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Digest Seal The DIGEST Of Equal Employment Opportunity Law


Fiscal Year 2019, Volume 3

Office of Federal Operations

July 2019


Inside

 

Selected EEOC Decisions on:

Attorney's Fees

Class Certification

Compensatory Damages

Complaint Processing

Dismissals

Findings on the Merits

Jurisdiction

Mixed Motive

Official Time

Remedies

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness

 

Article:

Determining Timely EEO Counselor Contact with Respect to Recurring Violations

______________________________

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

Carlton M. Hadden, Director, OFO

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

Digest Staff

Editor: Robyn Dupont

Writers: Craig Barkley, Ayana Bowman, Trevis Busteed, Larissa Davis, Robyn Dupont,

Mary O'Rourke, Joseph Popiden, Navarro Pulley

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

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

SELECTED EEOC DECISIONS

Attorney's Fees

Commission Modified Award of Attorney's Fees.  The Commission previously found that the Agency discriminated against Complainant when it revoked her telework accommodation and failed to reasonably accommodate her.  Complainant subsequently appealed the Agency's decision awarding attorney's fees to the Commission.  The Commission initially concurred with the Agency that Complainant was not entitled to fees associated with an untimely appeal brief, or for work performed on matters unrelated to the finding of discrimination.  The Commission found, however, that the Agency's 50-percent reduction of the remaining fees was too severe, and instead reduced the requested fees by 25 percent due to a number of vague entries such as "Fact Research," and "daily report."  The Commission also reduced the fee award for supplemental fees, stating that work performed by a financial expert was not related to the finding of discrimination.  The Commission disallowed costs associated with work during the pre-complaint stage, an economic loss study, and Westlaw research.  Myrtie P. v. Dep't of Homeland Sec., EEOC Appeal No. 0120180246 (Mar. 19, 2019). (A summary of the Commission's decision regarding compensatory damages can be found below- Editor.)

Commission Modified Agency's Award of Attorney's Fees.  In a prior decision, the Commission affirmed the Agency's finding of no discrimination on some claims, but also found that the Agency denied Complainant reasonable accommodation and subjected her to disparate treatment and harassment.  The Commission ordered the Agency, among other things, to pay Complainant attorney's fees.  The Agency imposed a 30-percent across-the-board reduction in the amount requested, finding that the number of hours claimed by Complainant's attorney was excessive.    On appeal, the Commission initially noted that the first 15 pages of supporting documentation reflected time spent prior to filing the formal EEO complaint, and there was no indication the entries were related to a determination as to whether to represent Complainant.  Therefore, Complainant was not entitled to payment for these hours.  The Commission concluded that the Agency made an appropriate across-the-board reduction to the remaining fees requested.  The claim was straightforward with no depositions, hearings, or novel issues.  As such, the hours claimed were excessive.  Denese G. v. Dep't of the Treasury, EEOC Appeal No. 0120172618 (Mar. 5, 2019).

Additional Attorney's Fees Denied for Counsel Retained After Issuance of Appellate Decision.  An Administrative Judge (AJ) awarded Complainant attorney's fees after finding that the Agency discriminated against her, and the Commission affirmed the AJ's decision on appeal.  The Commission ordered the Agency to, among other things, pay Complainant $40,950 in attorney's fees.  Complainant retained new attorneys after receiving the Commission's order, and subsequently filed a petition for additional fees for work performed by the new attorneys.  Complainant argued that the Agency began responding to her inquiries only after she obtained representation.  The Agency denied the petition for fees, and provided documentation showing that it complied with the Commission's decision within one day of receiving it.  On appeal, the Commission noted that generally hours necessary to secure compliance with a Commission order are compensable.  In this case, however, Complainant failed to show that the attorney's fees were necessary, because she retained the attorneys after the Commission issued its Order and after the Agency had begun to comply.  Therefore, the Commission affirmed the Agency's decision not to award additional attorney's fees.  Mary C. v. Dep't of Homeland Sec., EEOC Appeal No. 0120172173 (Feb. 28, 2019).

Commission Modified Agency's Award of Attorney's Fees. The Agency issued a final decision finding no discrimination regarding Complainant's ongoing harassment and disparate treatment claims but concluded that management failed to reasonably accommodate Complainant's medical condition. Complainant submitted a claim for compensatory damages and attorney's fees following the Agency's decision. The Agency noted that the records submitted only accounted for a portion of the requested total.  The Agency then reduced that amount by 50 percent, reasoning that Complainant prevailed on only part of her claim.  The Commission did not consider a corrected accounting of fees submitted by Complainant's attorney for the first time on appeal.  The Commission found, however, that the Agency's across-the-board reduction in fees was not appropriate.  The Commission stated that both the successful and unsuccessful claims arose from the same set of common facts.  Specifically, the manager's harassment, imposition of discipline and comments to Complainant were not utterly separate and distinct from the manager's failure to engage in the interactive process.  Therefore, the Commission awarded fees in the amount originally submitted to the Agency.  Sid E. v. Dep't of the Army, EEOC Appeal No. 0120172812 (Feb. 27, 2019)(A summary of the Commission's decision regarding compensatory damages can be found below- Editor.)

Class Certification

Commission Remanded Class Certification Complaint for Pre-Certification Discovery.  The Commission remanded the AJ's denial of class certification because the AJ failed to grant the class agent pre-certification discovery.  Regarding numerosity, the Class Agent sought the names of "fired or demoted employees" in three Agency schools during the previous 10 years, individuals who filed EEO and administrative complaints over the previous 10 years, and information regarding the structure and membership of monthly teams over the previous 10 years.  The Class Agent alleged that he and an unknown number of other Muslim and non-Lebanese employees were subjected to a hostile work environment that included derogatory comments and mannerisms, segregation, and the posting of the Lebanese flag.  The Commission found that although the AJ concluded that Complainant could not meet the numerosity certification requirement, it was unclear from the record how many Muslim and non-Lebanese employees were subjected to the alleged harassing treatment.  Without this critical information in the record it was improper for the AJ to conclude that the Class Agent could not meet the numerosity requirement.   The AJ determined that the Class Agent did not establish the elements of commonality and typicality because he worked for the Agency for only 36 days, and there was no indication that he was eligible for promotion, was demoted, or was under-evaluated based on his religion or nationality.  However, the complaint involved an allegation of a hostile work environment that included segregation, derogatory comments/actions, and the brandishing of a Lebanese flag in a harassing manner.  Mario H. v. Dep't of the Army, EEOC Appeal No. 0120171707 (Feb. 6, 2019).

Commission Affirmed AJ's Denial of Class Certification.  The purported Class Agent alleged his supervisor violated the Agency's zero tolerance policy against threats, verbally berated employees, did not treat employees with dignity and respect, abused her position, engaged in "reckless indifference and malice," and overall violated Agency policy and regulations, and federal statutes.  The Class Agent cited several bases for the claim, including race ("various"), sex ("both"), disability (distressed heart and sleep apnea) and reprisal.  He indicated that there were 11 class members.  The Commission was not persuaded that common questions existed among the purported class members.  While the class complaint generally alleged that the supervisor engaged in actions that violated policies and laws, it did not provide details about the specific actions of the supervisor or how each purported class member was impacted by the conduct.  Also, the class complaint was unclear as to whether class members other than the Class Agent were disciplined, so did not reflect a shared injury among the class members.  The Commission found a lack of typicality because the Class Agent noted the members were of various races and both sexes, while only two had disabilities and one engaged in prior EEO activity.  The Commission concurred with the AJ that the class was not so large that consolidated or separate complaints would be impractical.  Finally, the Commission found the class lacked adequate representation because the Class Agent was not an attorney and lacked the skills, experience, time, and resources necessary to represent the interests of the class.  He also failed to identify an attorney who might represent the class.  Thaddeus N. v. U.S. Postal Serv., EEOC Appeal No. 0120142701 (Feb. 6, 2019).

Compensatory Damages

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

Commission Increased Award of Damages to $65,000.  The Commission previously found that the Agency discriminated against Complainant when it revoked her telework accommodation and failed to reasonably accommodate her.  Complainant subsequently appealed the Agency's decision awarding $30,000 in non-pecuniary damages to the Commission.  The Commission agreed with the Agency that Complainant was only entitled to damages associated with the denial of reasonable accommodation.  The Commission found, however, that an award of $65,000 was more consistent with Commission precedent.  The Agency failed to adequately consider the effects that the denial of accommodation and accompanying stress had on Complainant and her medical conditions.  Specifically, Complainant's doctor indicated that her Graves disease was no longer controlled, and Complainant stated she experienced twitching, fatigue, inability to sleep, nausea, severe weight fluctuations, skin outbreaks, and blurred vision.  Complainant's mother and former coworker provided corroborating affidavits in support of Complainant's claim.  The Commission affirmed the Agency's denial of pecuniary damages because the expenses sought occurred outside of the events found to have violated the Rehabilitation Act.  Myrtie P. v. Dep't of Homeland Sec., EEOC Appeal No. 0120180246 (Mar. 19, 2019). (A summary of the Commission's decision regarding attorney's fees can be found above- Editor.)

Commission Increased Award of Damages to $50,000.  In a previous decision, the Commission found that the Agency failed to provide Complainant with reasonable accommodation in the form of a 10-minute sit down break for every hour she worked.  The Agency subsequently issued a final decision awarding Complainant $5,000 in non-pecuniary compensatory damages.   On appeal, the Commission increased the award to $50,000, finding that the Agency's award of $5,000 was insufficient to remedy the harm experienced by Complainant.  Complainant explained that she continued to work, despite the lack of accommodation, until she retired.  Complainant averred she suffered great fatigue and pain as a result.  Complainant indicated that she could not perform household chores and experienced elevated blood pressure and loss of enjoyment of life.  Complainant noted that she had prescription pain medication but could not take it at work because her job required her to handle money.  The record was clear that Complainant did not receive the accommodation for more than five years and experienced painful complications each day that she worked during that five-year period.  Yvette H. v. Dep't of Def., EEOC Appeal No. 0120172249 (Mar. 21, 2019).

Commission Increased Award of Compensatory Damages to $20,000.  In a prior decision, the Commission found that the Agency retaliated against Complainant, and the Agency subsequently awarded Complainant $1,500 in damages.  On appeal, the Commission increased the award to $20,000.  While the Commission agreed with the Agency that Complainant could not be awarded damages for pain and suffering that occurred prior to the discrimination, the Commission found that Complainant established that the Agency's discriminatory actions exacerbated her pre-existing depression, anxiety and post traumatic stress disorder.  The discrimination resulted in increased stress, weight gain, withdrawal from family, fear of being fired, the end of her marriage and an increase in medication use.  Given the nature, severity and duration of Complainant's harm, the Commission found that an award of $20,000 was more appropriate.  The Commission also awarded Complainant $50 in pecuniary damages, noting that the Agency did not contest Complainant's claim.  Sanora S. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120171305 (Dec. 21, 2018).

Commission Increased Award of Damages to $15,000.  The Commission increased the Agency's award of non-pecuniary damages from $5,000 to $15,000.  The Commission noted that Complainant had pre-existing conditions (PTSD and depression) and the Agency was only liable for additional harm or aggravation caused by the discrimination (denial/delay of reasonable accommodation).  The record contained evidence of aggravation from Complainant, his wife and his psychologist.  Complainant reported to his psychologist that the delay in receiving accommodation caused high levels of anxiety, which increased his stress.  Complainant stated that he had to forgo participating in local mountain trail races and was not able to train because of mental and physical exhaustion.  He felt hopeless, experienced frequent and severe flare ups of irritable bowel syndrome and had extreme fatigue from lack of sleep due to anxiety and stress from not having a reasonable accommodation.  Complainant's wife stated that she noticed a considerable difference in Complainant's behaviors and mood, and Complainant withdrew from social interactions.  Andy B. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019000791 (Mar. 15, 2019).

Commission Increased Agency's Award of Non-Pecuniary Damages to $15,000.  In a prior decision, the Commission found that the Agency discriminated against Complainant based on her disability when it asked her to remove a religious item from her desk.  The Agency subsequently awarded Complainant $10,000 in non-pecuniary compensatory damages, and the Commission increased the award to $15,000 on appeal.  Complainant had previously sought treatment for work-related stress and was diagnosed with adjustment disorder, recurrent major depression, panic attacks and PTSD.  A psychiatric evaluation revealed that Complainant considered the religious item as her protection and it provided her with comfort when she was feeling stressed at work.  Complainant's psychiatrist contended that the removal of the object exacerbated Complainant's preexisting conditions and resulted in increased impairment.  Complainant stated that she felt humiliated when the object was removed.  Complainant referenced additional incidents, both before and after the removal of the object, which she claimed exacerbated her condition.  The Commission agreed with the Agency that the award of damages should only encompass the harm Complainant sustained as a result of the discriminatory act at issue to the extent that the discrimination exacerbated her preexisting conditions.  Nevertheless, the record showed that the religious object helped Complainant cope with work-related stress and her conditions worsened after the item was removed from her desk.  The Commission concluded that an award of $15,000 was not monstrously excessive and was consistent with prior Commission precedent.  The Commission affirmed the Agency's denial of past pecuniary and future pecuniary damages.  Matilde M. v. Soc. Sec. Admin., EEOC Appeal No. 0120172543 (Feb. 27, 2019).

Commission Increased Agency's Award of Non-Pecuniary Damages to $15,000.  The Agency issued a final decision finding no discrimination regarding Complainant's ongoing harassment and disparate treatment claims but concluded that management failed to reasonably accommodate Complainant's medical condition. Complainant submitted a claim for compensatory damages and attorney's fees following the Agency's decision. The Agency denied Complainant's claim for past pecuniary damages and awarded Complainant $5,000 in non-pecuniary damages.  On appeal, the Commission did not consider the past pecuniary damages because Complainant did not raise the issue.  The Commission did increase the award of non-pecuniary damages to $15,000.  The Commission highlighted that the Agency's own decision revealed that management blatantly disregarded and rejected Complainant's requests for accommodation.  Complainant's wife and sister-in-law stated that Complainant suffered emotional pain, and mental anguish as a result of the denial of accommodation, and this exacerbated his condition.  The Commission noted that, despite the Agency's assertions, it could not make a clear distinction between the harm resulting from the express finding of discrimination by the manager and the manager's other alleged, but unproven, acts of discrimination.  The Commission noted that $15,000 was not monstrously excessive and accounted for the nature of the Agency's discriminatory actions and the harm it caused.  Sid E. v. Dep't of the Army, EEOC Appeal No. 0120172812 (Feb. 27, 2019)(A summary of the Commission's decision regarding attorney's fees can be found above-Editor.)

Commission Increased Award of Non-Pecuniary Damages to $10,000.  The Agency awarded Complainant $5,000 in damages regarding its finding only on the claim of retaliation.  Complainant supported her claim for compensatory damages with an affidavit and statements from a manager, a representative, her siblings and her daughter.  Prior to the period of alleged discrimination, Complainant claimed she had no emotional or health problems.  However, during the discrimination she stated she suffered from panic attacks, insomnia, high blood pressure, irritability, headaches and feelings of isolation.  The manager stated Complainant, a well-adjusted dedicated employee, descended into extreme emotional distress.  Complainant's family observed Complainant's dramatic change in appearance, chronic insomnia, fatigue, tension headaches and nervousness and her daughter stated Complainant became preoccupied with problems at work, leaving her anxious and depressed.  The Agency noted the evidence regarding Complainant's emotional pain and suffering concerned the entire period, but the reprisal only concerned one year, and it could not identify a new emotional harm from the retaliation.  Nevertheless, the Agency found a causal link between the reprisal and some amount of emotional harm.  The Commission found that even if Complainant had pre-existing conditions, there was little doubt the Agency's reprisal aggravated those conditions.  The Commission increased the award based on the severity of the harm and consistent with prior Commission precedent.  Davida L. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120172609 (Feb. 15, 2019)

Commission Increased Award of Non-Pecuniary Damages to $10,000.  The Agency found that Complainant was subject to discrimination when it failed to reasonably accommodate Complainant's physical and mental disabilities in a timely manner.  Among other remedies, the Agency awarded Complainant $500 in non-pecuniary damages for the harm she suffered because of the failure to accommodate. The Agency attempted to minimize the length of time Complainant was harmed, ignoring its own finding that Complainant was subject to discrimination for a period of eight months.  Accordingly, the Commission was unpersuaded by the Agency's attempt to recant its finding of discrimination or limit the duration of the time of injury and increased the award of non-pecuniary damages to $10,000 to more appropriately provide full and make-whole relief.  Complainant submitted statements from her husband and a colleague, as well as medical evidence in support of her claim for pain and suffering she experienced when she was forced to drive a government van after the Agency was made aware of her back and neck conditions.  Complainant had to take pain medication and visited the hospital several times.  Gia M. v. Dep't of Def., EEOC Appeal No. 0120172952 (Feb. 8, 2019).

Commission Increased Award of Non-Pecuniary Damages to $6,000.  Complainant appealed the final agency decision awarding her $4,000 in non-pecuniary damages. On appeal, Complainant introduced medical documentation relating to the stress she experienced while subject to a hostile work environment.  Complainant was depressed, stressed, and had elevated blood pressure due to the environment at work. The Commission increased the non-pecuniary damage award to $6,000 to more fully remedy Complainant's injury and to remain consistent with awards given in similar cases.  Vena H. v. Dep't of Def., EEOC Appeal No. 0120172589 (Feb. 8, 2019).

Commission Affirmed Agency's Award of $1,000 in Non-Pecuniary Damages.  The Commission affirmed the Agency's finding that Complainant was entitled to $1,000 in compensatory damages related to one incident of reprisal.  The incident occurred when management officials discussed complainant's EEO complaint during a 90-day performance evaluation.  Complainant sought medical treatment for anxiety, depression and insomnia and also experienced suicidal thoughts, stress, excessive fatigue, humiliation, and marital/family strain.  However, the Commission found that most of Complainant's emotional harm was caused by factors other than the Agency's single retaliatory act.  Leonardo M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120172736 (Dec. 7, 2018).

Complaint Processing

Commission Denied Complainant's Request to Remand Complaint for Hearing.  The Commission denied Complainant's request on appeal to remand her case for a hearing because she was coerced into withdrawing her hearing request.  Complainant contended that her attorney at the hearing stage threatened and misled her into the withdrawal.  The Commission held that a party raising coercion must show an improper threat of sufficient gravity to induce assent to the agreement and that the assent was in fact induced by the threat.  Such a threat may be expressed, inferred or implied by words or conduct and must convey the intent to cause harm or loss.  Complainant did not argue that the Agency was involved in her decision to waive her right to a hearing and she provided no evidence of coercion beyond a mere assertion.  Brook V. v. Dep't of Homeland Sec., EEOC Appeal No. 0120172064 (Dec. 4, 2018).

Dismissals

(See also by category, this issue.)

Agency Improperly Dismissed Complaint for Stating Same Claim Raised Previously.  The Commission found that the Agency improperly dismissed Complainant's complaint on grounds that he raised this matter in a prior EEO complaint.  In this case, the Agency did not establish that the prior EEO complaint contained the same matter as the instant complaint.  The instant complaint alleged discrimination regarding a 14-Day Suspension that was issued to Complainant on June 28, 2018. The prior EEO complaint raised several claims including that Complainant was disciplined "on dates not specified."  The Commission noted the record contained a copy of the June 28, 2018 Notice of 14-Day Suspension issued to Complainant which referenced a 7-Day Suspension.  The Commission found that the Agency failed to provide evidence or proof in support of its final decision.  Specifically, the Commission was unable to find that Complainant specifically raised the issue of the June 28, 2018 14-Day Suspension, in his prior EEO complaint.  Martin S. v. U.S. Postal Serv., EEOC Appeal No. 2019001710 (Mar. 21, 2019).

Complaints Properly Dismissed as Collateral Attack on Another Proceeding and for Untimely EEO Counselor Contact.  Complainant filed one complaint alleging that the Agency discriminated against him based on disability and reprisal when his workers' compensation claim was denied, and when he was charged with being absent without leave (AWOL).  Complainant filed a second complaint alleging that he was subjected to a hostile work environment in February and March 2018.  The Commission consolidated Complainant's appeals from the Agency's final actions dismissing both complaints and affirmed the dismissals.  Regarding the denial of Complainant's worker's compensation claim, the Commission agreed that this constituted a collateral attack on the workers' compensation adjudicatory process and did not state a viable claim to be addressed within an administrative EEO complaint.  The Commission also affirmed the Agency's dismissal of the claim regarding the AWOL charge, and Complainant's claim of hostile work environment because of untimely counselor contact.  Complainant failed to raise those matters within 45 days and did not provide adequate justification for extending the limitation period.  While Complainant asserted that his cancer diagnosis justified an extension, Complainant worked part-time during the period in question and did not show that he was incapacitated and unable to contact an EEO counselor.  George H. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019000613 (Feb. 27, 2019).

Complaint Improperly Dismissed for Stating Same Claim Raised Previously.  The Commission reversed the Agency's decision dismissing Complainant's complaint for stating the same claim as an earlier complaint.  Complainant alleged, in a previous complaint, that the Agency failed to accommodate her.  In the present complaint Complainant alleged the Agency failed to update her equipment for her accommodation.  The Commission held these were not identical complaints.  Daisy B. v. Dep't of Health & Human Serv., EEOC Appeal No. 2019000820 (Feb. 12, 2019).

Complaint Improperly Dismissed for Stating Same Claim Raised Previously.  The Commission reversed the Agency's decision dismissing Complainant's complaint for stating the same claim as an earlier complaint.  Complainant filed an informal complaint regarding the removal of a reprimand.  Complainant stated she withdrew the complaint when a person in Human Resources informed her the reprimand would be removed after one year.  When the Agency refused to remove the reprimand, she filed the complaint herein.  The Commission found the second complaint sufficiently different from the first complaint because Complainant was told to wait one year, which had now passed.  Nerissa S. v.  Dep't of Veterans Affairs, EEOC Appeal No. 2019000479 (Feb. 12, 2019)

Complaint Properly Dismissed for Alleging Dissatisfaction with Processing of Prior Complaint.  Complainant filed a formal complaint alleging discrimination when, during a separate EEO hearing, an Agency Attorney Advisor stated that Complainant's medical disabilities were baseless.  The Agency dismissed the claim on grounds that it expressed dissatisfaction with the processing of a previously filed complaint.  The Commission agreed with the dismissal, holding that dissatisfaction with the EEO process must be raised during the processing of the pertinent complaint, not as a new complaint itself.  Here, all complaints about the EEO process should have been brought to the attention of the assigned AJ during the EEO hearing.  Horace A. v. Dep't of Homeland Sec., EEOC Appeal No. 2019000438 (Feb. 8, 2019).

Commission Affirmed Dismissal of Complaint for Failure to Timely Contact an EEO Counselor & Failure to State a Claim.  Complainant filed a claim alleging discrimination when the Agency notified him that it would not conduct an in-house investigation into his allegations of harassment; and when he was subjected to sexual harassment from February 25, 2018 through April 4, 2018.  Complainant did not contact an EEO Counselor until June 8, 2018. The Agency dismissed the claims for failure to state a claim and untimely EEO Counselor contact, respectively.  On appeal, the Commission agreed with the Agency that the allegation concerning the investigation failed to state a claim, finding that Complainant cannot use the EEO process to lodge a collateral attack on the Agency's in-house investigatory process.  Instead, Complainant must raise his concerns within the in-house process itself.  As for the second claim, the record showed that the alleged harassment occurred on April 4, 2018, but Complainant did not contact a Counselor within 45-days.  While Complainant used the Agency's Harassment Prevention process, that action did not toll the 45-day limitation period.  Raphael C. v. Soc. Sec. Admin., EEOC Appeal No. 2019000389 (Feb. 8, 2019).

Complaint Improperly Dismissed in Part.  The Commission noted that in her formal complaint, Complainant repeatedly described the claims of alleged discrimination as comprising a "hostile work environment" and "harassment."  She also alleged that the Director made it clear that she did not want to work with Complainant, and that the alleged discriminatory actions were part of an ongoing effort by the Director to remove her from her position in favor of Complainant's predecessor.  While Complainant used the word "detail" which implied discrete assignments, Complainant convincingly argued that in the context of her complaint, the actions constituted harassment.  These details isolated Complainant from co-workers, since she was excluded from meetings and emails.  The Commission found that the five claims taken together, stated an actionable claim of harassment.  By alleging a pattern of harassment, including one incident that occurred within 45 days of her contact with the EEO Counselor, Complainant stated a cognizable claim under the EEOC regulations.  The Commission affirmed the dismissal of one discrete claim concerning the denial of a specific detail request as untimely.  Kristen C. v. Dep't of the Army, EEOC Appeal No. 0120182622 (Feb. 5, 2019).

Agency Properly Dismissed Complaint Which Raised Same Issue as in Prior EEO Claim.  Complainant, a former employee of the Agency, raised religious and disability discrimination claims. The Agency determined that the complaint concerned Complainant's request to be reinstated and dismissed the complaint on grounds that Complainant previously raised the issues in a prior complaint.  On appeal, the Commission affirmed the Agency's dismissal. The record reflected that Complainant previously filed and then withdrew a formal complaint on the same matter.  Further, Complainant previously raised the matter informally and withdrew that matter. Complainant made no showing of coercion when he withdrew the prior complaints and was not entitled to reinstatement of the claims.  Roman G. v. U.S. Postal Serv., EEOC Appeal No. 2019000444 (Dec. 11, 2018).

Dismissal of Complaint Improper.  The Commission reversed the Agency's dismissal of the complaint as barred by Complainant's waiver in a settlement agreement in a prior complaint.  Complainant had alleged that the Agency forced him to transfer to another position, but then settled the complaint and agreed not to file an appeal, claim or action in any forum based on matters raised in the complaint.  Complainant thereafter filed a second complaint concerning transfers and other matters.  The Agency dismissed the second complaint stating it was covered by the settlement agreement and the provision barring further claims or appeals.  The Agency also found that some of the claims were untimely raised with the EEO counselor.  The Commission found that incidents that occurred after the signing of the agreement which involved actions by managers in Complainant's post-transfer workplace, including incidents before the agreement was signed, were not covered by the agreement and the Agency should not have dismissed them.  The Commission also found that the allegations, some of which occurred within 45 days of Complainant's contact with the EEO Counselor, stated a viable claim of hostile work environment.  Cortez J. v. Dep't of Def., EEOC Appeal No. 0120180964 (Dec. 4, 2018).

Findings on the Merits and Related Decisions

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

Under the Equal Pay Act

Agency Did Not Violate Equal Pay Act.  The Commission affirmed the Agency's finding that it did not deny Complainant equal pay because of her sex under the Equal Pay Act (EPA).  The Commission found that one male comparator also served in a concurrent position while occupying the position Complainant considered to have comparable duties.  Further, the second comparator's duties involved investigating employee corruption, drug and alien smuggling, use of force, and other national security issues, which were more time sensitive and serious than Complainant's duties.  Cassandra N. v. Dep't of Homeland Sec., EEOC Appeal No. 0120171485 (Mar. 14, 2019).

Commission Found No Violation of Equal Pay Act.  The Commission affirmed the AJ's decision on summary judgment finding that the Agency did not deny Complainant equal pay because of her sex under the EPA.  The Commission found that the male comparator who earned more than Complainant performed mostly different functions.  Further, although Complainant and the male comparator performed some of the same functions, the male comparator was responsible for producing reports and performing certain aviation-related tasks that Complainant did not perform.  Sheryl S. v. Dep't of the Army, EEOC Appeal No. 0120172477 (Mar. 8, 2019).

Commission Found Agency Violated Equal Pay Act & Title VII.  The Commission found that the Agency denied Complainant equal pay because of her sex under the EPA and Title VII.  The Commission found that Complainant's male predecessor in the position was paid more than she was while occupying that position.  As a result of discovery violations, the AJ sanctioned the Agency by drawing an adverse inference that the predecessor's functional statement or position description indicated he performed the same duties identified in Complainant's statement.  Despite imposing this sanction, the AJ found no sex-based wage discrimination after conducting a hearing, and Complainant appealed to the Commission.  The Agency did not challenge the AJ's sanction on appeal, and the testimony at hearing confirmed Complainant and her predecessor performed substantially equal work in the position, but that Complainant's starting salary was nearly $13,000 less than her predecessor.  On appeal, the Commission rejected the assertion that two male comparators who were also paid less than the predecessor provided a defense to Complainant's unequal pay claim, because there is no requirement that Complainant show a pattern of sex-based compensation disparities in a job category.  The Commission also stated that Complainant and her predecessor holding the position at different times did not defeat Complainant's case, nor was it relevant that different managers set the salaries for Complainant and her predecessor, because intent is not a factor under EPA.  While the AJ referenced the predecessor's impressive private sector experience that Complainant did not have as justification for the pay difference, the record did not contain any evidence that this experience was a factor that the Agency considered in setting the predecessor's pay.  The Commission found that based on the vague references to possible reasons for the pay disparity and lack of information reflecting how Complainant's or the predecessor's salaries were set, the Agency failed to satisfy its burden by a preponderance of the evidence to show that the pay differential was based on a factor other than sex.  Therefore, the Commission concluded that Complainant established that she was subjected to EPA and Title VII violations.  With regard to remedies, the Commission noted that Complainant was entitled to back pay for two years beginning on the date she filed her complaint for the EPA violation, and to an award of compensatory damages for intentional discrimination under Title VII.  However, since Complainant cannot recover both liquidated damages under the EPA and compensatory damages under Title VII, the Agency was instructed to pay Title VII compensatory damages only to the extent they exceeded the amount of liquidated damages actually paid for the EPA violation.  The Commission affirmed the AJ's finding of no discrimination regarding other allegations raised in the complaint.  Mercedez A. v. Dep't of Agric., EEOC Appeal No. 0120170574 (Mar. 7, 2019).

Agency Did Not Violate Equal Pay Act.  The Commission affirmed the Agency's finding that it did not deny Complainant equal pay because of her sex under the EPA.  Complainant challenged the Agency's assertion that he was not officially appointed to the position of Associate Deputy Assistant Secretary.  Complainant contended that he officially encumbered the position on a certain date in accordance with the Agency's reorganization plans, and he asserted that the Agency failed to allow him to negotiate a salary but allowed a female employee to negotiate her salary upon her appointment to a similar position.  The Commission found the positions had substantially different job duties.  Complainant's duties included formulating agency-wide procurement doctrine and policy, developing and implementing acquisition and risk management, quality assurance and compliance activities, and conducting the contracting officer warranting program.  In contrast, the female comparator employee, who received a lateral reassignment into the position of Chancellor of the Agency's Acquisition Academy, had entirely different job duties, including leading the design, development and delivery of competency-based training for the Agency's acquisition workforce, and developing/implementing Agency-wide acquisition workforce training policies, programs, and practices for employees.  James S. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120171997 (Mar. 5, 2019), request for reconsideration denied EEOC Request No. 2019002626 (July 23, 2019).

Commission Found Agency Violated EPA.  Complainant was a General Surgeon at an Agency Medical Center.  Complainant initially was paid less than the other doctors at the Center, with the caveat that those doctors performed more extensive surgeries than she did.  However, the Center was eventually converted to a general facility, with all surgeons taking on the same responsibilities.  Complainant then filed an EEO complaint, alleging discrimination on the basis of sex when the Agency paid her less than several male coworkers, failed to pay her the correct salary that accompanied her role as Acting Chief of Surgery, and rescinded a full-time job offer for that position.  The Agency conceded that Complainant established a prima facie case of discrimination under the EPA, but it asserted that the difference in salaries was related to a difference in years of experience, which was a covered affirmative defense under the EPA.  On appeal, the Commission found that the Agency failed to meet its burden of proving that the pay disparity was due to a factor other than sex.  The Agency provided only vague references to possible reasons for the pay disparity, such as a seniority system that awarded individuals with more years of experience, but the Agency did not provide any corroborating evidence to support its assertions.  Therefore, the Commission found that the Agency violated the EPA.  Further, the Agency failed to articulate a legitimate, nondiscriminatory reason for the pay disparity between Complainant and two male comparators, and, as such, Complainant also established her claim of sex discrimination under Title VII.  The Commission noted that Complainant could not receive duplicative relief under the EPA and Title VII.  Since the Agency had not willfully violated the EPA, Complainant was entitled to two years of back pay amounting to the difference between her salary and that of her highest paid comparator.  Complainant made a claim for compensatory damages under Title VII, and the Commission instructed the Agency to investigate Complainant's claim and pay Complainant any damages that exceed the amount of liquidated damages paid under the EPA.  The Commission affirmed the Agency's finding of no discrimination with regard to the remaining claims.  Margeret M. v. Dep't of Veteran Affairs, EEOC Appeal No. 0120170362 (Feb. 21, 2019).

Under the Rehabilitation Act

Denial of Reasonable Accommodation Found.  In September 2012, Complainant initiated his request for a reasonable accommodation due to his dyslexia, and his performance improved when he received accommodations in July 2013.  In October 2013, however, the Agency informed Complainant that his software was not approved and removed the software from his workstation.  Complainant requested alternative software the following month.  In May 2014, Complainant requested a status update from the Agency's Reasonable Accommodation Program Manager, who responded that he "lost track" of Complainant's request.  Complainant ultimately received accommodations in February 2015, and his performance improved such that he was promoted five months later.  Complainant filed an EEO complaint alleging, in part, that he was discriminated against when the Agency withdrew his accommodations and failed to provide him with an alternative accommodation.  On appeal, the Commission found that Complainant was a qualified individual with a disability, and that the Agency unnecessarily delayed accommodating him.  While the Agency argued that there were "security reasons," it did not provide any details describing the concerns.  Further, the Commission found that Complainant actively worked to try to get accommodations, but that the Agency "lost track" of his request for approximately five months; failed to adequately respond to his request for a list of Agency-approved software; and blamed him for a delay when he requested a change in the brand of software, even though the Reasonable Accommodation Program Manager was aware of the change and did not act to get that software vetted.  The Commission found that the Agency discriminated against Complainant based on his disability when it failed to provide him with a reasonable accommodation in a timely manner, and when it delayed his promotion.  Among other remedies, the Commission ordered the Agency to provide Complainant a retroactive promotion, with back pay and other benefits; and to conduct a supplemental investigation of his claim for compensatory damages.  Ruben T. v. Dep't of Justice, EEOC Appeal No. 0120171405 (Mar. 22, 2019).

Denial of Reasonable Accommodation Found.  Complainant filed an EEO complaint alleging among other things, that she was subjected to discrimination on the basis of disability (knee tendonitis) when the Agency withdrew her reasonable accommodation.   On appeal, the Commission found that the record was undisputed that the Agency previously granted Complainant an ergonomic chair as a reasonable accommodation.  Complainant indicated that she had such a chair in the past, and that the Agency perhaps lost the chair during a move to a new facility.  When Complainant submitted a renewed request for an ergonomic, adjustable chair, the District Reasonable Accommodation Committee (DRAC) granted the request but the record did not show that Complainant ever received the chair.  Complainant's supervisor stated that she provided Complainant a chair that had "a cushion in the back area and seat area."  The provided alternative accommodation was not effective because it was not adjustable as requested by Complainant's doctor.  Thus, the Commission found that Complainant was not provided with an effective reasonable accommodation following the DRAC meeting until her return to full duty.  The Agency was ordered, among other things, to investigate Complainant's entitlement to compensatory damages, and to provide training to management officials at the facility emphasizing the Agency's obligations regarding reasonable accommodation.  Kiera H. v. U.S. Postal Serv., EEOC Appeal No. 0120172032 (Mar. 21, 2019).

Agency Failed to Reasonably Accommodate Complainant.  According to the record, Complainant had a permanent back condition, and the Agency initially provided her with an ergonomic chair.  Complainant later reported that the chair was broken, but the Agency failed to provide her with a replacement that met her needs.  The Commission stated that the Agency should have worked with Complainant to conduct an individualized ergonomic assessment that would have determined Complainant's specific needs.  Instead, the Agency first completely denied Complainant's request for an ergonomically correct chair, and then provided her with a chair that not only did not fit her physical and medical needs, but also caused her to experience additional physical impairments.  The Commission concluded that the Agency's provision of chairs without conducting an ergonomic assessment of Complainant's individual needs was wholly inadequate and deprived her of an accommodation that was effective.  The Agency did not show that providing Complainant with a properly fitting ergonomic chair would have imposed an undue hardship on the Agency. Therefore, the Commission found that the Agency denied Complainant a reasonable accommodation. Finally, the Commission concluded that the Agency's failure to conduct an individual assessment of Complainant's need for a reasonable accommodation reflected its lack of good faith in this matter, and therefore, Complainant was entitled to compensatory damages.  The Commission affirmed the Agency's finding that Complainant failed to prove her claim of harassment.  Rochelle F. v. U.S. Postal Serv., EEOC Appeal No. 0120171406 (Mar. 5, 2019).

Disability Discrimination Found When Agency Failed to Return Complainant to Her Position.  Complainant alleged that the Agency discriminated against her based on a perceived disability when it placed her on light duty and deemed her not medically qualified for her Police Officer position.  Complainant was initially diagnosed with asthma.  After she had an allergic reaction, she was prescribed an EpiPen. An allergist-immunologist subsequently diagnosed her with exercise-induced anaphylaxis but determined that she was fit for duty as a Police Officer.  After Complainant provided medical documentation of these conditions to the Agency, she was placed on light-duty status.  An Agency physician examined Complainant and determined that she was not fit for duty because she had a "potentially life-threatening medical condition" that impacted her ability to engage in physical activity.  On appeal, the Commission determined that the Agency regarded Complainant as substantially limited in the major life activity of working.  The Agency concluded that Complainant's asthma prevented her from immediately performing aerobic or strenuous tasks, and, as such, she was not qualified as a Police Officer.  The Commission noted that the criteria used by the Agency were not unique to Complainant's Police Officer job, and the Agency regarded Complainant as being significantly restricted from performing all jobs requiring aerobic or strenuous exercise.  The Agency did not contest Complainant's ability to perform the duties of the Police Officer position but asserted that she was not qualified based upon the possibility of future injury to herself or others.  The Commission found, however, that nothing in the record showed that Complainant's medical condition impaired her performance of essential tasks as a Police Officer.  Additionally, the Agency did not individually assess Complainant and, instead, applied a blanket medical qualification standard without examining the specific application to Complainant when it disqualified her.  Complainant had never experienced anaphylaxis while on duty or while performing a hazardous activity and would be able to self-administer an EpiPen if a reaction were to occur.  The Commission held that the Agency did not sustain its burden to show that Complainant posed a significant risk of harm to herself or others and was fully qualified to perform Police Officer duties. The Commission concluded that while it was reasonable for the Agency to initially place Complainant in light duty status pending receipt of medical documentation, the Agency discriminated against Complainant when it failed to return her to her Police Officer position in a full duty status.  The Agency was ordered, among other things, to offer Complainant reinstatement to the Police Officer position, with appropriate back pay and benefits.  Candi R. v. Dep't of Def., EEOC Appeal No. 0120172238 (Feb. 28, 2019).

Agency Failed to Provide a Reasonable Accommodation.  Complainant filed a formal EEO complaint alleging, among other things, discrimination based on disability (chronic migraines and fibromyalgia) when the Agency denied her request for accommodation.  Specifically, Complainant requested an additional telework day per week as a reasonable accommodation for her known physical disabilities.  It was undisputed that Complainant was qualified and could perform the essential functions of her job while teleworking, and she provided her supervisor with medical documentation, and a narrative explaining how an additional day of telework would accommodate her conditions.  Her supervisor determined Complainant's request was not "valid" because, among other things, Complainant's health conditions were "manageable" and episodic in nature. The Commission noted that merely because Complainant's conditions were episodic, and at times manageable, did not exempt the Agency from its responsibility to provide reasonable accommodation.  By denying Complainant's request for accommodation, her supervisor failed to initiate the interactive process to arrange a reasonable accommodation for Complainant's known physical disabilities, even if not the one she specifically requested.  The Commission affirmed the Agency's dismissal of three claims and finding of no discrimination regarding two additional claims.  The Agency was ordered, among other things, to consider Complainant's request for compensatory damages, and pay Complainant's attorney's fees and costs.  Anne W. v. Soc. Sec. Admin., EEOC Appeal No. 0120172935 (Feb. 26, 2019).

Agency Failed to Provide a Reasonable Accommodation.   Complainant filed a formal complaint alleging, among other things, that the Agency discriminated against her based on her disability (deafness) when her supervisor denied Complainant's request for an interpreter at a safety talk.  Although the supervisor indicated he was not aware that Complainant had been denied an interpreter at any time, he did acknowledge providing Complainant with handouts in lieu of an interpreter at some time during the period mentioned by Complainant.  The Commission stated that Complainant's ability to lip read and the Agency's willingness to provide printed material and text communication did not excuse the Agency of its obligation to provide Complainant with an interpreter at the talks.  The Commission further emphasized that the Agency did not claim that providing an interpreter would constitute an undue burden, and regardless, there was no evidence that doing so would be unduly costly to the Agency.  The Agency was ordered, among other things, to ensure Complainant was provided with a qualified sign language interpreter when required during her employment and investigate her claim for damages.  Coralee H. v. U.S. Postal Serv., EEOC Appeal No. 0120172277 (Feb. 15, 2019).

Disability Discrimination found When Agency Failed to Re-Administer Polygraph. Complainant, who was being treated for multiple sclerosis (MS), was required to take a polygraph when he sought a transfer to a new department. When Complainant arrived for his polygraph test, the Polygraph Examiner declined to administer the test because he believed that medications Complainant was taking for his condition could interfere with the polygraph results.  Complainant was given a standard letter for his doctor to complete and return so that he could take the polygraph.  Complainant's doctor indicated that there was no peer reviewed literature on the effect of MS on the validity of polygraph testing and advised that Complainant's condition has been under excellent control but did not offer an opinion regarding whether Complainant could take the polygraph.  A Security Specialist then advised Complainant to find another job.

Complainant filed an EEO Complaint alleging discrimination on the basis of disability.  Complainant contended that he requested a reasonable accommodation for his polygraph test which was denied.  The Commission found that Complainant had established a prima facie claim of disability discrimination, and that the Agency stated a legitimate, nondiscriminatory reason for not allowing Complainant to take a polygraph test, specifically that a polygraph test was required of all new employees of the department and that there was no waiver.  However, the Commission found that the purported legitimate, nondiscriminatory reason was a pretext for disability discrimination.  Complainant followed the Agency's instructions and secured a letter from his doctor.  Despite this letter, managers determined that Complainant would not be allowed to take the polygraph because Complainant's doctor did not provide a simple "yes" or "no" answer.  Further evidence demonstrated that the Security Specialist perceived Complainant's medical condition to be a risk, in the absence of evidence to support that conclusion.  The Agency was ordered, among other things, to offer Complainant the opportunity to returned to his previous position, allow him to take a polygraph examination whether or not he returns to his position, and investigate his claim for damages.  Carroll R. v. Dep't of the Navy, EEOC Appeal No. 0120170064 (Feb. 8, 2019).

Under Title VII

Agency Not Vicariously Liable for Coworker Harassment.  The Commission found that the Agency was not vicariously liable for the actions by one of Complainant's coworkers.  Complainant alleged that a coworker sexually harassed her when he made sexual comments to her and showed her pornographic pictures on his government-owned computer.  Complainant informed her supervisor of the unwelcome conduct, although not specifically calling it sexual harassment, and within a few days the supervisor counseled the coworker not to make offensive comments to Complainant.  Complainant did not dispute that the coworker's harassing behavior stopped after the counseling.  The Commission found the Agency's corrective action proportionate and effective.  Alycia R. v. Dep't of Hous. & Urban Dev., EEOC Appeal No. 0120172284 (Mar. 8, 2019).

Agency's Imposition of Discipline was a Pretext for Unlawful Discrimination.  Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of color when it placed her in a non-duty status and issued her a notice of removal for unacceptable conduct that was later reduced to a suspension.  Each comparison employee identified by Complainant (despite some different job titles) was responsible for delivering the mail. The comparison employees all had the same second-line supervisor and failed to deliver a portion of a mail bundle assigned to them.  Neither Complainant nor the comparison employees had a record of discipline.  The Commission found all relevant aspects of Complainant's employment were identical to that of the comparison employees.  The record established that none of the White employees who failed to deliver mail received discipline while Complainant and another Black employee charged with such behavior were placed off duty and received removal notices.  Accordingly, the record evidence established a clear pattern of disparate treatment.  The Commission further found that Complainant not only established a prima facie case of discrimination, but she also sufficiently established that the Agency's articulated explanation for disciplining Complainant was a pretext for discrimination.  Specifically, because the record showed that Black employees were disciplined for violations that White employees seemed to perform all the time without so much as a verbal warning, the Agency's articulated explanation was not credible.  Further, Complainant's supervisors' contention that they were not aware of any of the Agency policy violations by White employees was not credible given the contradictory statements of multiple witnesses who stated otherwise.  The Commission noted that the contradictory witness statements provided detailed and supporting documentation, while the supervisors' testimony was vague and brief.  In addition, both of Complainant's supervisors inexplicably failed to recall numerous key details. The Commission also found it incredible that one supervisor could not produce relevant information about the employees who failed to return mail during the relevant time-frame using the Agency's Workload Status report.  The record also contained evidence that this same supervisor may have falsified Agency records to make it appear that such mail was undeliverable when, in fact, it was deliverable.  Accordingly, the Commission found that the Agency's explanation for the imposed discipline was a pretext for discriminatory animus based on Complainant's color.  The Agency was ordered, among other things, to remove the disciplinary notices from Complainant's official personnel file, and determine the appropriate amount of back pay, interest, and other benefits to which she was entitled.  Cathy V. v. U.S. Postal Serv., EEOC Appeal No. 0120172200 (Feb. 6, 2019).

Under Multiple Bases

Race and Sex Discrimination Found Regarding Negative Recommendation.  Complainant filed an EEO complaint alleging race (Latino) and sex (female) discrimination, after a supervisor gave her a negative reference.  Complainant had worked under the supervisor for several years and applied for a job at another federal agency.  Though the job was with another federal agency, the position would have kept Complainant in the same facility and given her equal or greater authority than her supervisor.  It was undisputed that the supervisor's negative reference resulted in Complainant's nonselection for the position despite her qualifications, outstanding recommendations from other Agency references, and favorable performance ratings from the supervisor both before and after the reference.  While the Agency stated that Complainant's own actions, including a questionable attendance issue, resulted in the negative reference, the Commission noted that the supervisor's negative recommendation contradicted the supervisor's own statement that he had "no issues" with Complainant's performance. Further, Complainant's past awards and performance evaluations undercut the veracity of the supervisor's reference to such things as Complainant's "negative demeanor," and tendency to question assignments in a way that negatively impacted the department, for which the supervisor had no supporting documentation.  The Commission found no legitimate explanation for the action, and thus concluded that discriminatory animus played a role in the negative reference.  The Agency was ordered, among other things, to designate a management official other than the supervisor to provide references for Complainant and investigate her claim for damages.  Thomasina B. v. Dep't of Justice, EEOC Appeal No. 0120173008 (Feb. 27, 2019).

Denial of Religious Accommodation and Unlawful Retaliation Found.  Complainant submitted a written request to his Manager for a religious accommodation, stating that due to his religious beliefs he is not permitted to work on Sunday.  The Manager responded to Complainant's religious accommodation request in writing, notifying him that another employee had volunteered to work on Sundays, so Complainant would not need to routinely work on that day. When Complainant failed to report for training as scheduled on several Sundays, however, he was marked as absent without official leave (AWOL) and issued a Notice of Removal for failing to report to work on three consecutive Sundays, as well as failure to report to work on two days when he used approved leave.  Subsequently, Complainant was issued another Notice of Removal for failure to follow instructions and unacceptable conduct.  Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of religion (Methodist).

On appeal, the Commission noted that Complainant had clearly provided the Agency with a letter indicating that his religious belief forbade him from working on Sundays.  Despite the Agency's indication that another employee would take on the regular Sunday assignment, the Agency still required Complainant to come to work on three consecutive Sundays to attend training, as well as indicated that he would be expected to work some Sundays as a backup to the other employee.  Accordingly, the Agency essentially denied Complainant's religious accommodation.  In addition, the Agency did not provide any evidence regarding the availability of other employees who could serve as a Sunday backup. As such, the Commission concluded that the Agency failed to meet its burden of proving undue hardship in granting Complainant's religious accommodation.  The Commission also concluded that the first removal was inextricably intertwined with the Agency's unlawful denial of religious accommodation.  The Commission noted that while Complainant later exhibited inappropriate conduct when he used profanity and walked out of a meeting, the evidence of record did not support a finding that this conduct would have resulted in a removal action had it not been for the conflict over Complainant's requests for religious accommodation and the imposition of the first removal.  The Commission noted that the second removal notice explicitly stated that the first removal was considered in reaching the decision.  Accordingly, the Commission found that, more likely than not, Complainant's engagement in protected activity played a significant role in the decision to issue the second removal.  The Agency was ordered, among other things, to retroactively reinstate Complainant with back pay and interest; remove and expunge all documents related to the removals from Agency records; and investigate his claim for damages.  Stanton S. v. U.S. Postal Serv., EEOC Appeal No. 0120172696 (Feb. 5, 2019).

Retaliation

Retaliatory Harassment Found.  The Commission found that Complainant was subject to a hostile work environment tainted with retaliatory animus.  Prior to filing his complaint, Complainant had been a witness in another employee's (ML's) EEO actions against the Agency.  Specifically, ML filed a grievance alleging discriminatory harassment by a subordinate employee, and an EEO complaint alleging retaliation by the employee and management officials.  It was undisputed that Agency managers were aware that Complainant participated as a witness in support of ML.  An AJ found that the Agency had unlawfully retaliated against ML.  Complainant asserted that his claim mirrored that of ML and that the Agency allowed the discriminatory conduct to continue.  The Commission took administrative note of the decision in ML's complaint to find in favor of Complainant and found that the weight of the evidence showed that Agency managers harbored retaliatory animus toward Complainant.  Specifically, a supervisor noted that Complainant "collaborated" with "false accusers."  The supervisor also treated Complainant in an angry and hostile manner after he and ML brought their claims of discriminatory harassment by the subordinate to management's attention.  The Agency was ordered, among other things, not to assign Complainant to work under the supervisor, and to investigate Complainant's claim for damages.  Henry L. v. Dep't of the Army, EEOC Appeal No. 0120172820 (Feb. 25, 2019).

Retaliatory Harassment Found.  Complainant filed an EEO complaint alleging, among other things, that he was subjected to harassment in retaliation for his protected EEO activity.  On appeal, the Commission found that the record supported a finding of unlawful retaliation.  Complainant's testimony, along with other credible corroborative evidence, showed that various managers and co-workers were hostile toward Complainant, criticized and screamed at him, and treated him poorly.  Further, the Commission stated that the managers' conduct was intended to deter Complainant from engaging in the EEO process.  Specifically, whenever the responsible management officials received affidavits to respond to with respect to Complainant's EEO complaints, they would display displeasure toward Complainant, and say things like "this EEO business" needs to be dropped.  In addition, as punishment, the managers would force Complainant to perform an unrealistic amount of work before he was permitted to work on his EEO complaints.  Because of the pervasiveness and duration of the conduct, the Commission found Complainant's work environment to be hostile and abusive.  Finally, the Commission imputed liability to the Agency because it failed to prevent or correct the hostile work environment.  The Commission affirmed the Agency's finding that Complainant failed to prove his additional claims of discrimination.  The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training to the named management officials.  Mario K. v. U.S. Postal Serv., EEOC Appeal No. 0120172206 (Feb. 15, 2019).

Jurisdiction

Commission Lacks Jurisdiction Over Complaints Filed by Employees of U.S. Tax Court.  Complainant began working in an excepted position at the Agency, and ultimately initiated EEO counseling through the Agency's administrative process.  The Agency conducted an internal hearing, and after the Hearing Officer issued a decision finding no discrimination, Complainant filed an appeal with the Commission.  The Commission dismissed Complainant's appeal, finding that it did not have jurisdiction to consider the matter.  Complainant was in the excepted service, and the applicable statutory provisions state that the Agency shall develop its own procedures for resolving complaints of discrimination.  Delfina Y. v. U.S. Tax Court, EEOC Appeal No. 0120171334 (Feb. 8, 2019).

Mixed Motive

Mixed Motive Discussed in Claim of Retaliation.  Complainant worked as a Health System Specialist and was a Presidential Management Fellow (PMF) appointee.  As a PMF, Complainant was given a two-year temporary appointment.  Complainant completed her two-year requirement and was granted a 120-day extension but was not converted to a career conditional appointment.  Among the reasons cited by the Agency for not converting Complainant's career status was that she complained to the Agency Head about alleged harassment, both sexual and non-sexual, by a manager, S2.  After an investigation, management determined that Complainant's assertions to the Agency Head were not true.  Subsequently, Complainant was issued a letter of admonishment for making untrue accusations against S2, placed on administrative leave, and not converted to a permanent position which resulted in her termination.

 

Complainant filed an EEO complaint alleging discrimination based on sex and retaliation.  On appeal, the Commission found that management's actions, especially those of S2, who made the ultimate decision not to convert Complainant to permanent status, were reasonably likely to deter protected EEO activity by Complainant or other employees.  In finding direct evidence of discrimination based on the Agency's admission that Complainant was not converted because she raised allegations of discrimination with the Agency Head, the Commission acknowledged that this matter should be reviewed under a mixed-motive analysis because S2 also provided a non-retaliatory reason for not converting Complainant, specifically poor performance.  Although the Commission found that the record contained a legitimate justification for the Agency to have not converted Complainant for performance-based reasons, the Commission stated it could not look at this matter in a vacuum.  The Commission could not find, based on the record, that the Agency would have taken the same action, that is not converting Complainant's position to a permanent status, absent the retaliatory motivation of Complainant's managers.  The fact that S2 was the deciding official played a key role in the decision.   The Commission found no evidence to support Complainant's additional claim of harassment.  The Agency was ordered, among other things, to convert Complainant to a permanent position, award her back pay, conduct a supplemental investigation on compensatory damages, and remove the letter of admonishment from any personnel record or file.  Lauralee C. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170883 (Feb. 28, 2019).

Official Time

Commission Found Complainant Entitled to Official Time.  The Commission reversed the Agency's dismissal of Complainant's claim for official time to work on a prior complaint.  The Commission stated that awarding official time does not require Complainant to prove the time was discriminatorily denied.  The Agency stated its rules required employees to notify their supervisor in writing of their request for official time prior to using official time to work on an EEO complaint.  The Agency found Complainant did not request official time prior to using it and was in approved Family Medical Leave Act status at the time.  The EEO Investigator, however, contacted Complainant the day after she had given birth and the Investigator and Complainant agreed to proceed during Complainant's maternity leave.  For this reason, the Agency awarded Complainant 8 hours official time.  The Commission agreed the miscommunication was a factor in Complainant's failure to obtain prior approval.  The Commission determined that Complainant completed an affidavit, reviewed the report of investigation and prepared a rebuttal and was therefore entitled to 16 hours of official time.  Bernardina N. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019000488 (Feb. 15, 2019).

 

Remedies

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

Complainant Entitled to Reinstatement of Leave.  An AJ found that the Agency violated the Rehabilitation Act when it denied Complainant a reasonable accommodation and terminated her.  The AJ ordered the Agency, among other things, to reinstate Complainant and pay her back pay and "other benefits."  The Agency adopted the AJ's findings and agreed to fully implement the AJ's order.  Complainant appealed to the Commission when the Agency denied restoration of her leave.  The Commission held that Complainant was entitled to full, make whole relief, which the Commission has broadly construed to include annual leave, sick leave, health insurance, overtime, premium pay, night differentials and retirement contributions.  Therefore, the Commission ordered the Agency to restore Complainant's annual and sick leave she would have accrued but for the discrimination.  Kyong L. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120172904 (Feb. 15, 2019).

Sanctions

Commission Affirmed AJ's Dismissal of Hearing Request as Sanction.  Complainant filed an EEO complaint alleging discrimination based on age.  Following an investigation, Complainant requested an administrative hearing.  The AJ dismissed Complainant's hearing request, however, as a sanction for Complainant's failure to comply with discovery orders.  The Commission affirmed the AJ's imposition of sanctions on appeal, finding that Complainant's submissions were unresponsive, and that he did not provide any reason for his failure to comply with the AJ's orders.  The Commission affirmed the Agency's finding that Complainant was not denied reasonable accommodation or subjected to disparate treatment.  Carter R. v. Dep't of the Navy, EEOC Appeal No. 0120173003 (Feb. 26, 2019).

Commission Affirmed AJ's Dismissal of Hearing Request as Sanction.  The Commission affirmed the AJ's dismissal of the hearing request as a sanction.  At the hearing stage, the parties agreed to a protective order and stipulation that information the Agency provided would not be used for any purpose other than the prosecution of the instant EEO complaint.  Nevertheless, Complainant used one of the Agency-produced documents as an exhibit in the arbitration of his removal.  Complainant blacked out the portion of the document that indicated it was confidential and subject to a protective order.  The Commission noted that Complainant did not seek modification of the protective order to enable him to use the document.  Alden G. v. Social Security Administration, EEOC Appeal No. 0120170849 (Feb. 15, 2019).

Settlement Agreements

Complainant Entitled to Attorney's Fees Related to Securing Compliance with Settlement Agreement.  Complainant alleged breach of settlement when the Agency failed to restore sick leave and purge his Official Personnel File of certain documents.  The Agency acknowledged that it breached the settlement agreement but presented evidence on appeal that it cured the breach.  The Commission found that the Agency did not contest that it cured the breach only after Complainant's compliance efforts and awarded attorneys' fees for this effort.  Everette C. v. Dep't of the Army, EEOC Appeal No. 0120172167 (Mar. 14, 2019).

Settlement Agreement Invalid Due to Lack of Consideration.  Complainant entered a settlement agreement with the Agency providing that Complainant would fill out a form and verbally remind management of medical appointments during work hours and call her supervisor with any questions about delivery issues.  In addition, Complainant and two management officials would discuss performance issues in private and off the floor.  Complainant alleged that the Agency breached the agreement when one of the officials reprimanded and embarrassed her in front of coworkers.  On appeal, the Commission found that the settlement agreement was unenforceable due to lack of consideration.  The provisions of the agreement were routinely required and provided no different obligations than those typically expected by an Agency employee. The Commission ordered the Agency to resume processing the underlying complaint from the point where processing ceased.  Britany N. v. U.S. Postal Serv, EEOC Appeal No. 2019001079 (Feb. 8, 2019).

Settlement Agreement Void for Lack of Consideration.  Complainant and the Agency previously entered into a settlement agreement which provided, in pertinent part, that the Agency would ensure the workplace was "free of discrimination," foster a work climate where all employees could "participate and contribute," and adhere to the hiring procedures that were "permitted and governed by the bargaining unit agreement."  Complainant subsequently alleged that the Agency breached the settlement agreement. Complainant also filed a new grievance and EEO complaint.  The Commission concluded that the settlement agreement provided nothing more than what Complainant was already entitled to as an employee of the Agency, namely to be treated with respect and dignity.  Further, the hiring procedures in the settlement agreement simply iterated what was already due under the collective bargaining agreement.  As such, the Commission found the settlement agreement void for lack of consideration.  The Commission stated that Complainant should initiate EEO counseling with the Agency for any new claims which occurred after the executed settlement agreement, and the Agency must provide counseling for these post-settlement claims.  Cortez J. v. U.S. Postal Serv., EEOC Appeal No. 0120182495 (Dec. 20, 2018).

Stating a Claim

Agency Found to Be Joint Employer.  Complainant worked for a staffing firm serving the Agency as a Program Analyst (Maintenance). He alleged that he was subjected to discrimination and harassment based on his disabilities and reprisal for prior EEO activity and terminated from his position.  The Agency dismissed the complaint for failure to state a claim, reasoning that Complainant was not an Agency employee.  On appeal, the Commission found that the Agency exercised sufficient control over Complainant's position to qualify as his common law employer for the purpose of the EEO complaint process.  Specifically, Complainant served the Agency for a long time, worked on Agency premises using Agency equipment, was assigned day-to-day work by Agency management, was instructed by his staffing firm to follow the direction of Agency management, was only permitted to use his staffing firm leave with the approval of Agency personnel, and stopped serving the Agency because it decided to shift his function to a newly established government civil service position.  Complainant was terminated by the staffing firm the day after the Agency cut off his service.  The Commission found, therefore, that the Agency had de facto power to terminate Complainant, which was especially significant since this case involved his termination.  Broderick D. v. Dep't of the Navy, EEOC Appeal No. 2019001343 (Mar. 21, 2019).

Complainant Stated Viable Claim of Harassment.  The Agency determined that Complainant's formal complaint comprised one incident regarding office procedures and dismissed the complaint for failure to state a claim.  On appeal, the Commission found that a review of the formal complaint and EEO counselor's report reflected a more detailed series of alleged incidents.  Specifically, Complainant stated that she was subjected to ongoing harassment.  In response to the EEO Case Manager's email inquiring whether she received disciplinary action, Complainant also asserted that her supervisor retaliated against her by reassigning her duties to another employee.  The Commission found that by alleging a pattern of harassment, Complainant stated a cognizable claim under the EEOC regulations.  Shara D. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019001412 (Mar. 8, 2019).

Viable Reprisal Claim Stated.  Complainant alleged retaliation when her supervisor assigned her a heavier work load than others, she was issued a letter of direction, and she was forced to move her office twice in 30 days.  Upon review, the Commission found that the Agency's reason for dismissing the complaint addressed the merits of the claims without a proper investigation as required by the regulations.  Specifically, the Agency's analysis that Complainant did not engage in prior protected activity under the anti-discrimination statutes when she filed an Inspector General complaint went to the merits of Complainant's complaint and was irrelevant to the procedural issue of whether she had stated a viable claim under the Commission's regulations. Candi R. v. Dep't of Def., EEOC Appeal No. 2019001053 (Mar. 8, 2019).

Complainant Stated Viable Claim of Disability Discrimination.  Complainant alleged the Agency failed to accommodate his medical conditions when it did not comply with a grievance settlement that provided him with eight hours of work per day.  The Agency dismissed the claim as a collateral attack on the grievance process.  The Commission disagreed, stating that the complaint alleged Complainant was denied reasonable accommodation, and that if he had been given reasonable accommodation he could have worked an eight-hour day.  The Commission held this stated a viable claim of disability discrimination, noting that the Agency had a duty to provide ongoing reasonable accommodation irrespective of the grievance process.  Erik K. v. U.S. Postal Serv., EEOC Appeal No. 2019000871 (Feb. 12, 2019)

Agency Improperly Addressed Merits of Claim in Dismissal.  The Commission reversed the Agency's dismissal of Complainant's complaint for failure to state a claim.  Complainant alleged he was discriminated against when he was not selected for the position of Student Trainee in Forestry.  The Agency dismissed the complaint because complainant by his own statements was not eligible for the position.  Specifically, Complainant was not a veteran; his course of study did not relate to forestry; he took no courses related to forestry or the natural sciences; and he did not claim Indian preference.  The Commission held that the Agency's determination improperly went to the merits of the claim and was irrelevant to the procedural issue of whether Complainant stated a justiciable claim.  Henry S. v. Dep't of the Interior, EEOC Appeal No. 2019001016 (Feb. 12, 2019).

Complaint Stated Viable Claim.  The Commission reversed the Agency's dismissal for failure to state a claim.  Complainant alleged she was discriminatorily placed in a residual vacancy assignment with accommodations and not permitted to return to work at a particular facility.  The Commission found that while the Agency has the right to assign work duties at the discretion of management, the assignment of Complainant from one facility to another stated a claim.  Michelle L. v. U.S. Postal Serv., EEOC Appeal No. 2019000654 (Feb. 12, 2019).

Complaint Involving Investigation by an Agency Inspector General Properly Dismissed.  The Agency dismissed the complaint, essentially arguing that investigations by an Inspector General cannot be the subject of an EEO complaint. While the Commission has, under certain circumstances, reversed the dismissal of an EEO complaint involving an Inspector General investigation, the Commission has also previously held that, in most circumstances, merely conducting an internal investigation into purported misconduct does not, without more, cause injury sufficient to render the subject of the investigation aggrieved.  In this case, Complainant has not alleged facts sufficient to state a viable claim of discrimination.  Cathy V. v. Dep't of the Treasury, EEOC Appeal No. 2019001226 (Mar. 12, 2019).

Summary Judgment

Summary Judgment Affirmed.  The Commission affirmed the AJ's decision on summary judgment finding no harassment.  Complainant's alleged harassment claims were described as relating to disagreements over managerial decisions; being spoken to harshly, rudely, and in a manner that embarrassed him; being spoken to loudly; and being called "memo boy."  The Commission found these incidents were insufficiently severe or pervasive to alter Complainant's conditions of employment.  Foster B. v. Soc. Sec. Admin., EEOC Appeal No. 0120172997 (Feb. 14, 2019).

Summary Judgment Affirmed.  The Commission affirmed the AJ's decision to issue a decision without a hearing on the record and affirmed the AJ's decision by summary judgment in favor of the Agency.  Complainant alleged that he had been subject to a hostile work environment on the basis of national origin and race.  The Commission found that the record was sufficiently developed and there were no genuine issues of fact.  Complainant failed to demonstrate that he had been subject to harassment that was sufficiently severe or pervasive to alter the conditions of Complainant's employment.  Additionally, the Commission found that the use of a slur in this instance was not sufficiently inflammatory to rise to the level of harassment.  Abe U. v. Dep't of the Air Force, EEOC Appeal No. 0120172822 (Feb. 8, 2019) request for reconsideration denied, EEOC Request No. 2019002414 (June 14, 2019).

Timeliness

Complaint Improperly Dismissed for Untimely EEO Counselor Contact.  Complainant filed a formal EEO complaint alleging that her travel voucher was not fully reimbursed.  The Agency dismissed the complaint for untimely EEO counselor contact because it argued Complainant had been attempting to resolve the matter for several months and was, therefore, aware of the shortfall prior to receiving payment.  The Commission found the payment itself was a discrete act which occurred on February 29, 2018.  Therefore, her contact with the EEO Counselor on March 30, 2018, was timely.  The Commission noted that the Agency's assertions that it articulated legitimate reasons for the payment went to the merits of the complaint and were premature.  Afton C. v. Dep't of Homeland Sec., EEOC Appeal No. 2019001381 (Mar. 13, 2019).

Complainant Timely Raised EPA Claim.  Complainant initially contacted an EEO Counselor alleging sex and age discrimination regarding her pay and allowances, assigned duties, training, promotion/non-selection, and position description.  Complainant subsequently filed a formal complaint alleging sex and age discrimination when a younger male coworker was paid at a higher rate for "the exact same job duties and performance standards."  When contacted regarding the timeliness of her complaint, Complainant withdrew her claims pertaining to duty assignments and promotion/non-selection, but indicated that the pay grade, training, and position description claims were part of the same Equal Pay Act violation.  The Commission affirmed the Agency's dismissal of the claims regarding the position description and training request.   The Commission found, however, that Complainant's claim of pay discrimination, was timely raised.  Pursuant to the Lilly Ledbetter Fair Pay Act, Complainant was still receiving allegedly discriminatory paychecks up to and including the 45-day period prior to EEO Counselor contact.  Mui P. v. Dep't of Veterans Affairs, EEOC Request No. 0520180494 (Dec. 20, 2018).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact.  Complainant contacted an EEO Counselor, and ultimately filed a formal complaint after she was denied a higher-level assignment on two occasions.  The Agency dismissed the complaint for failure to timely contact an EEO Counselor, arguing that she did not initiate contact until three months after the most recent denial.  The Commission found that Complainant was not alleging that a single personnel action was discriminatory. Rather, Complainant was alleging ongoing discrimination which continued up until the time she initiated EEO counselor contact. Therefore, Complainant timely raised an allegation of discrimination. Joleen M. v. U.S. Postal Serv., EEOC Appeal No. 2019000498 (Dec. 12, 2018).

Commission Affirmed AJ's Dismissal of Complaint for Failure to Timely Contact EEO Counselor.  Complainant filed a formal complaint alleging that he was harassed and ultimately forced to retire.  An AJ ultimately dismissed the complaint for failure to timely contact an EEO Counselor.  The AJ stated that the Supreme Court clarified, in Green v. Brennan, 136 S.Ct. 1769 (2016), that the limitation period begins to run in cases of constructive discharge when an employee gives notice of his resignation, not on the effective date of such an action.  The Commission affirmed the AJ's dismissal on appeal.  In this case, Complainant informed Agency management of his retirement plans on January 19 or January 20, 2016, and Complainant signed a Request for Personnel Action form confirming his intent to retire on January 27, 2016.  Therefore, Complainant's April 4, 2016, EEO contact was untimely.  Both the AJ and the Commission noted that the utilization of remedial or Agency procedures does not toll the filing period for initiating EEO counseling.  Christopher M. v. Dep't of the Navy, EEOC Appeal No. 2019000796 (Feb. 26, 2019).

Complaint Properly Dismissed for Untimely EEO Counselor Contact.  Complainant filed a complaint raising a number of incidents of alleged disability discrimination.  The Agency dismissed the complaint for failure to timely contact an EEO Counselor, and the Commission affirmed the dismissal on appeal.  While Complainant indicated that she missed the deadline due to heightened anxiety, she did not provide medical documentation showing that she was so incapacitated that she could not contact the EEO Counselor.  Further, Complainant stated in prior proceedings that she had undergone "extensive efforts," to contact her union representative upon her termination.  Therefore, Complainant failed to provide sufficient justification for extending or tolling the filing period.  Alline B. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019000512 (Feb. 8, 2019).

Complaint Properly Dismissed for Untimely EEO Counselor Contact.  Complainant filed a formal complaint, and the Agency dismissed the complaint for failure to contact an EEO Counselor in a timely manner.  Complainant contacted an EEO Counselor more than two years after the discriminatory personnel action occurred.  The Commission affirmed the dismissal, noting that Complainant was unable to demonstrate a persuasive argument or evidence warranting an extension of the time limit for contacting an EEO Counselor.  The discovery of a new potential comparator almost two years later did not give rise to a new complaint of discrimination.  Additionally, the Commission noted that Complainant's use of other procedures, in this instance arbitration, did not extend the time limits for contacting an EEO Counselor.  Linette F. v. U.S. Postal Serv., EEOC Appeal No. 2019000487 (Dec. 20, 2018), request for reconsideration denied, EEOC Request No.2019002141 (July 30, 2019).

Complaint Properly Dismissed for Untimely EEO Counselor Contact.  Complainant, a retired Agency employee, alleged that the Agency discriminated against him based on his age in 1988, 1997, and 2003.  Complainant indicated that he contacted an EEO Counselor in 2003 regarding the alleged discrimination but got no response.  In 2018, far beyond the 45-day limitation period, Complainant again contacted an EEO counselor.  The Commission affirmed the Agency's dismissal of Complainant's complaint for failure to timely contact an EEO Counselor.  Complainant was responsible for following up on his claim in a timely manner and failed to provide justification for extending or tolling the time limit.  Ricky S. v. Dep't of the Interior, EEOC Appeal No. 2019000093 (Dec. 13, 2018).

Complaint Properly Dismissed for Untimely EEO Counselor Contact.  The Agency dismissed Complainant's complaint after Complainant contacted the EEO counselor six months following the alleged discrimination.  On appeal, the Commission affirmed the Agency's decision to dismiss the complaint and found that the there was insufficient evidence to warrant an extension to the 45-day limitation period.  Further, Complainant communicated with the Agency regarding another complaint during the 45-day period, which undermined Complainant's assertion that he was too incapacitated to timely contact the EEO Counselor.  Buck H. v. Dep't of Commerce, EEOC Appeal No. 0120182454 (Dec. 13, 2018).

Formal Complaint Timely Filed.  According to the record, Complainant received a Notice of Right to File on July 17, 2018.  Complainant, however, was confused as she had never spoken to an EEO Counselor prior to receiving the Notice.  The confusion was further compounded by the fact that the Notice was not addressed to Complainant.  Complainant tried to contact the Agency's EEO office and the EEO Counselor.  Despite her efforts to contact the EEO officials, the Agency never responded to Complainant's inquiries.  As the Agency failed to respond, Complainant sought out additional assistance from the Commission within the 15-day time limit.  The Agency determined that Complainant's filing date was October 4, 2018, when it received the complaint from the Commission.  The Commission has previously held that an agency may not dismiss a complaint based on a complainant's untimeliness, if that untimeliness is caused by the Agency's action in misleading or misinforming the complainant.  The Commission found that Complainant provided sufficient justification for the waiver of the time limit because the Agency's actions caused her confusion, and the Agency failed to respond to Complainant's inquiries.  As such, the Commission concluded that the Agency's dismissal for untimeliness was not appropriate.  Lashawna L. v. U.S. Postal Serv., EEOC Appeal No. 0120182747 & 2019001341 (Mar. 5, 2019).

Formal Complaint Timely Filed.  Complainant filed a formal complaint alleging that the Agency discriminated against him when it denied him a promotion. The Agency dismissed the complaint as untimely, asserting that Complainant received the notice of right to file a formal complaint on August 4, but did file his complaint within the 15-day limitation period.  Complainant, however, provided tracking evidence showing that his wife received and signed for the Notice on August 11.  Therefore, the Commission found that Complainant timely filed his complaint on August 25.  Judson P. v. U.S. Postal Serv, EEOC Appeal No. 2019001262 (Feb. 27, 2019).

 

ARTICLE

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

Determining Timely EEO Counselor Contact with Respect to Recurring Violations

Background

To pursue a complaint of discrimination, a federal sector complainant must initiate the EEO process by first raising her allegations with an EEO Counselor within the timeframe specified in the Commission's regulations.  The regulations require that complaints of discrimination be brought to the attention of the EEO Counselor within 45 days of the date of the alleged discriminatory matter or the effective date of a personnel action.[1]  The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered.[2]  An agency can dismiss a complaint as untimely if the complainant does not raise the claim of discrimination within the specified 45-day limitation period.[3]

Discrete Acts

Certain acts such as promotions, terminations, or denials of training which occur or become effective on a specific date are considered "discrete acts."[4]  Therefore, if a complainant is notified that she was not selected for a position on May 1, she must contact an EEO Counselor within 45 days of that notification.  A warning or proposal that an action might be taken does not trigger the limitation period for challenging the final action.[5]

The U.S. Supreme Court has held that discrete acts that fall outside of the limitations period are generally not timely.[6]  Even if discrete acts are arguably related to other discriminatory acts that occurred within the filing period, the discrete acts are not actionable if they are untimely raised.[7]  These acts may, however, be considered as background evidence to support a timely claim.[8]

For example, in Arnoldo P. v. Dep't of the Army,[9] the Commission found that Complainant timely contacted the EEO Counselor within 45 days of the effective date of his non-selection.  The Commission stated that while Complainant had some unofficial advanced notice that he might not be selected, the time period for seeking EEO counseling began to run at the time of the effective date of Complainant's non-selection.  The record contained a copy of the official "disposition" letter to Complainant dated November 19, 2012, and, therefore, his December 14, 2012 EEO Counselor contact was timely.

In Branda M. v. Dep't of Transp.,[10] however, the Commission affirmed the Agency's dismissal of claims regarding the denial of a promotion and involuntary reassignment which were not raised within the 45-day limitation period.  The Commission found that such actions were discrete acts that occurred approximately two years before Complainant contacted an EEO Counselor.  Further, there was no evidence to tie those matters to the other incidents in her harassment claim.

When an action is ongoing, complainant's contact with an EEO Counselor is timely if the action occurs any time within the previous 45 days.  For example, in Jermaine G. v. U.S. Postal Serv.,[11] the Agency denied Complainant's requests to return to work, placed him on Enforced Leave without pay, and told him that he was considered a danger to himself and others.  Complainant filed a formal EEO complaint, which the Agency dismissed for failure to timely contact an EEO Counselor.  On appeal, the Commission found that the Agency's dismissal was improper.  While the Agency stated that Complainant was notified that he was being placed on Enforced Leave 124 days before he contacted the EEO Counselor, the Commission found that Complainant's placement on Enforced Leave was ongoing and the Agency offered no evidence to show when this placement would end.  Therefore, since Complainant was impacted by the alleged daily discrimination, his contact with the EEO Counselor was timely.

Hostile Work Environment Claims

Hostile work environment claims generally include a number of incidents that occur over a period of time.  These incidents, taken together, collectively constitute one "unlawful employment practice."[12]  In National Railroad Passenger Corp. v. Morgan, the Supreme Court recognized that hostile environment claims involve repeated conduct over a period of days or even years, and the unlawful practice cannot be said to occur on a particular day. [13]  Therefore, complaints of hostile environment will not be time-barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period.[14]

A discrete act may be part of a hostile work environment if it is related to a pattern of discriminatory intimidation, ridicule, and insult.[15]  A discrete act that is unrelated to the pattern of discriminatory conduct will not, however, support a hostile work environment claim.[16]  If a discrete act occurred before the filing period and is part of a hostile work environment, the act may be considered when determining whether the complainant was subjected to a hostile work environment and when determining the appropriate remedy.  The complainant could not pursue the discrete act itself, however, and would not be entitled to relief for that action.

Complainant, in Margeret M. v. U.S. Postal Serv.[17] filed a formal EEO complaint alleging that her manager harassed her, including touching her and making inappropriate comments on several occasions.  Complainant also alleged that the manager denied her request for a schedule change, told other employees about Complainant's EEO complaint, and told a co-worker Complainant had taken leave because she was at risk of losing her children.  The Commission found that the Agency erred by considering Complainant's claims separately and dismissing some for failure to timely contact an EEO Counselor.  Complainant raised a viable claim of harassment and all incidents concerned the same manager.  Further, one of the incidents occurred within 45 days of the date on which Complainant contacted the EEO Counselor.  Therefore, the entire claim of harassment was timely raised.

In Shanel G. v. U.S. Postal Serv.,[18] the Commission reversed the Agency's dismissal of complainant's complaint for untimely EEO counselor contact.  Complainant alleged that her supervisor made inappropriate sexual remarks to her, yelled at her, watched her, told her he loved her, grabbed her waist, and denied her request for a transfer.  The Agency found all the allegations were untimely raised, except two, which did not by themselves state a claim.  The Commission found the Agency improperly treated claims in a piecemeal fashion, rather than as part of a viable claim of harassment.  Complainant's entire claim of harassment was timely since two of the incidents cited were raised within the 45-day limitation period.

In Mirtha H. v. Dep't of Def.,[19] 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 participation in 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.

In Nenita S. v. U.S. Postal Serv.,[20] the Agency dismissed two incidents in Complainant's complaint for failure to state a claim, and four incidents for untimely EEO Counselor contact.  On appeal, the Commission stated that the formal complaint and EEO Counselor's report showed that Complainant alleged that the series of incidents constituted a single pattern of discriminatory harassment by an Agency manager.  Since several incidents comprising Complainant's harassment claim occurred within the 45-day period preceding her contact with the Counselor, the Commission found that dismissal of the incidents occurring outside of the filing period was inappropriate.  An entire claim of harassment is actionable as long as at least one incident occurred within the filing period.  Therefore, Complainant stated a viable claim of harassment that was timely raised with the EEO Counselor.

In Lea P. v. U.S. Postal Serv.,[21] the Commission found that the Agency improperly dismissed Complainant's hostile work environment claim for failure to timely initiate EEO counseling.  Complainant alleged that she was subjected to ongoing harassment by her supervisor that continued even after he transferred to another facility.  It was undisputed that Complainant initiated counseling within 45 days of the supervisor's transfer, and Complainant stated that the supervisor continued to make sexual comments to her on the days he returned.  The Commission rejected the Agency's assertion that the incidents constituted "discrete acts," noting that a hostile work environment allegation will not be time barred if at least one act falls within the filing period.

The Commission also found that the Agency improperly dismissed Complainant's claim of hostile work environment harassment in Cristobal A. v. U.S. Postal Serv..[22] A review of the EEO Counselor's report along with Complainant's formal complaint showed that Complainant alleged that the Agency subjected him to a pattern of discriminatory harassment and a hostile work environment.  While the Agency determined that the complaint consisted of two incidents, Complainant alleged that he was harassed on numerous occasions about his job performance and was ultimately disciplined for failing to perform his job.  The Agency improperly treated the two incidents in a piecemeal manner, dismissing one for failure to state a claim and one for failure to timely contact an EEO Counselor.  When the two incidents were viewed in the context of Complainant's claim of harassment, they stated a viable claim.  Further, some of the incidents occurred within the 45-day limitation period preceding Complainant's initial EEO contact.

Discriminatory Pay Claims

The Commission has applied the provisions of the Lilly Ledbetter Fair Pay Act[23] to claims of compensation discrimination, raised under Title VII, the Rehabilitation Act, and the Age Discrimination in Employment Act.  As such, the Commission has noted that the filing period for a claim of compensation discrimination begins when: 1. an agency adopts a discriminatory compensation decision or other discriminatory practice affecting compensation; 2. the complainant becomes subject to a discriminatory compensation decision or discriminatory practice affecting compensation; or 3. the complainant's compensation is affected by the application of a discriminatory compensation or other discriminatory practice, including each time wages, benefits or other compensation is paid.[24]  For example, a complainant can file a timely complainant within 45 days of receipt of any paycheck that is lower than it would have been because of the discriminatory denial of a career ladder promotion.[25]

In Morna H. v. Dep't of Transp.,[26] the Commission found that the essence of Complainant's claim was that she had been discriminatorily denied higher pay and merit system selection, for which she then sought back pay.  The record showed that Complainant initiated EEO contact within 45 days of receiving a paycheck, the amount of which was the result of an earlier discriminatory act.  The Commission found that Complainant was affected by the application of an allegedly discriminatory compensation decision or practice each time she received a paycheck.  Applying the Lily Ledbetter Fair Pay Act, the Commission found that Complainant timely contacted an EEO Counselor.

The Commission also found Complainant's compensation discrimination claim was timely in Sherrie M. v. Dep't of the Treasury,[27]  Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her when it failed to correct her Service Computation Date (SCD) and past cost of living increases.  An AJ dismissed the claims, but the Commission reversed the decision on appeal.  While the AJ stated that Complainant reasonably suspected discrimination with regard to her SCD and cost of living increases in 2013, Complainant alleged that the actions resulted in ongoing pay discrimination.  The Commission stated that, pursuant to the Lilly Ledbetter Fair Pay Act, an unlawful employment practice occurs with respect to discrimination in compensation each time an individual is affected by the decision or practice.  Therefore, Complainant's compensation discrimination claim was timely.

In Lynne E. v. Dep't of Veterans Affairs,[28] the Commission stated that the Agency improperly defined Complainant's claim as relating only to the May 2015 denial of a salary increase.  Instead, a fair reading of the complaint and related EEO counseling report showed that Complainant was alleging age-based discrimination when she was paid less than younger, less experienced employees for several years.  The Agency did not analyze the timeliness of Complainant's EEO Counselor contact under the Lilly Ledbetter Fair Pay Act, and Complainant's contact was timely since it was made within 45 days of the time she received her most recent pay check.

Denial of Reasonable Accommodation Claims

The Commission has stated that, because an agency has an ongoing obligation to provide employees with a reasonable accommodation, the failure to provide such an accommodation constitutes a violation each time the employee needs it.[29]  For example, Complainant in Reita M. v. Dep't of Housing & Urban Dev.,[30] filed a formal EEO complaint alleging, among other things, that the Agency failed to provide her with reasonable accommodation in the form of telework.  The Commission stated that the claim should have been characterized as a recurring violation, and the Agency had an ongoing obligation to provide Complainant with reasonable accommodation.  Further, the Commission has specifically held that the denial of reasonable accommodation occurs each time the accommodation is needed.  Therefore, Complainant's contact with the EEO Counselor was timely.

The Commission also found that Complainant timely contacted an EEO Counselor in Odell H. v. U.S. Postal Serv..[31]  Complainant's complaint consisted of an ongoing denial of a reasonable accommodation claim.  Complainant specifically alleged that he was sent home from new employee orientation because there was no interpreter, and the Agency repeatedly failed to reschedule him for orientation with an interpreter for over seven months.  Thus, Complainant's EEO contact during that period was timely.

Complaint in Renato K. v. Dep't of Veterans Affairs[32] filed a formal EEO complaint alleging, among other things, that the Agency denied his request for reasonable accommodation over a five-month period.  On appeal, the Commission reversed the Agency's dismissal of the complaint for failure to timely contact an EEO Counselor.  The duty to reasonably accommodate employees is ongoing and constitutes a violation each time the employee needs it.  Therefore, Complainant's allegation that he was denied reasonable accommodation was timely raised.

Similarly, in Albert S. v. Dep't of Homeland Sec.,[33] Complainant alleged, among other things, that the Agency denied his request for a reserved handicapped parking space, and the Commission found that Complainant's request for a reserved handicapped parking space constituted a request for a reasonable accommodation.  The Commission noted that the duty to reasonably accommodate is ongoing, and, as such, at the time Complainant contacted the Counselor, he was alleging that the Agency remained unwilling to provide him with the accommodations he still needed.

In Judie D. v. U.S. Postal Serv.,[34] the Commission reversed the Agency's dismissal of Complainant's complaint for failure to timely contact an EEO Counselor, finding that Complainant timely raised her claim that she was denied accommodation.  Complainant filed a prior complaint alleging that management refused to accommodate her hearing condition and removed the devices that she was using to accommodate her condition from her office.  Complainant stated that management refused her request for accommodations multiple times, and she contacted the EEO Counselor when management still had not accommodated her disability.  The Commission stated that since the duty to reasonably accommodate is ongoing, the failure to provide such accommodation constitutes a violation each time the employee needs it.  Therefore, Complainant timely initiated her complaint.

In Devon H. v. U.S. Postal Serv.,[35] the Agency dismissed Complainant's complaint, stating that Complainant's request for pre-complaint counseling was made approximately two years after Complainant first became aware of the reasonable accommodation denials.  On appeal, the Commission found that the Agency improperly dismissed Complainant's claim.  Complainant alleged that he had been continuously denied accommodation for two years, and the Commission determined that Complainant's claim addressed an allegation of ongoing denial of reasonable accommodation.  The Commission has stated that because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it.  Therefore, the complaint was timely raised.



[5] Id.

[7] Id at 113.

[8] Id.

[14] Id. At 117.

[16] Id.

[25] Id.