Fiscal Year 2019, Volume 2
Office of Federal Operations
Selected EEOC Decisions on:
The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO).
Carlton M. Hadden, Director, OFO
Dexter Brooks, Director OFO's Federal Sector Programs, & Acting Assistant Director, OFO's Special Operations Division
Editor: Robyn Dupont
Writers: Craig Barkley, Robyn Dupont, Joseph Popiden, Navarro Pulley
The Digest is available online through EEOC's homepage at www.eeoc.gov/federal/digest/index.cfm.
(The Commission redacts Complainants' names when it publishes decisions, and all federal sector appellate decisions issued for publication use a randomly generated name as a substitute for the name of the complainant. This randomly generated first name and last initial is assigned using a computer program that selects names from a list of pseudonyms and bears no relation to the complainant's actual name. This change was made to address privacy concerns and to ensure consistency with the Commission's approach in the rest of its enforcement work and the investigations of complaints.)
Request for Additional Attorney's Fees Denied. The Agency found that it breached a settlement agreement between the parties and stated that Complainant was entitled to attorney's fees. The Agency awarded all fees requested by Complainant's attorneys. Approximately one month later, Complainant's successor attorney filed a supplemental fee petition for work performed after the original fee petition was submitted. The Agency denied the request for additional fees, and the Commission affirmed the Agency's decision on appeal. The Commission noted that Complainant was not entitled to fees for time spent engaged in nonproductive work. The supplemental petition for work expended by the successor attorney on tasks such as reviewing the file, sending introductory emails to Complainant, and providing payment information to the Agency was unreasonable and the additional work was not productive. Therefore, Complainant was not entitled to additional attorney's fees. Samuel C. v. Dep't of Energy, EEOC Appeal No. 0120182178 (Nov. 15, 2018).
Agency Improperly Deducted Amount of Retainer from Award of Attorney's Fees. The Commission found that the Agency erred when it deducted $1,000 that Complainant paid her attorney as a retainer from the total amount of attorney's fees awarded in her claim. The Agency did not challenge the claimed hours expended or the attorney's $300 hourly rate. In addition, the Agency concluded that Complainant was entitled to the requested $112.88 for costs. The Commission noted that any agreement between Complainant and her attorney is a private contractual matter not within the Commission's purview. Therefore, Complainant was entitled to the full amount of attorney's fees and costs requested. Furthermore, the Agency erroneously declared that, even though Complainant established her entitlement to the fees, it would not remit payment to Complainant because she was not an attorney, law clerk, or other representative of the attorney's firm. The Commission noted that the right to recover attorney's fees and costs lies with Complainant. Verdie A. v. Dep't of Agric., EEOC Appeal No. 0120170100 (Nov. 6, 2018).
(See, also, "Findings on the Merits," and "Remedies" this issue.)
Commission Affirmed AJ's Award of $180,000 in Non-Pecuniary Damages. Following the issuance of a default judgment in Complainant's favor, the AJ ordered the Agency to award Complainant non-pecuniary compensatory damages in the amount of $180,000. On appeal, the Commission affirmed the award. Complainant stated that she experienced physical, mental and emotional distress, including feeling confused and numb, being terrified she would not be able to feed her children, and suffering from headaches and stomach problems. She also experienced a loss of self-esteem and contemplated suicide. Complainant presented statements from family members, friends, and co-workers describing Complainant's physical and emotional deterioration to the point at which they had to take care of Complainant's children. The Commission found that Complainant's symptoms and condition were severe and lasted more than six years. The Commission concluded that the AJ's award of $180,000 was consistent with awards in similar cases and appropriate. The Commission noted, with regard to the award of attorney's fees, that the Agency did not challenge any of the items on Complainant's Counsel's invoice, and the Commission ordered the Agency to re-calculate Counsel's hourly rate using Manhattan as the relevant legal community. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). (A summary of the Commission's discussion of the AJ's issuance of default judgment can be found in the section on Sanctions below.)
Commission Increased Award of Compensatory Damages to $25,000. Following the Commission's prior finding that the Agency retaliated against Complainant when it reassigned him days after raising a claim of discriminatory nonselection, the Agency awarded Complainant $7,500 in compensatory damages. The Commission subsequently increased the award on appeal. Complainant's testimony and his wife's statement showed that he suffered emotional harm when he was reassigned to a less desirable area for approximately two years. Complainant was humiliated, anxious, lost sleep, and experienced stress resulting in marital and family strain. The Commission agreed with the Agency that there was no medical evidence indicating that Complainant's cancer was related to his new work environment, and that Complainant was not entitled to double recovery as he had already been awarded damages for the original nonselection claim. The Commission stated, however, that the record showed that Complainant experienced specific negative consequences due to the unlawful reassignment. The Commission concluded that an award of $25,000 was appropriate in this case. Gerald L. v. Tenn. Valley Auth., EEOC Appeal No. 0120171266 (Oct. 23, 2018).
Commission Increased Award of Compensatory Damages to $15,000. Following the Agency's finding that Complainant's supervisor retaliated against him when he denied Complainant a performance award, the Commission increased the Agency's award of compensatory damages from $1,000 to $15,000. In support of his claim for damages, Complainant submitted a letter indicating the Agency's retaliation caused him three years of depression, anxiety, sleep disturbance, and headaches. He also noted that he was diagnosed with high blood pressure, ocular hypertension, and exacerbation of other conditions. Complainant provided statements from his physician and family members addressing Complainant's reaction to not receiving the award, including shame, embarrassment, withdrawing from family, friends and activities, anxiety, sleep problems and sadness. The Commission found no evidence to support Complainant's claim for pecuniary damages. Ethan M. v. Dep't of Agric., EEOC Appeal No. 0120170519 (Oct. 12, 2018).
Commission Increased Award of Non-Pecuniary Damages to $7,500. The Commission increased the Agency's award of $3,000 in compensatory damages to $7,500 for harm sustained when he was denied reasonable accommodation. Complainant stated that he was depressed, stayed home, did not see his children or grandchildren as often as he would like, and had no social life. In increasing the award, the Commission noted that Complainant stated he had been denied accommodation for two years at the time of the hearing. Will K. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120172368 (Dec. 20, 2018).
Commission Increased Award of Non-Pecuniary Damages to $3,500 & Modified Award of Pecuniary Damages. The Commission previously found that Complainant's supervisor retaliated against Complainant when he told other employees about Complainant's EEO activity, but Complainant failed to prove his 11 other claims. Following a supplemental investigation, the Agency awarded Complainant $2,500 in non-pecuniary compensatory damages, and the Commission increased the award to $3,500 on appeal. Affidavits from Complainant and his co-workers demonstrated that he had been harassed by his supervisor, and a psychologist reported Complainant had situational depression and general anxiety, but could function normally. While Complainant felt depressed, anxious, and demoralized, the record did not indicate how long these symptoms lasted. The psychologist gave no prognosis, and none of the other statements addressed the duration of Complainant's condition. Regarding pecuniary damages, the Agency disallowed airline and meal expenses for Complainant's representatives, stating that Complainant failed to mitigate expenses. However, the Agency did not meet its burden to show that Complainant failed to exercise reasonable diligence to mitigate those damages. Therefore, Complainant was entitled to the full amount claimed for airline and meal expenses. The Commission found that the Agency properly denied Complainant's claim for dental injuries that incurred prior to the discrimination. The Commission also found that the Agency properly awarded Complainant one-twelfth of the amount of pecuniary damages claimed because Complainant failed to isolate the damages he incurred related to the discriminatory retaliation from those damages incurred due to the other 11 unsuccessful claims. Hugh B. v. Int'l Boundary and Water Comm'n, EEOC Appeal No. 0120170001 (Oct. 11, 2018).
Commission Affirmed Award of $1,000 in Non-Pecuniary Damages. The Agency found that Complainant's supervisor and an assistant supervisor retaliated against him when they discussed his EEO complaint during his performance evaluation and awarded Complainant $1,000 in non-pecuniary compensatory damages. While Complainant asserted that he had been under care for medical conditions, including anxiety, depression, and stress, the Commission found that most of Complainant's distress was caused by factors other than the single retaliatory act determined to have occurred at the Agency. Complainant did not challenge the Agency's finding that he failed to prove his claim of discriminatory harassment or constructive discharge. Therefore, the Commission affirmed the award of $1,000 in non-pecuniary damages. The Commission also found that the Agency properly awarded $16.38 in pecuniary damages for mailing costs associated with the EEO complaint. Leonardo M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120172736 (Dec. 7, 2018).
Commission Increased Award of Compensatory Damages to $1,000. The Commission previously found that the Agency failed to reasonably accommodate Complainant when it did not provide him with an interpreter. The Commission subsequently increased the Agency's award of compensatory damages from $500 to $1,000. Complainant and his wife stated that he felt humiliated and the discrimination affected his social interactions. The Agency noted that its award was consistent with a previous Commission decision in a similar case. The Commission agreed with the Agency's analysis but noted the decision cited was 17 years old, and increased the award to $1,000 to reflect present-day value. Darius C. v. U.S. Postal Serv., Appeal No, 0120171165 (Oct. 12, 2018).
Agency Failed to Properly Investigate Complaint. Complainant alleged that the Agency retaliated against her when it denied her the opportunity to apply for three positions in the Office of the Inspector General. On appeal, the Commission found that the Agency addressed three job vacancies that were not included in the complaint, two of which had been previously adjudicated. Further, the record was inadequately developed with regard to the positions raised in the complaint. While the Inspector General stated the Director told him not to hire anyone for the positions until all litigation was resolved, the Director was never interviewed, and nothing was known of his motivation, whether he was aware of Complainant's EEO activity or whether he was acting out of business necessity or some other motive. The Commission remanded the matter for a supplemental investigation. Vickie P. v. Dep't of Def., EEOC Appeal No. 0120172280 (Dec. 11, 2018).
Complainant Entitled to New Hearing Because Alleged Responsible Official Acted as Agency Representative. The Commission found that the AJ erred by allowing the alleged Responsible Management Official to serve as the Agency's representative at the administrative hearing. The Commission has held that permitting a responding management official to attend a hearing and simultaneously act as a witness creates an inherent conflict of interest. Further, the Commission found that, in the interest of fairness and due to the possible chilling effect of the named Official's presence during the hearing, Complainant was entitled to a new hearing in which the Official was not involved as an Agency representative. Katharine B. v. U.S. Postal Serv., EEOC Appeal No. 0120170444 (Dec. 7, 2018).
Agency Improperly Issued Appeal Rights to the MSPB. Complainant filed a formal complaint alleging a hostile work environment which resulted in his being forced to resign. Complainant requested a hearing before an EEOC Administrative Judge (AJ) who, upon the Agency's motion, dismissed the complaint as a mixed case and ordered the Agency to issue a final decision with appeal rights to the Merit Systems Protection Board (MSPB). Complainant appealed to the MSPB, which dismissed the case for lack of jurisdiction. After the MSPB's dismissal, the case was returned to the Agency for further processing solely on the discrimination claims. The Agency, however, issued a final decision with appeal rights to the Commission on the hostile work environment claim, but appeal rights to the MSPB on the forced resignation claim. The Commission found that the Agency erred in providing MSPB appeal rights on the forced resignation because the MSPB had already dismissed this matter for lack of jurisdiction. The Commission remanded the entire case for a hearing before an EEOC AJ. Patrick S. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120171775 (Oct. 12, 2018).
(See also by category, this issue.)
Equal Pay Act Claim Improperly Dismissed. Complainant sought EEO counseling when, among other things, she learned she was being paid at a lower rate than a male coworker performing the same duties. The EEO Counselor, upon learning of a desk audit, advised Complainant to withdraw her informal complaint and told her she could refile if the audit did not resolve the matter. When the audit did not resolve the matter, Complainant sought counseling again and filed a formal complaint. The Agency dismissed the claim for untimely counseling and because it stated the same claim as the one Complainant previously abandoned. The Commission initially affirmed the dismissal, but on reconsideration found Complainant's counselor contact timely. Under the Lilly Ledbetter Act, a case involving disparity in compensation is ongoing as long as the employee is affected by the agency's action. Further, the record showed Complainant had been advised at the time of her initial EEO counseling that she could refile if the audit was unsuccessful. The Agency did not dispute Complainant's contention that the EEO Counselor misled her into withdrawing her informal complaint. The Commission affirmed the Agency's dismissal of claims concerning her position description and training for failure to timely contact an EEO Counselor. Mui P. v. Dep't of Veterans Affairs, EEOC Request No. 0520180494 (Dec. 20, 2018).
Complaint Properly Dismissed in Part. The Agency found Complainant raised several allegations which were included in, or inextricably intertwined with his union grievance. The Agency also found Complainant had not raised the three remaining allegations with an EEO Counselor and the matters were not like or related to the other allegations in the complaint. The Commission agreed with the Agency's determination that certain allegations were included in the grievance or were a collateral attack on the grievance process. However, the Commission found that as to the three remaining allegations, Complainant was alleging that the Agency was keeping him away from the workplace in retaliation for the underlying complaint. The Commission held these allegations were related to the matters raised at counseling and accordingly reversed the Agency's dismissal of these claims. Darius C. v. Dep't of Homeland Sec., EEOC Appeal No. 0120182651 (Dec. 13, 2018).
Complaint Properly Dismissed on Grounds Matter Raised with MSPB & in Prior Complaint. The Commission affirmed the Agency's dismissal of allegations in the complaint regarding the denial of reasonable accommodation and Complainant's removal because Complainant had previously appealed these claims to the MSPB. In his EEO complaint, Complainant alleged discrimination in a performance appraisal, denial of reasonable accommodation, and removal on the bases of race, color, sex, disability, age and retaliation. But in his MSPB appeal, Complainant had alleged only discrimination in his denial of accommodation and removal based on disability and reprisal. Complainant contended the other bases of the removal should be held in abeyance pending the outcome of the MSPB case. The Commission, however, held that Complainant should have raised all bases with the MSPB, noting that the regulation regarding abeyance is only available if there is a question about MSPB's jurisdiction over the claim. In this case, the MSPB held a hearing on the matter, which indicated the MSPB did not question its jurisdiction. The Commission also affirmed the Agency's dismissal of Complainant's claim regarding his performance appraisal because that matter had been raised in a prior EEO complaint. Junior T. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120182287 (Dec. 18, 2018).
Dismissed Claims Not Barred by Settlement Agreement. Complainant filed his initial complaint in 2015, alleging that the Agency discriminated against him when it transferred him to an entry-level position. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that Complainant would not pursue the matters raised in his complaint. Complainant subsequently filed a second complaint alleging that he was subjected to a discriminatory hostile work environment. Complainant raised numerous incidents occurring in 2016 and 2017 in support of his claim. The Agency dismissed the second complaint, asserting that Complainant waived his right to pursue the matters when he signed the settlement agreement. On appeal, the Commission found that the Agency erred, because some of the incidents raised in the second complaint occurred after the execution of the settlement agreement and involved management officials in Complainant's post-transfer workplace. Therefore, the incidents could not have been raised in the first complaint, and the settlement agreement only precluded Complainant from pursuing the transfer decision itself. Further, while the Agency indicated that some of the allegations in the second complaint were not timely, the allegations, taken together, stated a viable claim of harassment which included some incidents that occurred within 45 days of when Complainant contacted the EEO Counselor. Cortez J. v. Dep't of Def., EEOC Appeal No. 0120180964 (Dec. 4, 2018).
Complaint Improperly Dismissed as Moot. Upon the Agency's motion, an AJ dismissed Complainant's complaints as moot, indicating that Complainant had retired, and there was no potential for additional relief because Complainant failed to specifically request compensatory damages. The Commission found that Complainant continuously referred to the "stress" of her "physical ailments" and the "degradation of" her "overall fitness and health," and that she was "in great pain and discomfort." She also referred to the ongoing aggravation and exacerbation of her disabilities, physical impairments and medical challenges. The Commission reaffirmed its long standing policy that it was unnecessary for Complainant to use the term "compensatory damages" to put the Agency on notice of Complainant's claim of pecuniary or non-pecuniary loss. Accordingly, because the issue of damages had not been adequately addressed, the dismissal of the complaints for mootness was improper. Tanya D. v. Dep't of Justice, EEOC Appeal No. 0120173031 (Nov. 20, 2018).
Agency Properly Dismissed Spin-off Complaint. Complainant filed a formal complaint alleging that an Agency attorney filed a response brief in regard to his former complaint, and sent Complainant an e-mail requesting copies of future correspondence pertaining to the former complaint, and that the Agency took no action to stop the attorney from sending the referenced e-mail. The Commission affirmed the Agency's dismissal of the complaint on grounds that it alleged dissatisfaction with the processing of Complainant's prior complaint. Complainant was attempting to raise spin-off claims, while the proper forum to raise such allegations was with the Agency official responsible for complaint processing, or as part of the original complaint itself. Samuel C. v. Dep't of Justice, EEOC Appeal No. 0120182823 (Nov. 15, 2018).
(See by statute, as well as multiple bases, this issue.)
Commission Found OPM Violated the Rehabilitation Act Regarding Health Insurance Coverage. In companion decisions, the Commission determined that the Office of Personnel Management (OPM) violated the Rehabilitation Act when it contracted with two insurance carriers for health insurance plans that categorically excluded in vitro fertilization (IVF) from coverage from about 1997 to 2000. The Commission found that the health insurance provisions were disability-based distinctions, and that OPM failed to provide adequate justifications for these disability-based distinctions. The Commission, however, cautioned that it was not taking a position on the question of whether a similar blanket exclusion of IVF, as that practice may exist currently, would violate the Rehabilitation Act.
First, the Commission found that Complainants' infertility constituted a disability because it substantially limited Complainants in the major life activity of reproduction. The Commission further determined that excluding IVF from health insurance constituted a "disability-based distinction" because the evidence showed that IVF was nearly exclusively utilized for the treatment of medically diagnosed infertility from 1997 to 2000. The Commission rejected OPM's argument that excluding IVF was not disability-based because IVF was treated in a manner consistent with other treatments that were not "medically necessary," i.e., treatments that did not cure the condition at issue. The Commission noted that the health insurance plans paid for various treatments and services that did not correct or cure the underlying impairment, including insulin for diabetes, durable medical equipment like wheel chairs and prosthetic legs for missing limbs, artificial insemination for infertility, and prescription drugs for erectile dysfunction.
The Commission determined that the health insurance provisions at issue did not fall within the "safe harbor" provision of the Americans with Disabilities Act, as applied to the Rehabilitation Act. The Commission found that studies presented by OPM did not justify excluding IVF from coverage because they came into being after the exclusion of IVF had gone into effect, and therefore OPM and the insurance carriers could not have relied on the actuarial data and calculations when deciding to exclude IVF from 1997 to 2000. The Commission concluded that OPM failed to provide sufficient evidence to show that the disability-based distinctions were attributable to any application of legitimate insurance risk classification, underwriting procedures, or verifiable actuarial data. The Commission found that Complainants' were entitled to compensatory damages. Theo B. and Cathie K. v. Office of Pers. Mgmt., EEOC Request Nos. 0520080057 & 0520080067 (Dec. 21, 2018); Willia M. and Alonzo N. v. Office of Pers. Mgmt, EEOC Appeal Nos. 0120132419 & 0120132420 (Dec. 21, 2018).
Agency Violated Rehabilitation Act When It Disclosed Confidential Medical Information. The Commission affirmed the AJ's finding that the Agency violated the Rehabilitation Act when a supervisor disclosed Complainant's confidential medical information to a contract employee. The record showed that, following a heated discussion with Complainant, the supervisor commented to the contractor that Complainant was on medication, implying that she had a psychiatric or mental health condition. Complainant provided the supervisor with a note from her physician the previous day stating that she had "reactive depression/anxiety," and on the date in question Complainant told the supervisor she had taken medication prescribed by her physician. Therefore, given the circumstances of the case and the supervisor's description of Complainant's behavior as "out of control" and "hysterical," the Commission found that the supervisor's disclosure to the contractor violated the Rehabilitation Act. The Commission increased the AJ's award of compensatory damages to $2,000 and ordered the Agency, among other things, to provide training to the supervisor. The Commission affirmed the AJ's dismissal of two claims previously raised in the grievance process, as well as the finding of no discrimination regarding the remaining claims raised in Complainant's complaint. Becki P. v. Dep't of Transp., EEOC Appeal No. 0720180004 (Nov. 15, 2018).
Agency Failed to Meet Burden of Production in Claim of Race Discrimination. The Commission found that Complainant was subjected to discrimination based on race when he was not selected for one of two Supervisor, Maintenance Operations, positions. Complainant had significant supervisory experience, was qualified and applied for the positions, while two non-African American individuals were selected. The Commission determined that the Agency, in its proffered legitimate nondiscriminatory explanation for not selecting Complainant, failed to meet its burden of production. In this regard, the selecting official provided numerical scores, which purported to support his determination that Complainant's interview scores were lower than those of the selectees. However, the selecting official failed to provide adequate information concerning the conduct of the candidate interviews, or an explanation as to how the scores were derived. Moreover, the selecting official's interview scoring conflicted with an earlier Review Committee's determination awarding Complainant a higher score. The Commission concluded that the Agency failed to articulate a clear and reasonably specific basis for its subjective assessment of Complainant. Therefore, the Agency failed to meet its burden of production. The Agency was ordered, among other things, to retroactively promote Complainant to the position or a substantially equivalent position with appropriate back pay and benefits. Garret W. v. U.S. Postal Serv., EEOC Appeal No. 0120173051 (Oct. 30, 2018).
Racial Harassment Found. Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (African-American) when a co-worker displayed racially insensitive material in the work area, and, after being removed, the co-worker was subsequently returned to the workplace. The Commission found that, in light of the racially inflammatory and clearly offensive nature of the material the co-worker had displayed in the workplace, which the Agency determined was so offensive as to require the co-worker's "emergency" removal from the workplace, the Agency's act of returning the co-worker to the same workplace was itself racially hostile and abusive. Complainant's negative reaction, and that of many other employees, to the return of the named co-worker to their workplace, was foreseeable and entirely reasonable on their parts. The Agency's explanation that it returned the co-worker to the workplace because it was directed to do so by the grievance panel's decision was not supported by the record. The grievance decision in question directed that the co-worker be returned to a pay status, not that the co-worker be returned to duty at the same facility. Nothing in the grievance decision precluded the co-worker's reassignment to another facility. In harassment cases, the Commission has generally found that an agency may not involuntarily transfer or reassign the victim of the harassment, and the agency should instead transfer or reassign the harasser. Thus, the Agency did not take reasonable care to prevent future harassment and failed to bear the burden of proving the affirmative defense. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide training for the responsible management officials. Chi E. v. U.S. Postal Serv., EEOC Appeal No. 0120170068 (Nov. 29, 2018).
Agency Liable for Sex-Based & Retaliatory Hostile Work Environment. Complaint filed an EEO complaint alleging that she was subjected to sexual harassment by her manager ("Manager"); and, on June 23, 2014, the Agency retaliated against her when it cancelled her detail to an Acting Manager position. Complainant indicated that from May 2013 through June 2014, the Manager made repeated sexual advances towards her, that included frequent remarks of a sexual nature or containing sexual innuendo, as well as contacting her outside of work and asking her on a date or to come to his house. Complainant stated that after she informed the In-Plant Manager and Plant Manager of the Manager's conduct, the harassment continued and became worse. On appeal, the Commission noted that an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. The Commission determined that the Manager subjected Complainant to sexual harassment and subsequently cancelled Complainant's detail in retaliation for complaining about the harassment to the Plant Manager. Moreover, the record clearly established that Complainant notified management of the alleged sexual harassment, and the Plant Manager's discussions with the Manager about Complainant's concerns were ineffective as the harassment continued and the Manager cancelled Complainant's detail. As such, the Commission concluded that the Agency was liable for the sex-based and retaliatory hostile work environment created by the Manager. The Agency was ordered, among other things, to provide Complainant with a detail assignment to a managerial or equivalent position and investigate her claim for damages. Lelah T. v. U.S. Postal Serv., EEOC Appeal No. 0120172533 (Oct. 24, 2018).
Retaliation Found Regarding Nonselection. The Commission found substantial evidence supported the AJ's conclusion that the Agency subjected Complainant to reprisal when it did not select him for a reassignment. According to the evidence, Complainant's supervisor gave him a negative reference within 24 hours of learning that Complainant had opposed allegedly discriminatory practices. The Commission found the Agency's rationale for not selecting Complainant was a pretext for discrimination. The Agency stated Complainant was not selected because of the negative reference and his failure to certify on radar. The reason for the negative reference was Complainant's alleged frequent tardiness and the need for close supervision. However, the record showed Complainant was tardy only one time during the relevant period and Complainant's on-the-job instructor status indicated Complainant was not only responsible for his own work but for developing newer employees. Further, one selectee was also not certified on radar. The Commission affirmed the AJ's award of $65,000 in compensatory damages, which was based on Complainant's and his wife's testimony and medical evidence showing Complainant was fearful that his reputation had been tarnished, withdrew from family, gained weight, could not sleep, felt worthless, and was diagnosed with depression and PTSD. Ira P. v. Dep't of Transp., EEOC Appeal No. 0720180007 (Dec.11, 2018), request for reconsideration denied EEOC Request No. 2019002130 (June 20, 2019).
Retaliation Found. According to the record, Complainant worked six hours per day on modified duty, spending two to three hours casing her route and then two to three hours on the street. After Complainant engaged in protected EEO activity, the Agency changed this arrangement, and the Postmaster offered Complainant a limited-duty assignment that involved six hours of delivery. The record did not explain why the Postmaster made the offer at that time. When Complainant rejected the assignment as beyond her limitations, the Postmaster offered only to allow her to case mail for approximately three hours without explaining why Complainant was not permitted to continue to deliver her route for three hours per day. The Commission found that the record did not support the Postmaster's assertion that the Agency was concerned about Complainant working outside her restrictions. Further, there was no evidence that the two to three hours that Complainant spent carrying her route exceeded her work limitations. To the extent that the Agency was arguing that it reduced Complainant's hours and required her to relinquish her route because she did not provide documentation clarifying her physician's reference to three hours "on the street," the Agency's argument failed. While the Postmaster explained that he interpreted the reference to include driving time, he did not ask for additional documentation in the event Complainant believed that his interpretation was incorrect. Further, to the extent that the Agency, in its final decision, relied on a Memorandum of Understanding as part of the articulated reason, its reliance was misplaced because the Postmaster did not state that he took the actions at issue here because of the Memorandum of Understanding. In addition, nothing in the Memorandum explains why the Agency allowed Complainant to retain her route for several years while on modified duty but required her to relinquish the route after she participated in protected EEO activity. The Commission found that the Agency's articulated reasons were not worthy of credence, and that a retaliatory reason more likely motivated the Agency's actions. Accordingly, the Commission concluded that the Agency discriminated against Complainant in reprisal for her prior protected EEO activity when it reduced her work hours and forced her to relinquish her assigned rural route. The Agency was ordered, among other things, to retroactively return Complainant to her prior route, pay her appropriate back pay, interest, and other benefits, compensate her for adverse tax consequences, and investigate her claim for damages. Pamala L. v. U.S. Postal Serv., EEOC Appeal No. 0120171070 (Nov. 9, 2018).
(See also "Findings on the Merits" in this issue.)
Agency Jointly & Severally Liable for Full Amount of Back Pay. Complainant filed an EEO complaint against the Agency alleging that she was discriminated against when she was terminated. In a prior decision, the Commission found that the Agency was Complainant's joint employer. Following an investigation, the Agency concluded that management violated the Rehabilitation Act when it refused to consider Complainant's request for reasonable accommodation and insisted the staffing firm terminate her services with the Agency. While the Agency stated it would, among other things, determine the appropriate amount of back-pay with benefits due Complainant, the Agency ultimately issued a final decision denying Complainant any back-pay. On appeal, the Commission noted that when, as here, the Agency qualifies as Complainant's joint employer, it is liable for discriminating against Complainant on the same basis that it would be liable for discriminating against any of its other employees. The Commission further noted that where the combined discriminatory actions of a staffing firm and the Agency result in harm to Complainant, they are jointly and severally liable for back-pay, front pay, and compensatory damages. This means that Complainant can obtain the full amount of back-pay, front pay, and compensatory damages from either one of the employers alone or from both combined. Even where there is joint liability, neither the charging party nor the Commission is obligated to pursue a claim against both entities. Counsel for the Agency argued that he found no cases awarding back pay to a contract worker from a federal agency, and Complainant cited none. However, the Commission explained that it need not determine whether the Back Pay Act applied to a common-law employee of an agency. Like any employee, Complainant was entitled to compensation for her lost earnings, including benefits she would have received had she not been removed from serving the Agency by the staffing firm at the Agency's request. The Commission acknowledged that the Department of Labor found the staffing firm also discriminated against Complainant when, after the Agency forced it to terminate Complainant's service, the staffing firm did not reassign her. Complainant's loss of earnings, however, was still proximately caused by the Agency, and the Agency was jointly and severally liable for the full amount of the back pay owed. Nicki B. v. Dep't of Educ., EEOC Appeal No. 0120172829 (Nov. 28, 2018).
Commission Affirmed AJ's Dismissal of Hearing Request as Sanction. Complainant sent the AJ an email containing what she described as "corrections" to the hearing record. These "corrections" contained several thinly veiled suggestions that the AJ and Complainant's attorney acted unethically. The AJ ordered Complainant's attorney and opposing counsel to provide independent recollections of the hearing. A review of these recollections showed they were consistent and sharply diverged from Complainant's version. The AJ concluded Complainant had lied to the AJ and diverted resources from other judicial matters and so dismissed Complainant's hearing request as a sanction. The Commission concluded that dismissing the hearing was a proper sanction. The Commission affirmed the Agency's finding of no discrimination and hostile environment and found no violation of the Commission's regulations regarding official time. Angella F. v. Dep't of the Army, EEOC Appeal No. 0120172081 (Dec. 14, 2018).
Commission Sanctions Agency for Failure to Timely Issue a Final Decision. Complainant requested a final decision in June 2016, and the Agency issued its decision in April 2017, which was beyond the 60-day time frame specified in the Commission's regulations. While the Commission affirmed the Agency's finding of no discrimination, the Commission sanctioned the Agency for failing to comply with its obligation to issue a final decision in accordance with its regulations. The Agency did not show good cause for its noncompliance, and the Commission noted that it must ensure that all parties abide by its regulations. The Commission ordered the Agency to provide training to its EEO personnel who failed to comply with the regulatory timeframes, consider taking disciplinary action against those EEO personnel, and pay any attorney's fees Complainant incurred for filing her appeal. Evelina M. v. Dep't of Justice, EEOC Appeal No. 0120171018 (Dec. 11, 2018).
Commission Affirmed AJ's Issuance of Default Judgment in Complainant's Favor as Sanction. Complainant filed an EEO complaint alleging that the Agency discriminated against him regarding work assignments, exclusion from meetings, allowing a lower graded person to manage his performance, and nonselection. Complainant requested a hearing before an AJ. When the Agency failed to produce the report of investigation or otherwise respond to the AJ's order, the AJ issued a default judgment against the Agency, and ordered the Agency, among other things, to pay Complainant $60,000 in proven non-pecuniary compensatory damages. The Commission affirmed the AJ's decision, finding that the AJ properly imposed sanctions and that default judgment was an appropriate sanction. The AJ sanctioned the Agency for its lengthy delay in issuing the report of investigation, and its failure to respond to an order to produce the report or other telephone inquiries by the AJ. The Commission found that the award of damages was appropriate based upon statements from Complainant and his wife that he experienced insomnia, migraine headaches, weight gain, diminished self-worth, and isolation from family and friends. Dalton E. v. Dep't of Hous. and Urban Dev., EEOC Appeal No. 0720170038 (Nov. 30, 2018).
AJ's Default Judgment in Complainant's Favor Deemed Proper. Complainant filed a formal complaint alleging that the Agency discriminated against her when it terminated her from employment. In a prior decision, the Commission reversed the Agency's dismissal of the complaint on grounds that the matter had been rendered moot by a grievance decision, stating that Complainant made a claim for compensatory damages which was not addressed by the Arbitrator or the Agency. Complainant subsequently filed a second EEO complainant raising additional claims of discrimination. The Agency accepted and investigated both complaints, and the matters were consolidated by an AJ. Over the course of five months while the AJ attempted to schedule the hearing, the Agency filed motions to dismiss the first complaint on grounds that Complainant failed to timely contact an EEO Counselor and that the matter was addressed in the grievance. The AJ denied both motions, stating that the Agency failed to raise the timeliness matter at any time up to and including during discovery, and the collective bargaining agreement did not allow for allegations of discrimination. The AJ then granted Complainant's motion for sanctions. The AJ found that a default judgment in Complainant's favor, with compensatory damages, was both proper and appropriate, where the Agency had been put on notice and warned of sanctions for filing frivolous motions yet disregarded this with impunity. The Agency repeatedly delayed the start of the hearing due to its repeated attempts to have one of the underlying complaints dismissed on procedural grounds when such motions were not considered a reasonable possibility. This in turn had the effect of bottlenecking the administrative process, which was, in the AJ's words, "already quite burdened to keep cases timely heard." The Commission noted that the Agency accepted and processed both complaints, referred them for a hearing, undertook discovery, and was close to convening the hearing when the Agency filed its motion to dismiss the first complaint. Therefore, the AJ properly exercised her discretion and declined to dismiss the matter. The Commission rejected the Agency's arguments raised for the first time on appeal that the second complaint should be dismissed, stating that the Agency failed to timely raise its arguments. The Commission found that the AJ did not abuse her discretion when she entered default judgment on both complaints. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). (A summary of the Commission's discussion of the award of compensatory damages is included in the appropriate section above.)
Commission Issues Sanction. Complainant received the Agency's notice to request a hearing or a final Agency decision, but failed to request either within the requisite 30-day time limit. The Agency then did not issue its final decision within 60 days as set forth in the Commission's regulations. Meanwhile, Complainant subsequently requested a final Agency decision on numerous occasions. The Agency ultimately issued its final decision more than two years after the requisite time limit. The Agency provided no explanation for the late issuance of the final decision. Based on the specific circumstances of this case, the Commission found the most appropriate sanction to address the Agency's conduct was to order the Agency to post a notice at its Office of Civil Rights in Washington, D.C. regarding its failure to comply with the Commission's regulatory timeframes and orders; and provide training to its EEO personnel who failed to comply with our regulatory timeframes. The Commission affirmed the Agency's finding of no discrimination in this matter. Alda F. v. Envtl. Prot. Agency, EEOC Appeal No. 0120171676 (Nov. 29, 2018).
Dismissal of Hearing as Sanction Improper. The AJ dismissed Complainant's hearing requests as a sanction for her failure to appear on the scheduled hearing date. The Commission found that the sanction was improper given that Complainant did not receive the scheduling order while she was on approved medical leave and had previously informed the AJ and the Agency of her contact information. Complainant stated that the scheduling order was sent only to her work email address while she was on an Agency-approved medical leave of absence for several months. She noted that she had informed the Agency and AJ how to contact her at her home address and telephone number and had communicated with the AJ via telephone. The Commission remanded the matter for an administrative hearing. Joannie V. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120182175 (Nov. 14, 2018).
No Breach of Settlement Found. The parties agreed to continue Complainant's detail with a four-day, 10-hour work week and to give her priority consideration for a particular vacancy, if it occurred. Complainant alleged breach when after nearly three years the Agency moved Complainant out of the detail and onto a 5-day work week doing clerical duties and failed to provide the priority consideration. The Agency determined the agreement was the result of mutual mistake and lack of consideration because Complainant, based on her qualifications, could not be promoted to the position in question and Complainant was already in the detailed position. The Agency asserted that the agreement was "void and unenforceable." The Commission, however, held the agreement was valid and in full effect. Complainant was permitted to continue in the detail and served in that capacity for several years beyond the original termination date of the detail. Also, the record contained no evidence that the vacancy ever occurred or that Complainant ever applied for it. Greta F. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120182644 (Dec. 20, 2018).
Settlement Agreement Void for Lack of Consideration. The parties entered into an agreement whereby the Agency agreed to treat employees with dignity and to promote Complainant according to the union contract. The Commission found that the agreement was void for lack of consideration. Specifically, the Agency was already required to take these actions. Cortez J. v. U.S. Postal Serv., EEOC Appeal No. 0120182495 (Dec. 20, 2018).
Settlement Agreement Void for Lack of Consideration. The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would treat Complainant fairly and in accordance with Agency rules and regulations with regard to promotions and merit increases. The Commission found the agreement was unenforceable because it was vague and lacked consideration. The Agency was already obligated to follow its own rules and not discriminate against Complainant. Therefore, the agreement was void and the Agency was ordered to reinstate the complaint for processing. Fred M. v. U.S. Postal Serv., EEOC Appeal No. 0120172563 (Nov. 8, 2018).
Settlement Agreement Void for Lack of Consideration. Complainant and the Agency entered into a settlement agreement to resolve her EEO matter. The Agreement provided, in pertinent part, that management would request a route inspection and return copies of certain forms to Complainant. The agreement also specified that management and Complainant would communicate professionally with each other. The Commission found that the agreement was void for lack of consideration. The Agency merely agreed to "request" a route inspection and made no guarantee that any route inspection would actually occur. Such a request imposed no legal detriment on the Agency, while in exchange, Complainant surrendered her right to pursue her complaint. Further, the remaining provisions provided Complainant with nothing beyond that to which she was already entitled, and hence were void for lack of consideration. The Commission noted that when one of the contracting parties incurs no legal detriment, a settlement agreement will be set aside for lack of consideration. The Commission ordered the Agency to reinstate Complainant's original claims for processing. Nicol K. v. U.S. Postal Serv., EEOC Appeal No. 0120172733 (Oct. 31, 2018).
No Breach of Settlement Found. The Commission affirmed the Agency's finding that it did not breach its settlement agreement with Complainant. The agreement required the Agency to expunge a non-issued Letter of Reprimand from any supervisory desk file or supervisory performance file concerning Complainant. Complainant alleged breach because a draft copy of the letter was found in the supervisor's email, which was later deleted. The Commission found no breach because the agreement did not require the Agency to purge the letter from all emails or electronic files. Furthermore, to the extent a breach may have occurred, the Agency cured the breach by deleting the emails that included the Letter. Felton Z. v. Dep't of Agric., EEOC Appeal Nos. 0120172385 & 0120181028 (Oct. 11, 2018).
Complainant Stated Valid Harassment Claim. Complainant alleged that, during a service talk, the station manager made unkind remarks about Complainant's limited duty medical condition, humiliated and ridiculed Complainant, and mimicked the way he walked while delivering mail. The record contained a signed statement from several employees who witnessed the event confirming Complainant's description of the station manager's conduct and that most of the employees in attendance "laughed loudly at him." On appeal, the Commission found that viewing the allegations together and assuming they occurred as alleged, Complainant stated a viable claim of discriminatory harassment. The actions alleged involved a senior management official making fun of Complainant's disability in front of a group of co-workers and mimicking the way he walked because of his disability. Charles R. v. U.S. Postal Serv., EEOC Appeal No. 2019000352 (Nov. 29, 2018).
Complainant Stated Viable Claim of Harassment & Constructive Discharge. Complainant sought EEO counseling alleging that the Postmaster attempted to terminate his employment, failed to provide him training, and "took further…actions" against him. On the same day the Agency issued its decision dismissing the complaint, Complainant's attorney submitted a request to amend which included various incidents involving the Postmaster, including an allegation that Complainant was constructively discharged. The Commission found that the amended complaint was "like or related" to the original complaint because it added to or clarified the original complaint and could have reasonably been expected to grow out of the original complainant during the investigation. Therefore, the alleged incidents in the initial formal complaint combined with the allegations in the amended complaint stated a viable claim of harassment. Further, the Commission has previously stated that where an individual receives EEO counseling on a proposed action and the agency ultimately effectuates the proposed action, the otherwise premature allegation merges with the effectuated action. Complainant initially sought EEO Counseling regarding the Postmaster's alleged attempts to terminate him and raised an allegation of constructive discharge in his amended complaint. Reggie D. v. U.S. Postal Serv., EEOC Appeal No. 2019000187 (Nov. 29, 2018).
Agency Found to Be Joint Employer. Complainant, a contract employee, worked as a Staffing Specialist at an Agency facility. He filed a formal complaint alleging that an Agency Human Resources Specialist subjected him to sexual and non-sexual harassment. The Commission found that the Agency was a joint employer for purposes of Complainant's EEO complaint. Complainant had been working for the Agency for a significant period. Further, prior to filling a position at the Agency, the staffing firm was required to submit a candidate's resume for Agency review and approval, and the Agency had the right to interview the candidate. The Commission found that the joint right of control in the hiring process pointed to joint employment. In addition, the record showed that the Agency jointly controlled the means and manner of Complainant's performance. Specifically, Agency supervisors assigned and reviewed Complainant's work, and Complainant used Agency equipment. Keenan O. v. Fed. Deposit Ins. Corp., EEOC Appeal No. 0120181998 (Nov. 6, 2018); Additional Decisions Addressing Whether Complainant Was an Employee or Independent Contractor Include: Chasity C. v. Dep't of the Army, EEOC Appeal No. 2019000440 (Dec.18, 2018) (Complainant served as Project Manager for Pathology at an Agency facility. The contractor set Complainant's salary, paid her and provided her with leave benefits. Nevertheless, Complainant's job description included duties that appeared to be essential functions of the pathology unit and indicated a potential employer/employee relationship with the Agency. The record reflected that Complainant was part-time backfilling a position in another unit, that she worked closely with Agency employees, that Agency officials assigned her to units and duties beyond her job title, that Agency managers were involved in the decision to remove her, and that she was assigned an Agency email account without a contractor identifier. The Commission found that these factors, along with working at an Agency facility, with Agency equipment and materials, and during core Agency hours, indicated an employer/employee relationship for purposes of the EEO process); Yun C. v. Office of the Dir. Of Nat'l Intelligence, EEOC Appeal No. 0120182012 (Nov. 6, 2018), request for reconsideration denied EEOC Request No. 2019001638 (May 15, 2019) (the Agency, which assigned Complainant work and day-to-day tasks, possessed sufficient control over Complainant's position to qualify as her joint employer. Complainant worked on Agency premises using Agency equipment, and an Agency supervisor evaluated her work. The Agency also coordinated Complainant's work hours and schedule. Complainant worked for the Agency for over one year until the Agency terminated her from her position).
Complainant Stated Viable Claim of Harassment. Complainant alleged that she was instructed to sit in the break room prior to clocking in and her supervisor placed pieces of her mail on the floor. She also told the EEO Counselor that her supervisor enforced rules for her that had previously been ignored while allowing others to violate the rules without consequence. The Agency dismissed the complaint for failure to state a claim, and the Commission reversed the decision on appeal finding that a fair reading of the claims showed that Complainant alleged a justiciable claim of harassment. Complainant stated that she was treated differently than other employees over the course of several years, and while the actions individually appeared to be everyday work occurrences, when viewed as a whole they created a discriminatory hostile work environment. Waltraud R. v. U.S. Postal Serv., EEOC Appeal No. 0120182483 (Oct. 4, 2018).
Summary Judgment Affirmed. The Commission affirmed the AJ's decision, issued without a hearing, finding that Complainant failed to prove his claims of discrimination. Complainant alleged that he was not selected for three positions and did not qualify for a fourth position. The Commission initially noted that the AJ properly found there were no genuine issues of material fact or credibility that warranted a hearing, and the record was comprehensive, complete, and impartial. Further, the Agency articulated legitimate, non-discriminatory reasons for the failure to select Complainant for the positions cited, and Complainant failed to prove those reasons were a pretext for discrimination. Specifically, while Complainant had impressive qualifications, he was not obviously superior to the selectees. In addition, Complainant's interview performance was a major factor in his nonselection for at least one position. Interview notes revealed that Complainant often interrupted others, did not seem to understand the questions asked to him, rambled excessively, and dressed casually for the interview. The Commission agreed with the AJ that Complainant did not prove that he was subjected to discrimination as alleged. Erich B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170537 (Oct. 16, 2018).
Complainant Timely Contacted EEO Counselor. The Commission reversed the Agency's dismissal of Complainant's complaint for failure to timely contact an EEO Counselor. Complainant twice asked her manager for a 204b position, and he responded that he would get back to her but never did. Meanwhile, the manager only selected male employees for 204b positions. The Commission found this matter was not a discrete act, but alleged ongoing discrimination up until the time Complaint requested EEO counseling. Therefore, Complainant's counselor contact was timely. Joleen M. v. U.S. Postal Serv., EEOC Appeal No, 2019000498 (Dec. 12, 2018).
Complaint Properly Dismissed for Untimely EEO Counselor Contact. The Agency dismissed the formal complaint alleging discriminatory harassment for untimely EEO Counselor contact. The Agency determined that, based on the most recent discriminatory event on November 29, 2017, Complainant's contact with the EEO Counselor on January 26, 2018, was beyond the 45-day limitation period. The Commission affirmed the dismissal on appeal. While Complainant argued that the time limit should be tolled for the time he was on leave under the Family Medical Leave Act, the Commission disagreed. The Commission has consistently held that, in cases involving physical or mental health difficulties, an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. Complainant described the need to avoid stress and medications that made him drowsy during a portion of the 45-day period. He did not, however, show that he was rendered incapacitated. Wyatt W. v. Dep't of Justice, EEOC Appeal No. 0120182706 (Nov. 30, 2018).
Complaint Failed to Timely Contact EEO Counselor. Complainant contacted an EEO Counselor more than one year after the allegedly discriminatory events. He did not assert that he was unaware of the time limitation for seeking EEO counseling. When asked during counseling why he waited, Complainant explained that he initially contacted the Office of Inspector General, which referred him to the Office of Special Counsel. According to Complainant, after the Office of Special Counsel investigated the matter for several months, he was referred to the EEO process. The Commission has consistently held that neither internal appeals nor the filing of challenges to an agency's adverse action within other processes such as the grievance process toll the running of the time limit to contact an EEO Counselor. Therefore, the Commission affirmed the Agency's dismissal. Bret B. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019000247 (Nov. 28, 2018).
Formal Complaint Timely Filed. The Agency sent the notice of right to file by mail to Complainant's attorney's address of record. The record contained no evidence indicating when the attorney received the notice. The formal complaint was filed on January 13, 2016, as indicated by the postmark on the express mail envelope. The AJ dismissed the complaint as untimely. The AJ relied on a presumption of receipt of the notice within five days of its mailing, reasoning that the notice was mailed on December 22, 2015, and delivered by no later than Monday, December 28, 2015. Therefore, the AJ concluded that the complaint was filed one day late. However, there is no authority, either in the Commission's regulations or on the face of the notice itself, for the AJ to apply a presumption that the notice was received within five days of its mailing. Accordingly, the Commission found that the formal complaint was timely filed. Fredrick A. v. Dep't of Def., EEOC Appeal No. 0120182649 (Nov. 29, 2018).
(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 http://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.)
When disparate treatment discrimination is found, the goal of the anti-discrimination laws is to make the complainant "whole." Specifically, the relief which is provided must place the complainant "as near as may be" to the position she would have occupied if the discrimination had not occurred. To remedy a finding of discrimination, the Commission will order an agency to provide full relief, including corrective, curative, and preventative actions to ensure that similar violations will not recur. Both employees and applicants for employment are entitled to appropriate relief.
The anti-discrimination statutes generally allow for both monetary relief, such as compensatory damages and back pay, and equitable relief, such as reinstatement, training, or appointment to a position. The type of relief awarded will depend on the discriminatory action and the effect that the discrimination had on the complainant. For example, when the Commission or an agency finds that a complainant was discriminated against when she was not selected for a specific position, relief can include an offer of placement into the position or a substantially equivalent position, as well as back pay with interest. A complainant who was discriminated against when he was issued a letter of counseling would be entitled to have the letter expunged from his personnel records. Both complainants would be entitled to an award of proven pecuniary and non-pecuniary compensatory damages if they raised claims under Title VII or the Rehabilitation Act. Complainants may also be able to recover attorney's fees and costs.
In addition to relief awarded directly to a complainant, the Commission may order an agency to take preventative actions to ensure that similar discriminatory actions do not occur in the future. For example, the Commission may order the agency to notify all employees at the facility where the discrimination occurred of their right to be free from unlawful discrimination and provide employees with assurances that the type of discrimination found will not recur. The Commission can also order an agency to provide training for management officials involved in the discrimination, and consider taking disciplinary action against the responsible management officials.
This article provides an in-depth look at several types of individual relief frequently awarded by the Commission to assist stakeholders in understanding the specific elements of such awards.
When the Commission finds that a complainant was discriminated against when she was not selected for a position, the Commission may order the agency to offer the complainant the position in question or a substantially similar position, and to apply retroactive seniority for the complainant's time in the position. The Commission has consistently held that a substantially equivalent position is one that is similar in duties, responsibilities, and location, and that is a reasonable commuting distance, to the position for which the complainant originally applied. The burden is on the agency to establish that the position offered to the complainant is substantially equivalent to the position the complainant was denied.
The Commission recognizes that when a position is occupied by another employee, most often because the other individual was selected over the complainant, bumping the incumbent employee may be a possible remedy for discrimination. The Commission has included bumping of an incumbent in its orders of relief where there is no position available that is substantially equivalent to the position the complainant was discriminatorily denied. In these cases, the Commission has found that bumping of the incumbent was the only adequate remedy, and, in the absence of bumping, the complainant's relief would be unjustly inadequate.
In Geraldine G. v. U.S. Postal Serv., the Commission had ordered the Agency to offer Petitioner a Team Leader position in a specific location. The Agency asserted that no Team Leader positions were available in that location, and instead offered Petitioner various positions in other areas of the country. The Commission found that the positions offered by the Agency were not substantially equivalent to the position denied Petitioner because they were not in geographic or commuting locations remotely close to the position Petitioner was discriminatorily denied. The Commission stated that the Agency's offer of positions in completely different geographical locations throughout the country was plainly an inadequate remedy. Therefore, since there was no substantially equivalent position to the one Petitioner was discriminatorily denied, the Commission found that bumping the incumbent employee was the only remedy that would make Petitioner whole.
The Commission also addressed bumping as a remedy in Toney E. v. Dep't of Agric.. The Commission previously ordered the Agency, among other things, to place Petitioner into a GS-13 level Center Director position or a substantially equivalent position similar in duties, responsibilities, and location, that was within a reasonable commuting distance. The Agency offered Petitioner five Center Director positions that were not within a location remotely close to the position that Petitioner was discriminatorily denied. The Agency asserted that it was unable to offer Petitioner the position that he was denied because it was currently occupied by the employee who was selected over Petitioner. The Commission noted that bumping an incumbent is a permissible remedy when other relief would be unjustly inadequate. In this case, there were no apparently substantially equivalent positions in terms of commuting distance, and the Agency's offer of positions in completely different geographic locations throughout the country was plainly an unjustly inadequate remedy. Therefore, the Commission concluded that bumping the incumbent employee was the only remedy that would make Petitioner whole, and Petitioner was entitled to be placed into that position.
The Commission has held that complainants are entitled to all benefits they would have received but for a discriminatory nonselection. In Complainant v. Dep't of Veterans Affairs, the Commission found that Complainant was entitled to an additional grade-level promotion as relief for the Agency's failure to initially promote him due to his disability. Complainant asserted that the original selectee and two other employees were promoted to a higher grade level due to accretion of duties. The record included a letter from an Agency attorney agreeing that Complainant's record should have been corrected to reflect a retroactive promotion. Thus, the Commission ordered the Agency to retroactively promote Complainant to the higher grade level as of the date the selectee was promoted.
The purpose of a back pay award is to restore income to the complainant that s/he would have otherwise earned but for the discrimination. When the Commission finds discrimination in cases involving nonselection, the complainant is generally entitled to receive back pay from the date s/he would have entered on duty until the date s/he assumes the position or declines an offer of placement into the position. Complainants are also entitled to receive back pay in cases of discriminatory termination. Interest on back pay should be included in the calculation of the back pay award.
Back pay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, premium and night pay, transfers, promotions, and privileges of employment to which the complainant would have been entitled but for the discrimination. However, the agency is required to make certain deductions from back pay awards to ensure that a complainant does not receive more in total benefits than s/he would have received in the absence of the discriminatory personnel action. For example, the Commission has stated that the portion of worker's compensation payments attributable to lost wages should be deducted from gross back pay. The Commission has, however, stated that an agency may not deduct unemployment compensation from a complainant's back pay award.
The Commission recognizes that precise measurement of back pay cannot always be used to remedy the discrimination. Therefore, the computation of back pay awards inherently involves some speculation. The agency must provide a clear and concise plain language statement of the formulas and methods it used to calculate a complainant's back pay.
In Petitioner v. Dep't of Justice, the Commission found that the Agency failed to properly calculate the back pay due Petitioner following a finding that the Agency discriminated against her when it terminated her from her Aviation Security Officer (ASO) position. Instead of using the average salary earned by ASOs during the applicable period as instructed by the Commission, the Agency considered all employees when calculating Petitioner's back pay. The Commission stated that it intended for the Agency to use the average ASO salary to account for some speculation given the uncertainty of the number of hours Petitioner would have worked. The Agency's calculation reduced Petitioner's award. The Agency should have used only similarly situated employees when calculating the average salary for purposes of back pay. The Commission instructed the Agency to calculate back pay for individuals who, like Petitioner, sought out work consistently and accepted regular assignments.
In Vaughn C. v. Dep't of the Air Force, the Commission concluded that the Agency incorrectly found Petitioner was not entitled to back pay. The Commission previously found that Petitioner was subjected to unlawful ongoing racial harassment that resulted in his constructive discharge. According to the record, Petitioner was unemployed for approximately six months following his constructive discharge, after which he obtained a full-time job with a federal contractor. Therefore, Petitioner should have been awarded back pay from the date of his resignation (constructive discharge) until he started earning more than he would have had he still been employed with the Agency. The award should take into account any step increases, promotions or other bonuses Petitioner would have received had he continued working at the Agency.
A complainant has a duty to mitigate damages by making a good faith effort to find other employment. An award of back pay therefore generally is reduced by any amount a complainant earned during the applicable period. This means that a complainant must seek a substantially equivalent position. The burden is on the agency, however, to show that the complainant failed in his duty to mitigate. The Commission has generally held that an agency must satisfy a two-pronged test to meet its burden of proof. The agency must show that the complainant failed to use reasonable care and diligence in seeking a suitable position; and there were suitable positions available for which the complainant was qualified. The agency does not have to meet the second prong if the complainant does not make an effort to mitigate damages and does not explain the lack of effort.
In Damon Q. v. U.S. Postal Serv., Petitioner alleged that the Agency improperly offset back pay owed to him based on outside earnings and improperly excluded a period of time from the back pay calculations. The Agency asserted that because Petitioner had secured employment for a period of time, it offset the back pay award based on Petitioner's hourly wage and number of hours worked per week while he was employed in that position. The Commission upheld the use of Petitioner's alternative employment to offset back pay but found that the Agency improperly excluded time during which Petitioner was unemployed from its back pay calculations. The Commission found that Petitioner had not failed to mitigate the damages of his unemployment and had been actively seeking work throughout that period. The Commission also stated that Petitioner's prolonged unemployment was at least in part attributable to depression resulting from his unlawful termination. The Commission rejected the Agency's argument that Petitioner was not entitled to additional back pay because he had received compensatory damages, stating that an award of compensatory damages has no bearing on back pay owed by Agency.
In Takahashi v. U.S. Postal Serv., the Commission found that Petitioner failed to engage in reasonable efforts to find comparable employment during specific periods. Petitioner stated that he was not available for employment because he was enrolled in a full-time program to obtain a teaching certificate. Aside from accepting a few sporadic substitute teaching assignments during this time, Petitioner did not look for comparable work and was not ready, willing and able to work in a comparable position. Therefore, Petitioner was not entitled to back pay during those periods.
The Commission has held that where an agency pays back pay and other income payments in a lump sum payment, the agency is responsible for a complainant's proven increased tax burden. In these cases, the complainant bears the burden of proving the amount to which he claims entitlement. The tax liability calculation must be based on the taxes that the individual would have paid if he had received the back pay as a regular salary during the back pay period.
In Stefan H. v. Dep't of Justice, the Commission found that the Agency was not in compliance with its previous order directing the Agency to compensate Petitioner for the tax consequences of a lump-sum payment. The clear intent of this order was to ensure that Petitioner was not required to pay any additional taxes as a result of the remedies he received following the Commission's finding of discrimination. Petitioner submitted detailed information from the individual who prepared his taxes regarding the additional tax calculations, which the Agency did not challenge on appeal. Therefore, the Agency was ordered to pay Petitioner that amount.
Compensatory damages are awarded to compensate complainants for harm or suffering due to discriminatory acts or conduct. Federal employees may seek compensatory damages for discrimination but cannot be awarded punitive damages in the administrative process. Compensatory damages consist of either pecuniary or non-pecuniary damages.
Pecuniary damages are awarded to compensate a complainant for out-of-pocket expenses resulting from an employer's unlawful conduct. Examples of pecuniary losses include moving expenses, employment search expenses, medical expenses, psychiatric expenses and physical therapy expenses, and other quantifiable out-of-pocket expenses. Pecuniary losses may include past expenses, which are out-of-pocket expenses that occurred prior to the date of the resolution of the damage claim, or future expenses, which are out-of-pocket expenses likely to occur in the future after resolution of the complaint. Receipts, records, bills, cancelled checks and confirmation by other individuals can be used to ascertain the amount to be awarded for past pecuniary losses. Without documentation, however, damages for past pecuniary losses typically will not be awarded to the complainant.
Non-pecuniary damages are available for emotional harm, including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of health, and other such intangible losses that are incurred as a result of the discriminatory conduct. A finding of discrimination does not carry a presumption of emotional harm. There must be proof of the existence, nature and severity of the emotional harm. Emotional harm may include such things as sleeplessness, anxiety, stress, depression, marital strain, humiliation, and emotional distress. The harm may also manifest itself physically, for example: the development of ulcers, hair loss and headaches. Non-pecuniary damages may also be awarded if an individual experiences damage to professional reputation or damage to interpersonal relationships.
The necessary elements of proof for a claim of compensatory damages are proof of actual harm or injury, and proof that the harm or injury was caused by the unlawful discrimination. The complainant must prove that there has been a compensable harm or loss and that the cause of such harm or loss is attributable to the unlawful conduct of the agency. The complainant bears the burden of proof and must sufficiently establish a causal connection between the respondent's illegal conduct and the complainant's injury.
While pecuniary damages can be proven with evidence such as bills and receipts, evidence required to prove non-pecuniary damages (i.e. emotional harm) can be less tangible in nature. In Carle v. Dept. of Navy, the Commission described the types of evidence that would support a claim of emotional harm, including a statement from the complainant describing her emotional distress, and statements from witnesses. To properly explain the emotional distress, the Commission reasoned that the statements should include specific information regarding the physical or behavioral manifestations of the distress, duration of the stress and examples of the impact of the distress while at work and while not at work. The Commission also concluded that evidence linking the distress to the unlawful discrimination was necessary. The Commission has found, however, that evidence from a health care provider is a not a prerequisite for recovery of compensatory damages for emotional distress.
Complainants with a pre-existing condition are not foreclosed from pursuing a claim for emotional harm. If the complainant had a pre-existing emotional condition and his or her mental health deteriorated as a result of the discriminatory conduct, the additional harm may be attributed to the employer. On the other hand, where the complainant's emotional harm is due in part to personal difficulties that were not caused or exacerbated by the discriminatory conduct, the employer is liable only for the portion of the harm caused by the discrimination.
When determining the amount of a compensatory damage awards it is necessary to limit the amount to the sums necessary to compensate the individual for actual harm. An award of compensatory damages cannot be punitive in nature. Generally, the method for computing non-pecuniary damages should be based on consideration of the severity, duration and nature of the harm. When deciding a case that involves compensatory damages, the Commission looks to other cases that involve similar harm, accounting for the present-day value of comparable awards. The Commission also strives to ensure that awards are not monstrously excessive standing alone, nor the result of passion or prejudice.
When the Commission finds that a complainant has been subjected to disparate treatment discrimination the Commission can award non-monetary relief. This can include the cancellation of an unwarranted personnel action, and expungement of adverse material relating to the discrimination from the individual's records, as well as providing the complainant with reasonable accommodation, training, preferential work assignments, and overtime scheduling, among other things. As with monetary relief, these elements of relief are designed to place the complainant into the position she would have been absent the discrimination.
For example, in Nathan S. v. Dep't of Justice, the Commission found that Complainant was subjected to disparate treatment based on his race when the Agency denied him training he needed in order to be promoted while allowing two similarly situated Caucasian Officers to take the training at issue, and, shortly thereafter, noncompetitively promoted both Caucasian Officers. In so finding, the Commission noted that several witnesses, including the former supervisor, subscribed to Complainant's view that management intentionally foreclosed minorities from career advancement. The Commission concluded that the Agency's stated reasons for its actions were not supported by the record and were unworthy of belief. To remedy the discrimination, the Commission ordered the Agency, among other things, to provide Complainant the training at issue, and noncompetitively promote him in a similar fashion to the two cited Caucasian comparators.
In Erwin B. v. Dep't of Homeland Sec., Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against him based on race when it issued him Letters of Counseling for unprofessional conduct and missing a duty call. The Commission found that the issuances of the disciplinary actions giving rise to these claims were motivated by discriminatory animus based on Complainant's race. The Agency was ordered, among other things, to rescind the Letters and remove them from Complainant's personnel record, as well as adjust any subsequent discipline that was based on the Letters.
Finally, in Darius C. v. U.S. Postal Serv., the Commission found that the Agency failed to reasonably accommodate Complainant who was hearing impaired when it conducted an unscheduled service talk without providing a sign language interpreter. While the Agency stated that it attempted to accommodate Complainant the following day at another meeting, that meeting never occurred because no sign language interpreter appeared for the second service talk. The Agency was ordered, among other things, to ensure that Complainant was provided with a qualified interpreter when required.
 Backpay is computed pursuant to 5 C.F.R. § 550.805. Back pay liability under Title VII and the Rehabilitation Act is limited to two years prior to the date the discrimination complaint was filed. See 29 C.F.R. § 1614.501(c)(1).
 See Erwin B. v. Dep't of Homeland Sec., EEOC Appeal No. 0120151276 (May 15, 2017), request for reconsideration denied EEOC Request No. 0520170446 (Nov. 3, 2017) (finding that the Agency discriminated against Complainant on the basis of race when it issued him letters of counseling and ordering the Agency to remove the letters from Complainant's records).
 Compensatory damages are not available for claims of age discrimination filed under the Age Discrimination in Employment Act. See Amaro v. U.S. Postal Serv., EEOC Appeal No. 01A20929 (May 29, 2003).
 29 C.F.R. § 1614.501; backpay liability under Title VII and the Rehabilitation Act is limited to two years prior to the date on which the complaint is filed, 29 C.F.R. §§ 1614.501(b)(3) & 1614.501(c)(1).
EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N. 915.002 (July 14, 1992) (hereinafter referred to as Enforcement Guidance) available at https://www.eeoc.gov/policy/docs/damages.html.