typically worn by women in India, under similar circumstances. Refusing to hire someone because customers or coworkers may be “uncomfortable” with the person’s national origin violates Title VII’s prohibitions against discrimination.[21]

In Tyrone D. v. Department of Defense,[22] the Commission affirmed the AJ’s finding that the Agency, among other things, subjected Complainant to national origin (Hispanic) discrimination when it did not promote him. The AJ found the testimony of two managers that Complainant’s position description should reflect the duties of his position rather than the duties he actually performed, and that Complainant was “non-communicative and uncooperative” was not credible and was contradictory. The Commission noted that one of the officials exhibited insensitive attitudes toward Hispanics. Specifically, the official suggested, in an email, that the U.S. should use alligators and a moat to deter illegal immigration, and included a quote comparing illegal immigrants to drug dealers. Further, substantial evidence supported the AJ’s finding that an Agency supervisor failed to follow Agency protocol to conform Complainant’s position description to his actual duties and responsibilities. Neither management official rebutted Complainant’s description of his actual duties or explained why those duties did not support a promotion.

Harassment

It is unlawful under Title VII to harass an individual because of his/her national origin. Harassment can include offensive or derogatory remarks about a person’s national origin, accent or ethnicity, or other offensive conduct directed towards an individual because of birthplace, ethnicity, culture, language, or accent, when the remarks or conduct are so frequent or severe that it creates a hostile work environment or results in an adverse employment decision.[23] An agency has an affirmative duty to maintain a work environment free of harassment on the basis of national origin.[24] As an example, the Commission has cited an Arab American employee who complained to his supervisor about a coworker who regularly referred to him as “the local terrorist,” and “ISIS.”[25] The Commission noted that managers and supervisors who learn about objectionable workplace conduct based on national origin are responsible for promptly taking steps to correct the conduct.[26] Clear and effective policies prohibiting ethnic slurs, or other related conduct are important to prevent harassment.[27]

In Bryan T. v. Department of Homeland Security,[28] the Commission found that Complainant was subjected to harassment because of national origin, among other things, and discriminated against when he was not selected for two positions. Specifically, Complainant’s supervisor made derogatory comments about Complainant’s national origin during public briefings, including referring to Complainant as “the resident Irishman,” and “the old Irish man,” and stating “maybe it was the smaller of the Irishmen” when talking about Complainant and a coworker. Several witnesses corroborated Complainant’s claims of harassment, and indicated that the supervisor frequently made derogatory statements about Complainant’s national origin, including referring to Complainant as “a token Irishman.” Complainant repeatedly contacted an EEO Counselor to complain about the harassment, and complained to an Agency manager, but the preponderance of the evidence revealed that instead of ceasing, the harassment increased in frequency. Therefore, the Commission determined that the Agency was liable for the supervisor’s conduct because it failed to exercise reasonable care to prevent and correct the harassing behavior. The Commission further found that the Agency failed to articulate a legitimate, nondiscriminatory reason for not selecting Complainant for two positions. The Agency merely provided vague, subjective reasons for the non-selections which, when considered in light of the pervasive and offensive name calling which existed at the facility, were a pretext for discrimination.

“English-Only Rules” and Issues of Language

Policies that either explicitly or implicitly require employees to speak only English in the workplace should be carefully scrutinized to ensure they do not violate Title VII. When applied at all times, an “English-only rule” is a burdensome term and condition of employment.[29] An individual’s primary language is often an essential national origin characteristic, and prohibiting employees from speaking their primary language at all times in the workplace disadvantages an individual’s employment opportunities on the basis of national origin.[30]

An “English-only rule” is only allowed if it is necessary to ensure the safe or efficient operation of the agency’s work, and is put in place for nondiscriminatory reasons.[31] For instance, an agency can only require an employee to speak fluent English if fluency is necessary to effectively perform the job.[32] An agency also may not base an employment decision on an employee’s accent, unless the accent seriously interferes with the employee’s job performance.

In Minda W. v. Department of the Navy,[33] the Commission found that the Agency discriminated against Complainant on the basis of national origin when it implemented an English-only rule that was not justified by business necessity. The Agency issued Complainant a Letter of Expectations which directed her and her subordinates to always “use the English language when discussing work topics in the work environment.” The Commission found the instruction, on its face, constituted an English-only rule. There was no evidence in the record that requiring employees to speak only English when discussing work topics was necessary for the safe or efficient operation of the Agency. While a supervisor stated that an unnamed employee complained about the use of the Tagalong language in the workplace because she felt excluded, there was no evidence of a widespread problem involving language-related interpersonal conflicts or derogatory or intimidating conduct. In addition, the Agency could have used a nondiscriminatory alternative, such as individually counseling employees about appropriate workplace conduct to address the problem.

In Genny L. v. Department of Defense,[34] the Commission found that the Agency discriminated against Complainant on the basis of national origin when, after a contractor complained of a “language barrier,” the Agency required Complainant to communicate with the contractor through a supervisor or senior employee. Complainant’s supervisor acknowledged that she and a manager decided to impose the requirement because the contractor complained that she was unable to understand Complainant’s data requests and that there was a “language barrier.” Thus, the supervisor’s statements established that the Agency took the actions complained of because of Complainant’s linguistic characteristics. The Commission found that this constituted direct evidence that Complainant’s national origin motivated the Agency’s actions. The Commission found no evidence that the Agency investigated the contractor’s complaints, and the supervisor specifically noted that the contractor’s claim “may or may not have been true.” Further, the evidence did not establish that a “language barrier” existed, and the Agency did not show that it would have taken the same action absent consideration of the discriminatory factor.

 

[3] See EEOC Enforcement Guidance on National Origin Discrimination, No. 915.005 (Nov. 18, 2016) available on the EEOC website at https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination.

[4] See Facts About National Origin Discrimination available on the EEOC website at https://www.eeoc.gov/publications/facts-about-national-origin-discrimination.

[6] See EEOC Enforcement Guidance on National Origin Discrimination, No. 915.005 (Nov. 18, 2016) available on the EEOC website at https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination.

[8] EEOC Enforcement Guidance on National Origin Discrimination, No. 915.005 (Nov. 18, 2016) available on the EEOC website at https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination.

[11] EEOC Enforcement Guidance on National Origin Discrimination, No. 915.005 (Nov. 18, 2016) available on the EEOC website at https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination.

[12] Id., citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (“…in the related context of racial discrimination in the workplace, we have rejected any conclusive presumption that an employer will not discriminate against members of his own race.”).

[20] See Questions and Answers for Employees: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern (noting that this incident could also be considered discrimination on the basis of religion) available on the EEOC website at https://www.eeoc.gov/laws/guidance/questions-and-answers-employees-responsibilities-concerning-employment-individuals; and EEOC Enforcement Guidance on National Origin Discrimination, No. 915.005 (Nov. 18, 2016) available on the EEOC website at https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination.

[25] See Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern (noting that this incident could also be considered discrimination on the basis of religion) available on the EEOC website at https://www.eeoc.gov/laws/guidance/questions-and-answers-employers-responsibilities-concerning-employment-individuals.