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The DIGEST of Equal Employment Opportunity Law

Fiscal Year 2021, Volume 3                

Office of Federal Operations

August 2021

 

Inside

 

Selected EEOC Decisions Regarding:

Compensatory Damages                               

Complaint Processing 

Dismissals

Findings on the Merits

Under the EPA

Under the Rehabilitation Act

Under Title VII

Under Multiple Bases

Retaliation

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness

______________________________

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

Carlton M. Hadden, Director, OFO
Virginia Andreu, Assistant Director, OFO’s Special Operations Division

Digest Staff
Editor: Robyn Dupont

Writers: Craig Barkley, Abigail Coleman, Robyn Dupont, Joseph Popiden, Navarro Pulley,
Nina C. Rivera, Camella Woodham

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

 

The Commission redacts complainant’s 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 its enforcement work and the investigations of complaints.

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

 

SELECTED EEOC DECISIONS

Compensatory Damages

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

Commission Increased Award of Nonpecuniary Damages to $25,000.  In a final decision on liability, the Agency held, inter alia, that Complainant was discriminated against when he was denied a reasonable accommodation for his disability.  With respect to nonpecuniary, compensatory damages, Complainant provided evidence in the form of his own statements, as well as some medical documentation to support his request for $85,000 in “pain and suffering” and “emotional and psychological distress.”  Complainant also provided the names of witnesses who had knowledge of the impact of the discrimination, but did not provide statements from these witnesses, as requested by the Agency.  In a final decision on relief, the Agency awarded Complainant $8,000.  On appeal, the Commission increased the award to $25,000, noting that, as a result of the Agency’s discriminatory actions, Complainant experienced chest pain, severe stress, nightmares, insomnia, stomach pain, panic attacks, weight gain, mental anguish, and emotional turmoil that affected his relationships with friends and family.  Complainant also stated the discrimination exacerbated his preexisting conditions, which included migraine headaches, depression, post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), gastroesophageal reflux disease (GERD), and chronic pain.  Complainant asserted that, notwithstanding a promotion to a different office with a different supervisor subsequent to the discrimination, his injuries remained ongoing and persistent.  Complainant noted that he had to increase his medications and visit the emergency room multiple times for chest pain and heart attack-like symptoms that were ultimately found to be caused by stress.  In increasing the award, the Commission held that $25,000 in nonpecuniary damages was more appropriate and consistent with amounts awarded in similar cases.  The Commission found no reason to disturb the Agency’s award with respect to other forms of relief; however, it did order the Agency to post a notice, as well as consider disciplining the responsible management official.  Alejandro T. v. Envtl. Prot. Agency, EEOC Appeal No. 2019004457 (Nov. 23, 2020).

Commission Increased Award of Nonpecuniary Compensatory Damages to $20,000.  The Agency adopted an Administrative Judge’s (AJ) finding that it discriminated against Complainant when it did not select her for a position, as well as the AJ’s award of $5,000 in nonpecuniary compensatory damages.  Complainant appealed the award of damages, and the Commission increased the award to $20,000.  Complainant stated that the non-selection exacerbated her Post Traumatic Stress Disorder (PTSD).  She also experienced trouble sleeping, feelings of humiliation, severe anxiety, fatigue, anger, social withdrawal, and digestive problems, among other things.  Complainant stated that she takes medication for anxiety and depression, and attends physical therapy and a peer program two to four times per week.  Complainant’s Nurse Practitioner stated that an inability to manage stressors such as non-selection could exacerbate PTSD, but she did not recall Complainant talking to her about her specific non-selection.  The Commission noted that Complainant cannot be awarded damages for her prior pain and suffering or distress related to alleged harassment and retirement.  Nevertheless, Complainant established that the discriminatory non-selection exacerbated her pre-existing PTSD, resulting in increased stress and depression, paranoia, and the end of her marriage.  Given the nature and duration of Complainant’s harm, the Commission concluded that $20,000 was more appropriate in this case.  Letitia C. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020000230 (Jan. 11, 2021).

Commission Increased Award of Damages to $13,000.  The Commission previously found that the Agency retaliated against Complainant for prior EEO activity when it failed to select him for a position, and ordered the Agency, among other things, to investigate Complainant’s claim for compensatory damages.  The Agency conducted a supplemental investigation and awarded Complainant $11,000 in nonpecuniary damages.  The Commission increased the award to $13,000 on appeal.  Complainant stated that he suffered from insomnia, anxiety, and periods of severe depression, and a worsening of his pre-existing Post Traumatic Stress Disorder (PTSD).  He further claimed that his mental and emotional state deteriorated to the point where he struggled to set up appointments with his treating psychologist.  Complainant’s family members, friends, and a coworker submitted statements in support of his claim.  The Commission found that the record was sufficient to establish that Complainant suffered from humiliation, embarrassment, and harm to his professional reputation for approximately one year.  Further, while Complainant did not present evidence of having experienced physical symptoms such as headaches and stomach aches, the depression from which he suffered as a result of being passed over for a promotion for which he was eminently qualified was no less debilitating than those conditions.  Norberto G. v. Dep’t of Def., EEOC Appeal No. 2020000231 (Jan. 8, 2021).

Commission Increased Award of Nonpecuniary Damages to $4,500.  In a final decision on liability, the Agency held that Complainant was discriminated against when he was denied a reasonable accommodation for his disability from June 22, 2017, through September 1, 2017.  Subsequent to the Agency’s finding of liability, Complainant requested $300,000 in nonpecuniary, compensatory damages (and equitable relief), stating that he was “devastated thinking that he could not support his family and pay his mortgage,” and considered suicide.  The Agency awarded Complainant $2,500, noting that Complainant did not present any medical documentation or statements from coworkers or family members.  The Agency further noted that Complainant’s statements were the only evidence of his devastation, depression, sleepless nights, concern about paying his bills, and thoughts of suicide.  Also, the Agency noted that the duration of Complainant’s harm was approximately six weeks, during which his leave requests were approved, and he was not in jeopardy of being required to use unpaid leave.  On appeal, the Commission increased the award to $4,500, finding that it was more appropriate based on prior Commission decisions and considering the nature, severity, and duration of Complainant’s harm.  The Commission noted that an award of nonpecuniary, compensatory damages may consider the present-day value of comparable awards, and accordingly, found that $4,500 was an appropriate award for Complainant’s harm for almost two months.  The Commission affirmed the Agency’s final decision on equitable relief, as this was undisputed by Complainant.  Ariel L. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2020000530 (Nov. 23, 2020).

Commission Increased Award of Compensatory Damages to $1,500.  The Commission previously found that the Agency retaliated against Complainant when management officials charged him eight hours of Absent Without Leave (AWOL), and ordered the Agency, among other things, to investigate Complainant’s claim for damages.  The Agency awarded Complainant $800 in nonpecuniary damages, and the Commission increased the award to $1,500 on appeal.  Complainant asserted that he experienced a loss of joy for snowboarding, and increased weight gain during the period at issue.  Complainant noted that he was diagnosed with anxiety and depression.  Complainant further explained that he still struggles with anxiety and weight gain, and he just started to regain his self-confidence after he received a favorable decision from the Commission.  The record included medical documents indicating that Complainant had three physician visits following the discrimination and was taking anti-anxiety medication.  Although the medical documentation did not discuss the cause of Complainant’s anxiety, he began taking the anti-anxiety medication one month after the AWOL charge.  Complainant’s weight also increased during this time.  Therefore, the Commission found sufficient evidence to tie the harm directly to the Agency’s action.  The Commission affirmed the Agency’s denial of past pecuniary damages.  Israel F. v. U.S. Postal Serv., EEOC Appeal No. 2020001565 (Mar. 2, 2021).

Complaint Processing

Appeal from Agency’s Decision on Military EEO Complaint Dismissed for Lack of Jurisdiction.  Complainant, a Petty Officer, filed a complaint under the military EEO complaint system regarding his medical separation from the U.S. Coast Guard.  The Agency issued a decision finding no discrimination and denied Complainant’s request for reconsideration.  Neither decision provided appeal rights to the EEOC.  Nevertheless, Complainant filed an appeal with the Commission.  The Commission stated that Complainant was a member of the military when the actions at issue occurred, and its regulations specifically exclude uniformed members of the military.  Therefore, the Commission lacked jurisdiction to consider the matter, and dismissed the appeal.  Charles T. v. Dep’t of Homeland Sec., EEOC Appeal No. 2021000721 (Jan. 12, 2021).

Agency Failed to Conduct Adequate Investigation.  The Commission remanded the complaint to the Agency for a supplemental investigation, finding that the Agency failed to adequately investigate Complainant’s claim of disability discrimination.  Complainant alleged that the Agency failed to reassign her to a job that did not require her to work on a specific machine as a reasonable accommodation for her degenerative knee condition.  The Commission disagreed with the Agency’s determination that Complainant was not an individual with a disability, stating that there was ample evidence showing that Complainant was substantially limited in the major life activities of working and walking.  Further, while Complainant did not show that she could perform the essential functions of her Mail Processing Clerk position due to her inability to work on the specific machine, the Commission noted that the discussion of whether an employee is a “qualified” individual with a disability does not end at the employee’s position.  Although the Agency may have conducted a search for available positions within a 50-mile radius that would have accommodated Complainant’s condition, the Agency’s obligation under the Rehabilitation Act is not limited to vacancies within a particular department, facility, or geographic area.  Further, the Agency did not present any specific explanation or evidence as to what its search actually entailed.  Therefore, the Commission instructed the Agency to supplement the record regarding the availability of vacant, funded positions and provide Complainant with an opportunity to address whether she could perform the essential functions of these positions.  Georgeann R. v. U.S. Postal Serv., EEOC Appeal No. 2019005191 (Dec. 3, 2020).

Dismissals

(See also by category, this issue.)

Complaint Improperly Dismissed in Part.  Complainant alleged that the Agency discriminated against her when she was denied overtime on multiple dates.  The Agency dismissed the complaint for failure to state a claim and for raising matters previously raised through a grievance procedure.  On appeal, the Commission initially found that Complainant’s allegation of age discrimination failed to state a claim, because Complainant was under 40 years of age.  The Commission found, however, that the Agency did not meet its evidentiary burden to support its dismissal on the grounds that Complainant previously raised these matters in the grievance process.  The Agency provided a copy of the collective bargaining agreement showing that employees are permitted to raise claims of discrimination, and additional evidence showing that Complainant included many instances in prior grievances.  Nevertheless, there were two incidents that were not raised in Complainant’s grievances.  Therefore, the Commission affirmed the dismissal of all claims except the denial of overtime on March 13 and March 27, 2020.  Those matters were remanded to the Agency for further processing.  Tu D. v. Dep’t of Transp., EEOC Appeal No. 2020004970 (Mar. 8, 2021).

Complaint Improperly Dismissed in Part.  Complainant worked as a Library Systems Administrator through various contracting companies.  He filed a formal EEO complaint alleging that the Agency discriminated against him from September 2018 through November 2019, including placing him on administrative leave; restricting his contact with certain co-workers; counseling him; placing him in leave-without-pay status; and giving him a lower performance rating.  Complainant also alleged that he was harassed from September 2018 through February 28, 2020, when he was terminated.  The Agency dismissed the entire complaint for failure to state a claim, asserting that it did not exhibit sufficient control to be considered Complainant’s joint employer.  The Agency also dismissed the six claims concerning incidents from September 2018 through November 2019, for failure to timely contact an EEO Counselor.   On appeal, the Commission found that the balance of the evidence showed sufficient control by the Agency over Complainant’s employment to be considered a joint employer for purposes of the EEO process.  Specifically, there was a continuing relationship between Complainant and the Agency during which Complainant maintained the same position.  Complainant’s hours were set by the Agency, he worked at an Agency facility, and he used Agency equipment.  The Agency made the decision to move Complainant, and Complainant stated that he interacted regularly with Agency employees.  Further, the record contained documentation referring to an Agency employee as Complainant’s supervisor.  Therefore, the Agency erred in dismissing the complaint for failure to state a claim.  The Commission affirmed the Agency’s dismissal of claims concerning incidents that occurred between September 2018 and November 2019 for failure to timely contact an EEO Counselor, finding that the matters were discrete actions.  The Commission remanded the hostile work environment and termination claims for further processing.  Gilberto C. v. Nat’l Aeronautics & Space Admin., EEOC Appeal No. 2021000076 (Mar. 5, 2021).

Complaint Improperly Dismissed in Part.  Complainant filed a formal complaint alleging discrimination when she was temporarily detailed on February 21, 2020, resulting in her hours being changed; she received an “unacceptable” performance rating and a Performance Plan on March 11, 2020; and she was denied leave beginning March 13, 2020.  The Commission found that the Agency improperly dismissed the claims concerning Complainant’s detail and the denial of leave on the grounds that they constituted collateral attacks on another proceeding.  While the Commission has long held that an employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding, there was no evidence in this case that anyone other than an Agency official was involved in the decision-making process at issue.  Thus, the Agency failed to demonstrate that the claims were a collateral attack, and the matters were improperly dismissed.  The Commission agreed with the Agency that Complainant failed to timely raise the issue of her performance appraisal with an EEO Counselor.  The performance appraisal was dated January 7, 2020, and contained a note indicating that Complainant refused to sign the appraisal on that date.  While Complainant asserted that she did not receive the appraisal until a later date, she did not include a copy of the referenced “Outlook Message,” or present other evidence to support her claim of a later receipt.  Therefore, the Commission found that Complainant’s contact with the EEO Counselor on February 28, 2020, was untimely.  The Commission noted that the matter concerning the performance plan was not a separate claim, but was related to the performance appraisal, and, as such, was also untimely.  Farah S. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020005487 (Mar. 2, 2021).

Complaint Improperly Dismissed as Moot and for Untimely EEO Counselor Contact.  Complainant filed a formal complaint which the Agency characterized as alleging discrimination regarding an April 2019 decision to rescind her Letter of Proposed Separation; an Absent Inquiry Letter; a document regarding her attendance; and a July 2020 Letter of Proposed Separation.  The Agency dismissed the last claim, stating that the matter had been rendered moot, and the remaining claims for untimely EEO counselor contact.  On appeal, the Commission reversed the Agency’s decision, finding that while the Agency rescinded the second Letter of Proposed Separation, Complainant asserted that the continued issuance of such letters caused her emotional distress thereby entitling her to compensatory damages.  As such, Complainant’s claim regarding the 2020 Letter of Proposed Separation was not rendered moot.  Further, a fair reading of Complainant’s formal complaint demonstrated that she was alleging a claim of ongoing harassment that included the four incidents identified by the Agency.  The Commission noted that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period.  Here, Complainant received the most recent Letter of Proposed Separation within 45-days of her initial contact with an EEO counselor, and, as such, her entire harassment claim was timely raised.  Tera B. v. U.S. Postal Serv., EEOC Appeal No. 2021001319 (Feb. 22, 2021).

Complaint Improperly Dismissed for Failure to Cooperate.  The Agency dismissed Complainant’s complaint for failure to cooperate, stating that Complainant failed to provide a requested affidavit.  The Commission found that Complainant’s alleged failure to respond to the Agency’s request did not indicate contumacious conduct such as to warrant dismissal of the formal complaint.  The record contained sufficient information to identify Complainant’s claims and allow for the Agency to conduct an appropriate investigation.  Lashonda M. v. U.S. Postal Serv., EEOC Appeal No. 2021001083 (Feb. 2, 2021).

Complaint Improperly Dismissed in Part.  Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it denied her request for reasonable accommodation, and when a management official raised his voice at her.  The Agency dismissed the entire complaint for failure to timely contact an EEO Counselor, and the second matter for failure to state a claim.  On appeal, the Commission noted that the discriminatory events occurred on April 2 and 7, 2020, and Complainant emailed the EEO Program Director about these matters on April 24, within 45 days.  While the Agency asserted that Complainant should have contacted the Office of Resolution Management to initiate her complaint, the Commission found that the EEO Program Manager was logically connected to the EEO process and should have told Complainant where to direct her claim.  Therefore, Complainant’s contact was deemed timely.  The Commission affirmed the Agency‘s dismissal of the matter concerning the manager’s raised voice for failure to state a claim, noting that the action alleged, without more, consisted of a single isolated incident, and was not sufficient to state a viable hostile work environment claim.  Christeen H. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020005121 (Jan. 12, 2021).

Complaint Alleging Discrimination Regarding Pay Improperly Dismissed for Failure to State a Claim and Untimely EEO Counselor Contact.  Complainant filed a formal EEO complaint alleging that she was not provided with a retroactive pay increase, back pay, or a time-off award.  The Commission found that the Agency mischaracterized the claims, and improperly dismissed them for failure to state a claim and untimely EEO Counselor contact.  The Commission stated that Complainant alleged a present harm when she was not provided a pay increase, back pay or a time-off award.  Further, Complainant alleged a valid claim of retaliation, and the actions were likely to deter Complainant or others from engaging in the EEO process.  While the Agency claimed that Complainant’s raise had been implemented and she received a lump-sum back pay award, the argument addressed the merits of Complainant’s complaint without a proper investigation, and was irrelevant to whether Complainant stated a viable claim.  In addition, the Lilly Ledbetter Fair Pay Act provides that an unlawful employment practice occurs with respect to compensation each time wages, benefits, or other compensation is paid.  Therefore, Complainant’s claim was timely raised with the EEO Counselor whether Complainant developed a reasonable suspicion on an earlier date or not.  Finally, the Commission determined that the Agency erred in providing Complainant appeal rights when it denied her request to amend her complaint to include the alleged denial of a time-off award.  Such an attempt to amend a complaint is not appealable until there is a final decision on the underlying complaint.  There was nothing in the record to suggest that Complainant reasonably suspected the discrimination prior to her request to amend her complaint, and, as such, the Commission deemed the matter to have been timely raised.  Emelda F. v. Dep’t of the Army, EEOC Appeal No. 2020004414 (Jan. 14, 2021).

Agency Improperly Dismissed Complaint for Failure to Cooperate.  According to the record, the Investigator in this case sent Complainant a request for an affidavit along with instructions for completing it.  The Agency dismissed the complaint for failure to cooperate, stating that Complainant failed to return the requested affidavit.  On appeal, the Commission found that although Complainant did not explain why she did not return the affidavit as requested, there was sufficient information in the record to have permitted the Agency to continue processing Complainant’s claim.  Complainant spoke with the Agency’s EEO Dispute Resolution Specialist and provided sufficient information as detailed in the Inquiry Report (EEO Counselor’s report).  The information was sufficient to identify the specific management actions that Complainant was concerned with, the relevant timeframes and the alleged responsible management officials, such that management witnesses could respond to Complainant’s allegations.  The record did contain a Report of Investigation including affidavits from management’s witnesses.  Therefore, the Commission concluded that the Agency should have adjudicated the complaint on the merits rather than dismiss it.  Adah T. v. U.S. Postal Serv., EEOC Appeal No. 2020005350 (Jan. 4, 2021).

Agency Improperly Dismissed Harassment Claim for Failure to State a Claim and Untimely EEO Counselor Contact.  The Commission found that the Agency improperly dismissed Complainant’s harassment claim for failure to state a claim and untimely EEO Counselor contact.  Complainant alleged, among other things, that he was subjected to multiple verbal and written reprimands, improperly disciplined, threatened with a change in duties, and intimidated.  Complainant also indicated that management failed to address the problems.  Complainant further stated that the Agency retaliated against him and provided a written timeline of management’s actions over a nearly nine-year period.  The Commission noted that when a complainant asserts that he has been subjected to unlawful retaliation for protected EEO activity, the adverse action need not qualify as an “ultimate employment action,” or materially affect the terms and conditions of employment.  In this case, Complainant alleged that he was subjected to harassment over many years based on his prior protected activity.  Therefore, he stated a viable claim which, given that some of the alleged incidents occurred within 45 days of Complainant’s contact with the EEO Counselor, was timely raised.  Alvaro M. v. Dep’t of Transp., EEOC Appeal No. 2020004764 (Dec. 3, 2020).

Agency Improperly Dismissed Claim for Abuse of Process.  The Agency dismissed Complainant’s complaint for abuse of process, asserting that, over the past 10 years, Complainant had filed numerous similar complaints alleging non-selection by various federal agencies.  The Commission reversed the decision on appeal.  The Commission stated that filing numerous complaints alone is not a sufficient basis for dismissal, and the Agency must show evidence that a complainant specifically intended to misuse the EEO process.  The Commission acknowledged that Complainant had filed multiple complaints regarding non-selections.  However, filing nine complaints was not dispositive of an abuse of process.  Further, there was no evidence that Complainant was attempting to circumvent or overburden the EEO process for the reasons stated by the Agency.  None of the various grounds cited by the Agency for dismissal undercut Complainant’s complaint regarding the specific non-selection claim raised in the underlying complaint.  Jeffery J. v. Dep’t of the Navy, EEOC Appeal No. 2020004860 (Dec. 2, 2020).

Findings on the Merits and Related Decisions

Under the Equal Pay Act

Equal Pay Act Discussed.  During the period at issue, Complainants applied for positions with the Agency as Program Specialists, and were hired after being recruited by the Agency through a career fair and conference.  Complainants’ applications were evaluated with approximately 18 other candidates for Program Specialist positions.  The respective candidates with bachelor’s degrees were hired at the GS-07 grade-level, while candidates who had obtained master’s degrees were hired at the GS-09 grade-level.  Nonetheless, all four Complainants were promoted to the GS-09 grade-level within one year or so of their hiring.  Approximately one year after Complainants were hired, the Agency hired a male comparator to a Program Specialist position at the GS-09 grade-level, even though he had not obtained a master’s degree.  The comparator’s application was reviewed and evaluated by a named management official while Complainants’ applications had been reviewed by two separate Human Resources (HR) officials one year earlier.

Complainants filed EEO complaints alleging the Agency discriminated against them on the basis of sex (female) under Title VII and under the Equal Pay Act (EPA) when they were hired at the GS-07 grade-level while the identified male comparator was hired at the GS-09 grade-level for the same position.  On appeal, the Commission affirmed the Agency’s final decision finding no discrimination.  Like the Agency, the Commission determined that Complainants did not establish a prima face case of discrimination, as the identified comparator was not similarly situated to them because he was hired a year later and evaluated by a different management official.  The Commission also found that the record did not support an inference of discrimination because male candidates without master’s degrees were also hired as GS-07s like the Complainants.  The Commission stated that, assuming Complainants established a prima facie violation under the EPA, the Agency established that the pay differential was based on a factor other than sex.  In so finding, the Commission noted that Complainants’ applications were evaluated by two separate HR officials while the comparator was evaluated by a different management official one year later under somewhat different circumstances.  The Commission determined that the different grade classifications resulted from a difference in professional judgment by the evaluating officials, and the record did not reflect that sex factored into the decision-making process in management’s application of the relevant classification qualification criteria.  Aida E., Julietta K., Juanita K,, & Yvette H. v. Dep’t of Agric., EEOC Appeal Nos. 2020002203, 2020002190, 2020002216, 2020002197 (Jan. 28, 2021).

Under the Rehabilitation Act

Agency Improperly Disclosed Medical Information.  Complainant filed an EEO complaint alleging, among other things, that her second-level supervisor (S2) disclosed information about her medical condition and reasonable accommodation request to a union official who was not representing her in any capacity.  On appeal, the Commission found that S2 disclosed Complainant’s personal medical information without justification to an individual without a need to know.  Two witnesses who were present at the meeting in question stated, under oath, that S2 discussed Complainant’s medical condition and reasonable accommodation without prompting.  While a third individual stated that Complainant’s medical information was not discussed, another witness stated, under oath and without contradiction, that the third individual left the meeting before S2 began talking about Complainant.  The Agency was ordered, among other things, to conduct a supplemental investigation into Complainant’s entitlement to compensatory damages, provide EEO training to S2, and consider disciplining S2.  The Commission affirmed the finding of no discrimination or harassment regarding additional claims.  Alice S. v. Dep’t of Def., EEOC Appeal No. 2020000391 (Feb. 11, 2021).

Denial of Reasonable Accommodation and Discriminatory Termination Found.  Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against her based on her disability (epilepsy) when it failed to provide her with reasonable accommodation and terminated her employment.  Specifically, the Agency denied Complainant’s requests for a consistent daytime work schedule, and ultimately terminated her employment.  On appeal, the Commission found that the Agency’s actions violated the Rehabilitation Act.  Medical documentation showed that Complainant’s epilepsy affects her concentration and attention, and can alter her level of consciousness, alertness and ability to drive.  In addition, Complainant was qualified for her position, as confirmed by an Agency Human Resources official.  Complainant’s request for an accommodation was initially denied by the Postmaster, and then again by the Agency’s District Reasonable Accommodation Committee (DRAC).  The Commission found that the offer of a position at another facility was not an offer of a reassignment because the Agency only informed Complainant that the position was “going to be posted,” and it did not offer to place Complainant into the position.  The Agency stated that a reassignment search was conducted and that it found no vacant positions within Complainant’s commuting area and medical restrictions.  The Agency, however, did not provide evidence that it conducted an agency-wide search for vacant, funded positions.  Further, Complainant provided a list of 10 vacant positions in February 2018.  The Agency did not offer any arguments or evidence that these available positions would not have allowed Complainant to work a daytime shift, or that placing Complainant into one of these positions would have been an undue hardship.  Therefore, the Commission found that the Agency violated the Rehabilitation Act when it denied her request for a schedule change and did not offer her a reassignment to a vacant funded position.  The Commission also found that the Agency violated the Rehabilitation Act when it terminated Complainant’s employment instead of providing a reasonable accommodation.  The Agency was ordered, among other things, to offer to reinstate Complainant to her former position, or an equivalent position at a facility that can provide her with a consistent daytime work schedule, pay Complainant appropriate back pay and benefits, and investigate Complainant’s claim for damages.  Mirta Z. v. U.S. Postal Serv., EEOC Appeal No. 2020000383 (Jan. 28, 2021).

Under Title VII

Hostile Work Environment and Sex-Based Discrimination Found.  Both Complainants worked as International Broadcasters for the Agency’s International Broadcasting Bureau, Voice of America (VOA).  Complainants filed separate EEO complaints alleging, among other things, that the Agency subjected them to a hostile work environment and discrimination based on sex, including denying them promotions, and modifying their television anchor duties.  At the conclusion of the investigations for both complaints, the Agency issued two separate decisions which both concluded that Complainants failed to prove their claims.  The Commission consolidated the matters on appeal, given that the underlying facts were the same in both complaints.  The Commission determined that Complainants both established a prima facie case of discrimination based on sex because they were replaced by male anchors, and all the recipients of the promotion were males.  The Commission then found that the Agency failed to meet its burden to articulate legitimate, nondiscriminatory reasons for its decisions.  Several responsible management officials failed to provide detailed and supported statements regarding the removal of anchor duties and the denial of promotions.  For example, one of the responsible management officials repeatedly provided vague statements that were often not supported by the record, or provided statements that were refuted and/or contradicted by other management officials.  Moreover, when given several opportunities to clarify his statements by the EEO Investigator, the official failed to substantively respond.  The Commission stated that, even if it determined that the Agency’s explanation was sufficient to meet its burden, Complainants still established, by a preponderance of the evidence, that the Agency's explanations were pretextual.  The Agency was ordered, among other things, to retroactively promote Complainants with appropriate back pay and benefits, reinstate pertinent television and/or radio duties, investigate Complainants’ claims for compensatory damages, and provide training to the responsible management officials.  Madlyn F. & Lashawn C. v. U.S. Agency for Global Media, EEOC Appeal Nos. 2019005498 & 2020003512 (Feb. 9, 2021).

Sexual Orientation Discrimination Found Regarding Non-Selection.  Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his sexual orientation when it did not select him for an Assistant Fire Operations Supervisor position in 2014.  Complainant stated that rumors began spreading about his sexual orientation shortly after he began working for the Agency in 2001.  Although his application was referred to the Selecting Official (S2) for further consideration, S2 selected three other candidates.  When Complainant asked S2 why he was not offered a second-round interview, S2 responded that reference-checking revealed issues with Complainant’s communication and supervisory skills.  On appeal, the Commission noted that the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. ---, 140 S. Ct. 1731 (2020), held that discrimination based on sexual orientation or transgender status violates Title VII’s prohibition on discrimination because of sex.  The Commission then found that Complainant established that the Agency’s proffered explanation for not selecting him was pretextual.  S2 chose four individuals to evaluate the application materials and conduct first-round interviews, and specifically instructed the panel to narrow the field to six or seven candidates.  When Complainant was ranked first of the seven recommended candidates, S2 then decided to expand the field to 12 candidates for “diversity” purposes because there were three vacancies, even though there had been three vacancies throughout the hiring process.

Moreover, the Agency deviated from standard procedure without explanation in weighting references such that each reference check was worth more points than the scores from the first-round interview and the application materials combined, essentially negating the extensive work of the panel.  By weighting the references so highly, Complainant slipped from the top-ranked candidate to the eighth-ranked candidate and did not make the cut for a second-round interview.  In contrast, a candidate who was not recommended by the panel was afforded a second interview despite having less experience than Complainant.  Complainant also had more experience than the other two selectees.  Further, the Agency failed to contact any of the references listed on Complainant’s application, including his former first-line supervisors.  Although it was logical to consult Complainant’s current first-line supervisor, the Commission found it strained credulity that others who had only supervised Complainant sporadically and indirectly could provide more relevant information than his former supervisors.  Additionally, the negative references provided were not supported by Complainant’s positive performance evaluation, which was issued by S1 approximately one month before the negative references, and were directly contradicted by the testimony of his prior supervisors.  Therefore, the Commission concluded that the Agency’s articulated reason for not selecting Complainant was unworthy of credence and a pretext for discrimination.  The Agency was ordered, among other things, to offer Complainant the position, or a substantially equivalent position with appropriate back pay and benefits, and investigate his claim for damages.  Bart M. v. Dep’t of the Interior, EEOC Appeal No. 0120160543 (Jan. 14, 2021).

Denial of Religious Accommodation Found.  Complainant, a Supervisory Chaplain at a Federal Corrections Institution, filed a formal EEO complaint alleging, among other things, discrimination on the basis of religion (Oneness Pentecostal (Pacifist)) when the Agency denied his request for religious accommodation.  Specifically, Complainant requested an exemption from an Agency policy requiring certain employees to carry a form of pepper spray while on duty.  Complainant asserted that, according to his religious beliefs, he could not carry a weapon for offensive or defensive purposes.  The Agency contended that the nature of Complainant’s position required close contact with inmates, and thus he could be called on to assist in an emergency.  The Agency further contended that granting the religious accommodation would pose an undue hardship, because it would have a “significant impact” on facility operations by reducing the number of staff members on duty who could respond to an emergency.  Accordingly, the Agency denied Complainant’s request for religious accommodation.  However, approximately five months later, the Agency granted Complainant’s request.  On appeal, the Commission held that the Agency discriminated against Complainant with respect to its original denial of a religious accommodation, finding that the Agency did not meet its burden to show an undue hardship.  Specifically, the Agency failed to show how exempting one employee out of approximately 300 would significantly impact its operations during an emergency.  According to the record, there were other employees who worked with Complainant in the chapel and who would have pepper spray.  Based on the Commission’s finding, the Agency was ordered to conduct a supplemental investigation into Complainant’s claim for compensatory damages and provide appropriate remedial EEO training for the responsible management officials.  The Commission affirmed the Agency’s finding that Complainant failed to establish his claim of retaliatory harassment.  Frances A. v. Dep’t of Justice, EEOC Appeal No. 2019004187 (Nov. 30, 2020).

Under Multiple Bases

Commission Found Complainant Was Subjected to Harassment and Discrimination Based on Sex and Prior EEO Activity.  At the time of events giving rise to this complaint, Complainant was serving in her probationary period as a Part-Time Transportation Screening Officer (TSO).  Complainant filed an EEO complaint alleging that she was subjected to discrimination and harassment based on her sex, and in reprisal for prior protected EEO activity.  Specifically, Complainant stated a co-worker made comments regarding her sexual orientation on a weekly basis that created a hostile work environment.  Complainant stated that while she did not immediately report the harassment, she and another co-worker did ultimately raise the issue with their second-level supervisor.  Complainant stated that another co-worker overheard Complainant’s supervisor talking about the sexual orientation of two officers and mentioning Complainant’s name.  Complainant stated that she was issued a low performance rating and ultimately removed during her probationary period for alleged instances of absence without leave (AWOL).  

On appeal, the Commission found that Complainant’s co-worker made several offensive comments towards Complainant about her sexual orientation, and Complainant became fearful when working with the co-worker.  The Commission determined that the co-worker’s conduct unreasonably interfered with Complainant’s work performance, and that she met her burden of establishing that she was subjected to a hostile work environment because of her sex.  In addition, there was evidence that Complainant was subjected to retaliation because she complained about the harassment.  For example, a supervisor mentioned to all of Complainant’s co-workers that “someone” was complaining that management was not taking things seriously.  The record also showed that management’s actions failed to end the harassment, and rather, retaliation from co-workers and management continued unaddressed.  The Commission further found that Complainant established that the Agency’s reasons for her low performance rating and termination were a pretext to retaliation.  Complainant asserted that her performance was higher than her rating revealed, and the Agency ultimately raised it.  In addition, Complainant’s supervisor authorized Complainant’s first absence from the facility and the second incident of alleged AWOL seemed to last no more than 30 minutes.  Co-workers corroborated that other TSOs were absent from their positions on occasion but not similarly disciplined.  Therefore, the Commission concluded that Complainant’s termination was a pretext to retaliate against her for engaging in EEO activity.  The Agency was ordered, among other things, to rescind the AWOL charges and Notice of Termination, retroactively restore Complainant to her position, or a substantially equivalent position, pay Complainant appropriate back pay and benefits, and investigate Complainant’s claim for damages.  Phyllis F. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120150799 (Feb. 16, 2021).

Retaliation

Retaliation Found.  Complainant filed a formal complaint alleging, among other things, that the Agency retaliated against her when her supervisor (S1) reference a Letter of Reprimand while in Complainant’s presence; she received a significantly lower score for personal leadership and integrity on her performance evaluation; and a management official (S3) asked Complainant why she was not “scared of anyone,” and whether Complainant planned to leave her position.  Following a hearing on these matters, an AJ issued a decision finding that Complainant was subjected to unlawful retaliation, and the Commission affirmed the AJ’s findings on appeal.  Specifically, the AJ stated that S1 and S3 were aware of Complainant’s EEO activity, and their conduct was intended to dissuade Complainant from pursuing an EEO complaint.  The AJ noted that, soon after learning of Complainant’s EEO activity, S1 attempted to threaten Complainant by sitting next to Complainant’s desk and having a conversation with S3 about a Letter of Reprimand.  Further, the AJ found that reprisal played a role in Complainant’s performance rating.  Specifically, after Complainant’s EEO activity, S1 recommended a lower rating for personal leadership and responsibility even though there was no reason to doubt Complainant’s leadership, and the Agency later raised the rating.  Finally, Agency management “peppered” Complainant with comments about the negative effects her complaints were having on her and her co-workers.  The Agency was ordered, among other things, to expunge documents reflecting the lower rating from Complainant’s record, pay Complainant $6,000 in proven compensatory damages, and provide appropriate training for each responsible management official.  The Commission affirmed the AJ’s finding of no discrimination with regard to the remaining issues in Complainants complaint.  Irene M. v. Dep’t of the Navy, EEOC Appeal No. 2020001286 (Feb. 2, 2021).

Sanctions

AJ’s Dismissal of Hearing Request as Sanction Was Too Harsh.  Complainant filed three EEO complaints alleging that the Agency discriminated against him and subjected him to a hostile work environment in reprisal for his prior protected EEO activity.  Following investigations, Complainant requested hearings and the complaints were consolidated.  The AJ ordered the parties, among other things, to submit prehearing statements by a specific date.  Complainant, however, failed to submit a prehearing statement.  In response to the AJ’s Order to Show Cause, Complainant, through his representative, explained that he had been busy caring for his children, serving as the primary caretaker for his mother, and then grieving his mother’s death.  The AJ determined that Complainant had not shown good cause for failing to submit a prehearing statement and dismissed the hearing request as a sanction.  The Agency then issued a decision finding no discrimination.  On appeal, the Commission determined that the AJ abused his discretion by dismissing the hearing request as a sanction.  Complainant’s non-compliance with the AJ’s orders consisted of one instance in which he failed to submit a prehearing statement.  Complainant stated that he had been overwhelmed by his mother’s sudden decline in health and her passing prior to the deadline for filing his prehearing statement.  The Commission noted that emotional traumas can be every bit as incapacitating as physical ones, especially when the passing of a loved one is involved.  The Commission found no evidence that Complainant engaged in or exhibited the kind of willful or obstinate refusal to comply with the AJ’s orders that typifies contumacious conduct.  The record also did not show that Complainant failed to act with due diligence.  As a result, the Commission found that dismissing Complainant’s hearing request was too harsh, and a lesser sanction would have been more appropriate. The Commission remanded the matter for a hearing.  Paul F. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019005369 (Feb. 25, 2021). Additional Decisions Addressing an AJ’s Dismissal of the Hearing Request as a Sanction Include:  Sofia W. v. Dep’t of the Treasury, EEOC Appeal No. 2019001779 (Feb. 2, 2021)  (the Commission found that dismissal of the hearing request was too harsh.  Complainant stated that she did not have legal assistance when the AJ requested a witness list.  Complainant indicated that upon seeing the Agency’s witness list, she determined that she did not need to submit additional witnesses.  When she then submitted her list to the AJ, it did not contain additional witnesses beyond those named by the Agency.  As such, Complainant’s failure to add witnesses to the Agency’s list did not prejudice the Agency or compromise the EEO process.); Sylvester C. v. U.S. Postal Serv., EEOC Appeal  No. 2019004212 (Feb. 2, 2021)  (the Commission found no evidence that Complainant either willfully disobeyed the AJ’s orders, or unjustifiably failed to respond to those orders.  Therefore, the dismissal of the hearing request was improper.  Complainant believed he had already submitted the prehearing statement that the AJ requested, and there appeared to be a breakdown in communication regarding whether Complainant received the AJ’s notification of the prehearing conference.  There was no indication that Complainant engaged in the kind of willful or obstinate refusal to comply with the AJ’s orders that constitutes contumacious conduct). 

Settlement Agreements

Complainant Not Entitled to Reinstatement of Complaint.  Complainant and the Agency entered into a settlement agreement before an AJ that provided, in pertinent part, that the Agency would pay Complainant $40,000 in nonpecuniary compensatory damages and replace two of Complainant’s Performance Evaluations with evaluations indicating “no-rating.”  Complainant alleged that the Agency breached the settlement agreement when it did not change her ratings.  The Agency agreed with Complainant and gave Complainant the choice of having the Agency implement the terms of the settlement agreement or void the agreement, which would require Complainant to repay the $40,000.  Complainant chose to have the settlement agreement voided, but indicated that she could not pay back the funds and requested a payment plan.  Complainant’s claims were then returned to the AJ for processing.  The AJ declined to reinstate Complainant’s complaints, stating that once a breach of a settlement agreement is found, the remedial relief is either reinstatement of the underlying complaint for processing or specific enforcement of the agreement.  Further, for Complainant’s complaints to be reinstated, she must return any benefits she received per the settlement agreement, including the $40,000.  On appeal, the Commission agreed with the AJ that a repayment plan was an ineffective way to return the Agency to the status quo before the settlement agreement.  Therefore, because Complainant was not able to repay the $40,000 she received under the settlement agreement, she was not entitled to have her EEO complaints reinstated, and the Commission ordered specific performance of the settlement agreement.  Stacie D. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020005130 (Mar. 5, 2021).

Commission Affirmed Agency’s Finding that Settlement Agreement Was Void.  The parties entered into a settlement agreement that provided, in pertinent part, that Complainant’s request for a change of craft would be approved and sent to Human Resources for processing within seven business days.  Human Resources acknowledged receipt of the approved request, and Complainant was ultimately instructed to report to duty as a Clerk.  Notwithstanding, Complainant filed a grievance seeking back pay for the delay in placing her in the Clerk position.  The union then discovered that the settlement agreement violated the Collective Bargaining Agreement and Memorandum of Understanding.  The union and the Agency resolved the contractual violation by reaching a separate agreement, whereby the Agency would return Complainant to her former position.  Complainant alleged that returning her to her original position violated the EEO settlement agreement, and the Agency found that the EEO settlement agreement was void.  On appeal, the Commission noted that while settlement agreements are binding on the parties, the Commission has previously held that an Agency may not specifically perform the terms of an agreement if doing so violates a collective bargaining agreement.  In those cases, the Agency must reinstate Complainant’s complaint from the point processing ceased.  Accordingly, the Commission affirmed the Agency’s decision.  Camie B. v. U.S. Postal Serv., EEOC Appeal No. 2020004464 (Mar. 2, 2021).

Commission Found No Breach of Settlement.  The parties entered into a settlement agreement in September 2016 that provided, among other things, that the Agency would submit personnel forms changing Complainant’s duty station to a specific location.  Complainant alleged that the Agency breached the agreement when it offered to reassign Complainant to one of three different duty stations.  On appeal, the Commission affirmed the Agency’s finding that it did not breach the settlement agreement, stating that the Agency initially processed the applicable personnel forms.  Complainant acknowledged that he did not expect to remain at the specified location for the remainder of his career, and that the reassignment would have been temporary.  Complainant stated, however, that he had a reasonable expectation that his duty station would remain close to the specified location.  The Commission stated that the settlement agreement was silent as to if, when, or where a future reassignment might occur, and the Agency did not attempt to change Complainant’s duty station for over three years.  Further, Complainant did not establish that the Agency acted in bad faith when it decided to change his duty station.  Manuel R. v. Dep’t of Def., EEOC 2020002558 (Jan. 13, 2021).

Commission Found No Breach of Settlement.  The parties entered into a settlement agreement that provided, among other things, that the Agency would restore 80 hours of sick leave and pay Complainant’s attorney’s fees in the amount of $2,500.  Complainant agreed to withdraw several pending EEO complaints.  Complainant subsequently alleged that the Agency breached the agreement when it issued her a Notice of Proposed Suspension for being Absent Without Leave (AWOL) prior to the execution of the settlement agreement.  On appeal, the Commission affirmed the Agency’s finding that it did not breach the settlement agreement.  The Commission noted that Complainant did not allege that the Agency failed to restore her sick leave or pay her attorney’s fees.  While Complainant asserted that the parties had agreed that any time and attendance issues would not be raised in the future, that unexpressed intention was not included in the agreement and the Agency did not agree to any terms related to disciplinary actions.  Further, the settlement agreement specifically noted that it did not include any other conditions or assurances, and the Commission agreed with the Agency that settlement agreements do not prohibit agencies from issuing discipline for previous attendance problems.  The Commission noted that the Agency was investigating the suspension as a separate EEO claim.  Scarlet G. v. Dep’t of Commerce, EEOC Appeal No. 2020003758 (Jan. 13, 2021).

Breach of Settlement Found.  The parties agreed that the beginning shift time for all Agency employees working on limited/light duty in a particular section of the facility would be changed to 7:00 p.m.  Complainant alleged breach when two employees were permitted different start times than provided in the agreement.  The Agency contended that one employee was on a detail to another section and the other was allowed a different start time on only one occasion.  The Commission rejected the Agency’s argument because the plain language of the agreement did not provide for exceptions or identify possible conflicting Agency obligations.  Therefore, the Commission found that the Agency breached the agreement, and reinstated the complaint per Complainant’s request.  Agnus W. v. U.S. Postal Serv., EEOC Appeal No. 2020005488 (Jan. 6, 2021).

Breach of Settlement Found.  The parties entered into a settlement agreement that provided, in pertinent part, that Agency management would “present” training opportunities for Complainant within six months.  The Agency acknowledged that Complainant did not receive a training opportunity during the six months following the signing of the Agreement, but stated a manager later offered a structured two-week training at the manager’s new office.  Complainant did not accept the offer as it would have entailed a 100-mile, one-way commute, and the parties understood that the training would take place at Complainant’s workplace.  The Commission concluded that the Agency breached the agreement when it failed to provide training within six months and did not cure the breach when it offered a training opportunity that required a 200-mile total daily commute.  The Commission stated that Complainant should be given the option of specific enforcement of the agreement or reinstatement of the underlying complaint.  Miles N. v. U.S. Postal Serv., EEOC Appeal No. 2020005234 (Jan. 6, 2021).

Breach of Settlement Found.  The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would issue a neutral reference letter and restrict the information that it supplied to third parties to that specified in the agreement.  On appeal, the Commission found that Complainant did not receive the benefit of either of these provisions.  Specifically, the Commission stated that the Agency was not acting in accordance with the terms of the agreement when it released additional negative information via personnel forms.  While the Agency argued that the agreement did not specifically mention the personnel forms, the Commission found that was not dispositive in the case.  The agreement clearly set forth the parties’ understanding that Complainant was releasing her claims based on the promise that the Agency would not release any negative information and would only release the information expressly specified in the agreement.  Complainant clearly articulated in her breach notices that she was seeking enforcement of the agreement and the Commission ordered compliance instead of reinstatement of the complaint.  Further, because the Commission found noncompliance, Complainant was the prevailing party in this matter.  The Commission noted that Complainant did not waive and release the Agency from claims for future damages that were incurred after the execution of the agreement, and any waivers Complainant made were contingent on the Agency’s compliance with the terms of the agreement.  Colene M. v. Gen. Serv. Admin., EEOC Appeal No. 2020004322 (Jan. 5, 2021).

No Breach of Settlement Found.  The Commission found the Agency was not in breach of a settlement agreement the parties entered into in 2018.  The agreement provided, in pertinent part, that the Agency would increase Complainant’s basic rate of pay to the maximum rate of basic pay permitted by regulation for individuals in Complainant’s position, and Complainant’s basic rate of pay would not decrease.  Complainant subsequently alleged that the Agency breached the settlement agreement when it did not provide her with a second pay increase in January 2020.  On appeal, the Commission noted that the agreement required the Agency to increase Complainant’s basic rate of pay to the maximum rate permitted as of a certain date, and the record showed that the Agency provided that adjustment.  To the extent that Complainant expected the Agency to provide additional adjustments, that was not addressed in the Agreement.  Nenita S. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2020003859 (Jan. 4, 2021).

Commission Found Settlement Agreement Complied with Older Workers Benefit Protection Act and No Reason to Void Agreement.  Complainant and the Agency entered into a settlement agreement on December 5, 2019, that provided, in pertinent part, the Agency would make available a letter confirming his application status and placement on the Best Qualified List for a specific vacancy announcement.  In November 2019, and during the settlement discussions, Complainant had filed a second formal EEO complaint alleging discrimination based on age with regard to another non-selection.  The settlement agreement specifically noted that it was resolving the May 27, 2017 formal complaint and included language that it was settling all other matters with respect to Complainant’s application for employment with the Agency arising on or before the date Complainant signed the agreement.  As such, the December 2019 settlement agreement resolved both complaints.  Nevertheless, on January 7, 2020, Complainant requested that his first complaint be reinstated, indicating that he sought to withdraw from the agreement, because he allegedly had been deceived by the Agency and provided with misinformation.  The Agency found no grounds to void the settlement agreement, and the Commission affirmed the Agency’s decision on appeal.

The Commission reviewed the provisions of the agreement relating to the Older Workers Benefit Protection Act (OWBPA), as the complaints involved allegations of age discrimination under the ADEA.  The Commission found that the waiver requirements of the OWBPA had been met, noting that Complainant was given, among other things, a reasonable time period (several months) to consider the agreement and had actively participated in the negotiations.  The Commission found no coercion, as Complainant did not articulate any conduct on the part of the Agency to demonstrate he had been induced to sign the agreement by threats of harm or loss.  Moreover, Complainant did not specify what misinformation he allegedly received from the Agency.  The record showed that the Agency informed Complainant of case-related deadlines and revised the settlement agreement in response to Complainant’s concerns.  The Commission found no duress, noting that Complainant provided no evidence, apart from his own sworn statement, that he had been incapacitated or mentally deficient at the time he signed the agreement.  Accordingly, the Commission found no reason to void the settlement agreement.  Maximo S. v. Dep’t of the Treasury, EEOC Appeal No. 2020002797 (Nov. 23, 2020).

Stating a Claim

Agency Improperly Fragmented Claim of Harassment and Dismissed the Complaint for Failure to State a Claim.  The Commission found that the Agency improperly fragmented Complainant’s formal complaint rather than collectively viewing the incidents raised.  Complainant alleged that management threatened him, made derogatory comments about him, falsely accused him of harassment, and banned him from specific Agency locations.  When viewed together, Complainant’s claims were sufficiently severe or pervasive to state an actionable claim of harassment.  The Commission also found that Complainant’s allegations were not a collateral attack on the grievance process.  Complainant was not contesting the outcome of a grievance determination or alleging the Agency violated the collective bargaining agreement.  While Complainant alleged that he was subjected to discriminatory harassment while performing union duties, his role as a union official was insufficient to remove the complaint from the EEO process.  Mohammad V. v. U.S. Postal Serv., EEOC Appeal No. 2021001241 (Mar. 2, 2021).

Complainant Stated Viable Claim of Reprisal.  Complainant filed a formal complaint alleging, among other things, that her supervisor retaliated against her when he moved her out of her preferred assignment in retail where she had worked for seven years, to the packing bay.  On appeal, the Commission found that the Agency improperly dismissed the matter for failure to state a claim.  The Commission noted that the EEO complaint process should not be used to challenge routine instructions directing employees to perform work within their crafts and job descriptions, or to express a preference for a different policy or practice than the one implemented by management.  In this case, however, while the Agency emphasized that Complainant’s supervisor acted within the scope of his supervisory authority when he reassigned Complainant’s work duties, Complainant asserted that her supervisor’s action was outside the standard practices within the facility, which recognized seniority even with respect to in-craft assignments.  Complainant was the most senior worker in the retail section, having worked there for seven years, and the workers in the packing bay were all relatively new employees.  Additionally, Complainant’s supervisor replaced Complainant with two workers with less seniority.  The Commission concluded that, considering the duration of time Complainant held the preferred assignment, and that the reassignment of duties conflicted with typical practice within the facility, as well as the broad view of coverage applied to retaliation complaints, Complainant stated both a claim of harassment and of reprisal.  Assuming Complainant engaged in protected EEO activity as alleged, the Agency’s response to that activity, removal from a duty assignment Complainant held for seven years, was reasonably likely to deter Complainant and others from engaging in additional protected EEO activity.  The Commission affirmed the Agency’s dismissal of Complainant’s allegation that her supervisor yelled at her on unspecified dates for failure to state a claim.  Vickie T. v. U.S. Postal Serv., EEOC Appeal No.  2021000988 (Feb. 22, 2021).

Complainant Stated Viable Claim of Reprisal.  Complainant, a Custodian, alleged that management threatened to take his ID badge and walk him out of the building if he did not deviate from normal cleaning procedures.  Complainant also noted management later threatened to write him up for insubordination when he raised the issue of improperly stored flammable materials.  The Commission found that threatening Complainant that he could be written up or removed from his job under these circumstances were reasonably likely to deter Complainant or others from engaging in protected EEO activity.  Accordingly, Complainant stated a viable claim of reprisal, and the Commission remanded the claim to the Agency for investigation.  Winfred C. v. U.S. Postal Serv., EEOC Appeal No. 2021001186 (Feb. 16, 2021).

Complainant Stated Viable Claim of Retaliatory Harassment.  The Commission found that the Agency mischaracterized Complainant’s claim and improperly dismissed the complaint for failure to state a claim.  Despite the Agency’s assertion that Complainant did not allege retaliation for protected EEO activity, the EEO Counselor’s report and Complainant’s formal complaint clearly showed that Complainant stated he was retaliated against for asking Agency managers to accommodate his medical condition pursuant to the Rehabilitation Act.  Specifically, Complainant, who was diagnosed with a medical condition impacted by second-hand smoke, stated that after asking Agency managers to prevent other employees from smoking in and around the facility, he was singled out and subjected to a hostile work environment by his supervisors and co-workers.  Therefore, Complainant stated a viable claim.  Rich P. v. Dep’t of Homeland Sec., EEOC Appeal No. 2021001010 (Jan. 22, 2021).

Complaint Filed by Volunteer Properly Dismissed.  Complainant, a volunteer at the Agency, filed a formal complaint alleging that she was subjected to a hostile work environment and retaliation.  The Agency dismissed the complaint for failure to state a claim because Complainant was a volunteer, and not an employee of the Agency, and the Commission affirmed the Agency’s decision on appeal.  The Commission has stated  that  while  volunteers  usually  are  not  protected “employees,” an individual may be considered an employee if, as a result of the volunteer service, she receives benefits that constitute significant remuneration rather than merely the inconsequential incidents of an otherwise gratuitous relationship.  A volunteer may also be considered an employee for the purpose of the EEO process if the volunteer work is required for regular employment or typically leads to regular employment with the employer.  In this case, the Commission found that the type of volunteer work Complainant did was not a prerequisite to regular employment, and the small benefits she received did not constitute significant remuneration.  Tera B. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020005079 (Mar. 2, 2021).

Commission Affirmed Agency Dismissal as Collateral Attack on Another Proceeding.  The Commission affirmed the Agency’s dismissal of Complainant’s complaint, finding it constituted a collateral attack on the worker’s compensation process.  A review of the EEO Counselor’s report and formal complaint revealed that Complainant’s complaint essentially concerned representations made by the Agency during the processing of Complainant’s worker’s compensation claim.  Specifically, Complainant asserted that the Agency misrepresented the availability of Complainant’s previous modified duty assignment, thereby denying her worker’s compensation benefits.  Complainant should have challenged the Agency’s actions through the Office of Workers’ Compensation Programs, because any remedial relief would be available there and not through the EEO process.  Alesia P. v. U.S. Postal Serv., EEOC Appeal No. 2021000068 (Jan. 11, 2021).

Complainant Did Not Allege Personal Loss or Harm to Term, Condition, or Privilege of Employment.  The Commission affirmed the Agency’s dismissal of Complainant’s complaint regarding an email sent to Agency employees entitled “Talking About Race,” for failure to state a claim.  Specifically, the Commission agreed with the Agency that Complainant did not allege a personal loss or harm to a term, condition, or privilege of employment.  The email was sent to all employees and not just Complainant, and the Agency stated that while Complainant considered the concepts in the material to be offensive, he was not required to access the material.  The material was recommended for senior leadership.  Complainant did not indicate that he was in a senior leadership position, that anyone used the material during a discussion with him, or that he was subject to any adverse action as a result of the email.  Further, the email was insufficient to state a viable claim of harassment.  Clinton C. v. Envtl. Prot. Agency, EEOC Appeal No. 2021000238 (Jan. 11, 2021).

Summary Judgment

Summary Judgment Affirmed.  Complainant alleged that the Agency discriminated against her when her first-level supervisor removed her from her bid post for allegedly going against policy, and when she was subjected to harassment, including being disrespected, denied overtime and overtime pay, not allowed to attend a re-entry program, and not given the items necessary to do her job.  An AJ ultimately issued a decision without a hearing, finding that Complainant failed to prove discrimination or harassment as alleged, and the Commission affirmed the decision on appeal.  The Commission initially found that the record was adequately developed for purposes of summary judgment.  Only two witnesses were not interviewed, one who had retired and whose contact information was unknown, and another who was not employed by the Agency at the time of the alleged discrimination.  In addition, Complainant failed to raise her concerns about the accuracy of the evidence and supporting documentation in response to the Agency’s motion for summary judgment.  Regarding Complainant’s claims, the Commission stated that the Agency articulated legitimate, nondiscriminatory reasons for the actions, and Complainant failed to establish that those reasons were a pretext for discrimination.  Specifically, Complainant was moved to a different office because she held mail against Agency policy and supervisory orders.  Further, Complainant did timely receive overtime pay despite refusing to follow instructions on how to correct an administrative error.  Management also explained that Complainant was allowed to, and did attend the re-entry program, and she could have taken the equipment she needed to perform her job without prior approval.  Complainant did not refute management’s explanations or the record evidence regarding these matters.  Further, the Commission concluded that Complainant also did not establish her hostile work environment claim.  Dominica H. v. Dep’t of Justice, EEOC Appeal No. 2020000448 (Jan. 14, 2021), request for reconsideration denied, EEOC Request No. 2021002017 (Apr. 29, 2021).

Summary Judgment Reversed.  Complainant alleged she was subjected to age discrimination and reprisal when she was not selected for the position of Nurse Executive.  An AJ issued a decision by summary judgment in favor of the Agency finding no discrimination.  The AJ reasoned that the Selectee had higher interview scores and superior experience compared to Complainant. On appeal, the Commission concluded there were critical discrepancies in the record identified by Complainant such that summary judgment was not appropriate, and that a hearing was needed to properly adjudicate this matter.  Specifically, during the initial screening, Complainant’s application package received the highest score while the Selectee’s score was deemed too low to qualify for an interview.  As a result, Complainant and three other candidates were chosen for first round interviews while the Selectee was not.  Additionally, the record contained two Candidate Scoring Tools logging scores from the application process.  There was no explanation in the record to account for the alteration to Complainant’s initial application package score which reduced her overall combined score.  Moreover, the notation, “ranked too low for interview by initial interview panel” by the Selectee’s name was included on one score sheet but not the other without explanation.  Despite the Selectee’s failure to qualify for an initial interview, the Agency created a second interview process which ultimately included the Selectee.  While the Agency reasoned that a second interview process was needed because an initial selectee was not placed in the position, there was no explanation for why none of the management officials mentioned this candidate’s name or indicated why she was ultimately not selected.  Therefore, the Commission determined that these critical discrepancies required resolution through a hearing.  Lynette B. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020002984 (Mar. 16, 2021).

Summary Judgment Reversed.  Complainant was a Seasonal Visitor Use Assistant (SVUA) working in a six-month temporary appointment.  Her previous appointment ran from April 2016 through the end of October 2016.  Complainant claimed discrimination based on sex and reprisal when she was not rehired for the 2017 season and was denied a modified work schedule to care for her child.  An AJ granted the Agency’s motion for summary judgment finding that Complainant failed to establish a prima facie case of non-selection because Complainant had not applied for the position.  Regarding the modified schedule, the AJ found that since Complainant was not hired, there was no schedule to modify and hence she failed to show harm.  On appeal, Complainant conceded that she did not formally apply to be rehired but maintained that a formal application was not required for returning SVUAs, pointing to two male SVUAs who were rehired for the 2017 season despite not formally re-applying.  Testimony from a manager and one of the rehired male SVUAs supported Complainant’s assertion that returning SVUAs simply needed to inform their supervisor of their intent to return.  Complainant’s supervisor averred that Complainant failed to notify him of her intent to return until shortly before the start of the new season, but Complainant maintained she notified him at the end of her previous six-month appointment.  Because of the contradictory testimony regarding whether formal applications were required and whether Complainant timely notified her supervisor of her intentions, the Commission remanded the matter for a hearing.  Harmony E. v Dep’t of the Interior, EEOC Appeal No. 2020001323 (Feb. 9, 2021).

Summary Judgment Reversed.  The Commission vacated the AJ’s summary judgment decision, finding that the AJ failed to address Complainant’s denial of reasonable accommodation allegation.  In finding no discrimination, the AJ conducted a disparate treatment analysis and harassment analysis regarding Complainant’s claims.  Complainant, however, also alleged that the Agency denied him reasonable accommodation when it provided him with a modified job offer which exceeded his medical restrictions and told him that there was no other work available for him.  The Commission found that the record needed further development regarding this claim and such development might involve credibility determinations.  While the record contained statements from management officials indicating Complainant was placed in worker’s compensation leave status because there was no work available to accommodate Complainant’s restrictions, Complainant alleged that his prior modified job accommodated his restrictions.  Further, the record reflected that the Agency thereafter placed Complainant back into his prior modified job and simply removed anything that violated his limitations.  The Commission concluded that Complainant’s denial of reasonable accommodation claim warranted further development regarding whether Complainant was a qualified individual with a disability and whether the Agency failed to provide him with a reasonable accommodation.  Because it was remanding Complainant’s denial of a reasonable accommodation claim, the Commission declined to fragment the complaint by separately addressing the related harassment claim.  Loyd H. v. U.S. Postal Serv., EEOC Appeal No. 2020005113 (Jan. 8, 2021).

Timeliness

Commission Found Adequate Justification to Excuse Delay in Contacting EEO Counselor.  Complainant filed a formal complaint alleging that the Agency terminated his employment on August 20, 2019.  The Agency dismissed the complaint, stating that he did not initiate contact with an EEO Counselor until March 2, 2020, which was beyond the 45-day limitation period.  On appeal, the Commission noted that Complainant provided documentation showing that he contacted the Florida Commission on Human Rights, sent a letter to the Agency’s EEO office nine days after the event which was returned, and tried contacting the Commission’s District Office.  There was no information as to whether Complainant, who was a recent hire, received any training or other information about the EEO complaint process.  It was also not clear as to how Complainant was finally directed to the appropriate EEO office.  Therefore, the Commission was not convinced that Complainant was made aware of where and when he needed to contact an EEO Counselor, and Complainant presented adequate justification to excuse his delay.  Jerrold K. v. Dep’t of Commerce, EEOC Appeal No. 2020005298 (Feb. 9, 2021).

Agency Failed to Provide Evidence to Support Its Dismissal for Untimely EEO Contact.  The Agency dismissed Complainant’s complaint alleging discrimination when he was denied a downgrade for failure to timely contact an EEO Counselor.  The Agency asserted that the denial occurred on March 31, 2020, but Complainant did not initiate EEO contact until June 16, 2020.  On appeal, the Commission reversed the Agency’s decision, noting that Complainant asserted on appeal that the Agency only informed him that he “probably” would not get the position on March 31, and he did not actually know for sure that the Agency denied his request for a downgrade until the position was filled by another employee on May 9, 2020.  The Agency did not provide any documentation confirming the effective date on which the personnel action occurred.  The Commission has held that an agency always bears the burden of obtaining sufficient information to support a reasonable determination as to timeliness.  Therefore, the Agency improperly dismissed Complainant’s complaint.  Ricky S. v. U.S. Postal Serv., EEOC Appeal No. 2021000646 (Jan. 22, 2021).

Commission Found Adequate Justification to Excuse Delay in EEO Contact.  The Agency dismissed Complainant’s complaint alleging discrimination when he was denied a transfer for failure to timely contact an EEO Counselor.  The record showed that while the alleged discrimination occurred on March 30, 2020, and April 12, 2020, Complainant did not contact an EEO Counselor until June 25, 2020, which was beyond the 45-day limitation period.  The Commission noted, however, that Complainant asserted that he was unaware of the time limitation, and the Agency failed to provide documentation showing that Complainant had actual or constructive knowledge of the 45-day time limit.  Specifically, there was no evidence that EEO posters were displayed at the facility where Complainant was employed.  Further, Complainant stated that the pandemic impeded his efforts to pursue the EEO complaint process during the relevant period.  Therefore, the Commission concluded that Complainant presented sufficient justification to excuse his relatively brief delay in seeking EEO counseling.  Reid J. v. U.S. Postal Serv., EEOC Appeal No. 2021001336 (Jan. 22, 2021).

Complainant Timely Contacted EEO Counselor Upon Reasonably Suspecting Discrimination.  The Commission found that the Agency improperly dismissed Complainant’s complaint for untimely EEO Counselor contact.  Complainant alleged that she was subjected to  discriminatory harassment, and raised a series of events that occurred over approximately one year.  It was undisputed that Complainant’s initial EEO Counselor contact was just two days beyond the 45-day time limitation for initiating EEO contact.  Complainant stated, however, that she did not learn about the most recent incident, being displaced from her position and reassigned, until seven days later, explaining that she was on leave when her position was changed.  Complainant noted that she did not learn of this change until after she returned to work.  The Commission accepted Complainant’s explanation and found that she timely contacted the EEO Counselor regarding her discrete claim involving the change in her position within 45 days of suspecting the discrimination.  The Commission concluded that Complainant’s interrelated harassment/hostile work environment claim was also timely.  Sona B. v. U.S. Postal Serv., EEOC Appeal No. 2020004469 (Jan. 5, 2021).

Agency Failed to Meet Burden to Show Complainant Had Actual or Constructive Knowledge of Time Limitation for Contacting EEO Counselor.  Complainant contacted an EEO Counselor on February 19, 2020, and subsequently filed a formal complaint alleging disability discrimination that occurred while he was on detail.  The Agency framed the claims as: (1) verbally abusive and disrespectful behavior on the part of Complainant’s temporary manager (TM) while on detail; (2) TM ridiculed Complainant for his physical disability on September 19, 2019; and (3) Complainant was informed by the Accountability Board (AB) on February 12, 2020, that his harassment claim was not accepted and was being sent back to the “line of business” to address.  The Agency dismissed claims 1 and 2 for untimely EEO Counselor contact, and dismissed claim 3 as being a collateral attack on another proceeding.  On appeal, the Commission found that the Agency had not presented sufficient evidence to support a determination as to timeliness, considering the record was unclear as to whether Complainant was on notice of the applicable time limit for initiating EEO contact.  Specifically, the Agency failed to explain why Complainant knew or reasonably should have known of the 45-day limitation period.  The Commission also stated that a fair reading of the record showed that Complainant’s claims were broader than the three matters identified by the Agency.  The narrative submitted with Complainant’s formal complaint and EEO Counselor’s report show that Complainant raised several additional incidents of harassment, including some that fell within the 45-day period prior to Complainant’s EEO contact.  The Commission noted that, to the extent that the matter concerning the AB’s delay constituted a collateral attack, it could be construed as part of the broader harassment claim.  The Commission remanded the complaint for further processing.  Alton F. v. Dep’t of Transp., EEOC Appeal No. 2020004908 (Nov. 30, 2020), request for reconsideration denied, EEOC Request No. 2021002148 (June 14, 2021).

Complaint Improperly Dismissed Where Postmark Demonstrated Timely EEO Counselor Contact.  Complainant mailed a request for EEO Counseling on February 1, 2019, as demonstrated by the postmark date on the envelope.  The alleged discrimination took place on December 18, 2018.  While the request for counseling was stamped as received on February 5, 2019, the Commission noted that, pursuant to the EEOC’s regulations, it is the postmark that governs in this situation, not the date the mailing was received by the Agency.  Therefore, Complainant’s EEO Counselor contact was timely, and the Agency improperly dismissed the complaint.  Jarvis B. v. U.S. Postal Serv., EEOC Appeal No. 2020004996 (Nov. 30, 2020).

Complainant Timely Initiated EEO Counselor Contact by Contacting Individual Logically Connected to the EEO Process.  Complainant contacted an EEO Counselor by email on March 29, 2018, and subsequently filed a formal complaint, alleging retaliation when certain duties of his were revoked on March 21, 2018, and a manager threatened to terminate him on March 28, 2018.  The EEO Counselor whom Complainant contacted had been the EEO Counselor for Complainant in a prior EEO matter.  In his March 29th email, Complainant raised a new allegation of reprisal.  On or about April 13th, the EEO Counselor told Complainant that he must initiate separate EEO counseling for this new matter, and Complainant contacted the Agency’s Civil Rights Office on May 21st.  An AJ ultimately dismissed the complaint, noting that Complainant failed to seek separate EEO counseling until May 21st, which was after the 45-day limitation period.  On appeal, the Commission reversed the dismissal, finding that by sending the March 29th e-mail, Complainant had both contacted someone logically connected to the EEO process and exhibited an intent to begin the EEO complaint process.  The Commission further noted that the EEO Counselor’s call on April 13th did not change the fact that Complainant’s initial EEO Counselor contact had already taken place on March 29th.  Moreover, the EEO Counselor erred in telling Complainant to initiate contact again; rather, the EEO Counselor should have opened a new EEO case for Complainant or forwarded his email to another EEO Counselor.  Based on the foregoing, the Commission found that Complainant timely initiated EEO Counselor contact, and thus, the Agency’s final action implementing the AJ’s dismissal was reversed, and the matter was remanded for a hearing.  Marquis K. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020004187 (Nov. 23, 2020).

Contact with Agency Human Resources Personnel and Management Does Not Constitute EEO Contact.  The Commission affirmed the Agency’s dismissal of Complainant’s complaint for failure to timely contact an EEO Counselor.  It was undisputed that Complainant made EEO contact more than 45 days after the alleged discriminatory incident.  While Complainant asserted that she contacted Human Resources, high-level managers, and Agency legal advisors within the time limitation, Complainant stated that she was seeking reconsideration of the Agency’s decision to terminate her candidacy for a specific position.  The record showed that she did not seek to begin the EEO process during that time, and the Commission has consistently held that utilizing other agency procedures does not toll the time limit for contacting an EEO Counselor.  The Commission also noted that Complainant did not specify if, or how, she was prevented from making EEO contact by the pandemic.  Therefore, the Commission found no justification for extending the 45-day limitation period.  Takako Y. v. Dep’t of State, EEOC Appeal No. 2021000174 (Jan. 22, 2021).

Complainant Failed to Timely Contact an EEO Counselor After Reasonably Suspecting Discrimination.  The Agency dismissed Complainant’s complaint alleging discrimination when she was not selected for a Health System Specialist position for untimely EEO Counselor contact.  The Commission affirmed the decision on appeal, noting that while the alleged discrimination occurred in December 2019, Complainant did not initiate EEO contact until June 2020, which was beyond the 45-day limitation period.  Complainant claimed she did not know of her non-selection until her status was updated to “not hired” on the USAJobs website on June 24, 2020.  The Commission found, however, that Complainant had, or should have had, a reasonable suspicion of discrimination more than 45 days prior to her EEO contact.  Specifically, Complainant sent an email to the selecting official in December 2019, indicating she understood a tentative selection had been made, and asking for feedback on her interview.  The record also contains the selecting official’s December 19, 2019 response informing Complainant that the selection committee had made a decision.  Complainant also sent an email to an individual in the Agency’s Office of Inspector General seeking information as to why she was not hired.  Therefore, the Commission concluded that the evidence of record established that Complainant knew she had not been selected for the position more than 45 days prior to her EEO contact.  Glynda S. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021000489 (Jan. 14, 2021)Additional Decisions Discussing Complainant’s Reasonable Suspicion of Discrimination Include:  Soo C. v. Dep’t of Justice, EEOC Appeal No. 2020005492 (Nov. 30, 2020) (the Commission rejected Complainant’s assertion that she did not learn of the discrimination until she became aware that a former male colleague who resigned in the face of pending adverse actions, did not have any derogatory comments on his personnel form.  The Commission noted that Complainant unequivocally received a copy of her personnel form nearly two months earlier, recognized the negative implications of the language contained therein upon receipt, and months earlier, had taken issue with the performance improvement plan as discriminatory, retaliatory, and abusive.  The additional knowledge of a possible comparator only added additional evidence to support her claim.  Therefore, the complaint was properly dismissed).

Complaint Properly Dismissed for Untimely EEO Counselor Contact.  The Commission affirmed the Agency’s dismissal of Complainant’s complaint for untimely EEO Counselor contact.  Specifically, while the alleged discrimination occurred on June 8, 2019, the effective date on which Bulk Mail Entry Clerk positions were abolished, Complainant did not contact an EEO Counselor until April 2020.  According to the record, Complainant specified June 8, 2019, as the date of the alleged discrimination in her formal complaint.  The Commission rejected Complainant’s assertion that the focus of her complaint was a letter she received in March 2020, indicating the positions were abolished due to an invalid position.  The Commission noted that the EEO Counselor’s report specifically referenced a May 2019 letter to all Bulk Mail Entry Clerks informing them that their bids would be abolished effective June 8, 2019.  Therefore, Complainant should have reasonably suspected discrimination at the time her position was abolished.  Complainant’s reference to the 2020 letter was not a separate claim, but rather additional information in support of her claim regarding the decision to abolish her position.  Bell S. v. U.S. Postal Serv., EEOC Appeal No. 2020005007 (Jan. 11, 2021).

Agency Failed to Meet Burden to Establish Complaint Untimely Filed.  The Commission reversed the Agency’s dismissal of Complainant’s complaint, finding that the Agency failed to meet its burden to establish that Complainant failed to timely file her formal complaint.  Specifically, the record was insufficient to establish when Complainant and her representative received the Notice of Right to File.  Although a Postal Service tracking document indicated that the letter containing the Notice was left at Complainant’s front door or on her porch, there was no proof that Complainant actually received it, and the record also contained sufficient evidence to support Complainant’s claim that neither she nor her representative received the letter.  The Commission noted that where there is an issue of timeliness, the agency always bears the burden of obtaining sufficient information to support a reasoned determination on the issue.  Karin C. v. U.S. Postal Serv., EEOC Appeal No. 2021000398 (Feb. 11, 2021).  Additional Decisions Addressing Issue of Receipt by Complainant Include:  Danita S. v. Dep’t of Educ., EEOC Appeal No. 2021000774 (Feb. 2, 2021) (the Commission found sufficient justification to excuse Complainant’s brief delay in filing her complaint.  While UPS tracking documentation showed that a Notice of Right to File a Complaint was left at Complainant’s front door, there was no evidence to show that the package was personally received by Complainant or anyone at her residence on September 2, 2020, as the Agency claimed.  Complainant asserted that she received the Notice on September 4, 2020.  Given the lack of evidence showing that Complainant or anyone at her residence was aware of the delivery of the package, the Commission exercised its discretion and excused Complainant’s one-day delay in filing her complaint);  Delphia F. v. Dep’t of Housing & Urban Dev., EEOC Appeal No. 2020004684 (Nov. 30, 2020) (the Agency did not provide adequate mail confirmation to support a determination as to when Complainant received the Notice of Right to File a Formal Complaint.  The tracking confirmation did not show that the Notice was delivered to Complainant’s home address on the date in question; rather, it simply showed delivery to a specific town.  Further, although the record included an email from Complainant’s non-legal representative indicating that Complainant received the Notice on a certain date, Complainant expressly denied this, asserting that she did not receive the Notice until a later date.  Therefore, there was insufficient evidence in the record from which to conclude the formal complaint had been untimely filed).

Complaint Postmarked within 15-Day Filing Period Was Timely.  Complainant’s attorney received the Notice of Right to File a Formal Complaint on December 4, 2017.  The record included copies of a certified mail receipt showing the formal complaint was mailed to the Agency on December 18, 2017, which was within the 15-day limitation period.  The Commission’s regulations provide that a document is deemed timely if it is postmarked before the expiration of the applicable filing period.  Therefore, the Commission concluded that Complainant’s complaint was timely filed.  While the Agency asserted that it never received the complaint that was mailed by Complainant’s attorney, the Agency’s receipt was irrelevant to the determination of timeliness where there was a legible postmark verifying the timely mailing of the complaint.  Denise W. v. Dep’t of Justice, EEOC Appeal No. 2021000952 (Feb. 9, 2021).

Complaint Timely Filed within 15 Days of Attorney’s Receipt of Notice of Right to File.  The Commission reversed the Agency’s dismissal of Complainant’s complaint on grounds of untimeliness.  While the record showed that Complainant received the Notice of Right to File a Formal Complaint on May 16, 2020, her attorney asserted that she did not receive the notice until two days later, and the Agency failed to provide any evidence to the contrary.  The Commission’s regulations provide that, when a complainant designates an attorney representative, the time frames are computed from the attorney’s receipt.  Therefore, Complainant’s complaint was timely filed on June 2, 2020.  Sandra N. v. U.S. Postal Serv., EEOC Appeal No. 2021000558 (Feb. 2, 2021).