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The DIGEST Of Equal Employment Opportunity Law

Fiscal Year 2024, Volume II  

The Equal Employment Opportunity (EEO) Digest compiles summaries of notable appellate decisions in the Federal sector. The EEO Digest is published quarterly by the EEOC’s Office of Federal Operations, Special Operations Division. 

The U.S. Equal Employment Opportunity Commission (EEOC) redacts complainants’ names when it publishes decisions. All Federal sector appellate decisions issued for publication use a randomly generated first name and last initial, selected by a computer program from a list of pseudonyms without relation to the complainant’s actual name. This protects the complainant’s privacy and ensures greater trust in the Federal EEO complaint process. 

The summaries below are neither intended to be exhaustive nor definitive as to the selected subject matter. The summaries should not be given the legal weight of case law in citations. To review the entire decisions, go to Federal Sector Appellate Decisions. 

For more information about the Federal EEO complaint process, please visit Overview Of Federal Sector EEO Complaint Process or email federalsectoreeo@eeoc.gov. 

Table of Contents

  1. Procedural Dismissal Decisions
    1. Failure to State a Claim – 29 C.F.R. § 1614.107(a)(1)
    2. Untimely – 29 C.F.R. § 1614.107(a)(2)
    3. Appeal Made to the MSPB – 29 C.F.R. § 1614.107(a)(4)
    4. Failure to Cooperate – 29 C.F.R. § 1614.107(a)(7)
  2. Decisions on the Merits
    1. Title VII of the Civil Rights Act of 1964
    2. Sections 501 and 505 of the Rehabilitation Act of 1973
  3. Remands for a Hearing with an EEOC Administrative Judge
  4. Remedies
    1. Compensatory Damages
    2. Attorney’s Fees
    3. Back Pay
  5. Sanctions
  6. Compliance

I. Procedural Dismissal Decisions

a.   Failure to State a Claim – 29 C.F.R. § 1614.107(a)(1)

The agency dismissed the complaint for untimely initiation of the EEO process and failure to state a claim. In support of the dismissal, the agency asserted that the complainant failed to timely contact an EEO counselor and that the claim that his medical insurance lapsed as a result of the agency’s discriminatory actions was a collateral attack on the Office of Personnel Management (OPM) Federal benefits process. The record on appeal revealed that the complainant presented evidence that he was not able to timely contact the EEO counselor because he was experiencing serious medical issues. The record further showed that the lapse in medical insurance resulted from the agency’s actions, not a challenge to OPM’s benefits claim process. The EEOC determined that the complainant had sufficiently stated claims that required further investigation. The complainant presented persuasive evidence to support an extension of time to contact an EEO counselor. Moreover, the agency mischaracterized the complainant’s claim concerning his medical insurance as a collateral attack. Thus, the EEOC reversed the agency’s decision and remanded the complaint for further processing.

The agency issued a final decision dismissing the complaint for failure to state a claim. The agency asserted that the complainant’s claims were not sufficiently severe or pervasive to support a claim of discriminatory harassment. On appeal, the record revealed that the complainant alleged that the responsible management official had disparaged her in front of her colleagues, entered her workspace without justification, and had continued to display intimidating behavior towards her. The EEOC determined that the complainant stated a cognizable claim sufficient to support an alleged pattern of harassment. Thus, the EEOC reversed the agency’s decision and remanded the complaint for further processing.

The agency dismissed the complainant’s claim for failure to state a claim, reasoning that the allegations amounted to a collateral attack against the Department of Labor’s Office of Workers’ Compensation Programs (OWCP) process. The OWCP process is outside the EEOC’s purview. The agency concluded that the proper forum for the complainant to raise his allegations was with the OWCP.

The record on appeal revealed that the agency mischaracterized the complainant’s complaint by listing a single claim, which it erroneously framed as a “denial” of the OWCP benefit of continuation of pay (COP). Instead, the complainant asserted that management denied his COP payments through OWCP by incorrectly coding his leave, then misleading the union steward who inquired about the coding on the complainant’s behalf. The EEOC determined this stated a valid claim. Furthermore, the EEOC determined that the complainant’s allegations that he experienced harassment two years prior to the instant complaint served as background information. Thus, the EEOC reversed the agency’s dismissal and remanded the case to the agency for further processing.

The agency dismissed the second of the complainant’s three claims for failure to state a claim. The record on appeal showed that the complainant claimed that he was given an improper job offer. The agency determined that the complainant held a light duty position and that it had acted with the guidance and approval from the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). Thus, the agency concluded there was no adverse action. On appeal, the EEOC determined that the agency’s duty to provide the complainant with a reasonable accommodation is independent from the OWCP determination. Accordingly, the complainant’s second claim merited an investigation. The EEOC reversed and remanded the agency’s dismissal of that claim for further processing.

The agency dismissed a formal complaint of discrimination for failure to state a claim. On appeal, the EEOC noted that, although the agency had confined the complaint to two discrete allegations, a fair reading showed that these constituted examples only and were part of a broader allegation of ongoing harassment alleged by the complainant. Accordingly, the EEOC held that the complainant had raised a viable claim of a discriminatory hostile work environment, reversed the agency’s final decision dismissing the complaint, and remanded the case to the agency for further processing.

The agency dismissed a formal complaint of discrimination for failure to state a claim. The complainant, a city carrier, had alleged discrimination and harassment based on reprisal. The complainant alleged that management followed her, watched her, glared at her, commented that an EEO was in her file, delayed responding to a report she had submitted, and commented that “[s]omeone is driving around in circles” after she returned from street delivery. The agency determined that the complainant was not aggrieved and had not alleged a loss or harm to a term or condition of employment for which there was a remedy or actions that rise to the level of a hostile work environment.

On appeal, the EEOC noted that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute unlawful retaliation. Rather, the law prohibits any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the complainant or others from engaging in protected EEO activity. Accordingly, the EEOC held that the complainant’s allegations about management constituted adverse actions that would be reasonably likely to deter the complainant or others from engaging in EEO activity. The EEOC reversed the agency's final decision dismissing the complaint and remanded the matter for further processing.

The agency dismissed a formal complaint of discrimination on a number of grounds, including untimely EEO counselor contact, failure to state a claim, and alleging dissatisfaction with EEO complaint processing. On appeal, the EEOC held that the crux of the complaint involved allegations of discriminatory harassment that had impacted the complainant in both her military and civilian careers. The EEOC concurred that the complainant’s allegations that involved her miliary career were outside the EEOC’s jurisdiction and properly dismissed. However, the EEOC held that the agency had improperly dismissed the complaint in its entirety regarding the aspects that involved the complainant’s civilian position.

First, while the agency’s final decision concluded that the complainant had not previously engaged in protected EEO activity, the EEOC noted that the complainant was alleging third-party retaliation. Specifically, the complainant alleged that the agency initiated an investigation into her husband, who informed agency officials that he believed the investigation to be racially motivated. Ultimately, the allegations in the investigation were deemed unsubstantiated. However, after the investigation closed, the attorney for the complainant’s husband advised that agency officials were now “coming after” his wife. Thereafter, the complainant asserted she was subjected to an investigation in her civilian capacity, not permitted to submit evidence, and did not receive the findings until after she filed a complaint. The complainant also asserted that a document was placed in her file. When a complainant alleges third-party retaliation, both the employee who engaged in the protected activity and the third party who is subjected to the materially adverse action may state a claim. Accordingly, the EEOC found that the complainant had set forth an actionable claim of third-party retaliation with respect to her civilian career. The EEOC also found a justiciable claim based on race and color because she had been specifically targeted on these bases.

Next, the EEOC held that the agency improperly dismissed the complaint for untimely EEO counselor contact based on the date that the complainant received the findings of the investigation and was notified that the investigation had been closed. Additionally, the EEOC found that to the extent the complainant was alleging dissatisfaction with the EEO complaint processing, the agency had a duty to address these concerns. The EEOC ordered the agency to provide the complainant with a report of any actions it took to resolve her concerns or an explanation of its reasons for not taking any action. Accordingly, the EEOC affirmed the agency’s dismissal of the complainant’s claims with respect to her miliary career but reversed the agency’s dismissal of the remainder of the complaint and remanded for further processing.

The agency dismissed a formal complaint of discrimination for failure to state a claim. On appeal, the complainant argued the agency misconstrued his claim, asserting that management had suspended him for 11 days because of his participation in a prior EEO case against his managers. The EEOC found that management’s alleged actions could dissuade a reasonable employee from pursuing a claim of discrimination. Although the agency had challenged the complainant’s version of events, the EEOC held that this addressed the merits of the complaint without a proper investigation as required by the regulations. Accordingly, the EEOC noted the merits-based arguments were irrelevant to the procedural issue of whether the complainant had stated a justiciable claim under Title VII. The EEOC reversed the agency’s dismissal of the complaint and remanded it for further processing.

Joint Employer

The agency dismissed a formal complaint of discrimination on the grounds that the complainant, a contractor dental assistant, was not a Federal employee or applicant for Federal employment. The agency reasoned it did not qualify as a joint employer because it did not exercise sufficient control over the complainant’s position. On appeal, the EEOC found that the record was not sufficiently developed to make a joint employer determination. The complainant had alleged various incidents of discrimination culminating in her termination from the contract at the direction of the agency. Thus, the circumstances surrounding her removal were significant to the joint employer analysis.

Regarding the insufficiently developed record, the EEOC observed that the record contained a document purporting to conduct a joint employment analysis by an agency attorney. However, the record did not contain the underlying documents pertinent to that analysis. The record did contain a letter to the complainant that stated that “the Government ha[d] requested that [she] be terminated due to performance issues at the facility,” which suggested that the complainant’s removal had come at the direction of the agency. Moreover, on appeal, the complainant submitted a copy of an email she received indicating that if the Government requested in writing that she be terminated then that request would be followed. The record also contained a customer complaint record showing that a named agency official had asked that the complainant be removed.

Ultimately, the record did not contain signed affidavits from relevant officials detailing the reasons for the complainant’s removal or who was involved in that decision. The record also was unclear on whether the contractor continued to employ the complainant on other contracts after she was removed from her position at the agency’s facility. Further, the record was unclear on whether the contractor conducted an independent investigation on the complaints related to the complainant’s performance prior to her termination. Thus, the EEOC vacated the agency’s final decision dismissing the complaint and remanded the matter for a supplemental investigation.

The agency dismissed a formal complaint of discrimination because the claim involved an interpretation of the collective bargaining agreement, which the agency considered a matter that should have been pursued through the negotiated grievance procedure. On appeal, the EEOC noted that the complainant had alleged he was denied overtime due to discrimination on several bases. The EEOC found that whether the denial of overtime was due to provisions in the collective bargaining agreement went to the merits of the complaint and was irrelevant to the procedural issue of whether the complainant had stated a justiciable claim. The EEOC held that the complaint stated a claim, reversed the agency's dismissal decision, and remanded for further processing.

 b.   Untimely – 29 C.F.R. § 1614.107(a)(2)

The agency dismissed the complaint for untimely initiation of the EEO process and failure to state a claim. In support of the dismissal, the agency asserted that the complainant failed to timely contact an EEO counselor and that the claim that his medical insurance lapsed as a result of the agency’s discriminatory actions was a collateral attack on the Office of Personnel Management (OPM) Federal benefits process. The record on appeal revealed that the complainant presented evidence that he was not able to timely contact the EEO counselor because he was experiencing serious medical issues. The record further showed that the lapse in medical insurance resulted from the agency’s actions, not a challenge to OPM’s benefits claim process. The EEOC determined that the complainant had sufficiently stated claims that required further investigation. The complainant presented persuasive evidence to support an extension of time to contact an EEO counselor. Moreover, the agency mischaracterized the complainant’s claim concerning his medical insurance as a collateral attack. Thus, the EEOC reversed the agency’s decision and remanded the complaint for further processing.

An EEOC administrative judge (AJ) determined that the complainant’s claim of a hostile work environment and reprisal was untimely because the last event was not within 45 days of the complainant’s EEO counselor contact and dismissed the complaint. On appeal, the complainant asserted that she timely initiated contact with the EEO counselor because she alleged that she was subjected to a pattern of ongoing harassment. In finding that the complainant’s harassment claim was timely, the EEOC noted that a hostile work environment claim may be comprised of a series of separate acts that collectively constitute one unlawful employment practice. The EEOC considered that the proposed suspension of the complainant, which ultimately merged with the actual suspension, occurred within the 45-day time period of the complainant’s EEO counselor contact. Both the proposed and actual suspension were not properly before the EEOC and could not be considered as independent claims of discrimination, but they could be considered as evidence in support of the complainaint’s hostile work environment claim. The EEOC remanded the complainant’s claim of hostile work environment for further processing.

The agency dismissed a complaint of disability discrimination, containing three claims, for failure to state a claim. On appeal, the EEOC considered failure to state a claim and timeliness. The record showed that Claims 2 and 3, which involved the agency’s alleged failure to provide the complainant (a mechanical engineer) with IT-related needs relevant to his accommodation request, were timely raised with an EEO counselor. With respect to timeliness, the EEOC found that Claim 1, which also concerned IT-related issues, should be considered together with timely Claims 2 and 3 as part of the complainant’s hostile work environment claim. Regarding failure to state a claim, the agency asserted that the disputed actions were merely IT-related challenges common to all employees. However, the EEOC held that the agency erred in addressing the merits at this procedural stage. Moreover, the EEOC found that the alleged denial of reasonable accommodation in the instant matter distinguished it from another case in which a claim involving “IT difficulties” unrelated to reasonable accommodation was dismissed for failure to state a claim. Accordingly, the EEOC reversed the agency’s final decision dismissing the complaint and remanded the case to the agency for further processing.

The agency dismissed the complainant’s complaint for untimely EEO counselor contact. The record on appeal shows that the complainant filed a formal complaint alleging that the agency subjected her to discrimination on the bases of disability, age, and in reprisal for prior protected activity. The complainant alleged that the agency had sent her home and told her there was no limited duty work available. The agency determined that the incident occurred on February 22, 2022, but complainant did not contact an EEO counselor until April 21 that year, beyond the 45-day limit. Accordingly, the agency dismissed the complaint. The EEOC agreed that the complainant’s counselor contact was untimely. However, the EEOC noted that the complainant alleged that the agency denied her a reasonable accommodation for her disability, which may constitute a recurring violation. A recurring violation is a violation that recurs anew each time the agency fails to provide the accommodation. The EEOC therefore reversed the agency’s dismissal and remanded the complaint for further processing.

The agency dismissed a formal complaint of discrimination, finding that the claims therein had never been brought to the attention of an EEO counselor. On appeal, however, the record showed that the complainant had indeed contacted an EEO counselor and also submitted an amended informal complaint, through counsel, regarding the claims ultimately set forth in his formal complaint. As a result, the EEOC held that the record supported a determination that the EEO counselor had possessed the information needed to conduct a limited inquiry. The EEOC reversed the agency’s final decision dismissing the complaint and remanded the case to the agency for further processing.

The agency dismissed a formal complaint of discrimination on a number of grounds, including untimely EEO counselor contact, failure to state a claim, and alleging dissatisfaction with EEO complaint processing. On appeal, the EEOC held that the crux of the complaint involved allegations of discriminatory harassment that had impacted the complainant in both her military and civilian careers. The EEOC concurred that the complainant’s allegations that involved her miliary career were outside the EEOC’s jurisdiction and properly dismissed. However, the EEOC held that the agency had improperly dismissed the complaint in its entirety regarding the aspects that involved the complainant’s civilian position.

First, while the agency’s final decision concluded that the complainant had not previously engaged in protected EEO activity, the EEOC noted that the complainant was alleging third-party retaliation. Specifically, the complainant alleged that the agency initiated an investigation into her husband, who informed agency officials that he believed the investigation to be racially motivated. Ultimately, the allegations in the investigation were deemed unsubstantiated. However, after the investigation closed, the attorney for the complainant’s husband advised that agency officials were now “coming after” his wife. Thereafter, the complainant asserted she was subjected to an investigation in her civilian capacity, not permitted to submit evidence, and did not receive the findings until after she filed a complaint. The complainant also asserted that a document was placed in her file. When a complainant alleges third-party retaliation, both the employee who engaged in the protected activity and the third party who is subjected to the materially adverse action may state a claim. Accordingly, the EEOC found that the complainant had set forth an actionable claim of third-party retaliation with respect to her civilian career. The EEOC also found a justiciable claim based on race and color because she had been specifically targeted on these bases.

Next, the EEOC held that the agency improperly dismissed the complaint for untimely EEO counselor contact based on the date that the complainant received the findings of the investigation and was notified that the investigation had been closed. Additionally, the EEOC found that to the extent the complainant was alleging dissatisfaction with the EEO complaint processing, the agency had a duty to address these concerns. The EEOC ordered the agency to provide the complainant with a report of any actions it took to resolve her concerns or an explanation of its reasons for not taking any action. Accordingly, the EEOC affirmed the agency’s dismissal of the complainant’s claims with respect to her miliary career but reversed the agency’s dismissal of the remainder of the complaint and remanded for further processing.

The agency dismissed a formal complaint of discrimination due to an alleged untimely filing. On appeal, the complainant asserted that neither he nor anyone else at his address signed the tracking receipt for the notice of right to file a discrimination complaint. Further, he did not recognize the signature on the tracking receipt, that individual had a different last name, and that signature was different than the signature on the complainant’s formal complaint.

Where there is an issue of timeliness, the agency always bears the burden of obtaining sufficient information to support a reasoned determination. However, the agency failed to respond to the complainant’s assertions on timeliness in this case. Thus, the EEOC held that the agency failed to meet its burden to demonstrate that someone in the complainant’s household or family of a suitable age and discretion received the notice of right to file a discrimination complaint. Moreover, the agency did not explain that it was relying on a presumption of constructive receipt in its dismissal and did not provide the complainant with a full opportunity to rebut this presumption. Thus, the EEOC reversed the agency’s final decision dismissing the formal complaint and remanded the matter for further processing.

The agency dismissed a formal complaint of discrimination for untimely filing, inclusion of claims unrelated to those raised with an EEO counselor, and failure to state a claim as a collateral attack on the grievance process. On appeal, the EEOC found that the agency had properly dismissed one of the claims for failure to state a claim as a collateral attack where the complainant had alleged that the union failed to properly represent her. However, the EEOC held that dismissal of the complaint for untimely filing was improper because the agency had failed to address the complainant’s assertions regarding her receipt of a notice of right to file a formal complaint. Specifically, the complainant stated that she did not receive the agency’s original package containing the notice and, after contacting the agency to inquire about its whereabouts, discovered that the mail carrier had signed for the package and delivered it to the wrong mailbox. The complainant further asserted that the agency thereafter sent out another notice and that she timely filed her formal complaint.

On appeal, the EEOC noted that, where there is an issue of timeliness, the agency always bears the burden of obtaining sufficient information to support a reasoned determination. In this case, the agency did not address the facts or arguments set forth by the complainant on timeliness. Thus, the agency did not meet its burden to show that the complaint had been untimely filed. Further, the EEOC held that dismissal for claims unrelated to those raised with an EEO counselor was improper because the complainant had alleged ongoing harassment and a hostile work environment. Thus, the matters dismissed by the agency as unrelated should be considered incidents comprising this ongoing claim, which was raised during EEO counseling. The EEOC affirmed the agency’s final decision dismissing one of the claims as a collateral attack but reversed the agency’s dismissal on the remainder of the complaint and remanded the matter for further processing.

The agency dismissed a formal complaint of discrimination due to untimely EEO counselor contact. On appeal, the EEOC found the agency’s dismissal improper as the complainant had alleged compensation discrimination, which was timely under the Lilly Ledbetter Fair Pay Act. Specifically, nothing in the record disputed that the complainant had contacted an EEO counselor within 45 days of receiving a paycheck, which would render the compensation discrimination claims timely under the Ledbetter Act. The EEOC reversed the agency’s final decision dismissing the complaint and remanded the matter for further processing.

c.   Appeal Made to the MSPB – 29 C.F.R. § 1614.107(a)(4)

An EEOC administrative judge (AJ) denied the complainant’s hearing request and remanded the complaint to the agency, finding that it was a mixed-case complaint for which the complainant did not have the right to a hearing. The complaint included eight claims, one of which was constructive discharge due to ongoing harassment. The agency issued a final decision concluding that the constructive discharge claim was a mixed claim and provided appeal rights to the Merit Systems Protection Board (MSPB) on that claim. The agency also concluded that the complainant failed to prove discrimination with respect to the remaining claims and provided appeal rights to the EEOC.

On appeal, the EEOC held that it was no longer a practice to find non-appealable claims to be “inextricably intertwined” with appealable claims and, therefore, the AJ had improperly dismissed the complaint in its entirety. The agency had properly processed the constructive discharge claim as a mixed case claim and provided appeal rights to the MSPB, which issued a decision finding it did not have jurisdiction over the constructive discharge claim. The EEOC found that, at that point, the constructive discharge claim became non-mixed and that the agency was obligated to process the matter as non-mixed. Accordingly, the EEOC remanded the entire complaint to the agency for further processing and reinstatement of the complainant’s hearing request.

d.   Failure to Cooperate – 29 C.F.R. § 1614.107(a)(7)

The agency dismissed the complaint for failure to respond. In support of the dismissal, the agency stated that it mailed the complainant a request for information, asserting that the complainant failed to complete part of her formal complaint. The agency informed the complainant that her answers to the instruction to describe the policies or actions that she believed to be discriminatory were not sufficiently described. The agency’s request for information informed the complainant she had 15 days to submit a response. If the complainant failed to respond or did not provide sufficient information, the agency advised that it may dismiss her complaint.

On appeal, the complainant argued that she never received the agency’s request for information and submitted evidence that she inquired with the mail carrier and residential building management about the agency’s package. The complainant maintained that building management misplaced the agency’s package. The record supported the complainant’s argument and provided sufficient reason for failing to respond to the agency’s request for information. In addition, the EEOC considered that the complainant made efforts to cooperate with the EEO counselor, who noted various dates of alleged discriminatory incidents in the counselor’s report. Thus, the EEOC reversed the agency’s dismissal and remanded the complaint for further processing so the complainant could clarify her claims.

The agency dismissed a formal complaint of discrimination for failure to cooperate. According to the agency, it had initially accepted the complaint for investigation and sent the complainant an affidavit package via email. The agency asserted it did not receive a response, subsequently followed up, and ultimately dismissed the complaint when the complainant still did not respond. On appeal, the EEOC found that the record contained no persuasive evidence that the complainant had engaged in bad faith or contumacious conduct in the processing of her complaint. The EEOC also noted that an agency should not dismiss a complaint when it has sufficient information upon which to base an adjudication. The EEOC determined that the record reflected extensive information about the claims of discrimination, including the name of the alleged discriminatory officials and the corrective action sought. Thus, the EEOC reversed the agency’s final decision dismissing the complaint and remanded for further processing. The EEOC also advised the complainant she must cooperate in the continued processing of her formal complaint or face possible dismissal.

The agency dismissed a formal complaint of discrimination for failure to cooperate, finding that the agency received the complaint on time but it was not signed. On appeal, the complainant, through her attorney, noted that the attorney’s electronic signature had been entered on the timely received formal complaint. When the agency advised that the complaint was unsigned, the attorney responded that the electronic signature belonged to him and that attorneys are allowed to sign on behalf of their clients. When the agency clarified that this type of electronic signature was unacceptable and that a digital or wet signature was required, the complainant’s attorney printed out the complaint, drew an arrow to the electronic signature where he wrote “my valid signature,” signed his wet signature next to the electronic signature, and mailed the signed copy to the agency. The agency asserted that the type of electronic signature originally used was not valid and that it never received a copy of the complaint with the wet signature, arguing that there was no proof it had been delivered.

The EEOC found that while the parties disagreed on whether the electronic signature at issue is valid, the complainant’s attorney had not engaged in contumacious conduct or delay. In this regard, the EEOC noted that it was undisputed the complainant’s attorney had provided the contested electronic signature on the complaint and filed the complaint within the 15-day window. Accordingly, there was no delay. Moreover, when notified that the agency had an issue with the signature, the attorney replied regarding what he understood to be the issue and confirmed that the electronic signature was indeed his and that attorneys are allowed to sign on behalf of their clients. The EEOC recognized that there were no issues apart from the signature and that the record contained sufficient information to permit adjudication. Thus, the EEOC held that the agency’s decision to dismiss the complaint for failure to cooperate was improper, reversed the decision, and remanded the matter for further processing.

II.      Decisions on the Merits

a.   Title VII of the Civil Rights Act of 1964

The agency issued a final order adopting the determination from an EEOC administrative judge (AJ) that the complainant was subjected to discrimination on the bases of national origin, disability, and reprisal at the agency’s Veterans Affairs Medical Center in Washington, D.C. The record revealed that the AJ ordered the agency to provide training to specific groups as well as to the agency’s attorney of record, the attorney’s first and second-line supervisors, and all attorney advisors involved in the legal sufficiency review and/or litigation of non-selection claims at the agency’s District of Columbia office. The AJ indicated that training was ordered for the attorneys because the agency did not provide any information about a position for which the complainant was not selected, either during discovery or during the hearing. The AJ ordered that all training be conducted by a group outside the agency. The EEOC affirmed the AJ’s findings of discrimination but modified the order with respect to the requirement that an external entity provide training because the AJ did not provide a rationale for this. Additionally, the EEOC determined that there was no evidence that the agency’s training group was incapable of providing the ordered training.

The agency issued a final decision finding no discrimination or retaliation on the complainant’s allegations that he was subjected to unlawful discrimination. The complainant argued, among several things, that the chief of radiology issued him a retaliatory counseling memorandum, which suggested that his requests for official time to work on EEO matters constituted unacceptable conduct. The complainant specifically argued that the chief threatened him with absence without leave if he failed to properly enter his leave requests in relation to his requests for official time.

The record on appeal showed that the memorandum issued to the complainant had the effect of chilling an individual’s participation in the EEO process, as within this memorandum that addressed the use of official time to exercise EEO rights, the complainant’s supervisor also threatened disciplinary action. The EEOC noted that the memorandum directly referenced the complainant’s requests for official time and his EEO complaint, and that the complainant needed to immediately improve his conduct by following instructions regarding official time. The EEOC also considered that the chief criticized the complainant’s professionalism and would consider disciplinary action if the complainant failed to act professionally. The EEOC determined that the counseling memorandum issued to the complainant constituted per se reprisal. The EEOC reversed the part of the complaint that concerned the retaliatory counseling memorandum and the threatened charge of absence without leave. The EEOC remanded the matter to the agency for further processing.

The agency issued a final decision finding that the complainant was not discriminated against based on sex when she was issued a letter of warning and received a 7-day and a 14-day suspension. While the agency specifically found that complainant failed to establish a prima facie case of discrimination, it nonetheless articulated legitimate nondiscriminatory reasons for its actions. The agency maintained that the complainant was suspended for using overtime even though her assigned mail volume only warranted eight-hour workdays.

The record on appeal revealed that the complainant established a prima facie case of discrimination based on her sex. The EEOC noted that the complainant received different treatment than male coworkers working in the same position under the same supervisor. The EEOC further determined that the complainant established that the agency’s legitimate, nondiscriminatory reasons for her suspensions were pretextual. The record confirmed that male coworkers did indeed work what appears to have been unscheduled overtime, yet the record contained no evidence that they, like the complainant, were disciplined for doing so. The EEOC affirmed the part of the agency’s final decision concerning the letter of warning and reversed the final decision with respect to the suspensions. The EEOC remanded the matter for further processing.

The agency issued a final decision finding that the complainant was neither subjected to a hostile work environment nor denied a reasonable accommodation. The complainant, a physician’s assistant, was diagnosed with post-traumatic stress disorder, anxiety disorder, panic disorder, and depression after she experienced a violent sexual assault in her office. The complainant explained that her conditions were permanent and that she experienced flash backs, nightmares, depression, insomnia, and anxiety and panic attacks. She also indicated that she had rheumatoid arthritis that made walking difficult, especially when she had to walk to a certain location several times a day. As a result, the complainant submitted a request to telework as a reasonable accommodation for her conditions, which the agency initially granted. Management, however, subsequently denied the complainant’s accommodation request and asked that she report to work in-person. The complainant then filed an EEO complaint, alleging the denial of accommodation. On appeal, the record revealed that the agency suspended the complainant’s reasonable accommodation without sufficient documentation to support that she could not perform the essential functions of her position while teleworking. Therefore, the EEOC found that the agency violated the Rehabilitation Act.

In addition, the EEOC found that the agency subjected the complainant to a hostile work environment. The agency cancelled her telework accommodation without justification and imposed additional work requirements to improve her work performance, despite no evidence that she had performance issues. The EEOC further noted that management would arrive at the complainant’s office unannounced even though the complainant had previously requested limited contact with male employees following the sexual assault that had occurred at the agency. The EEOC found the agency liable for the hostile work environment because the harassment the complainant endured resulted in tangible employment actions, including a denial of a reasonable accommodation and a change in work duties. The EEOC reversed the part of the agency’s final decision concerning the matters referenced above and remanded the case for a determination of compensatory damages. The EEOC also ordered the agency to train and to consider discipline for the responsible management officials.

The agency issued a final decision finding that the complainant, an administrative manager, had failed to prove she was subjected to discriminatory or retaliatory harassment that culminated in her termination. On appeal, the EEOC found the record contained compelling testimony from the complainant and several other witnesses that the responsible management officials (RMOs) had been motivated by unlawful considerations of the complainant’s race and EEO activity in taking actions against her. The EEOC also found an RMO’s testimony that the complainant was fired for insubordination inconsistent with other evidence in the record. In addition, the EEOC found the disputed actions that led to the termination (such as public humiliation, a disciplinary memorandum, and a written reprimand) satisfied the sufficiently severe or pervasive standard to alter the complainant’s conditions of employment. Furthermore, the EEOC found the record clearly showed that the complainant’s termination represented a tangible employment action. As a result, the EEOC found that no affirmative defense was available to the agency because the harassment had culminated in a tangible employment action—the termination.

Thus, the EEOC concluded that the agency was liable for all the incidents comprising the complainant’s hostile work environment claim (including the termination). The EEOC reversed the final decision and remanded to the agency to take remedial action.

The agency issued a final decision finding that the complainant, a store worker, had failed to establish she was subjected to sexual harassment and failed to establish a prima facie case of constructive discharge. On appeal, the record showed that the responsible management official (RMO), an assistant commissary officer, had repeatedly and frequently subjected the complainant to sexual innuendos and inappropriate comments. Notably, the RMO called the complainant on the store phone and told her to come over to his house because his wife was gone. The record further indicated that the RMO had touched the complainant’s buttocks on at least two different occasions. Furthermore, the record showed that the union representative informed the commissary officer that another female employee had alleged sexual harassment and a number of employees had reported inappropriate sexual conduct by the RMO.

As a result, the EEOC found that the foregoing actions satisfied the sufficiently severe or pervasive standard to constitute an abusive work environment and that the complainant had established sexual harassment. The EEOC emphasized that the RMO was second-in-command at the commissary store and the complainant’s fourth-line supervisor. The EEOC also noted that, according to the complainant, the RMO told her more than once not to report his actions. After she reported him, the RMO attempted to intimidate her by asking if she was the one who had filed a sexual harassment complaint against him. The assistant grocery manager corroborated that allegation.

Moreover, the EEOC rejected the agency’s argument that it should not be held liable for the harassment because it had terminated the RMO. The EEOC noted, since the RMO was a manager over the complainant, this rendered the agency vicariously liable. The EEOC was not persuaded that the agency had exercised reasonable care, as the record indicated that the agency took no action for at least two months after the union representative’s notification. Further, the grocery manager did not take any action to initiate an inquiry after the complainant told her about the RMO’s inappropriate comment. As a result, the EEOC found the agency acted far too late to avoid liability.

Lastly, the EEOC held that the complainant had established constructive discharge based on the sexual harassment that occurred in the workplace, the lack of timely agency response, and the hostility and rumors spread by other employees about the situation. Together, this contributed to the complainant’s ongoing distress and rendered the workplace intolerable. Thus, the EEOC reversed the agency’s final decision and remanded the claim for further processing to include the agency taking remedial action.

b.   Sections 501 and 505 of the Rehabilitation Act of 1973

The agency issued a final decision concluding that the complainant failed to show that she was subjected to discrimination on the bases of disability and reprisal when, among a number of claims, her amended request for a previously approved reasonable accommodation was denied. The record revealed that the complainant’s condition forced her to take frequent restroom breaks and that the urge to do so occurred without warning. Thus, she had difficulty with duties that required extensive time on telephone conversations. The complainant offered to take on other duties that were more accommodating of her condition. While the agency did offer an accommodation, this failed to address the complainant’s concerns about minimizing time spent on the phone. Moreover, the agency failed to show that providing a more accommodating assignment would have imposed an undue hardship. Thus, the EEOC determined that the agency failed to provide the complainant a reasonable accommodation and reversed the agency’s decision and remanded the case with respect to this claim.

In its previous decision, the EEOC determined that the administrative judge incorrectly applied a disparate treatment analysis in adjudicating the complainant’s claim of a denial of reasonable accommodation. The EEOC noted that the complainant was hospitalized and had to take about six weeks of sick leave. When the complainant first returned to work, management initially allowed her to telework full-time informally, but later told her she needed to go through the formal reasonable accommodation request process to continue this arrangement. The complainant submitted a formal request, which noted that she could not drive due to a disability that caused dizziness and chronic headaches. However, the agency denied the request due to the existence of van pools between the complainant’s residential area and her work site. The agency also offered the complainant the use of a scooter while at work.

On appeal, the EEOC found that it was undisputed that the complainant had teleworked for several months without issue. Additionally, the EEOC determined that the available alternative accommodations were ineffective because they did not adequately address the full range of the complainant’s documented medical needs. Therefore, the EEOC reversed the agency’s final order regarding the complainant’s denial of reasonable accommodation and remanded the matter to the agency for further processing, including a determination on the complainant’s entitlement to compensatory damages.

After reviewing the previous decision and the entire record, the EEOC denied the agency’s request for reconsideration, as it failed to meet the criteria of 29 C.F.R. § 1614.405(c). The EEOC ordered the agency to provide the complainant with an effective accommodation (including full-time telework) and compensatory damages, among other remedies.

The agency issued a final decision finding that the complainant was neither subjected to a hostile work environment nor denied a reasonable accommodation. The complainant, a physician’s assistant, was diagnosed with post-traumatic stress disorder, anxiety disorder, panic disorder, and depression after she experienced a violent sexual assault in her office. The complainant explained that her conditions were permanent and that she experienced flash backs, nightmares, depression, insomnia, and anxiety and panic attacks. She also indicated that she had rheumatoid arthritis that made walking difficult, especially when she had to walk to a certain location several times a day. As a result, the complainant submitted a request to telework as a reasonable accommodation for her conditions, which the agency initially granted. Management, however, subsequently denied the complainant’s accommodation request and asked that she report to work in-person. The complainant then filed an EEO complaint, alleging the denial of accommodation. On appeal, the record revealed that the agency suspended the complainant’s reasonable accommodation without sufficient documentation to support that she could not perform the essential functions of her position while teleworking. Therefore, the EEOC found that the agency violated the Rehabilitation Act.

In addition, the EEOC found that the agency subjected the complainant to a hostile work environment. The agency cancelled her telework accommodation without justification and imposed additional work requirements to improve her work performance, despite no evidence that she had performance issues. The EEOC further noted that management would arrive at the complainant’s office unannounced even though the complainant had previously requested limited contact with male employees following the sexual assault that had occurred at the agency. The EEOC found the agency liable for the hostile work environment because the harassment the complainant endured resulted in tangible employment actions, including a denial of a reasonable accommodation and a change in work duties. The EEOC reversed the part of the agency’s final decision concerning the matters referenced above and remanded the case for a determination of compensatory damages. The EEOC also ordered the agency to train and to consider discipline for the responsible management officials.

Following a hearing, the EEOC administrative judge (AJ) issued a bench decision concluding that the agency had denied the complainant a reasonable accommodation in violation of the Rehabilitation Act, retaliated against the complainant, and subjected him to a hostile work environment. The AJ ordered the agency to, among other things, provide 40 hours of training to all employees involved in the reasonable accommodation process. The agency subsequently issued its final order implementing the AJ’s decision regarding liability but rejected the AJ’s order with respect to non-pecuniary damages and training.

On appeal, the EEOC affirmed the AJ’s non-pecuniary damages award of $200,000 and slightly modified the AJ’s order regarding training. The EEOC specifically ordered the agency to provide 40 hours of training to certain employees, including agency employees in the human resources division and the employee and labor relations branch in any agency facility where employees are involved with the reasonable accommodation process—regardless of whether they were specifically involved in denying the complainant’s accommodation. The EEOC found a widespread and systemic ignorance of the requirements of the Rehabilitation Act and the reasonable accommodation process, which it said contributed to the egregious nature of the agency's unlawful actions.

In its request for reconsideration, the agency argued that there would be over 780 individuals who would fall under the categories of employees described in the appellate decision who would need training. The agency asserted that a vast majority of these individuals were neither involved with the claims at issue nor worked in the same office or division as the complainant. The agency claimed that the ordered external training would cost the agency at least $400,000. However, in denying the agency’s request, the EEOC noted that the ordered training is a corrective action tailored to prevent the recurrence of discriminatory conduct and address systemic failures that were revealed in the instant case. The EEOC also noted that, when appropriate, it has previously ordered training of all employees at a facility, including employees who were not involved with the discriminatory acts. Thus, the EEOC denied the agency’s request for reconsideration.

In its prior decision, the EEOC found that the complainant did not show that she was subjected to discrimination, reprisal, or a hostile work environment. However, the EEOC found that the agency violated the Rehabilitation Act by improperly disclosing the complainant’s confidential medical information. In so finding, the EEOC noted that the deputy administrator for insurance services forwarded an email from the complainant that included medical information to the timekeeper. The agency failed to provide any argument or reason indicating that this release was qualified under the limited exceptions to the confidentiality requirement. To remedy the violation, the EEOC ordered the agency to conduct a supplemental investigation into the complainant’s entitlement to compensatory damages, provide training and consider disciplining the official identified as the deputy, and post a notice of the violation.

In its request for reconsideration, the agency argued, in pertinent part, that the EEOC erred in determining that the timekeeper was not an appropriate recipient of the complainant’s medical documentation. However, the EEOC determined that the agency did not previously address whether the timekeeper was an official who had a need-to-know basis for receiving the complainant’s confidential medical information. The EEOC noted that a party may not raise new arguments in a request for reconsideration. Thus, the EEOC denied the request for reconsideration.

The agency issued a final decision finding no discrimination on the complainant’s allegations that management failed to provide him a reasonable accommodation for his post-traumatic stress disorder, causing him to take leave under the Family and Medical Leave Act. On appeal, the complainant asserted that the agency unreasonably delayed processing his request for accommodation when it was late in reassigning him. The EEOC found that the complainant established that he was a qualified individual with a disability and that the record supported his allegations. The EEOC noted that the agency took more than 19 months to formally place the complainant in a position that aligned with his medical restrictions. Thus, the EEOC found that this delay constituted a violation of the Rehabilitation Act. The EEOC further determined that the agency failed to show that it acted in good faith during the accommodation process and awarded the complainant compensatory damages, among other remedies. The EEOC reversed the agency’s final decision and remanded to the agency for further processing.

The agency issued a final decision stating that the complainant failed to prove that she was subjected to discrimination. The record on appeal revealed that management officials and the reasonable accommodation coordinator had knowledge of the complainant’s learning disability. Pursuant to the complainant’s onboarding guidelines, she contacted the reasonable accommodation unit within the agency’s human resources operations office (HROO) to disclose her specific learning needs. She requested a reasonable accommodation in preparation for an upcoming mandatory exam from both HROO and her supervisor. The record showed that the agency did not contact the complainant further regarding her reasonable accommodation request. The complainant failed the exam and was subsequently terminated. The EEOC found that the agency violated the Rehabilitation Act and acted in bad faith when it failed to communicate with the complainant, to engage in the interactive process, and to provide the requested accommodation or suitable alternatives. Thus, the EEOC reversed and remanded the agency’s decision.

III.  Remands for a Hearing with an EEOC Administrative Judge

An EEOC administrative judge (AJ) issued summary judgment in the agency’s favor on the complainant’s formal complaint allegations, which included being subjected to a hostile work environment and being denied a reasonable accommodation for his disability. The AJ determined that the record did not support a finding of discriminatory animus or harassment because the complainant was of the same protected classes as the alleged responsible management officials. The AJ also found that the complainant did not establish that he was a qualified individual with a disability and that the agency’s actions were not sufficiently severe or pervasive to constitute a hostile work environment.

Regarding the denial of reasonable accommodation claim, the record on appeal showed that the complainant was sent home from his city carrier position and told there was no work within his medical restrictions. The agency alleged that it conducted two searches for work within the complainant’s medical restrictions, but no work was located. However, the agency did not describe how it conducted its search and there was limited evidence of the agency’s search in the record. The EEOC reasoned that, in determining whether an employee is “qualified,” an agency must look beyond the position which the employee presently holds. Therefore, the EEOC concluded that the record was insufficiently developed to determine whether the complainant was a qualified individual with a disability.

Regarding the harassment claim, the record revealed that an assessment of the credibility of the complainant, management, and witnesses was needed. The complainant alleged that management assigned him work outside his restrictions, threatened him, and repeatedly called him a “little girl,” a “she-male,” and a “crybaby.” The EEOC found that, assuming the complainant’s allegations were true, they were sufficiently severe or pervasive to amount to a hostile work environment based on disability and sex. The EEOC concluded that summary judgment should not have been granted as there were genuine issues of material fact in dispute. Thus, the EEOC vacated the AJ’s decision granting summary judgment and the matter was remanded for a hearing.

An EEOC administrative judge (AJ) dismissed certain claims for untimely EEO counselor contact and another claim for failure to state a claim. The AJ issued a decision without a hearing on the remaining claims. Regarding claims dismissed as untimely, the EEOC held that a fair reading of the complaint showed that the complainant, a transportation security officer, had alleged colleagues subjected her to disability-based harassment and tried to get her to leave her job because she could not perform all of her duties. The EEOC found that several of the incidents comprising the alleged harassment were timely raised. Thus, the EEOC held that these dismissed claims were timely as part of a broader claim of a hostile work environment. The EEOC noted that an employer can be liable for a hostile work environment based on its response to an employee’s need and request for accommodation, including the conduct of coworkers.

Concerning claims that were decided without a hearing and dismissed for failure to state a claim, the EEOC found that, when properly framed, these issues concerned an alleged denial of reasonable accommodation and that the AJ erred in summarily dispensing with these issues. The EEOC noted that the complainant had asserted she was placed in leave without pay, removed from her position, and sent to vocational rehabilitation. Furthermore, she alleged that the agency held up her paperwork so that she would resign before she could go to vocational rehabilitation. The EEOC held that dismissal of this claim for failure to state a claim as a collateral attack was improper because the complainant had been fundamentally alleging discrimination regarding her placement on leave without pay and removal from her position.

After noting it was undisputed that the complainant was an individual with a disability and unable to perform the essential functions of her position, the EEOC held that the record had not been adequately developed on whether, and to what extent, the agency conducted a search for a vacant, funded position into which she could have been reassigned. The EEOC remanded the matter to the agency for a supplemental investigation on this issue. The EEOC further vacated the agency’s final order adopting the AJ’s decision and remanded the case to the appropriate EEOC Hearings Unit for further processing.

An EEOC administrative judge (AJ) issued a decision on summary judgment in favor of the agency, concluding there was no genuine issue of material fact in dispute. The complainant alleged a hostile work environment, failure to accommodate, and disparate treatment on the bases of disability and reprisal. On appeal, the EEOC found that there was a genuine dispute concerning facts related to the complainant’s medical restrictions and how those would have impacted his ability to perform the essential functions of his position prior to his removal. The EEOC also held that additional evidence and credibility determinations were necessary regarding comments comprising the complainant’s harassment claim. The EEOC further determined that, at the summary judgment stage, the AJ adopted the agency’s motion without viewing the agency’s admission regarding certain comments in a light most favorable to the complainant. Accordingly, the EEOC reversed the agency’s final action and remanded the matter for a hearing.

IV.    Remedies

a.   Compensatory Damages

The agency issued a final decision concluding that the complainant had established that she was subjected to retaliation on one of her five claims. However, the final decision determined that the complainant failed to submit any evidence to support her entitlement to compensatory damages. On appeal, the record revealed that the agency reached out numerous times to the complainant, to no avail, requesting the submission of the requested evidence. The record further showed that the complainant failed to submit any statement on appeal disputing the agency’s representation. The EEOC determined that the complainant failed to demonstrate that she was harmed by the agency’s discriminatory action. Thus, the EEOC affirmed the agency’s decision that the complainant was not entitled to compensatory damages.

The complainant, a captain/supervisory police officer, alleged disability discrimination when the agency rescinded a job offer of deputy chief of police and suspended his police officer duties and credentials. The agency found disability discrimination and awarded $35,000 in nonpecuniary, compensatory damages. The award was based on statements from the complainant and his wife concerning the complainant’s emotional distress, anger, loss of reputation, and loss of self-confidence.

On appeal, the complainant challenged the agency’s award of nonpecuniary, compensatory damages as insufficient. The EEOC agreed. While there was no evidence the complainant had sought medical attention, the EEOC noted that statements from the complainant and his wife described the his emotional distress and general reputational harm. Notably, the wife described comments made by other officers and the changes she witnessed in the complainant’s mood and behavior, which she connected to the complainant’s loss of credentials and the job offer rescission. Moreover, the EEOC agreed with the complainant’s assertion that the agency had minimized his symptoms by characterizing them as lasting only several weeks to a few months. The complainant and his wife described the complainant’s trouble sleeping and headaches as still occurring, and the complainant also reported regularly experiencing increased anxiety. Further, the complainant’s wife stated that the complainant experienced awful stomachaches whenever he thought about or talked about the discrimination.

Given the severity, nature, and duration of the complainant’s distress, the EEOC awarded $50,000 in nonpecuniary, compensatory damages. The EEOC further found that, because the complainant had prevailed in his appeal, he was entitled to additional attorney’s fees incurred for the work performed on appeal. Accordingly, the EEOC modified the agency’s final decision on compensatory damages and remanded the matter to the agency for further action.

The complainant, a human resources specialist, alleged discrimination and a hostile work environment based on disability. She alleged that the agency denied her Family and Medical Leave Act request and did not respond to her reasonable accommodation request. Furthermore, she alleged that her supervisor made insulting, intimidating, and ridiculing comments about her surgery. On appeal, the EEOC held, among other things, that the agency’s excessive delay in responding to the complainant’s request for reasonable accommodation was in bad faith, entitling the complainant to consideration of an award of compensatory damages. The EEOC ordered the agency to conduct a supplemental investigation and issue a decision on nonpecuniary compensatory damages. The agency investigated and awarded the complainant $15,000 in nonpecuniary compensatory damages, which the complainant appealed.

The EEOC found that the agency’s award was insufficient. Given the severity, nature, and duration of the distress experienced as a direct result of the discrimination, the EEOC held that $25,000 was an appropriate award. The EEOC noted that the complainant’s mental health counselor had described her mental status as anxious, distracted, agitated, and sad. The mental health counselor also stated that “without a doubt, [the complainant] was experiencing extreme emotional, mental, and behavior turmoil as a result of her wrist issues and lack of accommodations that ultimately resulted in her leaving her job.” In addition, the complainant had reported symptoms including depression, fatigue, crying spells, and anxiety. The complainant further stated that she experienced pain and flare-ups related to the underlying disability, loss of pride in her work, loss of sense of meaning in her life, and loss of quality time with her mother. The complainant’s sister reported observing the complainant’s new pessimistic viewpoint, while the complainant’s hairdresser confirmed that the complainant experienced crying spells.

Although the EEOC agreed with the complainant that the agency’s award had been insufficient, the EEOC did not increase the award to the degree the complainant requested. The EEOC noted that the complainant’s request had referenced portions of her complaint that were found not to be discriminatory. Accordingly, the EEOC modified the agency’s final decision on compensatory damages and remanded the matter to the agency for further action.

b.   Attorney’s Fees

An EEOC administrative judge (AJ) issued a decision after a hearing finding that the agency discriminated against the complainant, an accountant, on the bases of race, color, age, and retaliation with respect to two non-selections. The agency appealed, but the EEOC found that there was substantial evidence in the record to support the AJ’s finding of race and color discrimination. The EEOC noted the AJ’s plainly superior qualifications analysis as well as the AJ’s finding that the selecting official’s articulated reasons for the non-selections were pretextual. Because the EEOC affirmed the AJ’s finding of discrimination on the bases of race and color, the EEOC did not address the AJ’s findings regarding the bases of age and reprisal, as it would not alter the complainant’s remedies.

The EEOC also held that substantial evidence supported the AJ’s award of $25,000 in nonpecuniary compensatory damages, noting the complainant’s testimony that the non-selections had rendered him ineligible for a mentoring program and also had caused him embarrassment, stress, and a loss of happiness. The EEOC further found there was substantial evidence to support the AJ’s award of $72,151.20 in attorney’s fees, noting the AJ’s detailed analysis and proper determination to use the current market rate rather than historical rates.

In addition, the EEOC rejected the agency’s assertion that fees should be reduced because the Age Discrimination in Employment Act (ADEA) does not allow for attorney’s fees at the administrative stage and the complainant’s fee petition did not distinguish work performed under Title VII from work performed under the ADEA. In this regard, the EEOC noted that it found discrimination on the bases of race and color only, that a finding on other bases would not have altered the remedies, and that the complainant’s Title VII claim and ADEA claim involved a common core of facts based on related legal theories and, thus, were not distinctly different claims.

The EEOC affirmed the AJ’s finding of race and color discrimination on the two non-selections. The EEOC reversed the agency’s final order and remanded the matter to the agency for corrective action.

The agency issued a final decision accepting liability and issuing an award for compensatory damages and other equitable relief. While an EEOC administrative judge (AJ) awarded $251,878.20 in attorney’s fees and $10,352.98 in costs, the agency modified this award to $176,314.60 in attorney’s fees and $8,039.11 in costs. The agency found that the AJ had properly reduced the fee award, because three of the seven attorneys representing the complainant from the same law firm did not individually file designation of representation forms. The agency further found that the AJ had properly reduced the fee award by 50 percent, as the complainant prevailed on her hostile work environment claim only. In contrast to the AJ, however, the agency concluded that the caluculations for attorney’s fees reflected numerous instances of redundant billing. Accordingly, the agency reduced the fees by an additional 30 percent, rejecting the AJ’s finding that the attorneys had made a good faith effort to exclude redundant hours.

On appeal, the EEOC held that it was improper to reduce the fee award for a lack of individual designation of representation forms, as the agency had been on reasonable notice of representation by the law firm’s attorneys. The EEOC also held that the 50 percent fee reduction for prevailing on one claim only was supported by substantial evidence. Lastly, the EEOC disagreed with the agency’s additional 30-percent reduction, concluding that the presence of multiple counsel at deposition was justified and not duplicative in this case.

Regarding costs, the agency determined that portions were not reasonably incurred, such as the attorney’s meals and gas, because the hearing was virtual. The agency also determined that the complainant’s travel expenses were not reasonably incurred, concluding there was no need for the complainant to travel from North Carolina to Washington, D.C., for a virtual hearing. On appeal, the EEOC determined that the complainant’s travel expenses were reasonably incurred, as it was reasonable for her to travel to be co-located with counsel while she provided emotional testimony during the virtual hearing about a sexual assault. The EEOC also held that certain expenses, such as the attorney’s gas, had been properly excluded as an ordinary commuting cost from home to the office for the virtual hearing. Accordingly, the EEOC modified the total award of attorney’s fees and costs to $282,647.91, which included $272,303.95 in attorney’s fees plus $10,343.96 in costs. The EEOC remanded the matter to the agency for appropriate processing.

c.   Back Pay

An EEOC administrative Judge (AJ) issued a notice of intent to grant summary judgment in favor of the complainant, a staff physician, on a claim of pay discrimination based on age. The parties responded to the notice, and the AJ determined that the agency had failed to develop an impartial and appropriate factual record. The AJ found that grave deficiencies—including a lack of SF-50s for the comparators, pay panel documentation, and individualized explanations for comparative employees’ higher pay—had had a significant prejudicial effect and warranted a sanction. Specifically, the AJ held that the complainant could establish a prima facie case of disparate treatment based on age and that the agency could not provide a specific, clear, and individualized explanation for the pay disparity. Accordingly, the AJ granted summary judgment in favor of the complainant on the pay discrimination claim and ordered back pay, among other relief. Further, the AJ ordered the agency to explain in writing how it reached its back pay determination.

On appeal, the complainant argued that the agency was not in full compliance and had failed to pay any of the awarded damages, including back pay. The complainant also asserted that the agency had failed to provide adequate documentation to support its various back pay figures, despite the complainant’s numerous requests for this information. The EEOC noted that the record indicated the agency had provided four different back pay determinations, correcting itself a number of times and ultimately submitting a pay request to the Defense Finance and Accounting Service (DFAS), the entity responsible for issuing payment. The agency generated eighteen SF-50s for DFAS of the applicable comparator employees to capture relevant market rate increases. However, the record contained no indication that the agency provided copies of these SF-50s to the complainant to verify accuracy.

In addition, the complainant asserted that the agency’s various back pay assessments included different comparators without explanation and that the agency’s ultimate back pay assessment excluded certain comparators, minimizing the amount of back pay. Further, the complainant asserted that the record contained inconsistencies as to the date that each market pay assessment was conducted and that the agency never provided documentation that would have enabled her to verify dates and the amount of back pay owed.

In its holding, the EEOC noted preliminarily that lack of documentation on the agency’s part was a recurring issue. The EEOC also held that the agency had not complied with its own order to provide the complainant with clear, written documentation on how it reached its back pay determination. Further, the EEOC found that the explanations the agency did provide were contradictory, inconsistent, and lacked explanation—and were thus insufficient. The EEOC remanded the matter to the agency to award back pay, explicitly instructing that the agency provide documentation to the complainant on the amount of back pay and benefits and how the agency reached these determinations.

V.        Sanctions

An EEOC administrative judge (AJ) dismissed the complainant’s hearing request as a sanction for failure to comply with the AJ’s orders. The appeal record revealed that, via email, the AJ issued an Acknowledgement Order and an Order Scheduling Initial Conference to the agency and to the complainant, with instructions on both orders to read carefully. Both orders stated that failure to follow orders may result in sanctions, including dismissal of the hearing request. Among other infractions, Complainant did not file a Preliminary Case Information report as ordered in the Acknowledgement Order and did not file a Pre-Conference Statement as ordered in the Order Scheduling Initial Conference. The AJ issued a Show Cause Order to the complainant for failure to follow orders. When the complainant did not respond, the AJ dismissed the complainant’s hearing request.

On appeal, the complainant stated that he had limited computer skills and that he did not communicate via email. However, the record revealed that the complainant timely responded to both of the AJ’s emails, never indicated to the AJ that he was unable to open the orders, and never requested a hard copy of the orders. Moreover, the complainant never submitted any of the requested pre-conference information and failed to attend the initial hearing conference. The EEOC determined that the complainant unjustifiably failed to respond to the AJ’s orders and did not act with due diligence in pursuing his case. Accordingly, the EEOC determined that the AJ’s dismissal of the hearing request was reasonable and well within the bounds of his discretion. The EEOC affirmed the decision.

The agency filed an appeal rejecting the EEOC administrative judge’s (AJ) default judgment finding discrimination. The record revealed that the agency began processing the complaint in August 2019 and concluded the investigation at least 210 days late. The AJ determined that the agency did not even initiate the investigation of the complainant’s claims until 148 days after the 180-day requirement to do so. The EEOC concluded that, while the agency failed to timely investigate the complaint, it did not act in bad faith or a manner sufficient to warrant a default judgment sanction. Moreover, the complainant made no showing that he was prejudiced by the delay in the investigation. Thus, the EEOC vacated the final order and remanded the matter for a hearing.

VI.    Compliance

The agency issued a final order implementing an EEOC administrative judge’s (AJ) finding that the complainant was subjected to unlawful discrimination. The AJ awarded the complainant compensation for back pay, benefits, and associated prejudgment interest; increased tax burden; nonpecuniary compensatory damages; and attorney’s fees, among several remedies. The agency mailed the payments to the complainant’s address of record, but the payments were returned as the complainant had relocated. The complainant informed the AJ that she had not received her payments, and the AJ in turn communicated this to the agency representative. However, the agency representative had resigned, so the agency was not aware of the payment issue. After some back and forth with the agency, the complainant appealed to the EEOC, asserting that the agency was not in compliance with the remedies order and requested sanctions. The EEOC concluded that the agency made good faith efforts to pay the complainant and ultimately did make the payments as required. Thus, the EEOC affirmed the agency’s decision to reject the complainant’s noncompliance allegations.

The complainant, a postal worker, filed an appeal with the EEOC alleging that the agency was not in compliance with the terms of a settlement agreement. Specifically, the agency had agreed to credit 80 hours of leave to the complainant by a date certain, which the agency failed to do. The agency explained that efforts to implement this settlement term by taking necessary steps in the agency’s computerized payroll system had resulted in unforeseen issues, which the agency was in the process of remedying. Still, the EEOC found that the agency had breached the settlement agreement, which was plain and unambiguous on its face. Thus, the EEOC remanded the matter and ordered the agency to provide the complainant with the option of reinstatement of her complaint or specific performance of the settlement agreement.

The complainant filed an appeal, asserting that the agency was not complying with a final order that was previously issued by the EEOC. After an EEOC administrative judge issued a summary judgment in favor of the complainant, the agency was ordered to restore the complainant’s sick leave, make updates to its handbook regarding disability and reasonable accommodations, create and implement a policy requiring the agency to provide at least three weeks’ notice for online training, and to post a notice. While the complainant acknowledged that the agency restored the ordered sick leave, there was no evidence that the agency complied with the remaining remedial orders. Additionally, the agency failed to respond to the appeal and did not provide evidence of full compliance. Thus, the EEOC found that the agency did not fully comply and remanded the matter to the agency for further processing.

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