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Digest Seal The DIGEST Of Equal Employment Opportunity Law


Fiscal Year 2017, Volume 3

Office of Federal Operations

June 2017


Inside

Selected EEOC Decisions on:

Article: Establishing Disparate Treatment Discrimination


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: Robyn Dupont, Saliha Moore, Marc Plotkin, Joseph Popiden, Nicole Portnov, Navarro Pulley

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

(The Commission will now redact Complainants' names when it publishes decisions. Beginning on October 1, 2015, all federal sector appellate decisions issued for publication will use a randomly generated name as a substitute for the name of the complainant, rather than the generic term "Complainant." This randomly generated name will consist of a first name and last initial, and will be assigned using a computer program that selects names from a list of pseudonyms bearing no relation to the complainant's actual name.)

SELECTED EEOC DECISIONS

Agency Processing

Agency Improperly Denied Complainant's Request to Amend Formal Complaint. Complainant filed a formal complaint alleging that (1) he was forced to use accumulated leave and/or was placed on leave without pay rather than being provided a reasonable accommodation; (2) he was temporarily assigned a sedentary position rather than permanently accommodated; and (3) he was issued a "return to duty" notice which advised him that he could be disciplined if he failed to comply. Subsequently, the Agency denied Complainant's request to amend his complaint to include the allegation that he was issued a Notice of Proposed Separation. The Agency ultimately issued a final decision addressing the merits of claims 1 and 3, and finding that claim 2 was properly dismissed on the grounds of untimely EEO Counselor contact. The Agency asserted that Complainant's request to amend his complaint was appropriately rejected because it was a proposed and not completed action. On appeal, the Commission determined that the proposed separation and the subsequent final separation were inextricably intertwined, noting that "an otherwise premature claim merges with an effectuated action" such that the action merits further review. The Agency's final decision was vacated and the matter was remanded to the Agency for supplemental investigation on the issues of Complainant's separation, and claims 1 and 3. Faustino M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120151165 (Mar. 28, 2017).

Commission Remanded Complaint for Further Investigation. Complainant, who was pregnant, filed an EEO complaint alleging discrimination on the bases of sex and disability when the Agency issued her a Letter of Warning; issued her a Notice of Seven-Day Suspension; denied her request to be an acting supervisor; and provided her with only minimal light duty work. The Commission noted that framework for analyzing a pregnancy discrimination denial of accommodation claim was addressed by the Supreme Court in Young v. United Parcel Service, 575 U.S. ___, 135 S.Ct. 1338 (2015) while Complainant's case was pending. To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she belongs to a protected class; (2) she sought accommodation; (3) the Agency failed to provide a reasonable accommodation; and (4) the Agency did accommodate others similar in their ability or inability to work. The Agency may then show that it relied upon legitimate, non-discriminatory reasons for denying the accommodation. The Commission noted that Complainant established the elements of a prima facie case, but the Agency needed to thoroughly investigate and analyze the complaint in light of the decision in Young. Specifically, the Agency should identify employees who were similar in their ability or inability to work who were provided accommodations, and identify the different categories of workers the Agency accommodates. The Agency was also instructed to investigate whether other employees were allowed to use leave or leave-without-pay in lieu of sick leave without being terminated. The Commission noted that Complainant may also have a claim for denial of reasonable accommodation under the Rehabilitation Act, and advised the Agency to further develop the record regarding that matter. Waneta F. v. U.S. Postal Serv., EEOC Appeal No. 0120151508 (Feb. 10, 2017).

Agency Improperly Issued Second Decision Dismissing Complainant's Complaint. The Commission previously reversed the Agency's dismissal of the instant complaint and ordered the Agency to investigate the matter. The Agency subsequently issued another final decision dismissing the complaint on the grounds that Complainant raised the same matter in a grievance, this time including a copy of the relevant provisions of the collective bargaining agreement (CBA). On appeal, the Commission noted that the submission of the CBA was not relevant, because the complaint had already been remanded for an investigation. The Commission noted that it was unclear how the order to process the complaint could have been interpreted as a second chance for the Agency to meet its evidentiary burden, and ordered the Agency to complete its investigation of the claim within 60 calendar days. Abraham G. v. Dep't of Transp., EEOC Appeal No. 0120170976 (Feb. 9, 2017).

Attorney's Fees

Commission Modified Award of Attorney's Fees. The Commission denied Complainant's request for reconsideration of its prior decision; however, the Commission reopened the matter on its own motion to reconsider aspects of the attorney's fees and costs previously granted. The Commission concluded that Complainant was entitled to an additional $2,675.00 for work performed by one of his attorneys, and $65.92 in costs. Despite the Agency's assertion, evidence indicated that Complainant submitted documentation itemizing all hours of work performed on Complainant's case by the attorney, and it was unclear why the Agency did not calculate fees for the specified period. The Commission noted that the Agency did not contest the claimed hourly rate, and the time spent appeared reasonable. The Agency asserted that Complainant's requested attorney's fees for one attorney should be reduced to one-twelfth of the amount requested because Complainant only prevailed on one out of twelve claims. The Commission stated, however, that while Complainant prevailed on a single allegation of reprisal, Complainant's eleven other claims also alleged reprisal as a basis, and eight other allegations involved conduct perpetrated by the same supervisor. Because Complainant pursued his allegations under a united legal theory and they involved the same management official, the Commission found the claimed reduction in fees and costs was unreasonable. Adam F. v. Int'l Boundary & Water Comm'n, EEOC Appeal No. 0120142479 (Jan. 13, 2017).

Class Complaints

No Requirement to Notify Potential Class Members When Class Complaint Dismissed. Complainant filed a class complaint, but withdrew his request for class certification before the Administrative Judge (AJ) could rule on the matter. The AJ dismissed the class complaint and directed the Agency to resume processing the individual complaint. The Agency rejected the AJ's instruction to also notify members of the class of their right to initiate EEO counseling or file individual complaints. On appeal, the Commission stated that it has previously held that where class certification is denied and never certified, there is no regulatory requirement that an agency notify potential class members, whether named or not, of the dismissal of the class or of their right to file individual complaints. The Commission noted that the decisions upon which the AJ relied addressed the need to inform class members when a class has been decertified. Lynwood R. v. Dep't of Justice, EEOC Appeal No. 0720160025 (Jan. 11, 2017).

Compensatory Damages

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

Commission Increased Award of Damages to $110,000. The Commission found that the Agency's award of $30,000 in non-pecuniary damages to each of three Complainants was not sufficient to compensate them for discriminatory harassment. The Commission found that the Director's violation of Complainants' privacy by filming them while they used the bathroom significantly affected them. Each Complainant indicated that, in the years since these events, they continue to have feelings of anxiety and fear that they are being watched. Two Complainants still work in the same building where the incidents occurred and still must use the same bathroom where their privacy was violated. One Complainant averred that she still fears using public restrooms for fear of being recorded. Another Complainant similarly stated that she has a hard time using public restrooms and continues to feel compelled to check for recording devices. The third Complainant averred that she covers herself when she uses the bathroom or a dressing room for fear of being recorded, and checks smoke detectors and mirrors to make sure that her privacy is not being violated. In addition, all three Complainants expressed the continued negative impacts of the event, some three years later, on their ongoing sense of mental well-being and their trust of others. After careful consideration of the evidence of record, the Commission found that the Complainants' request of an award of $110,000 each for non-pecuniary compensatory damages was appropriate. Scarlet M., Maxima R., Sharolyn S. v. Dep't of the Navy, EEOC Appeal Nos. 0120162856, 0120162855, 0120162816 (Jan. 30, 2017).

Commission Affirmed AJ's Award of $95,000 in Compensatory Damages. The AJ awarded Complainant $95,000 in non-pecuniary compensatory damages after finding the Agency discriminated against Complainant in reprisal for prior EEO activity but not on the basis of race. On appeal, the Commission initially found that substantial evidence in the record supported the AJ's finding that Complainant failed to prove her claim of racial harassment. The Commission also affirmed the AJ's award of damages. The AJ indicated that Complainant experienced embarrassment, stress, loss of professional standing, one panic attack, and the exacerbation of her lupus symptoms for approximately 18 months. The Commission found that Complainant failed to present sufficient evidence to support a higher award to compensate her for the loss of her home, and the dissolution of her marriage. Cher B. v. Dep't Of Veterans Affairs, EEOC Appeal No. 0120140445 (Jan. 9, 2017).

Commission Increased Agency's Award of Compensatory Damages to $65,000. The Agency found that the Complainant was discriminated against based on disability because the Agency denied her a reasonable accommodation. The Agency awarded Complainant $2,048 in pecuniary damages and $30,000 in non-pecuniary compensatory damages. The Commission increased the award of pecuniary damages to $65,000 on appeal. The undisputed evidence showed that, as a result of the Agency's discrimination, Complainant suffered from stress, nervousness and anxiety. Complainant also had to have surgery on her wrist due to the Agency's failure to provide her with an ergonomic workstation. Complainant indicated that her hypertension was exacerbated by the stress that she experienced at work when her accommodation requests were denied. After her physician recommended therapy, Complainant met with her Pastor and went to church to help alleviate her stress. Complainant maintained that her personality has changed, and she has become quieter and does not go out as much. According to Complainant, many of her symptoms and conditions have persisted to the present, including her sleeplessness. She has difficulty turning the pages of books or magazines and writing her names on checks. The Agency acknowledged that Complainant credibly testified to the duration and emotional stress she experienced, and proved that the emotional distress was caused by the discriminatory conduct. The Commission found that an award of $65,000 was consistent with awards in similar cases. Dayle H. v. Dep't Of Veterans Affairs, EEOC Appeal No. 0120140883 (Jan. 17, 2017).

Commission Increased Agency's Award of Damages to $30,000. In a prior decision, the Commission found that the Agency denied Complainant reasonable accommodation and subjected him to a hostile work environment based on his disability. The Agency conducted a supplement investigation and awarded Complainant $12,000 in non-pecuniary compensatory damages. The Commission increased the award to $30,000 on appeal. Complainant stated that he suffered extreme stress and marital problems, exacerbation of his pre-existing conditions, abdominal pain, and isolation from his family. Complainant also indicated that he attempted suicide due to the discrimination. Complainant's wife corroborated his claim, and he submitted statements from several family members who indicated they witnessed Complainant's mental anguish due to the stress from his work situation. The Commission agreed with the Agency that Complainant failed to prove his claim for pecuniary damages. Dallas D. v. U.S. Postal Serv., EEOC Appeal No. 0120150319 (March 24, 2017).

Commission Affirmed AJ's Award of $25,000 in Damages. An AJ found that the Agency discriminated against Complainant based on her disability when it did not provide her with reasonable accommodation, and awarded her, among other things, $25,000 in compensatory damages. The Agency did not challenge the finding of discrimination, and the Commission affirmed the AJ's award of damages on appeal. Complainant suffered insomnia, depression, migraines, anxiety, humiliation, damage to professional reputation, diminished quality of life, damage to relationships with friends and family, and the aggravation of preexisting mental and physical conditions. The Commission found that the award was consistent with awards in similar cases. Minna Z. v. Dep't of the Air Force, EEOC Appeal No. 0720160009 (Mar. 10, 2017).

Commission Increased Agency's Award of Damages to $15,000. The Commission previously found that the Agency harassed Complainant because of her race, and the Agency awarded Complainant $10,000 in non-pecuniary compensatory damages. The Commission increased the award to $15,000 on appeal. Complainant stated that the harassment made her depressed, and she became isolated, lost her self-esteem and experienced crying spells. She also suffered from anxiety which exacerbated her arthritis. Complainant submitted statements from family members and neighbors in support of her claim. The Commission noted that the harassment occurred over less than two months, after which time Complainant successfully secured a transfer and indicated that her mood markedly improved. The Commission found that an award of $15,000 was appropriate given the evidentiary record. Wilda M. v. U.S. Postal Serv., EEOC Appeal No. 0120141087 (Jan. 12, 2017).

Commission Affirmed Agency's Award of $12,000 in Non-Pecuniary Damages. The Agency found that Complainant was discriminated against based on race and disability when she was denied reasonable accommodation, and awarded her $12,000 in non-pecuniary compensatory damages. The Commission affirmed the award on appeal. The Commission declined to consider new evidence submitted on appeal including a statement from Complainant's mother and a letter from Complainant's medical provider. This evidence was not submitted during the relevant time period to support her claim for damages. In addition, both Complainant and her husband attributed the exacerbation of Complainant's existing medical condition to the stress of processing her EEO complaint and actions which were not related to the denial of accommodation. Complainant was not entitled to damages for stress related to the EEO process, and was not entitled to damages associated with her claim of harassment for which she did not prevail. The Commission concluded that the Agency's award of $12,000 was supported by the record. The Commission also found that Complainant was not entitled to pecuniary damages. Starr R. v. Gen. Serv. Admin., EEOC Appeal No. 0120143031 (Jan. 12, 2017).

Commission Increased Agency's Award of Damages to $10,000. After the Commission found that the Agency violated the Rehabilitation Act when it disclosed Complainant's medical records, the Agency awarded Complainant $5,000 in non-pecuniary compensatory damages. The Commission increased the award to $10,000 on appeal. Complainant averred that her medical records were released to five people, including the Supervisor she had accused of discrimination. She stated that this caused her stress and embarrassment. Complainant also stated that she experienced loss of sleep, upset stomach, weight gain, and high blood pressure. She sought psychiatric counseling and was prescribed medication. Complainant's husband corroborated her claim, and the record included documentation from her doctor. The Commission also found that Complainant was entitled to pecuniary damages in the amount of $333.38 for co-pays and medication. Stacie D. v. U.S. Postal Serv., EEOC Appeal No. 0120140918 (Jan. 11, 2017).

Commission Affirmed AJ's Award of $8,000 in Non-Pecuniary Damages. Following a hearing, an AJ found that the Agency discriminated against Complainant based on her disability when it failed to accommodate her and sent her home from work. The AJ awarded Complainant $8,000 in non-pecuniary compensatory damages and the Commission affirmed the award on appeal. Complainant testified that she suffered chest pain and headaches as a result of the Agency's failure to accommodate her disability. She also experienced hair loss, sleep loss, loss of concentration, a strained marriage and bouts of crying. Complainant's son corroborated her claim. The record supported the AJ's decision. The Commission affirmed the Agency's back pay award, and found that Complainant was not entitled to front pay as substantial evidence showed that she was not available to return to work. Nicole T. v. Dep't of Def., EEOC Appeal No. 0120143019 (Jan. 11, 2017).

The Commission Affirmed Agency's Award of $5,000 in Damages. The Commission affirmed the Agency's award of $5,000.00 in non-pecuniary compensatory damages following a finding that Complainant was subjected to a per se violation of the Rehabilitation Act when her medical information was disclosed and she was required to complete a pre-employment physical examination. Complainant provided no medical documentation but stated that the examination was invasive and she experienced swelling and pain from the blood draw. Complainant's claim was supported by three witnesses who indicated that Complainant skipped family dinners, and was distraught, angry, embarrassed, disappointed and felt violated. The Commission found that the harm was not severe or long term and the award was consistent with awards in similar cases. Alena C. v. Dep't of Def., EEOC Appeal No. 0120152806 (Mar. 9, 2017).

Dismissals

(See also by category, this issue.)

Complaint Improperly Dismissed in Part. The Agency dismissed four allegations related to Complainant's suspension for failure to timely contact an EEO Counselor, and two allegations concerning the grievance process for failure to state a claim. On appeal, the Commission affirmed the dismissal of two matters concerning the grievance review and decision making process, finding that Complainant was attempting to lodge a collateral attack on the grievance process. The Commission reversed the dismissal of the remaining matters, however, noting that Complainant alleged she was not aware that other similarly situated employees were treated differently until a later date which was within 45 days of the date she initially contacted an EEO Counselor. The Agency did not address Complainant's explanation for the delay in initiating her complaint or provide any response on appeal. The Commission exercised its discretion under the regulations and found the matters were timely raised. Sylvia B. v. Dep't of Def., EEOC Appeal No. 0120170479 (Mar. 31, 2017).

Complaint Properly Dismissed as Being Previously Raised in Grievance Process. The Agency properly dismissed the complaint on the grounds that Complainant previously raised the matter in the grievance process. Complainant first filed a grievance regarding the denial of her request for telework, and the record showed that claims of discrimination were permitted to be raised under the collective bargaining agreement. While Complainant asserted that her EEO complaint was based upon race, the grievance and EEO complaint clearly concerned the same matter, and adding a basis to Complainant's EEO complaint did not alter her initial election of the grievance process. Beth G. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170983 (Mar. 30, 2017).

Complaint Improperly Dismissed. The Agency improperly dismissed Complainant's claim that her promotional pay increase was not adjusted. The Commission stated that Complainant's EEO contact was timely because, pursuant to the Lilly Ledbetter Fair Pay Act, it occurred within 45 days of her last paycheck. The Commission also found that the Agency improperly dismissed Complainant's claim that she was retaliated against when the EEO Counselor made negative comments regarding her participation in the EEO process. The Commission disagreed with the Agency's assertion that Complainant was alleging dissatisfaction with the processing of her complaint, stating that the Commission's regulations provide that an EEO Counselor shall not attempt in any way to restrain a person from filing a complaint. Therefore, Complainant stated a viable claim of retaliation. Nicolasa M. v. U.S. Postal Ser., EEOC Appeal No. 0120170652 (Mar. 24, 2017).

Agency Improperly Dismissed Claim of Harassment. A review of the EEO Counselor's report along with Complainant's formal complaint showed that Complainant alleged that the Agency subjected him to a pattern of discriminatory harassment and hostile work environment. While the Agency determined that the complaint consisted of two incidents, Complainant alleged that he was harassed on numerous occasions about his job performance and was ultimately disciplined for failing to perform his job. The Agency improperly treated the two incidents in a piecemeal manner, dismissing one for failure to state a claim and one for failure to timely contact an EEO Counselor. When the two incidents were viewed in the context of Complainant's claim of harassment, they stated a viable claim. Further, some of the incidents occurred within the 45-day limitation period preceding Complainant's initial EEO contact. Therefore, the Commission remanded the matter for processing. Cristobal A. v. U.S. Postal Serv., EEOC Appeal No. 0120170871 (Mar. 24, 2017); see also Ernie S. v. Dep't of the Navy, EEOC Appeal No. 0120170661 (Mar. 29, 2017) (the Agency improperly fragmented Complainant's hostile work environment claim, and dismissed one claim for failure to timely contact an EEO Counselor and the remainder for failure to state a claim. Complainant alleged that he was subjected to an ongoing hostile work environment in retaliation for prior EEO activity, and at least one incident occurred within the 45-day period preceding his EEO contact); Stacie D. v. Dep't of the Army, EEOC Appeal No. 0120170925 (Mar. 14, 2017) (the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment and dismissed some claims for failure to state a claim and some claims for failure to timely contact an EEO Counselor. A fair reading of the formal complaint reflected that Complainant claimed that she was subjected to a series of related incidents of harassment by various Agency officials, some of which occurred within the 45 days preceding her EEO contact. Therefore, the dismissal was improper because Complainant alleged a cognizable claim of harassment that was timely raised); Arlette W. v. Dep't of the Army, EEOC Appeal No. 0120162589 (Jan. 5, 2017) (Complainant alleged a number of incidents that, when viewed together, were sufficiently severe or pervasive to state a viable hostile work environment claim. In addition, some of the incidents occurred within the 45 days preceding Complainant's EEO contact).

Complaint Improperly Dismissed as Being Moot and for Failure to Timely Initiate EEO Contact. The Commission reversed the Agency's dismissal of one of Complainant's claims on the grounds that the matter was moot. Complainant claimed reprisal when she was issued a Formal Counseling. The Agency asserted that because the Formal Counseling was an internal memorandum not appearing in Complainant's personnel file it would have no effect, and because Complainant left her position at the facility the action would be unlikely to recur. The Commission agreed with Complainant that the Formal Counseling could be used against her in future actions. Furthermore, the Agency failed to provide evidence that Complainant ceased working at the facility. The Commission also found that the Agency improperly dismissed a second claim for failure to timely contact an EEO Counselor, stating that Complainant initiated EEO contact within 45 days of suspecting discrimination. Myung S. v. Dep't of the Navy, EEOC Appeal No. 0120162772 (Feb. 16, 2017).

Complaint Improperly Dismissed for Alleging a Proposed Action and Untimely EEO Contact. Complainant filed a formal complaint alleging unlawful employment discrimination based on age after being informed that he would have to return to his permanent position in another state. The Agency dismissed the complaint for failure to timely initiate EEO counseling and for alleging a proposed action. On appeal, the Commission found that Complainant's complaint did not involve a proposed action, given that the Agency informed the Complainant of its final decision that he must return to his permanent position. Additionally, the Commission found that the complaint was timely initiated given that Complainant sought counseling prior to the effective date of the personnel action. Jospeh D. v. Dep't of the Treasury, EEOC Appeal No. 0120150776 (Feb. 9, 2017).

Agency Dismissal of Complaint on Grounds of Mootness Improper. Complainant filed a formal complaint alleging discriminatory hiring and promotion on the bases of sex and reprisal. Complainant initially accepted a temporary position and continuously sought a permanent position with the Agency, but was passed over multiple times in favor of male co-workers. She was repeatedly promised a full-time position by supervisors only to have those offers rescinded. Eventually, Complainant was converted to permanent status. The Agency dismissed her complaint reasoning that the matter was moot once Complainant was converted to a permanent employee. On appeal, the Commission noted that a complaint is only moot if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. The Commission noted that it is well established that a rescinded employment offer addresses a claim of personal injury or harm to a term, condition, or privilege of employment for which there is a remedy. The Commission found that while it could be said with assurance that Complainant's offer of a full-time position would not be rescinded, the second prong was not satisfied. Complainant continued to suffer the harms resulting from the delay including lost seniority, retirement, leave accrual, and income differential, for which there was a remedy. The Commission found that Complainant provided sufficient evidence to warrant an investigation and accordingly remanded the matter to the Agency. Erika H. v. Dep't of the Army, EEOC Appeal No. 0120162843 (Feb. 7, 2017).

Agency Improperly Dismissed Complaint for Failure to Cooperate. The Commission reversed the Agency's decision dismissing Complainant's complaint for failure to cooperate. The Agency requested that Complainant clarify her complaint and provide the name of her representative on 3 occasions or face dismissal of her complaint. Complainant failed to respond to the Agency's request. The Commission found sufficient information in the record to define and investigate the complaint. Specifically, Complainant alleged that she was subjected to harassment by a specific official and included several incidents to support her claim. The Commission found no evidence of contumacious conduct by Complainant. Zonia C. v. Dept. of the Army, EEOC Appeal No. 0120170268 (Jan. 4, 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

Commission Affirmed AJ's Finding of Age Discrimination Regarding Non-Selections. Complainants filed EEO complaints alleging that the Agency discriminated against them based on age when they were not selected for Claims Representatives positions. After holding a hearing, the AJ found that Complainants established that the Agency's legitimate, nondiscriminatory reasons were a pretext for age discrimination. In finding that Complainants established pretext, the AJ reasoned that the Agency evaluated Complainants based solely on an exam score and did not consider their qualifications, job performance, appraisals, or experience with the Agency. On appeal, the Commission found that substantial evidence in the record supported the AJ's finding of age discrimination. The Commission stated that the Agency used the exam as a way to screen out internal employees and recruit younger external hires for Claims Representative positions. The Commission also noted that the Agency later hired younger external applicants from local colleges noncompetitively without using the exam. The Agency failed to show that Complainants would not have been selected for the positions even absent discrimination. The Agency was ordered, among other things, to place each Complainant into a Claims Representative position in a mutually acceptable location with appropriate back pay and benefits. Marine V., et al. v. Soc. Sec. Admin., EEOC Appeal No. 0720170001, et al. (Mar. 20, 2017).

Under the Rehabilitation Act

Denial of Reasonable Accommodation Found. The Commission found that the Agency discriminated against Complainant based on disability when it denied her reasonable accommodation for her condition. Medical documentation in the record supported a finding that Complainant was an individual with a disability because she had a physical impairment that substantially limited her in the major life activity of carrying. Further, the Agency conceded in its final decision that Complainant was otherwise qualified, and could perform the essential functions of her position, with or without reasonable accommodation. The Commission found that the Agency did not provide Complainant with the requested accommodation, not to carry a satchel, or with an alternative accommodation. Although Agency policy required carriers to carry the satchel, the Commission noted that the Agency could have modified the policy and prior managers allowed Complainant to deliver mail without carrying a satchel for five years. Complainant offered alternative suggestions including using a push cart, carrying the satchel on her arm, and wearing the satchel around her hips. Nevertheless, the Agency insisted she carry the satchel on her shoulder. The Commission stated that offering Complainant the alternative of carrying the satchel on her shoulder was not an effective accommodation because her medical documentation explicitly stated she was unable to carry the satchel due to a neck injury. The Agency did not show that allowing Complainant to not carry the satchel on her shoulder would cause an undue hardship, and Agency policy explicitly allowed for the use of a double satchel, which could be worn around the waist. The Commission affirmed the Agency's finding that Complainant failed to prove her claim of discrimination with regard to a suspension. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and pay her appropriate back pay and benefits. Eileen S. v. U.S. Postal Serv., EEOC Appeal No. 0120150199 (Mar. 24, 2017).

Commission Finds Agency's Application of "Sit and Reach" Component of Physical Fitness Test Discriminatory. Complainant filed an appeal from the Agency's final decision finding that he was not discriminated against based on his disability when he was terminated from his Wildlife Refuge Specialist position. A medical examination certified that Complainant was qualified and able to perform the duties of the position in accordance with Agency standards and guidelines. Complainant passed all components of the fitness test except the "sit and reach" requirement due to his lack of flexibility resulting from prior back and neck injuries. On appeal, the Commission found that Complainant was a qualified individual with a disability, and that the Agency was unable to demonstrate that the "sit and reach" requirement was a job-related business necessity. The record supported Complainant's assertion that he could perform all the physical duties of the position and Complainant successfully performed the duties of the position for many months before he was terminated. No management official articulated how the requirement related to any of the functions of the position, and the requirement was waived for a similarly situated individual in another region. In addition, the Agency did not provide any evidence suggesting that Complainant posed a direct threat to the health and safety of himself or others. Accordingly, the Commission found that the Agency discriminated against Complainant based on his disability when it terminated him from his position. The Agency was ordered, among other things, to offer Complainant a permanent Wildlife Refuge Specialist position or an equivalent position, with appropriate back pay and benefits, and investigate his claim for damages. Elden R. v. Dep't of the Interior, EEOC Appeal No. 0120122672 (Feb. 24, 2017).

Disability Discrimination Found. The Commission found that the Agency discriminated against Complainant on the basis of her disability when it asked Complainant to remove a Crown of Thorns from her cubicle. The Agency did not dispute Complainant's assertion that other employees were allowed to have religious symbols at their desks. While a supervisor stated that Complainant's co-workers complained, the Agency did not present any statements from co-workers to corroborate this assertion. The Commission found that the Agency asked Complainant to remove the item because of the perception that Complainant was "unstable" and the Crown could be used as a weapon. Based upon the record, however, the supervisor had no more reason to believe that Complainant would become violent than any other employee. The Commission concluded that the supervisor's decision appeared grounded in stereotypes about people with mental health conditions, and the Agency conceded that it directed Complainant to remove the Crown based upon the alleged perception by co-workers about Complainant's condition. The Commission affirmed the Agency's finding that it did not deny Complainant a reasonable accommodation, and found that Complainant failed to prove her claim of harassment. The Agency was ordered, among other things, to investigate Complainant's claim for compensatory damages, take steps to ensure that all disability discrimination ceases and desists in the facility, permit Complainant to display the Crown of Thorns in her workspace, and provide training for management officials at the facility. Matilde M. v. Soc. Sec. Admin., EEOC Appeal No. 0120140147 (Jan. 17, 2017).

Under Title VII

Religious Harassment Found. After a hearing, an AJ issued a decision finding that Complainant proved she was subjected to religious harassment when, during an e-mail conversation about Complainant's work hours and schedule, her supervisor made a reference to being a "Hebrew slave." The Commission affirmed the AJ's decision, noting that it was undisputed that the supervisor sent the e-mail with the comment to Complainant. The Commission found that the use of the term "Hebrew slave" was unwelcome because the term "Hebrew" sometimes was considered archaic or offensive when used to generally refer to contemporary Jewish persons, and coupled with the word "slave," was particularly negative and offensive to a Jewish person. Additionally, the term "Hebrew slave" pertained specifically to Jewish persons, and as such, was inherently based on religion. The AJ properly concluded that supervisors should know that Jews have been subjected to genocide, anti-Semitism and slavery, and that workplace jesting regarding slavery in reference to a specific protected group which has experienced slavery was "profoundly inappropriate." With regard to the Agency's liability, the Commission noted that the anti-harassment policy in the record was issued months after the incident, and there was no evidence detailing how the policy was disseminated, or that Complainant was specifically provided with a copy of the policy. Thus, under the standards of vicarious liability, the Agency was liable for the supervisor's harassment because there was no evidence that the Agency exercised reasonable care to prevent and correct the harassment, or that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities. The Commission affirmed the AJ's determinations with respect to remedies and ordered the Agency, among other things, to pay Complainant $10,000 in proven non-pecuniary compensatory damages, and $10,980 in attorney's fees. Lashawna C. v. Dep't of Labor, EEOC Appeal No. 0720160020 (Feb. 10, 2017).

Under Multiple Bases

Sexual Harassment and Retaliation Found. Following a hearing, the AJ found that the Agency subjected Complainant to sexual harassment and retaliation. The Commission affirmed the AJ's findings on appeal. Assuming, arguendo, that the Unit Leader (S1) was a co-worker rather than a supervisor, the Commission found that the Agency was still liable for S1 's actions because it knew about S1 's conduct and did not take immediate and appropriate corrective action. Specifically, while the Agency took measures to stop the harassment, it did not take any action to correct its effects on Complainant or ensure that similar sexual harassment by another employee did not take place. The Commission agreed with the AJ that although the Agency promptly removed S1 from the workplace, it did not take any action to prevent further retaliatory harassment. In addition, the Agency did not communicate to or educate the rest of the staff that sexually harassing conduct was against Agency policy and would not be tolerated. The Commission concluded that the AJ's findings were supported by substantial evidence in the record. The Commission rejected the Agency's assertion that the "but for" standard articulated in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013) applied to Complainant's retaliation claim, stating that the Commission has previously held that the standard does not apply to retaliation claims by federal sector employees. The Agency was ordered, among other things, to issue Complainant an "Outstanding" performance evaluation, and pay proven compensatory damages and attorneys' fees. Heidi B. v. Dep't of Homeland Sec., EEOC Appeal No. 0720140004 (Feb. 2, 2017).

Retaliation

Commission Affirmed AJ's Finding of Retaliation. Complainant filed a complaint alleging, inter alia, that he was subjected to reprisal discrimination when the Deputy Commander sent an e-mail containing information about Complainant's convictions to Complainant's new duty station. The AJ issued a decision on summary judgment finding that the Agency retaliated against Complainant when it took that action. The AJ noted that the Deputy Commander was not required to report this information and had no reason to reach out to officials at Complainant's new duty station. The AJ concluded that Deputy Commander contacted Complainant's duty station in order to interfere with Complainant's employment. On appeal, the Commission affirmed the AJ's finding of retaliation. The Chief Information Officer stated that he could see no reason for Deputy Commander to send the e-mail through unofficial channels, especially because the e-mail was unsecured and contained Complainant's personally identifiable information. The Commission found it more likely than not that the Deputy Commander was motivated by unlawful retaliatory animus when she sent the e-mail. The Commission affirmed the AJ' findings that Complainant failed to prove his claims of race and sex discrimination, or his additional claim of retaliation. The Agency was ordered, among other things, to pay Complainant $2,000 in proven compensatory damages and provide training for the responsible officials with a specific emphasis on retaliation. Clemente M. v. Dep't of the Army, EEOC Appeal No. 0720140015 (Mar. 16, 2017), request for reconsideration denied EEOC Request No. 0520170273 (June 27, 2017).

Official Time

Commission Affirmed Agency's Decision Denying Official Time. In a previous decision, the Commission ordered the Agency, among other things, to issue a decision addressing Complainant's claim that he was denied official time. After investigating the matter, the Agency determined that Complainant was not entitled to official time for the requested period because he was not in a duty status. The Commission affirmed the Agency's decision on appeal. The Commission noted that employees are entitled to a reasonable amount of official time to present a complaint or respond to Agency requests for information "if otherwise on duty." In this case, Complainant did not dispute the Agency's assertion that he was not in a duty status or show that he was otherwise on duty. Romeo K. v. U.S. Postal Serv., EEOC Appeal No. 0120150118 (Feb. 7, 2017).

Remedies

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

Remedies Discussed. The Agency fully implemented the AJ's finding that Complainant was discriminated against on the basis of race when she was not selected for a Lead Supervisory Social Worker position. Complainant ultimately appealed to the Commission, asserting that she was not awarded back pay, or a promotion to a Lead Supervisory Social Workers position, and Agency officials had not been disciplined. The Commission found that the Agency, in issuing verbal instructions and counseling the responsible officials, was in compliance with the portion of the final decision requiring it to consider disciplinary action. However, the Agency was not in compliance with that portion of the decision requiring it to calculate and award Complainant back pay and offer Complainant an available Lead Supervisory Social Worker position or substantially equivalent position. The Agency did not present sufficient evidence to show how it calculated back pay, and the Agency did not present sufficient evidence to suggest that the Senior Supervisor Social Worker position it offered Complainant was the equivalent to a Lead Supervisory Social Worker position. Nevada R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140904 (Jan. 18, 2017).

Remedies Discussed. The Agency agreed with the AJ's finding that it retaliated against Complainant when it gave her a poor performance rating, and rescinded her alternate work schedule (AWS). The Agency filed an appeal with the Commission challenging the AJ's award of relief. The Commission initially concluded that the AJ properly found that Complainant had to take leave to complete her Master's program after the Agency rescinded her AWS. The Commission agreed with the Agency, however, that Complainant was not entitled to monetary compensation, and instead should have been awarded restoration of leave. The Commission also found that the AJ's award of back pay and interest was improper because Complainant did not demonstrate that she suffered any loss of income or additional compensable benefits due to the reprisal. The Commission affirmed the AJ's award of $65,000 in non-pecuniary compensatory damages based upon testimony and medical documentation, showing that Complainant experienced emotional harm and mental anguish including stress, anxiety, nervousness, increasingly frequent migraines, and loss of enjoyment of life. The Commission noted that while the parties did not dispute the AJ's award of attorney's fees, Complainant was also entitled to reimbursement for costs associated with deposition transcripts and travel and mailing costs. Finally, the Commission concluded that the AJ properly ordered the Agency to inform all Headquarters managers and supervisors, in writing that reprisal actions can result in disciplinary action. Contrary to the Agency's assertion, the AJ did not mandate individual notices, and a memorandum to all managers and supervisors would satisfy the AJ's order without being unduly burdensome. Jackqueline G. v. Dep't of Justice, EEOC Appeal No. 0720160022 (Jan. 11, 2017).

Petitioner Entitled to Reimbursement for Leave Used Due to Discrimination. The Commission granted Petitioner's petition for enforcement, finding that the Agency failed to comply with the Commission's order to compensate Petitioner for leave without pay used as the result of the Agency's retaliation. In its previous decision, the Commission ordered the Agency to calculate the monetary and/or retirement value of Petitioner's leave from the time he left the workplace until his resignation, and pay Petitioner the equivalent monetary value of that leave. The Agency did not previously contest Petitioner's request for compensation for the leave he used due to the retaliatory harassment. The Commission stated that paying Petitioner the monetary value of the leave constituted make-whole relief, and, contrary to the Agency's assertion, the relief was available even though Petitioner did not prevail on a constructive discharge claim. Donny F. v. Dep't of Homeland Sec., EEOC Petition No. 0420160031 (Jan. 5, 2017).

Sanctions

AJ Did Not Abuse Her Discretion in Dismissing Hearing Request as Sanction. The Commission found that the AJ did not abuse her discretion in ordering the dismissal of Complainant's hearing request as a sanction for Complainant's failure to cooperate with a discovery order. The Commission noted that an AJ has broad authority to regulate the conduct of a hearing. Complainant asserted that she was hospitalized due to a medical condition and was unable to complete the interrogatories by the deadline. Neither Complainant nor her attorney, however, informed the AJ or the Agency of the two-day hospital stay until more than three weeks after the deadline for submitting the interrogatories had passed. The Commission affirmed the Agency's finding that Complainant failed to prove her claims of harassment and disparate treatment discrimination. Dona A. v. Soc. Sec. Admin., EEOC Appeal No. 0120150376 (Mar. 29, 2017).

Commission Affirmed AJ's Dismissal of Complaint as Sanction. The Commission affirmed the AJ's dismissal of Complainant's entire complaint for contumacious conduct. Complainant's contumacious conduct had gone on for several years, and included posting a confidential video deposition on youtube.com despite a protective order to the contrary; falsely accusing Agency Counsel of a history of accusing him of contumacious conduct; reporting Agency Counsel to the bar association; filing a meritless motion for sanctions against the Agency; and engaging in ex parte communications. The AJ noted that Complainant had a history of contumacious conduct before three other AJs that continued despite the imposition of similar sanctions. Therefore, a more severe sanction was required in this case. Edmond C. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170879 (Mar. 7, 2017).

AJ Erred in Excluding Evidence in Case of Class Certification. In a prior decision, the Commission reversed the Agency's decision not to implement the AJ's decision to certify the class and determined that certification was appropriate. The matter was remanded to the AJ for continued processing, and after the close of discovery, the Agency filed a motion to decertify the class and a motion for summary judgment. The Class Agent submitted 15 affidavits from putative class members, as well as a report from the Class Expert in response to the Agency's motion. The AJ, as a sanction, excluded the evidence submitted by the Class Agent, and issued a decision decertifying the class. On appeal, the Commission noted that a sanction must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. In this case, the sanction imposed played a dispositive role in the AJ's decision to decertify the class. The Commission found that the sanction was overly harsh. The excluded evidence was submitted in response to the Agency's motion for summary judgment and was not available to the Class Agent during discovery. The Class Agent, as the non-moving party, was entitled to submit affidavits not drafted during discovery in order to oppose the Agency's assertion that there was no dispute of material fact. The Agency did not establish that it suffered sufficient prejudice to justify the sanction imposed by the AJ, and the Commission found that a more tailored approach to the situation would have been to reopen a limited discovery period. The Commission vacated the decision to decertify the class and remanded the matter for continued adjudication on the merits. Charley L., et al. v. Dep't of Labor, EEOC Appeal No. 0120091988 (Feb. 23, 2017);request for reconsideration denied EEOC Request No. 0520170312 (May 12, 2017).

Commission Issued Default Judgment Against Agency as Sanction. According to the record, the Agency did not begin an investigation until 322 days after the complaint was filed, and ultimately issued a decision finding no discrimination in the matter. The Commission's regulations require an agency to complete an investigation of a formal EEO complaint within 180 days unless the parties agree to extend the period for not more than an additional 90 days. While Complainant agreed to an extension, the investigation was not completed until well beyond the extension period, and the Agency provided no explanation for the delay in initiating and completing the investigation. The Commission stated that compliance with the timeframes set forth in the regulations is not optional, and noted that the Agency had been subjected to default judgments three times for the same infraction of failing to initiate an investigation within 180 days. The Commission found that the Agency's extraordinary tardiness undermined the integrity and effectiveness of the EEO process, and deprived Complainant of the opportunity to participate in the investigation. Therefore, the Agency's delay warranted the severe sanction of granting default judgment in favor of Complainant. While the Commission found that the record did not show that the alleged incidents were sufficiently severe or pervasive to establish a discriminatory hostile work environment, there was sufficient evidence to support Complainant's entitlement to relief for the denial of compensatory time. The Agency was ordered, among other things, to investigate the claim for compensatory damages, and provide appropriate training for EEO managers and staff. Jeremy S. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142917 (Feb. 9, 2017).

Agency's Failure to Timely Complete EEO Investigation Results In Default Judgment. On appeal, Complainant argued, among other things, that the Commission should sanction the Agency for failing to conduct a timely investigation of her complaint by issuing a default judgment in her favor. The record reflected that Complainant filed her EEO complaint on September 26, 2011, and on June 8, 2012, Complainant requested a hearing before an AJ when she did not receive the Agency's report of investigation (ROI) after 180 days. The Agency began its investigation on July 30, 2012, and completed its investigation on August 27, 2012. The Commission found that the Agency did not comply with the Commission's regulations, and did not show good cause for its actions when it failed to complete its investigation within 180 days of the filing of Complainant's complaint. The Commission further found that the most appropriate sanction was a default judgment in Complainant's favor. However, Complainant was not entitled to individual relief because substantial evidence supported the AJ's finding that the Agency's actions were not based on Complainant's race or sex. Harriet M. v. Dep't of Def., EEOC Appeal No. 0120141484 (Jan. 30, 2017); request for reconsideration denied EEOC Request No. 0520170232 (May 25, 2017).

No Clear Error by AJ in Not Sanctioning Agency. Following a hearing, the AJ found that there was no nexus between Complainant's protected activity and his non-selection, and that Complainant failed to prove that the Agency's reason for the action was a pretext for retaliation. The Commission found that there was substantial evidence to support the AJ's finding of no discrimination. The Commission further found no clear error on the AJ's part in not sanctioning the Agency for failing to preserve its selection documents. In this case, there was significant corroborated testimony at the hearing as to the reason Complainant was not selected, and the testimony was supported by other documentary evidence in the record, including the applications. The Commission reminded the Agency, however, of the requirement to maintain personnel or employment records. Adolfo O. v. Dep't of Homeland Sec., EEOC Appeal No. 0120140799 (Jan. 11, 2017).

Commission Affirmed AJ's Dismissal of Complainant's Complaint. The Commission affirmed the AJ's dismissal of Complainant's complaint as a sanction for contumacious conduct. The Commission noted that the AJ had previously sanctioned Complainant for similar conduct. Here, Complainant, an attorney, failed to respond to the Agency's discovery requests for more than one year, caused the Agency to cancel scheduled depositions multiple times, and destroyed relevant evidence by deleting e-mails. Alfred S. v. Soc. Sec. Admin., EEOC Appeal No. 0120140900 (Jan. 6, 2017).

Settlement Agreements

Breach of Settlement Found. The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would provide her with assistive technology and technical assistance. Complainant subsequently notified the Agency that there were technical difficulties, and the Chief Information Officer (CIO) failed to respond to her and her supervisor's requests for assistance. On appeal, the Commission found that the Agency breached the agreement. The Agency was obligated to ensure that Complainant's computer monitors were properly set up to accommodate her conditions, and there was no evidence in the record that the Agency did so. Further, the agreement required that the Agency periodically reassess whether the accommodations were effective. There was no evidence that the CIO or Deputy CIO spoke with Complainant about her concerns or checked her computer to determine the cause of the technical difficulties she reported. The record did not show that the Agency provided Complainant with alternate accommodations or intermediate relief. Therefore, the Commission ordered the Agency to specifically implement the terms of the agreement. The Commission also stated that, as a prevailing party, Complainant was entitled to attorney's fees and costs associated with her appeal, but that the Commission's regulations do not provide for an award of compensatory damages for a breach of settlement. Cherilyn C. v. Dep't of Energy, EEOC Appeal No. 0120170497 (Mar. 27, 2017).

Settlement Agreement Voidable Due to Mutual Mistake and Violated the OWBPA. Complainant and the Agency entered into a settlement agreement that provided, among other things, that the Agency would initiate the restoration of the necessary amount of sick leave so that Complainant would retire with a balance equivalent to one year in addition to her other years of service. When the Agency attempted to implement the agreement, it was advised that crediting sick leave beyond what an employee could have earned while employed was considered an inappropriate use of retirement benefits. Complainant did not dispute that the term of the agreement at issue violated federal law and that the parties made a mutual mistake in including it. Therefore, the term was unenforceable and the Commission agreed with the Agency that the provision was void. The settlement agreement also violated the Older Workers' Benefits Protection Act's (OWBPA) by including a tender back requirement as a condition for alleging breach. Further, the OWBPA requires that a waiver of an age discrimination claim be "knowing and voluntary," which includes the requirement that such waivers be free of mistakes of material fact. The Commission stated that because the mutual mistake regarding the sick leave provision was material and the agreement contained other valuable consideration, the agreement was voidable. Complainant was to, therefore, be given the option of either accepting the agreement without the sick leave provision, or voiding the entire agreement and having her complaints reinstated without being required to tender back the other benefits and money she received from the Agency. Franchesca V. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170632 (Mar. 23, 2017).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement which provided, among other things, that Complainant would "always have the start time of 7:45 am." The Commission found that the Agency breached the agreement when it changed Complainant's start time. While the Agency asserted that it changed Complainant's start time due to a change in circumstances, the Commission found no ambiguity in the agreement. Clearly, the language of the agreement meant that Complainant's start time would "always" be 7:45 regardless of the circumstances. The Commission has held that, in cases in which an individual bargains for a position without any specific terms as to length of service, it would be improper to interpret the reasonable intentions of the parties to include placement in a particular position forever. Under the circumstances in this case, however, the Agency agreed to always provide Complainant with the specific start time. The Agency was ordered to specifically comply with the terms of the agreement and return Complainant to the agreed upon 7:45 starting time. Lenita T. v. U.S. Postal Serv. EEOC Appeal No. 0120170679 (Feb. 23, 2017).

Commission Finds Settlement Agreement Void for Lack of Consideration. The Agency and Complainant entered into a settlement agreement stipulating that the Agency would withdraw an offer of a Customer Care Agent position, and search in good faith for a job within Complainant's restrictions. The Agency then offered Complainant the Customer Care Agent position again, averring that the position was within Complainant's restrictions and that it did not breach the agreement. The Commission found that the agreement was void for lack of consideration because Complainant received nothing beyond what she was already entitled to as an employee. Complainant was denied a reasonable accommodation when the Agency again offered her the same position. Accordingly, the settlement agreement was void, and the Agency was ordered to reinstate Complainant's EEO complaint. Doria D. v. U.S. Postal Serv., EEOC Appeal No. 0120161094 (Feb. 23, 2017).

Breach of Settlement Found. The parties entered into a settlement agreement that provided, among other things, that the Agency would pay Complainant $3,000 in compensatory damages within 60 days. In addition, the Agency agreed to credit 497 hours of sick leave to Complainant for future use. On appeal, the Commission found that the Agency breached the agreement when it did not credit Complainant with the sick leave hours for 15 months. While the agreement did not provide a specific time for the Agency to credit the sick leave, the Commission stated that 15 months was unreasonable. The Agency was ordered to notify the Complainant of her option to either reinstate her claim or to elect specific performance of the agreement. Stella K. v. U.S. Postal Serv., EEOC Appeal No. 0120160137 (Feb. 9, 2017).

Breach of Settlement Found. Complainant alleged that the Agency breached a settlement agreement which stated that the Agency would perform route inspections for Complainant and a co-worker. The Agency asserted that the current Station Manager attempted to cure the breach when she learned of it but was unable to do so because Complainant was off work due to an injury. The Commission initially noted that when a settlement agreement does not provide a time frame for performance, performance is required within a reasonable amount of time. In this case, Complainant worked for approximately eight months after the parties executed the settlement agreement before sustaining an injury that caused him to be off work. Complainant stated that he reminded one of the management officials who signed the agreement of the route inspection almost weekly. The Commission found that eight months was not a reasonable amount of time for the Agency to comply with the terms of the agreement, and the fact that Complainant was off work did not absolve the Agency of the breach. The Agency was ordered to notify Complainant of the option to return to the status quo prior to the execution of the agreement or to allow the terms of the agreement to stand. Clayton C. v. U.S. Postal Serv., EEOC Appeal No. 0120150920 (Feb. 7, 2017).

Commission Found Agency in Breach of Settlement Agreement. Complainant alleged that the Agency was in breach of two provisions of a settlement agreement requiring the Agency to refer Complainant's initial application for consideration as a candidate for an RN Case Manager (Gastroenterology) position, and to select from the next five ranked applicants should the first-choice applicant decline the position. The Agency attempted to cure the breach by submitting Complainant's application for an identical position with a later application deadline and different applicants. Based on the plain meaning rule, the Commission determined that the Agency failed to specifically perform its obligation under the terms of the agreement. The parties specifically identified a vacancy announcement in both provisions of the agreement, and the Agency was aware that identical positions could be listed under different vacancy announcement numbers at the time the parties entered into the agreement. Even though the position descriptions were identical, each vacancy announcement was advertised for a different application time frame, thereby garnering different applicant pools. While Complainant was not guaranteed an RN Case Manager position, the probability that she would be selected and the time of her selection was increased based on the application time frame and the applicant pool. The matter was remanded to the Agency for specific performance. Amie H. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120162734 (Jan. 17, 2017).

No Breach of Settlement Found. The Commission has held that where a settlement agreement provides for a position and does not specify the duration of that position, it is reasonable to assume that the parties do not intend that the position will last forever. Here, the Commission applied this rule where the settlement agreement was silent regarding the possibility of future reassignments. Given that the agreement in this case specifically stated, "The parties understand that there is no guarantee that the modified job will last forever or that the days off will stay the same as things may change. . . .," the Commission found that the Agency did not breach the agreement. In so finding, it noted that the terms of Complainant's modified job continued for approximately one and one-half years after the execution of the settlement agreement. Brandon D. v. U.S. Postal Serv., EEOC Appeal No. 0120150945 (Mar. 17, 2017).

No Breach of Settlement Found. The Commission affirmed the Agency's finding that it did not breach the settlement agreement requiring that Complainant be placed in a position at a particular location when, after 8 years, Complainant was designated to be moved to another location. The Commission held that the agreement did not specify a term of placement, or require Complainant to be allowed to remain at the location indefinitely. Further, there was no evidence of bad faith by the Agency. Susie K. v. Small Bus. Admin., EEOC Appeal No. 0120170341 (Mar. 9, 2017), request for reconsideration denied EEOC Request No. 0520170294 (June 22, 2017).

No Breach of Settlement Found. The Commission affirmed the Agency's finding that it did not breach the settlement agreement with Complainant which provided that Complainant would switch shifts with another employee. Complainant sought the shift change to perform a particular assignment on that shift. Later, the Agency moved the assignment to another shift. The Commission found no breach of settlement because only the shift change was specified in the agreement and there was no mention of the assignment. Avery R. v. Dep't of the Army, EEOC Appeal No. 0120170201 (Mar. 7, 2017).

Stating a Claim

Complainant Stated Viable Claim of Disability Discrimination. Complainant alleged that the Agency discriminated against him on the basis of disability when it decided not to post the position he had been detailed to for the past three years as a permanent bid position. Complainant asserted that he was told that the position was being abolished but later learned that the position had been posted and filled at other facilities. The Commission noted that generally an Agency's decision not to make a selection for a particular position does not render a complainant aggrieved. In this case, however, Complainant claimed that the Agency's decision not to fill the position was based upon a discriminatory motive, that is to prevent him from bidding on the position because of his disability. Therefore, the Commission found that the Agency's dismissal was improper. Francis A. v. U.S. Postal Serv., EEOC Appeal No. 0120170649 (Mar. 24, 2017); see also Kyle S. v. Dep't of the Navy, EEOC Appeal No. 0120162485 (Jan. 30, 2017) (the essence of Complainant's claim was that the Agency, through the named responsible management officials, intentionally prevented him from becoming an applicant for the position he had held as a contractor once it was converted to a federal civil service position. Complainant alleged that this was done because he would have been the best qualified candidate, since he had successfully performed in the position in question for the past three years, and that the named officials were motivated by discriminatory animus to favor a Caucasian woman. The Commission noted that when a complainant claims the agency discouraged him from applying for a position, or that the application process was secretive, to avoid giving the position to him for discriminatory reasons, he states a viable claim of employment discrimination).

Complainant Stated Viable Claim of Harassment. An examination of the EEO Counselor's report showed that, in addition to the claims referenced by the Agency, Complainant raised many more incidents of alleged harassment that occurred over a longer period of time. While each of the allegations by themselves may have appeared to concern relatively minor matters, the Commission found that when considering the incidents together, Complainant asserted sufficiently pervasive harassment to state a cognizable claim requiring further investigation. Therefore, the Agency's dismissal of the complaint was improper. Priscila F. v. U.S. Postal Serv., EEOC Appeal No. 0120170664 (Mar. 21, 2017).

Complainant Stated Viable Claim of Discrimination. The Agency dismissed Complainant's complaint for failure to state a claim, stating that Complainant had been subsequently removed, and the alleged discriminatory denial of training occurred before the removal. The Commission found that the Agency's dismissal was improper. Complainant's allegation that she was denied training occurred during her employment with the Agency. In addition, the Commission found that a fair reading of the complaint showed that it encompassed the removal as well. The EEO Counselor's Report referred to the Notice of Removal and Complainant sought to be returned to work in the formal complaint. Nakesha D. v. U.S. Postal Serv., EEOC Appeal No. 0120170728 (Mar. 3, 2017).

Complaint Stated Viable Claim of Sex and Disability Discrimination. The Commission held that Complainant, a transgender male, stated a cognizable claim of sex discrimination when he alleged that his Federal Employee Health Benefits insurance plan denied pre-authorization for nipple-areola reconstruction. This procedure is a type of gender reassignment surgery commonly used to treat gender dysphoria in transgender persons transitioning from female to male. The Commission has long held that since insurance coverage is a fringe benefit of employment, the denial of insurance coverage concerns a term, condition or privilege of employment. Further, Complainant's failure to appeal the matter through the Agency's regulatory process does not preclude him from asserting a viable EEO claim. The Commission noted that the dismissal of Complainant's disability claim would be improper because, without an investigation, Complainant did not have the opportunity to adduce evidence, and accordingly the record was silent as to whether Complainant's gender dysphoria resulted from a physical impairment. Darin B. v. Office of Pers. Mgmt., EEOC Appeal No. 0120161068 (Mar. 6, 2017).

Complainant Stated Viable Claim of Retaliation. The Agency improperly dismissed Complainant's complaint of retaliation. While the Agency asserted that Complainant stated in her affidavit that her EEO activity was not a factor in any of her claims, the Commission found that the questions asked during the partial investigation were confusing. Specifically, it was unclear whether the question asking about Complainant's "current EEO activity" was intended to include prior EEO activity or instead referenced the instant complaint. Further, in the statement submitted with her formal complaint, Complainant alleged that management was aware she intended to file the instant complaint, and, therefore, any actions that occurred after Complainant's announcement could state a claim of retaliation. The Commission stated that, in resuming the investigation, the Investigator should ask Complainant to clarify statements about her protected activity, and allow her to answer in a more narrative format. Hannah C. v. U.S. Postal Serv., EEOC Appeal No. 0120170352 (Feb. 22, 2017).

Complainant Stated Viable Claim of Race Discrimination and Retaliation. The Commission found that Complainant's claim that the Agency discriminated against her when a manager reported her to the U.S. Attorney's Office for allegedly having a patient's medical record in her possession stated a viable claim of discrimination and retaliation. Complainant asserted that the Agency's action ultimately led to the revocation of her nursing license. While the Agency asserted that the claim constituted a collateral attack on the adjudicatory process of the State Board of Nursing, the Commission stated that the complaint alleged discrimination and retaliation by Agency personnel, including the Manager's reporting Complainant in the first place. Margot Y. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170617 (Feb. 8, 2017).

Complainant's Allegation that the Agency Disclosed her Medical Records Stated Viable Claim. Complainant asserted that the Agency violated the Rehabilitation Act when it disclosed her medical condition to a U.S. Senator. The Rehabilitation Act provides that, with limited exceptions, information obtained regarding the medical condition or history of any employee shall be treated as a confidential medical record. By its terms, this requirement applies to confidential medical information obtained from "any employee," and is not limited to individuals with disabilities. Although not all medically-related information falls within this provision, documentation or information of an individual's diagnosis or symptoms is medical information that must be treated as confidential except in certain circumstances described in the Commission's regulations. Accordingly, the Commission found that Complainant has alleged a viable claim of unlawful medical disclosure, and dismissal was not appropriate. The Commission affirmed the dismissal of Complainant's claim regarding information provided to OWCP. Dominica H. v. U.S. Postal Serv., EEOC Appeal No. 0120170228 (Feb. 2, 2017).

Agency Found to Be Joint Employer. The Commission found that the Agency improperly dismissed Complainant's complaint, because the Agency sufficiently controlled the manner in which Complainant performed his job to qualify as his joint employer. An Agency Coordinator served as Complainant's first-line supervisor, set Complainant's work hours, kept a personnel file on Complainant, provided input into his performance appraisals, and approved his time cards. In addition, other Agency managers directly requested Complainant's assistance with a variety of work-related issues, and Complainant worked on Agency premises using Agency equipment for approximately 15 years. Terrence H. v. Dep't of Def., EEOC Appeal No. 0120170295 (Jan. 18, 2017); see also Gerald K. v. Dep't of the Army, EEOC Appeal No. 0120150250 (Mar. 23, 2017) (the Commission found that this dismissal was improper and that the investigation and analysis of the joint employer relationship was considerably deficient. The Agency failed to address more than two of the relevant factors for analysis of the joint employer relationship and focused only on the fact that Complainant performed work pursuant to a contract between the federal government and an outside organization, and the outside organization, not the federal government, controlled the pay and benefits of Complainant. However, the Commission found that the Agency was involved in approving leave requests, and an Agency official directly supervised Complainant. Agency officials set Complainant's working hours, provided his travel and granted him access to the Agency's classified computer networks. The parties do not dispute that Complainant worked on the Agency's premises. The Commission found that he Agency exercised sufficient control over the Complainant's position to qualify as his employer for the purpose of the EEO complaint process); Hortencia R. v. Dept. of the Army, EEOC Appeal No. 0120170723 (Mar. 9, 2017) (the Agency exercised sufficient controlled over Complainant's job such that it qualified as a joint employer. The staffing company had no on-site supervisor, and an Agency supervisor assigned complainant work. The Agency's Safety Officer gave Complainant a step-by-step procedure manual with his expectations; an Agency supervisor verbally counseled complainant; Complainant worked on Agency premises using Agency equipment during Agency operating hours; and the Agency possessed joint power to terminate Complainant's employment); Liz M. v. Dep't of Justice, EEOC Appeal Nos. 0120162835, 0120170199 (Feb. 2, 2017) (Complainant clearly alleged that the Agency's actions resulted in her termination from employment. She asserted that the Agency, and not the contractor, had the sole authority to provide her with a medical clearance to return to work. When she was denied that clearance, her termination followed. The Commission has found that when a staffing firm terminates a worker after an agency communicates it no longer wants the worker's services, the action supports a finding that the agency has joint or de facto power to discharge the worker. As the essence of this complaint concerns the denial of the medical clearance, a decision solely made by the Agency, the Commission found that the Agency possessed sufficient control over Complainant's position to qualify as her joint employer); but see Corie E. v. Dep't of Energy, EEOC Appeal No. 0120160842 (Mar. 23, 2017) (Complainant worked for the contractor auditing the quality of services provided by the Agency and did not perform any services for the Agency itself. Complainant received all of her assignments from the contract supervisor and worked under his direction on the contractor's premises and used the contractor's equipment. Further, the contractor paid Complainant's compensation and benefits); Priscilla F. v. Dep't of the Navy, EEOC Appeal No. 0120170656 (Feb. 22, 2017) (while Complainant worked on Agency premises using Agency tools, she was assigned tasks by a staffing firm supervisor who supervised her everyday work. The staffing firm set Complainant's schedule, approved her leave requests, and paid her wages and benefits. Further, Complainant's allegations show that the staffing firm was responsible for her removal. Therefore, the Agency did not sufficiently control Complainant's employment to be deemed a joint employer); Lu T. v. Dep't of Energy, EEOC Appeal No. 0120150914 (Jan. 13, 2017) (while Complainant performed her duties at an Agency facility using Agency equipment, the contractor was responsible for Complainant's schedule, salary, leave, insurance, retirement benefits, and tax documentation. The Agency's control over Complainant's position was essentially limited to where she performed her duties and the Agency did not exercise sufficient control over Complainant's position to qualify as a joint employer).

Complainant Stated Viable Claim of Retaliation. The Commission found that Complainant's allegation that her manager's attorney threatened her with a lawsuit stated a viable claim of retaliation. The Commission stated that being threatened with a lawsuit would clearly deter an employee from engaging in protected EEO activity. Dixie K. v. U.S. Postal Serv., EEOC Appeal No. 0120170226 (Jan. 11, 2017).

Agency Improperly Treated Complainant's Claim of Harassment in Piecemeal Manner. The Commission reversed the Agency's dismissal of Complainant's complaint for failure to state a claim. The Commission found that the Agency treated Complainant's harassment claim in a piecemeal manner as alleging to separate incidents, instead of recognizing the totality of her allegations of a series of harassing events over several years. When Complainant's claims were viewed in the context of her complaint of harassment, the matter stated a viable claim. Zula T. v. USPS, EEOC Appeal No. 0120162624 (Jan. 5, 2017).

Complaint Properly Dismissed as Collateral Attack on OWCP Process. The Agency properly dismissed Complainant's claim that she received only partial continuation of pay through the Office of Workers' Compensation Programs (OWCP). Ultimately, Complainant's concerns involved a dispute over receipt of payment that must be raised with OWCP. The Commission found that the EEO process was not the proper forum for Complainant to address her concerns regarding continuation of pay. Natalya B. v. U.S. Postal Serv., EEOC Appeal No. 0120170400 (Feb. 23, 2017), request for reconsideration denied EEOC Request No. 0520170268 (June 22, 2017).

Agency Properly Dismissed Complaint for Failure to State a Claim. Complainant filed a formal complaint alleging that while he accepted a pre-arbitration offer concerning his removal, he later became aware that a similarly situated comparator only received a Letter of Warning. The Commission found that Complainant's challenge to the Agency's conduct during pre-arbitration constituted an inappropriate attempt to use the EEO process to collaterally attack the Agency's actions during the arbitration process. Moreover, the discovery of a new comparator did not give rise to a new complaint. The Commission noted that the issue of Complainant's actual removal from Agency employment was pending on appeal in a separate complaint. Jonathon M. v. U.S. Postal Serv., EEOC Appeal No. 0120170300 (Jan. 11, 2017); see also Earlie C. v. U.S. Postal Serv., EEOC Appeal No. 0120170210 (Jan. 11, 2017) (the Commission affirmed the Agency's dismissal of Complainant's complaint alleging discrimination with regard to a grievance settlement, because the complaint was a collateral attack on the negotiated grievance proceeding).

Complaint Dismissed for Failure to State a Claim. Complainant alleged discrimination related to his dismissal from an active military position. The Commission's regulations do not apply to uniformed members of the military. The courts have held that, unlike civilian employees, military personnel with the reserve components are not covered under Title VII, and thus the Commission's jurisdiction does not extend to military personnel. Alvaro M. v. Dep't of Def., EEOC Appeal No. 0120162658 (Jan. 18, 2017), request for reconsideration denied EEOC Request No. 0520170216 (June 6, 2017).

Commission Affirmed Dismissal of Complaint. The Commission affirmed the Agency's dismissal of a Supervisor's claim that a union official brought false and unfounded claims against him. The Commission found that allowing Complainant's claim to go forward would have a chilling effect on the union official's exercising his right to bring claims, in his official capacity. Roland T. v. U.S.Postal Serv., EEOC Appeal No. 0120161209 (Jan. 5, 2017).

Summary Judgment

Summary Judgment Affirmed. The Commission affirmed the AJ's issuance of a decision without a hearing, stating that there was no genuine issue of material fact in the case. The Commission also affirmed the AJ's finding of no discrimination. While Complainant alleged a prima facie case of disparate treatment, the Agency provided legitimate non-discriminatory reasons for its conduct. Thus, the burden shifted back to the Complainant, who could not by preponderance of the evidence establish that the Agency's non-discriminatory rationale for its conduct was pretextual. The Commission found no connection between the alleged harassment and Complainant's race, sex, color or prior protected activity, and thus Complainant could not prove her claim. Trina C. v. Dep't of the Army, EEOC Appeal No. 0120150570 (Feb. 9, 2017).

Summary Judgment Affirmed. Complainant filed a complaint alleging, among other things, that she was subjected to sexual harassment by her Division Chief (Chief). Complainant specifically alleged that the Chief repeatedly contacted her requesting that she meet him after duty hours, and on one occasion coerced her into engaging in sexual relations with him. Following an investigation, the AJ issued a decision without a hearing finding no discrimination. On appeal, the Commission determined that the record evidence supported the AJ's finding that the Agency was not liable for the harassment. The Commission noted that the harassment did not involve a tangible employment action. Further, the Agency demonstrated that it exercised reasonable care to prevent and correct promptly any harassing behavior, and that Complainant unreasonably failed to take advantage of preventive or corrective opportunities. The Agency had an anti-harassment policy and Complainant admitted that she was trained on the Agency's policy. Although Complainant maintained that she was subjected to harassing conduct by the Chief since June 2010, she did not report his behavior until on or around May 25, 2012. Complainant subsequently testified that she suffered no further harassment after her report. Moreover, the Chief was removed from his position and issued a "No Contact" order. Therefore, the Commission found that the Agency took immediate action as described above to end the harassment. The Commission also found that Complainant failed to prove her claim of disparate treatment discrimination. Alvina S. v. Dep't of Def., EEOC Appeal No. 0120141853 (Jan. 30, 2017), request for reconsideration denied EEOC Request No. 0520170230 (May 25, 2017).

Summary Judgment Reversed. The Commission found that the AJ erred in issuing a decision without a hearing. The record contained conflicting evidence as to whether management violated Complainant's standing medical restriction when it required him to work on the dock. Complainant, a Mail Handler, averred that, on multiple occasions, management required him to stand for up to one hour continuously; that he asked management if he could sit; and that management did not respond or provide a chair. In contrast, management averred that it did not recall if Complainant requested a chair while on the dock; that it would have provided the chair if he had asked; that it instructed him not to work outside of his restrictions; that it told him to sit down if he needed to; and that the duty of scanning on the dock, as described in the limited-duty modified assignment offer, did not violate his restrictions. In addition, the record contained conflicting evidence as to whether management violated Complainant's simple grasping restriction when it required him to "tray up" movies. Complainant averred that management forced him to grasp and "tray up" movies continuously "for hours at a time" and "all day." In contrast, management averred that the duty of traying movies, as described in the offer, did not violate Complainant's restrictions. Therefore, the Commission found that there was a genuine issue of fact as to whether management forced Complainant to perform work that violated his work restrictions. The issue was material to the disposition of Complainant's complaint because it affected whether the Agency provided him with a reasonable accommodation. The Commission remanded this matter for a hearing. Calvin D. v. U.S. Postal Serv., EEOC Appeal No. 0120140022 (Feb. 2, 2017).

Timeliness

Complainant Timely Contacted EEO Counselor upon Learning of Discrimination. The Commission reversed the Agency's dismissal of Complainant's complaint alleging that the Agency discriminated against him when it issued him a Notice of Suspension for untimely EEO counselor contact. The Commission found that Complainant did not become aware of discrimination at the time the Notice was issued, but later when he learned a similarly situated co-worker committed the same act but was not disciplined. Complainant then contacted an EEO Counselor within 45 days of suspecting discrimination. Kenneth M. v. U.S. Postal Serv., EEOC Appeal No. 0120170876 (Mar. 10, 2017).

Complainant Initiated EEO Contact with Individual Logically Connected to Process. The Commission reversed the Agency's dismissal of Complainant's complaint for untimely EEO counselor contact because Complainant failed to timely contact the Agency's Office of Resolution Management (ORM), as required by the Agency's regulations. The Commission found Complainant's timely contact with the Agency's local EEO office at the facility where she worked was "logically connected" to the EEO process. Complainant exhibited an intent to begin the EEO process multiple times within the 45-day limitation period by telephone and e-mail. The Agency did not prove that Complainant was aware of the need to contact ORM. Marguerite W. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170318 (Mar. 9, 2017).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. The Agency dismissed Complainant's claim of discriminatory harassment, including the issuance of a notice of removal, for failure to timely contact an EEO Counselor. The Commission reversed the dismissal on appeal. It appeared from the record that the removal did not become effective on the date indicated in the notice and Complainant stated that she did not receive or learn of the notice until she initiated EEO counseling on her claim of harassment. The EEO Counselor's report noted that Complainant had been in absent-without-leave status. The Commission found that since the removal had not been effectuated when Complainant sought counseling the dismissal of that claim was improper. In addition, Complainant cited numerous dates of alleged harassment that occurred after the date cited by the Agency. Therefore, the entire complaint was remanded for processing. Debra R. v. U.S. Postal Serv., EEOC Appeal No. 0120170415 (Feb. 24, 2017).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. An AJ dismissed Complainant's complaint for failure to timely contact an EEO Counselor, noting that Complainant did not assert that he was unaware of the applicable limitation period. The Commission found, however, that the Agency did not have evidence to support that Complainant had actual or constructive knowledge of the limitation period. Complainant was an applicant for employment and did not have an opportunity to review the Agency's EEO material or receive EEO training. Therefore, the Commission found that Complainant's explanation that he was waiting for a decision from the Office of Personnel Management (OPM) before initiating an EEO complaint demonstrated a lack of knowledge of the EEO process. Complainant contacted an EEO Counselor only four days after receiving a decision from OPM. Thus, the Commission found that the dismissal of the complaint was improper. The Commission rejected the Agency's argument on appeal that the complaint should also be dismissed for failure to state a claim, noting that the Agency's assertion regarding the reason it rescinded an offer of employment went to the merits of the complaint. Felton A. v. Dep't of Justice, EEOC Appeal No. 0120170271 (Feb. 24, 2017), request for reconsideration denied EEOC Request No. 0520170255 (June 22, 2017).

Agency Improperly Dismissed Formal Complaint Due to Untimely EEO Counselor Contact. The Agency failed to analyze the timeliness of the instant EEO Counselor contact under the Lilly Ledbetter Fair Pay Act which applies to all claims of discrimination in compensation. Complainant's contact was within the requisite 45 days of receipt of her last paycheck, and was thus timely. The Commission reversed the Agency's final decision dismissing Complainant's formal complaint for untimely EEO Counselor contact and remanded the matter to the Agency. Selene M. v. Dep't of Transp., EEOC Appeal No. 0120170303 (Jan. 11, 2017).

Agency Improperly Dismissed Complaint Due to Untimely EEO Counselor Contact. Complainant filed a timely appeal from the Agency's final decision dismissing a formal complaint of hostile work environment discrimination. The Agency determined that the initial EEO Counselor contact was beyond the 45-day limitation period. The Commission noted on appeal that Complainant's harassment claim included two incidents specifically within the 45-day limitation period. The Commission has held that an entire claim of harassment is actionable as long as at least one incident occurred within the filing period. Accordingly, the Commission found that the contact with the EEO Counselor was timely, and reversed that Agency's final decision. Malcolm N. v. Soc. Sec. Admin., EEOC Appeal No. 0120162612 (Jan. 11, 2017).

Agency Improperly Dismissed Complainant for Untimely EEO Counselor Contact. The Commission found that Complainant satisfied the requirement that she timely initiate EEO contact by sending an e-mail to the Agency's Deputy Postmaster General, who was logically connected to the EEO process. The e-mail had a subject line reading "EEO Issues," demonstrating an intent to begin the EEO process within the 45-day period. The Commission also stated that Complainant claimed she was subjected to a hostile work environment, and various incidents comprising Complainant's claim occurred within the 45-day period. Therefore, Complainant's entire harassment claim was actionable. Sadie M. v. U.S. Postal Serv., EEOC Appeal No. 0120161299 (Jan. 4, 2017); request for reconsideration denied EEOC Request No. 0520170209 (May 4, 2017).

Attempting to Resolve Matter Through Human Resources Does Not Toll Limitation Period for Initiating EEO Contact. The Agency dismissed Complainant's complaint on the grounds that he failed to timely contact an EEO Counselor, and the Commission affirmed the dismissal on appeal. When asked by the EEO Counselor why he failed to initiate his EEO complaint within the 45-day limitation period, Complainant stated that he first tried to resolve the matter through the Human Resources Office. The Commission has consistently held that internal appeals or informal efforts to challenge an agency's adverse action do not toll the time limit to contact an EEO Counselor. Complainant failed to present any persuasive arguments or evidence warranting an extension of the limitation period. Melvin C. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170837 (March 21, 2017).

Complaint Properly Dismissed for Failure to Timely Contact EEO Counselor. The Commission found that the AJ properly dismissed Complainant's complaint for failure to timely contact an EEO Counselor. Complainant did not contact an EEO Counselor until almost six months after the effective date of her termination. The record showed that Complainant had engaged in prior EEO activity, and, as such, she knew or should have known of the 45-day limitation period. While Complainant filed a grievance challenging her termination, the Commission has consistently held that the use of Agency procedures, including union grievances, does not toll the time limit for contacting an EEO Counselor. Dotty C. v. Tenn. Valley Auth., EEOC Appeal No. 0120150689 (Feb. 9, 2017).

Complaint Properly Dismissed for Untimely EEO Counselor Contact. According to the record, Complainant did not initiate EEO contact for over seven years from the time she was assigned higher level duties. The Commission noted that Complainant had filed other EEO complaints and was presumed to know of the 45-day limitation period for contacting an EEO Counselor. While Complainant asserted that she feared reprisal, the Commission has repeatedly held that the mere fear of reprisal was not sufficient to extend the limitation period. The Commission has also held that a complainant must act with due diligence in the pursuit of her claim or the doctrine of laches may apply. Given that Complainant presented no persuasive arguments or evidence warranting an extension of the limitation period, the Commission found that the Agency properly dismissed the complaint for failure to timely contact an EEO Counselor. Joleen M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170329 (Jan. 11, 2017), request for reconsideration denied, EEOC Request No. 0520170167 (March 30, 2017).

Complaint Timely Filed. Complainant received a notice of right to file a formal complaint on July 14, 2016. The record showed that Complainant sent an unsigned formal complaint in an envelope postmarked July 25, 2016. The complaint was date stamped as received on July 28, 2016. Complainant then timely submitted a signed complaint after receiving a letter from the Agency notifying him of the lack of a signature and advising him to respond within 15 days. Therefore, the Commission found on appeal that the complaint was timely filed because Complainant promptly cured the lack of a signature when he sent his complaint the second time. Heath P. v. U.S. Postal Serv., EEOC Appeal No. 0120170335 (Jan. 17, 2017).

Agency Improperly Dismissed Complaint as Untimely. The Commission reversed the Agency's dismissal of Complainant's complaint as untimely filed. While the Agency asserted that it sent Complainant a notice of right to file a formal complaint by United Parcel Service (UPS), the Agency failed to provide a copy of the UPS tracking receipt signed and dated by Complainant indicating she received the notice on the date the Agency alleged she did. Louise S. v. Soc. Sec. Admin., EEOC Appeal No. 0120161705 (Jan. 4, 2017).

Commission Found Sufficient Evidence to Toll Limitation Period. The Commission reversed the Agency's dismissal of Complainant's complaint as untimely filed. Complainant provided evidence of a serious medical condition resulting in the premature delivery of her baby and need for medical attention. Although Complainant's medical documentation did not explicitly establish that she was totally incapacitated during the entire filing period, the Commission found sufficient justification to excuse the brief one day delay. Kina V. v. U.S. Postal Serv., EEOC Appeal No. 0120170248 (Jan. 4, 2017); request for reconsideration denied EEOC Request No. 0520170186 (Apr. 27, 2017).

Complaint Properly Dismissed as Untimely. Complainant failed to file a formal complaint within 15 days of receiving notice of the right to file. While Complainant asserted that he has medical conditions that affect his energy levels and memory, he failed to provide medical documents to support a finding that he was so incapacitated throughout the applicable period that he was prevented from timely filing his complaint. Therefore, Complainant failed to present adequate justification for extending the filing period, and his complaint was properly dismissed. Harvey G. v. U.S. Postal Serv., EEOC Appeal No. 0120170163 (Feb. 23, 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 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.)

ESTABLISHING DISPARATE TREATMENT DISCRIMINATION By Marc Plotkin

The author gratefully acknowledges editorial assistance from Cassandra Menoken, and Todd Denicoff

INTRODUCTION

Apart from procedural dismissals, the most common issue that the Commission must address in a federal sector appeal is whether a complainant has been subjected to disparate treatment discrimination because of his or her statutorily protected status or activity.1 An examination of decisions in which the Commission has found disparate treatment discrimination reveals certain factors that complainants should consider when pursuing a claim. These decisions can provide complainants and their representatives with a better sense of the elements needed to prevail in a disparate treatment claim.

ANALYTICAL FRAMEWORK FOR DISPARATE TREATMENT CLAIMS

To prevail on appeal in a disparate treatment case, the complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in the landmark case of McDonnell-Douglas Corporation v. Green.2 The complainant must initially establish a prima facie case of discrimination by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of unlawful intent.3 Proof of a prima facie case will vary depending upon the circumstances of the particular case.4 Once the complainant establishes a prima facie case, the burden of evidentiary production shifts to the agency to articulate a legitimate nondiscriminatory reason for its actions.5 The burden then returns to the complainant to prove, by a preponderance of the evidence, that the explanation the agency has put forward is a pretext, that is, the explanation is not the real reason but rather a cover for unlawful discrimination.6

A complainant can demonstrate pretext by showing inconsistencies or contradictions in the evidentiary record such that a reasonable fact finder could find the articulated reason for the agency's action unworthy of credence.7 Over the years, the Commission has pointed to several indicators that could support a finding of pretext. One such indicator in hiring and promotion cases is that the complainant's qualifications for the position were plainly superior to those of the selectee.8 Other indicators of pretext include discriminatory statements or past personal treatment attributable to the responsible management official; comparative or statistical data showing differences in treatment across particular racial, ethnicity, gender, age-related or disability-related lines; unequal application of agency policy, deviations from standard procedures without explanation or justification; or inadequately explained inconsistencies in the evidentiary record.9

COMMISSION FINDINGS OF DISCRIMINATION

Complainants must do more to prove a claim of discrimination on appeal than merely restate the prima facie case or make generalized assertions that they had been discriminated against. Complainants must establish that the reasons articulated by the agency for the actions it took were a pretext for a discriminatory motive. In circumstantial evidence cases, this can be done by pointing to contradictions between statements made by the officials responsible for the action which led to the complaint and other evidence in the record, be it the testimony of reliable witnesses or documents.

In Jeramy R. v. Dep't of Justice,10 a trial attorney filed a complaint in which he alleged that his immediate and second-level supervisors (S1 and S2) retaliated against him for his opposition to sex discrimination. Numerous individuals had reported that S1 and S2 treated women poorly and treated men who spoke up just as badly. Shortly after Complainant spoke with his third-level supervisor (S3) about the situation, S1 and S2 began to criticize Complainant about his performance, claiming managerial and personality conflicts. Complainant alleged that S1 and S2 attempted to damage his career and reputation by providing false and misleading statements to their successors and other management officials. The Commission found the explanation given by S1 and S2 unworthy of credence in several respects. First, six witnesses gave sworn statements that S1 and S2 began to treat Complainant harshly after he reported their treatment of female subordinates to S3. Second, the claim by S1 and S2 that Complainant's work product was deficient was contradicted by numerous witnesses who opined that Complainant's work was outstanding. Their claim was also contradicted by Complainant's previous three appraisals, issued by different supervisors, which also documented outstanding performance. The claim made by S1 and S2 that they had personality conflicts and work product issues with Complainant was shown to be a pretext for retaliation.

In Coffee v. Dep't of the Army,11 Complainant filed an EEO complaint alleging reprisal after her second-level supervisor (S2) downgraded her annual performance evaluation from "exceeds" to "fully successful," overruling her first-line supervisor (S1). S2 averred that Complainant's appraisal narrative was poorly written and did not support an "exceeds" rating. S1 stated, however, that when she asked S2 for clarification, S2 replied that the narrative was fine but that he did not agree with the rating, making it clear that he would not move the appraisal along if S1 did not lower the score. Under oath, S1 opined that the only reason that Complainant's rating was lowered was that Complainant had prevailed against S2 in a previous EEO complaint. An AJ issued a decision on summary judgment finding no discrimination. The Commission reversed the AJ's decision, finding that the record did indeed support summary judgment, but in favor of Complainant. Central to the conclusion were S1's statements that she, and not S2, had observed Complainant's performance on a daily basis; that she never discussed Complainant's performance with S2; that Complainant not only took on extra responsibilities but had also trained other staff members; and that S2 had exhibited a retaliatory animus toward Complainant after her successful EEO complaint.

In Randolph A. v. Dep't of Veterans Affairs,12 Complainant applied for a Statistician position and was selected by the four-member review panel for an interview. Prior to the interviews, one of the panel members (P1) performed an internet search of every applicant's name, a standard practice. Through this search, P1 found a prior Commission decision on an EEO complaint that Complainant had filed against another facility. P1 admitted in his affidavit that he discussed Complainant's prior EEO complaint with the other panel members; that his prior protected activity was impossible to ignore; and that it was taken into consideration by other panel members. The panel ultimately recommended another applicant as the most qualified, and this individual was eventually selected. In reversing the AJ's summary judgment decision in the Agency's favor, the Commission identified a number of factors that influenced its finding that the panelists' explanation for choosing the selectee was a pretext for reprisal. First, Complainant was the highest-ranked applicant going into the interview process. In addition, all of the panelists except P1 had characterized Complainant's interview responses as excellent and some gave him the highest rating. P1 also admitted bringing up and discussing Complainant's previous EEO complaint with the other panel members. Finally, following the interviews, Complainant went from being the highest-ranked applicant to the lowest-ranked applicant. The Commission emphasized that it did not matter that the selecting official was unaware of Complainant's prior complaint because he had relied on the panelists' tainted recommendation.

In Opare-Addo v. U.S. Postal Serv.,13 Complainant, an Operations Manager, filed a pair of EEO complaints alleging discrimination on the bases of national origin and reprisal when he was denied higher-level pay. The case went to a hearing, pursuant to which the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that the complainant's grade was determined by the number of employees supervised and equipment utilized. The Commission reversed the AJ's decision, finding that the record clearly showed that Complainant had supervised up to 15 employees, not six, as the AJ had erroneously found, including Acting Supervisors that the AJ had not accounted for. The Commission also found that management had provided contradictory testimony, noting, for example, that some Operations Managers with higher grades had supervised fewer employees than Complainant. Additionally, the Commission found weaknesses in the testimony of one management official about the Complainant's grade being set based on the number of subordinates or pieces of equipment under his direction, because the "equipment" criteria was not mentioned during the investigation or by any other testifying management official during the hearing.

In Bostick v. Dep't of the Army,14 Complainant alleged discrimination on the bases of race and color when he was not selected for a supervisory position that he had occupied before it was converted from military to civilian status. He claimed that he had been passed over for the position in favor of two White males despite his incumbency on the military side. Seven witnesses testified at the ensuing hearing, at the conclusion of which the AJ found that, although Complainant had established a prima facie case of race discrimination, he had not presented enough evidence that the selecting official's (SO)'s articulated reason for not choosing him was a pretext for discrimination. The Commission reversed the AJ's decision on appeal.

The Commission stated that, in crediting the SO's articulated reason for not selecting Complainant, that he was afraid of appearing to preselect him, the AJ failed to consider Complainant's testimony that it was typical for incumbents to be selected for positions that changed from military to civilian status. Therefore, the Commission found that the Agency's failure to do so in this case was a deviation from its standard practice. Second, in crediting the SO's testimony that one selectee was chosen because of his six years of experience in the unit and the other chosen because of his prior military history, the AJ failed to consider Complainant's testimony that he had served in the exact position for two years before it was converted to civilian status, that he had supervised the first selectee, and that the SO actually admitted that Complainant had more experience in the relevant field than the other selectee. In addition, Complainant's resume and application package established that he had twenty years of experience in the required specialty, that he received outstanding evaluations during the two years he served in the position, and that he had taken specialized training that neither selectee had taken. The SO even admitted that Complainant was the best-qualified candidate. The SO also acknowledged that he failed to properly credit the fact that Complainant possessed a master's degree, and if he had done so, Complainant's score would have been higher than those of the selectees. Finally, the AJ failed to consider documents pertaining to merit promotions indicating that the only two GS-14 promotions filled by the SO had gone to White males or the testimony from a Deputy Commander who worked with the SO that no minorities had been promoted to GS-14 or above within the previous four years.

More recently, in Walton v. Dep't of the Army,15 a National Guard Technician at a maintenance shop filed a complaint in which he alleged that his foreman and assistant foreman discriminated against him on the bases of race and reprisal by suspending him and ultimately removing him over a seemingly minor incident. Complainant testified that he mistakenly parked his car in a spot reserved for another employee, that he and the other employee had resolved the matter, and that following the resolution, the Assistant Foreman repeatedly questioned him about why he did not move his car. The Foreman testified that he also questioned Complainant about the incident and that when Complainant refused to answer, he consulted with the Human Resources Office as to what disciplinary action to take. The Human Resources Office recommended a 15 to 30-day suspension. The Foreman further testified that he proposed that Complainant be removed on grounds of insubordination, noting that Complainant had engaged in similar conduct several years earlier.

The Commission reversed the AJ's finding in favor of the Agency, relying upon an extensive evidentiary record that contradicted the Foreman's explanation for his action and severely undermined his credibility as a witness. One of Complainant's co-workers testified that a Supervisor warned him to stay away from Complainant because "he is trouble." Complainant's previous Foreman testified that other management officials had told him that he was a troublemaker and was being assigned certain tasks in order to set him up for failure. These occurrences all took place after Complainant had initiated a previous EEO complaint. A second co-worker testified that he heard Complainant's Team Leader explicitly use the n-word in reference to Complainant; that the shop was segregated by race; that he was one of the only White employees who worked on the "African-American" side of the shop; and that several White employees had made racial comments such as, "did he like working with the brothers."

Testimony from other employees and supervisors indicated that two other White employees in the shop had parked in spaces other than their own and were never questioned about it. In addition, the transcript of an administrative hearing on the removal revealed that the Foreman had ignored the recommendation of the Human Resources Office in deciding to remove Complainant and the Hearings Examiner opined that the removal was more severe than the infraction merited.

CONCLUSION

As these decisions demonstrate, pretext can be established with affidavits or hearing testimony from witnesses other than the complainant or with documents. Complainants should present documents or sworn statements sufficient to contradict the explanation provided by the Agency in order to establish pretext.


Footnotes

1 The Equal Employment Opportunity Commission ("Commission") enforces the following employment laws: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et. seq. which prohibits discrimination based on race, color, sex, religion, national origin and retaliation; the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et. seq, which prohibits discrimination based on age (over 40) and retaliation; section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C § 791 which prohibits discrimination based on disability and retaliation; the Equal Pay Act of 1963, 29 U.S.C. § 206 which prohibits sex based wage discrimination and retaliation; and the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. 2000ff et seq. which prohibits discrimination based on genetic information and retaliation.

2411 U.S. 792 (1973).

3See Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).

4McDonnell-Douglas, 411 U.S. at 804, n. 13.

5Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

6St. Mary's Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, supra. While this burden of production may switch back and forth, the complainant at all times retains the ultimate burden to prove discrimination, by a preponderance of the evidence. Reeves v. Sanderson Plumbing, 530 U.S. 133, 143 (2000); Hicks, supra, 509 U.S. at 519. The Commission defines the preponderance of the evidence as that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. Thomas v. Dep't of Transp., EEOC Appeal No. 01945798 (Dec. 12, 1996).

7See Complainant v. Dep't of Labor, EEOC Request No. 0520120381 (June 25, 2015) (contradiction in the [responding management official's] explanation concerning the complainant's nonselection, the unexplained absence and inconsistent explanations surrounding selection records, the makeup of the workplace, and the complainant's plainly superior qualifications are cumulatively probative of pretext); Nita H. v. Dep't of the Interior, EEOC Petition No. 0320110050 (July 16, 2014) citing Complainant v. Office of Pers. Mgmt. & Soc. Sec. Admin., EEOC Appeal Nos. 0120120901 & 0120123038 (Dec. 2, 2013) (internal inconsistencies, implausibility, or contradictions in an employer's explanation of the challenged employment decision may be evidence of pretext for discrimination or retaliation); Hashimoto v. Dep't of the Navy, EEOC Request No. 05900823 (Dec. 31, 1990) (In light of the inconsistencies in the [Responding Management Official's] testimony, we find that…his articulated reasons for discussing [the complainant's] EEO activity…are unworthy of credence).

8Complainant v. Dep't of Labor, EEOC Request No. 0520120381 (June 25, 2015) (the complainant's plainly superior qualifications probative of pretext); Cosentine v. Dep't of Homeland Sec., EEOC Appeal No. 07A40114 (Aug. 9, 2006) (in non-selections cases, pretext may be found where the complainant's qualifications are plainly superior to the selectee's).

9Natalie F. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120150749 (Apr. 27, 2017); Janiece H. v. U.S. Postal Serv., EEOC Appeal No. 0120143201 (Feb. 25, 2016), request for reconsideration denied EEOC Request No. 0520160260 (July 26, 2016); Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015).

10EEOC Appeal No. 0120132089 (Nov. 19, 2015), request for reconsideration denied EEOC Request No. 0520160154 (July 20, 2016).

11EEOC Appeal No. 0120120117 (Mar. 15, 2013).

12EEOC Appeal No. 0120120184 (Aug. 6, 2015), request for reconsideration denied EEOC Request No. 0520160050 (Feb. 2, 2016).

13EEOC Appeal No. 0120060802 (Nov. 30, 2007), request for reconsideration denied EEOC Request No. 0520080211 (May 30, 2008).

14EEOC Appeal No. 0120070645 (Sept. 26, 2008).

15EEOC Appeal No. 0120072925 (July 10, 2012), request for reconsideration denied EEOC Request No. 0520120598 (Feb. 7, 2013).