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Digest Seal The DIGEST Of Equal Employment Opportunity Law


Fiscal Year 2018, Volume 2

Office of Federal Operations

April 2018


Inside

Selected Notable EEOC Decisions on:

Attorney's Fees

Class Complaints

Compensatory Damages

Complaint Processing

Dismissals

Findings on the Merits

Mixed Motive

Remedies

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness

ARTICLE:
Assessing Workplace Harassment Prevention Methods Through Comparisons with Similar Crime Prevention Strategies


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

Carlton M. Hadden, Director, OFO
Jamie Price, Assistant Director, OFO's Special Operations Division
Digest Staff
Editor: Robyn Dupont
Writers: Karen Brummond, Robyn Dupont, Maria Kaplan, Joseph Popiden, Navarro Pulley, Alex Romero, Laurence Thompson

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


(The Commission redacts Complainants' names when it published 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. - Ed.)

SELECTED EEOC DECISIONS

Attorney's Fees

Commission Modified Award of Attorney's Fees. Following a finding that the Agency subjected Complainant to harassment based on sex and in reprisal for protected EEO activity, an Administrative Judge (AJ) awarded, among other things, $95,000 in attorney's fees to Complainant's present counsel and an additional $39,940.21 in reimbursement for fees paid to a previous counsel. On appeal, the Agency challenged the award of $39,940.21 in fees to the previous counsel, noting that Complainant did not submit an affidavit from the attorney and staff who performed the work. The Agency further challenged $5,695 for work performed prior to the filing of a formal complaint. The Commission held that an affidavit from the law firm's managing partner was sufficient to support a fee award; however, the Commission disallowed all but $1,910 of the pre-complaint billing for 2 hours spent considering whether to take the case and 3.5 hours for mediation-related work. In a cross-appeal, Complainant challenged the AJ's award of $95,000 in attorney's fees to the present counsel as too low. The Commission reduced the award by an amount representing 6.76 of 7.76 hours claimed for finalizing a filing, noting that "finalizing" implied only minor changes. The Commission increased the award by an amount totaling $51,406.90, concluding that the AJ failed to explain why she found some fees excessive and improperly disallowed $10,600 for compensatory damages and fee-related work, $15,279,90 for a successful summary judgment opposition brief, and $24,997 for Complainant's failure to identify a witness during discovery (which witness, the Commission noted, counsel only learned about two-weeks' prior to the damages hearing). The Commission rejected Complainant's request for an additional $19,276.50 for work expended in obtaining attorney's fees, noting that counsel did not submit a fee petition. The Commission noted that the AJ erred in failing to instruct the Agency to expunge a three-day suspension from Complainant's records and reimburse her for any lost wages and benefits, and the Commission ordered the Agency to do so. Marvella B. v. Dep't of Justice, EEOC Appeal No. 0720170027 (Dec. 14, 2017).

Class Complaints

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

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

Commission Increased Agency's Award of Compensatory Damages to $125,000. The Agency found that Complainant was discriminated 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 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 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 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 Awarded Complainant $7,500 in Non-Pecuniary Damages. The Commission previously found that the Agency discriminated against Complainant when it did not select her for a position, and ordered the Agency to investigate Complainant's claim for damages. The Agency subsequently declined to award damages, citing inconsistencies in the evidence and the failure of the medical evidence to establish that the discrimination caused Complainant's distress. On appeal, the Commission disagreed with the Agency and awarded Complainant $7,500. Complainant stated that she felt angry, upset and depressed after her non-selection, and Complainant's daughters and friend corroborated her claim. While Complainant submitted documentation from a physician indicating that he began treating her for diabetes, high blood pressure and high cholesterol approximately two months after the non-selection, the physician did not state that those conditions were caused by the Agency's actions. The Commission stated that an award of $7,500 was consistent with its precedent. Wilda M. v. Dep't of Agric., EEOC Appeal No. 0120160712 (Dec. 19, 2017).

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).

Commission Increased Agency's Award of Non-Pecuniary Damages to $5,000. After finding that Complainant was subjected to retaliation when she was issued a counseling memorandum but not when she was issued another memorandum and charged with being absent-without-leave, the Agency awarded her $2,000 in non-pecuniary compensatory damages. The Commission increased the award to $5,000 on appeal, finding that Complainant presented sufficient evidence to establish that the Agency's actions caused at least some of her emotional distress. Complainant stated that she suffered depression, severe migraines, and had trouble sleeping after being issued the memorandum. She also indicated that she withdrew from her family, and family members and co-workers corroborated her claims. While Complainant submitted medical evidence, the Commission noted that the therapist did not begin treating Complainant until approximately nine months after the discrimination occurred. Marcelina Q. v. Dep't of the Treasury, EEOC Appeal No. 0120160430 (Nov. 28, 2017).

Commission Affirmed Agency's Award of $5,000 in Non-Pecuniary Damages. The Commission found that the Agency retaliated against Complainant when it did not allow Complainant to return to work. The Agency awarded Complainant $5,000 in non-pecuniary compensatory damages, and the Commission affirmed the award on appeal. The Commission noted that, for the most part, Complainant failed to establish a link between the retaliation and the emotional suffering he experienced. The Commission found it reasonable to draw some correlation between the retaliation and arguments Complainant had with his wife as well as some of the stress Complainant experienced from financial concerns while he was out of work. Complainant, however, did not submit medial documentation to support his claim that the retaliation exacerbated his migraines. Based upon the relative lack of documentary evidence, the Commission found no basis to modify the Agency's award of non-pecuniary damages. The Commission affirmed the Agency's award of $36.43 in pecuniary damages for shipping and mailing costs. Levi P. v. U.S. Postal Serv., EEOC Appeal No. 0120151113 (Nov. 9, 2015).

Complaint Processing

Complaint Improperly Dismissed. The Agency dismissed three claims in Complainant's formal complaint on grounds that they were settled in a Last Chance Agreement. The Commission stated that the Agreement pre-dated the underlying EEO complaint, was reached outside of the EEO process and did not reference an EEO case number. While the Agreement included a waiver provision, it specifically stated that Complainant did not waive EEO rights or claims arising after the execution of the Agreement. The Commission noted that Complainant raised a claim of age discrimination, and therefore any settlement agreement would be subject to the provisions of the Older Workers' Benefits Protection Act (OWBPA). The OWBPA provides that an individual may not waive an age discrimination claim unless the waiver is "knowing and voluntary," and sets forth specific criteria that must be met. In this case, the waiver failed to specifically refer to rights or claims arising under the Age Discrimination in Employment Act, and did not advise Complainant to consult with an attorney. Therefore, the waiver in the Agreement did not constitute a valid waiver of Complainant's age discrimination claims. The Commission stated that Complainant's complaint consisted of a claim of harassment based on age, and the complaint was remanded for processing. The Commission affirmed the Agency's dismissal of race as a basis for the claim, and noted that Complainant filed a separate EEO complaint regarding his removal. Russ B. v. Dep't of Commerce, EEOC Request No. 0520170236 (Dec. 21, 2017).

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).

Agency Failed to Develop Adequate Record. The Commission found that the EEO Investigator failed to develop an adequate record in regard to Complainant's allegation that the Agency denied her light duty and reasonable accommodation. While the Agency asserted that it denied Complainant's request for accommodation based upon the Office of Worker's Compensation Program's (OWCP) examination results, the record did not contain any documentation related to that examination, or any documentation regarding the duties of Complainant's light duty assignment or restrictions. The Commission stated that the Agency's duty to provide reasonable accommodation under the Rehabilitation Act is distinct from OWCP's standards and the Agency should determine whether Complainant could be accommodated even if OWCP denied her claim for light duty. The investigation failed to show whether and to what extent the Agency conducted a search for a vacant position to which it could have assigned Complainant. The Commission's regulations require the investigator to conduct a thorough investigation, and, therefore, the investigator must exhaust all sources of information likely to support Complainant's and the Agency's position. The Agency was ordered to conduct a supplemental investigation, and consider Complainant's entire complaint, including disparate treatment and harassment claims that were closely intertwined with her reasonable accommodation claim. Darleen R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120152909 (Nov. 3, 2017).

Agency Failed to Comply with Commission's Order to Process Complaint. The Agency previously dismissed Complainant's complaint on grounds that it stated the same claim that he raised in a prior complaint. The Commission reversed the Agency's dismissal and remanded the complaint for processing. The Agency subsequently dismissed the complaint a second time for untimely counselor contact. On appeal, the Commission found that the Agency's issuance of a second dismissal was inappropriate and the Agency ignored the Commission's previous order to process the underlying complaint. Therefore, the Commission again remanded the complaint to the Agency for an investigation. Jarrod W. v. U. S. Postal Serv., EEOC Appeal No. 0120172012 (Oct. 13, 2017).

Dismissals

(See also by category, this issue.)

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 in Part. Complainant filed a formal complaint alleging that the Agency failed to comply with a prior EEO settlement, a manager delayed his receipt of a grievance decision, and a supervisor made an offensive comment after he reported that the exit door closest to his work station was locked. The Commission found that the Agency correctly dismissed Complainant's breach claim as a new complaint, but the Agency should have processed it as a breach of settlement claim in accordance with the applicable regulations. The Commission also affirmed dismissal of the claim concerning his grievance decision, because it alleged a collateral attack that Complainant should have raised in the negotiated grievance forum itself. The Agency's focus on the derogatory comment as the content of his third claim, however, was incorrect. Complainant, who wears braces on both legs due to a physical disability, expressed concern about access to an exit in the event of an emergency, prompting the supervisor's derogatory remark. Therefore, the Commission concluded that Complainant's claim was more properly characterized as a failure to provide reasonable accommodation, and should not have been dismissed. Willie P v. U. S. Postal Serv., EEOC Appeal No. 0120180204 (Dec. 27, 2017).

Complaint of Harassment Improperly Dismissed for Untimely EEO Contact & Failure to State a Claim. The Agency dismissed two incidents in Complainant's complaint for failure to state a claim, and four incidents for untimely EEO Counselor contact. On appeal, the Commission stated that the formal complaint and EEO Counselor's report showed that Complainant alleged that the series of incidents constituted a single pattern of discriminatory harassment by an Agency manager. Since several incidents comprising Complainant's harassment claim occurred within the 45-day period preceding her contact with the Counselor, the Commission found that dismissal of the incidents occurring outside of the filing period was inappropriate. An entire claim of harassment is actionable as long as at least one incident occurred within the filing period. Therefore, Complainant stated a viable claim of harassment that was timely raised with the EEO Counselor. Nenita S. v. U.S. Postal Serv., EEOC Appeal No. 0120180073 (Dec. 8, 2017); Additional Decisions Addressing Complaints of Harassment Dismissed for Untimely EEO Contact and Failure to State a Claim Include: Sierra P. v. U. S. Postal Serv., EEOC Appeal No. 0120180079 (Jan. 4, 2018) (Complainant raised a number of allegations, including being accused of losing Agency property and cursed at by her supervisor that, when considered together in the light most favorable to Complainant, stated a cognizable claim of retaliatory harassment. Further, even if one incident was not timely raised with an EEO Counselor, it should be viewed in the context of the larger harassment claim); 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 Electing Grievance Process. The Agency dismissed Complainant's complaint on grounds that he elected to pursue the matters through the negotiated grievance process, and the Commission reversed the decision on appeal. 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. Jarvis R. v. Soc. Sec. Admin., EEOC Appeal No. 0120172908 (Nov. 30, 2017).

Complaint Improperly Dismissed for Untimely EEO Contact, Mootness, & Failure to State a Claim. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it failed to correct her Service Computation Date (SCD) and past cost of living increases, and when the Chief of Human Resources disclosed her medical information. An AJ dismissed the claims, but the Commission reversed the decision on appeal. While the AJ stated that Complainant reasonably suspected discrimination with regard to her SCD and cost of living increases in 2013, Complainant alleged that the actions resulted in ongoing pay discrimination. The Commission stated that, pursuant to the Lilly Ledbetter Fair Pay Act, an unlawful employment practice occurs with respect to discrimination in compensation each time an individual is affected by the decision or practice. Therefore, Complainant's compensation discrimination claim was timely. To the extent the AJ found that this claim was moot, Complainant asserted that the Agency continued to deny her correct back pay, and requested compensatory damages. Thus, the Commission found that the matter was not moot. Finally, Complainant specifically alleged that the Chief shared the contents of her medical record during a meeting, which the Commission found to state a viable claim under the Rehabilitation Act. Sherrie M. v. Dep't of the Treasury, EEOC Appeal No. 0120160561 (Nov. 16, 2017).

Complaint Improperly Dismissed as Stating Proposal to Take Action & Moot. Complainant filed a formal EEO complaint alleging that the Agency subjected him to a hostile work environment. Specifically, Complainant stated that a supervisor made accusations against him that caused him to be investigated and preliminarily lose his security clearance. The Agency dismissed the complaint on grounds that it concerned a preliminary step to take a personnel action, and was moot because the decision to revoke Complainant's security clearance was ultimately reversed. The Commission reversed the Agency's decision, stating that a complaint cannot be dismissed as a preliminary step if the complainant alleges retaliation or harassment. Further, Complainant asserted that the supervisor continued to make false allegations against him on a private website, which caused the investigation to be reopened. Therefore, the Commission could not find with assurance that there was no reasonable expectation that the alleged violation would recur. The Commission remanded the complaint to the Agency for processing. Buck S. v. Dep't of the Army, EEOC Appeal No. 0120172248 (Nov. 9, 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).

Complaint Improperly Dismissed in Part. Complainant alleged that she was subjected to ongoing harassment by her supervisor and listed seven allegations in support of her claim. The Agency dismissed two of the claims involving the actions of a co-worker and conduct of an Agency representative during mediation for failure to state a claim. The Agency determined that the five remaining claims were not timely raised with the EEO counselor. On appeal, the Commission stated that Complainant cannot bring a complaint regarding actions or statements made during mediation. In addition, the incident involving the co-worker was distinct from the remaining allegations, which involved Complainant's supervisor. Therefore, the Commission affirmed the Agency's dismissal of the allegations concerning the co-worker and mediation-related conduct. Regarding the remaining five allegations, Complainant provided evidence that she contacted the Agency's EEO manager on November 16, 2016 via email after the October 19, 2016 verbal altercation with her supervisor. Complainant then received an email from an EEO Specialist within the limitation period. The Commission found that Complainant timely contacted a person logically connected to the EEO process, and her claim of harassment by her supervisor was improperly dismissed. Myrtie P. v. Dep't of the Treasury, EEOC Appeal No. 0120172033 (Oct. 19, 2017).

Complaint Improperly Dismissed. Complainant filed a complaint alleging that the Agency subjected him to discrimination when management followed him on his route; falsely accused him of wearing a non-postal hat and of poor work performance; and the Postmaster denied his request to wear different shoes. The Agency dismissed the entire complaint for failure to state a claim, and his claim concerning his shoes on the grounds of untimely EEO Counselor contact. On appeal, the Commission reversed the Agency's decision. The EEO Counselor's report included a more detailed series of incidents that those identified by the Agency, including that Complainant was singled out for falsifying a driving report, was accused of not properly installing Management Service Point scans, his work estimates were not accepted, and he was threatened with termination. The Commission concluded that, by alleging a pattern of harassment, Complainant has stated a cognizable claim under the Commission's regulations. The Commission also found that various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time-period preceding Complainant's EEO Counselor contact. Therefore, Complainant's entire complaint was considered timely. The Commission rejected the Agency's assertion that Complainant did not raise the matter regarding his shoes with the EEO Counselor, stating that matter was part of his claim of ongoing harassment. Paris M. v. U.S. Postal Serv., EEOC Appeal No 0120172793 (Oct. 19, 2017).

Complaint Improperly Dismissed for Mootness & Failure to State a Claim. The Agency dismissed as moot a claim that the Postmaster hid mail from Complainant's route during an inspection. The Agency noted that the responsible management official had retired and the matter had been resolved pursuant to a grievance. On appeal, the Commission found that while the Agency provided a copy of the grievance settlement referencing a route adjustment, there was no evidence the adjustment ever occurred or that Complainant was paid the amount specified. Further, the grievance and subsequent settlement did not consider Complainant's claims of discrimination. The Commission affirmed the Agency's dismissal of Complainant's claim regarding marks made by the Postmaster, finding that Complainant did not claim to have suffered a personal loss or harm or raise a viable claim of harassment. Earnest G. v. U.S. Postal Serv., EEOC Appeal No. 0120172282 (Oct. 3, 2017).

Findings on the Merits and Related Decisions

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

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 Rehabilitation Act

Agency Failed to Reasonably Accommodate Complainant's Mental Health Condition. The Commission found that Complainant, who was limited in the major life activity of sleeping as a result of a mental health condition, was a qualified individual with a disability because she could perform the essential functions of her job with the reasonable accommodation of a schedule modification or use of leave. The Commission noted that upon receiving Complainant's request for a reasonable accommodation, the Agency implemented a gliding schedule for Complainant; however, this was not an effective accommodation because Complainant still had to report to work between 8 am and 9:30 am. On many occasions, it was evident that her disability caused her to oversleep and report to work beyond that timeframe. Although the Agency argued that Complainant's lateness was caused by childcare or other issues, an examination of the Agency's attendance log demonstrated that the majority of Complainant's calls involved lateness due to oversleeping. Further, the childcare and other issues were in, most instances, caused by her disability, particularly as it related to oversleeping. The Commission found that the Agency did not want to allow Complainant any flexibility beyond the stated schedule as evidenced by the fact that it decided to cite to all 21 instances of lateness during the 90-day period regardless of the fact that Complainant contacted her supervisor on all but three occasions. The fact that Complainant was late was ultimately held against her and led to her termination. Complainant also appeared to have been charged AWOL for these occasions, illustrating that leave was also not offered as part of the accommodation. Given these circumstances, a more flexible schedule would have served as a reasonable accommodation, and the Agency did not show that providing Complainant with a more flexible schedule would have presented an undue hardship. Therefore, the Commission found that the Agency failed to provide Complainant with a reasonable accommodation. The Agency was ordered, among other things, to reinstate Complainant with appropriate back pay and benefits, and investigate her claim for damages. Davina W. v. Dep't of Justice, EEOC Appeal No. 0120152757 (Dec. 8, 2017).

Agency Violated Rehabilitation Act by Sharing Confidential Medical Information. 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).

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 the Agency's assertion that Complainant could not telework on additional days because of productivity concerns as unsubstantiated and unworthy of belief, 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).

Disclosure of Medical Information Violated Rehabilitation Act. The Commission found that 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 Commission noted that the Agency is obligated to keep certain employee medical information confidential regardless of the employee's disability status. In addition, while not all medical information falls within the confidentiality provision, 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. Mario G. v. Dep't of the Air Force, EEOC Appeal No. 0120150193 (Oct. 19, 2017).

Under Title VII

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

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. 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 felt 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

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.)

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

AJ Properly Dismissed Hearing Request as Sanction. 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 Commission found that 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. The Commission affirmed the Agency's finding of no discrimination. Herman P. v. Peace Corps, EEOC Appeal No. 0120162063 (Dec. 29, 2017).

AJ Properly Dismissed Hearing Request as Sanction. The Commission affirmed the AJ's dismissal of Complainant's hearing request as a sanction. 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. The Commission affirmed the Agency's finding that Complainant failed to prove his claims of disparate treatment and harassment. Ward B. v. Dep't of the Army, EEOC Appeal No. 0120151448 (Nov. 22, 2017).

Settlement Agreements

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).

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).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement providing that the Agency would pay Complainant $74,000. Complainant alleged breach of the agreement after she only received $72,076.83 of the agreed upon amount. The Agency attempted to justify the lesser amount paid by arguing that the Finance Center offset the amount by $1,923.17 that Complainant owed for her health care premium. On appeal, the Commission found that the Agency breached the agreement. The settlement agreement clearly and expressly stated that the Agency would pay Complainant $74,000, and the Agency was clearly non-compliant. The Commission noted that the Agency should have contemplated Complainant's debt prior to making the settlement agreement. Kiara R. v. Dep't of Homeland Sec., EEOC Appeal No 0120172774 (Oct. 31, 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).

Settlement Agreement Interpreted Under Plain Meaning Rule & Breach Found. Complainant alleged breach of a settlement agreement that provided for her to work "100% telework" for the first 60 days after being placed in telework status. Complainant alleged that the Agency did not comply with a "gentleman's agreement" that she would be permitted to telework without contact with the alleged harasser during those initial 60 working days. She further challenged the Agency's cancellation of her telework status, with fewer than 20 working days left, when connectivity issues left her unable to complete assigned work. Citing the rule that when a writing appears to be plain and unambiguous on its face, meaning is determined from the four corners of the instrument without consideration of any extrinsic evidence, the Commission held that any such "gentleman's agreement" as described by Complainant was not part of the parties' agreement and was unenforceable. The Commission applied the "plain meaning rule" in Complainant's favor, however, noting that the settlement agreement included no performance qualifications for Complainant to telework. The Commission ordered reinstatement of the complaint. Adina P. v. Dep't of the Army, EEOC Appeal No. 0120172320 (Oct. 3, 2017).

Stating a Claim

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).

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: 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); 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).

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).

Complainant Stated Viable Claim of Disability Discrimination. Complainant filed a formal EEO complaint alleging that she was discriminated against based on disability when the chair she requires as an accommodation was not provided one day and she had to go home. The Agency then reported to OWCP that there was no work for Complainant. The Agency dismissed the matter for failure to state a claim. The Commission stated that the duty to reasonably accommodate is ongoing and not part of the OWCP process. Complainant specifically alleged that the Agency failed to accommodate her medical condition, and the Agency improperly dismissed her complaint. Chau B. v. U.S. Postal Serv., EEOC Appeal No. 0120172727 (Nov. 3, 2017) Additional Decisions Finding Viable Disability Discrimination Claims Include: Jacquetta C. v. U.S. Postal Serv., EEOC Appeal No. 0120173071 (Nov. 16, 2017) (a fair reading of Complainant's complaint showed that she was alleging that the Agency refused to provide her with reasonable accommodation for her disability, and was not a collateral attack on the OWCP process. Complainant's claim that she was exposed to products that aggravated her medical condition despite having previously asked not to be exposed to these chemicals stated a viable claim of disability discrimination).

Complainant Stated Viable Harassment Claim. An examination of the formal complaint and the EEO Counselor's report showed that Complainant addressed a variety of alleged incidents of harassment beyond those on the one date identified by the Agency in its dismissal. The Commission concluded that, when considering the breadth of the incidents together, Complainant stated a sufficiently pervasive claim of harassment, and the Agency's dismissal was improper. Britt S. v. U.S. Postal Serv., EEOC Appeal No. 0120172785 (Oct. 19, 2017); Additional Decisions Finding Viable Harassment Claims Include: 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).

Complainant Stated Viable Claim of Reprisal. Complainant alleged that the Agency discriminated against him based on reprisal when a supervisor emailed employees and contractors across the country that as part of a resolution agreement, they were to expunge all non-work related information pertaining to Complainant. Complainant asserted that the email unnecessarily informed unrelated parties of his EEO activity, thus negatively impacting his career and interactions with those associated with the Agency. The Commission noted that the actions of a supervisor may constitute unlawful reprisal when the supervisor intimidates an employee and interferes with the employee's EEO activity in any manner. The Commission determined that Complainant stated a valid claim by alleging that a supervisor unnecessarily informed a broad array of Agency employees and contractors that Complainant had used the EEO process. Joel M. v. Dep't of Transp., EEOC Appeal No. 0120171980 (Oct. 19, 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).

Agency Improperly Addressed Merits of Complaint in Dismissal. Complainant filed a formal complaint alleging that he was discriminated against when he was not selected for a position. The Agency dismissed the complaint 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 Commission reversed the dismissal and remanded for complaint processing, noting that 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. Elvis G. v. Dep't of Navy, EEOC Appeal No. 0120172569 (Oct. 4, 2017).

Complaint Filed by Volunteer Properly Dismissed. The Commission affirmed the Agency's dismissal of a complaint, finding that Complainant was a volunteer. Generally, only employees or applicants for employment are covered by Commission regulations. Here, Complainant served on an Agency committee, in a position to which she was elected for a three-year term. She did not contend that she was an Agency employee, and the eligibility requirements of committee members included that they not be an employee of the Agency during the term of office. Only in a narrow set of circumstances, usually where the volunteer is performing services for the agency as part of an education program and receives remuneration, or where the volunteer service often leads to regular employment, has the Commission held that a volunteer is protected by Title VII. The Commission determined that there was no evidence indicating that Complainant fell under this exception. Virginia K. v. Dep't of Agric., EEOC Appeal No. 0120172929 (Dec. 6, 2017).

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 Properly Dismissed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it instructed her to deliver mail in a specific order and questioned her about an incident. The Commission found that even viewing the allegations together, Complainant failed to state a viable claim of discriminatory hostile work environment. There was no indication that Complainant was disciplined, and actions as alleged, without more, were insufficiently severe or pervasive to state a valid hostile work environment claim. Although Complainant claimed to have suffered damages, the Commission has held that allegations that fail to state a claim cannot be converted into a viable claim merely because the complainant requests compensatory damages as a remedy. Syreeta P. v. U.S. Postal Serv., EEOC Appeal No. 0120172151 (Oct. 25, 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. The Commission affirmed the AJ's decision, issued without a hearing, finding that Complainant failed to prove her claim of discriminatory non-selection. While Complainant asserted that the Agency failed to complete its investigation within the 180-day regulatory time limit, the AJ appropriately noted that there were reasons, including a government-wide furlough and witness unavailability, for the 17-day delay. The Commission further stated that the AJ's issuance of a decision without a hearing was proper. The record was adequately developed and there were no genuine issues of material fact. Complainant also received a comprehensive statement of the undisputed facts and had an opportunity to respond. The Commission concurred with the AJ that while the Agency could have hired Complainant non-competitively, it was not required to do so. In addition, Complainant did not meet her burden to establish that the Agency's stated reasons for her non-selection were a pretext for discrimination. Hermila B. v. Dep't of the Army, EEOC Appeal No. 0120151449 (Nov. 2, 2017).

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 Complaint 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 Judgement Reversed. Complainant alleged discrimination when three other candidates who were not in her protected bases were chosen over Complainant for a position, the Executive Director threatened that she would never be promoted due to filing an EEO complaint, and she received a "fully successful" performance appraisal with what she believed were damaging comments. The AJ issued a decision without a hearing in the Agency's favor finding that Complainant failed to prove the Agency subjected her to discrimination as alleged. The Commission found that the AJ's issuance of a decision without a hearing was inappropriate because the AJ committed errors of law, the record was insufficiently developed, and there were genuine issues of material fact and witness credibility. Specifically, the Commission noted that the Executive Director's comments if true were a violation of the law and would have a chilling effect on the use of the EEO complaint process. Additionally, contrary to the AJ's finding, the Commission found a similar potentially chilling effect in a performance appraisal that was allegedly lower than that of other employees in retaliation for engaging in protected activity. Therefore, the Commission noted that the AJ should have facilitated further development of the record and rendered credibility determinations on these allegations. The entire complaint was remanded for an administrative hearing. Ebony M. v. Dep't of Agric., EEOC Appeal No. 0120140153 (Nov. 14, 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).

Summary Judgment Reversed. The Commission reversed the AJ's decision without a hearing finding that Complainant failed to prove he was discriminated against when he was denied leave under the Family Medical Leave Act (FMLA), not allowed to extend his assignment, and not selected for two positions. The Commission found that the AJ erred when he concluded that there were no genuine issues of material fact in the case. Specifically, despite the Agency's assertion that Complainant's request was inconsistent with its leave policy, Complainant presented evidence that female coworkers were granted FMLA sick leave without submitting medical documentation demonstrating a serious health condition. In addition, Complainant submitted evidence that he received good reviews and had no disciplinary or performance issues, and it was the Agency's general practice to extend the assignments in such cases. Further, Complainant's supervisor learned of his prior EEO activity 14 days prior to the extension decision. Finally, the Commission found that, after drawing all justifiable inferences in Complainant's favor, there were genuine issues of material fact in dispute regarding whether management's reasons for not selecting Complainant for the two positions were pretextual. The matter was remanded for an administrative hearing. Sherman K. v. Dep't of Homeland Sec., EEOC Appeal No. 0120171605 (Oct. 11, 2017).

Timeliness

Complainant Timely Raised Claim of Ongoing Denial of a Reasonable Accommodation. The Commission found that 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. Odell H. v. U. S. Postal Serv., EEOC Appeal No. 0120172998 (Dec. 5, 2017).

Agency Failed to Support Dismissal for Untimely EEO Contact. The Commission found that the Agency failed to support its decision regarding the untimeliness of Complainant's EEO Counselor contact. 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. Fiona S. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120172394 (Nov. 16, 2017).

Complainant Timely Raised Complaint of Harassment with EEO Counselor. The Commission found that 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. Farah S. v. Dep't of the Navy, EEOC Appeal No. 0120172442 (Nov. 14, 2017).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. The Commission found that the Agency improperly dismissed Complainant's complaint for failure to timely initiate EEO counseling. Complainant alleged that she was subjected to ongoing harassment by her supervisor that continued even after he transferred to another facility. It was undisputed that Complainant initiated counseling within 45 days of the supervisor's transfer, and Complainant stated that the supervisor continued to make sexual comments to her on the days he returned. The Commission rejected the Agency's assertion that the incidents constituted "discrete acts," noting that a hostile work environment allegation will not be time barred if at least one act falls within the filing period. Lea P. v. U.S. Postal Serv., EEOC Appeal No. 0120172927 (Nov. 8, 2017).

Complainant Timely Contacted EEO Counselor After Reasonably Suspecting Discrimination. The Commission reversed the Agency's dismissal for untimely EEO counselor contact. The Agency denied Complainant's request for administrative leave and charged her with annual leave, but did not process the appropriate forms until almost one month later. Complainant asserted that she was not aware of the Agency's decision until she received the documentation, and the record showed that she then contacted an EEO Counselor within 45 days. The Commission concluded that Complainant could only have developed a reasonable suspicion of discrimination after receiving the forms. Josephine S. v. U. S. Postal Serv., EEOC Appeal No. 0120172657 (Oct. 13, 2017); Additional Decisions Addressing Complainant's Reasonable Suspicion of Discrimination Include: 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).

Complaint Improperly Dismissed as Untimely. The Agency dismissed Complainant's complaint as untimely filed, because the original Notice of Right to File was returned unclaimed despite the EEO Office having confirmed Complainant's address and that a responsible individual would be available to receive it. The Commission reversed, however, based on record evidence that Complainant contacted the EEO Office shortly after the notice was returned, the Agency sent a second Notice via certified mail, Complainant received the second notice, and Complainant submitted her formal complaint within 15 days of receiving the notice. The Agency failed to support its dismissal of the complaint as untimely filed. McKinley P. v. Dep't of the Army, EEOC Appeal No. 0120180133 (Dec. 19, 2018).

Complaint Improperly Dismissed as Untimely. The Agency dismissed Complainant's formal complaint as untimely, stating that while it issued the Notice of Right to File a Formal Complaint in October 2016, Complainant did not file his complaint until April 2017. On appeal, the Commission found that 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. Taylor G. v. Dep't of Def., EEOC Appeal No. 0120172333 (Nov. 28, 2017).

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).

Complaint Improperly Dismissed as Untimely. 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 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. Nikol K. v. U. S. Postal Serv., EEOC Appeal No. 0120172677 (Oct. 11, 2017).

Complaint Properly Dismissed as Untimely When Sent to the Wrong Address. The Agency dismissed Complainant's complaint as untimely, stating that it was not filed within 15 days of receipt of the Notice of a Right to File an Individual Complaint. The Commission affirmed the dismissal on appeal. 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. Lela M. v. U.S. Postal Serv., EEOC Appeal No 0120172450 (Oct. 18, 2017).

ARTICLE

(The following article is not intended to be an exhaustive or definitive discussion of a complex area of law, nor is it intended as legal advice. The article is generally based on EEOC documents available to the public at the Commission's website at https://www.eeoc.gov/, as well as on Commission case law and court decisions. Some EEOC decisions cited may have appeared in previous editions of the Digest.)

ASSESSING WORKPLACE HARASSMENT PREVENTION METHODS THROUGH COMPARISONS WITH SIMILAR CRIME PREVENTION STRATEGIES by Karen M. Brummond1

Introduction

The U.S. Equal Employment Opportunity Commission (EEOC) has reported an overall decrease in employment discrimination charges and federal sector complaints2 filed between fiscal years (FY) 2010 and 2014.3 But as the number of overall filings has decreased, the percentage of those complaints and charges alleging harassment has increased. For example, between FY 2010 and FY 2014, the percentage of federal sector employment discrimination complaints alleging harassment increased from 37% to 44%,4 and the percentage of employment discrimination charges alleging harassment filed against private companies and state and local governments increased from 27% to 30%.5 As stated in The Report of the Co-Chairs of the Equal Employment Opportunity Commission (EEOC) Select Task Force on the Study of Harassment in the Workplace,6 more and better research is needed to confirm the utility of harassment prevention measures. While awaiting such empirical research, a theoretical approach to evaluating harassment prevention methods may provide some insight into potentially useful approaches. By comparing harassment prevention strategies to similar crime prevention efforts, for which empirical research already exists, the EEOC hopes to identify useful tools for preventing workplace harassment.

Part I of this article develops an analogy between harassment and crime. Part II furthers the analogy by comparing workplace civility training and broken windows policing as preventative methods to tackle the problems of harassment and crime. Part III examines bystander intervention training as a method of stopping harassment based on its efficacy in crime prevention. Part IV explores the characteristics of effective punishments. Part V provides the criminological rationale for the importance of reporting and monitoring systems for preventing harassment. Part VI describes alternatives to conventional punishment that may mitigate harm and prevent the recurrence of harassment and crime. Finally, this article concludes with a summary of its findings.

I. Developing the Analogy

Before making meaningful comparisons between the strategies for harassment and crime prevention, this article first must analogize harassment and crime to reveal their underlying similarities. General similarities between the two fields suggest that efforts in one field may help inform how to approach the other.

Reviewing relevant literature showed that crime and harassment share many risk factors, such as isolated potential victims,7 unbalanced power dynamics,8 and cultures tolerant of uncivil and deviant behaviors.9 Further, the bases of illegal workplace harassment include all the motives for hate crime as defined by the FBI.10

The consequences of crime and harassment also are similar. Most incidents of crime and harassment are not reported.11 Victims of crime and of harassment are at risk of subsequent financial, psychological health, and physical health problems,12 and those around the victims suffer as well. Coworkers not currently being harassed may feel fear of future harassment and worry for the victim.13 At least one study showed that employees who witnessed hostility toward women in the workplace on average experienced worse psychological and physical well-being than employees who had not witnessed hostility toward women.14 Similarly, friends and neighbors of crime victims may experience increased fear of victimization.15

Workplaces affected by harassment and communities affected by crime also suffer similar costs. Workplaces where harassment is present suffer due to monetary benefits paid out to victims, attorney fees, and time lost due to the processing of harassment claims. Monetary benefits to harassment victims cost workplaces over $125 million in FY 2016.16 Society's costs of crime include the costs of resources used to fight crime, opportunity costs of victims and perpetrators, life and health costs, and lost money and property, adding up to be far over $1 trillion annually.17

In short, sufficient similarities between harassment and crime exist to warrant the use of research on crime prevention strategies as one approach to evaluate harassment prevention methods.

II. Primary Prevention: Stopping Harassment and Crime Prior to Occurrence

Ideally, methods exist to proactively prevent harassment. The Co-Chairs' Report of the Select Task Force on Harassment suggests workplace civility training as one such method. Workplace civility trainings focus on developing positive workplace behaviors and norms. These trainings tend to include discussions on interpersonal skills, conflict resolution, and effective supervising techniques, and they are designed to prevent more general interpersonal slights rather than focusing on harassment based on legally protected classes.18 However, few empirical studies have assessed workplace civility training.19

Evaluations of broken windows policing may help to fill this gap. Broken windows theory posits, similar to civility training's focus on interpersonal slights, that police should focus on smaller disorders, disturbances, physical dilapidation, and incivilities to prevent more serious crime.20 However, like trainings used to prevent harassment, not all types of broken windows policing are equally effective. A 2015 review of literature and meta-analysis by academics statistically combined the results of 30 experimental and quasi-experimental tests to measure the effects of different broken windows policing strategies on crime prevention.21 This analysis specifically compared strategies that focused on aggressive targeting of disruptive individuals against community and problem-solving policing strategies. Overall, broken windows policing was associated with modest reductions in crime, but aggressive policing tactics that targeted disruptive individuals had no significant effect on deterring crime.22

Based on the analogy to the criminological literature, if managers want to decrease harassment using tactics similar to broken windows policing, they should use methods that focus on specific minor, but persistent, problems and incorporate methods that foster cooperation within the organization, rather than strict enforcement against the individual.23 If harassment is like crime, and harassment increases when minor slights, insults, and disorder are ignored, then managers nonetheless should focus on enhancing civility in, and removing minor incivilities from, the workplace.

III. Catching Harassers and Criminals in the Act: Bystander Intervention Training

Since prevention techniques may not entirely eliminate unlawful harassment, employers also may benefit from strategies to stop and limit its effect. One such technique, promoted to stop both harassment and crime, is bystander intervention training.24 The goals of bystander intervention training are to: (1) create awareness of problematic behavior; (2) create a sense of collective responsibility to stop problematic behaviors; (3) develop bystanders' sense of empowerment and confidence to intervene; and (4) provide bystanders with resources to support intervention.25 The Co-Chairs' Report of the Select Task Force on Harassment recommends such training for preventing workplace harassment.26

Most of the criminological literature on bystander intervention relies on the theory that three elements are necessary for crime to occur: (1) the presence of a likely offender; (2) the presence of a vulnerable target; and (3) the absence of capable guardians (bystanders, officials and/or technology present and able to guard the target).27

The few evaluations of bystander intervention in preventing workplace harassment are promising,28 but the more comprehensive literature addressing the effects of capable guardianship and bystander intervention on crime rates provides mixed support for the effectiveness of bystander intervention training. Research focusing on bystander intervention training for stopping criminal sexual assault found that training participants were less likely to accept common myths about rape and more likely to intervene in situations that could lead to sexual assault.29 Furthermore, research has shown that attempted rape is less likely to be completed when bystanders are present.30

However, the aforementioned studies only tested the reported likelihood that one would intervene after receiving bystander intervention training. Also relevant is whether bystander intervention is effective in preventing deviant behaviors. A review of the literature on guardianship as a crime prevention method found that reductions in property crime correlated with the presence of capable guardians in the forms of private security guards, urban citizen patrols (like The Guardian Angels), neighborhood watch programs, and actively monitored closed circuit security cameras.31 However, the review's authors found little information on guardianship as a method to prevent violent crime, as opposed to stopping its progression after it has already begun.32

The evidence, therefore, generally supports the usage of bystander intervention training to stop harassment as it occurs, but not to entirely prevent its occurrence. While bystander intervention training can create more capable guardians, workers are still at risk of harassment when bystanders are not present. The Co-Chairs' Report of the Select Task Force on Harassment echoes this concern by suggesting that employees who work in secluded areas are more vulnerable to harassment. Employers also should recognize that bystander intervention training is likely ineffective in spaces where workers are isolated.33

IV. Punishment after Harassment or Crime Has Occurred

Criminologists who endorse swift punishment to deter crime believe that rational potential offenders weigh the benefits and risks of criminal activity before committing crime.34 Benefits may include material gain, thrills, entertainment, revenge, and power; risks include apprehension, punishment, and stigmatization.35 These "rational choice" theorists believe that when left unrestricted (i.e., with no risks), motivated, rational people will commit crime.36 Under this theory, deterring harassment requires that potential harassers know they will face punishment if they harass others in the workplace.

The Co-Chairs' Report of the Select Task Force on Harassment strongly alludes to rational choice-based punishments for harassment. The report advises employers to respond to harassment in a "swift, effective, and proportionate" manner.37 This recommendation echoes the criminological theory that "severe, certain, and swift" punishment can effectively deter future crime.38

Among the rational choice criminologists, theorists have debated how severe the harm must be to have a deterrent effect. While some criminologists call for severe punishment to increase the "riskiness" of a transgression,39 others have long called for the punishment to be proportionate to the crime. Proponents of proportional punishment explain, "If punishments be very severe, men are naturally led to the perpetration of other crimes, to avoid the punishment due to the first."40 When two crimes are unequal in their severity, but receive the same punishment, it may cause the offender to commit the more severe crime.41 This widely-held position is consistent with the approach stated in The Co-Chairs' Report of the Select Task Force on Harassment that the discipline for harassment should be proportionate to the offense.42 Proportional harm, in both criminology and workplaces, is intended to create fair punishments and to minimize the severity of harassment.

V. Reporting and Monitoring Systems

Crime deterrence, and likely harassment prevention, rely on systems that encourage reporting of violations and monitoring of complaints. When comparing the three characteristics of effective punishment-severity, certainty, and speed-most deterrence theorists agree that certainty of punishment is the most important to crime deterrence.43 An offender cannot be punished until the crime is reported and the offender is caught. Similarly, mechanisms must be in place for reporting workplace harassment, and for ensuring that action is taken to assess and address the reports. To improve the certainty of punishment for harassment, we cannot understate the importance of effective reporting systems. The Co-Chairs' Report of the Select Task Force on Harassment also emphasizes the importance of effective reporting systems.44

VI. Alternatives to Conventional Punishment for Harassment and Crime

Conventional punishments - discipline and monetary fines - may not always be the most effective method to stop harassment. A different approach, called restorative justice, uses techniques like meetings between the offender, victim, and other stakeholders, as well as alternative dispute resolution (ADR). A restorative justice discussion with the victims and other stakeholders may help offenders to redefine their criminal actions as morally wrong and to redefine themselves as law-abiders who do not want to repeat their immoral behavior. This redefinition of what is moral and immoral prevents future deviation from society's moral code.45

A 2007 review of empirical research on restorative justice found that in most, but not all, circumstances, it performed better than conventional justice in preventing recidivism. A surprising finding from that review is that using restorative justice most consistently reduced recidivism of people who perpetrated more serious crimes. Of ten studies on repeat offending after violent crime, six studies found a lower recidivism rate with restorative justice, four found restorative justice to have no significant effect, and no study found increased recidivism after restorative justice. In addition, in ten out of ten studies, victims favored restorative justice over conventional justice alone. Study results also found fewer post-traumatic stress symptoms and less desire for vengeance among victims who participated in restorative justice proceedings. The authors of the review also noted that adding restorative justice to conventional punishments should be considered for serious crimes that require incarceration.46

Considering restorative justice's success in reducing recidivism and decreasing the negative effects of crime on victims, greater use of ADR or other restorative justice techniques in harassment cases potentially could improve health outcomes for victims, reduce the chances of retaliation and repeat offending, and result in a more civil workplace.

Conclusion

The paucity of empirical evaluations of workplace harassment prevention programs leaves theoretical comparisons as the remaining method for developing recommendations. Sufficient similarities exist between crime and workplace harassment to infer useful harassment prevention strategies based on crime prevention studies. Research about broken windows policing, for example, suggests that similar workplace civility training should focus on specific minor, but persistent problems and should incorporate methods to foster cooperation within the organization. Bystander intervention training can be useful in stopping harassment, but only if the bystander or capable guardian is present to intervene. Effective reporting systems are necessary to ensure that harassers are identified and swiftly punished. Finally, ADR and other restorative justice practices hold promise for limiting repeat offenders and helping both parties more than conventional punishments, such as discipline and financial penalties, alone.

While substantial empirical research on harassment prevention methods has yet to be conducted, and the analogy between harassment and crime is not perfect, these recommendations may help guide employers, including federal agencies, as they explore ways to prevent workplace harassment.


Footnotes

1 Ms. Brummond is a Social Science Research Analyst in the U.S. Equal Employment Opportunity Commission's Office of Federal Operations, Federal Sector Programs.

2 Complaints of employment discrimination filed with EEOC against private companies and state and local government entities are called "charges"; federal sector employment discrimination "complaints" are those filed by federal employees.

3 U.S. EQUAL EMP. OPPORTUNITY COMM'N, ANNUAL REPORT ON THE FEDERAL WORKFORCE pt. I, EEO Complaint Processing, FY 2014, https://www.eeoc.gov/federal/reports/; U.S. EQUAL EMP. OPPORTUNITY COMM'N Charge Statistics (Charges Filed with the EEOC) FY 1997 - FY 2017, https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.

4 U.S. EQUAL EMP. OPPORTUNITY COMM'N, ANNUAL REPORT ON THE FEDERAL WORKFORCE pt. I, EEO Complaint Processing, FY 2010, https://www.eeoc.gov/federal/reports/fsp2010/index.cfm; U.S. EQUAL EMP. OPPORTUNITY COMM'N, ANNUAL REPORT ON THE FEDERAL WORKFORCE pt. I, EEO Complaint Processing, FY 2014, https://www.eeoc.gov/federal/reports/fsp2014/.

5 U.S. EQUAL EMP. OPPORTUNITY COMM'N All Charges Alleging Harassment (Charges Filed with the EEOC) FY 2010 - FY 2017, https://www.eeoc.gov/eeoc/statistics/enforcement/all_harassment.cfm; U.S. EQUAL EMP. OPPORTUNITY COMM'N Charge Statistics (Charges Filed with the EEOC) FY 1997 - FY 2017, https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.

6 U.S. EQUAL EMP. OPPORTUNITY COMM'N, SELECT TASK FORCE ON THE STUDY OF HARASSMENT IN THE WORKPLACE: REPORT OF CO-CHAIRS CHAI R. FELDBLUM & VICTORIA A. LIPNIC (2016), https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm.

7 Elizabeth A. Yeater et al., Cognitive Processes Underlying Women's Risk Judgments: Associations with Sexual Victimization History and Rape Myth Acceptance, 78 J. CONSULT & CLIN. PSYCH. 375 (2010), https://www.ncbi.nlm.nih.gov/pubmed/20515212 (finding that women drinking in isolation with a man may be at greater risk of sexual assault); Child Abuse and Neglect: Risk and Protective Factors, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/violenceprevention/childmaltreatment/riskprotectivefactors.html (last visited April 10, 2018) (explaining social isolation is a risk factor for child abuse and neglect); Joan R. Petersilla, Crime Victims with Developmental Disabilities: A Review Essay, 28 CRIM. JUST. & BEHAVIOR 655 (2001) http://cjb.sagepub.com/cgi/content/abstract/28/6/655 (observing that institutional care for people with disabilities may increase victimization risk due to isolation from protective sources); Claire M. Renzetti & Shana L. Maier "Private" Crime in Public Housing: Violent Victimization, Fear of Crime and Social Isolation, 29 CRVAW FACULTY J. ARTICLES 46 (2002), https://uknowledge.uky.edu/crvaw_facpub/29 (illuminating that women in public housing are at risk of crime if they do not know their neighbors); Written Testimony of Michael A. Robbins, INDUSTRY SPECIFIC HARASSMENT ISSUES, MEETING OF THE SELECT TASK FORCE ON THE STUDY OF HARASSMENT IN THE WORKPLACE (Sept. 18, 2015) (explaining that Latina janitors were vulnerable to harassment due to isolated work conditions where there were no potential witnesses).

8 John Braithwaite, Poverty, Power, White-Collar Crime and the Paradoxes of Criminological Theory, 24 AUSTRALIAN & NEW ZEALAND J. CRIMINOLOGY 40 (1991), https://doi.org/10.1177/000486589102400104 (Power disadvantages cause the poor to commit crime to satisfy needs, and the rich to offend to indulge greed); Robert K. Merton, Social Structure and Anomie, 3 AM. SOC. REV. 672 (1938), http://www.jstor.org/stable/2084686 (concluding that power inequalities and the inability to meet goals can lead to criminal behavior); Rebecca A. Thacker & Gerald R. Ferris, Understanding Sexual Harassment in the Workplace: The Influence of Power and Politics within the Dyadic Interaction of Harasser and Target, 1 HUMAN RESOURCES MGMT. REV. 23 (1991), https://doi.org/10.1016/1053-4822(91)90009-2 (asserting that supervisors exercise power and dominance through harassment); Susan Grover & Kimberly Piro, Consider the Source: When the Harasser is the Boss, 79 FORDHAM L. REV. 499 (2010), http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2145&context=facpubs (explaining that power in the work relationship between the harasser and the harassed allows the harasser to use sexual harassment as a political behavior); Heather MacLaughlin et al., Sexual Harassment, Workplace Authority, and the Paradox of Power, 77 AM. SOC. REV. 625 (2012), https://doi.org/10.1177/0003122412451728 (asserting that harassment by a supervisor is more severe and pervasive than that by a co-worker).

9 Larry J. Siegel, CRIMINOLOGY (11th ed. 2012) (concluding that collective efficacy and social control empowers communities to address problems that could lead to crime); U.S. EQUAL EMP. OPPORTUNITY COMM'N, supra note 6 (explaining how workplace culture influences harassment).

10 U.S. EQUAL EMP. OPPORTUNITY COMM'N, supra note 6 (stating that charges of harassment can be based on "sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, ethnicity/national origin, color, and religion" at iv); Hate Crimes, FED. BUREAU OF INVESTIGATIONS, https://www.fbi.gov/investigate/civil-rights/hate-crimes (last visited Jan. 12, 2018) (stating that hate crimes must be "motivated in whole or in part by the offender's bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity").

11 Bureau of Just. Stat., NCJ 250180, Criminal Victimization, 2014, https://www.bjs.gov/content/pub/pdf/cv14.pdf (last visited Jan. 11, 2018) (46% of violent crime and 37% of property crime victimizations are reported); Lilia M. Cortina and Jennifer L. Berdahl, Sexual Harassment in Organizations: A Decade of Research in Review, 1 THE SAGE HANDBOOK OF ORG. BEHAVIOR 469 (J. Bartling & C.L. Cooper eds. 2008), http://dx.doi.org/10.4135/9781849200448.n26 (Approximately 90% of those harassed never take formal action).

12 Ross MacMillan, Adolescent Victimization and Income Deficits in Adulthood: Rethinking the Costs of Criminal Violence from a Life?Course Perspective, 38 CRIMINOLOGY 553 (2000), http://dx.doi.org/10.1111/j.1745-9125.2000.tb00899.x (Crime victimization as an adolescent is associated with lower income as an adult) ; Pamela Wilcox Rountree, A Reexamination of the Crime-Fear Linkage, 35 J. RES. CRIME & DELINQ. 341 (1998), https://doi.org/10.1177/0022427898035003005 (Crime victims psychologically fear revictimization); Mark Shevlin et al., Childhood Traumas and Hallucinations: An Analysis of the National Comorbidity Survey, 41 J. PSYCHIATRIC RES. 222 (2007), https://doi.org/10.1016/j.jpsychires.2006.03.004; (Childhood victims of severe crime have an increased risk of post-traumatic stress disorder and hallucinations); Chester L. Britt, Health Consequences of Criminal Victimization, 8 INT'L REV. VICTIMOLOGY 63 (2001) http://journals.sagepub.com/doi/abs/10.1177/026975800100800104 (Criminal victimization is associated with long-term lower levels of perceived health and physical well-being); Written Testimony of Lilia M. Cortina, WORKPLACE HARASSMENT: EXAMINING THE SCOPE OF THE PROBLEM AND POTENTIAL SOLUTIONS, MEETING OF THE E.E.O.C. SELECT TASK FORCE ON THE STUDY OF HARASSMENT IN THE WORKPLACE (June 15, 2015), https://www.eeoc.gov/eeoc/task_force/harassment/testimony_cortina.cfm (Those harassed show decrements in work performance); Rebecca Merkin & Muhammad Kamal Shah, The Impact of Sexual Harassment on Job Satisfaction, Turnover Intentions, and Absenteeism: Findings from Pakistan Compared to the United States, Springer Plus 4 (2014), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4028468/ (Those sexually harassed show greater turnover intentions and higher rates of absenteeism); Cortina and Berdahl, supra note 11 (Sexual harassment victims experience decreased work function and worse psychological/behavioral and physical health).

13 Kathi Miner-Rubino & Lilia M. Cortina, Beyond Targets: Consequences of Vicarious Exposure to Misogyny at Work, 92 J. APPLIED PSYCHOL. 1254 (2007), https://doi.org/10.1037/0021-9010.92.5.1254.

14 Id.

15 Susan T. Popkin et al., Combating Crime in Public Housing: A Qualitative and Quantitative Longitudinal Analysis of the Chicago Housing Authority's Anti-Drug Initiative, 16 JUST. Q. 519 (1999), https://doi.org/10.1080/07418829900094251.

16 All Charges Alleging Harassment (Charges Filed with EEOC) FY 2010 - FY 2016, U.S. EQUAL EMP. OPPORTUNITY COMM'N, http://www.eeoc.gov/eeoc/statistics/enforcement/all_harassment.cfm (last visited Jan. 11, 2018).

17 David A. Anderson, The Aggregate Burden of Crime, 42 J. LAW & ECON. 611 (1999), http://www.jstor.org/stable/10.1086/467436.

18 U.S. EQUAL EMP. OPPORTUNITY COMM'N, supra note 6.

19 Margaret Hodgins et al., Workplace Bullying and Incivility: A Systematic Review of Interventions, 7 INT'L J. WORKPLACE HEALTH MGMT. 54 (2014), https://doi.org/10.1108/IJWHM-08-2013-0030.

20 Frank E. Hagan, INTRODUCTION TO CRIMINOLOGY: THEORIES, METHODS, AND CRIMINAL BEHAVIOR (7th ed. 2011); David Weisburd et al., Understanding the Mechanisms Underlying Broken Windows Policing: The Need for Evaluation Evidence, 52 J. RES. CRIME & DELINQ. 589 (2015), https://doi.org/10.1177/0022427815577837.

21 Anthony A. Braga et al., Can Policing Disorder Reduce Crime? A Systemic Review and Meta-analysis, 52 J. RES. CRIME & DELINQ. 567 (2015), https://doi.org/10.1177/0022427815576576.

22 Id.

23 Id.

24 U.S. EQUAL EMP. OPPORTUNITY COMM'N, supra note 6.

25 Id. (citing WHITE HOUSE TASK FORCE TO PROTECT STUDENTS FROM SEXUAL ASSAULT, Bystander-Focused Prevention of Sexual Violence, The Nat'l Ctr. for Campus Pub. Safety (2014), https://www.humanrights.gov.au/sites/default/files/content/sexualharassment/bystander/bystander_june2012.pdf).

26 U.S. EQUAL EMP. OPPORTUNITY COMM'N, supra note 6.

27 Lawrence E. Cohen and Marcus Felson, Social Change and Crime Rate Trends: A Routine Activity Approach, 44 AM. SOC. REV 588 (1979), http://www.jstor.org/stable/2094589.

28 See note 226 in U.S. EQUAL EMP. OPPORTUNITY COMM'N, supra note 6.

29 Ann L. Coker et al., Evaluation of Green Dot: An Active Bystander Intervention to Reduce Sexual Violence on College Campuses, 17 VIOLENCE AGAINST WOMEN 777 (2011), https://doi.org/10.1177/1077801211410264; Victoria L. Banyard et al., Sexual Violence Prevention through Bystander Education: An Experimental Evaluation, 35 J. OF COMMUNITY PSYCHOL. 463 (2007), https://doi.org/10.1002/jcop.20159.

30 Sarah E. Ullman, Review and Critique of Empirical Studies of Rape Avoidance, 24 CRIM. JUST. & BEHAV. 177 (1997), https://doi.org/10.1177/0093854897024002003; Jody Clay-Warner, Avoiding Rape: The Effects of Protective Actions and Situational Factors on Rape Outcome, 17 VIOLENCE AND VICTIMS 691 (2002), https://doi.org/10.1891/vivi.17.6.691.33723.

31 Meghan E. Hollis-Peel et al., Guardianship for Crime Prevention: A Critical Review of the Literature, 56 CRIME, L. & SOCIAL CHANGE 53 (2011), https://doi.org/10.1007/s10611-011-9309-2.

32 Id. The little information found on violent crime stated that urban citizen patrols were ineffective in preventing violent crime.

33 U.S. EQUAL EMP. OPPORTUNITY COMM'N, supra note 6.

34 Siegel, supra note 9.

35 Id.

36 Id.

37 U.S. EQUAL EMP. OPPORTUNITY COMM'N, supra note 6 at 32.

38 Siegel, supra note 9 at 104.

39 Id.

40 Cesare Bonesana di Beccaria, An Essay on Crimes and Punishments (1872), http://oll.libertyfund.org/titles/beccaria-an-essay-on-crimes-and-punishments (last visited Nov. 3, 2017).

41 George J. Stigler, The Optimum Enforcement of Laws, 78 J. POL. ECON. 526 (1970), http://dx.doi.org/10.1086/259646.

42 U.S. EQUAL EMP. OPPORTUNITY COMM'N, supra note 6, at 43.

43 Siegel, supra note 9; Daniel S. Nagin, Deterrence in the Twenty-first Century: A Review of the Evidence, 42 CRIME & JUST. 199 (2013), https://doi.org/10.1086/670398.

44 U.S. EQUAL EMP. OPPORTUNITY COMM'N, supra note 6, at 40 ("Effective reporting systems for allegations of harassment are among the most critical elements of a holistic anti-harassment effort.").

45 Lawrence Sherman and Heather Strang, Restorative Justice: The Evidence, Smith Institute (2007) https://openresearch-repository.anu.edu.au/bitstream/1885/25704/2/01_Sherman_Restorative_Justice:_The_2007.pdf.

46 Id.


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