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The DIGEST Of Equal Employment Opportunity Law


Fiscal Year 2020, Volume 1                       

Office of Federal Operations

January 2020


ANNUAL COMPILATION ISSUE

Selected Notable EEOC Decisions from FY 2019 on:

_____________________________

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

Carlton M. Hadden, Director, OFO

Barbara Daugherty, Acting Assistant Director, OFO’s Special Operations Division

Digest Staff

Editor: Robyn Dupont

Writers: Craig Barkley, Ayana Bowman, Trevis Busteed, Larissa Davis, Robyn Dupont,

Kimberly Kwan, Mary O’Rourke, Joseph Popiden, Navarro Pulley

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

Volume 1 of the Fiscal Year 2020 Digest contains the EEOC’s Annual Compilation Issue - a sampling of federal sector decision summaries of note from the prior fiscal year (2019), as selected by Digest staff from among the decisions issued by EEOC during that fiscal year.  Some summaries that also appeared in previous issues of the Digest are reprinted here for the convenience of readers. The summaries 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.”

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.

SELECTED EEOC DECISIONS

Attorney’s Fees

Commission Increased Award of Attorney’s Fees.  The Commission rejected the Agency’s reduction of Complainant’s attorney’s fee request, and increased the award on appeal.  The Agency based the award on an hourly rate from a six-year old unpublished federal court decision that: (1) cited no prior decisions raising an issue of employment discrimination; (2) was issued four years before the Agency’s final decision; and (3) contained no information regarding years in practice or experience of the attorneys involved in that case.  The Commission found that the attorney’s verified statements of fees and costs, her affidavits, and the affidavits from an attorney attesting to the reasonableness of the hourly rates charged by the attorney, her senior partner, and the three associates was sufficient to justify the claimed rates.  The Commission further found that the Agency incorrectly deducted 15.1 hours as excessive, duplicative or redundant, and 7 additional hours which were supported by a second fee request.  Finally, Complainant provided evidence to support an award for additional costs beyond the Agency’s award.  Dexter K. v. Dep’t of Agric., EEOC Appeal No. 0120181516, (Sep. 11, 2019)(A summary of the Commission’s decision regarding compensatory damages can be found below- Editor.)

Commission Modified Award of Attorney’s Fees.  In a prior decision, the Commission found that the Agency violated the Rehabilitation Act when it delayed providing Complainant with reasonable accommodation, but also concluded that Complainant failed to prove her claim of harassment.  The Agency subsequently awarded Complainant attorney’s fees, and the Commission modified the award on appeal.  The Commission found that the Agency properly excluded all but two hours of time spent prior to the filing of the formal complaint, as well as time spent on clerical work such as preparing binders, serving a motion, walking to the mailbox, correcting addresses, and creating a table of contents.  While the Commission acknowledged that these tasks are necessary, they are considered part of the attorney’s overhead and not separately reimbursable.  The Commission found that work claimed by two attorneys for pre-hearing tasks was not duplicative, as it appeared, for example, that one attorney did more work preparing for depositions, while the second attorney conducted the depositions.  The Commission, however, agreed with the Agency that much of the work claimed relating to the appeal brief was excessive.  The Commission stated that the Agency’s 50-percent reduction was excessive, and found that a reduction by one-third was more appropriate.  The Commission noted that the AJ sanctioned Complainant due to the conduct of her counsel by dismissing the hearing.  Therefore, the Agency properly disallowed fees for time spent at the hearing.  The Commission rejected Complainant’s assertion that counsel had already been sanctioned by the dismissal of the hearing, stating that the sanction resulted in a detriment to Complainant, while the denial of fees for time spent at the hearing was more appropriately directed toward Complainant’s counsel and his conduct.  Finally, the Commission concluded that Complainant’s unsuccessful harassment claim was sufficiently distinct from her successful denial of accommodation claim.  The Commission noted, however, that the denial of accommodation was the primary claim, and modified the Agency’s reduction in fees to 30-percent for the unsuccessful portion of the complaint.  The Commission affirmed the award of costs, finding that the Agency’s denial of costs associated with the hearing was proper, as was the denial of costs for online legal research which was considered overhead.  Doria R. v. Nat’l Science Found., EEOC Appeal No. 0120181319 (Sept. 10, 2019).

Commission Affirmed Agency’s Award of Attorney’s Fees.  The Commission found that the Agency properly awarded attorney’s fees in the amount of $13,720 for 39.2 hours of work performed at an hourly rate of $350.  Although the fee agreement between Complainant and his representative provided for payment at $425 per hour, the record evidence supported the Agency’s determination that the $350 prevailing market rate in the attorney’s legal community was reasonable and appropriate.  The Commission agreed with the Agency that 6.1 hours of clerical work was part of the attorney’s overhead and as such these expenses were not reimbursable.  Further, an addendum filed by Complainant’s attorney was not a factor in the appellate decision, and, therefore, the Agency properly deducted the 12.8 hours of work done on the addendum.  Finally, the Agency properly deducted 5.7 hours of research as duplicative and redundant because Complainant’s attorney used no new case law, and only researched case law used in a previous document.  Vaughn C. v. Dep’t of the Air Force, EEOC Appeal No. 0120181371 (Sep. 4, 2019).

Commission Modified Award of Attorney’s Fees.  The Commission modified the Agency’s award of attorney’s fees where Complainant prevailed on only one claim, a per se violation of the Rehabilitation Act involving a management official’s disclosure of Complainant’s medical condition.  The Commission concurred with the Agency that a significant reduction in attorney’s fees was appropriate, because Complainant did not prevail on his hostile work environment claim.  Complainant’s hostile environment claim on which he did not prevail was fractionable from the disclosure of medical information.  The Commission found, however, that a reduction of 75 percent, rather than the Agency’s 90 percent reduction, was reasonable.  Mario G. v. Dep’t of the Air Force, EEOC Appeal No. 0120180942 (June 11, 2019).

Commission Modified Award of Attorney’s Fees.  The Commission previously found that the Agency denied Complainant reasonable accommodation and discriminated against him based on disability and prior EEO activity.  The Agency then issued a final decision regarding Complainant’s award of attorney’s fees and costs.  On appeal, the Commission modified the award.  The Commission agreed with the Agency that the attorney failed to show that she had ever billed or collected $650 per hour.  The Commission noted, however, that the attorney had been awarded $450 per hour for 10 years and found that some increase over time was needed considering her significant experience in employment discrimination.  Therefore, the Commission increased the hourly rate to $500.  The Commission reduced the hours claimed for fees and costs prior to the time Complainant filed his complaint, and excluded time spent for things such as “Received affidavit package,” and “Affidavit mailed to Investigator” as being vague.  The Commission declined to implement the Agency’s across-the-board reduction of the remaining hours.  Victor S. v. U.S. Postal Serv., EEOC Appeal No. 0120180973 (Apr. 16, 2019).

Commission Modified Award of Attorney’s Fees.  The Commission previously found that the Agency discriminated against Complainant when it revoked her telework accommodation and failed to reasonably accommodate her.  Complainant subsequently appealed to the Commission the Agency’s decision awarding attorney’s fees.  The Commission initially concurred with the Agency that Complainant was not entitled to fees associated with an untimely appeal brief, or for work performed on matters unrelated to the finding of discrimination.  The Commission found, however, that the Agency’s 50-percent reduction of the remaining fees was too severe, and instead reduced the requested fees by 25 percent due to a number of vague entries such as “Fact Research,” and “daily report.”  The Commission also reduced the fee award for supplemental fees, stating that work performed by a financial expert was not related to the finding of discrimination.  The Commission disallowed costs associated with work during the pre-complaint stage, an economic loss study, and Westlaw research.  Myrtie P. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120180246 (Mar. 19, 2019). (A summary of the Commission’s decision regarding compensatory damages can be found below- Editor.)

Commission Modified Agency’s Award of Attorney’s Fees.  In a prior decision, the Commission affirmed the Agency’s finding of no discrimination on some claims, but also found that the Agency denied Complainant reasonable accommodation and subjected her to disparate treatment and harassment.  The Commission ordered the Agency, among other things, to pay Complainant attorney’s fees.  The Agency imposed a 30-percent across-the-board reduction in the amount requested, finding that the number of hours claimed by Complainant’s attorney was excessive.    On appeal, the Commission initially noted that the first 15 pages of supporting documentation reflected time spent prior to filing the formal EEO complaint, and there was no indication the entries were related to a determination as to whether to represent Complainant.  Therefore, Complainant was not entitled to payment for these hours.  The Commission concluded that the Agency made an appropriate across-the-board reduction to the remaining fees requested.  The claim was straightforward with no depositions, hearings, or novel issues.  As such, the hours claimed were excessive.  Denese G. v. Dep’t of the Treasury, EEOC Appeal No. 0120172618 (Mar. 5, 2019).

Commission Modified Agency’s Award of Attorney’s Fees. The Agency issued a final decision finding no discrimination regarding Complainant’s ongoing harassment and disparate treatment claims but concluded that management failed to reasonably accommodate Complainant’s medical condition. Complainant submitted a claim for compensatory damages and attorney’s fees following the Agency’s decision. The Agency noted that the records submitted only accounted for a portion of the requested total.  The Agency then reduced that amount by 50 percent, reasoning that Complainant prevailed on only part of her claim.  The Commission did not consider a corrected accounting of fees submitted by Complainant’s attorney for the first time on appeal.  The Commission found, however, that the Agency’s across-the-board reduction in fees was not appropriate.  The Commission stated that both the successful and unsuccessful claims arose from the same set of common facts.  Specifically, the manager’s harassment, imposition of discipline and comments to Complainant were not utterly separate and distinct from the manager’s failure to engage in the interactive process.  Therefore, the Commission awarded fees in the amount originally submitted to the Agency.  Sid E. v. Dep’t of the Army, EEOC Appeal No. 0120172812 (Feb. 27, 2019)(A summary of the Commission’s decision regarding compensatory damages can be found below- Editor.)

Request for Additional Attorney’s Fees Denied.  The Agency found that it breached a settlement agreement between the parties and stated that Complainant was entitled to attorney’s fees.  The Agency awarded all fees requested by Complainant’s attorneys.  Approximately one month later, Complainant’s successor attorney filed a supplemental fee petition for work performed after the original fee petition was submitted.  The Agency denied the request for additional fees, and the Commission affirmed the Agency’s decision on appeal.  The Commission noted that Complainant was not entitled to fees for time spent engaged in nonproductive work.  The supplemental petition for work expended by the successor attorney on tasks such as reviewing the file, sending introductory emails to Complainant, and providing payment information to the Agency was unreasonable and the additional work was not productive.  Therefore, Complainant was not entitled to additional attorney’s fees.  Samuel C. v. Dep’t of Energy, EEOC Appeal No. 0120182178 (Nov. 15, 2018).

Agency Improperly Deducted Amount of Retainer from Award of Attorney’s Fees.  The Commission found that the Agency erred when it deducted $1,000 that Complainant paid her attorney as a retainer from the total amount of attorney’s fees awarded in her claim.  The Agency did not challenge the claimed hours expended or the attorney’s $300 hourly rate.  In addition, the Agency concluded that Complainant was entitled to the requested $112.88 for costs.  The Commission noted that any agreement between Complainant and her attorney is a private contractual matter not within the Commission’s purview.  Therefore, Complainant was entitled to the full amount of attorney’s fees and costs requested.  Furthermore, the Agency erroneously declared that, even though Complainant established her entitlement to the fees, it would not remit payment to Complainant because she was not an attorney, law clerk, or other representative of the attorney’s firm.  The Commission noted that the right to recover attorney's fees and costs lies with Complainant.  Verdie A. v. Dep’t of Agric., EEOC Appeal No. 0120170100 (Nov. 6, 2018).

Class Certification

Non-Class Member Lacked Standing to Challenge Class Settlement.  The Commission affirmed the AJ’s finding that Appellant, who was not a member of the underlying class, did not have standing to challenge the settlement of the class complaint.  Appellant retired from the Agency prior to the period agreed upon in the class settlement, and sought to become part of the class.  The AJ properly approved the class settlement which excluded appellant’s time period.  The AJ found the settlement to be fair, reasonable, and adequate to the class as a whole.  Appellant and two others were untimely in their claims and they did not work for the Agency during the period of time identified in the class complaint, so they were not class members.  The Commission agreed Appellant did not meet the definition of a class member and did not have standing to challenge the resolution.  The Commission was not persuaded by Appellant’s arguments to redefine the class at this juncture, noting that, as a matter of policy, the Commission encourages settlement of EEO complaints at any stage of processing.  Shawnta A. v. Dep’t of Justice, EEOC Appeal No. 0120181245 (June 26, 2019).

Commission Affirmed Denial of Class Certification.  Complainant filed a formal EEO complaint alleging that the Agency did not provide him with promotional opportunities because of his race.  The Agency processed the complaint as a class complaint and forwarded it to an AJ for consideration.  The AJ ultimately denied class certification finding that the purported class did not meet the requirements of numerosity, commonality, and typicality.  The Commission affirmed the decision on appeal.  The Commission agreed with the AJ that Complainant did not allege a timely denial of promotion and indicated only that a coworker was promoted to a position for which Complainant did not apply.  Therefore, the Commission concluded that the Class Agent did not show that there was a shared injury among the class members sufficient to meet the requirements of commonality or typicality.  The Commission also concurred with the AJ’s finding that the purported class consisting of 18 potential members failed to meet the numerosity prerequisite for certification.  Finally, the Class Agent did not retain counsel and did not possess the skills, experience and resources necessary to represent the interests of the class.  The Commission also affirmed the Agency’s dismissal of Complainant’s individual claim on the grounds that the matter failed to state a claim given Complainant’s acknowledgment that he did not apply for the promotion at issue.  William G. v. U.S. Postal Serv., EEOC Appeal No. 2019001459 (May 23, 2019).

Commission Affirmed AJ’s Denial of Class Certification.  The purported Class Agent alleged his supervisor violated the Agency’s zero tolerance policy against threats, verbally berated employees, did not treat employees with dignity and respect, abused her position, engaged in “reckless indifference and malice,” and overall violated Agency policy and regulations, and federal statutes.  The Class Agent cited several bases for the claim, including race (“various”), sex (“both”), disability (distressed heart and sleep apnea) and reprisal.  He indicated that there were 11 class members.  The Commission was not persuaded that common questions existed among the purported class members.  While the class complaint generally alleged that the supervisor engaged in actions that violated policies and laws, it did not provide details about the specific actions of the supervisor or how each purported class member was impacted by the conduct.  Also, the class complaint was unclear as to whether class members other than the Class Agent were disciplined, so did not reflect a shared injury among the class members.  The Commission found a lack of typicality because the Class Agent noted the members were of various races and both sexes, while only two had disabilities and one engaged in prior EEO activity.  The Commission concurred with the AJ that the class was not so large that consolidated or separate complaints would be impractical.  Finally, the Commission found the class lacked adequate representation because the Class Agent lacked the skills, experience, time, and resources necessary to represent the interests of the class.  He also failed to identify an attorney who might represent the class.  Thaddeus N. v. U.S. Postal Serv., EEOC Appeal No. 0120142701 (Feb. 6, 2019).

Compensatory Damages

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

Commission Affirmed AJ's Award of $250,000 in Nonpecuniary Compensatory Damages. The Agency accepted the Administrative Judge’s finding of discrimination based on failure to accommodate Complainant’s physical disabilities but rejected the $250,000 award of non-pecuniary compensatory damages.  The Agency, however, provided only conclusory statements on appeal, and did not provide any evidence that the AJ erred in making the award.  The record revealed that as a result of the Agency’s failure to provide accommodation, Complainant was rendered incapable of carrying a pregnancy and suffered ongoing pain and medical issues.  She suffered nerve damage, exacerbated back pain, and problems with her legs.  Complainant’s doctor stated that Complainant continued to suffer pain, spasms, stiffness, and “occasional giving way of the legs,” and described her prognosis as “guarded.”  The Commission reasoned that, given the nature, severity and duration of the harm suffered by the Complainant, as well as the abundance of supporting evidence, the award was consistent with amounts awarded in similar cases. Taunya P. v. U.S. Postal Serv., EEOC Appeal No. 0720180022 (Sept. 27, 2019).

Commission Increased Award of Nonpecuniary Damages to $75,000.  The Agency concluded that it failed to provide Complainant with reasonable accommodation in the form of telework, and awarded her $12,000 in nonpecuniary compensatory damages.  The Commission increased the award to $75,000 on appeal.  Complainant provided clear and corroborated evidence of emotional and physical harm that began following her manager’s removal of her reasonable accommodation and continued for at least 16 months until Complainant resigned from the agency.  Complainant’s physician described the Agency’s decision and explanation given to revoke Complainant’s teleworking as “senseless,” and Complainant’s husband vividly described the initial and continuing impact that the manager’s decision had on complainant and on her family as a whole.  Complainant was prescribed medication to deal with the revocation of her accommodation, and experienced emotional outbursts, exacerbated migraines, and increased fatigue.  Complainant also stated that she developed suicidal thoughts.  The Commission credited the Agency’s Regional Director who stated that Complainant physically threw up at the prospect of having to go into the office.  The Commission found that the increased award was in line with similar cases.  The Commission also ordered the Agency to determine whether Complainant would have received payment for accrued sick leave, restoration of her sick leave balance, or credit for annuity purposes, and take appropriate action.   Iliana S. v. Dep’t of Justice, EEOC Appeal No. 0120181195 (June 12, 2019).

Commission Increased Award of Damages to $65,000.  The Agency adopted the AJ’s finding that Complainant was subjected to discrimination and harassment, as well as the award of $10,500 in nonpecuniary compensatory damages.  The Commission increased the award to $65,000 on appeal, finding that, given the nature, duration and severity of Complainant’s harm, that amount was appropriate and consistent with awards in similar cases.  Complainant was subjected to numerous instances of harassment over a protracted period of time that caused her to suffer mental anguish, stress, anxiety attacks, crying spells, neck pain, and headaches.  She was treated by a doctor for stress and anxiety and prescribed medication.  Complainant also felt humiliated and embarrassed, and was concerned for her job.  Leota F. v. U.S. Postal Serv., EEOC Appeal No. 0120180717 (Aug. 22, 2019).

Commission Increased Award of Damages to $65,000.  The Agency found that it failed to provide Complainant with reasonable accommodation on five occasions during a five-month period, and awarded her, among other things, $40,000 in nonpecuniary compensatory damages.  The Commission increased the award to $65,000 on appeal, finding that Complainant’s statement, along with that of a supporting witness, established that for an extended period, the Agency’s failure to accommodate Complainant caused her to experience physical discomfort/pain, deterioration of her medical condition, emotional distress, loss of enjoyment of life, and negative impacts on familial relationships.  Further, the award was consistent with Commission precedent.  The Commission affirmed the Agency’s award of $5,332.14 in past pecuniary damages, as well as the Agency’s finding that Complainant did not prove her claim for future pecuniary damages.  Elene K. v. Soc. Sec. Admin., EEOC Appeal No. 0120170703 (Mar. 27, 2019).

Commission Increased Award of Damages to $65,000.  The Commission previously found that the Agency discriminated against Complainant when it revoked her telework accommodation and failed to reasonably accommodate her.  Complainant subsequently appealed the Agency’s decision awarding $30,000 in non-pecuniary damages to the Commission.  The Commission agreed with the Agency that Complainant was only entitled to damages associated with the denial of reasonable accommodation.  The Commission found, however, that an award of $65,000 was more consistent with Commission precedent.  The Agency failed to adequately consider the effects that the denial of accommodation and accompanying stress had on Complainant and her medical conditions.  Specifically, Complainant’s doctor indicated that her Graves disease was no longer controlled, and Complainant stated she experienced twitching, fatigue, inability to sleep, nausea, severe weight fluctuations, skin outbreaks, and blurred vision.  Complainant’s mother and former coworker provided corroborating affidavits in support of Complainant’s claim.  The Commission affirmed the Agency’s denial of pecuniary damages because the expenses sought occurred outside of the events found to have violated the Rehabilitation Act.  Myrtie P. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120180246 (Mar. 19, 2019). (A summary of the Commission’s decision regarding attorney’s fees can be found above- Editor.)

Commission Increased Award of Damages to $50,000.  The Agency found that Complainant was discriminated against based on his race when he was not selected for a position.  On appeal, the Commission increased the Agency’s compensatory damages award from $15,000 to $50,000.  Complainant provided his own sworn statement as well as declarations from his husband, his sister, and four friends, but did not provide medical or documentary evidence.  Complainant experienced sleeplessness, crying spells, weight loss, humiliation, anger and feelings of helplessness.  Other family members and friends indicated that Complainant became anxious, depressed, despondent and withdrawn, and his relationship with his husband suffered as a result.  The Commission noted that Complainant was not entitled to damages for emotional distress caused by the processing of his EEO complaint.  Nevertheless, the Commission concluded that an award of $50,000 was consistent with awards in similar cases.  Dexter K. v. Dep’t of Agric., EEOC Appeal No. 0120181516, (Sep. 11, 2019)(A summary of the Commission’s decision regarding attorney’s fees can be found below- Editor.)

Commission Increased Award of Nonpecuniary Damages to $50,000.   The Agency found that Complainant was denied accommodation for her disability and awarded her $30,000 in nonpecuniary damages.  The Commission increased the award to $50,000 on appeal.  Complainant, her spouse, son, and daughter submitted sworn statements attesting that Complainant experienced social withdrawal, disengagement from family, depression, anxiety, nightmares, sleeping problems, a fear of being fired, and the aggravation of her physical condition, among other symptoms, as a result of the Agency’s failure to accommodate her medical condition.  Complainant visited her psychiatrist and went to the emergency room when she overdosed on medication prescribed for her anxiety caused by the discrimination.  The Agency found that Complainant’s emotional harm was also related to difficulties with her workload and fear of losing her job due to poor job performance for which no discrimination was found.  The Agency acknowledged, however, that the discrimination caused her to experience pain and suffering, including stabbing pains in her back and legs.  Complainant provided medical documentation establishing her emotional and physical condition at the beginning of the discriminatory period.  The Commission found an award of $50,000 to be more consistent with awards in similar cases.   The Commission affirmed the Agency’s award of pecuniary damages and restoration of leave.  Marybeth C. v. Dep’t of Health & Human Serv., EEOC Appeal No. 0120170811 (June 11, 2019).

Commission Increased Agency’s Award of Non-Pecuniary Damages to $50,000.  Upon a second remand by the Commission, and a determination that the Agency failed to reasonably accommodate Complainant, the Agency issued a final decision awarding Complainant $5,000 in non-pecuniary compensatory damages.  Complainant appealed and provided evidence that she suffered injury because of the Agency’s failure to accommodate her for more than five years.  Specifically, Complainant stated that she suffered great pain and fatigue due to working without accommodation and was unable to do household chores.  She also experienced elevated blood pressure and loss of enjoyment of life.  Complainant’s husband submitted a statement supporting Complainant’s claim.  The Commission concluded that the Agency was not responsible for any pre-existing conditions, but was responsible for exacerbating Complainant’s condition and determined that an award of $50,000.00 was more in line with Commission precedent.  Yvette H. v. Dept. of Def., EEOC Appeal No. 0120172249 (Mar. 21, 2019).

Commission Increased Award of Non-Pecuniary Damages to $40,000.  The Agency found that Complainant was discriminated against on the basis of reprisal when her second line supervisor disclosed her EEO activity to two union officials.  On appeal, the Commission increased the Agency’s award of nonpecuniary damages from $10,000 to $40,000.  The events she experienced at work caused Complainant emotional and physical harm and negatively affected her personal and familial relationships.  Complainant’s physicians diagnosed her with Dysthymic Disorder, Generalized Anxiety Disorder, and Major Depressive Disorder.  The medical documentation showed that she experienced alienated personal relationships, marital problems, and hopelessness, and that the Agency’s discrimination significantly diminished her quality of life.  Complainant also experienced physical symptoms, including trouble sleeping, a decreased appetite, and severe headaches.  The Commission agreed that Complainant was not entitled to compensation for harm that occurred prior to the discrimination, but stated that the harm was exacerbated by the discriminatory conduct.  The Commission affirmed the Agency’s denial of attorney’s fees, noting the absence of appropriate documentation to support the request.  Melodee M. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120180064 (June 14, 2019).

Commission Increased Award of Compensatory Damages to $25,000.  Following the Commission’s prior finding that the Agency retaliated against Complainant when it reassigned him days after raising a claim of discriminatory nonselection, the Agency awarded Complainant $7,500 in compensatory damages.  The Commission subsequently increased the award on appeal.  Complainant’s testimony and his wife’s statement showed that he suffered emotional harm when he was reassigned to a less desirable area for approximately two years.  Complainant was humiliated, anxious, lost sleep, and experienced stress resulting in marital and family strain.  The Commission agreed with the Agency that there was no medical evidence indicating that Complainant’s cancer was related to his new work environment, and that Complainant was not entitled to double recovery as he had already been awarded damages for the original nonselection claim.  The Commission stated, however, that the record showed that Complainant experienced specific negative consequences due to the unlawful reassignment.  The Commission concluded that an award of $25,000 was appropriate in this case.  Gerald L. v. Tenn. Valley Auth., EEOC Appeal No. 0120171266 (Oct. 23, 2018).

Commission Increased Award of Compensatory Damages to $20,000.  In a prior decision, the Commission found that the Agency retaliated against Complainant, and the Agency subsequently awarded Complainant $1,500 in damages.  On appeal, the Commission increased the award to $20,000.  While the Commission agreed with the Agency that Complainant could not be awarded damages for pain and suffering that occurred prior to the discrimination, the Commission found that Complainant established that the Agency’s discriminatory actions exacerbated her pre-existing depression, anxiety, and post-traumatic stress disorder.  The discrimination resulted in increased stress, weight gain, withdrawal from family, fear of being fired, the end of her marriage, and an increase in medication use.  Given the nature, severity and duration of Complainant’s harm, the Commission found that an award of $20,000 was more appropriate.  The Commission also awarded Complainant $50 in pecuniary damages, noting that the Agency did not contest Complainant’s claim.  Sanora S. v. Dep’t of Health & Human Serv., EEOC Appeal No. 0120171305 (Dec. 21, 2018).

Commission Affirmed AJ’s Award of $16,000 in Compensatory Damages.  Following a hearing, the AJ found that the Agency discriminated against Complainant when it did not make a good faith effort to accommodate him for a period of approximately 10 weeks.  As relief, the AJ awarded Complainant, among other things, $16,000 in nonpecuniary compensatory damages.  The Commission affirmed the award on appeal.  Complainant provided statements from two coworkers in support of his claim.  Complainant had difficulty sleeping, isolated himself, and was frustrated, irritated and anxious.  While Complainant questioned the AJ’s finding that the Agency engaged in the interactive process after the 10-week period, the Commission found that substantial evidence showed that the Agency attempted to obtain additional information regarding Complainant’s condition after it granted his request to telework, and it was reasonable to allow time to implement the accommodation.  The Commission concluded that $16,000 was in line with awards in similar cases.  Kerry B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120180317 (May 31, 2019).

Commission Affirmed AJ’s Award of $15,000 in Compensatory Damages.  Following a hearing, the AJ found that Complainant was harassed when the Agency issued him a Memorandum for Record of Pre-Action Investigation Meeting, and awarded him, among other things, $15,000 in nonpecuniary compensatory damages.  The Commission affirmed the award on appeal.  Complainant testified that he had difficulty sleeping, experienced stress and frustration, gained weight, feared losing his job, and experienced marital problems.  Complainant’s wife provided testimony in support of his claim.  Although finding that Complainant was not entitled to damages for stress from pursuing his EEO complaint, the Commission concluded that his harm was otherwise consistent with other decisions which awarded $10,000.  Therefore, an award of $15,000, when considering the need to adjust for inflation,  was proper.  Jess P. v. Dep’t of Def., EEOC Appeal No. 0120180553 (May 31, 2019).

Commission Increased Award of Damages to $15,000.  The Commission increased the Agency’s award of non-pecuniary damages from $5,000 to $15,000.  The Commission noted that Complainant had pre-existing conditions (PTSD and depression) and the Agency was only liable for additional harm or aggravation caused by the discrimination (denial/delay of reasonable accommodation).  The record contained evidence of aggravation from Complainant, his wife and his psychologist.  Complainant reported to his psychologist that the delay in receiving accommodation caused high levels of anxiety, which increased his stress.  Complainant stated that he had to forgo participating in local mountain trail races and was not able to train because of mental and physical exhaustion.  He felt hopeless, experienced frequent and severe flare ups of irritable bowel syndrome and had extreme fatigue from lack of sleep due to anxiety and stress from not having a reasonable accommodation.  Complainant’s wife stated that she noticed a considerable difference in Complainant’s behaviors and mood, and Complainant withdrew from social interactions.  Andy B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019000791 (Mar. 15, 2019).

Commission Increased Agency’s Award of Non-Pecuniary Damages to $15,000.  In a prior decision, the Commission found that the Agency discriminated against Complainant based on her disability when it asked her to remove a religious item from her desk.  The Agency subsequently awarded Complainant $10,000 in non-pecuniary compensatory damages, and the Commission increased the award to $15,000 on appeal.  Complainant had previously sought treatment for work-related stress and was diagnosed with adjustment disorder, recurrent major depression, panic attacks, and PTSD.  A psychiatric evaluation revealed that Complainant considered the religious item as her protection and it provided her with comfort when she was feeling stressed at work.  Complainant’s psychiatrist contended that the removal of the object exacerbated Complainant’s preexisting conditions.  Complainant stated that she felt humiliated when the object was removed.  Complainant referenced additional incidents, both before and after the removal of the object, which she claimed exacerbated her condition.  The Commission agreed with the Agency that the award of damages should only encompass the harm Complainant sustained as a result of the discriminatory act at issue to the extent that the discrimination exacerbated her preexisting conditions.  Nevertheless, the record showed that the religious object helped Complainant cope with work-related stress and her conditions worsened after the item was removed from her desk.  The Commission concluded that an award of $15,000 was not monstrously excessive and was consistent with prior Commission precedent.  The Commission affirmed the Agency’s denial of past pecuniary and future pecuniary damages.  Matilde M. v. Soc. Sec. Admin., EEOC Appeal No. 0120172543 (Feb. 27, 2019).

Commission Increased Agency’s Award of Non-Pecuniary Damages to $15,000.  The Agency issued a final decision finding no discrimination regarding Complainant’s ongoing harassment and disparate treatment claims but concluded that management failed to reasonably accommodate Complainant’s medical condition. Complainant submitted a claim for compensatory damages and attorney’s fees following the Agency’s decision. The Agency denied Complainant’s claim for past pecuniary damages and awarded Complainant $5,000 in non-pecuniary damages.  On appeal, the Commission did not consider the past pecuniary damages because Complainant did not raise the issue.  The Commission did increase the award of non-pecuniary damages to $15,000.  The Commission highlighted that the Agency’s own decision revealed that management blatantly disregarded and rejected Complainant’s requests for accommodation.  Complainant’s wife and sister-in-law stated that Complainant suffered emotional pain, and mental anguish as a result of the denial of accommodation, and this exacerbated his condition.  The Commission noted that, despite the Agency’s assertions, it could not make a clear distinction between the harm resulting from the express finding of discrimination by the manager and the manager’s other alleged, but unproven, acts of discrimination.  The Commission noted that $15,000 was not monstrously excessive and accounted for the nature of the Agency’s discriminatory actions and the harm it caused.  Sid E. v. Dep’t of the Army, EEOC Appeal No. 0120172812 (Feb. 27, 2019)(A summary of the Commission’s decision regarding attorney’s fees can be found above-Editor.)

Commission Increased Award of Compensatory Damages to $15,000.  Following the Agency’s finding that Complainant’s supervisor retaliated against him when he denied Complainant a performance award, the Commission increased the Agency’s award of compensatory damages from $1,000 to $15,000.  In support of his claim for damages, Complainant submitted a letter indicating the Agency’s retaliation caused him three years of depression, anxiety, sleep disturbance, and headaches.  He also noted that he was diagnosed with high blood pressure, ocular hypertension, and exacerbation of other conditions.  Complainant provided statements from his physician and family members addressing Complainant’s reaction to not receiving the award, including shame, embarrassment, withdrawing from family, friends and activities, anxiety, sleep problems, and sadness.  The Commission found no evidence to support Complainant’s claim for pecuniary damages.  Ethan M. v. Dep’t of Agric., EEOC Appeal No. 0120170519 (Oct. 12, 2018).

Commission Affirmed Agency’s Award of $10,000 in Compensatory Damages.  The Commission previously found that the Agency denied Complainant reasonable accommodation when it involuntarily reassigned him to a position he was unable to perform because of his medical restrictions and later sent him home because there was allegedly no work available.  The Agency subsequently awarded Complainant $10,000 in nonpecuniary compensatory damages, and the Commission affirmed the award on appeal.  The Commission noted that there was no question Complainant experienced harm resulting from the discrimination.  Complainant suffered ongoing stress, depression, and insomnia.  Beyond conclusory statements, however, Complainant provided few details concerning the psychological or physical harm he suffered due to the discrimination.  Complainant alleged he developed Type II diabetes following the discrimination and submitted articles attempting to show that, because he had no family history of diabetes and was not overweight, the diabetes was caused by the stress from the discrimination.  Nevertheless, Complainant did not produce any evidence demonstrating that there was a nexus between the discrimination and his diagnosis of diabetes.  The Commission concluded that the Agency’s award of $10,000 was sufficient to address the harm Complainant suffered and was consistent with decisions in comparable cases.  The Commission also affirmed the Agency’s award of $29.49 in pecuniary damages for antidepressants and sleep medication related to the depression and insomnia he experienced due to the discrimination.  Victor S. v. U.S. Postal Serv., EEOC Appeal No. 0120181004 (May 8, 2019).

Commission Affirmed Agency’s Award of $10,000 in Compensatory Damages.  The Agency found that Complainant was discriminated against when management required additional medical documentation prior to providing her with certain computer software as an accommodation.  The Agency subsequently awarded Complainant $10,000 in nonpecuniary compensatory damages, and the Commission affirmed the award on appeal.  Complainant alleged that she experienced anxiety attacks, depression, mental anguish, and became anti-social, indicating that she will continue to see a psychologist for emotional stress and take related prescriptions indefinitely.  While Complainant provided letters from her husband, mother, and sister regarding her emotional distress, they attributed Complainant’s condition not only to the denial of accommodation, but also to Complainant’s worker’s compensation claim and other contributing factors.  Complainant’s doctor also noted that Complainant experienced an unrelated traumatic incident that she had difficulty getting over.  The Commission found that the award of $10,000 was appropriate given that a substantial portion of the emotional distress complainant suffered was related to factors outside of the denial of accommodation.  The Commission agreed with the Agency that Complainant failed to provide evidence linking her claim for pecuniary damages to the denial of accommodation.  Nila S. v. Dep’t of the Treasury, EEOC Appeal No. 2019000420 (May 8, 2019).

Commission Increased Award of Compensatory Damages to $10,000.  The Agency awarded Complainant $1,000 in non-pecuniary damages following a finding by the Commission that it failed to reasonably accommodate him.  Complainant stated that he experienced emotional distress and mental anguish that led to headaches, sleeplessness, and minor bouts of depression. Complainant explained that his marriage also suffered “immeasurably.”  Complainant further explained that when he did not receive a reasonable accommodation for the nine months he experienced severe emotional distress due to his “realization that [he] had no choice but to apply for retirement.”  Complainant ultimately applied for a medical retirement.  The Commission found that an award of $10,000 was consistent with its prior decisions in similar cases.  Complainant provided no other objective evidence of his emotional distress beyond his personal statement.  In addition, he conceded that part of the emotional harm he experienced was caused by the Agency’s alleged refusal to provide him with religious accommodation for which there had not been a finding of discrimination.  The Commission affirmed the Agency’s award of $1,313.48 in past pecuniary damages for expenses incurred in processing his complaint.  Harold M. v. Dep’t of the Air Force, EEOC Appeal No. 2019002082 (Apr. 30, 2019).

Commission Increased Award of Nonpecuniary Damages to $10,000.  After finding that it denied Complainant reasonable accommodation, the Agency awarded her $7,000 in nonpecuniary compensatory damages.  The Commission increased the award to $10,000 on appeal.  Complainant noted that after she was denied accommodation, she was under immense stress and prescribed medication for anxiety.  She also experienced humiliation and embarrassment.  The Commission agreed with the Agency that much of the emotional distress Complainant suffered occurred before the Agency denied her accommodation and was related to an alleged hostile work environment for which no discrimination was found.  The Commission also found no connection between the Agency’s denial of accommodation and Complainant’s physical ailments such as her allergies, spine condition, and ear infection.  Nevertheless, the Commission found that $10,000 more adequately compensated Complainant for the harm she suffered as a result of the Agency’s failure to reasonably accommodate her disability.  The Commission affirmed the Agency’s denial of Complainant’s request for pecuniary damages.  Keri C. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120171541 (Apr. 12, 2019).

Commission Increased Award of Non-Pecuniary Damages to $10,000.  The Agency awarded Complainant $5,000 in damages regarding its finding only on the claim of retaliation.  Complainant supported her claim for compensatory damages with an affidavit and statements from a manager, a representative, her siblings and her daughter.  Prior to the period of alleged discrimination, Complainant claimed she had no emotional or health problems.  However, during the discrimination she stated she suffered from panic attacks, insomnia, high blood pressure, irritability, headaches, and feelings of isolation.  The manager stated Complainant, a well-adjusted dedicated employee, descended into extreme emotional distress.  Complainant’s family observed Complainant’s dramatic change in appearance, chronic insomnia, fatigue, tension headaches and nervousness and her daughter stated Complainant became preoccupied with problems at work, leaving her anxious and depressed.  The Agency noted the evidence regarding Complainant’s emotional pain and suffering concerned the entire period, but the reprisal only concerned one year, and it could not identify a new emotional harm from the retaliation.  Nevertheless, the Agency found a causal link between the reprisal and some amount of emotional harm.  The Commission found that even if Complainant had pre-existing conditions, there was little doubt the Agency’s reprisal aggravated those conditions.  The Commission increased the award based on the severity of the harm and consistent with prior Commission precedent.  Davida L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120172609 (Feb. 15, 2019)

Commission Increased Award of Non-Pecuniary Damages to $10,000.  The Agency found that Complainant was subject to discrimination when it failed to reasonably accommodate Complainant’s physical and mental disabilities in a timely manner.  Among other remedies, the Agency awarded Complainant $500 in non-pecuniary damages for the harm she suffered because of the failure to accommodate. The Agency attempted to minimize the length of time Complainant was harmed, ignoring its own finding that Complainant was subject to discrimination for a period of eight months.  Accordingly, the Commission was unpersuaded by the Agency’s attempt to recant its finding of discrimination or limit the duration of the time of injury and increased the award of non-pecuniary damages to $10,000 to more appropriately provide full and make-whole relief.  Complainant submitted statements from her husband and a colleague, as well as medical evidence in support of her claim for pain and suffering she experienced when she was forced to drive a government van after the Agency was made aware of her back and neck conditions.  Complainant had to take pain medication and visited the hospital several times.  Gia M. v. Dep’t of Def., EEOC Appeal No. 0120172952 (Feb. 8, 2019).

Commission Increased Award of Non-Pecuniary Damages to $7,500.  The Commission increased the Agency’s award of $3,000 in compensatory damages to $7,500 for harm sustained when he was denied reasonable accommodation.  Complainant stated that he was depressed, stayed home, did not see his children or grandchildren as often as he would like, and had no social life.  In increasing the award, the Commission noted that Complainant stated he had been denied accommodation for two years at the time of the hearing.  Will K. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120172368 (Dec. 20, 2018).

Commission Increased Award of Compensatory Damages to $5,000.  The Agency found that management failed to engage in a good faith effort to reasonably accommodate Complainant, and awarded her $2,000 in nonpecuniary damages.  The Commission increased the award to $5,000 on appeal.  Complainant stated that the Agency’s delay in accommodating her aggravated her repetitive motion disorder.  Complainant indicated that she experienced headaches, had difficulty sleeping, and was unable to engage in activities she enjoyed.  Complainant took multiple medications however it was unclear which of those related to her repetitive motion disorder.  Complainant acknowledged that she experienced other stressful events during the period in question.  Complainant submitted statements from family members, as well as medical reports to support her claim.  The Commission found that an award of $5,000 was appropriate and consistent with awards in similar cases.  The Commission affirmed the Agency’s denial of past and future pecuniary damages.  Phillis W. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120180863 (June 5, 2019).

Commission Increased Award of Compensatory Damages to $5,000.  The Commission increased the Agency’s compensatory damages award from $500 to $5,000 related to its delay in providing Complainant with an ergonomic chair as a reasonable accommodation for his knee and back conditions.  Complainant stated that he felt alone, and experienced stress, anxiety, and sleep disturbances.  Further, Complainant continued to suffer from pain in his joints and the delay in providing the accommodation caused him to struggle with on-going pain.  The Agency contended that Complainant failed to show his condition was aggravated by the lack of an ergonomic chair and that he was not “particularly specific” regarding the nature and severity of his harm.  The Commission rejected the Agency’s arguments, finding Complainant was harmed by using the standard chair.  He clearly explained that during the prolonged delay he continued to use his standard chair and applied ice packs he kept in the office freezer to help with the back pain.  Further, he attested that after receiving the new chair, he did not have to put ice on his back at work or take pain pills.  The Commission found that $5,000 took into account the lengthy delay (98 days) and harm Complainant endured as a result of the Agency’s actions and was consistent with amounts awarded in similar cases.  Ronnie R v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019001754 (May 7, 2019).

Commission Affirmed AJ’s Award of $4,500 in Compensatory Damages.  The AJ found that Complainant was subjected to reprisal when she received a letter which included comments that on their face discouraged her from participating in the EEO process.  The AJ awarded Complainant $4,500 in nonpecuniary compensatory damages, and the Commission affirmed the award on appeal.  Complainant presented evidence that connected the discrimination to certain health symptoms that she experienced at or around the time of the discrimination. The AJ noted that three months prior to the discrimination, Complainant experienced a number of symptoms including depression, anxiety, sleep disturbance, crying spells, and gastro-intestinal disturbance.  The AJ found that, nevertheless, Complainant received prescriptions for medication to treat a depressive disorder, stress, and back and shoulder pain sufficiently proximate in time to the discrimination to establish a causal connection.  The AJ found that the remaining symptoms and medication changes which occurred later in time were not causally connected to the discrimination.  The AJ considered the nature, number and duration of Complainant’s pre-existing conditions, many of which were evident years before the discrimination.  The Commission found that the record disclosed that Complainant had been suffering the same and similar symptoms for a work-related workers’ compensation claim for several years prior to the discrimination.  The Commission stated that the Agency was responsible only for loss caused by the alleged discrimination and that the substantial evidence of record did not support a finding that Complainant’s continuing medical conditions were caused by the discrimination.  Ludie M. v. U.S. Postal Serv., EEOC Appeal No. 0120170459 (May 9, 2019).

Commission Increased Award of Non-Pecuniary Damages to $3,500 & Modified Award of Pecuniary Damages.  The Commission previously found that Complainant’s supervisor retaliated against Complainant when he told other employees about Complainant’s EEO activity, but Complainant failed to prove his 11 other claims.  Following a supplemental investigation, the Agency awarded Complainant $2,500 in non-pecuniary compensatory damages, and the Commission increased the award to $3,500 on appeal.  Affidavits from Complainant and his co-workers demonstrated that he had been harassed by his supervisor, and a psychologist reported Complainant had situational depression and general anxiety, but could function normally.  While Complainant felt depressed, anxious, and demoralized, the record did not indicate how long these symptoms lasted.  The psychologist gave no prognosis, and none of the other statements addressed the duration of Complainant’s condition.  Regarding pecuniary damages, the Agency disallowed airline and meal expenses for Complainant’s representatives, stating that Complainant failed to mitigate expenses.  However, the Agency did not meet its burden to show that Complainant failed to exercise reasonable diligence to mitigate those damages. Therefore, Complainant was entitled to the full amount claimed for airline and meal expenses.  The Commission found that the Agency properly denied Complainant’s claim for dental injuries that he incurred prior to the discrimination.  The Commission also found that the Agency properly awarded Complainant one-twelfth of the amount of pecuniary damages claimed because Complainant failed to isolate the damages he incurred related to the discriminatory retaliation from those damages incurred due to the other 11 unsuccessful claims.  Hugh B. v. Int’l Boundary and Water Comm’n, EEOC Appeal No. 0120170001 (Oct. 11, 2018).

The Commission Affirmed the Agency’s Award of $2,500 in Nonpecuniary Damages.  Complainant maintained that she suffered extreme stress, shock and humiliation, lack of social interactions, weight fluctuations, depression, anxiety, insomnia, nightmares, loss of her voice, and other conditions resulting from the Agency’s harassing conduct and retaliatory actions.  The Commission noted, however, that the Agency did not find discrimination regarding Complainant’s allegations of disparate treatment, denial of a reasonable accommodation, and harassment, so Complainant was not entitled to compensatory damages with regard to those issues.  The sole issue for which Complainant was entitled to damages was the Agency’s finding that Complainant’s supervisor made two statements regarding Complainant’s EEO complaint.  Complainant’s evidence did not support an award of nonpecuniary damages greater than $2,500 and the amount adequately compensated Complainant for the harm shown to be causally related to the discriminatory conduct.  Alline B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120181662 (June 28, 2019).

Commission Affirmed Agency’s Award of $1,000 in Non-Pecuniary Damages.  The Commission affirmed the Agency’s finding that Complainant was entitled to $1,000 in compensatory damages related to one incident of reprisal.  The incident occurred when management officials discussed complainant’s EEO complaint during a 90-day performance evaluation.  Complainant sought medical treatment for anxiety, depression and insomnia and also experienced suicidal thoughts, stress, excessive fatigue, humiliation, and marital/family strain.  However, the Commission found that most of Complainant’s emotional harm was caused by factors other than the Agency’s single retaliatory act.  Leonardo M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120172736 (Dec. 7, 2018).

Commission Increased Award of Compensatory Damages to $1,000.  The Commission previously found that the Agency failed to reasonably accommodate Complainant when it did not provide him with an interpreter.  The Commission subsequently increased the Agency’s award of compensatory damages from $500 to $1,000.  Complainant and his wife stated that he felt humiliated and the discrimination affected his social interactions.  The Agency noted that its award was consistent with a previous Commission decision in a similar case.  The Commission agreed with the Agency’s analysis but noted the decision cited was 17 years old, and increased the award to $1,000 to reflect present-day value.  Darius C. v. U.S. Postal Serv., Appeal No, 0120171165 (Oct. 12, 2018).

Complaint Processing

Complainant Entitled to New Hearing Because Alleged Responsible Official Acted as Agency Representative.  The Commission found that the AJ erred by allowing the alleged Responsible Management Official to serve as the Agency’s representative at the administrative hearing.  The Commission has held that permitting a responding management official to attend a hearing and simultaneously act as a witness creates an inherent conflict of interest.  Further, the Commission found that, in the interest of fairness and due to the possible chilling effect of the named Official’s presence during the hearing, Complainant was entitled to a new hearing in which the Official was not involved as an Agency representative.  Katharine B. v. U.S. Postal Serv., EEOC Appeal No. 0120170444 (Dec. 7, 2018).

Dismissals

(See also by category, this issue.)

Commission Affirmed Dismissal of Complaint Covered by Prior Settlement Agreement.  The Commission affirmed the AJ’s dismissal of a complaint based on a prior settlement agreement in another complaint.  Complainant agreed that the consideration she received for resolving the prior complaint satisfied any and all potential and/or existing claims against the Agency as of the date the agreement was signed, and Complainant would voluntary withdraw any and all pending claims and not file any new claims on those matters.  While the agreement did not contain any information identifying the present complaint, the plain meaning of the language in the agreement clearly applied to any complaints related to events or actions that occurred before the signing of the agreement.  The Commission found that this was not a prospective waiver because it did not apply, nor could it be construed as applying, to claims arising after the agreement was signed.  Therefore, the AJ accurately interpreted the settlement agreement as resolving the instant complaint.  Elease S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120181732 (Aug. 30, 2019).

Complaint Improperly Dismissed in Part as Previously Adjudicated by MSPB.  The Commission found that the AJ improperly dismissed Complainant’s hostile work environment claims as previously adjudicated before the Merit Systems Protection Board (MSPB).  The AJ properly dismissed Complainant’s reasonable accommodation claim, because Complainant had appealed that matter, as well as his termination to the MSPB, which affirmed the Agency’s termination and found Complainant was not denied reasonable accommodation.  However, while the AJ dismissed the hostile environment claim on grounds it was “inextricably intertwined” with the matters adjudicated before the MSPB, that doctrine has long been abandoned, and the MSPB did not address the hostile environment claim.  Lilian C. v. Nat’l Aeronautics & Space Admin., EEOC Appeal No. 0120181917 (Aug. 27, 2019).

Complaint Raising Age Discrimination Improperly Dismissed as Covered by Settlement Agreement.  The Commission found that the Agency improperly dismissed Complainant’s complaint alleging, among other things, age-based harassment and removal for failure to state a claim.  While the Agency asserted that Complainant waived any potential claims arising out of her employment in a Last Chance Agreement, the Commission found that the waiver failed to meet the requirements of the Older Workers Benefits Protection Act (OWBPA).  The OWBPA provides that an individual may not waive an age discrimination claim under the ADEA unless the waiver is knowing and voluntary, and lists seven criteria that a waiver must meet.  In this case, the waiver did not specifically refer to claims arising under the ADEA, or advise Complainant in writing to consult with an attorney prior to executing the agreement.  The waiver also did not state that Complainant was given adequate time to consider the agreement, or provide her with at least seven days to revoke the agreement.  Therefore, the waiver did not meet all of the OWBPA requirements, and Complainant’s age-based claims of ongoing harassment and discrimination were improperly dismissed.  The Commission affirmed the dismissal of Complainant’s claim of racial harassment up to the Last Chance Agreement, but noted that any claims occurring after the execution of the agreement were improperly dismissed.  Jaleesa P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001777 (Aug. 14, 2019).

Reasonable Accommodation Claim Improperly Dismissed as Raised in Grievance.  The Commission found that the AJ properly determined that Complainant’s allegations concerning schedule rotations were previously raised in a negotiated grievance procedure.  The AJ erred, however, in finding that the phrase “Especially concerning Complainant’s medical accommodations” in the grievance was sufficient to dismiss Complainant’s denial of reasonable accommodation claim.  There was no evidence that the grievance process addressed the same accommodation matters raised in Complainant’s EEO complaint.  Further, the Agency cannot use a grievance determination regarding whether schedules should be negotiated to dismiss Complainant’s allegation that she is not provided with rest breaks as a reasonable accommodation or to avoid providing her with an effective accommodation.  Therefore, the Commission remanded Complainant’s allegation that she was denied reasonable accommodation for a hearing.  Vasiliki B. v. Dep’t of Agric., EEOC Appeal No. 0120181401 (Aug. 14, 2019).

Complaint Improperly Dismissed as Being Moot & for Failure to State a Claim.  Complainant alleged that she was disciplined; a supervisor failed to give her instructions, watched her work, and told her that she could not have paper and pen on the floor; and a supervisor instructed her in a rude and angry tone, then gave her a pre-disciplinary interview.  The Agency dismissed the first claim as being moot, noting the matter was settled pursuant to a grievance settlement, and the remaining claims for failing to state a claim.  On appeal, the Commission found the settlement was between the Agency and the union.  Complainant did not sign the agreement.  Further, the matter was not moot because there was no evidence the discipline was expunged from Complainant’s records or that she was provided compensation for the time she was placed off work.  Complainant also had an outstanding claim for compensatory damages.  When all claims were considered collectively, Complainant set forth an actionable claim of harassment.  Complainant asserted that management subjected her to a hostile work environment by issuing her discipline, subjecting her to a pre-disciplinary interview, and excessively monitoring her work due to her protected classes.  Therefore, the Agency’s dismissal was improper.  Myrtie P. v. U.S. Postal Serv., EEOC Appeal No. 2019002676 (July 3, 2019).

Agency Improperly Dismissed Complaint for Stating Same Claim Raised Previously.  Complainant alleged that on or around a particular date she became aware a junior co-worker was placed in a higher-level supervisory detail and Complainant was not given the same opportunity.  A previous complaint concerned a similar allegation, but on a different date.  As such, the Commission found that Complainant had not alleged the same claim as in her prior EEO complaint because, while similar, the new allegation did not involve the same time period or incident.  Therefore, the Agency’s dismissal was improper.  Sallie M. v. U.S. Postal Serv., EEOC Appeal No. 2019002991 (July 2, 2019)Additional Decisions Addressing Whether the Matters Involved the Same Claim Raised Previously Include: Clinton M. v. Soc. Sec. Admin., EEOC Appeal No. 2019000586 (Apr. 2, 2019) (Complainant filed a formal complaint alleging that the Agency improperly conducted the hiring process for his reader assistant and hired a lesser qualified candidate, thereby denying him a reasonable accommodation.  The current complaint, filed in 2018, was not identical to the prior complaint, filed in 2017, as the complaints involved separate search processes that occurred during distinct time periods);  Daisy B. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019000820 (Feb. 12, 2019) (Complainant alleged, in a previous complaint, that the Agency failed to accommodate her.  In the present complaint Complainant alleged the Agency failed to update her equipment for her accommodation.  The Commission held these were not identical complaints);  Nerissa S. v.  Dep’t of Veterans Affairs, EEOC Appeal No. 2019000479 (Feb. 12, 2019) (Complainant filed an informal complaint regarding the removal of a reprimand.  Complainant stated she withdrew the complaint when a person in Human Resources informed her the reprimand would be removed after one year.  When the Agency refused to remove the reprimand, she filed the instant complaint.  The Commission found the second complaint sufficiently different from the first complaint because Complainant was told to wait one year, which had now passed); Roman G. v. U.S. Postal Serv., EEOC Appeal No. 2019000444 (Dec. 11, 2018) (Complainant, a former employee of the Agency, raised religious and disability discrimination claims. The Agency determined that the complaint concerned Complainant’s request to be reinstated and the Commission affirmed the Agency’s dismissal of the complaint on grounds that Complainant previously raised the issues in a prior complaint.  The record reflected that Complainant previously filed and then withdrew a formal complaint on the same matter.  Further, Complainant previously raised the matter informally and withdrew that matter. Complainant made no showing of coercion when he withdrew the prior complaints and was not entitled to reinstatement of the claims).

Agency Improperly Dismissed Claim for Official Time as Spin-Off.  Complainant claimed the Agency denied her a reasonable amount of official time to respond to investigative inquiries, and the Agency dismissed the matter on grounds it alleged a spin-off claim.  The Commission’s regulations provide that employees shall have a reasonable amount of official time, if otherwise on duty, to prepare their complaints and respond to requests for information.  Further, the Commission has the authority to remedy a violation of official time without a finding of discrimination.  Therefore, although the claim concerned a previously-filed complaint, the essence of the claim was whether the Agency denied Complainant a reasonable amount of official time.  When an agency denies a request for official time, either in whole or in part, it must include a written statement, deciding on the merits whether the complainant was improperly denied official time in violation of the regulations.  The Commission remanded the claim for a determination of whether Complainant was improperly denied a reasonable amount of official time.  Natalie F. v. Dep’t of the Army, EEOC Appeal No. 2019002021 (June 28, 2019).

Agency Improperly Dismissed Harassment Complaint for Failure to State a Claim & Untimely EEO Contact.  Complainant alleged that she was subjected to ongoing harassment from her supervisor and supervisor’s deputy. Complainant submitted a 38-page document detailing events she experienced at work over a period of almost two years.  On appeal, the Commission found that the Agency erred when it dismissed the complaint for failure to state a claim and untimely EEO Counselor contact.  The Agency failed to fully read the document submitted by Complainant, which alleged timely events and that she had been subjected to a hostile work environment.  While the Agency treated some of the incidents individually as claims of disparate treatment and others as part of the claim of harassment, the Agency should have viewed the alleged incidents together as evidence to support Complainant’s hostile work environment claim.  Further, although the Commission found Complainant had alleged discrete acts that occurred outside of the 45-day time limit for initiating EEO contact, the matters may be used as background evidence to support Complainant’s timely claim of ongoing discriminatory harassment and hostile work environment.  Reita M. v. Dep’t of Transp., EEOC Appeal No. 2019001791 (June 4, 2019); Additional Decisions Addressing an Agency’s Improper Dismissal of an Ongoing Harassment Claim Include: Hana D v. U.S. Postal Serv., EEOC Appeal No. 2019002336 (June 11, 2019) (the formal complaint and the EEO Counselor’s report revealed that Complainant had alleged that she was subjected to harassment on a “daily” basis, of which the specific incidents in her complaint were examples.  When viewing these alleged incidents collectively, they were sufficient to set forth an actionable hostile work environment claim.  The Agency also improperly dismissed 2 claims for untimely EEO counselor contact, because the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, so that the entire claim is actionable, as long as at least one incident occurred within the filing period).

Complaint Improperly Dismissed for Failure to State a Claim and Mootness.  Complainant alleged that she was subjected to ongoing harassment from 2015 through the present, including being subjected to unwelcome touching and comments by a coworker.  Complainant also stated that the coworker interrupted her and was rude to her after she requested that the coworker cease harassing her.  The Commission reversed the Agency’s dismissal of the complaint, finding that the Agency improperly limited the scope of Complainant’s harassment claim to incidents occurring after she notified the Agency of the coworker’s behavior.  Viewing all of the alleged incidents collectively, the Commission found that Complainant set forth an actionable claim of harassment.  While the Agency implied that it corrected the alleged harassment when it was notified of the coworker’s conduct, that argument went to the merits of Complainant’s claim and was not relevant to the procedural issue of whether she stated a justiciable claim.  Further, to the extent the Agency determined that the claim had been rendered moot because the coworker was reassigned and then retired, the Commission noted that a fair reading of Complainant’s formal complaint indicated that she was seeking compensatory damages.  Should Complainant prevail on the complaint, the possibility of an award of compensatory damages existed, and her complaint was therefore not moot.  The Commission declined to address the Agency’s assertion, raised for the first time on appeal, that Complainant failed to timely contact an EEO Counselor, but noted that the complaint included actions which were within the regulatory limitation period preceding her initial EEO contact.  Zenia M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002305 (May 7, 2019).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact & Failure to State a Claim.  Complainant filed a formal EEO complaint alleging discrimination on the bases of sex and reprisal when he was notified he would be removed from his position.  The Agency viewed the claim as relating to a September 2017 last chance agreement and dismissed the complaint on grounds that Complainant failed to timely contact an EEO Counselor and for failure to state a claim.  On appeal, the Commission found that the Agency improperly dismissed the complaint for untimely EEO Counselor contact.  Complainant contacted the Counselor within 45 days of the effective date of his removal which in this case constituted the personnel action controlling the determination of timeliness.  Neither the execution of the last chance agreement nor the advanced notice of the removal triggered the 45-day limitation period.  The Commission also disagreed with the Agency’s assertion that the matter failed to state a claim, stating that Complainant’s removal was clearly a personnel action that stated a viable claim.  While the Agency claimed that the last chance agreement should be viewed as a settlement agreement, and that Complainant’s union activity did not involve protected EEO activity, those arguments went to the merits of the complaint and were irrelevant to the procedural issue of whether Complainant state a viable claim.  Fidel S. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019000391 (Apr. 3, 2019).

Complaint Properly Dismissed for Alleging Dissatisfaction with Processing of Prior Complaint.  Complainant filed a formal complaint alleging discrimination when, during a separate EEO hearing, an Agency Attorney Advisor stated that Complainant’s medical disabilities were baseless.  The Agency dismissed the claim on grounds that it expressed dissatisfaction with the processing of a previously filed complaint.  The Commission agreed with the dismissal, holding that dissatisfaction with the EEO process must be raised during the processing of the pertinent complaint, not as a new complaint itself.  Here, all complaints about the EEO process should have been brought to the attention of the assigned AJ during the EEO hearing.  Horace A. v. Dep't of Homeland Sec., EEOC Appeal No. 2019000438 (Feb. 8, 2019).

Equal Pay Act Claim Improperly Dismissed.  Complainant sought EEO counseling when, among other things, she learned she was being paid at a lower rate than a male coworker performing the same duties.  The EEO Counselor, upon learning of a desk audit, advised Complainant to withdraw her informal complaint and told her she could refile if the audit did not resolve the matter.  When the audit did not resolve the matter, Complainant sought counseling again and filed a formal complaint.  The Agency dismissed the claim for untimely counseling and because it stated the same claim as the one Complainant previously abandoned.  The Commission initially affirmed the dismissal, but on reconsideration found Complainant’s counselor contact timely.  Under the Lilly Ledbetter Act, a case involving disparity in compensation is ongoing as long as the employee is affected by the agency’s action.  Further, the record showed Complainant had been advised at the time of her initial EEO counseling that she could refile if the audit was unsuccessful.  The Agency did not dispute Complainant’s contention that the EEO Counselor misled her into withdrawing her informal complaint.  The Commission affirmed the Agency’s dismissal of claims concerning her position description and training for failure to timely contact an EEO Counselor.  Mui P. v. Dep’t of Veterans Affairs, EEOC Request No. 0520180494 (Dec. 20, 2018).

Dismissal of Complaint Improper.  The Commission reversed the Agency’s dismissal of the complaint as barred by Complainant’s waiver in a settlement agreement in a prior complaint.  Complainant had alleged that the Agency forced him to transfer to another position, but then settled the complaint and agreed not to file an appeal, claim or action in any forum based on matters raised in the complaint.  Complainant thereafter filed a second complaint concerning transfers and other matters.  The Agency dismissed the second complaint stating it was covered by the settlement agreement and the provision barring further claims or appeals.  The Agency also found that some of the claims were untimely raised with the EEO counselor.  The Commission found that incidents that occurred after the signing of the agreement which involved actions by managers in Complainant’s post-transfer workplace, including incidents before the agreement was signed, were not covered by the agreement and the Agency should not have dismissed them.  The Commission also found that the allegations, some of which occurred within 45 days of Complainant’s contact with the EEO Counselor, stated a viable claim of hostile work environment.  Cortez J. v. Dep’t of Def., EEOC Appeal No. 0120180964 (Dec. 4, 2018).

Complaint Improperly Dismissed as Moot.  Upon the Agency’s motion, an AJ dismissed Complainant’s complaints as moot, indicating that Complainant had retired, and there was no potential for additional relief because Complainant failed to specifically request compensatory damages.  The Commission found that Complainant continuously referred to the “stress” of her “physical ailments” and the “degradation of” her “overall fitness and health,” and that she was “in great pain and discomfort.”  She also referred to the ongoing aggravation and exacerbation of her disabilities, physical impairments and medical challenges.  The Commission reaffirmed its long standing policy that it was unnecessary for Complainant to use the term “compensatory damages” to put the Agency on notice of Complainant’s claim of pecuniary or non-pecuniary loss.  Accordingly, because the issue of damages had not been adequately addressed, the dismissal of the complaints for mootness was improper.  Tanya D. v. Dep’t of Justice, EEOC Appeal No. 0120173031 (Nov. 20, 2018).

Findings on the Merits and Related Decisions

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

Under the Equal Pay Act

Commission Found No Violation of Equal Pay Act.  The Commission affirmed the AJ’s decision on summary judgment finding that the Agency did not deny Complainant equal pay because of her sex under the EPA.  The Commission found that the male comparator who earned more than Complainant performed mostly different functions.  Further, although Complainant and the male comparator performed some of the same functions, the male comparator was responsible for producing reports and performing certain aviation-related tasks that Complainant did not perform.  Sheryl S. v. Dep’t of the Army, EEOC Appeal No. 0120172477 (Mar. 8, 2019).

Commission Found Agency Violated Equal Pay Act & Title VII.  The Commission found that the Agency denied Complainant equal pay because of her sex under the EPA and Title VII.  The Commission found that Complainant’s male predecessor in the position was paid more than she was while occupying that position.  As a result of discovery violations, the AJ sanctioned the Agency by drawing an adverse inference that the predecessor’s functional statement or position description indicated he performed the same duties identified in Complainant’s statement.  Despite imposing this sanction, the AJ found no sex-based wage discrimination after conducting a hearing, and Complainant appealed to the Commission.  The Agency did not challenge the AJ’s sanction on appeal, and the testimony at hearing confirmed Complainant and her predecessor performed substantially equal work in the position, but that Complainant’s starting salary was nearly $13,000 less than her predecessor.  On appeal, the Commission rejected the assertion that two male comparators who were also paid less than the predecessor provided a defense to Complainant’s unequal pay claim, because there is no requirement that Complainant show a pattern of sex-based compensation disparities in a job category.  The Commission also stated that Complainant and her predecessor holding the position at different times did not defeat Complainant’s case, nor was it relevant that different managers set the salaries for Complainant and her predecessor, because intent is not a factor under EPA.  While the AJ referenced the predecessor’s impressive private sector experience that Complainant did not have as justification for the pay difference, the record did not contain any evidence that this experience was a factor that the Agency considered in setting the predecessor’s pay.  The Commission found that based on the vague references to possible reasons for the pay disparity and lack of information reflecting how Complainant’s or the predecessor’s salaries were set, the Agency failed to satisfy its burden by a preponderance of the evidence to show that the pay differential was based on a factor other than sex.  Therefore, the Commission concluded that Complainant established that she was subjected to EPA and Title VII violations.  With regard to remedies, the Commission noted that Complainant was entitled to back pay for two years beginning on the date she filed her complaint for the EPA violation, and to an award of compensatory damages for intentional discrimination under Title VII.  However, since Complainant cannot recover both liquidated damages under the EPA and compensatory damages under Title VII, the Agency was instructed to pay Title VII compensatory damages only to the extent they exceeded the amount of liquidated damages actually paid for the EPA violation.  The Commission affirmed the AJ’s finding of no discrimination regarding other allegations raised in the complaint.  Mercedez A. v. Dep’t of Agric., EEOC Appeal No. 0120170574 (Mar. 7, 2019).

Agency Did Not Violate Equal Pay Act.  The Commission affirmed the Agency’s finding that it did not deny Complainant equal pay because of his sex under the EPA.  Complainant challenged the Agency’s assertion that he was not officially appointed to the position of Associate Deputy Assistant Secretary.  Complainant contended that he officially encumbered the position on a certain date in accordance with the Agency’s reorganization plans, and he asserted that the Agency failed to allow him to negotiate a salary but allowed a female employee to negotiate her salary upon her appointment to a similar position.  The Commission found the positions had substantially different job duties.  Complainant’s duties included formulating agency-wide procurement doctrine and policy, developing and implementing acquisition and risk management, quality assurance and compliance activities, and conducting the contracting officer warranting program.  In contrast, the female comparator employee, who received a lateral reassignment into the position of Chancellor of the Agency’s Acquisition Academy, had entirely different job duties, including leading the design, development and delivery of competency-based training for the Agency’s acquisition workforce, and developing/implementing Agency-wide acquisition workforce training policies, programs, and practices for employees.  James S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120171997 (Mar. 5, 2019), request for reconsideration denied EEOC Request No. 2019002626 (July 23, 2019).

Commission Found Agency Violated EPA.  Complainant was a General Surgeon at an Agency Medical Center.  Complainant initially was paid less than the other doctors at the Center, with the caveat that those doctors performed more extensive surgeries than she did.  However, the Center was eventually converted to a general facility, with all surgeons taking on the same responsibilities.  Complainant then filed an EEO complaint, alleging discrimination on the basis of sex when the Agency paid her less than several male coworkers, failed to pay her the correct salary that accompanied her role as Acting Chief of Surgery, and rescinded a full-time job offer for that position.  The Agency conceded that Complainant established a prima facie case of discrimination under the EPA, but it asserted that the difference in salaries was related to a difference in years of experience, which was a covered affirmative defense under the EPA.  On appeal, the Commission found that the Agency failed to meet its burden of proving that the pay disparity was due to a factor other than sex.  The Agency provided only vague references to possible reasons for the pay disparity, such as a seniority system that awarded individuals with more years of experience, but the Agency did not provide any corroborating evidence to support its assertions.  Therefore, the Commission found that the Agency violated the EPA.  Further, the Agency failed to articulate a legitimate, nondiscriminatory reason for the pay disparity between Complainant and two male comparators, and, as such, Complainant also established her claim of sex discrimination under Title VII.  The Commission noted that Complainant could not receive duplicative relief under the EPA and Title VII.  Since the Agency had not willfully violated the EPA, Complainant was entitled to two years of back pay amounting to the difference between her salary and that of her highest paid comparator.  Complainant made a claim for compensatory damages under Title VII, and the Commission instructed the Agency to investigate Complainant’s claim and pay Complainant any damages that exceed the amount of liquidated damages paid under the EPA.  The Commission affirmed the Agency’s finding of no discrimination with regard to the remaining claims.  Margeret M. v. Dep’t of Veteran Affairs, EEOC Appeal No. 0120170362 (Feb. 21, 2019).

Under the Rehabilitation Act

Agency Repeatedly Failed to Provide Complainant Interpreter as Reasonable Accommodation.  Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (hearing impairment) and reprisal when he was not provided with a sign language interpreter for training, and emergency and safety meetings from June 2017 through September 2017.  On appeal, the Commission found that Complainant was denied a reasonable accommodation on all the dates alleged.  The Agency could not avoid its obligation to provide Complainant a reasonable accommodation simply because of the difficulty scheduling the services of an interpreter in a timely manner.  To the contrary, as the Commission has previously held, it is particularly important, when the physical safety of Complainant and his coworkers is the subject of discussion, for Complainant to have access to the information being conveyed.  In this case, full participation in safety meetings and training was a benefit and a privilege of employment for which a reasonable accommodation should have been provided, absent undue hardship.  The record was devoid of evidence to support a finding that the provision of interpreter services would have been unduly costly, extensive, substantial or disruptive or that it would have fundamentally altered the nature of the Agency's operation.  While the Agency asserted that management was often tasked to schedule safety talks and similar meetings without notice, the Agency failed to explain why the safety talks and meetings had to have been scheduled immediately, and why an interpreter could not have been obtained on shorter notice.  Therefore, the Agency did not meet its burden to show undue hardship.  The Commission found that the Agency's failure to show that it attempted to provide Complainant with interpreting services clearly constituted a lack of good faith, and Complainant was therefore entitled to present a claim for compensatory damages.  The Agency was also ordered to immediately ensure that Complainant was provided a qualified sign language interpreter when necessary.  Alonzo N. v. U.S. Postal Serv., EEOC Appeal No. 0120181502 (Sept. 17, 2019).  Additional Decisions Addressing an Agency’s Failure to Provide an Interpreter Include:  Coralee H. v. U.S. Postal Serv., EEOC Appeal No. 0120172277 (Feb. 15, 2019) (Complainant filed a formal complaint alleging, among other things, that the Agency discriminated against her based on her disability (deafness) when her supervisor denied Complainant’s request for an interpreter at a safety talk.  Although the supervisor indicated he was not aware that Complainant had been denied an interpreter at any time, he did acknowledge providing Complainant with handouts in lieu of an interpreter at some time during the period mentioned by Complainant.  The Commission stated that Complainant’s ability to lip read and the Agency’s willingness to provide printed material and text communication did not excuse the Agency of its obligation to provide Complainant with an interpreter at the talks.  The Commission further emphasized that the Agency did not claim that providing an interpreter would constitute an undue burden, and regardless, there was no evidence that doing so would be unduly costly to the Agency.  The Agency was ordered, among other things, to ensure Complainant was provided with a qualified sign language interpreter when required during her employment and investigate her claim for damages).

Denial of Reasonable Accommodation Found.  Complainant filed an EEO complaint alleging, among other things, that he was discriminated against on the basis of disability (stroke, hemiparesis) when he was denied a reasonable accommodation.  Complainant requested a spinner knob to put on the steering wheel of his postal vehicle.  Ultimately, years after his initial request, Complainant was awarded the accommodation through the grievance process.  On appeal, the Commission found that Complainant was a qualified individual with a disability.  The Agency failed to provide any evidence that Complainant could not have effectively performed the essential duties of his job with accommodation, and, in fact, was previously able to do so after he was allowed to drive a postal vehicle with a spinner knob.  Further, the record contained no evidence that providing Complainant with a different or shorter route, or with assistance when he was unable to complete his route would have caused the Agency significant hardship.  The Agency violated the Rehabilitation Act by delaying its response to Complainant’s request for accommodation and waited almost five months to return him to work with accommodation.  The Agency was ordered, among other things, to pay Complainant appropriate back pay, and investigate his claim for compensatory damages.  The Commission affirmed the AJ’s finding that Complainant failed to prove his claim of hostile work environment.  Jeffry R. v. U. S. Postal Serv., EEOC Appeal No. 0120180058 (Sept. 6, 2019).

Disability Discrimination Found When Agency Rescinded Tentative Offer of Employment.  In October 2016, Complainant applied for the position of Motor Vehicle Operator (MVO).  Complainant stated that he held a commercial driver’s license and worked as a state mass transit bus operator.  Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of disability (perceived color perception deficiency) when, on January 24, 2017, it rescinded a tentative offer of employment for an MVO position following his pre-employment medical examination.  The pre-employment physical found that while Complainant could distinguish basic colors, he was unable to recognize the colors of traffics signals and devices showing standard red, green, and amber (yellow).  The Agency cited a hiring policy requiring the ability to recognize the colors of traffic signals and devices showing standard red, green, and amber colors as justification for rescinding the offer.  On appeal, the Commission found that the Agency failed to perform an individualized assessment of whether Complainant could perform the essential functions of the MVO position without posing a direct threat to himself or others.  The Agency assumed Complainant would be unable to see traffic signals while driving, but failed to conduct inquiry into how, based on his vision, Complainant obtained and continued to hold his commercial driver’s license and performed successfully in his mass transit Bus Operator position.  The results of the visual examination alone were insufficient to establish that there would be a high probability of substantial harm to Complainant or others.  An assessment should consider any special qualifications that might allow an applicant to successfully perform the essential functions of a position without posing a direct threat.  Therefore, the Agency discriminated against Complainant when it rescinded the job offer.  As remedial relief, the Commission ordered, among other things, reinstatement of Agency’s tentative offer of employment to MVO position with an individualized assessment, and retroactive placement into the position depending on the assessment results.  Joshua F. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120181309 (Aug. 30, 2019).

Agency Denied Complainant Accommodation, Subjected Him to Harassment & Terminated Him Because of His Disability.  Complainant, who is hearing impaired, advised the Agency during his interview for a Biologist position that he required an ASL interpreter or Video Remote Interpreting during lengthy trainings.  While Complainant’s supervisor provided Complainant a list of reasonable accommodations that could be provided, she indicated that Complainant’s requested accommodations could not be provided in the laboratory and posed a safety risk.  In addition, the supervisor, as well as a visiting Doctor, treated Complainant in a disrespectful and unwelcome manner, and exhibited frustration with him when he could not hear what they were saying.  The record reflected that the supervisor micro-managed Complainant and denied his requests to take a bathroom break, and in one instance grabbed his lab coat when he attempted to go to the restroom.  The Doctor, who served as Complainant’s reserve supervisor, threw things and hit walls when he could not communicate with Complainant.  The Commission found that the Agency failed to show that providing Complainant an accommodation would have been unduly burdensome. The Commission further determined that the Agency subjected Complainant to a hostile work environment, and subjected Complainant to disparate treatment discrimination when it terminated him.  Further, the Agency’s proffered reasons for Complainant’s termination were not worthy of belief. Lenny W. v. Dep’t. of Health & Human Serv., EEOC Appeal No. 0120170311 (July 30, 2019).

Agency Failed to Provide Reasonable Accommodation. The Agency found that it did not discriminate against Complainant when it would not allow him to take restroom breaks as needed, and required Complainant to disclose medical information on a publicly displayed form.  In reversing the Agency’s decision, the Commission found that the Rehabilitation Act requires that medical information must be collected and maintained confidentially, even if voluntarily disclosed. Additionally, the Commission concluded that the Agency failed to engage in the interactive process when Complainant made his request to take additional breaks. Moreover, the Agency failed to present evidence that accommodating Complainant would present an undue hardship. Augustine V. v. U.S. Postal Serv., EEOC Appeal No. 0120180469 (July 24, 2019).

Agency Violated Rehabilitation Act When It Disclosed Confidential Medical Information.  Complainant filed a formal EEO complaint alleging the Agency discriminated against him when management improperly disclosed his medical information on a teleconference during a coworker’s hearing.  On appeal, the Commission found the Agency violated the Rehabilitation Act.  A preponderance of evidence showed that management talked about Complainant’s medically related work restrictions on speaker because the office phones were not working properly.  Thus, Complainant’s coworker overheard management’s conversation discussing Complainant’s medical conditions and why Complainant was in a special job assignment granted by the Office of Worker’s Compensation Programs (OWCP).  The record contained affidavits from two managers acknowledging that another employee overheard the conversation.  The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide appropriate training to the responsible management officials.  Salvatore B. v. U.S. Postal Serv., EEOC Appeal No. 0120180949 (June 13, 2019).

Disability Discrimination Found Regarding Denial of Accommodation & Charge of AWOL.  Complainant alleged, among other things, that she was discriminated against based on her disabilities (diabetes, gastroparesis disease) when the Agency ordered her to return to work or face discipline, and later reprimanded her for being Absent Without Leave (AWOL).  The Agency ultimately issued a final decision finding no discrimination.  On appeal, the Commission found that while Complainant requested a reasonable accommodation in the form of Leave Without Pay (LWOP) for disability-related absences, there was no indication that management initiated or engaged in any sort of interactive process with Complainant to explore means to accommodate her well-known disability.  Complainant’s absences, some of which required hospitalization, were due largely to symptoms of her diabetes, and Complainant or her husband consistently and timely notified Complainant’s supervisor of the absences, including the reasons for them.  After Complainant’s earned leave, donated leave, and Family Medical Leave Act coverage ran out, the Agency charged her with AWOL and ordered her to return to work.  Complainant did so, but her absences continued, and she was reprimanded for continued AWOL.  The Agency did not dispute the validity of Complainant’s illness but, applied its blanket attendance policy.  The Commission found that the Agency was unable to meet its burden of proving that granting Complainant additional excused absences (LWOP) would have created an undue hardship on its operations.  The Commission has stated that employers may need to modify general leave policies when providing accommodation and emphasized that engagement in the interactive process with the employee is specifically designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship.  Complainant noted on appeal that she now works three hours per day, and her attendance has been good because she is experiencing fewer symptoms from her disability due to the changed schedule.  The Commission found that had the Agency engaged in the interactive process with Complainant, it might have discovered this other viable accommodation. The Agency was ordered, among other things, to expunge the AWOL charges and resulting reprimand, to revise its leave policy to allow for leave as a reasonable accommodation, and to provide Complainant with appropriate back pay, compensatory damages and attorney’s fees.  Irina T. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120180568 (Apr. 3, 2019).

Agency Violated Rehabilitation Act When It Disclosed Confidential Medical Information. Complainant filed an EEO complaint alleging, among other things, disability discrimination when the Agency disclosed Complainant’s medical information.  Complainant had previously reported his medical conditions and medication use to the Agency.  The Agency acknowledged that management officials placed and maintained documentation listing Complainant’s condition and prescribed medication in his driver’s personnel file in the Postal Vehicle Services Unit.  While the Agency stated that the records were not shared with just anyone who requested them, the Commission concluded that the Agency violated the Rehabilitation Act because it did not maintain Complainant’s medical information in a separate medical file.  The Agency was ordered, among other things, to expunge all medical information concerning Complainant from non-medical files and ensure that his medical information is maintained in a separate medical file, as well as investigate his claim for damages.  The Commission affirmed the Agency’s findings that Complainant did not prove additional claims of disparate treatment discrimination and did not meet his burden of proof to show that genetic information played any role in the alleged incidents.  Porter P. v. U.S. Postal Serv., EEOC Appeal No. 0120171893 (Mar. 27, 2019).

Agency Violated Rehabilitation Act by Allowing Access to Confidential Medical Records & Making Impermissible Medical Inquiry.  The Commission found that the Agency violated the Rehabilitation Act when four coworkers were able to access Complainant’s confidential medical records without a valid business-related reason for doing so.  The Commission also found that Complainant was subject to an unlawful disability inquiry when the Agency requested additional medical documentation to substantiate her need for leave as a reasonable accommodation.  The record clearly showed that Complainant had provided sufficient information to substantiate her disabilities and need for leave as an accommodation for disability-related flare ups.  The documentation indicated that Complainant’s conditions were chronic and likely permanent, and the record showed that the Agency was fully apprised of the permanent nature of Complainant’s disability and restrictions.  The Commission noted that while the Agency made the impermissible medical inquiry, the supervisor consulted with Human Resources afterward and informed Complainant she did not need to provide the additional medical documentation.  The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide appropriate training to the two supervisors and four coworkers.  The Commission affirmed the Agency’s finding that Complainant was not subjected to disparate treatment discrimination regarding additional claims, or a hostile work environment.  Dixie B., v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120170175 (Mar. 26, 2019).

Disability Discrimination Found Regarding Failure to Reasonably Accommodate & Performance Issues.  Due to a car accident, Complainant was diagnosed with long-term back and neck injuries.  As a result, Complainant’s physician recommended that she telework from home full-time with proper accommodations because the “mobility, distance, time of actions and travel required” for Complainant to work in the office all exceed her current medical limitations.  In a previous decision, the Commission found that the Agency improperly revoked Complainant’s telework accommodation and inexplicably delayed restoring this accommodation for four months, failed to respond to Complainant’s request for assistive technology, software, and training, and penalized Complainant for its own failure to accommodate her.

Complainant filed a formal complaint alleging, among other things, that the Agency continued to deny her reasonable accommodation for her disabilities, as well as subjected her to discrimination when it gave her a performance counseling memorandum and placed her on a performance improvement plan (PIP).  The Commission again concluded that the Agency failed in its duty to reasonably accommodate Complainant’s disabilities by either not providing Complainant with adequate equipment, software and training, or unreasonably delaying the provision of necessary technology, to support her accommodation of full-time telework which, in turn, negatively impacted Complainant’s work performance.  The Commission further found that the performance counseling memorandum and placement on a PIP for performance issues directly resulted from the Agency’s failure to reasonably accommodate Complainant with adequate technology required to effectively telework from home.  To remedy the discrimination, the Commission ordered the Agency, among other things, to determine Complainant’s entitlement to compensatory damages, and expunge the performance counseling memorandum and the PIP from Complainant’s personnel file and other official Agency records.  Patricia W. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120172637 (Mar. 26, 2019).

Denial of Reasonable Accommodation Found.  In September 2012, Complainant initiated his request for a reasonable accommodation due to his dyslexia, and his performance improved when he received accommodations in July 2013.  In October 2013, however, the Agency informed Complainant that his software was not approved and removed the software from his workstation.  Complainant requested alternative software the following month.  In May 2014, Complainant requested a status update from the Agency’s Reasonable Accommodation Program Manager, who responded that he “lost track” of Complainant’s request.  Complainant ultimately received accommodations in February 2015, and his performance improved such that he was promoted five months later.  Complainant filed an EEO complaint alleging, in part, that he was discriminated against when the Agency withdrew his accommodations and failed to provide him with an alternative accommodation.  On appeal, the Commission found that Complainant was a qualified individual with a disability, and that the Agency unnecessarily delayed accommodating him.  While the Agency argued that there were “security reasons,” it did not provide any details describing the concerns.  Further, the Commission found that Complainant actively worked to try to get accommodations, but that the Agency “lost track” of his request for approximately five months; failed to adequately respond to his request for a list of Agency-approved software; and blamed him for a delay when he requested a change in the brand of software, even though the Reasonable Accommodation Program Manager was aware of the change and did not act to get that software vetted.  The Commission found that the Agency discriminated against Complainant based on his disability when it failed to provide him with a reasonable accommodation in a timely manner, and when it delayed his promotion.  Among other remedies, the Commission ordered the Agency to provide Complainant a retroactive promotion, with back pay and other benefits; and to conduct a supplemental investigation of his claim for compensatory damages.  Ruben T. v. Dep’t of Justice, EEOC Appeal No. 0120171405 (Mar. 22, 2019).

Denial of Reasonable Accommodation Found.  Complainant filed an EEO complaint alleging among other things, that she was subjected to discrimination on the basis of disability (knee tendonitis) when the Agency withdrew her reasonable accommodation.   On appeal, the Commission found that the record was undisputed that the Agency previously granted Complainant an ergonomic chair as a reasonable accommodation.  Complainant indicated that she had such a chair in the past, and that the Agency perhaps lost the chair during a move to a new facility.  When Complainant submitted a renewed request for an ergonomic, adjustable chair, the District Reasonable Accommodation Committee (DRAC) granted the request but the record did not show that Complainant ever received the chair.  Complainant’s supervisor stated that she provided Complainant a chair that had “a cushion in the back area and seat area.”  The provided alternative accommodation was not effective because it was not adjustable as requested by Complainant’s doctor.  Thus, the Commission found that Complainant was not provided with an effective reasonable accommodation following the DRAC meeting until her return to full duty.  The Agency was ordered, among other things, to investigate Complainant’s entitlement to compensatory damages, and to provide training to management officials at the facility emphasizing the Agency’s obligations regarding reasonable accommodation.  Kiera H. v. U.S. Postal Serv., EEOC Appeal No. 0120172032 (Mar. 21, 2019).

Agency Failed to Reasonably Accommodate Complainant.  According to the record, Complainant had a permanent back condition, and the Agency initially provided her with an ergonomic chair.  Complainant later reported that the chair was broken, but the Agency failed to provide her with a replacement that met her needs.  The Commission stated that the Agency should have worked with Complainant to conduct an individualized ergonomic assessment that would have determined Complainant’s specific needs.  Instead, the Agency first completely denied Complainant’s request for an ergonomically correct chair, and then provided her with a chair that not only did not fit her physical and medical needs, but also caused her to experience additional physical impairments.  The Commission concluded that the Agency’s provision of chairs without conducting an ergonomic assessment of Complainant’s individual needs was wholly inadequate and deprived her of an accommodation that was effective.  The Agency did not show that providing Complainant with a properly fitting ergonomic chair would have imposed an undue hardship on the Agency. Therefore, the Commission found that the Agency denied Complainant a reasonable accommodation. Finally, the Commission concluded that the Agency’s failure to conduct an individual assessment of Complainant’s need for a reasonable accommodation reflected its lack of good faith in this matter, and therefore, Complainant was entitled to compensatory damages.  The Commission affirmed the Agency’s finding that Complainant failed to prove her claim of harassment.  Rochelle F. v. U.S. Postal Serv., EEOC Appeal No. 0120171406 (Mar. 5, 2019).

Agency Failed to Provide a Reasonable Accommodation.  Complainant filed a formal EEO complaint alleging, among other things, discrimination based on disability (chronic migraines and fibromyalgia) when the Agency denied her request for accommodation.  Specifically, Complainant requested an additional telework day per week as a reasonable accommodation for her known physical disabilities.  It was undisputed that Complainant was qualified and could perform the essential functions of her job while teleworking, and she provided her supervisor with medical documentation, and a narrative explaining how an additional day of telework would accommodate her conditions.  Her supervisor determined Complainant’s request was not “valid” because, among other things, Complainant’s health conditions were “manageable” and episodic in nature. The Commission noted that merely because Complainant’s conditions were episodic, and at times manageable, did not exempt the Agency from its responsibility to provide reasonable accommodation.  By denying Complainant’s request for accommodation, her supervisor failed to initiate the interactive process to arrange a reasonable accommodation for Complainant’s known physical disabilities, even if not the one she specifically requested.  The Commission affirmed the Agency’s dismissal of three claims and finding of no discrimination regarding two additional claims.  The Agency was ordered, among other things, to consider Complainant’s request for compensatory damages, and pay Complainant’s attorney’s fees and costs.  Anne W. v. Soc. Sec. Admin., EEOC Appeal No. 0120172935 (Feb. 26, 2019).

Disability Discrimination found When Agency Failed to Re-Administer Polygraph. Complainant, who was being treated for multiple sclerosis (MS), was required to take a polygraph when he sought a transfer to a new department. When Complainant arrived for his polygraph test, the Polygraph Examiner declined to administer the test because he believed that medications Complainant was taking for his condition could interfere with the polygraph results.  Complainant was given a standard letter for his doctor to complete and return so that he could take the polygraph.  Complainant’s doctor indicated that there was no peer reviewed literature on the effect of MS on the validity of polygraph testing and advised that Complainant’s condition has been under excellent control but did not offer an opinion regarding whether Complainant could take the polygraph.  A Security Specialist then advised Complainant to find another job.

Complainant filed an EEO Complaint alleging discrimination on the basis of disability.  Complainant contended that he requested a reasonable accommodation for his polygraph test which was denied.  The Commission found that Complainant had established a prima facie claim of disability discrimination, and that the Agency stated a legitimate, nondiscriminatory reason for not allowing Complainant to take a polygraph test, specifically that a polygraph test was required of all new employees of the department and that there was no waiver.  However, the Commission found that the purported legitimate, nondiscriminatory reason was a pretext for disability discrimination.  Complainant followed the Agency’s instructions and secured a letter from his doctor.  Despite this letter, managers determined that Complainant would not be allowed to take the polygraph because Complainant’s doctor did not provide a simple “yes” or “no” answer.  Further evidence demonstrated that the Security Specialist perceived Complainant’s medical condition to be a risk, in the absence of evidence to support that conclusion.  The Agency was ordered, among other things, to offer Complainant the opportunity to return to his previous position, allow him to take a polygraph examination whether or not he returned to his position, and investigate his claim for damages.  Carroll R. v. Dep’t of the Navy, EEOC Appeal No. 0120170064 (Feb. 8, 2019).

Agency Violated Rehabilitation Act When It Disclosed Confidential Medical Information.  The Commission affirmed the AJ’s finding that the Agency violated the Rehabilitation Act when a supervisor disclosed Complainant’s confidential medical information to a contract employee.  The record showed that, following a heated discussion with Complainant, the supervisor commented to the contractor that Complainant was on medication, implying that she had a psychiatric or mental health condition.  Complainant provided the supervisor with a note from her physician the previous day stating that she had “reactive depression/anxiety,” and on the date in question Complainant told the supervisor she had taken medication prescribed by her physician.  Therefore, given the circumstances of the case and the supervisor’s description of Complainant’s behavior as “out of control” and “hysterical,” the Commission found that the supervisor’s disclosure to the contractor violated the Rehabilitation Act.  The Commission increased the AJ’s award of compensatory damages to $2,000 and ordered the Agency, among other things, to provide training to the supervisor.  The Commission affirmed the AJ’s dismissal of two claims previously raised in the grievance process, as well as the finding of no discrimination regarding the remaining claims raised in Complainant’s complaint.  Becki P. v. Dep’t of Transp., EEOC Appeal No. 0720180004 (Nov. 15, 2018).

Under Title VII

Complainant Subjected to Hostile Work Environment Based on Race & Color.  Complainant alleged that the Agency discriminated against her on the bases of race and color when she received an e-mail from a coworker (CW) on November 11, 2016, that referred to Complainant using a racial slur.  On November 28, 2016, the Director, National Complaints Team, notified Complainant’s manager, her second-level supervisor, that Complainant had initiated a complaint.  Management asserted that it began its internal investigation at that time.  The Agency began its investigation of the instant EEO complaint on March 28, 2017 and concluded its investigation on May 16, 2017.  The Agency acknowledged that Complainant was subjected to unwelcome harassment in the form of an e-mail which contained a racial slur, and Complainant established that the harassment unreasonably interfered with her work and created an intimidating, hostile, and offensive work environment.  The Agency asserted, however, that there was no basis for imputing liability to the Agency because it took immediate and corrective actions.  On appeal, the Commission noted that the Agency was responsible for the hostile work environment unless it showed it took immediate and effective corrective action.  Although the Agency took effective corrective action, upon review, the Commission found that the Agency’s action was not prompt.  The Agency did not state how long the internal investigation lasted and failed to provide a copy of the internal investigation to the Commission.  Statements in the record indicate that the investigation had been completed by April 21, 2017 and management had drafted a disciplinary action.  Nevertheless, the proposed 30-day suspension was not received by CW until May 16, 2017, nearly a month after it was allegedly drafted, and there was no reason given for the delay.  In addition, it appeared that the Agency took over six months to enforce the proposed disciplinary action.  Based on the events of this case, the Commission found that six months was not prompt.  Because the Agency failed to meet its affirmative defense burden, the Commission found that it was liable for the harassment, and ordered the Agency, among other things, to investigate Complainant’s claim for damages.  Sharon M. v. Dep’t of Transp., EEOC Appeal No. 0120180192 (Sept. 25, 2019).

Agency Failed to Provide Legitimate, Nondiscriminatory Reason for Complainant’s Nonselection.  Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of sex (male) when he was not selected for a Lead Transportation Security Officer position.  On appeal, the Commission found that Complainant established a prima facie case of sex discrimination, noting that Complainant was qualified for the position and one of the selectees was a female.  The Commission concluded that the Agency failed to articulate a legitimate, nondiscriminatory reason for not selecting Complainant.  The selecting official stated generally that Complainant was not selected because he did not score high enough to be selected for one of the eight positions filled. The Agency, however, did not provide an individualized explanation for Complainant’s specific situation.  As the Agency failed to overcome Complainant’s prima facie case of sex discrimination, Complainant prevailed in his claim without having to provide pretext with respect to the Lead Transportation Security Officer position.  The Agency was ordered, among other things, to place Complainant into the position, and pay him appropriate back pay and benefits.  The Commission affirmed the Agency’s finding of no discrimination with regard to Complainant’s nonselection for another position, as well as the Agency’s finding of no harassment.  Jess P. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120132186 (Sept. 17, 2019).

Agency Liable for Sexual Harassment.  Complainant filed an EEO complaint alleging the Store Manager, her second-line supervisor, subjected her to sexual harassment from May 17 to October 19, 2016.  Complainant cited numerous instances of alleged sexual harassment.  While many of them were not witnessed, coworkers corroborated Complainant’s allegation regarding an incident where the Manager discussed intimate details of his relationship with a woman whom he got pregnant three times, as well as Complainant’s general assertion that the Manager subjected Complainant to unwelcome conversations about his relationships with women. The Manager conceded discussing his past relationships and making comments about the woman he got pregnant.  Two coworkers also stated that Complainant told them the Manager hit her twice with a yardstick and placed his hand on her leg during her performance evaluation, and both co-workers observed the Manager place his hand on Complainant’s shoulders. Based on the totality of the evidence, the Commission found the record was sufficient to establish that the Manager subjected Complainant to unwelcome verbal and physical conduct, and that the actions complained of were based on sex.  In addition, the Commission concluded that the Manager’s actions were sufficiently severe or pervasive to create an abusive working environment, noting that his placing his hand on Complainant’s leg at her thigh, in and of itself, was sufficiently severe to constitute a hostile work environment, as an unwelcome, intentional touching of an intimate body area. Therefore, the Agency was subjected to vicarious liability for the store manager’s sexual harassment.  The Agency was ordered, among other things, to ensure that the Complainant was removed from the Store Manager’s supervisory/managerial authority, and investigate and determine Complainant’s entitlement to compensatory damages.  Terrie M. v. Dep’t of Def., EEOC Appeal No. 0120181358 (Aug. 14, 2019).

Race Discrimination Found in Regard to Pay.  Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of race when from March 2015 to the present, she had been performing higher graded duties but not paid at that level.  Following a hearing, the AJ found race discrimination, and the Commission affirmed the finding on appeal.  The Commission found that substantial evidence supported the finding of discrimination.  Specifically, Complainant performed the same duties as a Caucasian employee but was paid less.  Further, the Agency’s reason for the difference in pay was a pretext for discrimination.  While the Agency relied upon a “core” document for the particular grade level, the Commission agreed with the AJ that the document was of little value due to its interdisciplinary nature, applying to a wide range of positions.  Further, the comparative employee testified that her responsibilities, scope of influence, and expertise were the same.  The Agency was ordered, among other things, to pay Complainant appropriate back pay and benefits, as well as $5,000 in proven compensatory damages.  Glenna D. v. Dep’t of the Air Force, EEOC Appeal No. 0720180026 (June 6, 2019)

Agency Liable for Racial Harassment.  Complainant filed a formal complaint alleging that coworkers harassed him because of his race, including taking his tools, leaving him negative notes, attempting to restrain him in a chair with a metal hose clamp, and restraining him to a chair with duct tape.  Complainant also stated that he was denied reasonable accommodation and continuation of pay.  On appeal, the Commission initially noted that while the Agency analyzed Complainant’s complaint as consisting of three claims, it was more appropriately viewed as a single claim of hostile work environment.  The Commission found Complainant’s account of the incidents to be wholly credible.  Complainant’s coworkers generally confirmed that the incidents happened as described, and the Agency suspended one employee and proposed to terminate two others after determining that Complainant’s allegations were credible.  The Commission noted that Complainant, the only African-American plumber at the facility, was subjected to physical assaults, and management’s assertion that they did not believe there was racial animosity behind the incidents was not credible.  The Commission found that the Agency was responsible for the harassment, because management was aware of the harassment approximately six months prior to the incident involving the duct tape yet did not take immediate and appropriate corrective action.  The Agency was ordered, among other things, to offer Complainant a reassignment, pay him appropriate back pay with interest and benefits, restore any leave used due to the harassment, and investigate Complainant’s claim for damages.  Stanton S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120170582 (Apr. 16, 2019).

Agency Not Vicariously Liable for Coworker Harassment.  The Commission found that the Agency was not vicariously liable for the actions of one of Complainant’s coworkers.  Complainant alleged that a coworker sexually harassed her when he made sexual comments to her and showed her pornographic pictures on his government-owned computer.  Complainant informed her supervisor of the unwelcome conduct, although not specifically calling it sexual harassment, and within a few days the supervisor counseled the coworker not to make offensive comments to Complainant.  Complainant did not dispute that the coworker’s harassing behavior stopped after the counseling.  The Commission found the Agency’s corrective action proportionate and effective.  Alycia R. v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 0120172284 (Mar. 8, 2019).

Agency’s Imposition of Discipline was a Pretext for Unlawful Discrimination.  Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of color when it placed her in a non-duty status and issued her a notice of removal for unacceptable conduct (failing to deliver the mail) that was later reduced to a suspension.  Each comparison employee identified by Complainant (despite some different job titles) was responsible for delivering the mail. The comparison employees all had the same second-line supervisor and failed to deliver a portion of a mail bundle assigned to them.  Neither Complainant nor the comparison employees had a record of discipline.  The Commission found all relevant aspects of Complainant’s employment were identical to that of the comparison employees.  The record established that none of the White employees who failed to deliver mail received discipline while Complainant and another Black employee charged with such behavior were placed off duty and received removal notices.  Accordingly, the record evidence established a clear pattern of disparate treatment.  The Commission further found that Complainant not only established a prima facie case of discrimination, but she also sufficiently established that the Agency’s articulated explanation for disciplining Complainant was a pretext for discrimination.  Specifically, because the record showed that Black employees were disciplined for violations that White employees seemed to perform all the time without so much as a verbal warning, the Agency’s articulated explanation was not credible.  Further, Complainant’s supervisors’ contention that they were not aware of any of the Agency policy violations by White employees was not credible given the contradictory statements of multiple witnesses who stated otherwise.  The Commission noted that the contradictory witness statements provided detailed and supporting documentation, while the supervisors’ testimony was vague and brief.  In addition, both of Complainant’s supervisors inexplicably failed to recall numerous key details. The Commission also found it incredible that one supervisor could not produce relevant information about the employees who failed to return mail during the relevant time-frame using the Agency’s Workload Status report.  The record also contained evidence that this same supervisor may have falsified Agency records to make it appear that such mail was undeliverable when, in fact, it was deliverable.  Accordingly, the Commission found that the Agency’s explanation for the imposed discipline was a pretext for discriminatory animus based on Complainant’s color.  The Agency was ordered, among other things, to remove the disciplinary notices from Complainant’s official personnel file, and determine the appropriate amount of back pay, interest, and other benefits to which she was entitled.  Cathy V. v. U.S. Postal Serv., EEOC Appeal No. 0120172200 (Feb. 6, 2019).

Agency Failed to Meet Burden of Production in Claim of Race Discrimination.  The Commission found that Complainant was subjected to discrimination based on race when he was not selected for one of two Supervisor, Maintenance Operations, positions. Complainant had significant supervisory experience, was qualified and applied for the positions, while two non-African American individuals were selected.  The Commission determined that the Agency, in its proffered legitimate nondiscriminatory explanation for not selecting Complainant, failed to meet its burden of production.  In this regard, the selecting official provided numerical scores, which purported to support his determination that Complainant’s interview scores were lower than those of the selectees.  However, the selecting official failed to provide adequate information concerning the conduct of the candidate interviews, or an explanation as to how the scores were derived.  Moreover, the selecting official’s interview scoring conflicted with an earlier Review Committee’s determination awarding Complainant a higher score.  The Commission concluded that the Agency failed to articulate a clear and reasonably specific basis for its subjective assessment of Complainant.  Therefore, the Agency failed to meet its burden of production.  The Agency was ordered, among other things, to retroactively promote Complainant to the position or a substantially equivalent position with appropriate back pay and benefits.  Garret W. v. U.S. Postal Serv., EEOC Appeal No. 0120173051 (Oct. 30, 2018).

Racial Harassment Found.  Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (African-American) when a co-worker displayed racially insensitive material in the work area, and, after being removed, the co-worker was subsequently returned to the workplace.  The Commission found that, in light of the racially inflammatory and clearly offensive nature of the material the co-worker had displayed in the workplace, which the Agency determined was so offensive as to require the co-worker’s “emergency” removal from the workplace, the Agency’s act of returning the co-worker to the same workplace was itself racially hostile and abusive.  Complainant’s negative reaction, and that of many other employees, to the return of the named co-worker to their workplace, was foreseeable and entirely reasonable on their parts.  The Agency’s explanation that it returned the co-worker to the workplace because it was directed to do so by the grievance panel’s decision was not supported by the record.  The grievance decision in question directed that the co-worker be returned to a pay status, not that the co-worker be returned to duty at the same facility.  Nothing in the grievance decision precluded the co-worker’s reassignment to another facility.  In harassment cases, the Commission has generally found that an agency may not involuntarily transfer or reassign the victim of the harassment, and the agency should instead transfer or reassign the harasser.  Thus, the Agency did not take reasonable care to prevent future harassment and failed to bear the burden of proving the affirmative defense.  The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide training for the responsible management officials.  Chi E. v. U.S. Postal Serv., EEOC Appeal No. 0120170068 (Nov. 29, 2018).

Under Multiple Bases

Complainant Subjected to Harassment Based on Reprisal & Disability & Denied Reasonable Accommodation.  The Commission found that the Agency subjected Complainant to a hostile work environment based on reprisal and disability and denied Complainant a reasonable accommodation.  Complainant alleged that beginning on December 31, 2012, she was denied a reasonable accommodation consisting of a flexible Alternate Work Schedule (AWS) and the ability to move her lunch break to minimize her leave usage.  Complainant’s January 2012 medical documentation indicated Complainant’s medical conditions were ongoing and that the duration of the medical conditions was unknown.  Complainant provided updated medical documentation in April 2013, but the Agency found that the updated documentation did not establish a nexus between her disability and the requested accommodation. The Commission disagreed.  The Commission further found that the Agency’s proposal of leave under the Family Medical Leave Act (FMLA) as an alternative accommodation that would permit Complainant to attend her medical appointments did not fulfil its obligation under the Rehabilitation Act.  Utilizing leave under the FMLA would have required Complainant to take unpaid leave or use sick or annual leave when she had medical appointments, whereas with a flexible AWS she could have minimized her leave usage by moving her off day within the pay period.  The Commission noted that although an employer may choose among effective accommodations, forcing an employee to take leave when another accommodation would permit an employee to continue working is not an effective accommodation.  Given that Complainant was permitted to utilize a flexible AWS and move her lunch break to minimize her leave usage in 2012, the Commission found the Agency had not established that maintaining Complainant’s accommodation constituted an undue hardship. The Commission therefore found that Complainant established she was denied a reasonable accommodation after she submitted updated medical documentation in April 2013. Moreover, the Commission found that the Agency failed to make good faith efforts to reasonably accommodate Complainant.  The Agency instead subjected her to unlawful harassment based on disability and disciplined Complainant for requesting that the Agency reasonably accommodate her.  These actions demonstrated a lack of good faith in the Agency’s accommodation efforts, and the Commission remanded the matter for a supplemental investigation into whether Complainant was entitled to compensatory damages. The Commission affirmed the Agency’s finding of no discrimination concerning Complainant’s many disparate treatment claims.  Elise S. v. Dep’t of State, EEOC Appeal No. 0120170164 (Sept. 25, 2019).

Sexual Harassment & Disability Discrimination Found.  Complainant alleged, among other things, she was subjected to various acts of sexual harassment by a male coworker and the Agency denied her reasonable accommodation. On appeal, the Commission determined that Complainant was subjected to sexual harassment from 2011 until late November 2013, when the coworker made various comments of a sexual nature and engaged in crude acts.  The Commission noted that Complainant’s accounts of the coworker’s conduct were largely documented in emails and corroborated by several coworkers who attested that Complainant reported the conduct at the time of the incidents.  The Commission further found the Agency was liable for the sexual harassment because at least four or five women previously reported that the coworker engaged in sexual conversations with them throughout his 12 years at the Agency.  The Agency had issued him a letter of counseling after an employee complained that he had made sexual comments to her and recommended a lewd website.  The Commission concluded that the Agency should have known about the coworker’s propensity to harass employees but did not take effective action to address his conduct until it reassigned him to another facility in 2017. Additionally, the Agency denied Complainant the requested reasonable accommodation of telework or administrative leave until it provided her with a workplace that guaranteed no contact with the perpetrator.  In so finding, the Commission determined that Complainant experienced Major Depression and Post-Traumatic Stress Syndrome because of the sexual harassment, and the Agency did not prove that providing her with telework or administrative leave would have imposed an undue hardship.  The Agency was ordered, among other things, to provide Complainant with reasonable accommodation, ensure that the coworker does not work in or come near Complainant’s facility, and investigate Complainant’s claim for damages.  The Commission affirmed the Agency’s findings regarding various additional claims of disparate treatment discrimination.  Ashely H. v. Nat’l Transp. Safety Bd., EEOC Appeal No. 0120180038 (Sept. 17, 2019).

Sexual & Retaliatory Harassment & Constructive Discharge Found.  Complainant, who worked for a staffing firm and served the Agency as an Outreach Manager (social worker), filed an EEO complaint alleging that she was discriminated against by the Agency when her Agency supervisor subjected her to harassment by making three denigrating sexual comments over a number of days, she was retaliatorily harassed as evidenced by 23 incidents, and she was constructively discharged.  The Commission affirmed the AJ’s findings of discrimination on appeal.  As an initial matter, the Commission found that the Agency has sufficient control over the Complainant’s employment to be her joint employer.  Further, the record showed that Complainant’s supervisor set the tone in the workplace, creating an environment where sexually vulgar commentary could be used to denigrate subordinates, and thus she created a hostile work environment.  Complainant’s supervisor made patently sexual comments on several occasions, and Complainant protested the remarks, showing they were unwelcome.  The harassment was severe, and the AJ found that it was reasonable for Complainant to be deeply offended by these sexualized comments.  The Commission also affirmed the AJ’s finding that Complainant’s supervisor retaliated against Complaint by making several efforts to have Complainant’s clinical social worker license revoked, in spite of being informed by the state licensing board that the supervisor had misinterpreted state regulations.  Based upon the evidence, the AJ properly found that Complainant was constructively discharged.  Management officials looked for a way to terminate Complainant’s employment, including attacking her state license, complaining to the staffing firm, and elevating these concerns to upper management.  When these efforts failed, they attempted to coerce Complainant to resign as a condition for her obtaining the privileges she needed to take an offered promotion.  Preponderant evidence showed these intolerable working conditions were calculated successfully to make Complainant resign.  With regard to remedies, the Commission did not have authority to order the staffing firm to hire Complainant to serve the Agency, but since the practice of local Agency management was to choose a candidate for a position and hire her through a staffing firm, the Commission ordered the Agency to choose Complainant for instatement, unequivocally ask the appropriate staffing firm to hire her, and if the staffing firm refused, to pay Complainant 10 years front pay based in part upon the AJ’s uncontested finding that Complainant had a reasonable expectation of continued employment by a staffing firm serving the Agency indefinitely.  The Commission also ordered the Agency, among other things, to pay Complainant $125,000 in proven compensatory damages and appropriate back pay.  Glenna O. v. Dep’t of the Air Force, EEOC Appeal No. 0720180030 (Aug. 20, 2019).

Sexual Harassment & Reprisal Found.  Complainant raised a claim of sexual harassment when a coworker continued to pursue him for a sexual relationship and her boyfriend began harassing Complainant at home and vandalized his car.  Complainant also alleged that, after raising the harassment, he was assigned to work with the coworker.  The Commission initially noted that the Agency fragmented Complainant’s claim of harassment, and improperly dismissed two incidents for failure to state a claim.  Nevertheless, since Complainant addressed the incidents as part of his claim of harassment there was sufficient information to consider the matters as part of that claim.  The Commission found that Complainant established that he was subjected to a hostile work environment.  Further, the record clearly showed that Complainant notified management of the coworker’s actions, but the only action taken was to provide the coworker with information about the Employee Assistance Program.  The Agency refused to take any further action against the coworker, but subjected Complainant to threats of relocation, transfer and termination.  In addition, the Agency assigned the coworker to work with Complainant after he reported the harassment.  Therefore, the Agency’s response was neither prompt, nor effective, nor appropriate, and the Agency was liable for the harassment.  The Commission also found that the Agency retaliated against Complainant when it assigned him to work with the coworker after he reported the harassment.  The Commission stated that, based on the lack of specificity and responsiveness from the Agency officials, and the inconsistency in the record, it could not find that the Agency provided any legitimate reason for assigning the coworker to Complainant’s route.  The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide appropriate training to the named management officials and the coworker.  Trey M. v U.S. Postal Serv., EEOC Appeal No. 0120180781 (July 23, 2019).

Denial of Reasonable Accommodation & Retaliation Found.  The Commission found that while the Agency did not frame Complainant’s claim as a denial of reasonable accommodation, five incidents in the complaint concerned the assignment of work outside of his medical restrictions.  The Commission agreed with the Agency that Complainant was a person with a disability.  Further, the Agency did not dispute that he could perform the essential functions of his light duty position. Instead, the Agency stated that Complainant could not perform the duties of his regular job because he could no longer qualify on a firearm and could not do field work.  The Commission found that the Agency attempted to accommodate Complainant’s disability by providing him with light duty office work and by exempting him from conducting interviews.  However, the Commission found that this was not an effective accommodation for Complainant’s disability because his supervisors repeatedly assigned him work outside of his medical restrictions and at no time did his medical providers release Complainant for full duty or indicate he could perform field work.  Since the Agency found Complainant could not perform the essential functions of his current position with or without reasonable accommodation, the Agency, absent undue hardship, was obligated to offer or provide reassignment to a vacant position, which it did not do.  Further, the Agency did not assert that reassigning Complainant would have resulted in an undue hardship.  Therefore, the Agency failed to reasonably accommodate Complainant when it failed to  offer him reassignment, as well as when it repeatedly assigned him tasks that he could not perform because of his disability.  The Commission found that because the preponderance of the evidence did not establish that the Agency consulted with Complainant or engaged in good faith efforts to reasonably accommodate him, the Agency was liable for compensatory damages.

The Commission also found that preponderant evidence in the record established that an individual from Human Resources contacted the EEO Counselor to ask about the purpose of her meeting with Complainant.  Under the circumstances of this case, the Commission found that the individual’s action was reasonably likely to deter an employee from engaging in protected activity.  Therefore, Complainant was subjected to unlawful retaliation.  The Commission affirmed the Agency’s finding that Complainant failed to prove his hostile work environment claim and allegations of disparate treatment.  The Agency was ordered, among other things, to engage in the interactive process with Complainant and provide him with reasonable accommodation, and investigate his claim for damages.  Bryant F. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120171192 (July 2, 2019).

Race & Sex Discrimination Found Regarding Termination During Probationary Period.  The Commission affirmed the AJ’s finding that the Agency discriminated against Complainant based on race and sex when it terminated him during his probationary period.  The Agency stated that it terminated Complainant because of two incidents that were being investigated.  The Commission found that the AJ properly determined the Agency’s articulated reasons were pretextual.  Two supervisors stated that both alleged incidents were minor and not terminable offenses.  In addition, the coworker’s allegations which were the basis for one investigation were refuted by two other employees.  The AJ credited Complainant’s testimony that his supervisor regarded him as a “big, Black man” and thus stereotyped Complainant as aggressive and intimidating.  The Commission found the supervisor’s own testimony that while Complainant may not have intended to be aggressive or intimidating, the supervisor felt that way because Complainant was a large man in his personal space, confirmed that Complainant was being racially stereotyped.  The Agency’s credibility was also negated by the termination of another probationary Black male employee shortly after Complainant’s termination and the incorrect designation of that employee as a White male in discovery.  The Commission affirmed the AJ’s award of $62,750 in compensatory damages based on statements from Complainant’s girlfriend and mother that Complainant became despondent, depressed, anxious, did not attend to his physical health, took up cigarettes and alcohol, lost hope, and gave up pursuing custody of his child.  Complainant also stated his professional reputation was damaged by the termination.  Marquis K. v. Dep’t of the Navy, EEOC Appeal No. 0720180014 (May 10, 2019).

Race and Sex Discrimination Found Regarding Negative Recommendation.  Complainant filed an EEO complaint alleging race (Latino) and sex (female) discrimination, after a supervisor gave her a negative reference.  Complainant had worked under the supervisor for several years and applied for a job at another federal agency.  Though the job was with another federal agency, the position would have kept Complainant in the same facility and given her equal or greater authority than her supervisor.  It was undisputed that the supervisor’s negative reference resulted in Complainant’s nonselection for the position despite her qualifications, outstanding recommendations from other Agency references, and favorable performance ratings from the supervisor both before and after the reference.  While the Agency stated that Complainant’s own actions, including a questionable attendance issue, resulted in the negative reference, the Commission noted that the supervisor’s negative recommendation contradicted the supervisor’s own statement that he had “no issues” with Complainant’s performance. Further, Complainant’s past awards and performance evaluations undercut the veracity of the supervisor’s reference to such things as Complainant’s “negative demeanor,” and tendency to question assignments in a way that negatively impacted the department, for which the supervisor had no supporting documentation.  The Commission found no legitimate explanation for the action, and thus concluded that discriminatory animus played a role in the negative reference.  The Agency was ordered, among other things, to designate a management official other than the supervisor to provide references for Complainant and investigate her claim for damages.  Thomasina B. v. Dep’t of Justice, EEOC Appeal No. 0120173008 (Feb. 27, 2019).

Denial of Religious Accommodation and Unlawful Retaliation Found.  Complainant submitted a written request to his Manager for a religious accommodation, stating that due to his religious beliefs he is not permitted to work on Sunday.  The Manager responded to Complainant’s religious accommodation request in writing, notifying him that another employee had volunteered to work on Sundays, so Complainant would not need to routinely work on that day. When Complainant failed to report for training as scheduled on several Sundays, however, he was marked as absent without official leave (AWOL) and issued a Notice of Removal for failing to report to work on three consecutive Sundays, as well as failure to report to work on two days when he used approved leave.  Subsequently, Complainant was issued another Notice of Removal for failure to follow instructions and unacceptable conduct.  Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of religion (Methodist).

On appeal, the Commission noted that Complainant had clearly provided the Agency with a letter indicating that his religious belief forbade him from working on Sundays.  Despite the Agency’s indication that another employee would take on the regular Sunday assignment, the Agency still required Complainant to come to work on three consecutive Sundays to attend training, as well as indicated that he would be expected to work some Sundays as a backup to the other employee.  Accordingly, the Agency essentially denied Complainant’s religious accommodation.  In addition, the Agency did not provide any evidence regarding the availability of other employees who could serve as a Sunday backup. As such, the Commission concluded that the Agency failed to meet its burden of proving undue hardship in granting Complainant’s religious accommodation.  The Commission also concluded that the first removal was inextricably intertwined with the Agency’s unlawful denial of religious accommodation.  The Commission noted that while Complainant later exhibited inappropriate conduct when he used profanity and walked out of a meeting, the evidence of record did not support a finding that this conduct would have resulted in a removal action had it not been for the conflict over Complainant’s requests for religious accommodation and the imposition of the first removal.  The Commission noted that the second removal notice explicitly stated that the first removal was considered in reaching the decision.  Accordingly, the Commission found that, more likely than not, Complainant’s engagement in protected activity played a significant role in the decision to issue the second removal.  The Agency was ordered, among other things, to retroactively reinstate Complainant with back pay and interest; remove and expunge all documents related to the removals from Agency records; and investigate his claim for damages.  Stanton S. v. U.S. Postal Serv., EEOC Appeal No. 0120172696 (Feb. 5, 2019).

Agency Liable for Sex-Based & Retaliatory Hostile Work Environment.  Complaint filed an EEO complaint alleging that she was subjected to sexual harassment by her manager (“Manager”); and, on June 23, 2014, the Agency retaliated against her when it cancelled her detail to an Acting Manager position.  Complainant indicated that from May 2013 through June 2014, the Manager made repeated sexual advances towards her, that included frequent remarks of a sexual nature or containing sexual innuendo, as well as contacting her outside of work and asking her on a date or to come to his house.  Complainant stated that after she informed the In-Plant Manager and Plant Manager of the Manager’s conduct, the harassment continued and became worse.  On appeal, the Commission 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.  The Commission determined that the Manager subjected Complainant to sexual harassment and subsequently cancelled Complainant’s detail in retaliation for complaining about the harassment to the Plant Manager.  Moreover, the record clearly established that Complainant notified management of the alleged sexual harassment, and the Plant Manager’s discussions with the Manager about Complainant’s concerns were ineffective as the harassment continued and the Manager cancelled Complainant’s detail.  As such, the Commission concluded that the Agency was liable for the sex-based and retaliatory hostile work environment created by the Manager.  The Agency was ordered, among other things, to provide Complainant with a detail assignment to a managerial or equivalent position and investigate her claim for damages.  Lelah T. v. U.S. Postal Serv., EEOC Appeal No. 0120172533 (Oct. 24, 2018).

Retaliation

Retaliatory Harassment Found.  Complainant filed an EEO complaint alleging, among other things, that the Agency subjected her to retaliatory harassment when her supervisor verbally threatened her due to her EEO activity.  On appeal, the Commission found that supervisor’s comments violated Title VII.  Specifically, Complainant’s supervisor attested that he told Complainant that her complaining about EEO issues was causing him a lot of extra work and stress, and that he did not feel her complaints constituted real EEO complaints.  The supervisor further said that management saw Complainant as someone who did not work well with others due to her verbal EEO complaints.  The Commission found that the supervisor labeled Complainant as someone who does not work well with others due to her EEO activity. The Commission further observed that Complainant, a probationary employee, was threatened with termination due to her EEO activity.  The Commission ultimately found that the supervisor’s comments to Complainant constituted reprisal, and ordered the Agency to conduct a supplemental investigation on Complainant’s entitlement to compensatory damages, among other things.  Terisa B. v. Dep’t of Def., EEOC Appeal Nos. 0120180570, 0120181692, & 2019002121 (Sept. 4, 2019).

Retaliatory Harassment Found.  Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated her and subjected her to a hostile work environment in reprisal for prior protected EEO activity when, during a meeting, her supervisor made comments regarding Complainant’s allegations of race discrimination.  According to the record, Complainant emailed the Regional EEO Manager following the meeting and stated she felt threatened, and questioned whether she should file a complaint.  On appeal, the Commission found that Complainant had been subjected to reprisal for protected EEO activity.  The evidence clearly established that the supervisor’s conduct toward Complainant in that incident was sufficiently material to deter protected activity.  Further, the supervisor’s conduct had the effect of deterring Complainant from pursuing an EEO complaint at that time.  As a result, the Commission found that Complainant established that she was subjected to a retaliatory hostile work environment. The Agency was ordered, among other things, to investigate Complainant’s entitlement to compensatory damages and provide 16 hours of training to the supervisor. The Commission affirmed the Agency’s finding that Complainant had not been subjected to discrimination or a hostile work environment on the bases of race or color.  Leora R. v. Dep’t of Health & Human Serv., EEOC Appeal No. 0120180736 (Aug. 30, 2019).

Retaliatory Harassment & Constructive Discharge Found.  The Commission affirmed the AJ’s finding that Complainant was subjected to a retaliatory hostile work environment that resulted in Complainant’s involuntary retirement.  According to the record, Complainant reported an incident of sexual harassment to officials at the school where she worked, and the Commission agreed with the AJ that Complainant had a reasonable, good-faith belief that the incidents she observed violated the Agency’s anti-harassment policy.  Therefore, Complainant engaged in protected EEO activity.  The Commission agreed with the AJ’s determination that Complainant suffered significant professional repercussions based on this protected activity, including being reassigned from a class she had taught for 30 years to one she was not familiar with, and being subjected to investigations, unannounced classroom visits, and various disciplinary actions.  Therefore, Complainant was subjected to a retaliatory hostile work environment such that a reasonable employee would have felt compelled to resign.  The Commission affirmed the AJ’s award of past pecuniary damages, as well as nonpecuniary damages in the amount of $200,000 based on statements from coworkers and two psychologists confirming that Complainant experienced loss of appetite, weight loss, back pain, flashback and nightmares, migraines, extreme irritability with suicidal thoughts, panic attacks, and insomnia.  The retaliation exacerbated Complainant’s PTSD, which had been dormant for years, and she was diagnosed with acute stress disorder stemming from the retaliation at work.  The Commission found an award of $200,000 was neither monstrously excessive nor the product of passion or prejudice and was consistent with prior EEOC precedent.  Cassandra L. v. Dep’t of Def., EEOC Appeal No. 0720180029 (Aug. 20, 2019).

Retaliation Found Regarding Nonselection.  Complainant filed an EEO complaint alleging, among other things, that the Agency retaliated against her when it did not select her for the position of Supervisory Border Patrol Agent (ERB position).  On appeal, the Commission found that Complainant was subjected to discrimination based on reprisal for engaging in prior EEO activity with respect to her non-selection.  Complainant established a prima facie case of reprisal discrimination, and the Agency did not articulate a legitimate, non-discriminatory reason for its action.  While Complainant was included on the Certificate of Eligibles (COE), she was not recommended or selected for an interview.  Seven of the 23 candidates on the COE were selected for an interview.  The Agency did not indicate how it determined which seven candidates would be interviewed, or why Complainant was not one of the seven despite the fact that all 23 were deemed qualified and included on the COE.  It was not enough for the Agency to simply state that the selecting official, or their designee, had the discretion to interview any applicants referred as best qualified, especially in a case where the interviewees, unlike Complainant, had never engaged in protected EEO activity.  The Agency was ordered, among other things, to place Complainant in the ERB position, pay Complainant backpay with interest from the date she would have started in the position, and conduct a supplemental investigation on Complainant’s entitlement to compensatory damages.  The Commission affirmed the Agency’s finding that Complainant did not establish a prima facie case of national origin or sex discrimination with regard to the ERB position, because two of the interviewees were members of Complainant’s protected groups.  The Commission also affirmed the Agency’s finding that Complainant was not discriminated against when she was not selected for another position.    Ashlea P. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120182299 (May 29, 2019).

Retaliation Found Regarding Performance Review.  Pursuant to a request for a reasonable accommodation and settlement of an EEO complaint, Complainant had been working from home five days per week when the Agency gave her an unsatisfactory progress review.  The review assessed Complainant’s performance as unsatisfactory in her interpersonal skills, as well as other performance elements.  On appeal, the Commission determined that the Agency’s stated reasons for the review were pretexts for discrimination, and the Agency penalized Complainant for not being physically present in the office.  The review did not directly relate to Complainant’s performance. Further, maintaining personal interactions was a natural challenge of working from home.  The Commission noted that the unsatisfactory review was issued at a time when Complainant’s team production numbers were high, and Complainant had never received an unsatisfactory review before she began a telework schedule.  The Commission found that the unsatisfactory rating was clearly motivated by Complainant’s telework agreement which was given to her as an accommodation.  Management even threatened to end her telework due to the questionable performance review.  Therefore, Complainant established that the Agency retaliated against her when it issued her the unsatisfactory review.  The Agency was ordered, among other things, to remove any references to the review from Complainant’s personnel records and investigate her claim for damages.  The Commission affirmed the Agency’s finding that Complainant failed to prove she was denied reasonable accommodation or subjected to harassment.  Wanita Z. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120171549 (May 17, 2019).

Retaliatory Harassment Found.  Complainant filed an EEO complaint alleging, among other things, that he was subjected to harassment in retaliation for his protected EEO activity.  On appeal, the Commission found that the record supported a finding of unlawful retaliation.  Complainant’s testimony, along with other credible corroborative evidence, showed that various managers and co-workers were hostile toward Complainant, criticized and screamed at him, and treated him poorly.  Further, the Commission stated that the managers’ conduct was intended to deter Complainant from engaging in the EEO process.  Specifically, whenever the responsible management officials received affidavits to respond to with respect to Complainant’s EEO complaints, they would display displeasure toward Complainant, and say things like “this EEO business” needs to be dropped.  In addition, as punishment, the managers would force Complainant to perform an unrealistic amount of work before he was permitted to work on his EEO complaints.  Because of the pervasiveness and duration of the conduct, the Commission found Complainant’s work environment to be hostile and abusive.  Finally, the Commission imputed liability to the Agency because it failed to prevent or correct the hostile work environment.  The Commission affirmed the Agency’s finding that Complainant failed to prove his additional claims of discrimination.  The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide appropriate training to the named management officials.  Mario K. v. U.S. Postal Serv., EEOC Appeal No. 0120172206 (Feb. 15, 2019).

Retaliation Found Regarding Nonselection.  The Commission found substantial evidence supported the AJ’s conclusion that the Agency subjected Complainant to reprisal when it did not select him for a reassignment.  According to the evidence, Complainant’s supervisor gave him a negative reference within 24 hours of learning that Complainant had opposed allegedly discriminatory practices.  The Commission found the Agency’s rationale for not selecting Complainant was a pretext for discrimination.  The Agency stated Complainant was not selected because of the negative reference and his failure to certify on radar.  The reason for the negative reference was Complainant’s alleged frequent tardiness and the need for close supervision.  However, the record showed Complainant was tardy only one time during the relevant period and Complainant’s on-the-job instructor status indicated Complainant was not only responsible for his own work but for developing newer employees.  Further, one selectee was also not certified on radar.  The Commission affirmed the AJ’s award of $65,000 in compensatory damages, which was based on Complainant’s and his wife’s testimony and medical evidence showing Complainant was fearful that his reputation had been tarnished, withdrew from family, gained weight, could not sleep, felt worthless, and was diagnosed with depression and PTSD.  Ira P. v. Dep’t of Transp., EEOC Appeal No. 0720180007 (Dec.11, 2018), request for reconsideration denied EEOC Request No. 2019002130 (June 20, 2019).

Retaliation Found.  According to the record, Complainant worked six hours per day on modified duty, spending two to three hours casing her route and then two to three hours on the street.  After Complainant engaged in protected EEO activity, the Agency changed this arrangement, and the Postmaster offered Complainant a limited-duty assignment that involved six hours of delivery.  The record did not explain why the Postmaster made the offer at that time.  When Complainant rejected the assignment as beyond her limitations, the Postmaster offered only to allow her to case mail for approximately three hours without explaining why Complainant was not permitted to continue to deliver her route for three hours per day.  The Commission found that the record did not support the Postmaster’s assertion that the Agency was concerned about Complainant working outside her restrictions.  Further, there was no evidence that the two to three hours that Complainant spent carrying her route exceeded her work limitations.  To the extent that the Agency was arguing that it reduced Complainant’s hours and required her to relinquish her route because she did not provide documentation clarifying her physician’s reference to three hours “on the street,” the Agency’s argument failed.  While the Postmaster explained that he interpreted the reference to include driving time, he did not ask for additional documentation in the event Complainant believed that his interpretation was incorrect.  Further, to the extent that the Agency, in its final decision, relied on a Memorandum of Understanding as part of the articulated reason, its reliance was misplaced because the Postmaster did not state that he took the actions at issue here because of the Memorandum of Understanding.  In addition, nothing in the Memorandum explains why the Agency allowed Complainant to retain her route for several years while on modified duty but required her to relinquish the route after she participated in protected EEO activity.  The Commission found that the Agency’s articulated reasons were not worthy of credence, and that a retaliatory reason more likely motivated the Agency’s actions.  Accordingly, the Commission concluded that the Agency discriminated against Complainant in reprisal for her prior protected EEO activity when it reduced her work hours and forced her to relinquish her assigned rural route.  The Agency was ordered, among other things, to retroactively return Complainant to her prior route, pay her appropriate back pay, interest, and other benefits, compensate her for adverse tax consequences, and investigate her claim for damages.  Pamala L. v. U.S. Postal Serv., EEOC Appeal No. 0120171070 (Nov. 9, 2018).

Official Time

Agency Granted Complainant Reasonable Amount of Official Time.  The Commission found that the Agency granted Complainant reasonable amounts of official time to work on his pending EEO complaint and amendments.  Complainant conceded that his requests were not denied, but asserted that the two-hour increments he was granted were not sufficient.  The record showed, however, that on at least one occasion management immediately granted Complainant two hours of official time, and the Agency asserted that at one point it did not even track the amount of official time Complainant was using.  While Complainant was not granted as much time on one occasion when the facility was short-staffed, he was granted more official time the next day.  The Commission noted that an agency may restrict the overall hours of official time afforded.  Michael V. v. Dep’t of Def., EEOC Appeal No. 0120181500 (Aug. 7, 2019).

Remedies

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

Commission Affirmed AJ’s Finding that Complainant Not Entitled to Back Pay.  On appeal, Complainant argued that the AJ erred in finding that he was not entitled to an award of back pay. The Commission noted that Complainant provided only conclusory statements in support of his appeal, and Complainant’s testimony at the hearing was, for the most part, the primary reason the AJ found that he did not mitigate his damages.  Specifically, Complainant was not able to produce a single job application he submitted during the entire six-year period after he was terminated; he admitted that if he had undertaken a job search, it would only have been the two years after he was terminated; and he admitted that the jobs he would have applied for were not jobs he would have accepted.  In addition, the AJ noted other inconsistencies in his testimony regarding his income during the period he was unemployed.  Based on a totality of the record, the Commission found that there was substantial evidence to support the AJ’s finding that Complainant was not entitled to back pay.  Darell C. v. U.S. Postal Serv., EEOC Appeal No. 0120181789 (Aug. 20, 2019).

Back Pay Discussed.  In a prior decision, the Commission found that the Agency discriminated against Petitioner based on sex/pregnancy when it terminated her and subjected her to a hostile work environment which ultimately resulted in constructive discharge when the Agency cancelled the termination but failed to assign Petitioner to a different supervisor.  The Agency was ordered, among other things, to pay Petitioner appropriate back pay.  The Commission subsequently denied Petitioner’s petition for enforcement, finding that the Agency correctly calculated the amount of back pay due.  According to the record, Petitioner’s interim earnings exceeded her gross back pay by more than $200,000.  While Petitioner claimed that she should receive back pay for days she would not have been in military status, federal holidays, and military leave, the Commission stated that Petitioner was not entitled to more than she would have earned but for her constructive discharge.  Since Petitioner could not have worked full-time in her civilian job while also working full-time in active-duty military status, her earnings while on active duty were interim earnings which must be deducted from the back pay award.  The Commission also stated that the value of any holidays, military leave or time she was not working on military orders would not overcome the much higher interim earnings Petitioner received after her constructive discharge.  The Commission found that the Agency complied with its order to offer Petitioner reinstatement, pay attorney’s fees, and post notice of the finding of discrimination.  Sherill S. v. Dep’t of the Air Force, EEOC Petition No. 2019001468 (June 5, 2019).

Complainant Entitled to Placement into Position as Remedy for Retaliation.  The Agency determined that it discriminated against Complainant based on reprisal when conducting a suitability determination during the selection process for a Patent Examiner position.  The Agency ultimately did not select Complainant for the position.  As relief, the final decision ordered the Agency, among other things, to conduct a new suitability determination, and offer Complainant the position if he was found suitable.  On appeal, Complainant asserted that the Agency should have awarded him a retroactive appointment to the position and a non-competitive promotion.  The Commission agreed with Complainant, finding that the Agency erred in not retroactively placing the Complainant in the position for which he applied.  The Commission noted that where discrimination is found, the Agency must provide the Complainant with a remedy that constitutes full, make-whole relief.  That is, the Agency was required to restore the Complainant as nearly as possible to the position he would have occupied absent the discrimination.  The evidence in this case failed to establish that, absent the discrimination, the Agency would not have placed Complainant in the Patent Examiner position.  The Agency informed Complainant he had been selected for the position, and the record contained documentation listing his entry-on-duty date.  Nevertheless, a Human Resources Specialist found Complainant was not suitable for hire, a decision the Agency found constituted reprisal discrimination.  The Commission concluded that the Agency did not meet its burden of showing that Complainant’s termination from his prior employment would have resulted in an unfavorable suitability determination.  Therefore, the Commission ordered the Agency, among other things, to retroactively place Complainant into the Patent Examiner position with appropriate back pay and benefits and compensate him for any adverse tax consequences.  The Commission affirmed the Agency’s finding that Complainant failed to prove his additional claims of disparate treatment and disparate impact discrimination.   Lazaro G. v. Dept. of Commerce, EEOC Appeal No. 0120170802 (May 17, 2019).

Complainant Entitled to Reinstatement of Leave.  An AJ found that the Agency violated the Rehabilitation Act when it denied Complainant a reasonable accommodation and terminated her.  The AJ ordered the Agency, among other things, to reinstate Complainant and pay her back pay and “other benefits.”  The Agency adopted the AJ’s findings and agreed to fully implement the AJ’s order.  Complainant appealed to the Commission when the Agency denied restoration of her leave.  The Commission held that Complainant was entitled to full, make whole relief, which the Commission has broadly construed to include annual leave, sick leave, health insurance, overtime, premium pay, night differentials, and retirement contributions.  Therefore, the Commission ordered the Agency to restore Complainant’s annual and sick leave she would have accrued but for the discrimination.  Kyong L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120172904 (Feb. 15, 2019).

Agency Jointly & Severally Liable for Full Amount of Back Pay. Complainant filed an EEO complaint against the Agency alleging that she was discriminated against when she was terminated.  In a prior decision, the Commission found that the Agency was Complainant’s joint employer.  Following an investigation, the Agency concluded that management violated the Rehabilitation Act when it refused to consider Complainant’s request for reasonable accommodation and insisted the staffing firm terminate her services with the Agency.  While the Agency stated it would, among other things, determine the appropriate amount of back-pay with benefits due Complainant, the Agency ultimately issued a final decision denying Complainant any back-pay.  On appeal, the Commission noted that when, as here, the Agency qualifies as Complainant’s joint employer, it is liable for discriminating against Complainant on the same basis that it would be liable for discriminating against any of its other employees.  The Commission further noted that where the combined discriminatory actions of a staffing firm and the Agency result in harm to Complainant, they are jointly and severally liable for back-pay, front pay, and compensatory damages.  This means that Complainant can obtain the full amount of back-pay, front pay, and compensatory damages from either one of the employers alone or from both combined.  Even where there is joint liability, neither the charging party nor the Commission is obligated to pursue a claim against both entities.  Counsel for the Agency argued that he found no cases awarding back pay to a contract worker from a federal agency, and Complainant cited none. However, the Commission explained that it need not determine whether the Back Pay Act applied to a common-law employee of an agency.  Like any employee, Complainant was entitled to compensation for her lost earnings, including benefits she would have received had she not been removed from serving the Agency by the staffing firm at the Agency’s request.  The Commission acknowledged that the Department of Labor found the staffing firm also discriminated against Complainant when, after the Agency forced it to terminate Complainant’s service, the staffing firm did not reassign her.  Complainant’s loss of earnings, however, was still proximately caused by the Agency, and the Agency was jointly and severally liable for the full amount of the back pay owed.  Nicki B. v. Dep’t of Educ., EEOC Appeal No. 0120172829 (Nov. 28, 2018).

Sanctions

Commission Affirmed AJ’s Dismissal of Complainant’s Hearing Request as Sanction.  Complainant failed to provide a sworn statement indicating the factual bases of her claims either during the investigation or in response to the Agency’s discovery motion.  The AJ subsequently granted the Agency’s motion to dismiss the hearing request, stating that Complainant merely stated that the file contained “everything except testimony from my witness.”  The Commission found that the record supported the contention that Complainant refused to provide a sworn statement indicating the factual bases of her claims.  Complainant contended she did not provide the affidavit because she feared it would be shown to management officials.  However, the Commission found this did not justify Complainant’s failure as management would clearly be aware of her testimony and other evidence presented at a hearing.  The Commission also rejected Complainant’s assertion that she was afraid for one of her witnesses and needed a protective order from the AJ for him to testify as this did not justify Complainant’s failure to submit her own statement.  Therefore, the Commission concluded that the AJ did not abuse his discretion by dismissing Complainant’s hearing request.  The Commission affirmed the Agency’s decision finding no discrimination.  Carolyn M. v. U.S. Postal Serv., EEOC Appeal No. 0120181158 (May 9, 2019), Additional Decisions Addressing an AJ’s Dismissal of a Hearing Request as a Sanction Include: Monroe M. v. Dep’t of Transp., EEOC Appeal No. 0120170817 (Mar. 26, 2019) (The AJ issued an Order granting the Agency’s Motion to Compel Discovery and Request for Extension of the Discovery Deadline, and warned Complainant that failure to respond to the discovery requests by the deadline could result in sanctions, up to and including dismissal of the hearing.  When Complainant failed to meet the deadlines, the AJ determined that there was good cause to dismiss Complainant's hearing request, and she remanded the complaint to the Agency, ordering it to issue a final decision.  On appeal, the Commission found that the AJ’s dismissal of the hearing request was appropriate, because Complainant failed to provide adequate responses to the discovery requests and rebuffed the Agency’s attempt to discuss the deficiencies in his response); Alden G. v. Social Security Administration, EEOC Appeal No. 0120170849 (Feb. 15, 2019) (At the hearing stage, the parties agreed to a protective order and stipulation that information the Agency provided would not be used for any purpose other than the prosecution of the instant EEO complaint.  Nevertheless, Complainant used one of the Agency-produced documents as an exhibit in the arbitration of his removal.  Complainant blacked out the portion of the document that indicated it was confidential and subject to a protective order.  The Commission noted that Complainant did not seek modification of the protective order to enable him to use the document, and affirmed the AJ’s dismissal of the hearing request as a sanction);  Angella F. v. Dep’t of the Army, EEOC Appeal No. 0120172081 (Dec. 14, 2018).(Complainant sent the AJ an email containing what she described as “corrections” to the hearing record.  These “corrections” contained several thinly veiled suggestions that the AJ and Complainant’s attorney acted unethically.  The AJ ordered Complainant’s attorney and opposing counsel to provide independent recollections of the hearing.  A review of these recollections showed they were consistent and sharply diverged from Complainant’s version.  The AJ concluded Complainant had lied to the AJ and diverted resources from other judicial matters and so dismissed Complainant’s hearing request as a sanction.  The Commission concluded that dismissing the hearing was a proper sanction, and affirmed the Agency’s finding of no discrimination and hostile environment and found no violation of the Commission’s regulations regarding official time). 

Commission Sanctioned Agency for Failure to Timely Issue a Final Decision.  Complainant requested a final decision in June 2016, and the Agency issued its decision in April 2017, which was beyond the 60-day time frame specified in the Commission’s regulations.  While the Commission affirmed the Agency’s finding of no discrimination, the Commission sanctioned the Agency for failing to comply with its obligation to issue a final decision in accordance with its regulations.  The Agency did not show good cause for its noncompliance, and the Commission noted that it must ensure that all parties abide by its regulations.  The Commission ordered the Agency to provide training to its EEO personnel who failed to comply with the regulatory timeframes, consider taking disciplinary action against those EEO personnel, and pay any attorney’s fees Complainant incurred for filing her appeal.  Evelina M. v. Dep’t of Justice, EEOC Appeal No. 0120171018 (Dec. 11, 2018).

Commission Issues Sanction.  Complainant received the Agency’s notice to request a hearing or a final Agency decision, but failed to request either within the requisite 30-day time limit.  The Agency then did not issue its final decision within 60 days as set forth in the Commission’s regulations.  Meanwhile, Complainant subsequently requested a final Agency decision on numerous occasions.  The Agency ultimately issued its final decision more than two years after the requisite time limit.  The Agency provided no explanation for the late issuance of the final decision.  Based on the specific circumstances of this case, the Commission found the most appropriate sanction to address the Agency’s conduct was to order the Agency to post a notice at its Office of Civil Rights in Washington, D.C. regarding its failure to comply with the Commission’s regulatory timeframes and orders; and provide training to its EEO personnel who failed to comply with our regulatory timeframes.  The Commission affirmed the Agency’s finding of no discrimination in this matter. Alda F. v. Envtl. Prot. Agency, EEOC Appeal No. 0120171676 (Nov. 29, 2018).

Settlement Agreements

Settlement Agreement Void for Lack of Consideration.  Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that the Agency would allow Complainant to use a service animal as a reasonable accommodation, and provide her with a compressed work schedule and flexible telework schedule.  The Commission noted that, throughout the record, the telework agreement was referred to as a reasonable accommodation.  Further, both the telework provision and service animal provision were contained in the same section of the agreement.  The Commission concluded that the telework provision of the settlement agreement was void, given that the documents used to execute the Agency’s obligations under the agreement showed that telework was being provided as a reasonable accommodation.  The telework provision simply obligated the Agency to provide Complainant with reasonable accommodation which it was already required to do under the law.  Since there was consideration exchanged through other provisions of the agreement, the Commission reformed the agreement without the terms concerning accommodation, and ordered the Agency to process the claims regarding modifications to the telework as a new complaint because Complainant initially raised them that way.  Teresa D. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002187 (Aug. 13, 2019).

Agency Substantially Complied with Settlement Agreement.  The Commission affirmed the Agency’s finding that it did not breach the settlement agreement between the parties.  The parties agreed that management would produce a “payroll everything report” for Complainant.  Complainant would then notify the Agency if he found any discrepancies, and the Agency would complete payroll adjustment.  The Commission noted a delay in satisfying the terms of the agreement. but the record indicated that a specialist corrected the discrepancies identified by Complainant.  Complainant did not provide any evidence reflecting that the Agency failed to resolve the discrepancy.  The Commission noted that a brief failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when as here all required actions were subsequently completed.  Moshe C. v. U.S. Postal Serv., EEOC Appeal No. 0120180362 (July 2, 2019).

No Breach of Settlement Found.  Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that the Agency would assign Complainant to a specific unit at the same series and grade.  The Agency retained the right to temporarily assign Complainant other duties as needed.  Complainant alleged that the Agency breached the agreement when, over 10 years later, it transferred her to another unit.  On appeal, the Commission found that the Agency did not breach the agreement.  Complainant received the benefit of the agreement for almost 11 years.  The Commission has previously held that where a settlement agreement assigns a position but does not specify the duration of the position, it is reasonable to assume that the parties did not intend that the position would last forever.  The Commission noted that, to the extent Complainant believed the reassignment itself was discriminatory, she could file a new complaint raising that allegation.  Donna W. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019000362 (Apr. 12, 2019).

Settlement Agreement Void for Mutual Mistake.  The parties entered into a settlement that provided, in pertinent part, that the Agency would “audit/review” Complainant’s route and correct any discrepancies.  The Agency also agreed to complete the necessary paperwork if the audit revealed that Complainant was due a monetary adjustment.  According to the record, there was some disagreement between Complainant and the Agency as to the effective date of the route adjustment.  After the Agency agreed to the date Complainant requested and completed the audit and route adjustments, Complainant was not due back pay but instead owed the Agency.  Emails in the record indicated that the EEO Specialist was not aware of the possibility of an overpayment at the time of settlement.  Instead, she and Complainant had been told there would be significant back pay due to Complainant.  The Commission found that the settlement agreement was void for mutual mistake.  Both parties acted under the mutual mistake that the result of the audit and route adjustment would be back pay due to Complainant.  This had a material effect on the agreement, and there was no evidence that either party knew of the possible outcome when the agreement was executed.  The Commission ordered the Agency to resume processing the underlying EEO complaint from the point processing ceased.  Shanti N. v. U.S. Postal Serv., EEOC Appeal No. 0120180212 (Apr. 10, 2019).

Breach of Settlement Found.  Complainant and the Agency entered into a settlement that provided, among other things, for Complainant to be removed from a named supervisor’s direct supervision.  On appeal, the Commission found that the Agency breached the settlement agreement.  The Commission agreed with the Agency that including the supervisor as a passive recipient on emails involving Complainant’s assignments did not constitute a breach of the agreement.  The record, however, showed that the supervisor made active decisions regarding Complainant which clearly violated the terms of the agreement.  Specifically, there was evidence that the supervisor denied Complainant’s request for more time to see a patient, and her request for sick leave.  The Commission noted that Complainant obtained other benefits through the agreement, and, therefore, ordered the Agency to specifically comply with the terms related to the named supervisor.  Kyoko H. v. Dep’t of Veteran Affairs, EEOC Appeal No. 2019001697 (Mar. 29, 2019), request for reconsideration denied, EEOC Request No. 2019003252 (Aug. 16, 2019).

Complainant Entitled to Attorney’s Fees Related to Securing Compliance with Settlement Agreement.  Complainant alleged breach of settlement when the Agency failed to restore sick leave and purge his Official Personnel File of certain documents.  The Agency acknowledged that it breached the settlement agreement but presented evidence on appeal that it cured the breach.  However, because the Agency only cured the breach as a result of Complainant’s compliance efforts, the Commission held that Complainant was entitled to attorneys’ fees for this effort.  Everette C. v. Dep’t of the Army, EEOC Appeal No. 0120172167 (Mar. 14, 2019).

Settlement Agreement Invalid Due to Lack of Consideration.  Complainant entered a settlement agreement with the Agency providing that Complainant would fill out a form and verbally remind management of medical appointments during work hours and call her supervisor with any questions about delivery issues.  In addition, Complainant and two management officials would discuss performance issues in private and off the floor.  Complainant alleged that the Agency breached the agreement when one of the officials reprimanded and embarrassed her in front of coworkers.  On appeal, the Commission found that the settlement agreement was unenforceable due to lack of consideration.  The provisions of the agreement were routinely required and provided no different obligations than those typically expected by an Agency employee. The Commission ordered the Agency to resume processing the underlying complaint from the point where processing ceased.  Britany N. v. U.S. Postal Serv, EEOC Appeal No. 2019001079 (Feb. 8, 2019); Additional Decisions Addressing Lack of Consideration in a Settlement Agreement Include:  Cortez J. v. U.S. Postal Serv., EEOC Appeal No. 0120182495 (Dec. 20, 2018) (Commission found the settlement agreement, that provided, in pertinent part, that the Agency would ensure the workplace was “free of discrimination,” foster a work climate where all employees could “participate and contribute,” and adhere to the hiring procedures that were “permitted and governed by the bargaining unit agreement” was void for lack of consideration.  The settlement agreement provided nothing more than what Complainant was already entitled to as an employee of the Agency, namely to be treated with respect and dignity.  Further, the hiring procedures in the settlement agreement simply iterated what was already due under the collective bargaining agreement); Fred M. v. U.S. Postal Serv., EEOC Appeal No. 0120172563 (Nov. 8, 2018), (the Commission found the agreement, providing, in pertinent part, that the Agency would treat Complainant fairly and in accordance with Agency rules and regulations with regard to promotions and merit increases, was unenforceable because it was vague and lacked consideration.  The Agency was already obligated to follow its own rules and not discriminate against Complainant); Nicol K. v. U.S. Postal Serv., EEOC Appeal No. 0120172733 (Oct. 31, 2018), (Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that management would request a route inspection and return copies of certain forms to Complainant.  The agreement also specified that management and Complainant would communicate professionally with each other.  The Commission found that the agreement was void for lack of consideration.  The Agency merely agreed to “request” a route inspection and made no guarantee that any route inspection would actually occur.  Such a request imposed no legal detriment on the Agency, while in exchange, Complainant surrendered her right to pursue her complaint.  Further, the remaining provisions provided Complainant with nothing beyond that to which she was already entitled, and hence were void for lack of consideration).

Stating a Claim

Allegation Agency Cancelled Vacancy Announcement Stated Viable Claim.  The Commission found that the Agency improperly dismissed Complainant’s EEO complaint for failure to state a claim.  As prior Commission decisions have noted, cancellation of a job vacancy announcement generally does not render an applicant aggrieved. If, however, a complainant alleges that the vacancy announcement was cancelled for a discriminatory motive, such that the announcement was cancelled in order to avoid giving the complainant a position, it does state a claim.  According to the EEO Counselor’s Report, Complainant stated that after he bid on a position, the Agency “pulled” the position so as not to award him the bid because of his sex, race, religion and color.  Cleo S. v. U.S. Postal Serv., EEOC Appeal No. 2019004448 (Sept. 11, 2019).

Agency Mischaracterized & Improperly Dismissed Disability Claim.  The Commission found that a fair reading of the complaint, as described in Complainant’s brief on appeal, showed that Complainant alleged he was subjected to “near constant” harassment and increased scrutiny because of his disability.  Complainant further asserted that specific details which he provided in his formal complaint were excluded from the Agency’s analysis, and that the Agency chose to mischaracterize the issues prior to dismissing them.  The Commission determined that Complainant did, in fact, allege in his formal complaint that he was harassed and subject to intensive scrutiny based on disability.  Vaughn T. v. U.S. Postal Serv., EEOC Appeal No. 2019004181 (Sept. 10, 2019).

Allegation that Agency Monitored Complainant’s Performance Stated Viable Claim of Harassment.  A fair reading of Complainant’s complaint showed that Complainant alleged that he was placed on new performance measures because of his race.  As a result of Complainant’s alleged failure to meet these new measures, Complaint stated he was placed in a 60-day monitoring period and subjected to increased scrutiny designed to harass him because of his race.  The Commission found that Complainant’s allegations were sufficient to state a viable claim, and the Agency’s dismissal was improper.  Michael V. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002562 (Aug. 16, 2019).

Agency Improperly Addressed Merits in Dismissal & Failed to Recognize Claim of Harassment.  Complainant alleged that management denied him a promotion to a higher-grade level, and on 2 occasions told him to look elsewhere for a promotion.  The Agency dismissed the complaint, reasoning that the two claims were insufficiently severe or pervasive to establish a cognizable hostile work environment claim.  The Agency also addressed the merits of the matters.  On appeal, the Commission determined that the denial of a promotion concerned a harm to a term, condition, or privilege of employment and, therefore, stated an actionable claim.   Further, when considered together, the non-promotion and the supervisor’s remark to look elsewhere for a promotion could reasonably deter an individual from engaging in EEO activity and stated a viable claim of discriminatory or retaliatory harassment.  Irvin C. v. Nat’l Archives & Records Admin., EEOC Appeal No. 0120181352 (July 3, 2019).

Agency Mischaracterized Claim as “General Grievance.”  The Agency characterized Complainant’s allegation as concerning the closure of the Office of the Inspector General and transfer of employees to other locations, which the Agency stated was “a generalized grievance” shared by a large class of persons.  The Commission found, however, that a fair reading of the formal complaint together with the EEO counseling report indicated that Complainant alleged he was discriminated against when the Agency notified him that it would involuntarily reassign him away from his current location and denied his request to remain in that location as a permanent “virtually assigned” auditor, which stated a claim.  Dick R. v. U.S. Postal Serv., EEOC Appeal No. 2019002341 (June 26, 2019).

Complainant Stated Viable Claim of Harassment.  While the Agency determined that the sole issue in the claim concerned a manager’s use of a racial slur on one occasion, the formal complaint and EEO Counselor’s report reflected a more detailed series of alleged incidents, including a discussion that “got out of hand,” and other comments made by the manager.  The Commission found that based on the alleged use of the racial slurs, Complainant stated a valid claim of harassment.  Julius P. v. Dep’t of the Air Force, EEOC Appeal No. 2019002618 (June 11, 2019).

Commission Found Sufficient Evidence that Agency Qualified as Joint Employer.  The Agency dismissed Complainant’s complaint of harassment for failure to state a claim, finding that Complainant was an employee of a staffing firm and not the Agency.  The Agency acknowledged that Complainant worked on Agency premises using Agency equipment and had served the Agency as a Licensed Practical Nurse since March 2014, which was a long duration.  The Agency also stated that its contract with the staffing firm required Complainant to have two years of prior experience, advanced life support certification, and fulfill continuing education obligations.  The Commission found that this pointed to joint control over Complainant’s employment.  The Agency conceded in its decision that it exercised control over Complainant’s work product by providing her with daily patient assignments and feedback based on her work product, and that it monitored her time and attendance.  The Commission stated that the Agency’s factual findings in its decision alone showed it had sufficient control over Complainant’s employment to be her joint employer for the purpose of the EEO complaint process. Terrie M. v. Dep’t of Def., EEOC Appeal No. 2018000063 (May 2, 2019); Additional Decisions Addressing the Issue of Joint Employment Include: Eugenia C. v. Dep’t of the Navy, EEOC Appeal No. 2019000953 (May 9, 2019) (the Commission affirmed the Agency’s dismissal of Complainant’s complaint for failure to state a claim because Complainant was not an employee of the Agency, but was employed by a staffing firm, and the Agency did not have sufficient control over Complainant’s position.  The staffing firm took care of Complainant’s compensation and Complainant’s onsite staffing firm supervisor and her staffing firm manager controlled when, where, and how she performed her job.  Further, most direction came from her staffing firm supervisors; the staffing firm supervisor approved Complainant’s work schedules and hours; and Agency employees did not have the authority to tell Complainant when to come in or leave work.  The Commission found that this evidence did not support a finding that the Agency had sufficient control over Complainant’s position to be her joint employer);  Broderick D. v. Dep’t of the Navy, EEOC Appeal No. 2019001343 (Mar. 21, 2019) (Complainant worked for a staffing firm serving the Agency as a Program Analyst (Maintenance), and alleged he was subjected to discrimination and harassment based on his disabilities and reprisal for prior EEO activity and terminated from his position.  The Commission found that the Agency exercised sufficient control over Complainant’s position to qualify as his common law employer for the purpose of the EEO complaint process.  Specifically, Complainant served the Agency for a long time, worked on Agency premises using Agency equipment, was assigned day-to-day work by Agency management, was instructed by his staffing firm to follow the direction of Agency management, was only permitted to use his staffing firm leave with the approval of Agency personnel, and stopped serving the Agency because it decided to shift his function to a newly established government civil service position.  Complainant was terminated by the staffing firm the day after the Agency cut off his service);  Keenan O. v. Fed. Deposit Ins. Corp., EEOC Appeal No. 0120181998 (Nov. 6, 2018), (Complainant, a contract employee, worked as a Staffing Specialist at an Agency facility and filed a formal complaint alleging that an Agency Human Resources Specialist subjected him to sexual and non-sexual harassment.  The Commission found that the Agency was a joint employer for purposes of Complainant’s EEO complaint.  Complainant had been working for the Agency for a significant period.  Further, prior to filling a position at the Agency, the staffing firm was required to submit a candidate’s resume for Agency review and approval, and the Agency had the right to interview the candidate.  The Commission found that the joint right of control in the hiring process pointed to joint employment.  In addition, the record showed that the Agency jointly controlled the means and manner of Complainant’s performance.  Specifically, Agency supervisors assigned and reviewed Complainant’s work, and Complainant used Agency equipment).

Agency Improperly Defined Claim of Harassment as Single Incident & Dismissed Complaint for Failure to State a Claim.   Complainant filed a formal complaint alleging ongoing harassment.  The Agency defined Complainant's claim as concerning the single incident provided as an example and dismissed the matter for failure to state a claim.  The Commission found that a fair reading of the complaint reflected that Complainant alleged a pattern of harassment and the complaint was not comprised exclusively of the one incident mentioned by the Agency.  Instead, the complaint addressed a variety of incidents preceding the cited incident.  Additionally, Complainant’s appeal detailed further harassing incidents since he filed his claim.  Complainant also noted that the named responsible management officials were also previously listed in his prior EEO complaint, and, thus, Complaint raised an allegation of reprisal.  Jermaine G. v. U.S. Postal Serv., EEOC Appeal No. 2019002255 (May 9, 2019); Additional Decisions Addressing Fragmentation of Viable Harassment Claims Include:  Christopher H. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002914 (Aug. 27, 2019) (a fair reading of the record showed that Complainant alleged his supervisor subjected him to discriminatory harassment concerning a series of events from December 2018 through March 2019, including speaking harshly to him in the presence of co-workers, going into fits of rage while speaking to Complainant about job related matters, chastising Complainant and his work product, and ignoring him.  By alleging a pattern of harassment, Complainant stated a cognizable claim under the EEOC regulations, and his complaint should not have been dismissed); Aide E. v. U.S. Postal Serv., EEOC Appeal No. 2019002920 (Aug. 8, 2019) (Complainant alleged a series of events spanning a four-month period which she alleged created a hostile work environment.  Instead of treating all incidents as evidence of harassment, the Agency improperly treated the matters in a piecemeal manner and considered some incidents individually.  When all of the incidents were viewed in the context of Complainant’s hostile environment allegation, they stated a viable claim of harassment);  Rosendo F. v. U.S. Postal Serv., EEOC Appeal No. 2019003096 (July 17, 2019) (the Commission found that the Agency improperly dismissed Complainant's complaint, and a fair reading of the record showed Complainant alleged his supervisor subjected him to discriminatory harassment from September 2018 through November 2018.  Specifically, Complainant contended that his supervisor failed to respond to his safety concerns, gave him instructions different from those given to other employees, failed to provide working equipment, subjected him to increased scrutiny by subjecting him to daily counts, and required Complainant to obtain authorization for bathroom breaks. By alleging a pattern of harassment, Complainant stated a cognizable claim under the EEOC regulations); Freddie K. v. U.S. Postal Serv., EEOC Appeal No. 2019003378 (July 11, 2019) (the Commission concluded that the Agency incorrectly characterized the claim as alleging discrimination only with regard to a Letter of Debt determination.  The formal complaint and EEO Counselor’s Report reflected a more detailed series of alleged incidents.  Specifically, Complainant stated that he was subjected to ongoing harassment, including being repeatedly undermined by his supervisor and treated differently than his coworkers.  On appeal, Complainant also contended that since the Manager’s arrival he has been the subject of teasing; jokes; bullying and intimidating behavior from him.  The Commission concluded that by alleging a pattern of harassment, Complainant had stated a cognizable claim under the EEOC regulations);  Rosie T. v. U.S. Postal Serv., EEOC Appeal No. 2019002265 (May 10, 2019) (Complainant alleged that she was subjected to ongoing harassment involving incidents beyond the one identified by the agency in its dismissal decision.  While the formal complaint form indicated that the alleged discriminatory event occurred in a specific month and year, the EEO Counselor’s Report indicated that Complainant raised two additional alleged incidents of harassment.  The Commission found that a fair reading of the complaint, in conjunction with the related EEO counseling report and Complainant’s statement on appeal, showed that she was raising a viable claim of ongoing discriminatory harassment sufficient to state a claim); Tyra T. v. U.S. Postal Serv., EEOC Appeal No. 2019002290 (May 3, 2019) (instead of treating Complainant’s complaint as one of harassment, the Agency improperly identified the formal complaint as being comprised of two distinct events and then dismissed both individually for failure to state a claim.  Complainant asserted that her complaint involved more than the two incidents described by the Agency involving her supervisor’s conduct and an incorrect worker’s compensation form.  She also alleged the Agency summarily denied her request for an ergonomic chair and frequently relegated her to the least desirable assignments such as working in the lobby.  The Commission found that, taken together, Complainant’s allegations stated a viable claim of harassment);  Cliff C. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001477 (Apr. 24, 2019) (Complainant filed a formal EEO complaint alleging discrimination when two management officials assigned him duties outside of his regular work area on various days over a period of several weeks and threatened to report him for disciplinary action because he was not in his work area.  The Commission reversed the decision on appeal, stating that while each incident by itself may have appeared to concern relatively minor matters, when considered together, given the breadth of the allegations over consecutive months involving the same two management officials, Complainant stated a viable claim of harassment that required further investigation);  Shara D. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001412 (Mar. 8, 2019); (review of the formal complaint and EEO counselor’s report reflected a more detailed series of alleged incidents than the one incident regarding office procedures identified by the Agency.  Specifically, Complainant stated that she was subjected to ongoing harassment.  In response to the EEO Case Manager’s email inquiring whether she received disciplinary action, Complainant also asserted that her supervisor retaliated against her by reassigning her duties to another employee.  The Commission found that by alleging a pattern of harassment, Complainant stated a cognizable claim under the EEOC regulations).

Complaint Stated Viable Claim of Harassment.  The Commission reversed the Agency’s dismissal of Complainant’s complaint for failure to state a claim.  Complainant alleged her coworker physically threatened women and minorities, and her manager stalked and physically intimidated her on the workroom floor.  In dismissing the complaint, the Agency stated the subject claims constituted a generalized grievance and were insufficiently vague to state an actionable harassment claim.  On appeal, further details revealed the manager engaged in retaliatory harassment by spying on Complainant and by assigning an additional supervisor to her work area to monitor her.  Complainant asserted that the Agency official physically intimidated her by using a cellphone to conduct video surveillance, and the official’s behavior changed after Complainant raised the claim of hostile work environment regarding the coworker’s harassment.    The Commission found that Complainant’s allegations stated a viable claim of harassment.  Eryn O. v. U.S. Postal Serv., Appeal No. 2019002286 (May 7, 2019).

Viable Reprisal Claim Stated.  Complainant alleged retaliation when her supervisor assigned her a heavier work load than others, she was issued a letter of direction, and she was forced to move her office twice in 30 days.  Upon review, the Commission found that the Agency’s reason for dismissing the complaint addressed the merits of the claims without a proper investigation as required by the regulations.  Specifically, the Agency’s analysis that Complainant did not engage in prior protected activity under the anti-discrimination statutes when she filed an Inspector General complaint went to the merits of Complainant’s complaint and was irrelevant to the procedural issue of whether she had stated a viable claim under the Commission’s regulations. Candi R. v. Dep’t of Def., EEOC Appeal No. 2019001053 (Mar. 8, 2019).

Complainant Stated Viable Claim of Disability Discrimination.  Complainant alleged the Agency failed to accommodate his medical conditions when it did not comply with a grievance settlement that provided him with eight hours of work per day.  The Agency dismissed the claim as a collateral attack on the grievance process.  The Commission disagreed, stating that the complaint alleged Complainant was denied reasonable accommodation, and that if he had been given reasonable accommodation he could have worked an eight-hour day.  The Commission held this stated a viable claim of disability discrimination, noting that the Agency had a duty to provide ongoing reasonable accommodation irrespective of the grievance process.  Erik K. v. U.S. Postal Serv., EEOC Appeal No. 2019000871 (Feb. 12, 2019)

Agency Improperly Addressed Merits of Claim in Dismissal.  The Commission reversed the Agency’s dismissal of Complainant’s complaint for failure to state a claim.  Complainant alleged he was discriminated against when he was not selected for the position of Student Trainee in Forestry.  The Agency dismissed the complaint because complainant by his own statements was not eligible for the position.  Specifically, Complainant was not a veteran; his course of study did not relate to forestry; he took no courses related to forestry or the natural sciences; and he did not claim Indian preference.  The Commission held that the Agency’s determination improperly went to the merits of the claim and was irrelevant to the procedural issue of whether Complainant stated a justiciable claim.  Henry S. v. Dep’t of the Interior, EEOC Appeal No. 2019001016 (Feb. 12, 2019).

Complainant Stated Valid Harassment Claim.  Complainant alleged that, during a service talk, the station manager made unkind remarks about Complainant’s limited duty medical condition, humiliated and ridiculed Complainant, and mimicked the way he walked while delivering mail. The record contained a signed statement from several employees who witnessed the event confirming Complainant’s description of the station manager’s conduct and that most of the employees in attendance “laughed loudly at him.”  On appeal, the Commission found that viewing the allegations together and assuming they occurred as alleged, Complainant stated a viable claim of discriminatory harassment.  The actions alleged involved a senior management official making fun of Complainant’s disability in front of a group of co-workers and mimicking the way he walked because of his disability.  Charles R. v. U.S. Postal Serv., EEOC Appeal No. 2019000352 (Nov. 29, 2018).

Complainant Stated Viable Claim of Harassment & Constructive Discharge.  Complainant sought EEO counseling alleging that the Postmaster attempted to terminate his employment, failed to provide him training, and “took further…actions” against him.  On the same day the Agency issued its decision dismissing the complaint, Complainant’s attorney submitted a request to amend which included various incidents involving the Postmaster, including an allegation that Complainant was constructively discharged.  The Commission found that the amended complaint was “like or related” to the original complaint because it added to or clarified the original complaint and could have reasonably been expected to grow out of the original complainant during the investigation.  Therefore, the alleged incidents in the initial formal complaint combined with the allegations in the amended complaint stated a viable claim of harassment.  Further, the Commission has previously stated that where an individual receives EEO counseling on a proposed action and the agency ultimately effectuates the proposed action, the otherwise premature allegation merges with the effectuated action.  Complainant initially sought EEO Counseling regarding the Postmaster’s alleged attempts to terminate him and raised an allegation of constructive discharge in his amended complaint.  Reggie D. v. U.S. Postal Serv., EEOC Appeal No. 2019000187 (Nov. 29, 2018).

Allegation Concerning Letter that Was Not Part of Personnel File Failed to State a Claim.  The Commission affirmed the AJ’s dismissal of Complainant’s complaint alleging that he was discriminated against when he was issued a Letter of Guidance and Direction.  The Letter was never included in Complainant’s official personnel file, and was of a general nature.  It did not state that it could be used in a subsequent disciplinary action.  Therefore, the Letter was not disciplinary in nature, and Complaint did not state a claim.  Sang L. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120181792 (Aug. 13, 2019).

Complainant’s Generalized Grievance Failed to State a Claim.  Complainant alleged that workers on other tours received overtime, while he and those on his tour did not.  The Commission agreed with the AJ’s determination that Complainant could not pursue a generalized grievance, unless he further alleged some injury to himself and the other purported class members as a result of an alleged discriminatory practice.  The Commission noted that “working on a particular tour” is not a class protected by the anti-discrimination statutes.  Further Complainant did not raise a claim of disparate impact – that the seemingly neutral practice was having a disparate impact on older African American males.  Accordingly, the Commission affirmed the AJ’s decision dismissing Complainant's class and individual complaint. Cleveland C. v. U.S. Postal Serv., EEOC Appeal No. 2019003536 (Aug. 23, 2019).

Complainant Failed to State Claim of Retaliation.  Complainant alleged that her supervisor (S1) retaliated against her for engaging in EEO activity.  Complainant cited two verbal exchanges she had with S1, one in which he told her to “get off her stool” at a meeting, and another when S1 instructed her to bring back mail she could not deliver by the end of her eight-hour work shift.  The Commission affirmed the Agency’s dismissal of the complaint for failure to state a claim, stating that Complainant failed to provide evidence showing a causal connection between S1’s comments and her EEO activity.  The Commission described the verbal exchanges as remarks and comments which occurred infrequently or over a long period of time.  Claims of a few isolated incidents were insufficient to state a harassment claim.   Shanta S. v. U.S. Postal Serv., EEOC Appeal No. 2019002511 (June 18, 2019).

Complaint Properly Dismissed as Collateral Attack on Another Proceeding.  The Agency dismissed Complainant’s complaint alleging discrimination when she received a Letter of Demand of Indebtedness for failure to state a claim.  The Commission affirmed the dismissal on appeal, agreeing with the Agency that the claim constituted an impermissible collateral attack on the Debt Collection Act.  The Commission does not have jurisdiction to decide matters covered by the Debt Collection Act, and the proper forum for Complainant to have raised her challenge was under that process.  Shenika B. v. U.S. Postal Serv., EEOC Appeal No. 2019002994 (May 24, 2019); Additional Decisions Addressing Collateral Attacks Include:  Al W. v. Dep’t of the Treasury, EEOC Appeal No. 2019003974 (Aug. 20, 2019) (the proper forum for Complainant to have raised challenges to actions that occurred during the OWCP process was within that process itself, and it was inappropriate to use the EEO process to collaterally attack those actions).

Complaint Involving Investigation by an Agency Inspector General Properly Dismissed.  The Agency dismissed the complaint, essentially arguing that investigations by an Inspector General cannot be the subject of an EEO complaint. While the Commission has, under certain circumstances, reversed the dismissal of an EEO complaint involving an Inspector General investigation, the Commission has also previously held that, in most circumstances, merely conducting an internal investigation into purported misconduct does not, without more, cause injury sufficient to render the subject of the investigation aggrieved.  In this case, Complainant has not alleged facts sufficient to state a viable claim of discrimination.  Cathy V. v. Dep’t of the Treasury, EEOC Appeal No. 2019001226 (Mar. 12, 2019).

Summary Judgment

Summary Judgment Affirmed.  The Commission affirmed the AJ’s decision without a hearing finding that Complainant was not subjected to discrimination when he was not selected for a Foreign Affairs Specialist position.  The Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant.  Specifically, while Complainant’s resume was qualifying, the Selectee had experience that was critical to the position, including managing an international dependent program and serving as an International Military Student Officer, which Complainant lacked. Complainant’s work history did not reflect any of the critical experiences or credentials.  Rudolf D. v. Dep’t of the Air Force, EEOC Appeal No. 0120181685 (Aug. 14, 2019).

Summary Judgment Affirmed. Complainant alleged the Agency discriminated against her based on race, sex, color, age and in reprisal for prior protected EEO activity when she was charged with eight hours of Absent Without Leave (AWOL)/ Leave Without Pay (LWOP), and involuntarily reassigned to a different area.  The AJ issued a decision by summary judgment in favor of the Agency, and the Commission affirmed the AJ’s decision on appeal.  The Agency placed Complainant on AWOL/LWOP because she failed to appear and testify at a coworker’s EEO hearing.  Complainant also failed to show up for work that day, so the Agency mailed a Leave Without Pay letter to Complainant the following day.  Complainant failed to produce or point to any particular evidence disputing such fact. In regard to the second claim, the record showed Complainant was not involuntarily reassigned.  Instead, the Area Manager reported that Complainant had expressed that “she did not feel she could be successful” at her current site and wanted to be moved to a different environment to improve her interpersonal and communications skills.  The Manager also stated Complainant signed a letter in December 2014, agreeing to move for “the purposes of developing [her] interpersonal skills.”  The record supported the AJ’s finding of no discrimination.  Tanuya P. v. U.S. Postal Serv., EEOC Appeal No. 2019000412 (June 4, 2019).

Summary Judgment Affirmed.  The AJ issued a decision without a hearing finding that Complainant failed to prove her claim of race and sex discrimination with regard to a Letter of Warning that she received for improper conduct.  The Commission affirmed the AJ’s decision on appeal.  The Commission concluded that, even construing any inferences raised by the undisputed facts in Complainant’s favor, a reasonable fact finder could not find for Complainant.  Assuming Complainant established a prima facie case, the Agency established a legitimate, nondiscriminatory reason for the Letter of Warning.  Specifically, Complainant failed to follow safety procedures when she delayed contacting her supervisor to report an accident.  The supervisor also questioned whether Complainant conducted herself in a safe manner while delivering mail.  Complainant failed to establish that the Agency’s stated reason was a pretext for discrimination.  The Agency provided evidence that other injured employees similarly received discipline for violating safety rules.  Susan A. v. U.S. Postal Serv., EEOC Appeal No. 2019000891 (Apr. 10, 2019).

Summary Judgment Reversed.  Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment when from February 17, 2011 to March 25, 2011, he was required to work beyond his restrictions; he was required to submit excessive medical documentation; management mocked and mimicked him; management disclosed Complainant’s medical information; and management failed to secure Complainant's medical information.  After an investigation, the AJ issued a summary judgment decision finding no discrimination.  On appeal, the Commission found that the evidence in the record raised a genuine dispute of material fact on the question of whether the Agency denied Complainant a reasonable accommodation in violation of the Rehabilitation Act.  For example, while the AJ did not address the Agency’s failure to accommodate Complainant’s “no climbing” restriction, the AJ, without explanation noted in her decision that Complainant was required to work beyond his restrictions.  The record also showed a material dispute regarding whether Complainant’s supervisors knowingly denied Complainant the reasonable accommodation of a route assignment without stairs.  Further, Complainant’s documentation clearly raised questions as to whether management officials knowingly and intentionally took steps to thwart Complainant’s ability to perform his job by removing his accommodations.  Viewing the evidence in the light most favorable to Complainant, the Commission found that there was a genuine issue of material fact on the question of whether or not the Agency intentionally denied Complainant the accommodation of an assigned route without stairs. In addition, even if the AJ did not find sufficient evidence to support Complainant’s assertion that his medical file was left on a supervisor’s desk, the fact that the supervisor indicated that he kept Complainant’s medical records in a “safety file,” rather than a confidential medical file, raised sufficient questions as to whether the medical records were in fact properly secured. The Commission noted that management was not asked to describe the contents of the “safety file.”  Accordingly, it was unclear whether such file failed to safekeep Complainant’s confidential medical records in accordance with the Rehabilitation Act or whether management simply poorly described a properly maintained medical file.  The Commission remanded the entire matter for a hearing. Derrick P. v. U.S. Postal Serv., EEOC Appeal No. 0120180399 (Sept. 27, 2019).

Summary Judgment Reversed.  The Commission reversed the AJ’s decision on summary judgment finding no sexual harassment and reprisal discrimination.  The AJ found it “questionable” whether the two cited incidents, a supervisor’s comment that Complainant did not give him a hug and an unwanted touching by a coworker, would be sufficiently severe to constitute harassment.  While a single incident or isolated incidents of offensive conduct or remarks generally do not create an abusive environment, the Commission will presume unwelcome, intentional touching of a complainant’s intimate body area is sufficiently offensive to alter the condition of her working environment and constitute a violation of Title VII.  The Commission further found that while the Agency investigated the incident, Complainant alleged she informed her second level supervisor about the incident more than five months prior to the investigation and there was no indication that the second level supervisor conducted an investigation at that time.  While there was some evidence that Complainant did not want the allegation pursued, Commission guidance provides that inaction by a supervisor in such circumstances could lead to employer liability.  Finally, while the AJ found that Complainant did not engage in prior EEO activity, Complainant reported the sexual harassment prior to many of the incidents cited in her complaint.  Therefore, the Commission remanded the allegations of harassment based on sex and reprisal for an administrative hearing.  Cecille W. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120181765 (Aug. 22, 2019).

Summary Judgment Reversed.  Complainant, a City Carrier, filed an EEO complaint alleging that the Agency subjected him to harassment on the bases of national origin, disability, and reprisal with respect to several claims, including the issuances of a Letter of Warning and a denial of a transfer.  The AJ issued a summary decision finding no discrimination. The AJ concluded that in viewing the evidence in the light most favorable to Complainant, he did not offer any evidence to show that the Agency’s articulated reasons for its actions were pretext for discrimination.  On appeal, the Commission found that a decision without a hearing was not appropriate in this case because there was a need to make credibility determinations; there were material facts in genuine dispute; and the record was not fully developed.  Specifically, the Commission found that a hearing was necessary to determine the credibility of the managers.  Two managers (S1 and S2) provided statements that were inconsistent with other evidence in the record.  For example, S1 stated that he was “unaware” if Complainant suffered from a medical condition or impairment, but also stated that he had received medical documentation about Complainant’s knee injury.  S1 also responded “no” when asked if Complainant’s medical condition affected his ability to perform his work assignment, but then stated that Complainant had a “9-hour medical restriction.” Additionally, S2 responded “unknown” when asked if Complainant was issued the Letter of Warning, despite her signature on the letter attesting to be a witness that Complainant refused to sign the letter.  The Commission further found that the record was not fully developed regarding S1 and S2’s knowledge of Complainant’s EEO activity.  Finally, despite the Agency’s assertion that the official involved in the transfer decision was not aware of Complainant’s protected classes, the record did not contain an affidavit from that official.  In remanding the matter for a hearing, the Commission emphasized that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses.  Gino T. v. U.S. Postal Serv., EEOC Appeal No. 0120182066 (July 9, 2019).

Summary Judgment Reversed.  Complainant filed a formal EEO complaint alleging that he was subjected to sexual and non-sexual harassment and discriminated against when his supervisor failed to inform him of training requirements, issued him a lower performance rating, and did not appoint him to serve as the Unit Manager.  On appeal, the Commission found that the AJ erred when she concluded there was no genuine issue of material fact.  Specifically, the AJ relied upon the unsworn affidavit of Complainant’s supervisor who was the alleged harasser, and inappropriately credited the supervisor’s affidavit rather than Complainant’s assertions.  The Commission disagreed with the AJ’s finding that there was no evidence of harassment.  The record contained corroborating affidavits from Complainant’s co-worker supporting Complainant’s claim that he was harassed because he did not fit the supervisor’s image of a “masculine” male.  The Commission also found sufficient evidence to raise a genuine dispute of material fact as to whether Complainant was treated differently after he complained about the supervisor’s conduct.  The Commission acknowledged that the record also contained statements from other coworkers who claimed they did not witness any harassment.  Thus, the Commission concluded that the parties should be afforded an opportunity to cross-examine the available witnesses, and the matter was remanded for an administrative hearing.  Horacio M. v. Dep’t of Justice, EEOC Appeal No. 0120170934 (Apr. 9, 2019).

Timeliness

Complainant Timely Initiated EEO Contact Upon Learning of the Limitation Period. Complainant alleged that the Agency subjected her to discrimination based on race and in reprisal for prior EEO activity when she was harassed during the New Intelligence Analyst Training (NIAT), and constructively discharged from NIAT on October 15, 2018.  The Agency dismissed the formal complaint for untimely EEO Counselor contact on grounds that Complainant’s initial EEO Counselor contact on December 6, 2018, was beyond the 45-day limitation. On appeal, Complainant stated that she had no actual or constructive knowledge of the limitation period for contacting an EEO Counselor until she spoke with a former federal employee in December 2018.  The Agency provided no documentation reflecting Complainant’s actual or constructive knowledge of the 45-day limitation period.  Therefore, the Commission found that the Agency improperly dismissed the formal complaint for untimely EEO Counselor contact.  Pamula W. v. Dep’t of Justice, EEOC Appeal No. 2019004234 (Sept. 6, 2019).

Compensation Claim Improperly Dismissed for Untimely Counselor Contact.  Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination when he was assigned GS-11/12 duties from 2012 through 2016, but was denied position re-classification and compensation commensurate with his assigned duties.  The Agency asserted that Complainant was notified that he was not eligible for a position re-classification in February 2016, but did not contact an EEO Counselor until August 2016, which was beyond the applicable limitations period.  Upon review, the Commission found that the crux of Complainant’s formal complaint was that he was being subjected to unlawful compensation discrimination and, therefore, the dismissal on the grounds of untimely EEO Counselor contact was improper.  The Commission noted that the Lilly Ledbetter Fair Pay Act provides that an unlawful employment practice occurs, with respect to discrimination in compensation, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid.  The Commission found that Complainant timely contacted an EEO Counselor within 45 days of receiving a paycheck.  Adrian W. v. Dep’t of the Navy, EEOC Appeal No. 0120181588 (July 12, 2019); Additional Decisions Addressing EEO Contact in Complaints of Pay Discrimination Include: Arturo B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019003555 (Aug. 15, 2019) (Complainant alleged ongoing discrimination when he was promised a specific salary but was then told he would have to accept a decrease in pay.  The Lilly Ledbetter Fair Pay Act provides that an unlawful employment practice occurs with respect to discrimination in compensation each time wages, benefits, or other compensation is paid.  Therefore, Complainant timely raised his claim of pay discrimination within 45 days of receiving a paycheck).

Agency Failed to Support Dismissal for Untimely EEO Contact.  The Agency characterized the complaint as alleging that Complainant was denied a promotion three times over a four-year period from 2011 to 2014.  The Agency dismissed the complaint on grounds that Complainant’s contact with the EEO Counselor in 2018 was not timely.  On appeal, the Commission found it impossible to determine, based on the record, where the four-year period came from as reported by the Agency’s EEO counselor.  This period was not referenced in Complainant’s formal complaint.  Instead, the Complainant stated that she was not promoted “on several occasions.”  The record did not contain the EEO intake form completed by Complainant which was mentioned in the EEO Counselor’s report.  Additionally, while the Agency referenced documents purportedly showing that Complainant received EEO training and stated that Complainant’s workplace displayed EEO posters detailing the complaint process and its deadlines, the record contained no evidence supporting the Agency’s assertions.  Therefore, the Agency failed to support its decision.  Ashlee P. v. Dep’t of Def., EEOC Appeal No. 2019000800 (July 2, 2019).

Complainant Timely Raised Claim of Harassment.  Complainant alleged that her supervisor sexually harassed her, including forcibly kissing her and grabbing and squeezing her face.  The Agency dismissed the complaint for failure to timely contact an EEO Counselor based solely on one incident.  On appeal, the Commission noted that, in her informal and formal complaints, Complainant detailed numerous incidents of alleged harassment beginning in 2014, several of which occurred within the 45-day limitation period.  Therefore, the Agency improperly dismissed Complainant’s claim of ongoing sexual harassment, as well as her claim that upper-level management did not properly respond after she reported the incidents.  The Commission strongly recommended, given the serious nature of Complainant’s allegations and her claim that management failed to remove her from the supervisor’s supervision, that the Agency remove Complainant from the supervisor’s supervision during the processing of the complaint.  Bettyann B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002089 (Apr. 24, 2019).

Complainant Timely Contacted EEO Counselor.  The Commission reversed the Agency’s dismissal of Complainant’s complaint alleging that she was discriminated against when she was placed in off-duty status on March 30, 2017.  While the Agency asserted that Complainant’s contact with the EEO Counselor in May 2017 was beyond the 45-day limitation period, the Commission stated that Complainant was alleging that she remained in off-duty status at the time she initiated EEO counseling and had not been paid during the period in question.  Thus, Complainant’s claim was ongoing within the 45 days preceding her initial EEO contact.  Kellye C. v. U.S. Postal Serv., EEOC Appeal No. 2019001833 (Apr. 23, 2019).

Complainant Timely Raised Denial of Reasonable Accommodation Claim.  Complainant filed a formal EEO complaint alleging that the Agency denied him reasonable accommodation and discriminated against him when it terminated him from employment.  The Agency accepted Complainant’s claim regarding his termination and ultimately found no discrimination, but dismissed the reasonable accommodation claim for failure to timely contact an EEO Counselor.  Complainant alleged the Agency failed to accommodate him through the day of his removal.  The Commission stated that, since the Agency’s duty to accommodate is ongoing, Complainant timely initiated contact with the EEO Counselor regarding his reasonable accommodation requests.  The Commission rejected the Agency’s assertion that the record was sufficiently developed as to the reasonable accommodation claim, noting that the EEO Investigator only asked cursory questions about that matter.  Therefore, because Complainant alleged that the denial of accommodation led to his removal, the Commission declined to address the removal and remanded the entire claim for further processing.  Buck S. v. U.S. Postal Serv., EEOC Appeal No. 0120180137 (Apr. 3, 2019).

Complainant Timely Contacted EEO Counselor Within 45 Days of Effective Date of Removal.  Complainant received a Notice of Proposed Removal in February 2018, and a Decision on Notice of Proposed Removal confirming her removal effective June 23, 2018.  Complainant contacted an EEO counselor on July 16, 2018, regarding the removal and subsequently filed a formal complaint of discrimination.  The Agency dismissed the complaint for failure to timely contact an EEO Counselor within 45 days of receiving the February Notice.  On appeal, the Commission stated that Complainant had 45 days from the effective date of her termination to timely contact an EEO Counselor.  Therefore, Complainant’s contact was well within the limitation period, and the Agency’s dismissal was improper.  Leisa C. v. Dep’t. of Agric., EEOC Appeal No. 2019001265 (Apr. 3, 2019), Additional Decisions Addressing EEO Contact Following Effective Date of Action Include:  Elenor S. v. U.S. Postal Serv., EEOC Appeal No.0120181924 (Sep. 4, 2019) (the time period for contacting an EEO Counselor did not begin to run until the effective date of Complainant’s removal 31 days after the issuance of the Notice of Removal.  Therefore, her contact within 17 days of the effective date of the removal was timely).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact.  Complainant filed a formal EEO complaint alleging that her travel voucher was not fully reimbursed.  The Agency dismissed the complaint for untimely EEO counselor contact because it argued Complainant had been attempting to resolve the matter for several months and was, therefore, aware of the shortfall prior to receiving payment.  The Commission found the payment itself was a discrete act which occurred on February 20, 2018.  Therefore, her contact with the EEO Counselor on March 30, 2018, was timely.  The Commission noted that the Agency’s assertions that it articulated legitimate reasons for the payment went to the merits of the complaint and were premature.  Afton C. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019001381 (Mar. 13, 2019).

Complainant Timely Raised EPA Claim.  Complainant initially contacted an EEO Counselor alleging sex and age discrimination regarding her pay and allowances, assigned duties, training, promotion/non-selection, and position description.  Complainant subsequently filed a formal complaint alleging sex and age discrimination when a younger male coworker was paid at a higher rate for “the exact same job duties and performance standards.”  When contacted regarding the timeliness of her complaint, Complainant withdrew her claims pertaining to duty assignments and promotion/non-selection, but indicated that the pay grade, training, and position description claims were part of the same Equal Pay Act violation.  The Commission affirmed the Agency’s dismissal of the claims regarding the position description and training request.   The Commission found, however, that Complainant’s claim of pay discrimination, was timely raised.  Pursuant to the Lilly Ledbetter Fair Pay Act, Complainant was still receiving allegedly discriminatory paychecks up to and including the 45-day period prior to EEO Counselor contact.  Mui P. v. Dep’t of Veterans Affairs, EEOC Request No. 0520180494 (Dec. 20, 2018).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact.  Complainant contacted an EEO Counselor, and ultimately filed a formal complaint after she was denied a higher-level assignment on two occasions.  The Agency dismissed the complaint for failure to timely contact an EEO Counselor, arguing that she did not initiate contact until three months after the most recent denial.  The Commission found that Complainant was not alleging that a single personnel action was discriminatory. Rather, Complainant was alleging ongoing discrimination which continued up until the time she initiated EEO counselor contact. Therefore, Complainant timely raised an allegation of discrimination. Joleen M. v. U.S. Postal Serv., EEOC Appeal No. 2019000498 (Dec. 12, 2018).

Complainant Failed to Support Claim Regarding Reasonable Suspicion of Discrimination.  According to the record, the 45-day limitation period for contacting an EEO Counselor was triggered on November 23, 2014, when Complainant’s administrative leave ran out and he was required to use sick or annual leave.  Therefore, the Agency dismissed the complaint on grounds that Complainant’s contact with the EEO Counselor on February 14, 2015, was untimely.  While Complainant asserted that he did not suspect the discrimination until January 31, 2015, Complainant did not link his awareness to any of the comparators he cited or offer any explanation of what occurred on that date.  The Commission noted that the 45-day limitation period cannot be circumvented simply by offering a later date for when reasonable suspicion arose, and a complainant must offer enough information to determine whether a reasonable person would have suspected discrimination prior to that time.  Therefore, the Agency’s dismissal was proper.  Porter H. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120181059 (Aug. 13, 2019).

Complaint Properly Dismissed for Untimely EEO Counselor Contact.  Complainant contacted an EEO Counselor in March 2018 and subsequently filed a formal complaint alleging the Agency discriminated against him when it did not select him for a supervisory position.  According to the record, Complainant learned of his nonselection in October 2017.  The Agency dismissed the complaint for failure to timely contact an EEO Counselor and the Commission affirmed the dismissal on appeal.  The Commission noted that Complainant reasonably suspected he was the victim of unlawful discrimination long before he sought counseling, and the suspicion motivated him to file a Freedom of Information Act (FOIA) request in October 2017.  Complainant did not assert that he was unaware of the EEO complaint process, or that he was unaware of the necessity for contacting an EEO Counselor within 45-days of the alleged discriminatory event. Instead, Complainant argued that he could not have reasonably developed suspicions until his FOIA request was fulfilled.  The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered.  Thus, the time limitation is not triggered until Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Moreover, the Commission has consistently held that use of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor.  Mitchell K. v. Dep’t of the Navy, EEOC Appeal No. 2019002360 (Apr. 30, 2019).

Complaint Properly Dismissed for Untimely EEO Counselor Contact.  Complainant filed a complaint raising a number of incidents of alleged disability discrimination.  The Agency dismissed the complaint for failure to timely contact an EEO Counselor, and the Commission affirmed the dismissal on appeal.  While Complainant indicated that she missed the deadline due to heightened anxiety, she did not provide medical documentation showing that she was so incapacitated that she could not contact the EEO Counselor.  Further, Complainant stated in prior proceedings that she had undergone “extensive efforts,” to contact her union representative upon her termination.  Therefore, Complainant failed to provide sufficient justification for extending or tolling the filing period.  Alline B. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019000512 (Feb. 8, 2019).

Complaint Properly Dismissed for Untimely EEO Counselor Contact.  The Agency dismissed the formal complaint alleging discriminatory harassment for untimely EEO Counselor contact.  The Agency determined that, based on the most recent discriminatory event on November 29, 2017, Complainant’s contact with the EEO Counselor on January 26, 2018, was beyond the 45-day limitation period.  The Commission affirmed the dismissal on appeal.  While Complainant argued that the time limit should be tolled for the time he was on leave under the Family Medical Leave Act, the Commission disagreed.  The Commission has consistently held that, in cases involving physical or mental health difficulties, an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits.  Complainant described the need to avoid stress and medications that made him drowsy during a portion of the 45-day period.  He did not, however, show that he was rendered incapacitated.  Wyatt W. v. Dep’t of Justice, EEOC Appeal No. 0120182706 (Nov. 30, 2018).

Complainant Provided Sufficient Justification to Excuse Brief Delay in Filing Complaint.   The Commission reversed the Agency’s dismissal of Complainant’s complaint as untimely.  Complainant received notice of her right to file a complaint on November 9, 2018, but did not file her complaint until December 13, 2018, which was beyond the 15-day limitation period.  On appeal, Complainant provided medical documentation from her treating physician indicating that Complainant had been diagnosed with chronic depression, and that this condition interfered with “normal daily functions,” such as calling in to work and tardiness.  The physician specifically indicated that Complainant’s condition should excuse her failure to submit EEO paper work on time.  The Commission has held that, in cases involving physical or mental health difficulties, an extension is warranted where the individual is so incapacitated by her condition that she is unable to meet the regulatory requirements.  Therefore, the Commission found that Complainant provided sufficient justification to excuse the brief delay in filing her complaint.  Karan F. v. U.S. Postal Serv., EEOC Appeal No. 2019002420 (May 7, 2019); but see, Mathilda S. v. Soc. Sec. Admin., EEOC Appeal No. 2019003005 (May 24, 2019) (finding that while Complainant asserted that she was depressed and stressed by the complaint process, the Commission has consistently held that an extension of time is warranted only where an individual is so incapacitated by their medical condition that she is unable to meet the regulatory time limits, and Complainant failed to provide persuasive evidence that she was so physically and/or mentally incapacitated that she was unable to meet the deadline for filing her complaint).

Formal Complaint Timely Filed.  According to the record, Complainant received a Notice of Right to File on July 17, 2018.  Complainant, however, was confused as she had never spoken to an EEO Counselor prior to receiving the Notice.  The confusion was further compounded by the fact that the Notice was not addressed to Complainant.  Complainant tried to contact the Agency’s EEO office and the EEO Counselor.  Despite her efforts to contact the EEO officials, the Agency never responded to Complainant’s inquiries.  As the Agency failed to respond, Complainant sought out additional assistance from the Commission within the 15-day time limit.  The Agency determined that Complainant’s filing date was October 4, 2018, when it received the complaint from the Commission.  The Commission has previously held that an agency may not dismiss a complaint based on a complainant’s untimeliness, if that untimeliness is caused by the Agency’s action in misleading or misinforming the complainant.  The Commission found that Complainant provided sufficient justification for the waiver of the time limit because the Agency’s actions caused her confusion, and the Agency failed to respond to Complainant’s inquiries.  As such, the Commission concluded that the Agency’s dismissal for untimeliness was not appropriate.  Lashawna L. v. U.S. Postal Serv., EEOC Appeal No. 0120182747 & 2019001341 (Mar. 5, 2019).

Complaint Properly Dismissed as Untimely.  Complainant alleged race discrimination when he was not selected for a supervisor position in July 2018 and September 2018.  The Agency dismissed the complaint as untimely, and provided postal service tracking information showing that Complainant’s wife received and signed for the notice of right to file a complaint at the Complainant’s address on October 29, 2018.  Complainant waited until November 15, 2018, two days after the fifteen-day limitation period, to file his complaint.  The Commission affirmed the Agency’s dismissal.  Although Complainant argued that his wife did not inform him of the notice until November 1, the Commission has consistently held that a complainant constructively receives the notice on the date a spouse signs for it.  Jerold Y. v. U.S. Portal Serv., EEOC Appeal No. 2019002463 (June 18, 2019).

Formal Complaint Untimely Where Filed at the Wrong Address.  Complainant received a Notice of Right to File a Formal Complaint on March 6, 2018.  Both the Notice and an earlier final interview letter informed Complainant of the applicable deadline and the proper address to file her formal complaint with the Agency.  Complainant, however, sent the formal complaint to the Commission rather than the address specified in the Notice.  The Commission has previously held that when provided with the proper address, filing at the wrong address does not constitute a proper filing.  The Agency did not receive Complainant’s formal complaint until March 2018.  Therefore, the Commission found that Complainant’s complaint was untimely filed.  Keri C. v. U.S. Postal Serv., EEOC Appeal No. 2019002318 (Apr. 26, 2019); Additional Decisions Addressing Complaints Filed at the Wrong Address Include: Luke R. v. U.S. Postal Serv., EEOC Appeal No. 2019001914 (May 2, 2019) (the record established that the Agency provided Complainant with the proper Agency address and limitation period for filing his complaint.  Complainant, however, filed his formal complaint with the Commission rather than with the Agency.  The Commission affirmed the Agency’s dismissal of the complaint on grounds it was untimely filed, stating that when provided with the proper address, filing at the wrong address does not constitute a proper filing).