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Digest Seal The DIGEST Of Equal Employment Opportunity Law


Fiscal Year 2019, Volume 1

Office of Federal Operations

December 2018


 

ANNUAL COMPILATION ISSUE

 

Selected Notable EEOC Decisions from FY 2018 on:

Attorney's Fees 

Class Complaints

Compensatory Damages

Complaint Processing 

Dismissals 

Findings on the Merits

Under the ADEA

Under the EPA

Under the Rehabilitation Act

Under Title VII

Under Multiple Bases

Retaliation

Mixed Motive

Remedies

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
Dexter Brooks, Director OFO's Federal Sector Programs, &
Acting Assistant Director, OFO's Special Operations Division

Digest Staff
Editor: Robyn Dupont
Writers: Craig Barkley, Robyn Dupont, Maria Kaplan, Briana Odom, Joseph Popiden, Navarro Pulley, Alex Romero, Aysia Stockton, Laurence Thompson

The Digest is available online through EEOC's homepage at www.eeoc.gov/federal/digest/index.cfm.

(Volume 1 of the Fiscal Year 2019 Digest contains the EEOC's Annual Compilation Issue - a sampling of federal sector decision summaries of note from the prior fiscal year (2018), as selected by Digest staff from among the decisions issued by EEOC during that fiscal year. Some summaries that also appeared in previous issues of the Digest are reprinted here for the convenience of readers. The summaries are neither intended to be exhaustive or definitive as to the selected subject matter, nor are they to be given the legal weight of case law in citations. For summaries of decisions involving claims of harassment, see "Findings on the Merits" by statute, as well as "Under Multiple Bases."

(The Commission redacts Complainants' names when it publishes decisions, and all federal sector appellate decisions issued for publication use a randomly generated name as a substitute for the name of the complainant. This randomly generated first name and last initial is assigned using a computer program that selects names from a list of pseudonyms and bears no relation to the complainant's actual name. This change was made to address privacy concerns and to ensure consistency with the Commission's approach in the rest of its enforcement work and the investigations of complaints.)

SELECTED EEOC DECISIONS

Attorney's Fees

Commission Affirmed Agency's Reduction in Requested Attorney's Fees. Complainant's attorney submitted a fee petition requesting $23,012.50 in attorney's fees for work related to Complainant's previous appeal. The Agency did not challenge the hourly rate, but did challenge numerous entries as excessive, duplicative, and/or clerical in nature. The Commission agreed with the Agency that several entries appeared to be excessive or duplicative. For example, Complainant's attorney claimed 6.5 hours over two days for "receipt/review Agency brief on FAD," 6.75 hours for a two-page motion for an extension of time, and 17.5 hours over the course of five days for work on "draft/research brief failure to imp[lement] FAD." Furthermore, Complainant's attorney claimed 25 hours for work performed on the appeal response brief which was a near-exact duplicate of a brief previously submitted to the Agency. Complainant's attorney also claimed 5.5 hours for unsuccessful motions to strike. The Commission noted that in computing attorney's fees, time spent on clearly meritless arguments or motions, and time spent on unnecessarily uncooperative or contentious conduct may be deducted. Based on the above, the Commission found support for the Agency's request to apply a 50% across-the-board reduction of the remaining disputed fees. Accordingly, the Commission found that Complainant was entitled to $8,706.50 in attorney's fees. Ileana H. v. Dep't of Justice, EEOC Appeal No. 0120180059 (Sept. 28, 2018).

Commission Modified AJ's Award of Attorney's Fees Based on Laffey Matrix. An Administrative Judge (AJ) issued a decision awarding attorney's fees following the issuance of a default judgment against the Agency and determination that Complainant was entitled to relief. The Commission modified the award on appeal. The Commission agreed with the AJ that Complainant was not entitled to fees for work completed prior to the filing of her complaint with the exception of the time spent determining whether to represent Complainant. The Commission stated, however, that the AJ erred in excluding her attorney's years of employment discrimination law experience when considering whether Complainant's attorney was entitled to request the Laffey matrix be applied to his hourly rate. The Commission has specifically held that the Laffey matrix is based on time out of law school rather than time spent in a specific legal field, and Complainant's attorney had more than 20 years of experience working in the Agency's Office of Civil Rights prior to entering private practice. Therefore, Complainant's attorney was entitled to the requested Laffey rates based on his years of experience since graduating from law school. Jaunita W. v. Dep't of Agric., EEOC Appeal No. 0120161304 (June 15, 2018), request for reconsideration denied EEOC Request No. 0520180510 (Sept. 26, 2018) (a summary of the Commission's decision regarding compensatory damages can be found below - Ed.)

Commission Affirmed AJ's Award of Attorney's Fees. An AJ issued a decision finding that the Agency retaliated against Complainant when it reassigned him, but found no discrimination with regard to his other claims. The AJ subsequently awarded Complainant attorney's fees, reducing the amount requested by 40% based upon Complainant's limited success on his claims; numerous instances of excessive, duplicative, or unreasonable time claimed in the fee petition; and the fact that the retaliation claim was not a complex or novel issue. The AJ also reduced the attorney's travel time by 50% of the regular rate charged. The Commission affirmed the award on appeal, stating that the evidence showed Complainant was only successful with regard to one of his claims and attorney's fees are not recoverable for work on unsuccessful claims. The Commission also noted that the unsuccessful claims were not so inextricably intertwined with the one successful claim that Complainant would be entitled to a full award of fees. The Commission agreed that the AJ's reduction in travel time was consistent with the Commission's longstanding case law and guidance. Ramon L. v. Dep't of Justice, EEOC Appeal No. 0120161017 (May 29, 2018).

Commission Modified Agency's Award of Attorney's Fees. The Agency found that the amount of time requested in the petition for attorney's fees was excessive, and reduced the number of hours to 10 when making its award. On appeal, the Commission modified the award. The Commission noted that while an attorney is not required to provide great detail explaining each minute expended, the attorney does have the burden of submitting sufficiently detailed and contemporaneous time records to ensure the time spent was accurately recorded. Further, Complainant is only entitled to an award for time reasonably expended by the attorney. The Commission agreed with Complainant's assertion that the attorney, who was retained in 2017, needed to understand the details of the case, and, therefore, the 20.7 hours spent reviewing case documents and performing legal research were reasonable. The Commission, however, reduced the time claimed for preparing the statement of damages, notice of appearance, certificate of service, and attorney affidavit by 5 hours. The Commission noted that the statement of damages contained errors in wording, as well as inaccuracies in the law, and did not find the almost 9 hours claimed to be reasonable. Therefore, the Commission modified the award of attorney's fees to reflect a total of 23.6 hours. Harris K. v. Dep't of Homeland Sec., EEOC Appeal No. 0120180595 (Apr. 24, 2018). (a summary of the Commission's decision regarding compensatory damages can be found below - Ed.)

Commission Affirmed AJ's Award of Attorney's Fees Based on Local Hourly Rate. An AJ found that Complainants were subjected to sexual harassment for which the Agency was liable, and issued an award of attorney's fees. On appeal, the Commission affirmed the AJ's award of fees based upon the prevailing hourly rate in Tennessee where the complaint arose. According to the record, Complainants initially retained a local Tennessee attorney to handle the case, but later retained a firm in the Washington D.C. area. The Agency provided evidence of the availability of local attorneys with relevant experience that included listings of attorneys practicing employment discrimination law in Tennessee. Based on evidence presented by the Agency, the Commission agreed with the AJ that Complainants could have found alternative counsel in the Tennessee area with suitable experience, and found that the AJ's Order Awarding Fees and Costs was appropriate and reasonable. Sallie M. & Alexandria P. v. U.S. Postal Serv., EEOC Appeal Nos. 0120170599 & 0120170600 (Apr. 10, 2018), EEOC Request Nos. 0520180407 & 0520180408 (Oct. 25, 2018) (affirming the appellate decision's finding regarding attorney's hourly rate, but finding time billed for work by law clerks was compensable at the same rate as paralegals, and awarding additional $1,000 for work on the appeal and request for reconsideration).

Class Complaints

Commission Affirmed AJ's Denial of Class Certification. Complainant filed a formal complaint alleging that the Agency engaged in a pattern and practice of unlawful discrimination against minority employees, retaliated against minority employees, and maintained policies and practices that had a disparate impact on these employees. On appeal, the Commission affirmed the AJ's decision denying class certification. The AJ concluded that Complainant did nothing more than raise "broad, across-the board allegations" regarding a variety of personnel practices. Complainant failed to offer any specifics or evidence to establish even a minimal basis to infer that the practices were the result of discrimination. The Commission concurred with the AJ that Complainant failed to meet the requirement of commonality because he could not show that he suffered the same harm as other class members. Complainant failed to provide affidavits or anecdotal evidence in support of his claims and did not identify an Agency practice or procedure that caused harm to a group of employees. The Commission also agreed with the AJ that Complainant failed to establish that his individual claim was typical of the class as a whole. While Complainant listed four other employees who he believed were adversely affected, he provided no information to establish typicality, and was unable to show that each allegation happened to every alleged class member. Shad L. v. Consumer Fin. Prot. Bureau, EEOC Appeal No. 0120162565 (June 15, 2018); see also Eura B. v. Consumer Fin. Prot. Bureau, EEOC Appeal No. 0120161851 (June 15, 2018) (finding that the AJ properly denied class certification because Complainant failed to establish the elements of commonality and typicality, as well as adequacy of representation).

Commission Affirmed AJ's Denial of Class Certification. The Commission affirmed the AJ's denial of class certification on a claim of class-wide discrimination in the promotion of Hispanic employees. The Commission found that the class agent failed to identify a policy or practice that had a nationwide effect on Hispanic employees, so the class complaint lacked commonality and typicality. Complainant made only conclusory allegations and presented no evidence from which the Commission could infer the operation of an overriding policy or practice of discrimination. The Commission also agreed with the AJ's decision not to draw an adverse inference against the Agency because it failed to maintain and provide the class agent promotion applications and Best Qualified Lists categorized by national origin and broken down by each applicant's demographic information. The Commission does not require agencies to keep such records, only aggregate, non-identifiable demographic data for promotions. Casie S., et. al. v. Dep't of Housing & Urban Dev., EEOC Appeal No. 0120100672 (May 18, 2018).

Commission Affirmed AJ's Denial of Class Certification. The Commission affirmed the AJ's denial of class certification regarding the Agency's award system for supervisory employees. The Commission found the purported class failed to meet the requirement of commonality because recommendations for awards came from class members' supervisors, not from the agency Director in charge of awards and the class failed to show the initial recommendations were overturned against members of the class. The Commission also found some class members were second-level supervisors who were also recommending officials and were members of the board that reviewed awards. Thus, the class members were potentially both victims and perpetrators of discrimination, creating a conflict of interest among class members. The class also failed to meet the requirement of typicality because the class agent's claim included claims against supervisors who were also class members and therefore her interests were contrary to the interests of other members of the class. Aleshia C., et. al. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120132664 (May 18, 2018); request for reconsideration denied, EEOC Request No. 0520180473 (Sept. 14, 2018).

Commission Affirmed Administrative Judge's Conditional Certification of Class. An AJ conditionally certified a class of all hearing-impaired employees in a particular region who were denied a qualified sign language interpreter due to the Agency's decision to decentralize the system for providing and funding such services. The AJ determined that the class met the requirements of commonality, typicality, and numerosity, but did not show adequacy of representation. The AJ stated that the class may present further evidence that the Class Agent had retained counsel with the necessary specialized experience, training, professional competence, and resources. The Commission affirmed the AJ's decision on appeal. Contrary to the Agency's assertion, the Class Agent was not required to prove that each potential class member had a viable claim, and the Commission agreed with the AJ that the Class Agent showed that there were 40 hearing-impaired employees who were possibly affected by the Agency decision to decentralize interpreting services. Further, the Commission rejected the Agency's argument that there was no longer a common administrator, process or policy for providing interpreting services. The class alleged that, but for the Agency's policy change, the class members would not have experienced a systemic lack of consistent, qualified interpreters. The Commission agreed with the AJ that, assuming the Class Agent could establish that class counsel has the requisite specialized legal experience, the class met the requirements for certification. Tessa L. v. Dep't of Agric., EEOC Appeal No. 0720170021 (Nov. 9, 2017).

Commission Affirmed AJ's Denial of Class Certification. Complainant filed a formal complaint alleging that the Agency discriminated against African-American employees when it did not select them for the Associate Supervisor Program. The AJ found that the complaint did not meet any of the criteria for class certification, and the Commission affirmed AJ's decision on appeal. The Commission found that Complainant failed to meet the commonality requirement because he had already obtained the relief the class was seeking and did not suffer the same harm as other class members. Specifically, Complainant had previously been admitted to, and completed, the program so his claims were not common to the class. In addition, Complainant's assertion that "some members" of the potential class were treated differently than a white female led to ambiguity over whether the specific harm suffered by the class members was based on race or sex. The Commission further found the class failed for lack of numerosity, because only three of the purported class members were disqualified for attendance issues as alleged in the complaint, and Complainant provided no evidence to support his assertion that the class could include a far larger number of individuals. Even assuming the class approximated 33 members, the record showed that all purported class members were from the same geographic area so that joinder of claims was not impracticable. Finally, the Commission found that Complainant failed to show adequate representation as he was not an attorney, failed to show an attorney was willing to take the case, and failed to show he had the necessary skills and experience to adequately and fairly protect the interests of the class. The Commission also found that Complainant's individual complaint was properly dismissed. Joel P. v. U. S. Postal Serv., EEOC Appeal No. 0120120181 (Oct. 13, 2017).

Compensatory Damages

(The decisions below are a selected sampling of recent awards of compensatory damages. See, also, "Findings on the Merits," and "Remedies" this issue)

Commission Affirmed AJ's Award of $185,000 in Damages. The Commission affirmed the AJ's award of $185,000 in compensatory damages. The AJ extensively justified her award by referencing specific events comprising a hostile work environment (including harassing phone calls and abusive treatment by certain officials) that lasted for years. Also, the AJ found credible Complainant's testimony that she experienced humiliation, embarrassment, uncontrollable crying, emotional distress, stress, anguish, sadness, anger, loss of interest in doing things she previously enjoyed, and damage to her career, reputation, professionalism and integrity. Dionne W. v. Dep't of the Air Force, EEOC Appeal No. 0720150040 (Mar. 27, 2018).

Commission Awarded Complainant $150,000 in Non-Pecuniary Damages & Found No Estoppel Due to Complainant's Bankruptcy Filing. The Commission previously found that the Agency sexually harassed Complainant and later retaliated against her by involuntarily reassigning her. The Agency subsequently determined that Complainant was judicially estopped from pursuing her claim for compensatory damages because she filed for bankruptcy and such interest lies with the bankruptcy trustee. The Commission disagreed with the Agency's assertions, noting the Commission's public policy interest of enforcing anti-discrimination laws and remedying employment discrimination. Thus, the Commission awarded $150,000 in non-pecuniary damages and $3,400.97 in past pecuniary damages. Complainant experienced panic attacks, chest pains, heart palpitations, dizziness, humiliation, insomnia, anxiety, depression, fear of termination, migraines, miscarriage, hair loss, acne, loss of enjoyment of activities, weight gain, and financial hardship. Her mother, sister and friends provided statements supporting Complainant's claims, and noted that Complainant did not experience depression before the unlawful harassment. The witnesses also noted that Complaint's work stress resulted in weight gain, acne leaving scars, and significant thinning and hair loss. Amina W. v. Dep't of Educ., EEOC Appeal No. 0120150644 (Apr. 19, 2018).

Commission Increased Award of Non-Pecuniary Damages to $150,000 & Found No Estoppel Due to Complainant's Bankruptcy Filing. The Commission previously found that the Agency discriminated against Complainant based on race when it terminated his employment, and ordered the Agency, among other things, to investigate his claim for damages. The Agency subsequently issued a decision finding that Complainant was judicially estopped from pursuing a claim for compensatory damages because he failed to properly disclose his EEO complaint in his bankruptcy proceedings. In the alternative, the Agency stated that, assuming Complainant was not judicially estopped, he should be awarded $20,000 in non-pecuniary damages. On appeal, the Commission initially noted that it has a public policy interest in enforcing antidiscrimination laws and remedying discrimination, and, therefore, the Commission is not judicially estopped from seeking victim-specific relief such as compensatory damages, even if Complainant himself is foreclosed from obtaining such relief. The Commission specifically found the Agency liable for Complainant's discriminatory termination and ordered the Agency to remedy the discrimination. With regard to the award of non-pecuniary damages, Complainant averred that he endured "unimaginable hardship" due to his termination which caused a great deal of emotional distress and sleepless nights. He lost his home to foreclosure, had to file for bankruptcy, and borrowed money from his family. Complainant stated the anxiety and hardship affected his marriage and he was unable to provide for his family leaving him humiliated, disappointed, anxious and stressed. He sought help from the Employee Assistance Program. The Commission stated that, given the nature of the Agency's behavior, Complainant's own statements along with the financial hardship he suffered due to his termination supported an award of $150,000. The Commission agreed with the Agency that Complainant did not show evidence of entitlement to pecuniary damages for the foreclosure of his home. Taylor G. v. U.S. Postal Serv., EEOC Appeal No. 0120120164 (Apr. 17, 2018).

Commission Affirmed Agency's Award of $125,000. The AJ issued a decision finding that Complainant was subjected a hostile work environment based on her sex and disability, including repeated unwanted touching, as well as unwanted demeaning statements and criticism of her work by the Lead Manager of Distribution Operations. The AJ awarded Complainant $125,000 in non-pecuniary damages, and $6,000 in future pecuniary damages for one year of counseling. The Commission affirmed the AJ's award on appeal. The hostile work environment caused Complainant to suffer from migraines, panic attacks, and vertigo. Her diabetes was exacerbated, becoming "unmanageable." Moreover, Complainant had difficulty performing her job duties as the stress exacerbated her memory and concentration issues. The AJ found that although Complainant may have been fragile prior to the harassment, she was functional during that time. Accordingly, considering the nature, duration, and severity of Complainant's emotional harm and damage awards reached in comparable cases, the Commission found the AJ's award of $125,000 in non-pecuniary compensatory damages was proper. Complainant did not challenge the award of future pecuniary damages on appeal. Edie R. v. U.S. Postal Serv., EEOC Appeal No. 0120160784 (May 10, 2018).

Commission Increased Agency's Award of Compensatory Damages to $125,000. The Agency found that Complainant was discriminated against on the bases of disability and reprisal for prior protected EEO activity under the Rehabilitation Act when the Agency subjected her to disparate treatment, a hostile work environment and denied reasonable accommodation. The Agency awarded Complainant, among other things, $100,000 in non-pecuniary compensatory damages. The Commission increased the award to $125,000 on appeal. The undisputed evidence showed that, as a result of the Agency's discrimination, Complainant experienced depression, anxiety, sleeplessness, suicidal thoughts, exhaustion, mood disturbances and muscular tension. The record also revealed that Complainant suffered from physical pain due to the Agency's denial of accommodation, which was not mentioned in the Agency's decision on compensatory damages. The Commission found that an award of $125,000 was a reasonable amount to account for the pain and discomfort Complainant experienced, and was not excessive in comparison to similar cases. The Commission noted that the Agency did not award Complainant any money for loss of pay associated with the discrimination, and instructed the Agency to determine if there was any time period before or after the acceptance of Complainant's OWCP claim when Complainant was able and willing to work with accommodation. Donita B. v. Dep't of Veterans Affairs, EEOC Appeal No 0120160410 (Oct. 18, 2017).

Commission Increased Award of Non-Pecuniary Damages to $110,000. In a prior decision, the Commission found that the Agency retaliated against Complainant when it terminated her. The Agency subsequently awarded Complainant $10,000 in damages and the Commission increased the award on appeal. In her appeal, Complainant stated that she experienced mental health issues but could not afford professional help. Complainant stated that she should receive pecuniary back pay damages because her current job paid significantly less, forcing her to live on her savings and retirement withdrawals. Complainant noted that she lived in a small town where everyone knows everyone else's business and she was humiliated, and continued to be impacted by her discriminatory termination. Complainant's sister and mother corroborated her contentions, stating that Complainant changed following her termination and was "a completely different person." Complainant's family members also noted that she lost her sense of identity, the ability to trust herself, and her self-esteem. Complainant's former supervisor and friend stated that Complainant experienced emotional pain and humiliation over the years since her termination. The Commission rejected Complainant's request for pecuniary damages due to her lack of supporting documentation. After considering awards in similar cases and other relevant factors, the Commission nonetheless found the Agency's $10,000 award insufficient to remedy the harm that its actions caused Complainant. Instead, the Commission found $110,000 to be a reasonable award of nonpecuniary compensatory damages for the proven emotional and psychological distress Complainant suffered as a direct result of the Agency's retaliation. Nia G. v. Dep't of Homeland Sec., EEOC Appeal No. 0120160716 (Feb. 6, 2018).

Commission Increased Award of Nonpecuniary Damages to $100,000 & Increased Award of Pecuniary Damages. The Commission increased the Agency's award of nonpecuniary compensatory damages from $60,000 to $100,000 after previously finding that the Agency was liable for subjecting Complainant to a discriminatory and retaliatory hostile work environment. Complainant stated that she experienced severe emotional distress and humiliation by the harasser's actions which made her relive past abuse she suffered as a child. She also suffered nightmares, and developed stomach ulcers, anxiety, irritable bowel syndrome, and acid reflux. Family members and friends confirmed Complainant's health deteriorated as a result of the harassment and her ex-husband stated that their marriage became strained and Complainant withdrew from family and church activities. Complainant's son stated that when Complainant returned from work she would cry and she suffered from anxiety. Other friends and family described Complainant as fearful, stressed, and hyper-vigilant. In addition, the Commission modified the award of pecuniary damages from approximately $3,000 to over $107,000 to cover out-of-pocket expenses based on the evidence from health care providers that confirmed Complainant's condition including PTSD, anxiety, stress, sleeplessness and hypertension that was directly and proximately exacerbated by the discrimination and harassment. The amount was not reduced by what insurance covered, under the collateral source rule. The Commission denied compensation for a health and fitness program recommended by Complainant's doctor because there was an insufficient nexus between Complaint's condition and the program. Stephanie A. v. Dep't of Def., EEOC Appeal No. 0120161052 (Jun. 5, 2018).

Commission Increased Award of Non-Pecuniary Damages to $100,000 & Increased Award of Past & Future Pecuniary Damages. The Agency awarded Complainant $60,000 in non-pecuniary compensatory damages, $454.80 in past pecuniary damages, and $89,442.62 for future pecuniary damages. On appeal, the Commission agreed with the Agency that Complainant was entitled to $454.80 for documented costs for health insurance, and that Complainant was not entitled to reimbursement for parking expenses and wear and tear on her car as she failed to document those expenses. The Commission also found that while Complainant failed to sufficiently establish that she incurred most of the claimed expenses, she did show that she was entitled to additional reimbursement for costs associated with her visits to a psychiatrist and a Licensed Clinical Social Worker. The Commission increased the award of non-pecuniary damages to $100,000, finding that amount was more appropriate and consistent with amounts awarded in similar cases. Complainant experienced insomnia and feelings of dread and isolation. She developed Post Traumatic Stress Disorder and required ongoing medication and therapy sessions. Medical statements indicated that she experienced emotional turmoil for several years and was diagnosed with major depression and recurrent, generalized anxiety disorder. The Agency found that Complainant sufficiently documented her estimate of future pecuniary damages related to treatment she was expected to incur, but reduced the damages to one third of the requested amount due to pre-existing mental health issues that pre-dated the discrimination. The Commission disagreed with the Agency's reduction, stating that the record reflected that Complainant's future treatment was significantly related to the Agency's actions. The Commission noted that documentation showed Complainant had experienced other stressors which she discussed with her medical professionals, and reduced the award of future pecuniary damages by one-half. Margaret L. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120150582 (Apr. 17, 2018).

Commission Increased Award of Non-Pecuniary Damages to $75,000. The Agency found that Complainant was subjected to sexual harassment and subsequently awarded her $25,000 in non-pecuniary compensatory damages. The Commission increased the award to $75,000 on appeal, finding that amount was reasonable based upon the proven emotional and psychological distress Complainant suffered as a direct result of the Agency's discriminatory conduct. Complainant stated that she was humiliated, isolated, depressed, irritable, and hopeless. She had difficulty sleeping, withdrew from others and her normal activities, lacked energy, and experienced headaches. Complainant indicated that her condition lasted at least two years and provided statements from her father and a friend to support her claim. Complainant also provided progress notes from five psychotherapy visits. Enriqueta T. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160638 (May 31, 2018).

Commission Affirmed AJ's Award of $75,000 in Damages But Modified Interest on Award. After finding that the Agency subjected Complainant to a hostile work environment based on his disability, the AJ awarded Complainant $75,000 in non-pecuniary compensatory damages with interest. The Commission affirmed the AJ's award of $75,000, finding the amount was appropriate and not monstrously excessive given the nature, severity and duration of the harm complainant suffered. Complainant, without contradiction by the Agency, testified that during the 10-day period he was harassed, he was shunned by some managers, and he continued to suffer from the effects of the harassment, including emotional distress, anxiety, PTSD, depression, humiliation, and embarrassment. Complainant also testified that he took sick leave to alleviate the pressure he was under, avoided social events, and at the time of the hearing, which was 3 years after the harassment, he still was struggling with the trauma. The Commission modified the AJ's award of interest, noting that interest is only available to compensate a complainant for a delay beyond the time an award of damages is due. Therefore, the Agency was not liable for interest unless it delayed payment of the award of damages beyond the time frame specified in the Commission's order. Ricardo K. v. Dep't of Justice, EEOC Appeal No. 0720170030 (Oct. 12, 2017).

Commission Increased Agency's Award of Non-Pecuniary Damages to $70,000. After finding it violated the Rehabilitation Act when it excessively delayed Complainant's request for reasonable accommodation, the Agency awarded Complainant $25,000 in non-pecuniary compensatory damages. The Commission increased the award to $70,000 on appeal. Affidavits and documents in the record showed that Complainant experienced an exacerbation of her medical condition due to the two-year delay in providing her with reasonable accommodation. In addition, Complainant became depressed, suffered emotionally, and experienced physical changes because of the discrimination. The Commission agreed with the Agency that Complainant failed to support her claim for past or future pecuniary damages. Mardell B. v. Soc. Sec. Admin., EEOC Appeal No. 0120172035 (Oct. 31, 2017).

Commission Increased Award of Damages to $60,000. In a prior decision, the Commission found that the Agency subjected Complainant to racial discrimination when it did not select him for three positions, and ordered the Agency, among other things, to investigate Complainant's claim for compensatory damages. On appeal from the Agency's decision on damages, the Commission increased the award of non-pecuniary damages to $60,000, finding that the Agency's award of $30,000 did not provide sufficient compensation for the harm suffered. Complainant indicated that he experienced anxiety attacks, mood swings, nightmares, insomnia, difficulty concentrating, loss of self-esteem, alcohol dependency, weight gain, paranoia, and diminishment of self-worth. He also experienced an exacerbation of his pre-existing conditions such as hypertension and severe back pain. The Commission affirmed the Agency's denial of pecuniary damages, noting that Complainant did not establish a causal connection between the damages claimed and the discriminatory actions. Pasquale D. v. Dep't of Homeland Sec., EEOC Appeal No. 0120160892 (Apr. 12, 2018).

Commission Increased Award of Compensatory Damages to $50,000. The Commission previously determined that Complainant was discriminated against when the Agency failed to grant him a medical clearance based on its "worldwide availability" requirement. Following a supplemental investigation, the Agency awarded Complainant $5,000 in non-pecuniary compensatory damages noting that Complainant did not provide any medical evidence to support his claim. The Commission increased the award to $50,000 on appeal. Complainant stated that he became despondent, depressed, and reclusive because of the Agency's discriminatory actions. Complainant experienced sleeplessness, crying spells, weight loss, anger, and humiliation. Complainant's husband and friends submitted statements supporting his claim. The Commission determined that an award of $50,000 in nonpecuniary compensatory damages was more appropriate given the nature, severity and duration of the distress Complainant experienced as a direct result of the discrimination. Harvey D. v. Dep't of State, EEOC Appeal No. 0120171079 (Aug. 23, 2018).

Commission Increased Award of Non-Pecuniary Damages to $50,000. The Commission previously found that Complainant was subjected to sexual harassment by her supervisor and ordered the Agency, among other things, to investigate Complainant's claim for damages. The Agency awarded Complainant $20,000 in non-pecuniary damages, and the Commission increased the award to $50,000 on appeal. The Commission noted that, more likely than not, the sexual harassment was not the only factor that caused Complainant's depression and anxiety. Complainant's brother was executed in the Middle East, and Complainant also noted that her co-workers questioned her reputation because of the way she dressed. Nevertheless, the Commission found that the sexual harassment was a significant reason for the ridicule Complainant experienced, as well as her depression, poor self-esteem, irritability, anger, difficulty sleeping, exhaustion, weight gain, and thoughts of suicide. The Commission noted that, seven months after the harassment ceased Complainant was able to form a romantic relationship, and she continued working at the Agency. Considering all of these factors, the Commission concluded that Complainant was entitled to an award of $50,000 in non-pecuniary damages. The Commission concurred with the Agency that Complainant failed to prove her claim for pecuniary damages. Blanca B. v. Dep't of State, EEOC Appeal No. 0120171031 (Aug. 16, 2018).

Commission Increased Award of Non-Pecuniary Damages to $50,000. An AJ found that the Agency discriminated against Complainant when it restricted the amount of leave she could use under the Family Medical Leave Act and failed to accommodate her. The AJ awarded Complainant $7,500 in non-pecuniary compensatory damages, and the Commission increased the award to $50,000 on appeal. The Agency denied Complainant reasonable accommodation for over one year, and Complainant was forced to work through considerable pain and discomfort as a result. Complainant also experienced problems sleeping, headaches, disengagement from family, and higher blood pressure. Her union steward described Complainant's physical deterioration, including a noticeable loss of weight, dark circles around her eyes, and a "glassed-over look." The Commission found that an award of $50,000 was more appropriate and consistent with other cases. Danita P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120172149 (July 18, 2018), request for reconsideration denied, EEOC Request No. 0520180560 (Feb. 13, 2019).

Commission Affirmed AJ's Award of $50,000 in Damages. Following a hearing, the AJ issued a decision finding that Complainant was subjected to a discriminatory nonselection, but failed to prove she was subjected to a hostile work environment. The AJ found Complainant was entitled to $50,000 in non-pecuniary compensatory damages for the physical symptoms she suffered because of the Agency's selection process, and the Commission affirmed the AJ's award on appeal. Complainant suffered headaches, nerve damage, stress, facial swelling, hives, and numbness. Complainant submitted medical documentation showing that, following the discrimination, she began to experience pain, muscle spasms, nerve pain, hives, and facial swelling, and was placed on medication and physical therapy for these symptoms. She also became socially withdrawn. Alena C. v. Dep't of Veteran Affairs., EEOC Appeal No. 0720180003 (Apr. 12, 2018), request for reconsideration denied, EEOC Request No. 0520180409 (Oct. 25, 2018).

Commission Increased Agency's Award of Damages to $50,000. The Agency found that it discriminated against Complainant based on disability when it failed to reasonably accommodate his condition, and awarded him $5,000 in non-pecuniary compensatory damages. The Commission increased the award to $50,000 on appeal, stating that while the Agency was not responsible for Complainant's pre-existing conditions, it was responsible for aggravation to those conditions caused by the discrimination. Complainant stated that he suffered stress and emotional harm on a daily basis, and the discrimination caused him to experience nightmares, stomach pain, panic attacks, weight gain, and anger. Complainant stated that he withdrew from his wife and children, and his wife provided a statement to corroborate Complainant's contentions. A former co-worker also provided a corroborating statement. The Commission concluded that $50,000 was a reasonable award to compensate Complainant for the proven emotional and psychological distress he suffered due to the denial of accommodation. Greg M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160345 (Jan. 31, 2018).

Commission Increased Agency's Award of Non-Pecuniary Damages to $50,000. In a prior decision, the Commission found that the Agency retaliated against Complainant when it did not select her for a position. The Agency conducted a supplemental investigation and awarded Complainant $10,000 in damages. The Commission increased the award to $50,000 on appeal, finding that the Agency's award was inadequate. The record showed that after the retaliatory non-selection, Complainant experienced, among other things, depression, stress, humiliation, hopelessness, social withdrawal, and problems in her marriage. While many of these symptoms were present before the retaliation, the retaliation significantly exacerbated Complainant's symptoms. Complainant's husband and a co-worker provided statements detailing the mental harm Complainant experienced. Amie H. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160528 (Nov. 30, 2017).

Commission Affirmed Agency's Award of $40,000 in Non-Pecuniary Damages. The Agency determined that Complainant was subjected to a discriminatory hostile work environment with respect to racially offensive postings on a group Facebook page for employees at his facility. The Agency awarded Complainant $40,000 in non-pecuniary compensatory damages, and the Commission affirmed the award on appeal. The Commission noted that Complainant was not entitled to compensation related to incidents which were not found to be discriminatory. Complainant stated that he suffered from depression, anxiety, increased stress, and fatigue, and isolated himself, had difficulty sleeping, and experienced changes in appetite. Complainant provided statements from friends, his ex-wife and sisters in support of his claim. The only medical documentation provided included a summary of information Complainant provided to the medical facility rather than an assessment conducted by a medical practitioner. The Commission affirmed the Agency's denial of pecuniary damages, stating that claims related to Complainant's allegation of constructive discharge were not part of the Agency's finding of discrimination, and there was no evidence that the harassment proximately caused his diabetes two years later. Harris K. v. Dep't of Homeland Sec., EEOC Appeal No. 0120180595 (Apr. 24, 2018). (a summary of the Commission's decision regarding attorney's fees can be found above - Ed.)

Commission Increased Award of Damages to $35,000. In a prior decision, the Commission found that the Agency discriminated against Complainant when it denied her the opportunity to attend training, and ordered the Agency, among other things, to investigate her claim for damages. The Agency awarded Complainant $21,000 in non-pecuniary damages. The Commission increased the award to $35,000 on appeal, finding that the Agency incorrectly determined that Complainant was subjected to only seven months of harm rather than the six years alleged. Complainant stated that she had been under stress since 2011 that affected her marriage, and the Commission found that the Agency's award did not adequately account for the duration of Complainant's harm. The Commission stated that Complainant failed to provide evidence to support her claim for pecuniary damages. Roxane C. v. Dep't of Def., EEOC Appeal No. 0120170899 (Dec. 29, 2017).

Commission Increased Award of Non-Pecuniary Damages to $30,000. Following a hearing, an AJ found that the Agency subjected Complainant to several discriminatory incidents and harassment. The AJ awarded Complainant $20,000 in non-pecuniary compensatory damages, and the Commission increased the award to $30,000 on appeal. Complainant stated that she experienced panic attacks, migraine headaches, depression, loss of enjoyment of life, anxiety and marital difficulty. Complainant stated that the effects of the discrimination lasted approximately six months. Complainant's brother testified in support of her claim, and Complainant submitted 15 exhibits. Complainant, who had no prior history of depression, was diagnosed with both depression and anxiety following the discrimination. She also had suicidal thoughts, attended therapy, and began taking medication. The Commission found that an award of $30,000 was appropriate to remedy the harm that Complainant suffered as a result of the Agency's discriminatory conduct. Jasmine Y. v. Dep't of the Army, EEOC Appeal No. 0120171163 (Aug. 14, 2018).

Commission Increased Agency's Award of Damages to $25,000. The Commission previously found that the Agency denied Complainant reasonable accommodation, and, following a supplemental investigation, the Agency awarded Complainant $5,000. The Commission increased the award to $25,000 on appeal. The Commission disagreed with the Agency's assertion that statements from Complainant's spouse and co-workers provided little support for the claim. Complainant's spouse and co-workers observed that Complainant experienced physical pain, mental stress, humiliation, depression and embarrassment as a result of the denial of accommodation. In addition, Complainant's spouse stated that their relationship deteriorated and he became socially withdrawn. Complainant stated that the denial of accommodation exacerbated his back condition, and he had to undergo physical therapy. He submitted medical documentation for the period in question to support his contentions. The Commission recognized that Complainant had some pre-existing conditions, but the evidence showed the conditions were exacerbated by the discrimination. The Commission concluded that an award of $25,000 would appropriately compensate Complainant for the harm caused by the denial of accommodation. The Commission affirmed the Agency's denial of pecuniary damages, noting that Complainant did not provide relevant documentation to substantiate his claim. Faustino M. v. U.S. Postal Serv., EEOC Appeal No. 0120161783 (Feb. 2, 2018).

Commission Affirmed Agency's Award of $15,000 in Damages. The Agency found that it discriminated against Complainant when it failed to engage in the interactive process in response to her request for accommodation, and demoted her. The Agency awarded Complainant $15,000 in non-pecuniary damages, and although Complainant appealed seeking an increase, the Commission affirmed the award on appeal. Complainant submitted a personal statement indicating she experienced depression, anxiety, chronic diarrhea, nausea, sleeplessness and night sweats. While Complainant also submitted a letter from her doctor indicating that he treated Complainant for depression and anxiety for about one year, the Commission noted that the letter did not address the severity, nature, or expected duration of Complainant's medical conditions. Further, Complainant did not present medical evidence from a provider who treated her at the time of the discrimination. Complainant also submitted statements from her brother, ex-husband, niece and two friends indicating Complainant experienced stress and anxiety as a result of her work situation. The Commission concluded that the evidence supported the Agency's award. Queen L. v. Dep't of Agric., EEOC Appeal No. 0120160554 (Mar. 22, 2018).

Commission Affirmed Agency's Award of $10,000 in Non-Pecuniary Damages. In a prior decision, the Commission found that the Agency discriminated against Complainant when it subjected him to an investigation for misconduct, and did not select him for a temporary detail assignment. Pursuant to the Commission's order, the Agency investigated Complainant's claim for damages and awarded him $10,000. The Commission affirmed that award on appeal, noting that Complainant did not seek a specific amount of non-pecuniary damages. Complainant indicated that he suffered stress, anxiety, depression, headaches, stomach distress, insomnia, and weight gain. He also noted that he became dependent on sleep aids, consumed alcohol, and withdrew emotionally from his wife, family and friends. Complainant did not submit any medical evidence to support his claim, and the record contained no evidence relating his physical conditions to the discrimination. While Complainant submitted statements from co-workers, his sister and his wife indicating he suffered depression and withdrew from the time he started working for the Agency, the Commission stated that Complainant was only entitled to damages related to the discrimination. The Commission found that the Agency properly denied Complainant's claim for future pecuniary damages, and stated that Complainant submitted no evidence that he incurred any out-of-pocket expenses as a result of the discrimination. Ralph B. v. Dep't of Homeland Sec., EEOC Appeal No. 0120161451 (Apr. 25, 2018).

Commission Affirmed Agency's Award of $10,000 in Non-Pecuniary Damages. The Commission previously found that the Agency discriminated against Complainant when it failed to secure his medical documentation, and denied his request for reasonable accommodation. The Commission ordered the Agency, among other things, to investigate Complainant's claim for damages. The Agency ultimately awarded Complainant $10,000 in non-pecuniary damages, and the Commission affirmed the award on appeal. Complainant submitted a statement from his psychiatrist, indicating that Complainant suffered from a mild to moderate degree of depression and anxiety due to attacks of vertigo and hearing loss. He developed severe insomnia and began taking anti-anxiety medication and sleep aids. Complainant's vertigo episodes, depression and anxiety were exacerbated by the Agency's failure to accommodate his hearing conditions during a specific four-month period. Complainant submitted statements from his daughter and co-workers indicating he had strained relationships with his family, and financial difficulties. The Commission found that the award of $10,000, which included $500 for the Agency's failure to safeguard medical documentation for four days, was reasonable to compensate Complainant for the proven depression, anxiety, and exacerbation of his hearing conditions for the duration of the discrimination. The Commission also affirmed the Agency's award of $213.16 in pecuniary damages, noting that Complainant was not entitled to reimbursement for expenses incurred in pursuit of remedies in other forums. Humberto P. v. U.S. Postal Serv., EEOC Appeal No. 0120161742 (Sept. 7, 2018).

Commission Increased Award of Damages to $8,500. Following a default judgment against the Agency and finding that Complainant was entitled to relief, an AJ awarded Complainant $3,500 in non-pecuniary compensatory damages, citing the general nature of Complainant's emotional distress and sparse medical evidence. Complainant stated that she was upset and concerned, and that the discrimination caused her significant anguish. Complainant further noted that she was diagnosed with high blood pressure prior to the alleged incidents and began taking medication for the condition during the time in question. The Commission increased the award to $8,500 on appeal, finding that amount was more in line with Commission precedent, accounting for the present-day value of comparable awards. Jaunita W. v. Dep't of Agric., EEOC Appeal No. 0120161304 (June 15, 2018), request for reconsideration denied, EEOC Request No. 0520180510 (Sept. 26, 2018). (a summary of the Commission's decision regarding attorney's fees can be found above - Ed.)

Commission Affirmed Agency's Award of $7,500 in Non-Pecuniary Damages. The Agency found that it denied Complainant a reasonable accommodation when it restricted her from parking close to the building entrance. After a supplemental investigation, the Agency awarded Complainant $7,500 in non-pecuniary compensatory damages. On appeal, the Commission affirmed the denial of pecuniary damages, observing that Complainant failed to provide any documentation of her parking costs or any evidence connecting her documented medical expenses to the denial of reasonable accommodation. Noting that Complainant submitted only her own affidavit in support of mental anguish and failed to rebut the Agency's contention that her smoking and the death of her mother were intervening factors that contributed to her medical condition, the Commission affirmed the award of $7,500 in non-pecuniary damages, finding that the award was consistent with similar cases. Darla W. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160042 (Dec. 12, 2017).

Complaint Processing

Agency Failed to Amend Complainant's Complaint. Complainant filed a formal EEO complaint alleging that the Agency subjected her to a hostile work environment that included being assigned higher-level duties without reclassifying her position at a higher grade; not selecting her for a higher-grade position and instead reassigning her to a position outside of her expertise; and failing to give her a performance evaluation and indefinitely extending her performance plan. According to the record, Complainant asked the EEO Investigator to add a claim that she was paid less than a male co-worker who performed similar work, and referenced the claim in two subsequent emails, but the Investigator failed to take any action regarding that claim. The Agency subsequently issued a final decision finding no discrimination. The Commission's regulations provide that a complainant can amend her pending complaint to add like or related claims at any time prior to the agency's issuance of the notice at the conclusion of the investigation. The Commission found that Complainant attempted to amend her complaint to include a claim under the Equal Pay Act and a claim of disparate treatment based on sex that was like or related to her existing claims. Since Complainant's amended claims appeared intertwined with her original claims, the Commission did not address the merits of the Agency's decision, but remanded the entire amended complaint for further processing. Dollie T. v. Dep't of Educ., EEOC Appeal No. 0120160474 (Apr. 12, 2018).

AJ Erred in Granting Agency's Motion to Dismiss Hearing Request. The Commission reversed the AJ's dismissal of Complainant's hearing request for failure to provide a copy of the hearing request to the agency. Following an investigation, the Agency informed Complainant of her right to request a hearing and advised her that she was required to provide a copy of the request to the Agency. The Agency, however, failed to inform Complainant that she risked forfeiting her right to a hearing if she failed to provide a copy of her request to the Agency. The Commission found, therefore, that Complainant's request for a hearing transferred jurisdiction of the complaint to the Commission. The Agency did not begin the final decision process until after the Commission notified it of Complainant's hearing request and requested the investigative file. Thus, the AJ erred in granting the Agency's motion to dismiss Complainant's hearing request. The Commission advised Complainant that she must provide the Agency with a copy of every document she files with the Commission. The complaint was remanded for a hearing. Fawn G. v. Dep't of the Navy, EEOC Appeal No. 0120151450 (Nov. 22, 2017).

Agency Provided Improper Appeal Rights for Non-Mixed Matters. Complainant filed a formal EEO complaint raising five claims of discrimination. The Agency investigated the complaint and notified Complainant that he had the right to file an appeal with the Merit Systems Protection Board (MSPB) because the complaint was a mixed case complaint. On appeal, the Commission found that while the allegations concerning Complainant's removal and the notice of proposed removal were appealable to the MSPB, the remaining allegations concerning a detail assignment, the suspension of Complainant's law enforcement authority, and overtime were not appealable to the MSPB. The Agency should have notified Complainant that he had the right to request an administrative hearing before an EEOC AJ or a final agency decision on the non-mixed claims. Roscoe P. v. Dep't of the Interior, EEOC Appeal No. 0120152937 (Nov. 9, 2017).

Dismissals

(See also by category, this issue-Ed.)

Agency Improperly Dismissed Complaint as Untimely & for Failure to State a Claim. Complainant filed a formal complaint raising a series of incidents of harassment and discrimination. While the Agency dismissed the complaint as untimely, the Commission applied the principle of equitable estoppel and found the complaint was timely. The record showed that Complainant reasonably relied on the EEO Counselor's statement that the 15-day limitation period for filing her complaint would begin to run on May 1, 2018, and, as such, her complaint was timely filed. Further, the Commission found that Complainant's claims that Agency managers challenged programs under her oversight; changed her duties, responsibilities, and working conditions; refused to include her in meetings and assignments; sent work assignments late in the evening; denied her an opportunity to compete for an Acting Director position; and issued her a reprimand stated a viable claim of harassment. Iris D. v. Dep't of Agric., EEOC Appeal No. 0120182439 (Sept. 20, 2018).

Complaint that Raised Same Matter as in a Grievance Action Properly Dismissed. The Commission found that the Agency properly dismissed Complainant's complaint because it concerned the same matter raised in a prior grievance. The record included applicable portions of the collective bargaining agreement showing that the grievance procedure permitted claims of discrimination. The Commission stated that once Complainant elected to pursue the matter of his change of pay grade through the negotiated grievance process, he was foreclosed from subsequently filing an EEO complaint on the same issue. Renaldo V. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120182377 (Sept. 18, 2018); Additional Decisions Addressing Claims Raised in Both the EEO & Grievance Procedures Include: Jed T. v. Pension Benefit Guarantee Corp., EEOC Appeal No. 0120181496 (July 12, 2018), request for reconsideration denied, EEOC Request No. 0520180554 (Dec. 20, 2018) (the allegation in Complainant's EEO complaint had been raised in a prior grievance, but the Agency failed to include a copy of a collective bargaining agreement showing claims of discrimination can be raised in the grievance process. Complainant did provide a copy of the collective bargaining agreement, however, which indicated that the issues raised in the complaint and grievance (non-selection for rated and ranked candidates) cannot be raised in the grievance process, and the Agency did not process Complainant's grievance. Therefore, the Agency erred in dismissing the EEO complaint); Leanne D. v. Dep't of the Treasury, EEOC Appeal No. 0120172973 (Jan. 31, 2018) (Complainant filed a formal complaint alleging that the Agency discriminated against her when it did not select her for a temporary promotion, and issued her a counseling memorandum concerning tardiness. The Commission affirmed the Agency's dismissal on appeal, stating that the record revealed that Complainant filed grievances on both claims prior to filing her formal complaint, and the terms of the collective bargaining agreement expressly provide for claims of discrimination to be raised in the grievance process. While Complainant asserted that the Agency did not adequately advise her of her election rights, the Commission's regulations provide that an employee who files a grievance cannot then file an EEO complaint irrespective of whether the Agency has informed her of the need to make an election); Jarvis R. v. Soc. Sec. Admin., EEOC Appeal No. 0120172908 (Nov. 30, 2017) (while the Commission's regulations provide for the dismissal of a complaint when the Complainant has previously elected to pursue the matters through the grievance process, the record did not contain a copy of the collective bargaining agreement. Therefore, the Commission could not confirm that the agreement allowed employees to raise claims of discrimination in the grievance process).

Complaint Improperly Dismissed as Stating Proposal to Take Action & for Failure to State a Claim. Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination and harassment, listing various claims including the issuance of a Memorandum for the Record for allegedly inappropriate leadership. The Agency dismissed the claims regarding the Memorandum, finding that Complainant alleged a proposal to take action, and dismissed the remaining claims for failure to state a claim. The Commission found that the Memorandum was not in essence proposed, but instead was completed by the Agency on official stationary and signed by the Deputy Assistant Chief. Both the content and tone of the Memorandum suggested it was disciplinary in nature and not merely instructive or cautionary, and the Memorandum specifically advised Complainant that if the conduct in question continued, he could be subject to disciplinary action, up to and including termination. While the Agency suggested that the Memorandum was not part of Complainant's Official Personnel File, it was placed in the Deputy Assistant Chief's office for two years to be considered in future disciplinary actions. The Commission further found that a fair reading of the formal complaint and EEO Counselor's report showed a detailed series of alleged incidents which alleged a pattern of harassment and stated a cognizable claim. Rudy R. v. Dep't of the Navy, EEOC Appeal No. 0120181956 (Sept. 7, 2018).

Complaint Properly Dismissed for Stating Same Claim Raised Previously. Complainant filed a formal complaint alleging that the Agency did not discipline another employee for shouting on the workroom floor when it had previously disciplined him for the same behavior. The Commission affirmed the Agency's dismissal on grounds that the complaint raised the same matter as that raised in a prior complaint concerning Complainant's suspension for misconduct. The Commission noted that the discovery of a new comparator does not give rise to a new complaint, and the factual claim was identical to the matter previously raised by Complainant. Truman B. v. U.S. Postal Serv., EEOC Appeal No. 0120182184 (Sept. 6, 2018).

Complaint Improperly Dismissed for Failure to Timely Contact an EEO Counselor & Stating the Same Claim Raised in a Prior Complaint. Complainant filed a formal EEO complaint alleging that she was denied reasonable accommodation, and placed on a Success Improvement Plan. The Commission found that the Agency improperly dismissed Complainant's complaint for failure to timely contact an EEO Counselor. The crux of Complainant's claim was that she was denied reasonable accommodation, and Complainant alleged that she continued to be denied accommodation at the time she contacted the Counselor. Therefore, Complainant timely contacted the EEO Counselor. In addition, the Commission found that the Agency failed to submit a copy of the former complaint, and thus, did not prove that Complainant raised the same matters in a prior complaint. Leoma B. v. U.S. Postal Serv., EEOC Appeal No. 0120181912 (Aug. 15, 2018).

Complaint of Harassment Improperly Dismissed for Failure to Timely Contact an EEO Counselor & Failure to State a Claim. Complainant filed a formal EEO complaint alleging that her manager harassed her, including touching her and making inappropriate comments on several occasions. Complainant also alleged that the manager denied her request for a schedule change, told other employees about Complainant's EEO complaint, and told a co-worker Complainant had taken leave because she was at risk of losing her children. The Commission found that the Agency erred by considering Complainant's claims separately and dismissing some for failure to timely contact an EEO Counselor, and some for failure to state a claim. Complainant raised a viable claim of harassment and all incidents concerned the same manager. Further, one of the incidents occurred within 45 days of the date on which Complainant contacted the EEO Counselor. Therefore, the entire claim of harassment was timely raised. The Commission also found that Complainant stated a viable claim of retaliation with regard to the denial of a schedule change and comments made to her co-workers. Margeret M. v. U.S. Postal Serv., EEOC Appeal No. 0120181767 (Aug. 15, 2018). Additional Decisions Addressing Improperly Dismissed Complaints of Harassment Include: Sueann C. v. U.S. Postal Serv., EEOC Appeal No. 0120182521 (Sept. 27, 2018) (the Agency erred when it found that Complainant's claim of harassment was untimely, because she made EEO contact within 45 days of two of the alleged incidents cited. Further, a fair reading of the complaint in conjunction with the related EEO counseling report showed that Complainant was alleging she been subjected to a series of related incidents of disparate treatment, and ongoing harassment which she attributed to her race, national origin, and age); Shanel G. v. U.S. Postal Serv., EEOC Appeal No. 0120181490 (July 12. 2018) (the Commission reversed the Agency's dismissal for untimely EEO counselor contact. Complainant alleged her supervisor made inappropriate sexual remarks to her, yelled at her, watched her, told her he loved her, grabbed her waist, and denied her request for transfer. The Agency found all the allegations were untimely raised, except two, which did not by themselves state a claim. The Commission found the Agency improperly treated claims in a piecemeal fashion, rather than as parts of a viable claim of harassment); Greta F. v. Dep't of Agric., EEOC Appeal No. 0120181615 (July 3, 2018) (the record showed Complainant stated a viable claim of ongoing harassment, including derogatory comments about women, rude treatment from her supervisor, and being accused of throwing her coworkers "under the bus." Further, since at least one incident occurred within 45 days of Complainant's EEO contact, her complaint was timely); Mirtha H. v. Dep't of Def., EEOC Appeal No. 0120180537 (Feb. 7, 2018) (the Commission found that the Agency fragmented Complainant's hostile work environment claim which included, but was not limited to: being denied a reasonable accommodation, being placed on Leave Without Pay, being denied her request for the Volunteer Leave Transfer Program, and being informed that she would be charged with AWOL. The Commission has held that because the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside of the filing period that the Complainant knew or should have known were actionable at the time of their occurrence. Thus, the Commission found that the alleged incidents, some of which were raised within the 45 days preceding contact with the Counselor, were sufficiently severe or pervasive to set forth an actionable claim of harassment); Ellsworth S. v. U.S. Postal Serv., EEOC Appeal No. 0120172972 (Dec. 20, 2017) (the Agency improperly treated Complainant's claim of harassment in a piecemeal manner, and the Commission found that the series of events cited stated a viable claim of harassment. Further, since some of the incidents occurred within the applicable time period the entire claim of harassment was timely raised with the EEO Counselor); Natalie S. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120172617 (Oct. 27, 2017) (the Agency mischaracterized Complainant's claims, and a fair reading of Complainant's pre-complaint submission, formal complaint, and assertions on appeal showed that Complainant claimed a pattern of harassment that continued through the present. Complainant's allegations, at least one of which occurred within the 45-day limitation period for contacting an EEO Counselor, sufficiently stated a hostile work environment claim); Jeanie P v. Dep't of the Navy, Appeal No. 0120172585 (Oct. 11, 2017) (the Agency improperly fragmented the complaint into more than 40 incidents, and a fair reading of the formal complaint, related EEO counseling report, and clarifying correspondence clearly showed that Complainant raised a single claim of ongoing harassment which included various incidents that occurred within the 45-day period preceding her contact with the EEO Counselor).

Complaint Improperly Dismissed for Failure to State a Claim & Alleging Proposed Action. The Commission reversed the Agency's dismissal for failure to state a claim and for complaining about a proposed action. Complainant alleged her supervisor issued her a notice of proposed suspension which included previously settled issues, and continuously held her to a different standard by expecting her to meet deadlines while offering extensions to male coworkers. The Commission criticized the EEO counselor for failing to follow up on Complainant's allegations regarding extensions and being continually harassed. The Commission found that while allegations regarding the proposed suspension alone involve proposals to take action and did not state a claim, these allegations in combination with Complainant's other allegations stated an actionable claim of hostile work environment. Melissia M. v. Dep't of the Air Force, EEOC Appeal No. 0120171306 (Aug. 3, 2018).

Complaint Improperly Dismissed for Mootness. Complainant filed an EEO complaint alleging, among other things, that he was subjected to a hostile work environment from April 2015 until May 2017. After Complainant retired from the Agency, the Agency ultimately dismissed the complaint as moot on grounds that Complainant's retirement effectively eradicated the effects of the Agency's alleged discriminatory conduct. On appeal, the Commission determined that Complainant's retirement did not completely and irrevocably eradicate the effects of the alleged discrimination. While there was no reasonable expectation that the alleged discrimination would recur, there was no showing that no relief was available if discrimination was proven. Complainant asserted that he was forced to retire from the Agency because of the alleged discrimination, and Complainant's counsel discussed that matter with the Agency prior to the issuance of the final decision. Because Complainant had clearly raised a claim of constructive discharge, the Commission determined that the subject claims had not necessarily been rendered moot by his retirement. If Complainant were to prevail on a claim of constructive discharge, he would be entitled to reinstatement, and workplace remedial relief would then be available to him. Therefore, the issue of constructive discharge was remanded to the Agency for investigation. Homer B. v. Dep't of the Navy, EEOC Appeal No. 0120181122 (May 9, 2018).

Complaint Improperly Dismissed for Untimely EEO Contact & Failure to State a Claim. Complainant, who is autistic, filed a formal EEO complaint by and through his father who has power of attorney, alleging that he was harassed and terminated. The Agency dismissed the first claim for failure to timely contact an EEO Counselor, and the second claim for failure to state a claim, asserting that Complainant was not an employee or applicant for employment. On appeal, the Commission exercised its discretion to excuse any delay in seeking EEO counseling. Complainant argued that he was not aware of the 45-day limitation period and/or how to seek counseling. While the record included an EEO poster, the Agency failed to provide any information on whether it was posted, and, if so, where. Given that Complainant was at the Agency only to stock shelves, it was unlikely that even if he saw the poster, he would know it applied to him. It was also unlikely Complainant's father, who had power of attorney, would have seen the poster. The Commission also found that the Agency exercised sufficient control over Complainant's employment to qualify as his employer for purposes of the EEO process. While Complainant provided his own equipment, and was paid by vendors on a piece-work basis, his work stocking shelves was regulated by the Agency. Agency managers controlled the activities of stockers and Complainant's activity was closely monitored by an Agency employee. Complainant worked on Agency premises six days per week for six years, and his work was part of the regular business of the Commissary. Finally, the Agency discharged Complainant from employment. Therefore, the Agency's dismissal of Complainant's second claim was also improper. Shelton D. v. Dep't of Def., EEOC Appeal No. 0120180591 (Apr. 27, 2018).

Complaint Properly Dismissed for Raising Matter on Appeal to MSPB & Failure to State a Claim. Complainant filed a formal complaint alleging that she received a Notice of Proposed Reduction in Grade and Pay, and was issued a Letter of Debt Determination. The Commission found that the Agency properly dismissed the first claim on grounds that Complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding her downgrade. Regardless of whether Complainant raised discrimination during her MSPB hearing, she may not raise the same claim with the MSPB and in the EEO process. The Commission also found that the Agency's dismissal of the second claim for failure to state a claim was proper. The claim was both a collateral attack on the decision of an Arbitrator and fell under the Debt Collection Act, and, as such, was a collateral attack on another adjudicatory proceeding. Glenda L. v. U.S. Postal Serv., EEOC Appeal No. 0120180971 (Apr. 12, 2018), request for reconsideration denied, EEOC Request No. 0520180376 (Aug. 24, 2018).

Commission Affirmed Dismissal for Raising the Same Matter as Previously Filed Complaint. On appeal, the Commission affirmed the Agency's dismissal of Complainant's complaint on grounds that it raised the same matter as a prior complaint. Both the instant complaint and Complainant's prior complaint alleged that Complainant was denied GS-15 pay while she worked as an Attorney Advisor. Unlike the previous complaint, the instant complaint focused on new evidence, namely a comparative employee's compensation while in her prior position, and alleged discrimination under the Equal Pay Act. The Commission noted, however, that finding a new comparative employee or arguing a different theory of law does not create a new claim. Complainant's new arguments and the evidence provided for the instant complaint, did not fundamentally change the nature of her prior complaint. Margeret M. v. Dep't of the Navy, EEOC Appeal No. 0120180856 (Mar. 27, 2018).

Complaint Improperly Dismissed as Untimely & for Failure to State a Claim. The Commission reversed the Agency's dismissal of Complaint's complaint for untimely filing and failure to state a claim. With respect to reversing the dismissal for untimely filing, the Commission found that the Agency failed to prove when Complainant received the notice of right to file a formal complaint. The Agency relied on a Postal Service tracking notice that failed to identify the address where the notice of right to file was delivered and failed to provide the name of the individual who supposedly received the notice. The Commission also reversed the Agency's finding that Complainant failed to state a claim of reprisal because he previously complained about discriminatory harassment with employee relations and not in the EEO process. The Commission stated that complaining about discriminatory harassment in the administrative process, grievance or even verbally to management can support a claim of reprisal. Dallas T. v. Dep't of Agric., EEOC Appeal No. 0120180243 (Dec. 28, 2017).

Complaint Improperly Dismissed for Failure to Cooperate & Failure to State a Claim. The Agency dismissed Complainant's entire complaint for failure to cooperate, stating that she declined to participate in mediation and traditional EEO counseling. The Agency also considered two allegations to be an attack on the OWCP process and dismissed those matters for failure to state a claim. On appeal, the Commission found that the Agency's dismissal for failure to cooperate was improper. While Complainant and her attorney declined to participate in mediation, the record showed that Complainant completed forms requested by the EEO Counselor, and the Counselor noted that Complainant's representative provided a detailed account of the allegations. Further, the Counselor met with Complainant and followed up with Complainant's manager. Therefore, the evidence showed that Complainant was counseled on her claims. The Commission stated that declining to participate in mediation does not constitute a failure to cooperate. The Commission affirmed the Agency's dismissal of Complainant's allegations concerning an alleged false statement made to OWCP and assistance with worker's compensation forms, finding that those matters should have been raised during the OWCP process. The Commission also affirmed the dismissal of spin-off allegations concerning Complainant's dissatisfaction with the processing of her complaint. Zoraida T. v. Dep't of Def., EEOC Appeal No. 0120172794 (Nov. 7, 2017).

Complaint Improperly Dismissed as Moot. Complainant filed a formal complaint alleging that the Agency discriminated against him when it suspended him for failure to follow written regulations, orders, rules, or procedures. The Agency dismissed the complaint on the grounds of mootness, noting that management issued a memorandum rescinding its decision to suspend Complainant. On appeal, the Commission found that while the Agency did rescind the suspension, the notice of rescission clearly stated that it still had the right to pursue disciplinary action for the same incident on or after the effective date of this memorandum. Accordingly, the Commission found that the Agency did not show that the matter was moot, because the alleged violation involving the same incident could recur. Cleveland C. v. Dep't of Def., EEOC Appeal No. 0120172596 (Oct. 25, 2017).

Findings on the Merits and Related Decisions

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

Under the Age Discrimination in Employment Act

Agency Failed to Rebut Inference of Age Discrimination. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on age when it did not select her for a supervisory position. On appeal, the Commission found that Complainant was discriminated against as alleged. Complainant, who was 57 years old, was deemed the best qualified for the position, but was not selected in favor of three individuals who were substantially younger than she was. While the selecting officials stated that they did not know Complainant's age, they acknowledged that they knew Complainant. Therefore, the Commission determined that the selecting officials were aware that Complainant was over 40 years old, and she established a prima facie case of age discrimination. The selecting officials failed to provide a specific, clear and individualized explanation for Complainant's non-selection, stating only, for example, that the selectees were more qualified for the position. The selecting officials' statements that Complainant received a lower interview score were contradicted by statements from other management officials who claimed that a scoring or rating system was not used in the selection process, and the Agency did not provide any information regarding the selectees' interview scores. Therefore, the Commission concluded that the Agency failed to rebut the inference of age discrimination created when Complainant established a prima facie case. The Agency was ordered, among other things, to offer Complainant a supervisory position or a substantially equivalent position, and provide appropriate training to all responsible management officials. Alline B. v. Soc. Sec. Admin., EEOC Appeal No. 0120162182 (Dec. 8, 2017).

Under the Equal Pay Act

Agency Failed to Establish Affirmative Defense Under EPA & Relief Discussed. The Agency admitted that, at times, Complainant received less pay than two comparative employees for equal work requiring equal skill, effort and responsibility, under similar working conditions within the same establishment. The Commission affirmed the AJ's finding that the Agency did not substantially establish its affirmative defense that the pay differential between Complainant and two comparative employees was based solely on a factor other than sex. Specifically, the Agency failed to show that it applied consistent pay practices to female employees who were subject to demotion like Complainant. With regard to relief, the Commission rejected the Agency's argument that the AJ misapplied the law by awarding attorney's fees. The Agency was correct that a complainant who prevails on a claim under the EPA is not entitled to attorney's fees at the administrative level. However, in the present case, Complainant also filed a Title VII claim which he pursued at the hearing that contained overlapping issues with his successful EPA claim. The Commission agreed with the AJ that since a violation of the EPA is also automatically a violation of Title VII, Complainant could recover attorney's fees. Nevertheless, as the record showed that significant periods of effort were expended by Complainant's counsel on more uniquely EPA issues, the Commission exercised its discretion to apply a 25% across-the-board reduction to the fees awarded by the AJ. The Agency was ordered, among other things, to pay Complainant $60,918 in attorney's fees and $16.75 in costs, as well as back pay and proven damages. Isidro A. v. Dep't of Homeland Sec., EEOC Appeal No. 0720170026 (Feb. 6, 2018).

Under the Rehabilitation Act

Disability Discrimination Found Regarding Complainant's Disqualification from a Position. The Commission found that the Agency discriminated against Complainant based on disability when it rescinded its conditional job offer of an Electronics Technician (ET) position. The Agency did not dispute that Complainant was an individual with a disability. Instead, the Agency asserted that Complainant was qualified for the position except with respect to certain physical fitness requirements. The Agency stated that Complainant could not safely perform certain functions because a prior stress test showed an inability to perform the necessary strenuous physical tasks. The Commission noted that, to exclude an individual based on possible future injury, the Agency must conduct an individualized assessment to determine whether there is a significant risk of harm, and the Agency failed to conduct such an individualized assessment. The record showed that the responsible management officials relied on the fact that, at some unspecified point over Complainant's 10-year medical history, he had limited his physical activity due to his symptoms, and had lost consciousness on two occasions. The responsible management officials also substantially relied on a 2012 stress test, concluding that Complainant's medical history prior to his treatment and the 2012 stress test were more reliable indicators of future safety risk than recent medical opinions that were based on the results of comprehensive examinations performed during the relevant time-frame. The undisputed record showed that Complainant's heart condition was stabilized with proper medication. The Agency's own physician who performed the fitness-for-duty examination, which included an EKG, and a comprehensive physical examination focused on assessing Complainant's physical fitness in relation to the position, found that Complainant was "qualified for strenuous physical exertion." In addition, Complainant's doctors concluded that his condition had stabilized, and the undisputed record showed that Complainant had been performing the functions of the position for several years without incident. The responsible management officials failed to provide any assessment as to the duration of any risk, nature and severity of potential harm, or likelihood and imminence of potential harm. In fact, the responsible management officials failed to even characterize the future safety risk as "significant" or the harm as "substantial," instead describing the risk of harm by using phases such as "uncertain," "elevated," and "increased." The Commission noted that the burden is on the Agency to gather sufficient evidence to establish direct threat. The Commission ordered the Agency, among other things, to offer Complainant reinstatement to the position, pay him appropriate back pay and benefits, and investigate his claim for damages. Mark D. v. Dep't of Justice, EEOC Appeal No. 0120162225 (July 27, 2018).

Denial of Reasonable Accommodation Found. Complainant, a Sales Store Checker, injured her knee and requested not to be assigned to the self-checkout lane as performing this fast-paced assignment caused her pain. Complainant was granted accommodation for two years after providing medical documentation, and successfully performed the duties of her position. However, a new supervisor subsequently took over who questioned Complainant's need for the accommodation and requested new medical documentation. Following the submission of the new documentation, the supervisor denied Complainant's accommodation request after consulting with the Disability Program Manager (DPM). Contrary to Complainant's physician, the DPM did not find that Complainant's injury was a disability. The Commission determined that while it was within the new supervisor's right to request updated medical documentation, the Agency provided no justification for denying the accommodation request. The Commission was troubled by the Agency's lack of participation in the interactive process. Complainant's physician indicated on several occasions that Complainant had degenerative joint disease and should not perform the self-checkout assignment because she had to pivot to complete the job. With each assignment to the self-checkout lane, Complainant's physician provided documentation that the self-checkout line was damaging her knee, but management disregarded the medical documentation. Although failing to engage in the interactive process is not a violation in and of itself, the Commission noted, when, as here, it results in the denial of a reasonable accommodation such a failure is actionable. Finally, the Agency did not establish that providing Complainant the requested accommodation would have resulted in an undue hardship. Complainant had been provided with the accommodation of not having to perform self-checkout duties for two years before the new supervisor arrived. The Agency did not argue, nor did the record indicate, that the Agency suffered an undue hardship during this period. The Agency was ordered, among other things, to take all steps necessary to provide Complainant with an effective reasonable accommodation, and investigate her claim for damages. Anya F. v. Dep't of Def., EEOC Appeal No. 0120160945 (June 21, 2018).

Agency Denied Complainant Reasonable Accommodation When It Unreasonably Delayed Providing Her Fulltime Telework. Complainant alleged that she was denied a reasonable accommodation when management did not approve her request for fulltime telework. Complainant informed the Agency that she had allergies and sensitivity to the air quality in the building and could smell mold. She further reported that she experienced watering eyes, coughing, sneezing, and headaches because of the mold growing outside her window and "desperately need[ed] something to be done" because she had bronchitis and asthma. It was undisputed that Complainant's building had mold and other conditions which made employees sick, including Complainant, and the Agency even moved its offices to another location in response to employee complaints and the discovery of mold in the building. The Commission found that because exposure to substances in the building precipitated and exacerbated Complainant's medical conditions, fulltime telework was the only appropriate accommodation in this case, aside from moving Complainant's office to another building. Although the record revealed that the Agency approved telework agreements for Complainant, there was no evidence that the Agency allowed Complainant to telework fulltime until several months after her requests, which the Commission found was an unreasonable delay. The fact that Complainant and other employees were subsequently allowed to telework fulltime indicated that fulltime telework was not an undue hardship on the Agency. To the extent that Complainant contended that she was denied other accommodations during the time in question, the Commission found that she failed to show how these matters were related to her disclosed medical conditions. The Commission also found that the Agency's actions were not severe or pervasive enough to create a hostile work environment. The Agency was ordered, among other things, to restore any leave taken by Complainant because of its failure to provide her with reasonable accommodation, investigate Complainant's claim for damages, and provide appropriate training for the named responsible officials. Retha W. v. Dep't of Agric., EEOC Appeal No. 0120161254 (June 21, 2018), request for reconsideration denied, EEOC Request No. 0520180501 (Sept. 27, 2018).

Disability Discrimination Found Regarding Complainant's Five-Day Suspension. The Commission found that the Agency discriminated against Complainant when it suspended her for five days. The Agency maintained that it suspended Complainant because she did not complete assignments in a timely manner and made errors in her work products. Complainant informed the Agency, however, that she had Frontal Temporal Lobe Dementia, and that the condition affected her thinking processes, which caused her to take much longer to complete tasks. Complainant's job largely consisted of performing tasks that necessarily involved composing documents and typing. Therefore, the Agency was aware that Complainant needed significantly more time to complete her assignments, and Complainant's failure to complete assignments by set deadlines and work product errors were mostly attributable to her condition.

Commission guidance provides that an agency may discipline an individual with a disability for violating a conduct standard, even if the misconduct resulted from the disability, as long as the conduct standard is job-related for the position in question and consistent with business necessity. However, work product errors and untimely completion of work assignments are not matters of misconduct; they are matters of performance. Thus, the appropriate manner to respond to such matters is through measures designed to address performance problems, such as appraisals, remedial training, non-disciplinary counseling, and Performance Improvement Plans. When, as here, an agency is aware that performance problems are caused by a disability for which the employee has requested a reasonable accommodation, and such an accommodation is available, but disciplines an employee for those performance problems, the agency's actions are punitive against the employee's status as an individual with a disability. Consequently, the Commission concluded that suspending Complainant for five days was tantamount to suspending her because of her disability. The Commission further concluded that the Agency failed to rebut the inference of discrimination created when Complainant established a prima facie case of disability discrimination by articulating a legitimate, nondiscriminatory reason for its actions. Therefore, the Commission found that the Agency discriminated against Complainant based on her disability when it suspended her for five days. The Commission found, however, that Complainant failed to demonstrate she was denied a reasonable accommodation. The Agency was ordered, among other things, to remove any reference to the suspension from all personnel records, reimburse Complainant for any lost pay, and investigate Complainant's claim for damages. Marx H. v. Dep't of the Navy, EEOC Appeal No. 0120162333 (June 19, 2018).

Delay in Providing Reasonable Accommodation Violated Rehabilitation Act. The Commission found that the Agency violated the Rehabilitation Act when it delayed providing Complainant with an ergonomic chair as a reasonable accommodation for more than three months. The Agency did not dispute that Complainant, who had a knee impairment that affected him in the major life activity of sitting, was a qualified individual with a disability. Further, the Commission found that the three-month delay in providing Complainant with an ergonomic chair was unnecessary. While the Agency approved Complainant's request for the chair shortly after it was submitted, the record showed that Agency employees then delayed providing Complainant with the chair because Agency managers could not determine what the procedures were to do so. The record indicated that the Agency's acquisition department resisted ordering the chair for reasons such as the lack of an approval number. Complainant submitted all required documentation to establish his need for the chair as an accommodation, and the delay was due solely to the actions of Agency employees. The Agency should have had reasonable accommodation procedures in place at the time and informed its employees about those procedures. The Agency was ordered, among other things, to provide Complainant with reasonable accommodation in the form of an ergonomic chair, investigate his claim for damages, and provide appropriate training for employees in its acquisitions department. Ronnie R. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120161406 (May 31, 2018).

Denial of Reasonable Accommodation Found. The Commission found that the Agency discriminated against Complainant when it failed to provide him with reasonable accommodation. The Agency conceded that Complainant had hypertension which substantially limited his cardiovascular system, and the record revealed that Complainant cannot travel by air because it aggravates his hypertension placing him at risk of stroke or a heart attack. The Agency asserted that travel by air is an essential function of Complainant's job as a Special Agent, because Agents need to travel on short notice. The Commission found, however, that air travel was not an essential function but a method of performing an essential function. The Agency did not submit evidence that established Special Agents were routinely needed on short notice to conduct interviews or issue warrants, and, in fact, when faced with long-distance travel, the Agency had a practice of using local resources instead of incurring travel expenses for its Agents. Further, there was limited information in the record as to how often Agents were needed on short notice to perform other duties, and the record showed that Complainant and at least one other Agent successfully performed their duties without traveling by air. Finally, the Agency failed to establish that Complainant's inability to fly created an undue hardship on its operations. There was evidence in the record showing that Agency managers saw Complainant's refusal to fly as an attitude problem rather than related to his hypertension, which the Commission found to be evidence of discriminatory animus connected to his disability status. The Commission noted that while Complainant's claim of harassment did not rise to the level of a hostile work environment, the evidence did support the finding that the Agency did not engage in good faith efforts to provide Complainant with a reasonable accommodation. The Agency was ordered, among other things, to provide Complainant with a reasonable accommodation that allows him to travel by means other than air, restore any leave used due to the Agency's failure to provide a reasonable accommodation, and investigate Complainant's claim for damages. James R. v. Envtl. Prot. Agency, EEOC Appeal No. 0120122981 (Apr. 4, 2018).

Denial of Reasonable Accommodation Found. Complainant filed a formal complaint alleging, among other things, that she was reassigned to another position and the Agency failed to respond to her requests for assistance with her new position. The Agency stipulated that Complainant was a person with a disability and the AJ noted that Complainant performed well in her prior position for 25 years prior to her reassignment. The Commission concurred with the AJ's determination that Complainant was a qualified individual with a disability. The Commission also agreed with the AJ's finding that the Agency was aware of Complainant's disability, and that by transferring her into a new position, the Agency created the circumstances under which Complainant's performance began to deteriorate. Further, when it became evident that she was no longer able to perform the essential functions of the new position without a reasonable accommodation, despite Complainant's requests for assistance, the Agency failed to engage in the interactive process. Accordingly, the Commission concluded that the AJ's finding that the Agency violated the Rehabilitation Act by failing to provide Complainant with a reasonable accommodation was supported by substantial evidence. The Agency was ordered, among other things, to pay Complainant $90,000.00 in proven nonpecuniary compensatory damages. Jade R. v. Dep't of the Interior, EEOC Appeal No. 0720170032 (Mar. 23, 2018).

Denial of Reasonable Accommodation & Disability Discrimination Found. Complainant filed an EEO complaint alleging, among other things, that the Agency denied him reasonable accommodation, and discriminated against him based on his disability when it rated him "unsuccessful" on his performance evaluation. On appeal, the Commission found that the Agency failed to show that providing any of Complainant's many requested reasonable accommodations would cause an undue hardship. The Agency's broad rejections did not reflect the specificity required of an individualized assessment, nor a consideration of the factors comprising an undue hardship. Further, the Commission noted its concern with the Agency's lack of participation in the interactive process. The Agency not only rejected Complainant's numerous suggestions, but it failed to suggest any alternatives and blamed Complainant for the alleged breakdown in the interactive process. The Commission further found that Complainant's "unsuccessful" rating was also discriminatory. While the record contained evidence of Complainant's ongoing performance problems throughout the year, including numerous emails from his supervisor, the Commission observed that some of the emails followed Complainant's requests for accommodation. Moreover, the major life activities that were impacted by Complainant's PTSD, for which he was seeking a reasonable accommodation, were the same skills identified by management as needing improvement (i.e. focus, concentration, and avoiding distractions). Among other things, the Agency was ordered to immediately take all steps necessary in accordance with Commission regulations to provide Complainant with reasonable accommodation; to rescind and expunge the unsuccessful rating; and to determine Complainant's entitlement to compensatory damages. The Commission affirmed the Agency's finding that Complainant failed to prove his claim of harassment. Wilmer M. v. Dep't of State, EEOC Appeal No. 0120160352 (Feb. 22, 2018).

Denial of Reasonable Accommodation & Impermissible Medical Inquiry. The Commission reversed the Agency's finding that it did not discriminate against Complainant because of her disability when it denied her reasonable accommodation in the form of full-time telework, and when it requested additional medical documentation of her condition. The Agency had accommodated complainant's disability (PTSD) by excluding PTSD or trauma claims from her workload. Complainant had requested 40 hours per week telework as an accommodation but the Agency denied the request stating that her conduct and performance did not satisfy telework guidelines. The Commission found that the Agency's approved accommodation was not effective, as shown by Complainant's performance. The Commission ordered the Agency to provide Complainant, if still an employee, with a 30-day trial period of 40-hour per week telework. The Commission also found that the Agency should not have requested additional documentation regarding Complainant's disability because there was a history of communication between Complainant and the Agency regarding her medical condition and the Agency was fully apprised of the permanent nature of the disability and restrictions. The Commission affirmed the Agency's finding of no discrimination in regard to other claims. Natalie S. v. Dep't of Veterans Affairs, EEOC Appeal Nos. 0120140815 & 012142049 (Jan. 26, 2018).

Failure to Accommodate Found. The Commission found that the Agency violated the Rehabilitation Act when it failed to reasonably accommodate Complainant. Specifically, Complainant, who had a hearing impairment, was unable to hear pages over the loudspeaker, and the problem was compounded by machinery noise at his workplace. The Commission found that accommodations such as a two-way pager or other communication devices were available but the Agency failed to take timely action to implement them. The Agency also provided no evidence of undue hardship to implement any of these accommodations. The Agency was ordered, among other things, to provide Complainant with reasonable accommodation, and investigate his claim for damages. The Commission affirmed the Agency's finding of no discrimination with regard to other allegations in his complaint. Spencer T. v. U.S. Postal Serv., EEOC Appeal No. 0120162002 (Jan. 25, 2018).

Denial of Accommodation Found. Complainant was a Mail Handler with the Agency whose duties included operating a tow truck and lifting up to 70 pounds. Complainant was diagnosed with intervertebral disc syndrome and degenerative disc disorder and his Mail Handler duties aggravated his chronic back pain. Complainant's physician restricted him to no bending, twisting, kneeling, squatting, pulling, pushing, lifting over 20 pounds or operating motor vehicles. Complainant requested light duty as a reasonable accommodation. The Agency denied Complainant's request for light duty because he could not perform the duties of his position due to his medical restrictions, and the Agency sent Complainant home. On appeal, the Commission agreed with the Agency that Complainant could not perform the Mail Handler duties, but found that the Agency failed in its obligation to consider reassigning Complainant to a position within his medical restrictions absent undue hardship. The Agency did not assert that reassigning Complainant to a different position would have resulted in an undue hardship, and, therefore, the Commission found that Complainant was denied reasonable accommodation. The Agency was ordered, among other things, to identify vacant, funded positions or assignments that Complainant could perform and place Complainant into such a position if available. Kristofer E. v. U.S. Postal Serv., EEOC Appeal No. 0120170557 (Jan. 25, 2018).

Failure to Accommodate Found. The Commission found that the Agency violated the Rehabilitation Act when it denied Complainant, who used a wheelchair, the option of working from home on days when the temperature was below negative 20 degrees. The Commission found the record devoid of evidence that the Agency engaged in the interactive process. Aside from management's statements indicating that Complainant's immediate supervisor requested medical documentation, there was no documentary evidence to support this fact. In addition, there was a lack of good faith established by the fact that Complainant's new supervisor essentially removed the effective accommodation of situational telework that Complainant's former supervisor and second-level supervisor had previously provided to him. Accordingly, the Agency was ordered, among other things, to restore any leave Complainant used because he was denied accommodation, allow Complainant to telework on days when the temperature was below negative 20 degrees, and investigate his claim for damages. Jody L. v. Dep't of the Air Force, EEOC Appeal No. 0120151351 (Jan. 17, 2018).

Agency Violated Rehabilitation Act When It Disqualified Complainant for Position. Complainant applied for a Transportation Security Officer (TSO) position, and filed a formal EEO complaint after the Agency found her medically unqualified due to her arthritis. Following a hearing, an AJ concluded that the Agency physician's decision to disqualify Complainant was at odds with the Agency's guidelines, and, therefore, the Agency discriminated against Complainant based on disability. The Commission affirmed that AJ's decision on appeal. The Commission initially rejected the Agency's argument that the complaint failed to state a claim because the Aviation Transportation Security Act (ATSA) preempts the Rehabilitation Act. The Commission stated that Complainant was not challenging the validity of the medical guidelines, but was instead challenging the Agency's finding that she was not qualified under the guidelines. In this case, there was insufficient evidence in the record to support the Agency's finding that Complainant did not meet the requirements set forth in the ATSA. The Commission stated that the AJ's finding that Complainant was qualified for the position was supported by substantial evidence, and the record established that she could perform the essential functions of the job. Therefore, there was no basis to disqualify Complainant under the Agency's guidelines. To the extent the Agency believed Complainant's condition might have resulted in injury to herself or others, the Agency failed to perform an individualized assessment, and a speculative or remote risk was insufficient to disqualify Complainant. The Agency was ordered, among other things, to offer Complainant a TSO position or substantially equivalent position with appropriate back pay and benefits, and pay Complainant $5,000 in proven compensatory damages. Iona A. v. Dep't of Homeland Sec., EEOC Appeal No. 0720160019 (Jan. 9, 2018).

Disclosure of Medical Information Violated Rehabilitation Act. Complainant filed a formal EEO complaint alleging, among other things, that his supervisor shared his confidential medical information with a co-worker. On appeal, the Commission found that the supervisor's actions violated the Rehabilitation Act. The supervisor acknowledged discussing Complainant's absences, which were caused by his medical condition, with Complainant's subordinate. The Commission noted that employers may share confidential medical information only in limited circumstances, which were not present in this case. The supervisor specifically indicated that he discussed Complainant's absences with the subordinate during a conversation regarding the decision to extend Complainant's probationary period. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training to the supervisor. The Commission concurred with the Agency that Complainant failed to prove additional claims of reprisal, disability discrimination, or harassment. Freddy V. v. Dep't of the Interior, EEOC Appeal No. 0120152121 (Nov. 29, 2017); Additional Decisions Discussing Disclosure of Confidential Medical Information Include: Mario G. v. Dep't of the Air Force, EEOC Appeal No. 0120150193 (Oct. 19, 2017) (the Agency violated the Rehabilitation Act when a supervisor left an email with information regarding Complainant's request for light duty work on a table in his office where it could be viewed by others. The Agency is obligated to keep certain employee medical information confidential regardless of the employee's disability status. In addition, documentation or information regarding an individual's diagnosis must be treated as confidential except in limited circumstances. In this case, the email contained specific information about Complainant's condition and medical limitations. The Commission noted that while the disclosure might have been inadvertent, it nevertheless violated the Rehabilitation Act. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide applicable training for the responsible management official).

Denial of Reasonable Accommodation Found. Following an on-the-job injury, Complainant was diagnosed with several conditions that made it difficult for him to perform routine tasks involving his hands and arms, talk on the telephone, and type. Complainant requested reasonable accommodation as recommended by his doctor and an assessment by the Department of Labor, including voice recognition software, an ergonomic workstation and chair, a microphone headset, adjustable keyboard/mouse platforms, and a headset for his cellphone. The Commission found that the Agency did not act on Complainant's request for reasonable accommodation for over one year. While the Agency waited for the Department of Labor to order an assessment, the Commission found that the Agency had a duty to provide reasonable accommodation irrespective of any decision or action by the Department of Labor. Despite evidence in the record that officials at Agency Headquarters received Complainant's medical documentation and requests for accommodation, the Agency still failed to address Complainant's need for accommodation. The Agency was ordered, among other things, to restore leave to Complainant, and investigate his claim for compensatory damages. The Commission affirmed the Agency's finding that Complainant failed to prove his claim that he was subsequently denied additional accommodations and subjected to a hostile work environment. Lacy R. v. Dep't of Justice, EEOC Appeal No. 0120152260 (Nov. 22, 2017).

Agency Failed to Reasonably Accommodate Complainant. An AJ issued a decision without a hearing finding that Complainant was not denied a reasonable accommodation. On appeal, the Commission found that while there were no genuine issues of material fact in dispute which required a hearing, Complainant proved by a preponderance of the evidence that the Agency denied her reasonable accommodation. Complainant had a permanent spine condition which limited her in the major life activities of sitting, standing, carrying, pushing and pulling. Complainant could perform the essential functions of her job, which included sorting letters and package mail, with reasonable accommodations of modifications to the front counter where she worked, an ergonomic chair, and a schedule allowing her to work continuous 8-hour shifts with a break of no more than 30-minutes. Therefore, Complainant was a qualified individual with a disability. While the Agency contended that Complainant did not submit a form requested by its District Reasonable Accommodation Committee (DRAC), Complainant submitted medical documentation consisting of a letter from her doctor stating that she had a permanent condition with permanent restrictions, and a duty status report also stating those restrictions. The Commission reasoned that the medical documentation the Agency already had established the need for the reasonable accommodations Complainant requested, and the DRAC form asked for redundant information. Therefore, the Commission concluded that Complainant proved by a preponderance of the evidence that she was denied a reasonable accommodation. Complainant was awarded relief that included her requested accommodations and compensatory damages. Pamala L. v. U.S. Postal Serv., EEOC Appeal No. 0120152493 (Nov. 21, 2017).

Disability Discrimination Found with Regard to Denial of Telework. The Commission previously found that Complainant, who experienced serious long-term or permanent medical conditions associated with breast cancer and successfully performed the essential functions of her position, was a qualified individual with a disability. In the underlying decision, the Commission concluded that the Agency failed to reasonably accommodate Complainant when it did not provide her with additional opportunities to telework. Rather than immediately providing Complainant with an additional telework day, the Agency repeatedly asked her for more information despite Complainant having initially submitted sufficient documentation to substantiate her request. The Commission rejected as unsubstantiated and unworthy of belief the Agency's assertion that Complainant could not telework on additional days because of productivity concerns, and found no evidence that granting Complainant's request would have imposed an undue hardship. While the Agency eventually provided Complainant with additional telework, it did not do so until 10 months after Complainant's request, and the Commission noted that each day the Agency failed to accommodate Complainant threatened to exacerbate her medical condition. The Agency was ordered, among other things, to investigate the claim for compensatory damages, and provide training for all management and supervisory personnel at the named facility. The Commission found that Complainant failed to prove her claim of harassment or that the Agency failed to accommodate her when it did not reduce her workload. Doria R. v. Nat'l Sci. Found., EEOC Appeal No. 0120152916 (Nov. 9, 2017).

Under Title VII

Racial Harassment Found. The Commission found that Complainant was subjected to a hostile work environment when a co-worker who was previously removed from the workplace for harassing behavior was allowed to return. The events that gave rise to the instant matter arose when a co-worker posted offensive and insensitive materials which referenced issues related to slavery and racially inflammatory topics. The Agency had the offensive materials removed and placed the co-worker on emergency leave. However, when the co-worker filed a grievance concerning her removal, the Agency ordered her return to the workplace. The Commission found that in this situation, where the material posted by the co-worker was so offensive and racially inflammatory such that the Agency initiated an "emergency" removal of the co-worker, the Agency's act of returning the co-worker to that workplace was itself racially hostile and abusive. The Commission rejected the Agency's explanation that the grievance decision required the co-worker's return, stating that the co-worker could have been reassigned to another facility. Therefore, the Commission concluded that the Agency failed to take reasonable care to prevent future harassment. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide training for the responsible management officials. Darcy F. v. U.S. Postal Serv., EEOC Appeal No. 0120162782 (Sept. 19, 2018).

Commission Found Agency Liable for Sexual Harassment. The record was clear that Complainant's supervisor (S1) engaged in numerous instances of unwelcome sexually-related conduct toward Complainant, including sending her inappropriate and sexually charged text messages; making sexually-explicit comments and sexual advances toward her; and engaging in unsolicited, nonconsensual touching. Thus, Complainant established she was subjected to unwelcome sexual conduct from S1 which created an offensive and hostile work environment. The Agency argued that it should not be held liable for S1's actions because it had an anti-harassment policy and procedure in place, Complainant unreasonably delayed notifying the Agency of her allegations, and once it was informed of S1's conduct, it took prompt action to correct the actions of S1, including reassigning him and subsequently removing him. While the record was clear that no further harassment occurred, Complainant contended that the Agency still did not take sufficient remedial measures and corrective action. For example, Complainant argued that the Agency failed to restore the sick leave and leave without pay that she used as a result of the harassment. Further, Complainant claimed that the Agency took no steps to correct other harm she experienced following S1's conduct. The Commission noted that the Agency was under an obligation to take actions to end harassment, to make Complainant whole, and to prevent the misconduct from recurring. Taking only some remedial action does not absolve the Agency of liability where that action is ineffective. Therefore, as the record suggested that the Agency's actions did not fully and effectively correct the effects of the discriminatory harassment, the Agency did not satisfy this element of its affirmative defense, and the Commission found that the Agency was liable for the hostile and offensive work environment created by S1. The Commission affirmed the Agency's final decision as to Complainant's non-sexual harassment hostile work environment, discrimination, and reprisal claims. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and restore any leave used as a result of the discriminatory harassment. Maxine C. v. U.S. Postal Serv., EEOC Appeal No. 0120162531 (Sept. 12, 2018).

Race Discrimination Found Regarding Termination. Complainant alleged that the Agency discriminated against him because of his race (Black) when it terminated his employment, during his probationary period. Following a hearing, the AJ found that the decision to terminate Complainant was based on his race, and the Commission affirmed the AJ's decision on appeal. The AJ's determination was supported by 22 findings of fact, which were not disputed. The AJ found Complainant's testimony was more credible, and the Agency's stated reasons were unbelievable. The record showed that the Agency's stated reason for the termination, that, following an altercation with a Caucasian bagger, Complainant had thrown items on the conveyor belt, bruising the hand of the bagger, was false. In addition, the evidence showed that those employees terminated during their probationary period were predominantly African-American, and that a Caucasian employee who also had an altercation with the bagger did not receive any disciplinary action. To remedy the finding of race discrimination, the Commission ordered the Agency, among other things, to retroactively reinstate Complainant to the position he held prior to the discrimination, to expunge from his record any adverse materials relating to his termination, and to pay him back pay with interest. Sol W. v. Dep't of Def., EEOC Appeal No. 0720180018 (Aug. 15, 2018).

Commission Finds Agency's Office Clearly Rife with Offensive and Racially-Hostile Behavior. The Commission found that substantial record evidence supported the AJ's finding that Complainant did not prove that he was subjected to a discriminatory or retaliatory hostile work environment, and did not show that the Agency's reasons for its actions were a pretext for unlawful discrimination or reprisal. However, the Commission agreed with the AJ that the atmosphere at Complainant's office was clearly rife with offensive and racially-hostile behavior. The record evidence demonstrated that employees at the office, including Complainant's second-level supervisor and another agent, used racial epithets and engaged in racial stereotyping. While Complainant did not witness the racially-insensitive conduct nor was the conduct directed at him, substantial record evidence showed that other African-American employees were subjected to the conduct based on their race. As the AJ noted, while most of the incidents occurred prior to Complainant's arrival, the supervisor responsible for some of the conduct at issue was in Complainant's chain-of-command. The Commission agreed with the AJ that an order of training was warranted under the circumstances present. Thus, the Commission modified the final order to require the Agency to conduct training for the employees in the office regarding race-based harassment, and to consider disciplining the named supervisor and special agent. Ross R. v. Dep't of Homeland Sec., EEOC Appeal No. 0120162491 (July 25, 2018).

Sex Discrimination Found Regarding Nonselection. The Commission affirmed the AJ's decision, following a hearing, finding that the Agency discriminated against Complainant based on his sex when it did not select him for a Trust Fund Specialist position. The Commission rejected the Agency's argument that the AJ substituted her judgment as to which candidate was the best qualified for that of the Selecting Official. The record showed that Complainant served as an Assistant Trust Fund Supervisor on several occasions, including being temporarily appointed to that position for one year. Complainant was also authorized to perform Trust Fund Specialist duties and did so in the Specialist's absence. In contrast, the selectee did not have such experience. Therefore, the AJ correctly concluded that the Agency's determination that the selectee was the best qualified for the position was not supported by the record. The Agency relied on a "reference/vouching system" which was highly subjective and lacking in credibility. Further, the AJ found the testimony provided by the responsible management officials to be inconsistent and lacking in credibility. The Agency did not challenge the AJ's finding of race discrimination regarding an additional nonselection. The Commission affirmed the AJ's award of $90,000 in non-pecuniary compensatory damages, but noted that Complainant was not entitled to interest on the award. The Commission also stated that Complainant's attorney was entitled to be compensated for one-half of her hourly rate, and must submit adequate documentation to support a claim for any costs incurred. Charles E. v. Dep't of Justice, EEOC Appeal No. 0720180006 (July 19, 2018).

Agency Failed to Articulate Legitimate Reason for Changing Complainant's Light Duty Hours. The Commission found that the Agency discriminated against Complainant based on sex when it changed her duty hours while she was on light duty, while four male light-duty comparators retained their duty hours. The Commission rejected the Agency's argument that Complainant and the comparators were not similarly situated because they had different medical restrictions. The Commission found the light duty work given to the male comparators was within Complainant's medical restrictions. Further, Complainant and the comparators worked the same tour (shift), at the same facility, reporting to the same supervisor and officer-in-charge, in the same craft (Mail Handlers), and were covered by the same collective bargaining agreement. Also, when each of the comparators was returned to regular duties, Complainant was not permitted to work their light duty hours. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide three hours of appropriate training to the responsible official. Tanya P. v. U.S. Postal Serv., EEOC Appeal No. 0120160846 (Apr. 30, 2018).

National Origin Discrimination Found Regarding Agency's Implementation of English-Only Rule. The Commission found that the Agency discriminated against Complainant on the basis of national origin when it implemented an English-only rule that was not justified by business necessity. The Agency issued Complainant a Letter of Expectations which directed her and her subordinates to always "use the English language when discussing work topics in the work environment." The Commission found the instruction, on its face, constituted an English-only rule. There was no evidence in the record that requiring employees to speak only English when discussing work topics was necessary for the safe or efficient operation of the Agency. While a supervisor stated that an unnamed employee complained about the use of Tagalong in the workplace because she felt excluded, there was no evidence of a widespread problem involving language-related interpersonal conflicts or derogatory or intimidating conduct. In addition, the Agency could have used a nondiscriminatory alternative, such as individually counseling employees about appropriate workplace conduct to address the problem. The Commission affirmed the Agency's finding that Complainant failed to establish disparate treatment discrimination or a hostile work environment. The Agency was ordered, among other things, to review and revise the English-only rule at issue to ensure violations do not recur, remove the Letter of Expectations from all official records, and investigate Complainant's claim for damages. Minda W. v. Dep't of the Navy, EEOC Appeal No. 0120162040 (Apr. 24, 2018).

Agency Liable for Racial Harassment. The Commission found that the Agency was liable for a co-worker's harassment of Complainant based on his race. The record showed the co-worker constantly bothered Complainant and screamed at him, treating him worse than "everybody else." Further, the co-worker was "in Complainant's business" every chance she got and corrected everything Complainant did. The co-worker was overheard saying Complainant "only got his job because he is black" and that she was afraid of Complainant because he was a "big black man." The co-worker also had a disproportionate reaction to Complainant's verbal comments about the co-worker when she hit the panic button that summoned the Agency police, whose report showed no evidence that Complainant had threatened her. The Commission found the co-worker's comments about race showed the co-worker's actions against Complainant were racially motivated. The Commission stated that the Agency was or should have been aware of the co-worker's harassment but failed to take immediate and appropriate action. The Commission ordered, among other things, a supplemental investigation on compensatory damages, consideration of discipline for the co-worker, and appropriate training. Roderick P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120161268 (Mar. 23, 2018).

Agency Liable for Sexual Harassment. The Commission found that the Agency was liable for a supervisor's sexual harassment of Complainant. The record clearly showed that Complainant's supervisor subjected her to frequent, offensive and sexually-charged text messages, emails and comments for nine months, which intensified when the supervisor sent complainant sexually-explicit videos of him and another Agency employee. The Commission found the challenged conduct was unwelcome because Complainant did not solicit or incite it and regarded the conduct as undesirable or offensive. Specifically, the Commission found no evidence Complainant solicited the sexual comments, advances, sexual videos or physical contact (inappropriate touching and hugging), did not reciprocate or participate in the supervisor's sexual conversations and often ignored and redirected his attention to other matters. The Commission rejected the Agency's finding it should not be held liable because, given the harassment resulted in no tangible employment action, it took reasonable care to prevent and correct the harassing behavior by accepting the supervisor's resignation and granting Complainant telework and allowing her to take leave as necessary. The Commission found that the Agency failed to make Complainant whole and correct the effects of the harassment, and ordered the Agency, among other things, to conduct a supplemental investigation on compensatory damages and restore any leave Complainant used as a result of the harassment. The Commission found that Complainant was not subjected to discrimination or reprisal regarding another allegation in her complaint. Jenna P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120150825 (Mar. 9, 2018).

Race Discrimination Found with Regard to Termination. The Commission reversed the AJ's finding that Complainant, a teacher with the Agency, failed to establish a prima facie case of race discrimination with regard to his termination. Specifically, the AJ found there were no comparators. The Commission, however, noted various witness statements suggested that Complainant's supervisor, the Principal, was biased against Complainant based on his race, and the reasons given for Complainant's termination were a pretext for race discrimination. The Agency's articulated reasons for the termination included Complainant's performance, inability to keep students on task, inability to maintain effective discipline and management, an incident during which two students discharged a fire extinguisher in an unattended classroom, and inability to differentiate instructional techniques and strategies. The Commission found that Complainant established pretext by witness testimony that Complainant was a well-regard teacher. The District Teacher Association President testified that Complainant's mistakes did not justify his termination. The Commission also discredited the supervisor's criticisms as biased based on her statements against interracial adoption, her favoritism of persons not of Complainant's race at social events and her history of treatment of persons of Complainant's race. Therefore, the Commission found that Complainant was discriminated against based on race when he was terminated. The Agency was ordered, among other things, to offer Complainant placement into a probationary teacher position with appropriate back pay and benefits. Hayden K. v. Dep't of Def., EEOC Appeal No. 0120151347 (Jan. 24, 2018).

Agency Liable for Sexual Harassment. The Agency acknowledged in its final decision that Complainant proved she was subjected to sexual harassment at the hands of her co-worker. The Agency also acknowledged that it became aware of the pattern of harassment to which Complainant had been subjected. Thus, the Agency would be liable for the harassment unless it could show that it took appropriate corrective action. The Commission concluded that the Agency did not take appropriate corrective action in this case. The alleged harasser was not disciplined in any manner, nor was he reassigned or required to undergo remedial training. So far as the record reflected, the only corrective action the Agency took was to remove Complainant from the workplace by placing her on administrative leave. The Commission has held that reassigning the person targeted for harassment is not appropriate corrective action. Accordingly, the Commission found that Complainant was subjected to a hostile work environment due to sexual harassment, and that the Agency failed to take appropriate action that would have insulated it from liability. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and conduct training for the responsible management officials. The Commission further found that Complainant failed to prove that she was terminated in retaliation for raising the sexual harassment claim. Margaret M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120151790 (Jan. 11, 2018).

Race Discrimination Found in Regard to Denial of Training. Complainant, a Senior Officer Specialist, filed a formal complaint alleging, among other things, that the Agency discriminated against him based on race (African-American) when it denied him training. According to the record, the former Security Officer attempted to get Complainant approved for certain training, so Complainant would have the opportunity to be promoted. Management however denied Complainant the opportunity to attend the training, citing budgetary reasons. During the same period, management nevertheless allowed two similarly situated Caucasian Officers to take the training at issue, and, shortly thereafter, noncompetitively promoted both Caucasian Officers. Following an investigation, the AJ issued a decision without a hearing in the Agency's favor. On appeal, the Commission found that summary judgment was appropriate, but that Complainant established that he was subjected to disparate treatment based on his race. In so finding, the Commission noted that several witnesses subscribed to Complainant's view that management intentionally foreclosed minorities from career advancement. The Agency acknowledged that the two Caucasian Officers received training, and the Commission stated that the AJ erred in not citing the former Security Officer's statement that management routinely denied training to African-American employees. The Commission concluded that the Agency's stated reasons for its actions were not supported by the record and were unworthy of belief. To remedy the discrimination, the Commission ordered the Agency, among other things, to provide Complainant the training at issue, and noncompetitively promote him in a similar fashion to the two cited Caucasian comparators. The Commission affirmed the AJ's finding that Complainant failed to prove his claim of harassment. Nathan S. v. Dep't of Justice, EEOC Appeal No. 0120151282 (Jan. 9, 2018), request for reconsideration denied, EEOC Request No. 0520180229 (May 11, 2018).

Denial of Religious Accommodation Found. Complainant, a Seventh-Day Adventist, filed a formal complaint alleging, among other things, that the Agency denied him an accommodation not to work on his Sabbath. The Commission has held that while accommodations that would require an employer to regularly pay premium wages such as overtime to substitute employees impose more than a de minimis cost on the employer and could constitute an undue hardship, an agency cannot raise the issue of overtime or any other financial or logistical issue as an undue hardship until it demonstrates that it made a reasonable effort to find an accommodation that would enable Complainant to practice his religion without having to worry about losing his job. In this case, neither the Postmaster nor the Customer Service Manager made any effort to look into the possibility of schedule swaps or any other type of accommodation, and the Manager admitted as much. Consequently, the Agency could not support its assertion that granting Complainant his request to have Saturdays off would have caused an undue hardship by forcing it to incur overtime. The Commission found that the Agency denied Complainant's request for a religious accommodation when it refused to allow him to have Saturdays off. The Agency was ordered, among other things, to investigate Complainant's claim for damages and provide appropriate training for the responsible officials. The Commission affirmed the Agency's finding of no discrimination with regard to other claims. Mac O. v. U. S. Postal Serv.,,EEOC Appeal No. 0120152431 (Nov. 29, 2017).

Agency Failed to Articulate Legitimate, Non-Discriminatory Reason in Claim of Race Discrimination. Complainant filed a formal EEO complaint claiming she was discriminated against based on her race when she did not receive her Quality Step Increase (QSI), and was denied a promotion. The Agency ultimately determined that Complainant failed to prove discrimination. On appeal, the Commission initially found that Complainant established a prima facie case of race discrimination. Specifically, the record showed that while Complainant's second-level supervisor recommended her for a QSI, upper-level management failed to act on the recommendation, effectively denying Complainant the QSI. During the same time, however, Caucasian employees received QSIs. In addition, after Complainant was selected for a promotion, upper level management refused to place her in the position. The Commission found that the Agency failed to meet its burden to rebut this presumption of discrimination. The management officials did not sufficiently explain why they declined to approve the QSI recommendation or place Complainant into the higher-level position. Therefore, Complainant prevailed in establishing that she was discriminated against based on her race. The Agency was ordered, among other things, to retroactively provide Complainant with the QSI and the promotion, along with an award of back pay with interest for both, and investigate Complainant's claim for compensatory damages. Danielle H. v. Dep't of Def., EEOC Appeal No. 0120152515 (Oct. 19, 2017).

Under Multiple Bases

Commission Found Agency Liable for Sexual and Retaliatory Harassment, and Unlawfully Accessing Complainant's Medical Files. Complainant worked as a Medical Support Assistant at an Agency medical facility. She filed a formal EEO complaint alleging that one of the physicians at the facility (GYN) sexually harassed her; co-workers and other Agency employees subjected her to retaliatory harassment; and a supervisor improperly accessed her medical information. The Commission found that Complainant successfully proved all three of her claims. Specifically, Complainant was subjected to a hostile work environment that included, among other things, inappropriate touching and kissing, and GYN persistently asserting that he wanted to have sex with Complainant. Further, the Agency failed to take immediate and appropriate corrective actions. The record showed that the Agency was aware that GYN had previously engaged in such conduct with other employees, and continued to do so despite the Agency's attempts at corrective action. Not only did the Agency do very little to correct GYN's conduct, the evidence showed that the Director (on at least one occasion) affirmatively instructed the EEO Manager not to investigate a complaint against GYN, effectively preventing an EEO inquiry that might have resulted in protective steps to prevent future misconduct and harassment. Even after learning of GYN's actions toward Complainant, the Agency failed to take immediate and appropriate corrective action, and there was no indication whatsoever that the Agency conducted its own internal investigation into Complainant's serious allegations. Of further note, the Commission found that the numerous false and denigrating rumors circulating in the workplace and management's efforts to threaten Complainant with discipline were designed to damage Complainant's reputation and discredit her sexual harassment allegations. Given the purpose behind the rumors and threats, which occurred within days after Complainant reported the sexual harassment, the Commission found that Complainant had sufficiently established the harassing conduct was motivated by Complainant's protected EEO activity. Lastly, the undisputed record showed that a supervisor retrieved and viewed Complainant's confidential medical records, which included the specifics about a medical procedure, as well other aspects of Complainant's medical history. Accessing Complainant's medical files without Complainant's prior knowledge or authorization was a violation of the Rehabilitation Act. The Agency was ordered, among other things, to restore all leave taken by Complainant as a result of the harassment, investigate Complainant's claim for damages, and provide training to the appropriate management and Human Resources employees. Taryn S. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120162172 (Sept. 14, 2018), request for reconsideration denied, EEOC Request No. 2019000439 (Feb. 5, 2019).

Race & Age Discrimination Found Regarding Nonselection. Complainant, a Senior Federal Air Marshal, alleged that she was not promoted to a Transportation Security Inspector-Surface (TSI-S) position because of her sex and age. On appeal, the Commission found that Complainant established a prima facie case of discrimination, and that the Agency articulated legitimate, non-discriminatory reasons for Complainant's nonselection. Specifically, selection panelists indicated that Complainant was ranked last for the position because she failed to provide outcomes to situations presented by the interview panel, answered questions briefly with little detail, and, at times, did not understand the questions or have relevant answers. However, the Commission concluded that Complainant was better qualified for the position than the selectee based upon having served as a Senior Air Marshal with the Agency for over 10 years; worked as Federal Police Officer for the Federal Bureau of Investigation; and earned a Bachelor's Degree in Criminal Justice and completed substantial work on a Master's Degree in Organizational Leadership. Additionally, the Commission determined that the panelists' explanations were suspiciously thin and not supported by the record because they did not specify how Complainant's responses purportedly failed to provide outcomes to situations, or lacked detail. Further, the interview notes did not show that Complainant's responses were deficient. Consequently, the Commission found that the Agency's explanations were unworthy of belief and pretext for age and sex discrimination. The Commission ordered the Agency, among other things, to offer Complainant retroactive appointment to the position, with back pay and benefits with interest, and investigate her claim for compensatory damages. Mafalda H. v. Dep't of Homeland Sec., EEOC Appeal No. 0120170996 (July 27, 2018).

Sex Discrimination & Reprisal Found. Complainant, a Senior Fellow, filed an EEO complaint alleging that she was discriminated against based on sex (pregnancy), and reprisal, when her supervisor (S1) made disparaging remarks about her pregnancy; subjected her to increased scrutiny and reporting requirements related to her telework; required her to apply leave retroactively to dates and times when S1 knew she worked; terminated her alternate work schedule (AWS); and did not extend her fellowship. The Commission found that Complainant established a prima facie case of sex and reprisal discrimination, and then demonstrated that the Agency's reasons were pretext for discrimination. Regarding Complainant's telework reports, the record showed that she submitted extensive narratives, and clearly met the reporting requirements. Additionally, emails between Complainant and S1 showed that he knew she was working more than eight hours a day, but still asked her to take leave, and did not approve all her work hours. S1 stated that he denied Complainant an AWS due to a lack of coverage. However, the record showed that Complainant was meeting her work requirements, and that she was responsive and accountable while using workplace flexibilities. The Commission found that the Agency did not articulate a legitimate, nondiscriminatory reason for not renewing her fellowship because S1's assertion that Complainant had performance problems was not supported by any documentation. Further, Complainant had shown pretext because management's responses were inconsistent. Accordingly, the Commission concluded that the preponderance of the evidence supported Complainant's claim that she was subjected to sex and reprisal discrimination. The Agency was ordered, among other things, to provide Complainant with a fellowship, or similar position, with an opportunity to extend on a yearly basis (similar to other fellows); conduct a supplemental investigation to determine compensatory damages; and provide training to the responsible management officials. Reita M. v. Agency for Int'l Dev., EEOC Appeal No. 0120161608 (July 17, 2018).

Sex and Reprisal Discrimination Found Regarding Denial of Overtime. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on sex and in reprisal for prior EEO activity when it denied her overtime on three occasions. The Agency issued a decision finding no discrimination, and the Commission reversed the Agency's decision on appeal. The Commission disagreed with the Agency's assertion that Complainant failed to establish a prima facie case of reprisal, stating it was clear that Complainant's supervisor, who was named as the responsible official in Complainant's prior complaint, untruthfully attested that he had no knowledge of Complainant's prior EEO activity. Further, the Agency did not address Complainant's contention that the supervisor responded to the EEO Counselor in connection with the former complaint. Therefore, Complainant established a prima facie case of reprisal. The Commission also found that Complainant established a prima facie case of sex discrimination, because the record showed that two male employees worked overtime on the dates in question while Complainant did not. Complainant and the two comparative employees all worked in the same section and were all placed on the overtime desired list. While the supervisor stated that he simply made an error in not assigning Complainant overtime and she was later provided with make-up dates, the Commission found that the supervisor's credibility was undermined by his untruthful statement regarding the prior EEO complaint. Further, he later stated, during the investigation, that there was no reason to offer make-up overtime and he had not done so. The record also contained a statement from a Union Steward expressing her belief that the supervisor had been assigning overtime in violation of Agency policy. The Commission found that Complainant established that the Agency's reasons for not providing Complainant with overtime were pretexts for discrimination. The Agency was ordered to pay Complainant overtime for the dates in question in the amount accrued by the comparators, and investigate her claim for compensatory damages. Pamila R. v. U.S. Postal Serv., EEOC Appeal No. 0120160810 (June 29, 2018).

Sex & Age Discrimination Found Regarding Nonselection. The Commission found that the Agency discriminated against Complainant based on sex and age when it did not select her for a supervisory position. The Agency presented a certificate showing that the selectees were ranked higher than Complainant on the promotional assessment test. However, the record did not contain the candidates' scores, any information about the assessment test, how the scores were derived, or the relevance of the test to the position. Also, while the recommending official stated the selectees' work performance was above Complainant's, this was a bare assertion that did not identify any aspect of work performance where the selectees exceeded Complainant's performance. For these reasons, the Commission found the Agency failed in its burden to articulate a legitimate non-discriminatory reason for the non-selection. The Commission also found that Complainant's qualifications, by virtue of her prior law enforcement and supervisory experience, were plainly superior to those of the selectees. The Commission ordered the Agency, among other things, to place Complainant in the position with back pay and interest, and investigate her claim for compensatory damages. Felisha A. v. Dep't of Homeland Sec., EEOC Appeal No. 0120162314 (Jun. 5, 2018), request for reconsideration denied, EEOC Request No. 0520180497 (Sept. 27, 2018).

Agency Liable for Sexual Harassment & Retaliation. The Commission found that the Agency was liable for co-worker sexual harassment. Specifically, the Agency failed to take appropriate corrective action by not removing the co-worker from Complainant's work area during the investigation, resulting in Complainant having to request leave or reassignment. The Commission also found that the Agency retaliated against Complainant when it did not take steps to ensure that the co-worker was not working with Complainant during the investigation, threatened to charge her with being absent-without-leave if she did not return to her work station, had Complainant take leave, and ultimately forced her to request reassignment to another position due to the Agency's inaction in removing the alleged harasser. The Commission has stated that an agency may need to take intermediate action pending the investigation of a harassment claim, such as transferring the alleged harasser, to ensure further harassment does not occur. The Agency was ordered, among other things, to offer to retroactively restore Complainant to her former position, restore any leave Complainant used due to the unlawful harassment, and investigate her claim for damages. Danita S. v. Dep't of Transp., EEOC Appeal No. 0120161096 (May 17, 2018).

Agency Violated Rehabilitation Act by Sending Complainant for Fitness-for-Duty Examination and Retaliated Against Her. The Commission found that the Agency violated the Rehabilitation Act when it instructed Complainant to submit to a fitness-for-duty examination (FFDE). Agencies can only order an FFDE where there is a business necessity to show an employee cannot perform the essential functions of the position or where the employee is a direct threat of injury to herself or others. The Agency's disbelief of already provided medical evidence of Complainant's disability did not justify the FFDE. The Commission also found that the Agency retaliated against Complainant when it provided her with a lower performance appraisal. Complainant established a connection between the lower appraisal and her request for reasonable accommodation. Because the denigration in her appraisal was related to her absence from a particular location due to her reasonable accommodation, this amounted to punishing her for seeking a reasonable accommodation and thus violated the Rehabilitation Act. The Commission found that Complainant failed to establish that she was denied reasonable accommodation. The Agency was ordered, among other things, to retroactively raise Complainant's performance rating, and investigate her claim for damages. Giselle W. v. Dep't of Justice, EEOC Appeal No. 0120162671 (May 14, 2018), request for reconsideration denied EEOC Request No. 0520180518 (Sept. 27, 2018).

Agency Failed to Articulate Legitimate Reason for Complainant's Non-selection. Complainant filed a formal EEO complaint, claiming that the Agency discriminated against her based on race and age when she was not selected for the position of Supply Technician. The Agency determined that even though Complainant met her burden of establishing a prima facie case of discrimination, management provided legitimate, nondiscriminatory reasons for its actions, and Complainant failed to prove that those reasons were pretext for discrimination. Specifically, the Agency, citing to representations in the EEO counseling report, found that the selectee was chosen because she "interviewed well," and articulated that she could multi-task, and work well under pressure. On appeal, the Commission found that the management officials responsible for the selection failed to provide a legitimate explanation for not selecting Complainant. The investigation obtained no sworn affidavits or other testimony from the selecting official or any of the three panel members. Without the appropriate affidavit or other evidentiary documents clearly demonstrating the specific reasons why Complainant was not selected, there was no legitimate, nondiscriminatory reason set forth which Complainant could rebut. The Commission acknowledged that while the record contained the EEO Counselor's representations of interviews with the officials involved in the selection, these representations were insufficient to meet the Agency's burden. The Commission ordered the Agency to, among other things, place Complainant into a substantially equivalent position, retroactive to the date of her non-selection, and pay her appropriate back pay and benefits. Toshia F. v. Dep't of the Army, EEOC Appeal No. 0120160388 (Feb. 28, 2018).

Hostile Environment Based on Sex & Retaliation Found. Complainant, a Management Program Analyst, appealed from the Agency's decision that she was not subjected to discrimination and a hostile work environment when she experienced an incident of unwanted touching by her supervisor. Complainant reported the incident to other managers, but there was no indication that the Agency took action to prevent further harassment. Instead, the Chief Deputy became aggressive toward Complainant in his everyday interactions. This continued for approximately two years. The Commission concluded that the Chief Deputy's actions toward Complainant created a hostile work environment based on sex and reprisal. Given the duration and nature of the actions and the evidence in support of Complainant's allegations, it was apparent that Complainant's work environment was objectively hostile. There was also a basis for imputing liability to the Agency because the Chief Deputy was a supervisor and there was no indication that the Agency took sufficient action to prevent or correct the hostile environment. The Agency was ordered, among other things, to investigate Complainant's entitlement to compensatory damages and restore any leave taken by Complainant to avoid or recover from the harassment. Erline S. v. Dep't of Justice, EEOC Appeal No. 0120160618 (Feb. 22, 2018).

Agency Failed to Articulate Legitimate Reason for Complainant's Non-selection. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race, national origin, age, sex, and reprisal when it did not select him for a position. The Commission initially found that Complainant established a prima facie case because he was qualified for the position, and all of the selectees were significantly younger than Complainant. Further, at least one of the selectees was outside of Complainant's other protected groups. The Commission then concluded that the Agency failed to articulate a specific, clear, and individualized explanation for Complainant's non-selection such that Complainant was denied a fair opportunity to demonstrate pretext. The selecting official only stated generally that the selectees were the most highly qualified candidates and would be the most effective leaders. The selecting official did not point to any objective facts to support her vague conclusions, and failed to provide specific examples of why she believed the selectees were better qualified. Therefore, the Agency failed to rebut the inference of discrimination created by the prima facie case, and the Commission found that Complainant's non-selection was discriminatory. 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. Elliot J. v. Soc. Sec. Admin., EEOC Appeal No. 0120161848 (Feb. 22, 2018).

Sex & Age Discrimination Found Regarding Non-selection. Complainant filed a formal complaint alleging, among other things, that the Agency discriminated against him on the bases of sex and age when it did not select him for a Supervisory IT Specialist position. The Investigator did not interview the selecting official because he was no longer employed by the Agency. The EEO counselor's report included an unsworn statement by the selecting official stating he received a certified list of candidates with 38 names, reduced the list to the five he considered best qualified to interview and chose the selectee based on merit, including her 13 years IT experience, the fact that she was well-known by customers, and her exemplary customer service attributes. The Commission found that the Agency failed to provide a specific, clear, and individualized explanation for its treatment of Complainant so that it failed in its burden to articulate a legitimate, non-discriminatory reason for its non-selection. The Commission stated that the record was bereft of information concerning how the selecting official identified the candidates for interview and how he chose the selectee over Complainant, who had 19 years IT experience. The Commission ordered the Agency, among other things, to place Complainant in the Supervisory IT or substantially equivalent position with back pay. William G. v Dep't of Def., EEOC Appeal No. 0120160837 (Feb. 14, 2018).

Denial of Reasonable Accommodation & Reprisal Discrimination Found. Complainant, who had a mixed connective tissue disease, alleged she was denied a reasonable accommodation, and subjected to reprisal when the Agency included certain elements in her work commitments. Complainant requested to telework an additional day each week due to her extended commute and per her doctor's recommendation. However, Complainant was placed on a new team with "face-to-face" and "physically available" commitments. On appeal, the Commission found that Complainant could perform essential function of her job with a reasonable accommodation of telecommuting. Complainant identified a reasonable accommodation of telecommuting two days a week and fully complied with Agency procedures. Rather than provide the requested accommodation, however, the Agency denied Complainant's request, and only months later granted situational telework. The Commission found that this was ineffective, because Complainant's condition merited consistent telework to address her symptoms and to prevent exacerbation of her condition. While Agency managers indicated that there was not sufficient work for Complainant to do while teleworking, no basis was shown for this assertion. The Commission cited significant issues with the manner in which the Agency engaged in the interactive process, including continuing to require further medical documentation despite the fact that the Agency already had the information in its possession. The Commission concluded that the Agency did not make a good faith effort to provide Complainant with reasonable accommodation. The Commission also found that Complainant was subjected to reprisal when her work commitments were revised to include terms like "face to face" and "physically available." The Commission noted the close temporal proximity between Complainant's request for reasonable accommodation and the change in her work commitments, and stated that Complainant was the only employee impacted by the reassignment whose new commitments evinced a clear disapproval of telework. The Agency was ordered, among other things, to provide Complainant with the option of teleworking two days per week if she still occupied her position or a similar position, investigate Complainant's claim for damages, and provide appropriate training for the responsible management officials. Alejandrina L. v. Dep't of State, EEOC Appeal No. 0120152145 (Nov. 16, 2017).

Agency Denied Complainant Reasonable Accommodation & Discriminated Against Him Based on Disability & Reprisal. Complainant was reassigned to the position of City Carrier at another facility when his facility closed. Complainant filed an EEO complainant alleging that the Agency discriminated against him on the bases of disability and reprisal for prior protected EEO activity when it placed him into a Letter Carrier position outside of his medical restriction, and subsequently told him that there was no work available and sent him home. On appeal, the Commission found that the Agency denied Complainant reasonable accommodation and discriminated against him based on disability and prior EEO activity. The Agency did not dispute that Complainant was a qualified individual with a disability. The Commission found that the Agency reassigned Complainant to a City Carrier position that it already knew he could not perform because of his disability. The Agency did not show that it would have been an undue hardship to reassign Complainant to a position he could have performed, and in fact, the Agency gave such a position to another employee because she did not have a driver's license. The Commission found that the Agency's offer of a part-time position that was not equivalent to Complainant's Clerk position in pay or status did not satisfy the Agency's Rehabilitation Act obligations. Further, the Commission found that sending Complainant home because his impairment did not relate to an on-the-job injury was not a legitimate, nondiscriminatory reason, because the Agency has obligations under the Rehabilitation Act independent of its obligations with respect to employees injured on the job. The Agency was ordered, among other things, to identify all vacant, funded positions or assignments with equivalent pay and status to Complainant's original full-time position, determine which positions Complainant can perform, and place Complainant into a vacant position if one is identified. Victor S. v. U.S. Postal Serv., EEOC Appeal No 0120160739 (Oct. 18, 2017).

Retaliation

Retaliation Found Regarding Reassignment. Complainant suffered from Irritable Bowel Syndrome, causing him to experience gas, and alleged that his coworkers complained and harassed him about his behavior related to the condition. When Complainant reported the alleged co-worker conduct to management, the Agency transferred him to another location. While Complainant did not raise the basis of reprisal, the Commission found, in the interest of judicial economy, that the record clearly demonstrated the Agency transferred Complainant to another location in reprisal for reporting co-worker harassment. The Commission ordered the Agency, among other things, to return Complainant to his previous position, and investigate his claim for damages. Ahmad S. v. U.S. Postal Serv., EEOC Appeal No. 0120170386 (Sept. 25, 2018).

Retaliation Found Regarding Nonselection. Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against him in reprisal for his prior protected EEO activity when it did not select him for the position of Supervisory Strategic Sourcing Chief. After an investigation, the Agency issued a decision finding no discrimination. On appeal, the Commission found that Complainant had established his qualifications for the position at issue were clearly superior to those of the selectee. Complainant maintained that the selection process and criteria were altered to favor the selectee. Complainant also argued that the selectee's lack of program management experience was ignored, as was Complainant's competitive sourcing experience, his multiple successful implementation of strategic sourcing methods and his recent supervisory experience. The Commission largely agreed with this Complainant, noting that while the selectee had some significant experience, Complainant clearly had more program management experience, a significant amount of supervisory experience, and strong communication skills, as well as significantly more experience overall at the Agency. The Commission found that the record supported a finding that Complainant's non-selection was attributable to reprisal. The Commission had issued a finding of discrimination in Complainant's prior EEO complaint, and the Agency was implementing the ordered remedies at the time of the selection process at issue in the instant complaint. Complainant noted that his successful outcome in his prior complaint was widely known at the facility as it had been announced in a town hall meeting earlier that year and there was a posting that the Agency had discriminated against him. The Commission discerned that the evident downgrading of Complainant's credentials, upgrading of the selectee's qualifications and inconsistency from the selecting official and Director about the importance of supervisory experience were indicative of retaliatory motivation. Although the Commission found that reprisal occurred, it did not find that Complainant's disability, age, or sex were factors in his non-selection. The Agency was ordered, among other things to offer Complainant the position in question or a substantially equivalent position, pay him appropriate back pay and benefits, including compensation for any adverse tax consequences, and investigate his claim for damages. Norberto G. v. Dep't of Def., EEOC Appeal No. 0120160311 (Sept. 14, 2018).

Retaliation Found. Complainant alleged, among other things, that her supervisor (S1) lowered her annual performance evaluation from Exceptional to Fully Successful because of her prior EEO activity. After an investigation, the Agency issued a decision finding no discrimination. On appeal, the Commission reversed the Agency's final decision, in part, finding that Complainant had shown she was subjected to reprisal with respect to her lowered performance evaluation. Specifically, the Commission found that S1's non-retaliatory reasons for rating Complainant Fully Successful were a pretext for retaliatory animus. The Commission stated that S1 exhibited an inexplicable change in behavior toward Complainant around the time of her prior EEO activity; and lacked credibility with respect to the bases for the dramatic reduction of Complainant's performance rating. Further, the evidence established that Complainant was an outstanding employee who consistently performed well beyond what was expected, and S1's performance rating decision occurred less than a month after Complainant raised an EEO-related hostile work environment claim. The Agency was ordered, among other things, to retroactively raise Complainant's performance rating, issue her any awards she would have received had she received the higher rating, and investigate her claim for damages. The Commission affirmed the Agency's finding of no discrimination regarding Complainant's claim that she was denied reasonable accommodation. Michelle N. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120162415 (Aug. 9, 2018).

Retaliation Found. On appeal, the Agency challenged the AJ's finding of reprisal with respect to a Letter of Counseling issued to Complainant for storing and transmitting numerous inappropriate images. At the outset, the Commission agreed with the AJ that Complainant engaged in protected EEO activity when she provided a statement outlining her immediate supervisor's (S1) inappropriate sexual comments to her. The Commission then discerned no basis to disturb the AJ' s finding of discrimination. It was undisputed that the examination of Complainant's computer stemmed from the investigation of S1. During the investigation, the Agency also discovered inappropriate material on Complainant's computer. Both Complainant and the Deputy Director testified that while there were other people involved in inappropriate email exchanges, as well as storing inappropriate material on their computers, Complainant was the only person to receive a Letter of Counseling. None of the other employees received any communication about the inappropriate images shared electronically, or stored on their work computers. While the Commission agreed that the Agency articulated a legitimate reason for issuing a Letter of Counseling to Complainant, it found problematic that no explanation was given for why the investigation and issuance of a Letter of Counseling stopped with Complainant, and did not include others who were identified as also having participated in the inappropriate behavior. In sum, substantial evidence in the record supported the AJ's finding that Complainant established unlawful discrimination based on reprisal for prior EEO activity when the Agency subjected her to a higher level of scrutiny after discovering inappropriate images on her computer. The Commission concluded that there was precedential support for the AJ's award of $5,000.00 to compensate Complainant for the harm she suffered because of the Agency's actions, and found no persuasive reason for reducing the AJ's attorney's fees award. Eleni M. v. Dep't of Transp., EEOC Appeal No. 0720160021 (July 25, 2018).

Retaliation Found. Preponderant evidence established that Complainant was issued a letter of counseling by her supervisor for reporting harassment to individuals designated to receive such complaints. Because of her report of harassment to senior managers, Complainant's supervisor also reduced Complainant's performance evaluation, and included in his commentary that she needed to follow the chain of command. Complainant, therefore, established that she was subjected to adverse actions based upon her protected activity. The Commission noted that a reasonable employee in Complainant's circumstances would be deterred from engaging in protected activity if a letter of counseling and lowered performance evaluation resulted from a report of harassment. Therefore, the Commission found that Complainant proved by a preponderance of the evidence that she was subjected to a hostile work environment based on reprisal. Complainant, however, did not prove a hostile work environment based on sex. Colleen M. v. Dep't of Justice, EEOC Appeal No. 0120161381 (June 26, 2018).

Retaliation Found. Complainant filed an EEO complaint alleging that the Office Director advised her temporary Detail Supervisor that she had previously filed an EEO complaint. Specifically, during the EEO counseling of a previous complaint, the Director of the Financial Management Directorate (the Director) contacted Complainant's Detail Supervisor and informed her that Complainant was engaged in settlement discussions for an EEO complaint. The parties concurred that the Director spoke with the Detail Supervisor about Complainant's prior EEO activity. The Director contended that she discussed Complainant's prior EEO activity with the Detail Supervisor only to reach a settlement by finding Complainant a permanent assignment in the Office in which she had been detailed. Although this was a legitimate, nondiscriminatory reason, the Commission found that Complainant established that the Director's explanation was a pretext for discrimination. The record reflected that the Director inquired first about Complainant's performance, subsequently inquired about whether there was a permanent, assignment available for her, and only mentioned Complainant's EEO activity after being advised that there were not any available vacant positions. Therefore, the Commission found no justification for disclosing Complainant's prior EEO activity. The Commission found that the Director's decision to mention Complainant's prior EEO complaint would have deterred a reasonable person from engaging in protected activity, and this conversation by design would have the effect of intimidating and/or interfering with Complainant's EEO activity. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training to the Director. Jazmine F. v. Dep't of Def., EEOC Appeal No. 0120162132 (June 22, 2018).

Retaliation Found Regarding Nonselection. The Agency gathered a panel to screen and conduct interviews of candidates for a Contract Administrator position. After Complainant's interview, but before the panel solidified the rankings, a manager on the panel who had previously worked with Complainant performed an internet search of Complainant's name and reported to the panel that Complainant had engaged in prior EEO activity while at another agency. The manager described Complainant as a "high risk" candidate. Another panel member stated he was concerned about Complainant's ability to work in a team setting, which was based on information from the manager regarding Complainant's previous work history. The manager admitted that he considered Complainant's EEO activity in his decision not to recommend Complainant, and stated that the other panelists may have been influenced as well. The Commission found that this constituted direct evidence that an impermissible factor was considered during the hiring process. While the record revealed that there were other factors that contributed to Complainant's nonselection, including the quality of his interview, the Commission found that Complainant proved by a preponderance of the evidence that he was subjected to reprisal discrimination during the selection process. However, Complainant did not prove by a preponderance of the evidence that he was subjected to discrimination with regard to the remaining 21 non-selections raised in his complaint. The Agency was ordered, among other things, to provide appropriate training to the panel members and selecting official, and consider taking disciplinary action against them for the discrimination. King W. v. Dep't of Def., EEOC Appeal No. 0120160925 (June 19, 2018).

Retaliation Found Regarding Non-Promotion. Complainant filed an EEO complaint alleging that the Agency discriminated against her based on reprisal when it did not promote her to a GS-6 position. Complainant contended that she was previously sexually harassed by a supervisor, and she requested to be moved to a location at her workplace that was not open to the public in order to avoid any confrontation with the prior supervisor who continued to come to her workplace. Complainant stated that when she was subsequently transferred, she was denied a promotion for which she was previously qualified. On appeal, the Commission noted that the Agency stated legitimate, nondiscriminatory, reasons for the alleged adverse actions. Specifically, the Agency explained that Complainant was not promoted because she was not occupying a position that was eligible for the noncompetitive promotion. The Commission found, however, that Complainant demonstrated that the Agency's stated reasons were pretextual. Complainant and her union representative confirmed that the Chief told Complainant she would be moved to a position which would allow for a GS-6 promotion given the fact that she was already working in such a position. Further, Complainant's SF-50 was never updated to reflect the move, and management's response indicated a degree of deliberateness to the initial action of transferring Complainant to a position in which she would not be promoted. Due to the Agency's actions, Complainant received a significantly less desirable reassignment after a report of harassment, which the Agency did not dispute occurred. Accordingly, Complainant proved by a preponderance of the evidence that she was subjected to reprisal. The Agency was ordered, among other things, to promote Complainant to the GS-6 level in her current position or a substantially equivalent position, and pay her appropriate back pay and benefits. Susann G. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120162437 (May 25, 2018).

Retaliation Found. Complainant emailed an Agency administrator after being denied reasonable accommodation, and the email was eventually forwarded to Complainant's immediate supervisor. The supervisor discussed the email with Complainant and then placed Complainant on administrative leave and had her escorted from the workplace. Thereafter, the supervisor issued Complainant a five-day suspension because of the email matter and for disruptive behavior for not following instructions. Following the email incident, the supervisor reviewed Complainant's emails, and after discovering excessive use of email for personal matters during business hours, issued Complainant a memorandum regarding her computer usage. The Commission found that the supervisor's actions constituted retaliation, because they were likely to have a chilling effect and deter employees from exercising their EEO rights. The actions all stemmed from Complainant's attempt to assert a claim of discrimination, and Complainant's original email constituted protected EEO activity. The Commission noted that the Agency did not argue or show that it would have taken the same actions even absent the retaliation. The Agency was ordered, among other things, to expunge the memorandum, pay Complainant any back pay resulting from the suspension, and investigate her claim for compensatory damages. The Commission affirmed the Agency's finding of no discrimination with regard to other issues in the complaint. Dominica H. v Dep't of Health & Human Serv., EEOC Appeal No. 0120150971 (Nov. 22, 2017).

Retaliation Found Regarding Reassignment. Complainant filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her for prior EEO activity when it reassigned her. Following an investigation, the Agency issued a decision finding that Complainant failed to prove her allegation of retaliation, but the Commission reversed the Agency's decision on appeal. The Assistant Chief acknowledged that he reassigned Complainant because she alleged harassment by her supervisor. While the Agency maintained that it had a duty to promptly correct alleged supervisory harassment, the Assistant Chief indicated that he learned of Complainant's harassment allegations several years prior to the reassignment but did not investigate the matter because Complainant did not have any documentation. The Commission found it suspicious that the Assistant Chief suddenly found sufficient grounds to respond to Complainant's allegations after she initiated an EEO complaint. Further, reassigning Complainant was not the appropriate response for the Agency to take as it is generally improper to reassign an alleged victim of harassment instead of the perpetrator. While Complainant may have agreed to the reassignment, the Commission found that Complainant reasonably believed that she had little choice in the matter, which was reinforced by the Assistant Chief's refusal to rescind the reassignment after Complainant later objected to it. The Commission found that the Assistant Chief's actions were unlawful retaliation because they were reasonably likely to deter Complainant and other employees from engaging in EEO activity. The Commission therefore ordered the Agency, among other things, to offer to reinstate Complainant to her previous position, investigate her claim for damages, and provide appropriate training to all managers and supervisors at the named facility. The Commission affirmed the Agency's finding of no discrimination on Complainant's other claims of hostile work environment harassment. Leonarda S. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120152303 (Nov. 17, 2017).

Mixed Motive

Commission Found AJ Erred in Applying Mixed-Motive Analysis. Complainant, an Air Traffic Control Specialist, filed an EEO complaint alleging that the Agency retaliated against him when it assigned him an operational error, placed him on a 90-day Opportunity to Demonstrate Acceptable Performance (ODAP) plan, and demoted him to a lower-level facility. While an AJ found that the Agency retaliated against Complainant for protected EEO activity, the AJ concluded that the case was a mixed-motive case, which precluded awarding personal relief such as compensatory damages. Specifically, the AJ cited a supervisor's personal dislike for Complainant as the alternate motive for the actions cited. On appeal, the Commission noted that mixed-motive cases are those where there is evidence that discrimination was one of multiple motivating factors for an employment action, i.e., in which the Agency acted on the bases of both lawful and unlawful reasons. In this matter, the Commission found the record did not support the AJ's conclusion that there was evidence of multiple motivating factors for the employment actions. According to the record, the supervisor disliked Complainant in large part because Complainant had filed an EEO complaint alleging the supervisor assaulted him. Therefore, the supervisor's dislike for Complainant was not a motivating reason that was separate from the supervisor's retaliatory motive, and his intense personal dislike for Complainant was not a lawful reason for taking the employment actions against Complainant. As such, the mixed-motive analysis did not apply, and Complainant was entitled to personal relief, including reinstatement, compensatory damages, and back pay. Emery S. v. Dep't of Transp., EEOC Appeal No. 0120180727 (Sept. 27, 2018).

Mixed Motive Analysis Discussed. The Commission affirmed the AJ's finding that while Complainant was subjected to reprisal when he was terminated from his Trainee position, the evidence showed the Agency would have terminated Complainant even absent the impermissible motive. According to the record, several supervisors reported that Complainant's performance needed improvement, and Complainant's second-level supervisor stated he received mostly negative feedback about Complainant's performance. Complainant's first-level supervisor initially decided to reassign Complainant to a different crew, but ultimately recommended that Complainant be terminated 30 minutes after learning that Complainant initiated an EEO complaint. Therefore, substantial evidence supported the AJ's finding of reprisal. Nevertheless, the manager who made the decision to terminate Complainant had no knowledge of Complainant's EEO activity, and based his decision on the results of an investigation into Complainant's conduct. Specifically, the investigation showed Complainant engaged in incidents of inappropriate and intimidating conduct toward others in his vanpool. The Commission found that the AJ properly determined that the manager would have terminated Complainant even absent an impermissible motive. The Commission also affirmed the AJ's finding that Complainant failed to prove his claim of harassment. Heath P. v. Dep't of the Navy, EEOC Appeal No. 0120162808 (July 17, 2018), request for reconsideration denied, EEOC Request No. 2019000048 (Feb. 14, 2019).

Mixed Motive Analysis Discussed. The Commission found that the Agency retaliated against Complainant when it did not select him for substitute teaching assignments. The Commission also recognized that the Agency presented legitimate reasons for its decision. The Commission's regulations define cases such as this, where there is evidence that discrimination was one of multiple motivating factors for an employment action, i.e., in which an agency acted on the bases of both lawful and unlawful reasons, as "mixed motive" cases. Once a complainant demonstrates that discrimination was a motivating factor in an agency's action, it is the agency's burden to demonstrate by clear and convincing evidence that it would have taken the same action even if it had not considered the discriminatory factor. If an agency can make this demonstration, a complainant is not entitled to personal relief, i.e., damages, reinstatement, hiring, or costs. Here, the Commission concluded that the Agency met its burden of demonstrating that the same decisions to award teaching assignments to other substitute teachers rather than Complainant would have been made even absent discrimination. The addition of a sizable number of other qualified substitute teachers afforded the school more, and potentially better, options to serve in the substitute positions when they arose. Further, Complainant was reported for failing to follow a teacher's lesson plan, and received a verbal counseling from the Principal following a parent complaint. Additionally, Complainant exhibited a less than pleasant demeanor toward certain school personnel during the relevant period. Therefore, the same decisions to award substitute teaching positions to others rather than Complainant would have been made even absent the retaliation. Leonard H. v. Dep't of Def., EEOC Appeal No. 0120150843 (Jan. 19, 2018).

Mixed Motive Discussed. Complainant alleged that he was discriminated against based on disability and reprisal when his warrant authority was removed and when management accused him of poor performance. The Agency acknowledged that Complainant's disability may have been a motivating factor in the decision to remove Complainant's warrant authority, but concluded that management would have taken the same actions even if the discriminating factor had not been present. Specifically, the record showed that Complainant was legitimately questioned about significantly exceeding his warrant authority, was unable to properly answer the questions posed, and instead responded angrily that he no longer wanted the warrant. Complainant refused the Agency's offer to provide him with more supervision and training. On appeal, the Commission affirmed the Agency's decision, holding that because the Agency had shown by clear and convincing evidence that it would have removed Complainant's warrant authority even in the absence of Complainant's disability, Complainant was not entitled to personal relief such as compensatory damages or back pay. Consistent with the Civil Rights Act of 1991, however, the Commission explained that Complainant still may be entitled to declaratory relief, injunctive relief, and attorney's fees and costs, since disability was a motivating factor. The Commission therefore ordered the Agency, among other things, to consider Complainant's entitlement to legal costs, and provide four hours of training to the relevant management officials. Thomas M. v. Dep't of Energy, EEOC Appeal No. 0120152584 (Dec. 14, 2017).

Remedies

(See also "Findings on the Merits" in this issue. - Ed.)

Remedies Discussed. The Commission previously affirmed the AJ's finding of reprisal, and award of relief. In the underlying decision on Complainant's petition for enforcement, the Commission found that the Agency should not have deducted payments for retroactive health insurance from the back pay award when Complainant was ambiguous about wanting such benefits and later declined wanting such benefits. The Commission rejected Complainant's claim for interest based on the gross back pay award, but rather determined interest was based on the net back pay award, and included the interest on the previously-deducted health care payments. The Commission also rejected Complainant's claim for uniform allowances during the back pay period because Complainant was not actually working during that time. The Commission ordered the Agency to compensate Complainant for the additional tax liability Complainant incurred as a result of receiving a lump sum payment in damages. The Commission ordered the Agency to calculate annual and sick leave Complainant would have earned during the back pay period and add these amounts to Complainant's balances. Miquel G. v, U.S. Postal Serv., EEOC Petition No. 0420160025 (July 11, 2018).

Agency Improperly Deducted Worker's Compensation Repaid by Complainant from Back Pay Award. An AJ found the Agency discriminated against Complainant when it discharged her from employment, and ordered back pay. The Agency did not appeal the AJ's decision, but deducted worker's compensation benefits because Complainant was receiving disability pay for part of the time due to an on the job injury. The record showed, however, that Complainant repaid the Office of Worker's Compensation Programs (OWCP) for a portion of the worker's compensation. The Agency deducted all of the OWCP compensation from its back pay award, but the Commission found that the Agency was not entitled to deduct worker's compensation for which Complainant had already reimbursed OWCP. The Commission remanded the matter to the Agency to fully compensate Complainant without deducting OWCP payments Complainant had already repaid OWCP. Shanel G. v. U.S. Postal Serv., EEOC Appeal No. 0120140468 (July 6, 2018), request for reconsideration denied, EEOC Request No. 0520180553 (Feb. 5, 2019).

Commission Modified AJ's Award Following Default Judgment. The Commission modified the AJ's order of relief following the issuance of a default judgment against the Agency as a sanction in both Complainant's harassment and non-selection claims. However, the AJ only awarded relief for the harassment claim, because the AJ found Complainant had not requested relief concerning the non-selection. The Commission modified the order to include placing Complainant in the position for which he was not selected. The record showed Complainant established a prima facie case of discrimination as to the non-selection which was sufficient to find entitlement to relief. The Commission also found the AJ erred in not awarding Complainant the make-whole relief he was entitled to simply because he did not make a specific request for it. Timothy M. v. Dep't of the Navy, EEOC Appeal No. 0120162429 (Jun. 28, 2018).

Commission Not Estopped from Seeking Relief by Complainant's Bankruptcy Filing. The Commission rejected the Agency's argument that it need not comply with an AJ's award of compensatory damages and back pay because Complainant filed for bankruptcy and, therefore, the matter was under the jurisdiction of the bankruptcy trustee. The Commission stated that it has a public policy interest in enforcing antidiscrimination laws and remedying discrimination. The interest is not served by allowing a discriminating employer to benefit from a complainant's bankruptcy, least of all where it appears that the discrimination substantially contributed to the complainant's declaring bankruptcy in the first place. Therefore, the Commission is not judicially estopped from seeking victim-specific relief such as back pay and compensatory damages on behalf of a complainant who files for bankruptcy. In this case, the AJ and the Commission specifically found the Agency liable for its discriminatory failure to accommodate Complainant, and ordered the Agency to remedy the discrimination by, among other things, paying Complainant compensatory damages and back pay. The Commission's authority under Title VII and the Rehabilitation Act dictates that it remedy discrimination without regard to Complainant having filed for bankruptcy. The Commission rejected the Agency's assertion that the AJ was biased in favor of Complainant, and stated that the AJ was correct in not considering what the bankruptcy court may do with a portion of the award. The Commission noted that had the AJ reduced the award of damages based upon what another court may do, she would not have been granting Complainant "make whole relief." Finally, the Commission found that the AJ correctly determined that the Agency failed to reasonably accommodate Complainant beginning in January 2008. The Commission clarified that the Agency should reimburse Complainant for leave used, noting that the back pay award does not compensate Complainant for paid leave taken during the applicable period. Adina P. v. U.S. Postal Serv., EEOC Appeal No. 0720110016 (Apr. 25, 2018). (additional decisions addressing the effects of a complainant's bankruptcy filing can be found in the Compensatory Damages section above-Ed.).

AJ's Award of Front Pay and Future Pecuniary Damages Proper. Following a hearing, the AJ found that the Agency was liable for sexual harassment Complainant experienced from a co-worker because it failed to take prompt and immediate action to stop the harassment. The AJ awarded Complainant, among other things, front pay and future pecuniary damages. The Agency challenged only those awards on appeal. The Commission affirmed the relief awarded by the AJ. The AJ did not find that Complainant was unable to work, and in fact noted that Complainant found work assisting elderly individuals. While Complainant may not have been able to return to her job at the Agency, the record supported the AJ's finding that Complainant was prevented from returning to her job by factors beyond her control, including the harasser remaining at the facility, and the Agency's failure to investigate Complainant's allegations for almost three years. Further, the Commission stated that it was unlikely that Complainant would be able to return to working in a job with comparable wages within commuting distance of her home due to lingering mental and emotional impairments caused by the harassment. Therefore, she was entitled to compensation for loss of future earning capacity and benefits. Carmina E. v. Dep't of Justice, EEOC Appeal No. 0720150011 (Jan. 19, 2018).

Back Pay Discussed. Petitioner contended that the Agency did not award her an appropriate amount of back pay. Specifically, Petitioner stated that the Agency improperly deducted unemployment compensation from her back pay award, and did not compensate her for additional tax liability she incurred as a result of receiving a lump sum back pay award. On appeal, the Commission noted that unemployment compensation cannot be deducted from back pay. Therefore, the Agency must pay Petitioner the amount which it improperly deducted from her back pay award. The Commission further noted that an award to cover additional tax liability from a lump-sum payment of back pay is available to petitioners even if a decision does not explicitly order it. Petitioner, however, bears the burden to prove the amount to which she claims entitlement. The Commission instructed Petitioner to submit documentation to the Agency justifying the amount of the additional tax liability, and the Agency was required to award Petitioner the appropriate amount based on calculations of the extra tax liability Petitioner incurred. Isabelle G. v. Dep't of Justice, EEOC Petition No. 0420170026 (Dec. 8, 2017).

Agency Failed to Comply with Order to Change Policy Regarding Post-Offer Medical Exams. In a prior decision, the Commission ordered the Agency, among other things, to revise its post-offer procedures for medically assessing job applicants. Specifically, the Commission stated that the Agency must pay costs associated with a specific medical examination if the Agency requires an applicant at the post offer stage to undergo the examination. The Agency asserted that it now makes medical suitability determinations based upon its own medical review by a contractor, and does not require additional medical information. Applicants, however, are given the opportunity to voluntarily submit additional information, at their own expense, if their application is placed on hold. The Commission found that the Agency did not comply with the clear and plain language of its prior order, and attempted to circumvent the order by stating that it did not require additional medical information. Although the Agency characterized the additional submission as an applicant's "choice," the Commission stated that applicants who wanted the position had no choice but to pay for additional medical examinations and tests once the Agency placed their application on hold. Therefore, the Agency continued to have additional testing performed without paying for it. The Commission stated that if the Agency requires an applicant at the post offer stage to undergo a specific follow-up medical examination, the Agency must pay all costs associated with that visit, and ordered the Agency to revise its procedures accordingly. Levi P. v. Dep't of Homeland Sec., EEOC Petition No. 0420160007 (Nov. 2, 2017).

Sanctions

Commission Sanctioned Agency for Failure to Comply with Regulatory Time Frame for Issuing Final Decision. The Commission affirmed the Agency's finding that Complainant failed to prove discrimination regarding his non-selection. However, the Commission concluded that the Agency failed in its obligation to issue a final decision within the regulatory 60-day period, and instead, without explanation, issued the decision more than one year later. The Commission ordered the Agency to post notice of the sanction, and provide training for the EEO management officials regarding their obligation to timely process EEO complaints. Calvin D. v. Dep't of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018).

Commission Sanctioned Agency for Failing to Conduct Thorough Investigation & Found Evidence Would Have Established Discrimination. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of disability and age when it terminated her contract employment. The Agency conceded, and the record supported a finding that Complainant established a prima facie case of discrimination, and the Commission found that the Agency articulated a legitimate, nondiscriminatory reason for the decision to terminate Complainant, that is its realignment of her office due to budgetary constraints. The Commission noted that while the EEO Investigator was thorough and pursued affidavits from both Complainant's supervisor and the Assistant Administrator of her office, the Investigator only obtained a statement from the supervisor. The Assistant Administrator had moved to another agency and informed the Investigator, by email, that she would not cooperate with the investigation, did not supervise Complainant, and did not believe the questions posed by the Investigator were pertinent or applicable to her. The Commission stated that the Agency did not show good cause for its failure to engage in further efforts to obtain the Assistant Administrator's affidavit. In addition, there was ample indication in the record that her testimony constituted highly relevant evidence, including a note by the EEO Counselor that the Assistant Administrator confirmed she made comments about Complainant's health in the context of Complainant's termination. Therefore, the Commission concluded that the imposition of sanctions was warranted for the Agency's failure to obtain testimony from the Assistant Administrator. While the Assistant Administrator moved to another federal agency, as a federal employee she retained the duty to respond to an EEO investigation, and the Agency provided no indication that it took any steps to obtain her cooperation. The Commission presumed that had the Assistant Administrator submitted an affidavit, she would have admitted she was directly involved in the decision to terminate Complainant's contract, and that Complainant's disability played a significant role in that decision. The Agency was ordered, among other things, to require Complainant's contracting employer to reinstate her to her former position if possible or pay her one year of front pay if there was no position to which she could be reinstated; pay Complainant appropriate back pay; and investigate her claim for compensatory damages. Aileen C. v. Agency for Int'l Dev, EEOC Appeal No. 0120170399 (Sept. 18, 2018).

Commission Sanctioned Agency for Failing to Issue Final Decision within Regulatory Time Frame. According to the record, Complainant requested that the Agency issue a final decision on her complaint in December 2015. While the Commission's regulations provide that a final decision shall be issued within 60 days, the Agency did not issue its decision until March 2017, more than one year after the request was made. The Commission found that the Agency's failure to comply with the regulations, without showing good cause for the noncompliance, warranted sanctions. The Commission, therefore, ordered the Agency to provide training to its EEO personnel who failed to comply with the regulatory timeframes; consider taking disciplinary action against these EEO personnel; and pay any attorney's fees incurred by Complainant for filing the appeal. The Commission affirmed the Agency's finding that Complainant failed to prove the underlying claim of discrimination. Regina M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170567 (Sept. 6, 2018).

Commission Found AJ Did Not Abuse Her Discretion by Dismissing Hearing Request. Complaint filed a formal complaint alleging that she was sexually harassed by a co-worker, and ultimately requested a hearing. The AJ dismissed Complainant's hearing request, however, when Complainant failed to appear for the hearing. Complainant's representative contacted the AJ the day before the hearing to ask that it be postponed, and provided a note stating Complainant had been seen by a doctor. The AJ denied the motion to postpone, stating that the medical note did not cite any specific medical condition and indicated without explanation that Complainant would be recovered from her unspecified illness as soon as the hearing was scheduled to end. The AJ further noted that Complainant and her representative had attempted on several other occasions to either delay or change the hearing venue based on dubious and shifting reasons. Complainant's representative also had a history of engaging in similar conduct which was detrimental to complainants and the EEO process. Therefore, the AJ did not abuse her discretion in sanctioning Complainant by dismissing the hearing request and remanding the matter to the Agency for a final decision. The Commission affirmed the Agency's finding that Complainant failed to prove her claims of sexual and sex-based harassment. Joanna V. v. U.S. Postal Serv., EEOC Appeal No. 0120162570 (Aug. 15, 2018); Additional Decisions Addressing the AJ's Sanctioning Complainant by Dismissing the Hearing Request Include: Elvis G. v. U.S. Postal Serv., EEOC Appeal No. 0120170677 (Sept. 5, 2018) (Commission found no abuse of discretion when the AJ dismissed the hearing request after Complainant failed to respond to discovery requests or file any objections to discovery. Complainant's supplemental answers to the Agency's interrogatories did not constitute an opposition to the Agency's Motion to Compel, and Complainant did not respond fully and timely to the Agency's discovery requests. While Complainant stated he was on temporary duty in another state, he did not explain why he did not seek an extension of time); Alonzo L. v. Pension Benefit Guarantee Corp., EEOC Appeal Nos. 0120171271 & 0120171272 (Aug. 2, 2018) (Commission affirmed AJ's dismissal of Complainant's hearing request as a sanction, noting that the Agency attempted to take Complainant's deposition over a 5-month period, and extended the discovery period twice. The AJ found Complainant exhibited an inappropriate pattern of delay, and failed to provide medical documentation for the non-attendance until the Agency's motion for sanctions. The doctor's note was extremely broad and did not establish that Complainant would ever be available for deposition. Complainant failed to attempt to reschedule the deposition or offer alternative dates, and estimated there would be a 50% chance he would be incapacitated on a particular date. Under the circumstances the AJ did not abuse his discretion in dismissing the hearing request, and the Commission affirmed the Agency's finding of no discrimination); Maya F. v. Dep't of the Interior, EEOC Appeal No. 0120162362 (Apr. 24, 2018) (the Commission found that the AJ's denial of Complainant's hearing request was appropriate. In this case, the record showed that Complainant did, in fact, fail to comply with the AJ's order, and did not show good cause why she was unable to do so. Contrary to the assertion of Complainant's representative, the AJ did not need to find that Complainant engaged in "contumacious conduct" to issue the sanction); Herman P. v. Peace Corps, EEOC Appeal No. 0120162063 (Dec. 29, 2017) (the Commission affirmed the AJ's dismissal of Complainant's hearing request as a sanction for his failure to respond to an Order directing him to provide contact information for a conference call. The AJ issued an Order to Show Cause to Complainant's email address, and then a Reissued Order to Show Cause to his address of record. Complainant responded with contradictory explanations that he did not receive the conference call notice and that he was available to receive a call on the specified day. The AJ did not abuse his discretion in dismissing Complainant's hearing request, and Complainant failed to offer sufficient justification for disregarding the AJ's Orders); Ward B. v. Dep't of the Army, EEOC Appeal No. 0120151448 (Nov. 22, 2017) (Complainant and his attorney failed to comply with the AJ's order that Complainant submit a list of damages, evidence relating to his claim for compensatory damages, a list of witnesses, and a list of facts that warranted a decision in Complainant's favor. Complainant and his attorney were on notice that a failure to comply could result in sanctions being imposed, including dismissal of the hearing request. Therefore, the Commission found that the AJ did not abuse her discretion when she dismissed Complainant's hearing request).

Commission Affirmed AJ's Issuance of Default Judgment Against Agency as Sanction. The Commission affirmed the AJ's default judgment against the Agency as a sanction for failure to timely complete the report of investigation. The Commission found the record lacked application materials or qualifications of the selectees for two of the positions, the identity of the selectee for a third position, and interview notes for all three positions. The Commission rejected the Agency's assertion that Complainant could have cured these defects through discovery, stating discovery is to perfect the record and not a substitute for an appropriate investigation. The Commission further noted Complainant had twice requested that the Agency include the relevant information that was omitted. Ross H. v. U.S. Postal Serv., EEOC Appeal No. 0720180001 (May 17, 2018). (a summary of the Commission's decision regarding -compensatory damages can be found above - Ed.).

Commission Modified AJ's Sanctions Order. The Commission modified the AJ's sanction order excluding Respondent, a non-lawyer representative, from hearings currently before the AJ and disqualifying Respondent's representation in future cases not yet filed at the hearing stage for 180 days. The Commission found the Respondent engaged in contumacious conduct when he scheduled depositions for times when the Agency attorney and witnesses were unavailable against AJ's ruling; refused to provide the Agency attorney and a witness with a dial-in number to participate in a deposition telephonically; refused to use the Agency facility which may have had teleconference capability in favor of a location that had no teleconference capability because he did not want to pay for the service; failed to inform the Agency attorney he did not plan to use exhibits in certain depositions; and cancelled depositions at the last minute. Furthermore, Respondent exhibited insulting behavior revealing a fundamental disrespect for the AJ, the Agency attorney and the EEO process when he referred to the AJ's "so-called" ruling and the Supervisory AJ's "so-called" supervisory role; ignored the AJ's e-mail ruling because it did not contain a formal title, caption, and signature; repeatedly addressed Agency counsel by her maiden name contrary to the AJ's warning; and referred to the Agency's attorney's "purported pregnancy…causing her disability." The Commission found that Respondent's behavior in these cases, as well before another AJ, demonstrated that Respondent has engaged in a pattern of disruptive and willfully stubborn and disobedient behavior. The Commission reduced the disqualification from one year to 180 days as sufficient time for Respondent to modify his behavior. The Commission also disallowed disqualification as to matters on appeal, since the conduct only occurred at hearing. In the Matter of Arnold T, EEOC Appeal No. 1120160001 (Apr. 30, 2018).

AJ's Issuance of Default Judgment as Sanction Proper. Complainant alleged in her EEO complaint that she was subjected to a hostile work environment, which included allegations that she was denied several opportunities to compete for promotion and upward mobility positions. An AJ ultimately issued a default judgment in Complainant's favor as a sanction for the Agency's failure to show good cause why it did not attend a scheduled status conference. The Commission found that the AJ's issuance of default judgment was not an abuse of discretion, considering that the Agency did not attend a status conference, and that there were various discovery-related failures on behalf of the Agency. While the Agency attempted to explain what it described as a "series of unfortunate events," the AJ noted that the notice of the status conference was not returned as undeliverable, the Agency did not enter an appearance for a new representative or inform the AJ of an addressee to whom orders should be sent, and the Agency's EEO Office received the correspondence. With regard to relief awarded, the Commission noted that placement into an SES position was not supported by the evidence. The Commission affirmed the AJ's award of $185,000.00 in non-pecuniary compensatory damages and $155,050.00 in attorney's fees. The Commission reduced costs awarded by $41.12 for Complainant's counsel taking a shuttle ride to the airport because the purpose of that was not clear. Dionne W. v. Dep't of the Air Force, EEOC Appeal No. 0720150040 (Mar. 27, 2018).

AJ Properly Sanctioned Agency for Failure to Comply with Order. During discovery, the AJ issued a Pre-Hearing Order directing the Agency to produce certain documents for Complainant, and, when the Agency failed to comply, ultimately sanctioned the Agency by issuing a default judgment in Complainant's favor. On appeal, the Commission found that the AJ did not abuse his discretion when he sanctioned the Agency for failing to comply with his order to provide the requested discovery documents. The AJ issued an Order to Show Cause that explained the Agency's failure to produce the documents without good cause would result in sanctions. The Agency nevertheless did not produce the documents, instead maintaining that they were protected by attorney-client privilege. The AJ, however, noted that the only supporting information submitted by the Agency consisted of a log containing a list of document titles and the names of the sender and recipient. The AJ found that the log did not support the validity of the Agency's assertion of attorney-client privilege. While the Agency maintained that the AJ deprived it of the opportunity to submit the complete documents for review, the Commission stated that the Agency could have submitted the documents to the AJ at any time but did not do so. Therefore, the Agency did not provide good cause for its assertion of attorney-client privilege. Further, the Commission concluded that the AJ did not abuse his discretion when he issued a default judgment in Complainant's favor. Withholding potentially relevant evidence from the record deprives complainants of the opportunity to fully and fairly adjudicate their claims, and the Commission has previously upheld the issuance of a default judgment as a sanction for an agency's failure to comply with an AJ's order. The Commission found that the relief awarded by the AJ, including $6,000 in proven compensatory damages, was supported by the evidence. Mirta Z. v. Soc. Sec. Admin., EEOC Appeal No. 0720150035 (Mar. 14, 2018).

Settlement Agreements

Complainant Not Coerced into Signing Settlement Agreement. Complainant contended that she accepted the settlement agreement because she was under the influence of medication and signed the agreement due to the stress of potentially losing her job. To the extent that Complainant claimed she was under duress because of medical reasons, Complainant provided no evidence that she was incapacitated or mentally deficient at the time she signed the agreement and did not assert this claim for over two years after signing the agreement. Complainant provided letters indicating that she was under the care of a physician, but she did not show that she was incapacitated at the time in question. The Commission noted that Complainant failed to demonstrate that she was induced to sign the agreement because she was threatened with harm or loss. Therefore, because Complainant did not provide any evidence which would indicate that she was coerced into signing the agreement, and because she was represented by a union official during the process, the Commission found no indication that Complainant signed the settlement agreement under duress or coercion. The Commission also found Complainant failed to provide evidence that any of the provisions contained in the settlement agreement were illegal. Jacqueline L. v. Dep't of the Navy, EEOC Appeal No. 0120180062 (Sept. 27, 2018).

Settlement Agreement Invalid. The parties entered into a settlement agreement that provided, among other things, that the Agency would issue a letter reaffirming its commitment to maintaining a work environment free of inappropriate conduct, including disseminating false and defamatory communications against another employee. Complainant alleged breach because a management official continued to make false and defamatory statements against him, and the Agency failed to hold the management official accountable. The Commission found that the agreement was invalid due to lack of consideration, because the Agency was already required to treat employees with dignity and respect, and was prohibited from retaliating against them. The Commission therefore voided the agreement for lack of consideration and remanded the complaint for further processing. Kyle S. v. Dep't of the Army, EEOC Appeal No. 0120182186 (Sept. 12, 2018).

Breach of Settlement Found. The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would provide Complainant with an "in-person qualified sign language interpreter." Complainant alleged that the Agency breached the agreement when it instead set up his workplace for Video Remote Interpreting (VRI) services, and the Commission agreed that the Agency failed to comply with the terms of the agreement. The settlement agreement specifically provided for an affirmative Agency obligation to provide Complainant with an in-person interpreter, and there was nothing in the agreement indicating that VRI services would be provided in lieu of this requirement. The Agency was ordered to give Complainant the option to either return to the status quo and have his underlying complaint reinstated, or have the terms of the agreement specifically enforced. Hershel B. v. U.S. Postal Serv., EEOC Appeal No. 0120181539 (Aug. 27, 2018).

Breach of Settlement Found. The parties entered into a settlement agreement that provided, among other things, the Agency would approve a mutually agreed upon detail opportunity for Complainant that provided a developmental experience in a Team Lead or Manager position. The Commission found that the Agency breached the agreement when it did not provide Complainant with such a detail. The only position offered to Complainant was offered before the agreement was executed. The record showed that, instead of a detail, Complainant was placed in an unclassified position with no defined duties. Further, there was no evidence Complainant received the developmental training referenced in the agreement. The matter was remanded to the Agency with instructions to offer Complainant the option of returning to the status quo prior to the execution of the agreement or obtaining specific performance. Adam F. v. Dep't of Transp., EEOC Appeal No. 0120181208 (Aug. 15, 2018).

Breach of Settlement Found. The Commission reversed the Agency's decision finding it did not breach a settlement agreement with Complainant following her termination. The parties agreed the Agency would change its recommendation not to rehire Complainant on her exit and performance evaluations. Thereafter, when Complainant applied for positions with the Agency and was not hired, Complainant realized that her personnel file still showed her as having a "do not rehire" status. The Agency claimed the agreement did not include changing the personnel file. The Commission found the Agency, in entering into the agreement, violated its duty of acting in good faith and in fair dealing, since the purpose and effect of the agreement was to allow Complainant to be rehired. Kate H. v. U.S. Postal Serv., EEOC Appeal No. 0120180895 (Jun. 28, 2018).

Breach of Settlement Found. The Commission found that the Agency breached the settlement agreement that the parties entered into when it did not promote Complainant. The Agency agreed to promote Complainant as part of the settlement, but later declined, stating such promotion would be contrary to its regulations and personnel manual because such promotions should be competitive. The Commission rejected the Agency's assertions, characterizing the Agency's authority as broad and general and not limited to the specific promotion in contention. Further, the Agency should have known whether it could promote Complainant at the time it entered into the agreement. Virgilio C. v. Dep't of Agric., EEOC Appeal No. 0120162156 (Mar. 30, 2018).

Settlement Agreement Void for Lack of Consideration. The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would follow up on a worker's compensation claim for which paperwork had been submitted; perform a safety inspection; and "evaluate and determine" appropriate monetary compensation for damages. The agreement also noted that, "as discussed," Complainant would require medical treatment. The Commission described three of the provisions in the agreement as "meaningless" and seemingly lacking in good faith, stating that the Agency merely agreed to "evaluate and determine" compensation, and was not obligated to provide any actual relief to Complainant. The Commission disagreed with the Agency that the provision regarding the safety inspection alone was sufficient to preserve the settlement. The Agency was only required to inspect and recommend appropriate measures, and was not obligated to take any corrective action. Therefore, the Commission concluded that the agreement was invalid in its entirety, and ordered the Agency to reinstate the underlying complaint. Will K. v. U.S. Postal Serv., EEOC Appeal No. 0120172886 (Jan. 31, 2018).

Breach of Settlement Found. The parties entered into a settlement agreement that provided, among other things, that the Agency would place Complainant into a specific position. The Agency, however, did not place Complainant into the position. According to the record, the Agency informed Complainant, who had a 20 to 25-pound lifting restriction, that she was not eligible for the position because she could not satisfy a 40-pount lifting requirement. The Commission rejected the Agency's assertion that there was a mutual mistake regarding the position's requirements. The Commission stated that the Agency was aware of Complainant's restrictions and should have been aware of any qualification standards for the position before it signed the agreement. The agreement did not state that Complainant's placement was subject to a new suitability determination. Therefore, the Agency breached the agreement. The Commission ordered specific performance of the agreement, and advised Complainant that she should contact an EEO Counselor if she wished to pursue additional claims of discrimination. Natalie F. v. Dep't of the Army, EEOC Appeal No. 0120172900 (Jan. 31, 2018).

Settlement Agreement Void for Lack of Consideration. The parties entered into a settlement agreement that provided for the Postmaster to review the Agency's sexual harassment policy with supervisors at the facility, and stated that the Postmaster would consult with the District Human Resources Department regarding reports of sexual harassment, and promptly advise the District Reasonable Accommodation Committee when informed of requests for reasonable accommodation. The Commission noted that it is generally not concerned with the adequacy or fairness of the consideration in a settlement agreement as long as some legal detriment is incurred as part of the bargain. In this case, however, the Agency did not provide any consideration beyond what was normally expected of a federal agency. Therefore, the agreement was void for lack of consideration. The Agency was ordered to reinstate the underlying complaint for processing. Shantay H. v. U.S. Postal Serv., EEOC Appeal No. 0120170522 (Jan. 12, 2018).

Breach of Settlement Found. The Commission found that the Agency breached a term of the settlement agreement providing that the agreement was "confidential and nonprecedential," and was not to be cited in any other administrative or judicial proceeding in any forum. Complainant asserted that Agency officials discussed the settlement agreement, and in one instance provided an actual copy of the agreement in connection with EEO investigations of complaints filed by other employees. The Commission found that the language of the agreement specifically stated it would be kept confidential and not be used in any administrative proceeding. The Commission ordered the Agency to abide by the terms of the agreement and remove references to and copies of the agreement from the records in other cases. Alfonso T. v. U. S. Postal Serv., EEOC Appeal No. 0120172044 (Jan. 4, 2018).

No Breach of Settlement Found. The parties entered into a settlement agreement in 2009, which provided Complainant would be placed in a certain position within a particular organizational structure. In 2017, the Agency changed the organizational structure. The Commission affirmed the Agency's finding that it did not breach the agreement, stating that Complainant was placed in the agreed-to position, and the agreement did not provide he would remain in that position in that organizational structure forever. Edwardo V. v. Dep't of the Navy, EEOC Appeal No. 0120172030 (Jan 4, 2018); Additional Decisions Finding Terms of Agreement Not Indefinite Include: Elvera S. v. U.S. Postal Serv., EEOC Appeal No. 0120181102 (May 3, 2018) (the agreement provided Complainant would be returned to her original bid hours, but did not provide a time limit on this provision. After three years, the Agency changed Complainant's bid hours for "operational needs" because Complainant was logging excessive overtime. The Commission found that the terms of the agreement provided no expectation that Complainant would work the agreed to hours indefinitely); Hilda H. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180790 (Mar. 15, 2018) (the Agency did not breach the settlement agreement when, after initially placing Complainant into the agreed upon position, it reassigned her to a different position three years later. The Agency explained that the reassignment was part of a realignment that was not planned at the time of the execution of the settlement agreement. The Commission has held that when an individual bargains for a position without a specific length of service it would be improper to interpret the intention of the parties to include employment in the same position forever).

Commission Found Settlement Agreement Valid. The Commission declined to invalidate the settlement agreement, finding that the Agency failed to show that the officials who signed it lacked the authority to enter into the agreement. The Commission determined that the settlement agreement was a voluntary, valid contract as soon as it was signed by both parties. Beyond its conclusory statements, the Agency failed to provide any convincing evidence in support of its position that its representatives lacked authority to bind the Agency. Although the record contained a "No Agreement Letter" that was signed contemporaneously by the mediator, that document does not negate the written settlement agreement that Complainant, his representative, and two Agency management officials voluntarily signed. Accordingly, the Commission found the settlement agreement to be both valid and binding on all parties. Darrin F. v. U. S. Postal Serv., EEOC Appeal No. 0120173054 (Dec. 6, 2017).

Commission Found Breach of Settlement & Agreement Failed to Comply with OWBPA. Complainant sought reinstatement of his age discrimination complaint, alleging that the Agency breached a settlement agreement when it did not pay him the stated $250 in compensation. The Agency argued that it paid Complainant $168.37, which constituted $250 minus $81.63 in withholdings. Applying the plain meaning rule, the Commission held that the Agency breached the settlement agreement, because the agreement did not identify the $250 as back pay or indicate that it would be subject to withholding. The Commission further noted that the settlement agreement failed to comply with the OWBPA, which only permits waivers of age discrimination claims that meet several requirements to render it "knowing and voluntary." In this case, the Agency failed to give Complainant 21 days to consider the agreement; failed to advise Complainant that he had at least seven days to revoke the agreement after executing it; and failed to advise Complainant in writing to consult with an attorney in advance of executing the waiver. The Commission rejected the Agency's argument that it advised Complainant of his right to consult an attorney before he executed the agreement, stating that the OWBPA requires the Agency to advise employees in writing to consult with an attorney prior to executing the waiver. The Commission remanded the complaint for processing. Merle S. v. U.S. Postal Serv., EEOC Appeal No. 0120152901 (Oct. 5, 2017).

Stating a Claim

Complaint Alleging Cancellation of Vacancy Announcement for Discriminatory Reasons Stated Viable Claim. Complainant alleged the Agency cancelled a vacancy announcement she had applied for and reposted the position to avoid selecting her for discriminatory or retaliatory reasons. The Commission found the allegation of cancellation for discriminatory or retaliatory reasons in order to expand the applicant pool and avoid selecting Complainant stated a viable claim. Tien E. v. U.S. Postal Serv., EEOC Appeal No. 0120182475 (Sept. 25, 2018).

Agency Erred in Limiting Claim of Harassment to Single Incident. The Commission found that a fair reading of the EEO complaint, in conjunction with the EEO Counselor's report, showed that the Agency erred in limiting the definition of Complainant's claim to a single incident involving a statement made by the Commander. The EEO Counselor's report contained a statement from Complainant alleging the Commander began harassing her on an ongoing basis after she was a witness in her supervisor's military Equal Opportunity complaint. The harassment included an unfavorable performance evaluation, accusing her of making errors on personnel documents she did not work on, making disparaging remarks about her to other staff members, mocking her religious beliefs, and stating Complainant was on the supervisor's "side" against him. Thus, the Commission concluded that Complainant alleged a viable claim of retaliatory harassment. Julie D. v. Dep't of the Army, EEOC Appeal No. 0120182217 (Sept. 20, 2018); Additional Decisions Addressing Agency's Failure to Properly Identify Claim of Harassment Include: Eleni M. v. Dep't of the Army, EEOC Appeal No. 0120181867 (Sept. 11, 2018) (the Agency erred in finding that Complainant's harassment claim rested on her single allegation that when discussing her medical condition on a particular date the supervisor screamed that he did not want to hire Complainant. The EEO Counselor's report showed Complainant raised several other incidents involving her supervisor, and the totality of the circumstances showed Complainant stated a viable claim of harassment); Shantel H. v. U.S. Postal Serv., EEOC Appeal No. 0120181379 (May 16, 2018) (examination of the formal complaint and EEO Counselor's report showed that Complainant addressed several incidents of alleged harassment by her supervisors such that she stated a cognizable claim); Belinda K. v. U.S. Postal Serv., EEOC Appeal No. 0120180687 (Feb. 21, 2018) (the Agency did not properly frame Complainant's claim, and a review of her formal complainant and pre-complaint documents showed she was alleging a hostile work environment. The Commission found that alleged incidents when considered collectively were sufficiently severe to state an actionable claim of harassment); Dong F. v. Overseas Private Inv. Corp., EEOC Appeal No. 0120180279 (Jan. 4, 2018) (examination of the formal complaint and EEO Counselor's report showed that Complainant detailed many incidents of alleged harassment by Agency management, including being subjected to public humiliation, belittling comments, and excessive daily scrutiny by the Agency's Acting Vice President. Given the breadth of Complainant's allegations, the Commission found that, when considering the incidents together, he had asserted sufficiently pervasive harassment to state a cognizable claim under EEOC regulations); Tim H. v. Dept. of the Treasury, EEOC Appeal No. 0120172664 (Oct. 11, 2017) (while the Agency framed the complaint as concerning 4 incidents, the Commission found that a review of the formal complaint and the EEO counselor's report showed Complainant addressed many incidents of alleged harassment which when considered together stated a cognizable claim).

Agency Improperly Addressed Merits of Complaint in Its Dismissal for Failure to State a Claim. Complainant filed a formal complaint alleging discrimination when he was not offered a higher-level detail. The Agency dismissed the complaint for failure to state a claim, stating that Complainant did not request such a detail. The Commission reversed the dismissal on appeal. It appeared from the record that the Agency unilaterally detailed a younger co-worker without informing others of its availability. The Agency's articulated reason for the action, that Complainant was not considered for the detail because he did not ask for it, went to the merits of the complaint without a proper investigation, and was not relevant to the procedural issue of whether Complainant stated a viable claim. Roderick P. v. U.S. Postal Serv., EEOC Appeal No. 0120181936 (Sept. 6, 2018); Additional Decisions Finding that the Agency Improperly Addressed the Merits of a Complaint in Its Dismissal Include: Tara P. v. U.S. Postal Serv., EEOC Appeal No. 0120181783 (Sept. 12, 2018) (Commission found the Agency's arguments that the alleged harassment did not rise to the level of a hostile work environment and the actions were not likely to deter protected EEO activity went to the merits of the complaint, without a proper investigation. Complainant's allegations of sexual harassment stated a viable claim, and the supervisor's alleged conduct was based on a retaliatory motive and reasonably likely to deter Complainant and others from engaging in protected activity); Elvis G. v. Dep't of Navy, EEOC Appeal No. 0120172569 (Oct. 4, 2017) (the Agency dismissed Complainant's complaint regarding a nonselection without investigation stating that Complainant, a term employee, was not eligible for the position because it was only open to "current permanent civilian employees." The Agency's reason for dismissing the complaint - that Complainant was not selected because of a reason other than his protected basis - went to the merits of his claim and was irrelevant to the procedural issue of whether he stated a claim).

Complainant Stated Viable Claim of Harassment. Complainant filed a formal complaint alleging discrimination and reprisal with regard to four incidents. Complainant later clarified her complaint, stating that management required her to complete a daily task list and follow new computer procedures that others were not required to follow, and disciplined her for an error while taking no action against another employee for a similar error. The Agency dismissed the complaint, describing the actions as "common workplace occurrences." On appeal, the Commission found that, viewing the alleged incidents collectively, Complainant set forth an actionable claim of continuous harassment, and stated a viable claim. The Commission stated that the Agency's assertion that Complainant failed to establish a prima facie case of reprisal went to the merits of Complainant's claim, and was irrelevant to the issue of whether she stated a viable claim. Annice N. v. Dep't of Def., EEOC Appeal No. 0120182060 (Sept. 5, 2018).

Complaint Alleging Agency Counsel Shared Un-Redacted Version of Prior Complaint Stated Viable Claim of Retaliation. Complainant filed a formal EEO complaint alleging that an un-redacted version of a prior complaint naming two supervisors as alleged responsible officials was posted on a shared network drive where it could be viewed by co-workers. The Agency dismissed the complaint for failure to state a claim, and, alternately as being moot since the file was deleted from the share drive. On appeal, the Commission initially noted that the matter did not allege dissatisfaction with the processing of Complainant's prior complaint. The Agency counsel was not a neutral Investigator, but was acting in the course of preparing a case against Complainant's EEO complaint. The Commission stated that placing a folder on a shared drive containing Complainant's EEO complaint and posted under Complainant's name would be reasonably likely to deter protected activity. Further, the folder contained Complainant's statement regarding his medical conditions, and, therefore, should have been treated as confidential as specified by the Rehabilitation Act. The act of making Complainant's EEO complaint, including personal medical information, available to view and download from the shared drive would likely have a chilling effect on any individual who came upon the folder. Therefore, Complainant stated a viable claim of retaliation. The Commission also rejected the Agency's assertion that the complaint had been rendered moot when the folder was removed from the shared drive, stating that Complainant would be entitled to compensatory damages if he prevailed on his claim. Maximo S. v. Dep't of the Army, EEOC Appeal No. 0120182087 (Aug. 31, 2018).

Complainant Stated Viable Claim of Harassment. The Agency dismissed Complainant's complaint for failure to state a claim, concluding that Complainant merely alleged reprisal for union activity as the basis for alleged discrimination. The Commission found the Agency's dismissal was improper. The Commission stated that while Complainant failed to identify valid bases in her complaint, she did so because she was unable to distinguish between discriminatory motives and discriminatory acts. Complainant consistently alleged harassment through the complaint process, and ultimately identified race, color, and reprisal as valid bases on appeal with the help of her representative. Therefore, the Commission found that Complainant stated a viable claim of discriminatory harassment. Beatriz L. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120182045 (Aug. 14, 2018).

Complaint Alleging Discriminatory Comments in Appraisal Stated a Claim. The Commission reversed the Agency's dismissal of the complaint alleging that Complainant's supervisor included negative comments in her annual performance rating. Complainant had persuaded her supervisor to remove all but one of the negative comments but the supervisor refused to raise her performance scores accordingly. The remaining negative comments were still part of Complainant's official record. The Commission found that removing the comments went to the merits of the claim and was irrelevant to the procedural issue of whether the claim was justiciable. Frida L. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120181340 (Jun. 6, 2018).

Complaint Alleging Placement on Month-long Administrative Leave Improperly Dismissed for Failure to State a Claim. Complainant filed a formal complaint alleging that the Agency discriminated against him when he was forced to stop work and placed on administrative leave pending a fitness-for-duty examination. On appeal, the Commission found that while paid administrative leave for a brief period may not state a claim, a month-long period of forced paid administrative leave states a claim. Accordingly, the Commission reversed the Agency's dismissal of Complainant's claim for failure to state a claim. Jonathan V. v. U.S. Postal Serv., EEOC Appeal No. 0120181020 (Apr. 13, 2018).

Complaint Regarding Memorandum of Counseling Improperly Dismissed for Failure to State a Claim. Complainant filed a formal complaint alleging discrimination by the Agency when Complainant was issued a non-disciplinary Memorandum of Counseling. On appeal, the Commission noted that the Memorandum provided that a copy would be maintained on file by the Deputy Special Agent in Charge for an unspecified period. Further, the Memorandum's stated purpose was to "make future discipline unnecessary." The Commission has previously held that memoranda or letters of counseling that are placed in a supervisor's folder suggest an intent to use it as a basis for future discipline. Therefore, Complainant was aggrieved and stated a viable claim. Loyd H. v. U.S. Postal Serv., EEOC Appeal No. 0120180738 (Apr. 10, 2018); Additional Decisions Involving Letters of Counseling Include: Arnoldo P. v. Dep't of Homeland Sec., EEOC Appeal No. 0120181320 (June 20, 2018), request for reconsideration denied, EEOC Request No. 0520180498 (Oct. 4, 2018) (Complainant's claim that he was issued a letter of counseling that included language stating "…a copy of this letter may be retained in local supervisory file for up to one year as documentation that you have been placed on notice regarding this issue of concern and the consequences of repeated behavior" stated a viable claim. The letter cautioned that future incidents may result in a placement on an Improvement Plan Notice or other appropriate action, up to and including removal. Such language suggested the letter was being retained as the basis of future, cumulative discipline).

Single Racial Epithet Stated Viable Claim of Harassment. Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of race when someone wrote the initials "PM" by his name on the work schedule and the word "porch monkey" by the name of his African American co-worker. The Agency dismissed the claim for failure to state a claim, finding that the actions complained of were insufficiently severe to state a claim of harassment. On appeal, the Commission found that a single incident of being subjected to a racial epithet was sufficiently severe to alter the conditions of Complainant's employment. Therefore, the Commission found that Complainant stated a viable claim of harassment. The Commission stated that the Agency's assertions regarding actions it took in response to the incident addressed the merits of claim and the Agency's affirmative defense, and are irrelevant to the procedural issue of whether the matter states a claim. Stuart M. v. U. S. Postal Serv., EEOC Appeal No. 0120180846 (Mar. 27, 2018).

Complainant Stated Viable Claim of Retaliation. The Commission found that the Agency incorrectly analyzed the complaint as alleging harassment. Instead, Complainant alleged a viable claim of retaliation. Specifically, Complainant asserted that a supervisor threatened him with an admonishment, and, when asked why, stated that Complainant was "trying to burn him" with EEO complaints and grievances. The Commission found that the threat of admonishment was the type of action that is reasonably likely to deter Complainant or others from engaging in protected activity. Lonnie H. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180341 (Mar. 16, 2018).

Agency Qualified as Joint Employer for Purposes of EEO Complaint Process. Complainant was an applicant with a staffing firm serving the Agency at its National Counterterrorism Center. She alleged that the Agency discriminated against her when it denied the staffing firm's request, on her behalf, for a "crossover" clearance, resulting in her not being able to serve at the Agency's facility, and thereby denying her employment. The Agency dismissed the complaint for failure to state a claim on grounds that Complainant was not an applicant to be an Agency employee. The Commission found that while the record was scant, it was more likely than not that the Agency had and would have sufficient control over her employment to be her joint employer. Specifically, the staffing firm offered Complainant a position serving the Agency with a monthly salary and benefits contingent on her obtaining the security clearances required to serve the Agency. The Agency had the power to deny a clearance, and would require Complainant to work onsite, and more likely than not would need to have control over her work. The Agency also asserted that the Commission did not have jurisdiction to review the substance of a security clearance determination. The Commission noted that while it does not have jurisdiction to review an agency's determination on the substance of a security clearance decision, it was not being asked to do so in this case. Rather, Complainant contended that she already had the security clearance required to work at the Agency, but the Agency would not apply reciprocity to utilize it because of her sex and prior EEO activity Michell B. v. Office of the Dir. of Nat'l Intelligence, EEOC Appeal No. 0120172545 (Jan. 5, 2018); Additional Decisions Addressing Whether Complainant Was an Employee or Independent Contractor Include: Teddy D. v. Dep't of Def., EEOC Appeal No. 0120181409 (July 18, 2018) (Complainant, who was granted access to the Agency Commissary to offer customers the option to have him bag and carry purchases, did not receive payment, benefits or leave from the Agency, and the Agency did not set his schedule, evaluate his performance, give him assignments, or supervise him. Therefore, the Agency did not exert sufficient control over Complainant to qualify as a joint employer); Venetta S. v. Dep't of the Treasury, EEOC Appeal No. 0120180708 (Apr. 6, 2018) (Complainant had been a Tour Guide at the Agency's facility for three years and the Agency provided her with written material for visitors and an identification badge. The staffing firm, however, hired Complainant, provided her with pay, benefits and a uniform, and set her schedule. Complainant also reported to an employee of the staffing firm, and the firm made the selection decision which Complainant raised in her complaint. Therefore, Complainant was a contractor for purposes of the EEO process); Alvaro M. v. Dep't of Def., EEOC Appeal No. 0120180260 (Apr. 5, 2018), request for reconsideration denied, EEOC Request No. 0520180403 (Oct. 18, 2018) (while Complainant had worked on Agency premises using Agency equipment for 10 years, and sometimes received assignments from the Agency, the record showed that the staffing firm made an independent decision, after investigating allegations regarding Complainant's behavior, to offer Complainant the option of working in another facility rather than being terminated. The staffing firm ultimately terminated, then reinstated Complainant. Therefore, the Agency did not have sufficient control over Complainant's employment to be deemed his joint employer); Gloria D. v. Dep't of Agric., EEOC Appeal No. 0120180762 (Mar. 22, 2018) (Complainant was a pilot working for a company that serviced the Agency. The company provided the equipment and materials (plane and fuel), paid Complainant, and provided her with leave and benefits. The Agency required certain skills of the pilots, including an annually issued pilot fire card, which certified Complainant could fly Agency missions. The Agency dictated the planes' requirements and equipment needed, including contents of its first aid kits, and set the hours of operation and the flight plans to be used. The Agency had the power to terminate pilots, and enforced "government facility rules of conduct." While the contractor controlled which pilots were on rotation, the Agency controlled pilot assignments, including latitude, longitude and route. The Agency had the power to dispatch planes and pilots to other agencies under interagency cooperative agreements, and no contractor management officials were located at Complainant's duty station); Angelica P v. Dep't of Veterans Affairs, EEOC Appeal No. 0120172789 (Jan. 24, 2018) (the Commission found that Complainant was a joint employee of the Agency and the staffing firm. The Agency set the qualification requirements for her position, and unless Complainant committed a criminal act or violation of staffing firm policy, the staffing firm was not permitted to replace her without notifying the Agency. The staffing firm was required to provide the Agency with a written explanation for any circumstances necessitating substituting Complainant for approval by the Agency. Complainant worked on Agency premises using Agency equipment. She provided daily in-depth reports of her findings and progress to her "direct supervisor," a federal employee. The Agency did not dispute this, which suggested close review of her work); Chara S. v. Dep't of Def., EEOC Appeal No. 0120172859 (Jan. 9, 2018) (Complainant, who worked as a Bagger at an Agency commissary, was a self-licensed employee who was granted access to the facility to offer customers the option to have her bag and carry their purchases. Although she was required to conform to some Agency rules, the Agency did not provide Complainant with payment, benefits or leave, and did not set her schedule, evaluate her performance, give her assignments or supervise her. Therefore, the Agency did not exert sufficient control over Complainant to qualify as her employer); Kevin B. v. Dep't of Energy, EEOC Appeal No. 0120172243 (Nov. 14, 2017) (the staffing firm managed and operated the facilities at which Complainant worked, directly controlled his performance, set his schedule and leave, and compensated Complainant. Complainant acknowledged that the Agency did not have the right to assign him tasks or projects, and that he had no contact with Agency employees. The Commission found that the Agency did not have sufficient control over Complainant's position to be deemed a joint employer); Timothy R. v. Dep't of the Army, EEOC Appeal No. 0120151376 (Nov. 8, 2017) (Complainant, an instructor at the Agency's Junior Reserve Officer Training Corp, worked for a public-school system and the Agency did not exercise sufficient control over Complainant's position to qualify as a joint employer. The school system had full control over the means and manner of Complainant's performance, conducted all performance evaluations, and had the sole authority to terminate Complainant's employment. All of Complainant's duties were performed at school facilities using school equipment, and Complainant was paid by the school system. While the Agency reimbursed the school system for part of Complainant's salary, it was clear from the record that Complainant was an employee of the school system); Alisa M. v. Dept. of State, EEOC Appeal No. 0120171892 (Oct. 11, 2017) (the Agency played a large role in Complainant being hired by the staffing firm; supervised Complainant and gave her assignments; had substantial input into her appraisals; required Complainant to obtain Agency approval to take leave; and set parameters of her work schedule. Given the control exercised by the Agency, Complainant asserted that it could be inferred that the Agency was involved in her termination. The Commission found that the Agency possessed sufficient control over Complainant's position to qualify as a joint employer for purposes of the EEO process).

Complainant Stated Viable Claim of Retaliation. Complainant filed a formal EEO complaint alleging that the Agency retaliated against her when it issued her a negative mid-year performance review and management failed to provide her with feedback to improve her performance. On appeal, the Commission found that Complainant stated a viable claim of retaliation. The Commission's regulations specifically state that an allegation of retaliation may not be dismissed as a preliminary step to taking a personnel action, and Complainant stated that her annual appraisal contained similar negative comments. Therefore, the mid-year evaluation merged with the annual appraisal and stated a claim. In addition, Complainant noted that a supervisor told her that pursuing management's failure to provide feedback would "blow up in [her] face." The Commission found that, taken together, the matters were reasonably likely to deter EEO activity. The entire complaint was remanded for processing. Marleen G. v. Soc. Sec. Admin., EEOC Appeal No. 0120172600 (Nov. 28, 2017).

Complainant Stated Viable Claim of Discrimination Based on Association with Individual with a Disability. Complainant filed a formal EEO complaint alleging that she was denied a reassignment/transfer to another facility. Complainant stated that she needed to care for her husband who was undergoing cancer treatment. The Agency characterized the complaint as alleging discrimination based on marital status and dismissed the matter. On appeal, the Commission stated that while marital status is not a covered EEO basis, the association provision of the Americans with Disabilities Act prohibits discrimination against a person, whether or not she is disabled, because of her known relationship or association with a person who has a known disability. Therefore, Complainant raised a viable claim of disparate application of the Agency's reassignment policy because of her association with her husband, a person with a disability. The Commission noted that individuals with a relationship or association with a person with a disability are not entitled to receive reasonable accommodation, and such an allegation would not state a viable claim. Judie D. v. Soc. Sec. Admin., EEOC Appeal No. 0120172781 (Nov. 9, 2017).

Complainant Stated Viable Claim of Retaliation. The Commission found that the Agency improperly characterized the individual incidents cited by Complainant as alleging dissatisfaction with the processing of her prior complaints. A fair reading of the complaint showed that Complainant was alleging that the EEO Director repeatedly subjected her to an ongoing series of incidents designed to interfere with her pursuit of her EEO rights and deny her access to the EEO office. For example, Complainant alleged that the Director told an EEO Specialist that Complainant could not come into the EEO office, and could not use a spare EEO office to speak with an AJ regarding her complaints. The Commission found that Complainant stated a viable claim of retaliation. Sharonda M. v. Dep't of Energy, EEOC Appeal No. 0120172120 (Nov. 7, 2017).

Agency Improperly Dismissed Claim. Complainant filed a formal complaint alleging five discriminatory events, including placement on a Performance Improvement Plan (PIP). Acknowledging the general rule that placement on a PIP is a preliminary step to taking a personnel action and does not typically in itself constitute an adverse action, the Commission noted that when a PIP becomes part of an employee's personnel file, the Complainant may state a claim. In this case, the PIP included language that suggested the PIP or related documentation was referenced in Complainant's personnel file or considered in taking an adverse action, and the Commission held that Complainant stated a claim. Jacinto Q. v. U.S. Postal Serv., EEOC Appeal No. 0120171710 (Oct. 6, 2017).

Complaint Properly Dismissed as Collateral Attack on Inspector General Process. The Commission affirmed the Agency's dismissal for failure to state a claim because Complainant's claims constituted a collateral attack on another process. Specifically, Complainant alleged discrimination when the Inspector General initiated an investigation against him, and seized his computer as part of that investigation. The Commission agreed this was a collateral attack on the Inspector General investigation. Herman P. v. Dep't of Def., EEOC Appeal No. 0120181744 (July 31, 2018).

Complaint Regarding Denial of Worker's Compensation Claim Properly Dismissed. The Commission affirmed the Agency's dismissal of Complainant's complaint regarding the denial of his worker's compensation claim for failure to state a claim. The Commission has long held that the EEO process is not the proper forum for a complainant to challenge the Department of Labor's denial of a claim for worker's compensation, and such matters must be raised directly with the Department of Labor. Lelia D. v. Dep't of Agric., EEOC Appeal No. 0120181595 (July 19, 2018); Additional Decisions Addressing Complaints Challenging the Worker's Compensation Process Include: Michelle G. v. U.S. Postal Serv., EEOC Appeal No. 0120182474 (Sept. 26, 2018) (Complainant alleged the Agency requested OWCP audit Complainant, was late filing one of her forms to OWCP, and requested Complainant falsify a form by changing the date she returned to work. The Commission agreed with the Agency that the complaint was a collateral attack on the OWCP process and affirmed the dismissal); Joelle L. v. U.S. Postal Serv., EEOC Appeal No. 0120182105 (Sept. 6, 2018) (the proper forum for Complainant to have raised her claims regarding the Agency's alleged unresponsiveness to her questions about extending her continuation of pay was with the OWCP because any remedial relief available to Complainant would be through OWCP and not through the EEO complaint process); Sunday S. v. U.S. Postal Serv., EEOC Appeal No. 0120181670 (Aug. 16, 2018) (the essence of Complainant's complaint concerned the Agency's alleged improper statements in the processing of Complainant's OWCP claim which constituted a collateral attack on that process. The proper forum for Complainant to have raised the matters was in the OWCP process itself); Herman P. v. U.S. Postal Serv., EEOC Appeal No. 0120181561 (Aug. 15, 2018) (Commission held that the EEO process is not the proper forum for Complainant to raise issues concerning the Agency's challenging his OWCP claims and failure to inform him of his right to collect worker's compensation. Those matters directly related to Complainant's OWCP claim and should have been raised with the Department of Labor); Randy G. v. U.S. Postal Serv., EEOC Appeal No. 0120181127 (Apr. 26, 2018) (the Commission affirmed the Agency's dismissal on grounds that the matter constituted a collateral attack on the OWCP process. Complainant was challenging actions directly related to the adjudication of his worker's compensation claim, specifically the Agency's failure to respond to a request from OWCP, and should have raised the matter with the Department of Labor not in the EEO process); Gerald M. v. U.S. Postal Serv., EEOC Appeal No. 0120180771 (Mar. 15, 2018) (the Agency properly dismissed Complainant's complaint concerning his OWCP claim. Complainant's allegations that the Agency lost his OWCP claim and then did not adequately assist him when he attempted to raise it later should have been raised with the Department of Labor and not in the EEO process).

Complaint Filed by Volunteer Properly Dismissed. The Commission found that the Agency properly dismissed Complainant's claim because the evidence of record showed that she was not a common-law employee. Complainant served as a voluntary pharmacy technician at an Agency medical facility and received only $5 meal vouchers on the days she volunteered. The Commission found that the meal vouchers did not qualify as "significant remuneration." Several management officials denied telling Complainant that she would ultimately be hired if she volunteered, noting that they advised her she would need to apply for an open position and go through the standard hiring process. The Commission stated that a preponderance of the evidence showed that volunteer work was not required for regular employment and did not lead to regular employment with the Agency's Pharmacy Service. Beryl B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170576 (July 17, 2018).

Complaint Regarding Settlement Negotiations Properly Dismissed. The Commission affirmed the Agency's dismissal of Complainant's formal complaint alleging that she was not allowed to write her own position description for failure to state a claim. Complainant asserted that the Agency attempted to resolve a prior EEO complaint by offering to transfer her to another position but denied her request to write her own position description. The Commission stated that a settlement offer does not give rise to a viable allegation, and such offers do not adversely affect a term, condition, or privilege of employment. Further, settlement negotiations, including any statements and proposals made therein, are to be treated as confidential and privileged in order to facilitate candid interchange to settle disputes informally. Fidelia F. v. Dep't of the Army, EEOC Appeal No. 0120181273 (May 29, 2018).

Complaint Properly Dismissed as Attack on Another Proceeding. Complainant filed a formal complaint alleging that his grievance was denied in an arbitration hearing. The Commission found that the Agency properly dismissed the complaint for failure to state a claim, noting that an employee cannot use the EEO process to lodge a collateral attack on another adjudicatory proceeding. Complainant's allegation clearly concerned a matter addressed by the collective bargaining agreement, and he must raise his claims in the grievance process. Monroe A. v. U.S. Postal Serv., EEOC Appeal No. 0120180331 (Jan. 12, 2018); Additional Decisions Addressing Complaints that Constitute an Attack on Another Proceeding Include: Mandi G. v. U.S. Postal Serv., EEOC Appeal No. 0120180365 (Feb. 2, 2018) (the Agency properly dismissed Complainant's complaint alleging that her disability retirement was delayed. Complainant filed for disability retirement with the Office of Personnel Management (OPM), and the proper forum for her to raise her challenges to the delay in processing her claim was with OPM).

Complaint Concerning Actions During Mediation Properly Dismissed. Complainant filed a formal complaint regarding actions taken by an Agency manager and counsel during mediation. The Commission affirmed the dismissal for failure to state a claim. The Commission has consistently held that, in general, comments and actions occurring during mediation cannot form the basis for an independent claim of discrimination. Hermila B. v. Dep't of the Treasury, EEOC Appeal No. 0120180815 (Mar. 16, 2018).

Complaint Alleging Dissatisfaction with the Processing of a Prior Complaint Properly Dismissed. Complainant filed a formal complaint alleging that the investigator in her prior EEO complaint did not interview all listed witnesses. The Commission found that the Agency properly dismissed the claim because it concerned the processing of Complainant's prior EEO complaint. Leonarda S. v. Soc. Sec. Admin., EEOC Appeal No. 0120172436 (Dec. 5, 2017).

Complaint Involving Grievance Settlement Properly Dismissed. The Commission found that Complainant's complaint alleging that the Agency failed to abide by a grievance settlement was properly dismissed for failure to state a claim. The Commission has held that an employee cannot use the EEO process to lodge a collateral attack on another adjudicatory proceeding. The complaint involving a grievance settlement clearly concerned a matter addressed by the collective bargaining agreement, and Complainant must raise his claims in that process. Sandy E. v. U.S. Postal Serv., EEOC Appeal No. 0120172505 (Oct. 18, 2017).

Summary Judgment

Summary Judgment Affirmed in Equal Pay Act Claim. Complainant, a Physician Assistant at an Agency Medical Center, filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex and in reprisal for prior protected EEO activity when he became aware that Nurse Practitioners received a higher rate of pay than Physician Assistants. After an investigation, the AJ issued a summary decision finding no discrimination. On appeal, the Commission found that the Agency met its affirmative defense by showing that the alleged pay disparity was based on a factor other than sex. The record revealed that the Agency was required by statute and regulations to maintain separate pay scales for Physician Assistants and Nurse Practitioners. The Medical Center used salary surveys of private sector pay to determine pay scales for each position, and, based on the survey, a pay chart was developed, approved by the facility Director, and forwarded to the VA Central Office for authorization and implementation. The Director explained that the Medical Center had been having great difficulty attracting and hiring qualified Nurse Practitioners. The Director stated that the Medical Center had recently conducted a salary survey and increased Nurse Practitioner pay to achieve parity with private sector employees and to meet a need for Nurse Practitioners at the Medical Center. The Medical Center did not have similar difficulty in attracting, hiring, or retaining Physician Assistants and did not have unfilled Physician Assistant vacancies. This gender-neutral explanation was not rebutted by Complainant and sufficed to convince the Commission that the Agency did not violate the Equal Pay Act. The Commission found that there was no evidence that Complainant's prior EEO activity played any part in the setting of his salary. Berry K. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180967 (May 25, 2018).

Summary Judgment Affirmed. The Commission affirmed the AJ's decision by summary judgement in favor of the Agency, finding that Complainant failed to prove that the articulated reasons for the proposed suspension were a pretext for discrimination. While Complainant asserted generally that there were material facts in dispute, a complainant must specifically identify those facts either within the record or by producing further supporting evidence. Complainant must also establish that such facts are material under the applicable law. In this case, Complainant failed to point to any particular evidence that indicated such a dispute. The Commission concluded that even construing any inferences raised by the undisputed facts in favor of Complainant a reasonable fact finder could not find in his favor. The responsible management officials articulated legitimate, nondiscriminatory reasons for the suspension, specifically that an investigation found that harassment allegations against Complainant were substantiated, and Complainant failed to show that the reasons were pretextual. Chuck B. v. Dep't of the Navy, EEOC Appeal No. 0120160249 (Mar. 13, 2018).

Summary Judgment Reversed. The Commission found that the AJ erred when she concluded there was no genuine issue of material fact in the case. The Commission disagreed with the AJ's conclusion that Complainant did not allege the Agency failed to accommodate her pregnancy-related condition, lactation. The Commission has held that a complainant's status as a nursing mother is protected under the Pregnancy Discrimination Act. Here, there were genuine issues of material fact relating to whether the Agency failed to accommodate Complainant, who identified as Asian and Indian, while purportedly accommodating other similarly situated employees. It was undisputed that Complainant was required to use the bathroom for a period of time. The Commission noted that the AJ should assess the credibility of the manager's and supervisor's representations of when they learned about Complainant's need for accommodation and whether there was a delay in providing a space other than the restroom. It was undisputed that another employee was provided space to pump in a different area. The record was also devoid of evidence as to whether the Agency accommodated other employees for medical conditions that required accommodation with private spaces in areas other than the restroom. Therefore, the Commission found that there were too many unresolved issues regarding whether the Agency accommodated Complainant's needs as a nursing mother and, if not, whether Complainant established that the Agency's reasons for not doing so were pretextual. The Commission remanded the matter for a hearing. Sharonda M. v. U.S. Postal Serv., EEOC Appeal No. 0120180910 (Sept. 27, 2018).

Summary Judgment Reversed. The Commission found that the AJ's issuance of a decision without a hearing was not appropriate because the record was not sufficiently developed and there were genuine issues of fact and credibility. Complainant alleged that the Agency discriminated against him and subjected him to numerous incidents of harassment and retaliation. There was no dispute that Complainant helped other employees file EEO complaints and was active in assisting employees with EEO-related issues during the period in which the alleged harassment occurred. Further, the alleged responsible management officials were aware of this protected EEO activity. Therefore, the Commission found genuine issues of fact as to whether the alleged harassment was based on Complainant's protected activity. In addition, the AJ improperly made credibility determinations against Complainant in favor of the management officials despite witness statements that management officials made derogatory comments about Complainant assisting with other employees' EEO matters and were openly hostile toward Complainant. The Commission remanded the matter for an administrative hearing, noting that the AJ should also facilitate development of the record regarding Complainant's medical confidentiality claim. Fernando D. v. Dep't of Def., EEOC Appeal No. 0120162810 (July 19, 2018).

Summary Judgment Reversed. The Commission concluded that the AJ erred when, on her own motion, she issued a decision without a hearing finding that Complainant failed to establish a hostile work environment. Specifically, in finding that Complainant failed to establish that she was subjected to conduct that was sufficiently severe or pervasive, the AJ improperly weighed the evidence and relied on the credibility of management officials. The Commission stated that the AJ must also assess the alleged responsible official's credibility at a hearing to determine whether questions regarding Complainant's retirement plans were based on age-based animus. Further, the AJ improperly relied upon statements from two management officials in finding that they did not attempt to solicit negative feedback about Complainant, and Complainant did not have the opportunity to cross-examine the management officials. The Commission found unresolved issues which required an assessment as to the credibility of various management officials, co-workers, and Complainant herself. The Commission further noted that while the Agency properly dismissed claims regarding a detail and the removal of Complainant's Contracting Officer's warrant as discrete acts, the Agency and the AJ failed to consider whether those actions were part of Complainant's hostile work environment claim. Therefore, the entire claim was remanded for an administrative hearing. Marvella B. v. Gen. Serv. Admin., EEOC Appeal No. 0120150997 (Apr. 3, 2018), request for reconsideration denied EEOC Request No. 0520180380 (Sept. 28, 2018).

Summary Judgment Reversed. The AJ issued a decision without a hearing finding no failure to accommodate Complainant's medical restrictions due to pregnancy. The Agency maintained that it provided light duty assignments only for those injured on the job, and since pregnancy was not an on-the-job injury, it was not obligated to provide light duty assignments for pregnant workers. The Agency also asserted that there were no positions available within Complainant's medical restrictions. The Commission reversed, finding that a decision without a hearing was not appropriate because there were material facts in dispute and the record was not adequately developed. The Agency acknowledged that it did not accommodate Complainant and that other employees outside of Complainant's protected groups were given light-duty assignments. The Commission noted that, under the Pregnancy Discrimination Act, it is irrelevant how or where an employee's limitation arose, and, therefore, there was a genuine dispute as to whether the Agency provided more favorable treatment to at least some other employees. The Commission also noted that the record needed further development to determine if the Agency's policy of denying light duty to pregnant workers places an undue burden on them. The Commission indicated this policy may constitute both disparate impact as well as disparate treatment discrimination. The record also needed further development as to whether jobs were available within Complainant's medical restrictions. The Commission remanded the complaint for an administrative hearing. Elease S. v. U. S. Postal Serv., EEOC Appeal No. 0120140731 (Dec. 27, 2017).

Summary Judgment Reversed. Complainant filed a formal EEO complaint, alleging that she was sexually harassed by a co-worker for over one year, including being asked for sexual favors and offered money for sex. An AJ issued a decision without a hearing finding that Complainant failed to prove her claim of harassment. On appeal, the Commission found that the AJ improperly relied on credibility determinations, credited the Agency's version of the material facts, and weighed the evidence without benefit of a hearing. Further, the Commission stated that the evidence, taken as whole and in the light most favorable to Complainant, could result in a determination in Complainant's favor. The Commission disagreed with the AJ that Complainant was unable to establish a prima facie case, stating that she alleged she was subjected to unwelcome harassment in the form of being propositioned for money, conduct which was clearly based on her sex. The Commission concluded that the record had not been adequately developed with respect to whether Complainant was subjected to unwelcome verbal or physical conduct involving her protected class or regarding whether there was a basis for imputing liability to the agency. Therefore, there were simply too many unresolved issues which required an assessment as to the credibility of the various witnesses and Complainant. The matter was remanded for an administrative hearing. Macy B. v. Dep't of Veterans Affairs, EEOC Appeal No 0120160475 (Nov. 14, 2017).

Summary Judgment Reversed. The Commission found that the AJ erred in issuing a decision without a hearing finding that Complainant failed to prove his claim of discriminatory harassment and denial of reasonable accommodation. The Commission stated that the AJ's decision only addressed whether being required to work above 10 feet was an essential function of Complainant's position, and did not consider other incidents comprising Complainant's hostile work environment claim collectively. Complainant alleged that his supervisor daily threatened to force him to perform duties he was not able to perform, and issued a memorandum stating that Complainant could not be accommodated in his position. The Commission concluded that a hearing was needed to determine the veracity of Complainant's allegations and develop evidence regarding the Agency's response to Complainant's request for accommodation. The Commission remanded the matter for an administrative hearing. Wiley G. v. Dep't of the Navy, EEOC Appeal No. 0120152601 (Nov. 8, 2017).

Timeliness

Complainant Timely Raised Discriminatory Pay Claim with EEO Counselor. The Commission found that a fair reading of the complaint in this case, as well as the related EEO counseling report and statements on appeal, showed that the Agency improperly defined Complainant's claim. The essence of Complainant's claim was that she had been discriminatorily denied higher pay and merit system selection since her July 2016 transfer, for which she then sought back pay. The record showed that Complainant initiated EEO contact within 45 days of receiving a paycheck, the amount of which was the result of an earlier discriminatory act. The Commission found that Complainant was affected by the application of an allegedly discriminatory compensation decision or practice each time she received a paycheck. Applying the Lily Ledbetter Fair Pay Act, the Commission found that Complainant timely contacted an EEO Counselor and the Agency improperly dismissed Complainant's claim. The Commission also found Complainant's hostile work environment claim to be timely because at least one of the incidents, the alleged ongoing compensation discrimination, occurred within the 45 days preceding Complainant's initial EEO contact. Morna H. v. Dep't of Transp., EEOC Appeal No. 0120181745 (Sept. 13, 2018).

Complainant Timely Contacted EEO Counselor Once She Reasonably Suspected Discrimination. Complainant filed a formal EEO complaint alleging the Agency discriminated against her when it did not pay her for time she spent on a detail assignment to a higher-level position. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant failed to raise the matter within 45 days of the end of her detail. The Commission reversed the Agency's decision, stating that Complainant did not know or reasonably suspect that she would not be paid at the higher-level work until February 27, 2018, when her former supervisor told her he would no longer take any action concerning the matter. Prior to that time, Agency management led her to believe they were working to provide her with back pay for the time she was on detail. Complainant contacted the EEO Counselor on February 27 and timely raised her claim. Edwina W. v. Dep't of Agric., EEOC Appeal No. 0120182288 (Sept. 18, 2018). Additional Decisions Addressing When Complainant Reasonably Suspected Discrimination Include: Nobuko M. v. U.S. Postal Serv., EEOC Appeal No. 0120182357 (Sept. 25, 2018) (Complainant did not have a reasonable suspicion of discrimination when her detail ended, but she first suspected discrimination upon learning of a co-worker's detail, which Complainant contends was the day she requested counseling. Complainant's EEO counselor contact was therefore timely); Ian C. v. Dep't of the Navy, EEOC Appeal No. 0120181513 (July 12, 2018) (Complainant alleged age discrimination regarding a non-selection that occurred outside of the 45-day time limit for EEO counselor contact. However, Complainant did not learn that the selectee for the position was younger until later, and timely contacted the EEO counselor within 45 days); Stan G. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120180465 (Mar. 23, 2018) (the Agency improperly dismissed Complainant's allegations that he was denied training and an opportunity to deploy with a disaster management team for failure to timely contact an EEO counselor. While the Agency claimed it informed Complainant he was non-deployable by certified and regular mail, the certified letter was returned undelivered and the Agency surmised, without evidence, that Complainant must have learned of the alleged discrimination by regular mail. Complainant asserted he only learned he would not be deployed when a deployment opportunity arose, and contacted an EEO Counselor well within the 45-day time limit. The Commission found that the Agency failed to provide evidence to dispute Complainant's assertion as to when he learned of his deployment status); Toni M. v. U.S. Postal Serv., EEOC Appeal No. 0120180339 (Jan. 12, 2018) (while the Agency stated that Complainant was verbally notified of her nonselection more than 45 days prior to initiating EEO contact, Complainant asserted that more than two months later, she learned the identity of the individual selected and contacted the EEO Counselor because she believed she was more qualified for the position. The Commission stated that Complainant could not have reasonably suspected discrimination until she learned who was selected for the position, and assessed the selectee's qualifications. Further, the documentation in the record showed that the effective date of the selection was less than 45 days prior to the date on which Complainant contacted the EEO Counselor. Therefore, Complainant established that she timely contacted the Counselor within 45 days of developing a reasonable suspicion of discrimination): Linette F. v. Gen. Serv. Admin., EEOC Appeal No. 0120172475 (Nov. 13, 2017) (Complainant alleged constructive discharge due to denial of reasonable accommodation. The record showed that the Office of Personnel Management (OPM) informed complainant that her application for disability retirement had been approved, but she was not yet separated from the Agency, and then later informed her she was in an interim payment status. Complainant timely requested EEO counseling when she received the "Explanation of Benefits" from OPM, and the Commission found no evidence the Agency informed Complainant of her separation prior to that date).

EEO Counselor Misled Complainant Causing Delay in EEO Contact. The Commission reversed the Agency's dismissal for untimely EEO counselor contact. Complainant stated she contacted the EEO Counselor within the time limits for timely EEO counseling but the EEO Counselor told her to make a Freedom of Information Act request to obtain documents related to the selection. The record contained an email exchange between Complainant and the EEO Counselor which verified the EEO Counselor's advice. The record did not show the EEO Counselor warning Complainant that the clock was running on initiating the pre-complaint process. Therefore, the Commission concluded the EEO Counselor misled Complainant and the Agency could not dismiss the complaint for untimely EEO counselor contact. Tawanna F. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120182337 (Sept. 13, 2018).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. The Commission reversed the Agency's dismissal for untimely EEO counselor contact. The Agency framed Complainant's complaint as alleging discrimination when he was involuntarily reassigned due to a reduction in force (RIF) in 2015; and 2 years later his base hourly rate was reduced as a result of salary retention due to the RIF. Complainant initiated EEO counselor contact around the time of the reduction in salary. The Commission found the Agency failed in its burden to show untimeliness regarding the RIF claim because the record was devoid of any documentation (such as a Notice of Personnel Action Form) indicating the effective date of the RIF or when Complainant was informed of the RIF. Further, Complainant was alleging ongoing compensation discrimination, and his EEO Counselor contact was timely under the Lilly Ledbetter Fair Pay Act. Ross H. v. Dep't of Def., EEOC Appeal N. 0120182307 (Sept. 11, 2018).

Complaint Improperly Dismissed in Part for Failure to Timely Contact EEO Counselor. Complainant contacted an EEO Counselor in December 2017, and subsequently filed a formal complaint alleging that the Agency discriminated against him between 2014 and September 2017 when it did not select him for 6 positions, denied him two assignments, and required him to report to work after his shift. The Agency dismissed the complaint for failure to timely contact an EEO Counselor within the 45-day limitation period. Complainant asserted that he did not pursue the matters earlier because he feared retaliation by a named management official. The Commission has consistently held that fear of reprisal is insufficient to justify extending the time limit for contacting an EEO Counselor. Further, the official was removed in July 2016, and there was no indication Complainant feared retaliation generally. Therefore, the Agency properly dismissed eight of the claims. Regarding one nonselection, however, Complainant stated he did not reasonably suspect discrimination until he interviewed for the position on November 6, 2017, and it was "immediately apparent" that the board had already made their decision. Therefore, Complainant timely raised an allegation of discrimination regarding his nonselection for a Criminal Investigator position. Lamar D. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120181962 (Aug. 16, 2018).

Complaint of Harassment Improperly Dismissed for Untimely EEO Counselor Contact. The Commission reversed the AJ's dismissal of Complainant's harassment claim for untimely EEO counselor contact. The record showed the alleged harassment continued well beyond the date the AJ found it had ended. Because one allegation was found timely, all the allegations of harassment were timely as the actions constituted one unlawful employment practice. Clinton M. v. Agency for Int'l Dev., EEOC Appeal No. 0120162459 (July 31, 2018); Additional Decisions Finding Complaints of Harassment Timely Raised Include: Farah S. v. Dep't of the Navy, EEOC Appeal No. 0120172442 (Nov. 14, 2017) (a fair reading of the complaint, in conjunction with the related EEO counseling report, showed that Complainant alleged ongoing harassment by at least one male employee at the time she sought counseling. While she referenced an earlier date when she informed management of the harassment, Complainant stated she was told no action would be taken until she provided a written statement. Complainant stated she could not provide the statement due to her disability. The Commission found that Complainant's complaint of ongoing harassment which included incidents up to the date she sought counseling was timely).

Agency Failed to Show Complainant Was Aware of or Should Have Known of Time Limitation for Contacting EEO Counselor. The Commission found that the Agency failed to support its decision to dismiss Complainant's complaint and did not show that Complainant was aware of or should have been aware of the time limitation for contacting an EEO Counselor. While the Agency asserted that Complainant had prior experience in the EEO complaint process, his experience was as a witness in another employee's complaint. Complainant did not have prior experience initiating a complaint of his own. Further, to the extent Complainant admitted someone with the union told him about the EEO process, there is nothing in the record concerning what information this person gave Complainant. Elvis G. v. Dep't of the Air Force, EEOC Appeal No. 0120181699 (July 19, 2018), request for reconsideration denied, EEOC Request No. 2019000221 (Feb. 15, 2019); Additional Decisions Addressing Whether Complainant Was Aware of the Limitation Period for Contacting an EEO Counselor Include: Zachery V. v. Office of Pers. Mgmt., EEOC Appeal No. 0120182188 (Sept. 12, 2018), request for reconsideration denied, EEOC Request No. 2019000409 (Feb. 7, 2019) (Complainant, a former employee of another federal agency, requested EEO counseling two and one-half months after his non-selection. The Commission rejected the Agency's assertion that the prior agency would have provided notice and training to Complainant on the EEO counselor contact requirements. It was insufficient for the Agency to assume without proof that Complainant had prior knowledge of the EEO requirements because Complainant was a formal federal government employee. Further, while links to which the Agency referred did provide information regarding the EEO requirements, the job vacancy announcements did not mention the EEO counselor contact requirements nor did the job vacancy announcements indicate that the EEO links contained information pertaining to the EEO counselor contact requirements. The Commission concluded the Agency failed to demonstrate it notified Complainant or Complainant was otherwise aware of the 45-day Counselor contact requirement); Fiona S. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120172394 (Nov. 16, 2017) (while the record showed that Complainant did not initiate contact with an EEO Counselor within the 45-day limitation period, it was impossible to determine from the record whether Complainant was aware of the applicable limitation period. The record did not contain a copy of the letter of removal indicating that Complainant was informed of the EEO process, or any information as to whether Complainant received EEO training. The record also did not contain a statement as to whether EEO posters were displayed at the workplace. Therefore, the Agency failed to show that Complainant was aware or should have known of the time limits for contacting an EEO Counselor).

Filing Date of Motion to Amend Deemed Date of Initial EEO Counselor Contact. Complainant filed a motion to amend with the AJ assigned to hear a prior EEO complaint, alleging that she was issued a Letter of Reprimand. After the AJ denied Complainant's motion, she contacted an EEO Counselor and filed a new formal complaint. The Agency dismissed this complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that the dismissal was improper. Pursuant to the Commission's regulations, if an AJ denies a motion to amend because the allegations are not like or related to the pending complaint, the AJ should order the Agency to process the new claims as a separate EEO complaint. In this case, the AJ should have ordered the Agency to process the additional allegations and instructed the Agency that the filing date of the motion to amend should be used to determine whether initial EEO contact was timely. Therefore, since Complainant filed her motion to amend within 45 days of the alleged discriminatory incident, her EEO contact was timely. Chau B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120181131 (Apr. 26, 2018).

Commission Waived Time Limit for Contacting EEO Counselor. The Commission reversed the Agency's dismissal of Complainant's claims regarding his pay, failure to receive a performance appraisal, and hostile work environment for failure to timely contact an EEO counselor. Complainant was stationed in Kazakhstan and there was no evidence that EEO posters were on display at the facility. Further, the Agency did not provide evidence that Complainant received EEO training, or an affidavit stating that EEO information was available during the relevant period. Therefore, the Commission waived the applicable limitation period. Marya S. v. Dep't of State, EEOC Appeal No. 0120180757 (Mar. 30, 2018).

Complainant Timely Raised Claim of Ongoing Denial of a Reasonable Accommodation. Complainant filed a formal EEO complaint alleging, among other things, that the Agency failed to provide her with reasonable accommodation in the form of telework. The Agency investigated the claim, but an AJ ultimately granted the Agency's motion to dismiss the claim for failure to timely contact an EEO Counselor. According to the record, Complainant first requested additional telework days while she completed a trauma recovery program. Complainant and the Agency continued to interact about her request until the Agency ultimately approved the additional telework in April 2013. The Commission stated that the claim should have been characterized as a recurring violation, and the Agency had an ongoing obligation to provide Complainant with reasonable accommodation. Further, the Commission has specifically held that the denial of reasonable accommodation occurs each time the accommodation is needed. Therefore, Complainant's contact with the EEO Counselor was timely. Reita M. v. Dep't of Housing & Urban Dev., EEOC Appeal No. 0120160803 (Apr. 5, 2018); Additional Decisions Finding Claims of Reasonable Accommodation Timely Include: Odell H. v. U. S. Postal Serv., EEOC Appeal No. 0120172998 (Dec. 5, 2017) (Complainant's complaint consisted of an ongoing denial of a reasonable accommodation claim. Complainant specifically alleged that he was sent home from new employee orientation because there was no interpreter, and the Agency repeatedly failed to reschedule him for orientation with an interpreter for over seven months. Thus, Complainant's EEO contact during that period was timely).

Complainant Failed to Justify Extension of 45-Day Limitation Period for Contacting Counselor. Complainant contacted an EEO Counselor in September 2017, and subsequently filed a formal complaint regarding incidents that occurred from 2016 through July 2017. The Commission affirmed the Agency's dismissal for failure to timely contact an EEO Counselor. The Commission stated that Complainant should have reasonably suspected the alleged discrimination more than 45 days prior to her initial contact. Further, while Complainant asserted that she was dealing with her own and her husband's medical issues, she did not identify when she was incapacitated or how the medical conditions precluded her from contacting a Counselor in a timely manner. She also did not provide any evidence to support her claim of incapacitation. Therefore, the record did not justify an extension of the 45-day limitation period. Brook V. v. Dep't of State, EEOC Appeal No. 0120180669 (Feb. 22, 2018).

Complaint Properly Dismissed for Untimely EEO Counselor Contact. Complainant contacted an EEO Counselor more than four months after being denied a promotion, and the Agency ultimately dismissed Complainant's complaint for failure to timely contact an EEO Counselor. The Commission affirmed the dismissal on appeal, noting that Complainant knew that comparative employees outside of her protected group were receiving non-competitive promotions at the time. While Complainant attempted to pursue the matter through an administrative process, the Commission stated that action did not toll the time limitation for contacting an EEO Counselor. The Commission further noted that most courts have concluded that the time frame for challenging the denial of a promotion is not affected by the Lilly Ledbetter Fair Pay Act. Sherill S. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180401 (Jan. 31, 2018).

Agency Failed to Show When Complainant's Attorney Received Notice of Right to File. The Agency dismissed Complainant's complaint as untimely, stating that Complainant received the Notice of Right to File more than 15 days before he submitted his formal complaint. The Commission found that the Agency's dismissal was improper. While the Agency produced a "read receipt" purportedly showing the Complainant opened an email containing the Notice, there was no evidence proving when Complainant's attorney received the Notice. The Commission rejected the Agency's assertion that it was reasonable to assume the attorney received and opened the email within five days of the Agency sending it, finding the argument insufficient to meet the Agency's burden of proving untimely filing. The Commission further noted that at the time the Agency issued the Notice Complainant had not been given a final interview and was scheduled for mediation. The Commission noted that while the Agency also stated that Complainant did not engage in prior EEO activity, that assertion went to the merits of the claim rather than procedural sufficiency, and Complainant raised a viable claim of harassment. Elliott L. v. Dep't of the Treasury, EEOC Appeal No. 0120182071 (Sept. 19, 2018).

Agency Failed to Show When Complainant Received Notice of Her Right to File a Complaint. The Commission reversed the Agency's dismissal for untimely filing the formal complaint. The Agency issued a Notice of Right to File a Formal Complaint by certified mail, but it was returned unclaimed over one month later. The Agency then reissued the Notice by email. The Agency dismissed the formal complaint because Complainant did not file the formal complaint until 42 days after it emailed Complainant the re-issued notice. Complainant asserted she did not open the email until within 15 days of when she filed the formal complaint, and the Agency had no evidence that she had opened the email any earlier. Therefore, the Commission found that the complaint was timely filed. Meaghan F. v. Dep't of the Treasury, EEOC Appeal No. 0120181903 (Sept. 11, 2018). Additional Decisions Addressing Agency's Failure to Show When Complainant Received Notice of Right to File Include: Russel D. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120181826 (July 24, 2018) (the Agency failed to submit evidence showing the date when Complainant received the Notice of Right to File a Complaint, which would trigger the 15-day limitation period. While the Agency determined that Complainant received the Notice of January 24, 2018, the Commission saw nothing in the record documenting receipt on that date. The Agency asserted that Complainant submitted an e-mail response to a Request for Untimely Explanation on March 30, 2018, stating she "wasn't feeling well," and was confused in how to send the reply. However, as in the case with documentation of the Notice itself, the record similarly did not contain a copy of this March 30, 2018 e-mail response identified by the Agency. The Commission noted that the Agency did not meet its burden to have evidence or proof of its final decision); Gaylord I. v. Dep't of Agric., EEOC Appeal No. 0120172673 (June 26, 2018) (the record contained a Postal Service "Tracking" print-out for the certified mail tracking number associated by the Agency with the Notice that indicated a delivery to a particular town without any further details of the address. There was no evidence, other than this generalized reference to a city and zip code, indicating when Complainant actually received the Notice. Where, as here, there is an issue of timeliness, the Agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness); Taylor G. v. Dep't of Def., EEOC Appeal No. 0120172333 (Nov. 28, 2017) (the Agency did not have sufficient proof that Complainant received the Notice in October 2016. Complainant denied receiving the Notice, and the documentation provided by the Agency did not identify the actual address to which the Notice was delivered. The tracking information only included a city and zip code reference, and there was no record of anyone signing for the Notice. Therefore, the Agency failed to meet its burden to show that the complaint was not timely filed).

Complaint Improperly Dismissed as Untimely. The Commission found that the Agency improperly dismissed Complainant's complaint on grounds it was untimely filed. While the Agency asserted that Complainant received the Notice of Right to File an Individual Complaint on March 28, 2018, the record contained a request for delivery information which indicated the certified return receipt was signed for by someone other than Complainant. The record did not contain a copy of the certified receipt itself, and the Agency failed to advise Complainant that it was relying on the doctrine of constructive receipt. Therefore, Complainant did not have an opportunity to rebut the presumption. Rafaela B. v. U.S. Postal Serv., EEOC Appeal No. 0120182003 (Sept. 5, 2018); Additional Decisions Addressing Receipt by Someone Other than Complainant Include: Darell C. v. Dep't of the Treasury, EEOC Appeal No. 0120172128 (Sept. 20, 2018) (Agency provided a Postal Service "Tracking Results" for the certified mail number assigned to the Notice of Right to File a Discrimination Complainant stating the Notice was "delivered, left with individual" in a specific city. The record did not include Complainant's street address or a signature confirmation. Complainant indicated that he filed his complaint one day after receiving the Notice, and the stamped "Receipt" date was not sufficient to show that the complaint was filed on that date where the record did not contain a copy of the postmarked envelope); Nikol K. v. U. S. Postal Serv., EEOC Appeal No. 0120172677 (Oct. 11, 2017) (the record contained a copy of the certified return receipt for the Notice that was signed by an individual not identified as Complainant. The signature did not bear any resemblance to Complainant's signature on multiple documents in the record. Further, the Notice was delivered to an apartment building and Complainant asserted she was having trouble timely receiving her mail. Therefore, since the Agency did not advise Complainant that it was relying on the doctrine of constructive receipt in its final decision, the Commission found that the dismissal was improper); Sherita V. v. U.S. Postal Serv., EEOC Appeal No. 0120180359 (Jan. 31, 2018) (the record included a Postal Service Track and Confirm record that included a signature confirmation number, and indicating the Notice of Right to File a Formal Complaint was delivered to and signed for by Complainant at her address of record more than 15 days prior to the date on which she filed her complaint. The Agency properly relied on the constructive notice of delivery to Complainant's correct address and informed Complainant of the substance of the doctrine in its dismissal. While Complainant asserted on appeal that it was not her signature on the Track and Confirm record, Complainant failed to provide any alternative explanation for whose signature was on the receipt or how she ultimately obtained the Notice of Right to File. Therefore, Complainant failed to rebut the presumption of constructive notice).

Active Duty Status is Excluded from Limitation Period for Filing Complaint. The Agency dismissed Complainant's formal complaint on the grounds it was untimely filed. On appeal, Complainant asserted that she was on active duty during the period in question and received the Notice of Right to File a Formal Complaint upon her return on August 28, 2017. Thus, she asserted that her formal complaint filed on September 10, 2017, was timely. Complainant submitted copies of her military orders, and the Commission found that Complainant's complaint was timely filed. The Commission has held that the period during which a complainant was in active duty status is excluded from the computation of time in determining whether a complainant has timely met a specified time limit. Lu T. v. U. S. Postal Serv., EEOC Appeal No. 0120180479 (Feb. 8, 2018).

Complainant Presented Sufficient Medical Justification for Extending Time Limit for Filing Complaint. The Agency dismissed Complainant's complaint as untimely, stating that she did not submit her formal complaint within 15 days of receiving the Notice of Right to File. The Commission found that Complainant submitted sufficient justification for extending the time limit due to her medical condition. Complainant submitted a letter from her physician confirming that that she experienced an adverse reaction to medication several days before the filing deadline and was incapacitated during that time. Complainant stated that she contacted the EEO Specialist when she returned to work to request an extension and was told to submit her complaint as soon as possible. Complainant submitted her complaint two days after returning to work. Therefore, the Agency was ordered to process Complainant's complaint. Lynne E. v. Dep't of Hous. & Urban Dev., EEOC Appeal No. 0120180424 (Jan. 12, 2018); Decisions Finding Complainant Failed to Provide Sufficient Medical Justification for Extending Filing Period Include: Beryl B. v. Dep't of Commerce, EEOC Appeal No. 0120181999 (Aug. 17, 2018); (Complainant acknowledged that she filed her formal complaint beyond the 15-day deadline. While Complainant claimed that she was unable to timely file her complaint due to health issues and visits to her physician, Complainant failed to provide supporting information, such as medical documentation, showing she was so incapacitated during the applicable period that she was prevented from timely filing her complaint. The Commission noted that Complainant's other stated reasons for the delay, that is work deadlines and other EEO obligations, did not justify extending the filing period); Man H. v. U.S. Postal Serv., EEOC Appeal No. 0120181824 (Aug. 16, 2018), request for reconsideration denied, EEOC Request No. 2019000216 (Feb. 21, 2019) (while Complainant stated he had outpatient surgery on March 23 and was on pain medication for 15 days, he presented no evidence to show he was so incapacitated during the period in question that he was unable to timely file his complaint); Jona R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180894 (Mar. 28, 2018) (Complainant did not dispute that she filed her complaint beyond the limitation period, but asserted she had dyslexia, exacerbated by migraines, which made it difficult for her to understand and follow directions. Complainant, however, provided no evidence of her medical condition and its impact on her meeting filing deadlines. The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by her condition that she is unable to meet the regulatory time limits).

Untimely Filing Excused Due to Death in the Family. Complainant filed a formal Complaint on April 28, 2017, one day after the expiration of the 15-day limitation period, and the Agency subsequently dismissed his complaint due to the untimely filing. Complainant explained on appeal that his father-in-law passed away on April 26, 2017 and provided a copy of the obituary. The Commission determined that due to the unique circumstances, the Agency's decision should be reversed and the complaint remanded for further processing. The Commission noted that the time limitations are subject to waiver, estoppel and equitable tolling, and Complaint's de minimus one day delay did not harm the Agency. Lino L. v. U.S. Postal Serv., EEOC Appeal No. 0120172544 (Oct. 19, 2017).

Complaint Timely Filed on Date Received in Agency's Mailroom. The Commission reversed the Agency's dismissal for untimely filing of the formal complaint following receipt of the 15-day notice of the right to file. The Commission found that the complaint was timely received at the Agency's mailroom and was therefore timely filed, even though the person charged with receiving complaints did not actually receive it until after the time-period had elapsed. Kiera H. v. Dept. of the Air Force, EEOC Appeal No. 0120172654 (Oct. 11, 2017).

Formal Complaint Untimely Based on Date Attorney Received Notice of Right to File. The Commission affirmed the Agency's dismissal of Complainant's complaint on grounds that it was not filed within 15 days of the date Complainant's attorney received the Notice of Right to File a Discrimination Complaint. Complainant clearly designated her attorney as her representative, and therefore the 15-day limitation period began upon his receipt. The record contained a tracking report confirming that the Notice was delivered, and signed for at the attorney's address of record more than 15 days prior to the date the complaint was filed. Melani F. v. U.S. Postal Serv., EEOC Appeal No. 0120181226 (Aug. 16, 2018). Additional Decisions Addressing an Attorney's Receipt of the Notice of Right to File Include: Julie Z. v. Dep't of the Navy, EEOC Appeal No. 0120182137 (Sept. 7, 2018) (the Agency properly dismissed the complaint as untimely where the complaint was filed more than 15 days after receipt by Complainant's designated attorney representative. The Agency sent an email to Complainant's attorney with a link and password to download the Notice of Right to File. The email indicated that the password could only be used once and provided a telephone number for technical assistance. The law firm's administrative assistant opened the email and downloaded the Notice on March 28, 2018. Complainant's attorney did not contend that he requested the Agency not to engage in certain types of communication via email, but stated he did not personally access the Notice until March 30. The Commission found that by using the one-time password and downloading the Notice, the attorney effectively received the Notice on March 28, and the 15-day time limitation began to run on that date. Therefore, the formal complaint was untimely filed on April 13, 2018); Jeremy C. v. Dep't of the Army, EEOC Appeal No. 0120181715 (July 11, 2018) (Agency erroneously calculated the time limit from the day Complainant was handed the Notice of Right to File a Formal Complaint, rather than when Complainant's designated attorney received the notice. Calculated from when the attorney received the notice, the formal complaint was timely filed).

Complaint Properly Dismissed as Untimely. The Commission affirmed the Agency's dismissal of Complainant's complaint on the grounds it was untimely filed. The Agency provided evidence showing that Complainant received the Notice of Right to File a Formal Complaint on November 22, 2016, which included clear instructions for filing and the 15-day requirement. Complainant did not file her complaint until October 25, 2017. The Commission rejected Complainant's attorney's argument that the complaint warranted equitable tolling because he sent the complaint to the wrong email address two days before the deadline. The Commission stated that Complainant's attorney waited 10 months without any confirmation from the Agency that it received Complainant's formal complaint, and the prolonged lack of response indicated a lack of due diligence that did not warrant equitable tolling. Justine R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180630 (Apr. 11, 2018); Additional Decisions Addressing Complaints Sent to Incorrect Address Include: Lela M. v. U.S. Postal Serv., EEOC Appeal No 0120172450 (Oct. 18, 2017) (although the record showed that the Agency provided Complainant with the proper Agency address for filing her complaint, Complainant initially and incorrectly filed her formal complaint with the Commission. The Commission stated that, when provided with the proper address, filing a complaint at the wrong address does not constitute a proper filing. The Commission concluded that the Complainant did not offer adequate justification to warrant a time limit extension for filing the complaint).