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Digest Seal The DIGEST Of Equal Employment Opportunity Law


Fiscal Year 2018, Volume 3

Office of Federal Operations

June 2018


Inside

Selected Notable EEOC Decisions on:

Compensatory Damages

Complaint Processing

Dismissals

Findings on the Merits

Mixed Motive

Remedies

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness


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

Carlton M. Hadden, Director, OFO
Jamie Price, Assistant Director, OFO's Special Operations Division
Digest Staff
Editor: Robyn Dupont
Writers: Robyn Dupont, Joseph Popiden, Navarro Pulley

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


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

SELECTED EEOC DECISIONS

Compensatory Damages

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

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

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

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

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

Complaint Processing

Agency Failed to Conduct Adequate Investigation. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity with regard to his workload and use of leave. After an investigation, the Agency issued a decision finding no discrimination. On appeal, the Commission found that the investigation was inadequate, and the record lacked the thoroughness required for the fact finder to address the ultimate issue of whether discrimination occurred. Specifically, the Investigator failed to interview any of the six witnesses identified by Complainant. The Commission noted that this decision by the Investigator unfairly restricted Complainant's ability to prove that he was subjected to discrimination, and there was no evidence in the record that attempting to contact Complainant's witnesses would have been overly burdensome to the investigation. Moreover, the Commission found that Complainant's statement that he was unable to take annual leave in lieu of sick leave for his disabilities articulated a denial of a reasonable accommodation claim that the investigator should have addressed. Further development of the record was required to assess Complainant's reasonable accommodation claim. The Commission remanded the matter to the Agency to conduct a supplemental investigation. Julius P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120162827 (Mar. 6, 2018).

Agency Improperly Framed Complainant's Claims & Conducted Inadequate Investigation. Complainant initiated contact with the Agency's EEO office, and ultimately filed several formal complaints raising claims of disparate treatment discrimination and harassment. The Agency framed the amended complaint as alleging that Complainant was held to higher expectations and given an "Excellent" performance rating. An AJ subsequently issued a decision on summary judgment finding no discrimination. The Commission found that, because the Agency failed to recognize Complainant's harassment claim when it framed the issues in the complaint, and failed to fully develop her disparate treatment claims, the record was not adequately developed for summary disposition. In addition, the AJ failed to acknowledge that the claims were fragmented and undeveloped. The Commission noted that the limited evidence of record showed that Complainant was a superior performer who was treated differently than her White male co-managers, and witness testimony corroborated Complainant's assertion that a supervisor was biased against women. The Commission ordered the Agency to reframe Complainant's claims in accordance with statements and arguments in her Motions to Amend and Compel, and then conduct a supplemental investigation that is full and complete in accordance with Commission regulations. Following the timely completion of the supplemental investigation, the Agency was ordered to immediately transmit the new Supplemental Report of Investigation to Complainant and to the appropriate EEOC Hearings Unit for a hearing. Dixie K. v. Dep't of Justice, EEOC Appeal No. 0120150443 (Feb. 28, 2018).

Agency Failed to Conduct Adequate Investigation. The Commission remanded the matter for a supplemental investigation, finding that the Agency failed to adequately investigate Complainant's complaint. Complainant contended that his position on the seniority roster was changed three times, while management claimed it had no recollection of changing Complainant's position on the seniority roster and no longer had access to seniority roster records. The EEO Investigator made five separate inquiries with two Agency officials, requesting the rosters, names of those converted, and a copy of the Memorandum of Understanding concerning the process for converting career positions. One Agency official did not respond and the other stated she would have someone look into the matter, but failed to do so. Darius C. v. U.S. Postal Serv., EEOC Appeal No. 0120162461 (Jan. 26, 2018).

Dismissals

(See also by category, this issue.)

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

Complaint Improperly Dismissed as Untimely & for Failure to State a Claim. The Agency dismissed Complainant's complaint as untimely, stating that he received the Notice of Right to File via email on September 11, 2017, but did not file his complaint within the 15-day limitation period. On appeal, the Commission found that the record did not support the Agency's determination. Complainant disputed the Agency's assertion regarding the email. He stated that he did not receive the Notice until September 27, and filed the form the same day. He provided a copy of a September 25 email from the EEO Counselor noting that he was still in the informal counseling stage and would not have received a Notice yet. The Agency acknowledged that it sent a Notice on September 27, but asserted that was mistakenly sent as a "second" Notice. The Commission found no clear evidence supporting the Agency's assertion that Complainant received the Notice on September 11, and stated that sending the Notice on September 27, whether in error or not, contributed to the resulting confusion and possible untimeliness. The Commission also found that the Agency improperly dismissed Complainant's complaint for failure to state a claim, because Complainant's allegation regarding a three-day suspension alleged a harm to a term, condition, or privilege of employment. Felton A. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180621 (Mar. 13, 2018).

Commission Affirmed the Agency's Decision Dismissing Complainant's Spin-off Complaint. The Agency issued a final decision dismissing Complainant's complaint for failure to state a claim, and for alleging dissatisfaction with the processing of a prior complaint. On appeal, the Commission concluded that the Agency correctly characterized the complaint as solely raising allegations that prior EEO complaints were improperly processed by the Agency, including EEO officials failing to respond to communication from Complainant, responding in a negative manner, and/or failing to provide official documents to Complainant. Accordingly, it was a spin-off complaint and was properly dismissed. Lionel A. v. Dep't of the Army, EEOC Appeal No. 0120180046 (Mar. 5, 2018).

Complaint Improperly Dismissed for Mootness. Upon review of the record, the Commission found that the instant complaint had not been rendered moot. The Agency determined that a grievance settlement provided for Complainant to be returned to her bid position with the Agency. The Agency acknowledged that Complainant requested compensatory damages, but stated that Complainant failed to identify damages incurred due to the Agency's alleged discriminatory acts. The Commission has held that an agency must address the issue of compensatory damages when the complainant presented objective evidence that he incurred compensatory damages and that the damages were related to the alleged discrimination. Though Complainant failed to identify incurred damages, there is no indication that the Agency requested objective evidence of compensatory damages from Complainant. Should Complainant prevail in his claim, he could receive an award of compensatory damages, and therefore, Complainant's claim was not moot. Shayne K. v. U. S. Postal Serv., EEOC Appeal No. 0120180531 (Feb. 28, 2018).

Complaint Improperly Dismissed in Part. The Commission reversed the Agency's dismissal of Complainant's claim regarding overtime, compensatory time, and days off for untimely EEO Counselor contact. Complainant asserted that she was unaware of the time limits for contacting a Counselor, and there was no evidence in the record that Complainant had actual or constructive notice of the time limits for EEO counselor contact. Moreover, the Agency narrowly defined Complainant's claim as alleging one incident regarding denial of compensatory time and overtime opportunities. The record showed Complainant informed the EEO counselor that she was subject to an ongoing hostile work environment and feared the Agency would revoke her regular day off if she performed work towards compensatory time or overtime. The Commission found Complainant sufficiently described a pattern of harassment. The Commission affirmed the Agency's dismissal of Complainant's allegation concerning the union alternative dispute resolution process as a collateral attack on the union grievance process. The Commission further noted that the matter did not fall within Complainant's claim of hostile work environment. Breanna S. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120180601 (Feb. 16, 2018).

Complaint Alleging Hostile Environment & Denial of Accommodation Improperly Dismissed. The Commission reversed the Agency's dismissal of the complaint for untimely EEO counselor contact and failure to state a claim. Complainant's allegation that the Agency continually denied her reasonable accommodation and light duty collectively constituted one unlawful employment practice, a hostile work environment, the latest incident being timely raised during EEO counseling. The Commission also found that a continuous absence letter was part of the hostile work environment claim. While the Commission concurred with the Agency that Complainant's allegation concerning a letter of demand would have failed to state a claim if it related to the Department of Labor's denial of her worker's compensation claim, the Commission found that the claim essentially related to the Agency's issuance of a letter of demand which was a separate matter. The Agency's assertion that the letter was issued due to the denial of Complainant's worker's compensation claim went to the merits of Complaint's claim and not the procedural issue of whether she stated a viable claim. Angeles C. v. U.S. Postal Serv., EEOC Appeal No. 0120180592 (Feb. 15, 2018).

Complaint Improperly Dismissed for Filing a Grievance. The Commission reversed the Agency's dismissal of the complaint because it raised the same allegations raised in a negotiated grievance procedure. While the record contained a copy of the grievance, it did not contain a copy of the collective bargaining agreement confirming that the negotiated grievance procedure permits claims of discrimination. Irwin R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180492 (Feb. 15, 2018).

Complaint Properly Dismissed for Filing a Grievance. Complainant filed a formal complaint alleging that the Agency discriminated against her when it did not select her for a temporary promotion, and issued her a counseling memorandum concerning tardiness. The Agency dismissed the complaint on grounds that Complainant elected to pursue both claims through the negotiated grievance process. The Commission affirmed the dismissal on appeal, stating that the record revealed that Complainant filed grievances on both claims prior to filing her formal complaint, and the terms of the collective bargaining agreement expressly provide for claims of discrimination to be raised in the grievance process. While Complainant asserted that the Agency did not adequately advise her of her election rights, the Commission's regulations provide that an employee who files a grievance cannot then file an EEO complaint irrespective of whether the Agency has informed her of the need to make an election. Leanne D. v. Dep't of the Treasury, EEOC Appeal No. 0120172973 (Jan. 31, 2018).

Complaint Improperly Dismissed for Stating the Same Claim Raised Previously. Complainant filed a formal complaint alleging that the Agency subjected her to discriminatory harassment based on age and prior EEO activity when her supervisor failed to address a co-worker's ongoing harassment, including an email. The Agency dismissed the complaint on grounds that Complainant raised the same claim in an earlier complaint, and the Commission reversed the decision on appeal. While the Commission noted that the complaint alleged ongoing harassment by the same individual, the instant complaint involved actions that occurred after Complainant filed her earlier complaint. Therefore, the two complaints were not identical. The Commission stated, however, that since the two complaints alleged harassment by the same individual, the Agency should move to amend the previous complaint which was pending an administrative hearing. The Agency was instructed to process the instant complaint if the AJ denied the motion to amend. Reita M. v. Dep't of Agric., EEOC Appeal No. 0120180372 (Jan. 31, 2018).

Complaint Improperly Dismissed for Failure to Timely Contact EEO Counselor & Failure to State a Claim. The Commission reversed the Agency's dismissal of Complainant's complaint, stating that the Agency improperly limited Complainant's claim of harassment to one event. Complainant, instead, provided a list of events in support of her harassment claim, including being subjected to derogatory comments on multiple occasions. Further, Complainant asserted that the harassment continued until and after she contacted the EEO Counselor. Therefore, the Commission concluded that the Agency's dismissal for untimely EEO Counselor contact and failure to state a claim was improper. Zenia M. v. U.S. Postal Serv., EEOC Appeal No. 0120180229 (Jan. 9, 2018); Additional Decisions Addressing Complaints of Harassment Dismissed for Untimely EEO Contact and Failure to State a Claim Include: Mirtha H. v. Dep't of Def., EEOC Appeal No. 0120180537 (Feb. 7, 2018) (the Commission found that the Agency fragmented Complainant's hostile work environment claim which included, but was not limited to: being denied a reasonable accommodation, being placed on Leave Without Pay, being denied her request for the Volunteer Leave Transfer Program, and being informed that she would be charged with AWOL. The Commission has held that because the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside of the filing period that the Complainant knew or should have known were actionable at the time of their occurrence. Thus, the Commission found that the alleged incidents, some of which were raised within the 45 days preceding contact with the Counselor, were sufficiently severe or pervasive to set forth an actionable claim of harassment); Paris M. v. U.S. Postal Serv., EEOC Appeal No. 0120180361 (Jan. 31, 2018) (Complainant raised allegations of ongoing harassment and denial of accommodation through the date he sought counseling. Complainant's allegations included being repeatedly denied accommodation and overtime, and referred to in derogatory terms which, when viewed collectively, were sufficiently severe or pervasive to set forth an actionable claim of harassment); Glenda N. v. U.S. Postal Serv., EEOC Appeal No. 0120180280 (Jan. 26, 2018) (Commission reversed the Agency's dismissal of Complainant's complaint for failure to state a claim and untimely EEO Counselor contact. The agency mischaracterized claim as concerning only specific incidents, and a fair reading of the circumstances of the matters raised reflect she was alleging a claim of harassment. Further, some of the matters occurred within 45 days of the date Complainant contacted the Counselor).

Findings on the Merits and Related Decisions

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

Under the Equal Pay Act

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

Under the Rehabilitation Act

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

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

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

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

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

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

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

Under Title VII

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

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

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

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

Race Discrimination Found in Regard to Denial of Training. Complainant, a Senior Officer Specialist, filed a formal complaint alleging, among other things, that the Agency discriminated against him based on race (African-American) when it denied him training. According to the record, the former Security Officer attempted to get Complainant approved for certain training, so Complainant would have the opportunity to be promoted. Management however denied Complainant the opportunity to attend the training, citing budgetary reasons. During the same period, management nevertheless allowed two similarly situated Caucasian Officers to take the training at issue, and, shortly thereafter, noncompetitively promoted both Caucasian Officers. Following an investigation, the AJ issued a decision without a hearing in the Agency's favor. The Agency subsequently issued its final order, but requested that the Commission remand Complainant's case for hearing noting, among other things, that the AJ did not consider the Former Security Officer's assertion that racial discrimination influenced management's actions in denying Complainant the training at issue.

On appeal, the Commission found that summary judgment was appropriate, but that Complainant established that he was subjected to disparate treatment based on his race. In so finding, the Commission noted that several witnesses subscribed to Complainant's view that management intentionally foreclosed minorities from career advancement. The Agency acknowledged that the two Caucasian Officers received training, and the Commission stated that the AJ erred in not citing the former Security Officer's statement that management routinely denied training to African-American employees. The Commission concluded that the Agency's stated reasons for its actions were not supported by the record and were unworthy of belief. To remedy the discrimination, the Commission ordered the Agency, among other things, to provide Complainant the training at issue, and noncompetitively promote him in a similar fashion to the two cited Caucasian comparators. The Commission affirmed the AJ's finding that Complainant failed to prove his claim of harassment. Nathan S. v. Dep't of Justice, EEOC Appeal No. 0120151282 (Jan. 9, 2018), request for reconsideration denied, EEOC Request No. 0520180229 (May 11, 2018).

Under Multiple Bases

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

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


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

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

Retaliation

Retaliation Found. Complainant filed an EEO complaint in which she alleged that three Agency management officials retaliated against her for her prior EEO activity when they terminated her from a residency program, and ultimately terminated her from employment. After an investigation, the Agency issued a final decision concluding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency's articulated reason for terminating Complainant from the residency program was her documented unauthorized absences from work, and since Complainant's position required that she participate in a residency program, the Agency terminated her from her position. On appeal, the Commission initially found that Complainant, who had previously raised allegations of discriminatory harassment, established a prima facie case of discrimination. While the Agency articulated legitimate reasons for her termination, Complainant proved that those reasons were pretext for retaliation. Complainant claimed that she reported to work several times after completing a research project she was assigned, but was told there was no work for her. The Agency did not provide any convincing reason why Complainant was not informed of the rotation schedule at these times and sent to perform her duties. The Agency also did not show why Complainant's self-arranged assignment at a specific hospital was not permitted and why she was told to report to another center instead but then not given any assignments. Complainant understood that she was in a LWOP status, but the Agency had placed her in an AWOL status. Further, Complainant's response to the Agency's proposed letter of termination was not included in the record. Consequently, the Commission found that the Agency retaliated against Complainant when it removed her from the residency program and from her position. The Agency was ordered, among other things, to pay Complainant appropriate back pay from the date she was placed on AWOL until the date her residency would have ended, and investigate her claim for damages. Denise Y. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120150665 (Feb. 28, 2018).

Mixed Motive

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

Remedies

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

Remedies Discussed. The AJ found that the Agency subjected Complainant to a hostile work environment and disparate treatment because of her prior EEO activity. The Agency adopted the AJ's finding of discrimination, but appealed the relief awarded by the AJ. On appeal, the Commission found the AJ's reduction of Complaint's attorneys' fees by 10% because of duplicate billing for 2 attorneys performing the same task (e.g. preparing a witness) was appropriate, but stated the Agency failed to demonstrate why a greater percentage reduction would be more appropriate. The Commission further found that there was no evidence to support the AJ's order that a notice of the finding of discrimination be posted agency-wide, and required the Agency, instead, to post the notice at the facility where the discrimination occurred. The Commission also ordered the restoration of Complainant's duties that were removed as the result of the discrimination. The Commission affirmed the AJ's award of $7,500 in non-pecuniary compensatory damages, and restoration of sick and annual leave. Finally, the Commission agreed with the AJ that ordering the Agency to modify the structure of its EEO Office was outside the scope of relief that could be awarded to Complainant. Miriam B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0720150022 (Mar. 20, 2018).

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

Sanctions

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

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

Settlement Agreements

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

No Breach of Settlement Found. The Commission affirmed the Agency's finding that it did not breach a settlement agreement between the parties. The agreement provided that a supervisor would be removed from the facility and not supervise Complainant. Also, the supervisor could not visit the facility without notifying management and obtaining permission. The record showed the Agency informed the supervisor of this, but the supervisor arrived at the facility unannounced and without permission. Management informed the supervisor to leave, but she refused, so the police were called to remover her. The Commission found the Agency's actions to immediately deal with the problem complied with the terms of the settlement. Anthony H. v. U.S. Postal Serv., EEOC Appeal No. 0120180434 (Mar. 22, 2018).

No Breach of Settlement Found. The Commission affirmed the Agency's finding it did not breach its agreement with Complainant. The agreement provided that the Agency would place Complainant in a particular positon, and the Agency complied. The union then filed a grievance contending the position should be opened for bid. While the Agency opened the position for bid, no one bid on the position, and Complainant remained in the position during the bid period without change to status, pay, duties, work hours, or nonscheduled days. Nida R. v. U.S. Postal Serv., EEOC Appeal No. 0120180325 (Mar. 3, 2018).

No Breach of Settlement Found. The Commission found that the Agency did not breach the settlement agreement when, after initially placing Complainant into the agreed upon position, it reassigned her to a different position three years later. The Agency explained that the reassignment was part of a realignment that was not planned at the time of the execution of the settlement agreement. The Commission has held that when an individual bargains for a position without a specific length of service it would be improper to interpret the intention of the parties to include employment in the same position forever. Hilda H. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180790 (Mar. 15, 2018).

Settlement Agreement Valid. The parties entered into a settlement agreement under the guidance of a mediator while Complainant's two complaints were pending a hearing. The agreement provided, among other things, that Complainant would complete an application for immediate retirement. Subsequently, the Agency, though counsel, advised Complainant that it would not comply with the agreement and considered it null and void after discovering that Complainant had previously applied for retirement prior to the settlement negotiations. The Commission found that the agreement was valid and binding on both parties. The Commission noted that the parties were fully represented by counsel. While the Agency counsel may have been unaware of the earlier unsigned retirement application, it was in the Agency's possession in its Office of Human Resources at the time the settlement agreement was executed. Further, there was no evidence that Complainant or her counsel misrepresented the facts at mediation, or concealed information from the Agency. Jonelle R. v. Dep't of Homeland Sec., EEOC Appeal No. 0120170589 (Mar. 14, 2018).

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

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

Oral Settlement Agreement Invalid. The Commission reversed the AJ's determination that Complainant and the Agency had entered into a valid settlement agreement. The parties reached an agreement during a hearing and the court reporter recorded the terms of the oral agreement. The Agency Representative stated, however, that he could not sign a written agreement because he did not have "settlement delegation." Nevertheless, the AJ determined that the oral agreement on the record was valid and binding. On appeal, the Commission disagreed because the Agency Representative stated he did not have settlement authority, so he had neither real nor apparent authority to enter into the agreement, and Complainant did not sign and refused to accept the agreement. Further, Complainant raised a claim of age discrimination, and the Commission found that the agreement did not meet the requirements of the Older Workers' Benefits Protection Act (OWBPA). Complainant did not specifically waive her age claim rights and was not advised to consult with an attorney prior to entering into the agreement. The Commission ordered that a hearing in the matter be reinstated. Bonnie R. v. Dep't of Agric., EEOC Appeal No. 0120160799 (Jan. 25, 2018).

Breach of Settlement Found. The parties entered into a settlement agreement that provided, among other things, for the Agency to pay complainant for over 119 hours of leave. The Agency had not done so at the time of the alleged breach, but asserted that it had exercised diligence to implement the terms and had taken appropriate actions to cure the breach and implement the agreement. Commission found, however that there was insufficient evidence showing that the Agency had in fact cured the breach, and stated that showing diligence was not the same as providing proof of payment. The Commission ordered the Agency to pay the amount due plus additional interest, but did not grant Complainant's request for compensatory damages because damages are not available in breach cases. Taren P v, U. S. Postal Serv., EEOC Appeal No, 0120172704 (Jan. 24, 2018).

Settlement Agreement Void. The parties entered into a settlement agreement that provided, among other things, that the Manager would hold weekly staff meetings, and Complainant would resume her Field Maintenance Manager (FMO) duties after completion of an assignment. The Agency conceded that the Manager did not hold weekly meetings, and failed to provide any support for its assertion that she attempted to do so. Further, the Commission noted that while Complainant asserted that she was not returned to her full FMO duties, the Agency stated that the work Complainant cited was not part of her FMO duties. The Commission found that the provision was too ambiguous as evidenced by the divergent interpretations of the parties as to what the terms meant. Therefore, there was no contemporaneous meeting of the minds, and the Commission concluded that the settlement agreement was void for vagueness. The Agency was ordered to resume processing of the underlying complaint. Darlena H. v. U.S. Postal Serv., EEOC Appeal No. 0120173018 (Jan.12, 2018).

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

Stating a Claim

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

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

Agency Qualified as Joint Employer. Complainant was employed by a staffing firm serving the Agency as a customer service representative at an Agency call center. Complainant filed a complaint alleging that she was subjected to discrimination and harassment. The Agency dismissed the complaint for failure to state a claim, reasoning that Complainant was an employee of the staffing firm, not the Agency. The Commission found that the Agency possessed sufficient control over Complainant's position to be her joint employer under common law. Specifically, according to Complainant, the Agency provided the staffing firm with a list of employees to the staffing firm it recommended be terminated, including two it said had insufficient foreign language skills, and an Agency officer scolded another staffing firm employee stating: "I can fire you." Complainant also contended that her work was assigned by Agency duty officers and she was supervised closely by Agency officials regarding technical knowledge and professional issues. Complainant worked on Agency premises using Agency equipment. Karleen R. v. Dep't of Homeland Sec., EEOC Appeal No. 0120173075 (Feb. 22, 2018); Additional Decisions Addressing Whether Complainant Was an Employee or Independent Contractor Include: Gloria D. v. Dep't of Agric., EEOC Appeal No. 0120180762 (Mar. 22, 2018) (Complainant was a pilot working for a company that serviced the Agency. The company provided the equipment and materials (plane and fuel), paid Complainant, and provided her with leave and benefits. The Agency required certain skills of the pilots, including an annually issued pilot fire card, which certified Complainant could fly Agency missions. The Agency dictated the planes' requirements and equipment needed, including contents of its first aid kits, and set the hours of operation and the flight plans to be used. The Agency had the power to terminate pilots, and enforced "government facility rules of conduct." While the contractor controlled which pilots were on rotation, the Agency controlled pilot assignments, including latitude, longitude and route. The Agency had the power to dispatch planes and pilots to other agencies under interagency cooperative agreements, and no contractor management officials were located at Complainant's duty station); Angelica P v. Dep't of Veterans Affairs, EEOC Appeal No. 0120172789 (Jan. 24, 2018) (the Commission found that Complainant was a joint employee of the Agency and the staffing firm. The Agency set the qualification requirements for her position, and unless Complainant committed a criminal act or violation of staffing firm policy, the staffing firm was not permitted to replace her without notifying the Agency. The staffing firm was required to provide the Agency with a written explanation for any circumstances necessitating substituting Complainant for approval by the Agency. Complainant worked on Agency premises using Agency equipment. She provided daily in-depth reports of her findings and progress to her "direct supervisor," a federal employee. The Agency did not dispute this, which suggested close review of her work); Samuel C. v. Dep't of Commerce, EEOC Appeal No. 0120171101 (Jan. 19, 2018) (the Commission found that the Agency's determination that it lacked sufficient control to be considered a joint employer was not substantiated. Although Complainant, a Scientific Software Developer, was paid by a contractor, he performed his job at an Agency facility, used Agency equipment, followed Agency procedures, worked a schedule set by the Agency, received assignments from Agency officials, was supervised by Agency employees, and was removed as a result of Agency input); Michal J. v. Dep't of Commerce, EEOC Appeal No. 0120180169 (Mar. 27, 2018) (while some factors pointed to the Agency having control over Complainant's employment, specifically the Agency scheduled some of his tasks, he worked aboard an Agency vessel using Agency equipment, he was verbally counseled at least twice about his behavior by the Agency Deputy Superintendent of Operations and Administration, a significant factor in determining whether an Agency is a joint employer is whether it has the power to terminate an employee. In this case, the staffing firm had contracts with other agencies and organizations, and the record showed that the staffing firm made an independent decision to terminate Complainant. The record suggested that the staffing firm could have assigned Complainant elsewhere, but chose to terminate him based on his treatment of women crewmembers, which potentially violated its policy and the law. Therefore, the Agency did not have sufficient control over Complainant's employment to be deemed his common law joint employer); Chara S. v. Dep't of Def., EEOC Appeal No. 0120172859 (Jan. 9, 2018) (Complainant, who worked as a Bagger at an Agency commissary, was a self-licensed employee who was granted access to the facility to offer customers the option to have her bag and carry their purchases. Although she was required to conform to some Agency rules, the Agency did not provide Complainant with payment, benefits or leave, and did not set her schedule, evaluate her performance, give her assignments or supervise her. Therefore, the Agency did not exert sufficient control over Complainant to qualify as her employer).

Complaint Involving Placement on Administrative Leave Stated Claim. Complainant alleged that the Agency discriminated against him when it placed him on administrative leave for over eight months and gave him a pre-disciplinary interview. The Commission found that the Agency improperly dismissed the complaint for failure to state a claim, rejecting the Agency's argument that Complainant did not suffer an employment loss or harm because he was on paid administrative leave. The Commission noted that in certain instances, paid administrative leave for brief periods may not result in harm sufficient to state a claim. In this case, however, Complainant asserted that his placement on administrative leave was continuing, and therefore, stated a justiciable claim. Allan L. v. U.S. Postal Serv., EEOC Appeal No. 0120180604 (Feb. 21, 2018).

Complainant Stated Viable Claim of Age Discrimination & Retaliation. The Commission found that a fair reading of the complaint in conjunction with the related EEO counseling report showed that Complainant was alleging that he had been subjected to a series of related incidents of disparate treatment based on his age and in retaliation after he objected to being forced to work outside of his regular duties, and was denied the use of his sick leave. Complainant stated that, after he raised a complaint through the union and informed the supervisor that he should not be required to perform the functions outside of his normal duties, his supervisor assigned him 14 more days of the same work. He claimed that younger workers were not assigned similar duties. The Commission found that Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. Tim H. v. U. S. Postal Serv., EEOC Appeal No. 0120180329 (Feb. 7, 2018).

Complaint Improperly Dismissed in Part. The Commission affirmed in part and reversed in part the Agency's dismissal of Complainant's complaint for failure to state a claim. The Commission found that the Agency properly dismissed as spin-off complaints three allegations regarding a prior complaint where Complainant alleged the Agency delayed informing Complainant when it received the report of investigation and failed to inform her of the right to request a hearing. The Commission reversed the Agency's dismissal of Complainant's allegation that a management official contacted another management official to ask whether Complainant lied on her application for reemployment. While the Agency stated that Complainant was not an employee and failed to show harm, the Commission stated that Complainant was both an applicant, and a former employee complaining of retaliation concerning a matter likely to deter Complainant or others from pursuing EEO rights. Therefore, the matter stated a claim. Queen L v. Dep't of the Army, EEOC Appeal No. 0120180368 (Jan. 25, 2018).

Complaint of Harassment Improperly Dismissed for Failure to State a Claim. The Commission stated that a fair reading of Complainant's complaint in conjunction with the related EEO counseling report showed that Complainant alleged that his supervisor subjected him to a hostile work environment based on his gender and national origin. Complainant also alleged that he was retaliated against after contacting the EEO Counselor. Complainant's allegations were part of an ongoing pattern of harassment which was sufficient to state a claim, and, therefore, the Agency's dismissal was improper. Bill A. v. Dep't of the Navy, EEOC Appeal No. 0120180179 (Jan. 12, 2018); Additional Decisions Finding Viable Harassment Claims Include: Belinda K. v. U.S. Postal Serv., EEOC Appeal No. 0120180687 (Feb. 21, 2018) (the Agency did not properly frame Complainant's claim, and a review of her formal complainant and pre-complaint documents showed she was alleging a hostile work environment. The Commission found that alleged incidents when considered collectively were sufficiently severe to state an actionable claim of harassment); Trevor F. v. Dep't of Def., EEOC Appeal No. 0120180166 (Jan. 9, 2018) (the Commission found that Complainant, in his pre-complaint and formal complaint documents, alleged a pattern of harassment by a co-worker and management that included a racial slur and a threat, that was sufficient to state a claim. In addition, Complainant raised an allegation of retaliation).

Claim Concerning Suspension of Security Clearance Properly Dismissed. The Commission affirmed the Agency's dismissal of Complainant's claim that the Agency suspended his security clearance for failure to state a claim. The claim centered on Complainant's dispute about the merits of the Agency's reasons for suspending his clearance, a matter over which the Commission has no jurisdiction. The Commission remanded four other issues, noting that it could not discern whether Complainant intended these issues to be actionable prior to his appeal. Filiberto H. v. Nat'l Sec. Agency, EEOC Appeal No. 0120180108 (Mar. 20, 2018).

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

Complainant not Aggrieved by Denial of Request to Attend Another Employee's Mediation. Complainant filed a formal complaint alleging that the Agency discriminated against him when it did not allow him to attend a mediation session of another employee thereby denying that employee the benefit of Complainant's moral support. The Agency dismissed the complaint for failure to state a claim. On appeal, the Commission concurred with the Agency that Complainant failed to allege sufficient facts, which if proven true and considered together, would establish that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Complainant did not allege that he was the employee's legal representative. Moreover, even if Complainant had been a representative, the other employee may have had standing to lodge a complaint, but not Complainant. Wilfredo M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180416 (Jan. 18, 2018).

Complaint Properly Dismissed as Attack on Another Proceeding. Complainant filed a formal complaint alleging that his grievance was denied in an arbitration hearing. The Commission found that the Agency properly dismissed the complaint for failure to state a claim, noting that an employee cannot use the EEO process to lodge a collateral attack on another adjudicatory proceeding. Complainant's allegation clearly concerned a matter addressed by the collective bargaining agreement, and he must raise his claims in the grievance process. Monroe A. v. U.S. Postal Serv., EEOC Appeal No. 0120180331 (Jan. 12, 2018); Additional Decisions Addressing Complaints that Constitute an Attack on Another Proceeding Include: Gerald M. v. U.S. Postal Serv., EEOC Appeal No. 0120180771 (Mar. 15, 2018) (the Agency properly dismissed Complainant's complaint concerning his OWCP claim. Complainant's allegations that the Agency lost his OWCP claim and then did not adequately assist him when he attempted to raise it later should have been raised with the Department of Labor and not in the EEO process); Mandi G. v. U.S. Postal Serv., EEOC Appeal No. 0120180365 (Feb. 2, 2018) (the Agency properly dismissed Complainant's complaint alleging that her disability retirement was delayed. Complainant filed for disability retirement with the Office of Personnel Management (OPM), and the proper forum for her to raise her challenges to the delay in processing her claim was with OPM).

Summary Judgment

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

Summary Judgment Reversed. The Commission vacated the AJ's summary judgment decision finding no discrimination because material facts were in dispute, credibility of witnesses were at issue and the record was not adequately developed. Complainant claimed that she was denied reasonable accommodation as a nursing mother needing to pump when the Agency moved the designated pumping room to a storage area with old paint cans, ants and other unsanitary conditions, while a mother not of her protected class was able to displace another employee while she pumped. The Commission found the supervisor's reasons for moving the designated pumping room, that is because the storage room had a lockable door and no windows for privacy, were "dubious and unspecified" because the previously designated pumping room also had a lockable door and no windows. Therefore, the Commission concluded that the supervisor's credibility needed to be assessed during a hearing. The Commission also found unresolved questions of material fact concerning Complainant's reprisal allegations because of evidence the designated pumping room was relocated after management's discussion of Complainant's prior EEO complaint, as overheard by a co-worker. Finally, the Commission found unresolved issues concerning Complainant's claim of race discrimination in her reassignment from a particular unit without explanation, while three women not of her protected class, including one lower-graded employee, were retained over the objections of the Associate Director. Minnie M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140003 (Mar. 20, 2018).

Summary Judgment Reversed. Complainant filed an EEO complaint alleging ongoing harassment by a co-worker. After an investigation, the AJ issued a summary decision finding no discrimination. The AJ determined, among other things, that Complainant failed to establish a connection between the alleged harassment and her protected bases. On appeal, the Commission noted that both the Agency and the AJ, for the most part, approached Complainant's case as a claim of disparate treatment when her claim was largely one of harassment. In this regard, the focus should not have been on whether the Agency articulated legitimate, non-discriminatory reasons or whether Complainant established pretext. The Commission further noted that Complainant provided evidence of the co-worker's possible racial animus which, when viewed in a light most favorable to Complainant, would indicate the existence of a genuine issue of material fact as to whether the co-worker's actions were based on Complainant's race or color. Likewise, the Commission highlighted a threatening statement the co-worker made about Complainant's EEO activity. The Commission found there were also genuine issues of material fact in dispute regarding whether there was a basis for imputing liability to the Agency. The record was in dispute as to whether the Agency took immediate and appropriate corrective action. The record indicated that the co-worker continued to approach Complainant even after he was told not to do so. In summary, the Commission found that there were simply too many unresolved issues which required an assessment as to the credibility of the various management officials, co-workers, and Complainant herself. Therefore, the Commission remanded this matter for a hearing. Serita B. v. Dep't of the Treasury, EEOC Appeal No. 0120150572 (Mar. 5, 2018).

Summary Judgment Reversed. Complainant filed a formal complaint alleging that the Agency subjected him to an ongoing hostile work environment and discrimination, including the failure to immediately approve his request to telecommute; the failure to select him for a Human Resources Specialist position; and constructively discharging him from his Human Resources Assistant position. Over Complainant's objections, the AJ issued a decision by summary judgment in favor of the Agency. On appeal, the Commission found that Complainant's claims were improperly fragmented, and the Agency and the AJ did not recognize and address Complainant's claim of an overall hostile work environment. While the Commission noted that Complainant's allegations concerning a performance rating, temporary promotion and nonselection could not be processed as independent claims of discrimination due to timeliness concerns, they should be considered as evidence in support of Complainant's overarching claim of discriminatory harassment/hostile work environment. Therefore, the claim was remanded for an administrative hearing on the issue of ongoing harassment/hostile work environment, culminating in a constructive discharge. Dexter K. v. Dep't of Agric., EEOC Appeal No. 0120160390 (Feb. 7, 2018).

Summary Judgment Reversed. The Commission reversed the AJ's decision, issued without a hearing, finding that Complainant failed to prove she was discriminated against when the Agency did not select her for a position. The interview notes and sworn affidavits of two of the three selection panelists, including the selecting official, contradicted their previous written accounts of Complainant's abilities and performance just months earlier. Further, it was unclear from the record whether the selectee's experience supported the reasons for selection. The Commission also found additional credibility issues. Specifically, while all three panelists stated they were not aware of Complainant's disability, Complainant identified herself as a "disabled veteran" on her application, and provided documentation showing that one of the panelists inappropriately accessed her medical records in the past. Drawing justifiable inferences in Complainant's favor, the Commission concluded that a reasonable fact finder could find for Complainant. Therefore, due to the credibility issues of the witnesses, summary judgment should not have been granted, and the matter was remanded for a hearing. Elda S. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160145 (Jan. 31, 2018).

Timeliness

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

Agency Failed to Prove Assertion as to When Complainant Knew of Discrimination. The Commission reversed the Agency's dismissal of Complainant's allegations that he was denied training and an opportunity to deploy with a disaster management team for failure to timely contact an EEO counselor. While the Agency claimed it informed Complainant he was non-deployable by certified and regular mail, the certified letter was returned undelivered and the Agency surmised, without evidence, that Complainant must have learned of the alleged discrimination by regular mail. Complainant asserted he only learned he would not be deployed when a deployment opportunity arose, and contacted an EEO Counselor well within the 45-day time limit. The Commission found that the Agency failed to provide evidence to dispute Complainant's assertion as to when he learned of his deployment status. Stan G. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120180465 (Mar. 23, 2018).

Complainant Timely Contacted EEO Counselor Upon Reasonably Suspecting Discrimination. The Agency dismissed Complainant's complaint for failure to timely contact an EEO Counselor, stating that she was verbally notified of her nonselection more than 45 days prior to initiating contact. Complainant asserted that more than two months later, she learned the identity of the individual selected and contacted the EEO Counselor because she believed she was more qualified for the position. The Commission stated that Complainant could not have reasonably suspected discrimination until she learned who was selected for the position, and assessed the selectee's qualifications. Further, the documentation in the record showed that the effective date of the selection was less than 45 days prior to the date on which Complainant contacted the EEO Counselor. Therefore, Complainant established that she timely contacted the Counselor within 45 days of developing a reasonable suspicion of discrimination. Toni M. v. U.S. Postal Serv., EEOC Appeal No. 0120180339 (Jan. 12, 2018).

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

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

Commission Exercised Discretion to Excuse Delay in Filing Complaint. Complainant received a Notice of Right to File an Individual Complaint of Discrimination on July 17, 2017, but according to the Agency, did not file her complaint until October 2017, beyond the 15-day limitation period. The Commission found sufficient justification to excuse the delay. Complainant asserted that she filed her complaint before the deadline as evidenced by her submission of a Timeline of Events on July 27, and additional documents in August marked "EEO II" and "EEO III." Complainant stated that she eventually submitted the complaint form at the request of the EEO Office. The Commission acknowledged that while much of the confusion would have been eliminated if Complainant had used the Agency's official form, the Notice did not expressly indicate that the form was required. The Commission noted that the form Complainant submitted expressly referenced the previously submitted items, and the Agency did not dispute that Complainant came to the EEO Office on July 27. Complainant manifested a clear intent to file her formal complaint prior to the deadline, and the Commission found that she intended the Timeline to be her formal complaint. Joannie V. v. Dep't of the Army, EEOC Appeal No. 0120180814 (Mar. 16, 2018).

Formal Complaint Timely Filed. The Commission reversed the Agency's dismissal for untimely filing of the formal complaint. The Commission's regulations provide that a complaint is timely if it is received or postmarked before the expiration of the applicable filing period, or if no legible postmark, then within five days of the expiration of the filing period if the complaint was mailed. Here the envelope in which the complaint was mailed contained no legible postmark and was stamped received six days after the expiration of the filing period. However, because the fifth day fell on a federal holiday, the Commission found the complaint received on the following day was timely. Mario K. v. U.S. Postal Serv., EEOC Appeal No. 0120180334 (Feb. 15, 2018).

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

Commission Excused Complainant's Brief Delay in Filing Formal Complaint. The record disclosed that Complainant received the Notice of Right to File a Formal Complaint on August 25, 2017. Although the notice indicated that Complainant had to file a formal complaint within 15 calendar days of its receipt, Complainant did not file her formal complaint until September 14, 2017, three days beyond the limitation period. On appeal, Complainant explained that, shortly after she received the Notice, her home was hit by Hurricane Harvey and significantly flooded. Complainant stayed with her brother for a period of time, and was unable to attend to business like filing her EEO complaint. The Commission's regulations provide that the time limitations are subject to waiver, estoppel and equitable tolling. The Commission found that this was an appropriate case to excuse the brief delay in filing, given the nature of the hurricane and the widespread flooding it caused. Further, there was no indication that the Agency was harmed by the delay. Danielle F. v. U. S. Postal Serv., EEOC Appeal No. 0120180396 (Jan. 19, 2018).

Complainant Presented Sufficient Justification for Extending Time Limit for Filing Complaint. The Agency dismissed Complainant's complaint as untimely, stating that she did not submit her formal complaint within 15 days of receiving the Notice of Right to File. The Commission found that Complainant submitted sufficient justification for extending the time limit due to her medical condition. Complainant submitted a letter from her physician confirming that that she experienced an adverse reaction to medication several days before the filing deadline and was incapacitated during that time. Complainant stated that she contacted the EEO Specialist when she returned to work to request an extension and was told to submit her complaint as soon as possible. Complainant submitted her complaint two days after returning to work. Therefore, the Agency was ordered to process Complainant's complaint. Lynne E. v. Dep't of Hous. & Urban Dev., EEOC Appeal No. 0120180424 (Jan. 12, 2018).

Complaint Properly Dismissed as Untimely. Complainant received the Notice of Right to File a Formal EEO Complaint on October 12, 2017. Although the Notice indicated that Complainant had to file a formal complaint within 15 calendar days of its receipt, Complainant did not file her formal complaint until November 6, 2017, ten days beyond the limitation period. Complainant did not dispute that she filed her complaint beyond the limitation period, but asserted she had dyslexia, exacerbated by migraines, which made it difficult for her to understand and follow directions. Complainant, however, provided no evidence of her medical condition and its impact on her meeting filing deadlines. The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by her condition that she is unable to meet the regulatory time limits. Here, Complainant did not produce evidence to show she met this standard. In sum, Complainant failed to offer adequate justification to warrant an extension of the time limit for filing the complaint, and the Commission affirmed the Agency's dismissal for untimely filing of the formal complaint. Jona R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180894 (Mar. 28, 2018).

Formal Complaint Properly Dismissed as Untimely. The Commission found that the Agency properly dismissed Complainant's formal complaint as untimely because it was not filed within the 15-day limitation period. The record included a Postal Service Track and Confirm record that included a signature confirmation number, and indicating the Notice of Right to File a Formal Complaint was delivered to and signed for by Complainant at her address of record more than 15 days prior to the date on which she filed her complaint. The Agency properly relied on the constructive notice of delivery to Complainant's correct address and informed Complainant of the substance of the doctrine in its dismissal. While Complainant asserted on appeal that it was not her signature on the Track and Confirm record, Complainant failed to provide any alternative explanation for whose signature was on the receipt or how she ultimately obtained the Notice of Right to File. Therefore, Complainant failed to rebut the presumption of constructive notice. Sherita V. v. U.S. Postal Serv., EEOC Appeal No. 0120180359 (Jan. 31, 2018).