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Digest Seal The DIGEST Of Equal Employment Opportunity Law


Fiscal Year 2018, Volume 4

Office of Federal Operations

September 2018


Inside

Selected EEOC Decisions on:

 

Attorney's Fees

Class Complaints

Compensatory Damages

Complaint Processing

Dismissals

Findings on the Merits

Under the Rehabilitation Act

Under Title VII

Under Multiple Bases

Retaliation

Remedies

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness

Article:

HARASSMENT IN THE WORKPLACE:

AN OVERVIEW OF THE LAW ON HOSTILE WORK ENVIRONMENT & RECENT COMMISSION DECISIONS FINDING SEXUAL HARASSMENT

______________________________

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, and
Acting Assistant Director, OFO's Special Operations Division

Digest Staff

Editor: Robyn Dupont

Writers: Robyn Dupont, Briana Odom, Joseph Popiden, Navarro Pulley, Aysia Stockton

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 AJ's Award of Attorney's Fees Based on Laffey Matrix.  An Administrative Judge (AJ) issued a decision awarding attorney's fees following the issuance of a default judgment against the Agency and determination that Complainant was entitled to relief.  The Commission modified the award on appeal.  The Commission agreed with the AJ that Complainant was not entitled to fees for work completed prior to the filing of her complaint with the exception of the time spent determining whether to represent Complainant.  The Commission stated, however, that the AJ erred in excluding her attorney's years of employment discrimination law experience when considering whether Complainant's attorney was entitled to request the Laffey matrix be applied to his hourly rate.  The Commission has specifically held that the Laffey matrix is based on time out of law school rather than time spent in a specific legal field, and Complainant's attorney had more than 20 years of experience working in the Agency's Office of Civil Rights prior to entering private practice.  Therefore, Complainant's attorney was entitled to the requested Laffey rates based on his years of experience since graduating from law school.  Jaunita W. v. Dep't of Agric., EEOC Appeal No. 0120161304 (June 15, 2018), request for reconsideration denied, EEOC Request No. 0520180510 (Sept. 26, 2018). (a summary of the Commission's decision regarding compensatory damages can be found below - Ed.)

Commission Affirmed AJ's Award of Attorney's Fees.  An AJ issued a decision finding that the Agency retaliated against Complainant when it reassigned him, but found no discrimination with regard to his other claims.  The AJ subsequently awarded Complainant attorney's fees, reducing the amount requested by 40% based upon Complainant's limited success on his claims; numerous instances of excessive, duplicative, or unreasonable time claimed in the fee petition; and the fact that the retaliation claim was not a complex or novel issue.  The AJ also reduced the attorney's travel time by 50% of the regular rate charged.  The Commission affirmed the award on appeal, stating that the evidence showed Complainant was only successful with regard to one of his claims and attorney's fees are not recoverable for work on unsuccessful claims.  The Commission also noted that the unsuccessful claims were not so inextricably intertwined with the one successful claim that Complainant would be entitled to a full award of fees.  The Commission agreed that the AJ's reduction in travel time was consistent with the Commission's longstanding case law and guidance.  Ramon L. v. Dep't of Justice, EEOC Appeal No. 0120161017 (May 29, 2018).

Commission Modified Agency's Award of Attorney's Fees.  The Agency found that the amount of time requested in the petition for attorney's fees was excessive, and reduced the number of hours to 10 when making its award.  On appeal, the Commission modified the award.  The Commission noted that while an attorney is not required to provide great detail explaining each minute expended, the attorney does have the burden of submitting sufficiently detailed and contemporaneous time records to ensure the time spent was accurately recorded.  Further, Complainant is only entitled to an award for time reasonably expended by the attorney.  The Commission agreed with Complainant's assertion that the attorney, who was retained in 2017, needed to understand the details of the case, and, therefore, the 20.7 hours spent reviewing case documents and performing legal research were reasonable.  The Commission, however, reduced the time claimed for preparing the statement of damages, notice of appearance, certificate of service, and attorney affidavit by 5 hours.  The Commission noted that the statement of damages contained errors in wording, as well as inaccuracies in the law, and did not find the almost 9 hours claimed to be reasonable.  Therefore, the Commission modified the award of attorney's fees to reflect a total of 23.6 hours.  Harris K. v. Dep't of Homeland Sec., EEOC Appeal No. 0120180595 (Apr. 24, 2018). (a summary of the Commission's decision regarding compensatory damages can be found below - Ed.)

Commission Affirmed AJ's Award of Attorney's Fees Based on Local Hourly Rate.  An AJ found that Complainants were subjected to sexual harassment for which the Agency was liable, and issued an award of attorney's fees.  On appeal, the Commission affirmed the AJ's award of fees based upon the prevailing hourly rate in Tennessee where the complaint arose.  According to the record, Complainants initially retained a local Tennessee attorney to handle the case, but later retained a firm in the Washington D.C. area.  The Agency provided evidence of the availability of local attorneys with relevant experience that included listings of attorneys practicing employment discrimination law in Tennessee.  Based on evidence presented by the Agency, the Commission agreed with the AJ that Complainants could have found alternative counsel in the Tennessee area with suitable experience, and found that the AJ's Order Awarding Fees and Costs was appropriate and reasonable. Sallie M. & Alexandria P. v. U.S. Postal Serv., EEOC Appeal Nos. 0120170599 & 0120170600 (Apr. 10, 2018), request for reconsideration EEOC Request No. 0520180407 & 0520180408 (Oct. 25, 2018) (affirming the appellate decision's finding regarding attorney's hourly rate, but finding time billed for work by law clerks was compensable at the same rate as paralegals, and awarding additional $1,000 for work on the appeal and request for reconsideration).

Class Complaints

Commission Affirmed AJ's Denial of Class Certification.  Complainant filed a formal complaint alleging that the Agency engaged in a pattern and practice of unlawful discrimination against minority employees, retaliated against minority employees, and maintained policies and practices that had a disparate impact on these employees.  On appeal, the Commission affirmed the AJ's decision denying class certification.  The AJ concluded that Complainant did nothing more than raise "broad, across-the board allegations" regarding a variety of personnel practices.  Complainant failed to offer any specifics or evidence to establish even a minimal basis to infer that the practices were the result of discrimination.  The Commission concurred with the AJ that Complainant failed to meet the requirement of commonality because he could not show that he suffered the same harm as other class members.  Complainant failed to provide affidavits or anecdotal evidence in support of his claims and did not identify an Agency practice or procedure that caused harm to a group of employees.  The Commission also agreed with the AJ that Complainant failed to establish that his individual claim was typical of the class as a whole.  While Complainant listed four other employees who he believed were adversely affected, he provided no information to establish typicality, and was unable to show that each allegation happened to every alleged class member.  Shad L. v. Consumer Fin. Prot. Bureau, EEOC Appeal No. 0120162565 (June 15, 2018); see also Eura B. v. Consumer Fin. Prot. Bureau, EEOC Appeal No. 0120161851 (June 15, 2018) (finding that the AJ properly denied class certification because Complainant failed to establish the elements of commonality and typicality, as well as adequacy of representation).

Commission Affirmed AJ's Denial of Class Certification.  The Commission affirmed the AJ's denial of class certification on a claim of class-wide discrimination in the promotion of Hispanic employees.  The Commission found that the class agent failed to identify a policy or practice that had a nationwide effect on Hispanic employees, so the class complaint lacked commonality and typicality.  Complainant made only conclusory allegations and presented no evidence from which the Commission could infer the operation of an overriding policy or practice of discrimination.  Further, Complainant did not provide sufficient evidence documenting an estimated number of class members greater than 16.  While Complainant asserted that all 595 Hispanic employees at the Agency were potential class members, Complainant did not show what portion of those employees applied for and were denied promotions, training, or details during the relevant period.  The Commission also agreed with the AJ's decision not to draw an adverse inference against the Agency because it failed to maintain and provide the class agent promotion applications and Best Qualified Lists categorized by national origin and broken down by each applicant's demographic information.  Casie S., et. al. v. Dep't of Housing & Urban Dev., EEOC Appeal No. 0120100672 (May 18, 2018).

Commission Affirmed AJ's Denial of Class Certification.  The Commission affirmed the AJ's denial of class certification regarding the Agency's reorganization plan.  The Commission found the class agent failed to show commonality, typicality and numerosity.  Specifically, the class failed the typicality requirement because class agent did not show that all the class members had the same discriminatory bases as she did.  Further, the class failed the commonality requirement because it failed to show by anecdotal evidence that the class members, who were at various positions, at various grade levels and under various supervisors, possessed the same interests and suffered the same harm as the class agent.  Finally, the Commission found the class failed the numerosity requirement because it did not establish which class members had the same bases and issues as the class agent.  Aurore C., et. al. v. Pension Benefit Guar. Corp., EEOC Appeal No. 0120150342 (May 18, 2018).

Commission Affirmed AJ's Denial of Class Certification.  The Commission affirmed the AJ's denial of class certification regarding the Agency's award system for supervisory employees.  The Commission found the purported class failed to meet the requirement of commonality because recommendations for awards came from class members' supervisors, not from the agency Director in charge of awards and the class failed to show the initial recommendations were overturned against members of the class.  The Commission also found some class members were second-level supervisors who were also recommending officials and were members of the board that reviewed awards. Thus, the class members were potentially both victims and perpetrators of discrimination, creating a conflict of interest among class members.  The class also failed to meet the requirement of typicality because the class agent's claim included claims against supervisors who were also class members and therefore her interests were contrary to the interests of other members of the class.  Aleshia C., et. al. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120132664 (May 18, 2018), request for reconsideration denied, EEOC Request No. 0520180473 (Sept. 14, 2018).

Commission Affirmed AJ's Denial of Class Certification.  The Commission affirmed the AJ's denial of class certification regarding the Agency's denial of training at a particular area office.  The Commission agreed that the class agent was only able to identify three class members so that the class failed for lack of numerosity.  The Commission also found no adequacy of representation because the class agent had not retained a representative and he lacked the skills, experience, time and resources necessary to represent the interests of the class.  King W., et. al. v. Dep't of the Army, EEOC Appeal Nos. 0120140848 & 0120150803 (May 18, 2018), request for reconsideration denied, EEOC Request No. 0520180469 (Sept. 12, 2018).

Compensatory Damages

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

Commission Affirmed AJ's Award of $185,000 in Damages.  The Commission affirmed the AJ's award of $185,000 in compensatory damages.  The AJ extensively justified her award by referencing specific events comprising a hostile work environment (including harassing phone calls and abusive treatment by certain officials) that lasted for years.  Also, the AJ found credible Complainant's testimony that she experienced humiliation, embarrassment, uncontrollable crying, emotional distress, stress, anguish, sadness, anger, loss of interest in doing things she previously enjoyed, loss of laughter, and suffering damage to her career, reputation, professionalism and integrity.  Dionne W. v. Dep't of the Air Force, EEOC Appeal No. 0720150040 (Mar. 27, 2018).

Commission Awarded Complainant $150,000 in Non-Pecuniary Damages & Found No Estoppel Due to Complainant's Bankruptcy Filing.  The Commission previously found that the Agency sexually harassed Complainant and later retaliated against her by involuntarily reassigning her.  The Agency subsequently determined that Complainant was judicially estopped from pursuing her claim for compensatory damages because she filed for bankruptcy and such interest lies with the bankruptcy trustee.  The Commission disagreed with the Agency's assertions, noting its public policy interest of enforcing anti-discrimination laws and remedying employment discrimination.  Thus, the Commission awarded Complainant $150,000 in non-pecuniary damages and $3,400.97 in past pecuniary damages.  Complainant experienced panic attacks, chest pains, heart palpitations, dizziness, humiliation, insomnia, anxiety, depression, fear of termination, migraines, miscarriage, hair loss, acne, loss of enjoyment of activities, weight gain, and financial hardship.  Her mother, sister and friends provided statements supporting Complainant's claims, and noted that Complainant did not experience depression before the unlawful harassment.  The witnesses also noted that Complaint's work stress resulted in weight gain, acne leaving scars, and significant thinning and hair loss.  Amina W. v. Dep't of Educ., EEOC Appeal No. 0120150644 (Apr. 19, 2018).

Commission Increased Award of Non-Pecuniary Damages to $150,000 & Found No Estoppel Due to Complainant's Bankruptcy Filing.  The Commission previously found that the Agency discriminated against Complainant based on race when it terminated his employment, and ordered the Agency, among other things, to investigate his claim for damages.  The Agency subsequently issued a decision finding that Complainant was judicially estopped from pursuing a claim for compensatory damages because he failed to properly disclose his EEO complaint in his bankruptcy proceedings.  In the alternative, the Agency stated that, assuming Complainant was not judicially estopped, he should be awarded $20,000 in non-pecuniary damages.  On appeal, the Commission initially noted that it has a public policy interest in enforcing antidiscrimination laws and remedying discrimination, and, therefore, the Commission is not judicially estopped from seeking victim-specific relief such as compensatory damages, even if Complainant himself is foreclosed from obtaining such relief.  The Commission specifically found the Agency liable for Complainant's discriminatory termination and ordered the Agency to remedy the discrimination.  With regard to the award of non-pecuniary damages, Complainant averred that he endured "unimaginable hardship" due to his termination which caused a great deal of emotional distress and sleepless nights.  He lost his home to foreclosure, had to file for bankruptcy, and borrowed money from his family.  Complainant stated the anxiety and hardship affected his marriage and he was unable to provide for his family leaving him humiliated, disappointed, anxious and stressed.  He sought help from the Employee Assistance Program.  The Commission stated that, given the nature of the Agency's behavior, Complainant's own statements along with the financial hardship he suffered due to his termination supported an award of $150,000.  The Commission agreed with the Agency that Complainant did not show evidence of entitlement to pecuniary damages for the foreclosure of his home.  Taylor G. v. U.S. Postal Serv., EEOC Appeal No. 0120120164 (Apr. 17, 2018).

Commission Affirmed Agency's Award of $125,000.  The AJ issued a decision finding that Complainant was subjected a hostile work environment based on her sex and disability, including repeated unwanted touching, as well as unwanted demeaning statements and criticism of her work by the Lead Manager of Distribution Operations.  The AJ awarded Complainant $125,000 in non-pecuniary damages, and $6,000 in future pecuniary damages for one year of counseling.  The Commission affirmed the AJ's award on appeal.  The hostile work environment caused Complainant to suffer from migraines, panic attacks, and vertigo. Her diabetes was exacerbated, becoming "unmanageable."  Moreover, Complainant had difficulty performing her job duties as the stress exacerbated her memory and concentration issues. The AJ found that although Complainant may have been fragile prior to the harassment, she was functional during that time.  Accordingly, considering the nature, duration, and severity of Complainant's emotional harm and damage awards reached in comparable cases, the Commission found the AJ's award of $125,000 in non-pecuniary compensatory damages was proper.  Complainant did not challenge the award of future pecuniary damages on appeal.  Edie R. v. U.S. Postal Serv., EEOC Appeal No. 0120160784 (May 10, 2018).

Commission Increased Award of Nonpecuniary Damages to $100,000 & Increased Award of Pecuniary Damages.  The Commission increased the Agency's award of nonpecuniary compensatory damages from $60,000 to $100,000 after previously finding that the Agency was liable for subjecting Complainant to a discriminatory and retaliatory hostile work environment.  Complainant stated that she experienced severe emotional distress and humiliation by the harasser's actions which made her relive past abuse she suffered as a child.  She also suffered nightmares, and developed stomach ulcers, anxiety, irritable bowel syndrome, and acid reflux.  Family members and friends confirmed Complainant's health deteriorated as a result of the harassment and her ex-husband stated that their marriage became strained and Complainant withdrew from family and church activities.  Complainant's son stated that when Complainant returned from work she would cry and she suffered from anxiety.  Other friends and family described Complainant as fearful, stressed, and hyper-vigilant.  In addition, the Commission modified the award of pecuniary damages from approximately $3,000 to over $107,000 to cover out-of-pocket expenses based on the evidence from health care providers that confirmed Complainant's condition including PTSD, anxiety, stress, sleeplessness and hypertension that was directly and proximately exacerbated by the discrimination and harassment.  The amount was not reduced by what insurance covered, under the collateral source rule.  The Commission denied compensation for a health and fitness program recommended by Complainant's doctor because there was an insufficient nexus between Complaint's condition and the program.  Stephanie A. v. Dep't of Def., EEOC Appeal No. 0120161052 (Jun. 5, 2018).

Commission Increased Award of Non-Pecuniary Damages to $100,000 & Increased Award of Past & Future Pecuniary Damages.  The Agency awarded Complainant $60,000 in non-pecuniary compensatory damages, $454.80 in past pecuniary damages, and $89,442.62 for future pecuniary damages.  On appeal, the Commission agreed with the Agency that Complainant was entitled to $454.80 for documented costs for health insurance, and that Complainant was not entitled to reimbursement for parking expenses and wear and tear on her car as she failed to document those expenses.  The Commission also found that while Complainant failed to sufficiently establish that she incurred most of the claimed expenses, she did show that she was entitled to additional reimbursement for costs associated with her visits to a psychiatrist and a Licensed Clinical Social Worker.  The Commission increased the award of non-pecuniary damages to $100,000, finding that amount was more appropriate and consistent with amounts awarded in similar cases.  Complainant experienced insomnia and feelings of dread and isolation.  She developed Post Traumatic Stress Disorder and required ongoing medication and therapy sessions.  Medical statements indicated that she experienced emotional turmoil for several years and was diagnosed with major depression and recurrent, generalized anxiety disorder.  The Agency found that Complainant sufficiently documented her estimate of future pecuniary damages related to treatment she was expected to incur, but reduced the damages to one third of the requested amount due to pre-existing mental health issues that pre-dated the discrimination.  The Commission disagreed with the Agency's reduction, stating that the record reflected that Complainant's future treatment was significantly related to the Agency's actions.  The Commission noted that documentation showed Complainant had experienced other stressors which she discussed with her medical professionals, and reduced the award of future pecuniary damages by one-half.  Margaret L. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120150582 (Apr. 17, 2018).

Commission Increased Award of Non-Pecuniary Damages to $75,000.  The Agency found that Complainant was subjected to sexual harassment and subsequently awarded her $25,000 in non-pecuniary compensatory damages.  The Commission increased the award to $75,000 on appeal, finding that amount was reasonable based upon the proven emotional and psychological distress Complainant suffered as a direct result of the Agency's discriminatory conduct.  Complainant stated that she was humiliated, isolated, depressed, irritable, and hopeless.  She had difficulty sleeping, withdrew from others and her normal activities, lacked energy, and experienced headaches.  Complainant indicated that her condition lasted at least two years and provided statements from her father and a friend to support her claim.  Complainant also provided progress notes from five psychotherapy visits.  Enriqueta T. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160638 (May 31, 2018).

Commission Increased Award of Damages to $60,000.  In a prior decision, the Commission found that the Agency subjected Complainant to racial discrimination when it did not select him for three positions, and ordered the Agency, among other things, to investigate Complainant's claim for compensatory damages.  On appeal from the Agency's decision on damages, the Commission increased the award of non-pecuniary damages to $60,000, finding that the Agency's award of $30,000 did not provide sufficient compensation for the harm suffered.  Complainant indicated that he experienced anxiety attacks, mood swings, nightmares, insomnia, difficulty concentrating, loss of self-esteem, alcohol dependency, weight gain, paranoia, and diminishment of self-worth.  He also experienced an exacerbation of his pre-existing conditions such as hypertension and severe back pain.  The Commission affirmed the Agency's denial of pecuniary damages, noting that Complainant did not establish a causal connection between the damages claimed and the discriminatory actions.  Pasquale D. v. Dep't of Homeland Sec., EEOC Appeal No. 0120160892 (Apr. 12, 2018).

Commission Affirmed AJ's Award of $50,000 in Damages.  Following a hearing, the AJ issued a decision finding that Complainant was subjected to a discriminatory nonselection, but failed to prove she was subjected to a hostile work environment.  The AJ found Complainant was entitled to $50,000 in non-pecuniary compensatory damages for the physical symptoms she suffered because of the Agency's selection process, and the Commission affirmed the AJ's award on appeal.  Complainant suffered headaches, nerve damage, stress, facial swelling, hives, and numbness.  Complainant submitted medical documentation showing that, following the discrimination, she began to experience pain, muscle spasms, nerve pain, hives, and facial swelling, and was placed on medication and physical therapy for these symptoms.  She also became socially withdrawn.  Alena C. v. Dep't of Veteran Affairs., EEOC Appeal No. 0720180003 (Apr. 12, 2018), request for reconsideration denied, EEOC Request No. 0520180409 (Oct. 25, 2018).

Commission Affirmed Agency's Award of $40,000 in Non-Pecuniary Damages.  The Agency determined that Complainant was subjected to a discriminatory hostile work environment with respect to racially offensive postings on a group Facebook page for employees at his facility.  The Agency awarded Complainant $40,000 in non-pecuniary compensatory damages, and the Commission affirmed the award on appeal.  The Commission noted that Complainant was not entitled to compensation related to incidents which were not found to be discriminatory.  Complainant stated that he suffered from depression, anxiety, increased stress, and fatigue, and isolated himself, had difficulty sleeping, experienced changes in appetite.  Complainant provided statements from friends, his ex-wife and sisters in support of his claim.  The only medical documentation provided included a summary of information Complainant provided to the medical facility rather than an assessment conducted by a medical practitioner.  The Commission affirmed the Agency's denial of pecuniary damages, stating that claims related to Complainant's allegation of constructive discharge were not part of the Agency's finding of discrimination, and there was no evidence that the harassment proximately caused his diabetes two years later.  Harris K. v. Dep't of Homeland Sec., EEOC Appeal No. 0120180595 (Apr. 24, 2018). (a summary of the Commission's decision regarding attorney's fees can be found above - Ed.)

Commission Increased Award of Damages to $30,000.  The AJ awarded Complaint $25,000 in compensatory damages, which the Commission increased to $30,000.  Complainant presented credible testimony that he experienced stress, sleeplessness, chest pains, hopelessness, anger, a depressed outlook on life, and aggravation of teeth grinding.  The Commission stated that an award of $30,000 was comparable to awards in prior decisions.  Ross H. v. U.S. Postal Serv., EEOC Appeal No. 0720180001 (May 17, 2018). (a summary of the Commission's decision regarding sanctions can be found below - Ed.)

Commission Affirmed Agency's Award of $10,000 in Non-Pecuniary Damages.  In a prior decision, the Commission found that the Agency discriminated against Complainant when it subjected him to an investigation for misconduct, and did not select him for a temporary detail assignment.  Pursuant to the Commission's order, the Agency investigated Complainant's claim for damages and awarded him $10,000.  The Commission affirmed that award on appeal, noting that Complainant did not seek a specific amount of non-pecuniary damages.  Complainant indicated that he suffered stress, anxiety, depression, headaches, stomach distress, insomnia, and weight gain.  He also noted that he became dependent on sleep aids, consumed alcohol, and withdrew emotionally from his wife, family and friends.  Complainant did not submit any medical evidence to support his claim, and the record contained no evidence relating his physical conditions to the discrimination.  While Complainant submitted statements from co-workers, his sister and his wife indicating he suffered depression and withdrew from the time he started working for the Agency, the Commission stated that Complainant was only entitled to damages related to the discrimination.  The Commission found that the Agency properly denied Complainant's claim for future pecuniary damages, and stated that Complainant submitted no evidence that he incurred any out-of-pocket expenses as a result of the discrimination.  Ralph B. v. Dep't of Homeland Sec., EEOC Appeal No. 0120161451 (Apr. 25, 2018).

Commission Increased Award of Damages to $8,500.  Following a default judgment against the Agency and finding that Complainant was entitled to relief, an AJ awarded Complainant $3,500 in non-pecuniary compensatory damages, citing the general nature of Complainant's emotional distress and sparse medical evidence.  Complainant stated that she was upset and concerned, and that the discrimination caused her significant anguish.  Complainant further noted that she was diagnosed with high blood pressure prior to the alleged incidents and began taking medication for the condition during the time in question.  The Commission increased the award to $8,500 on appeal, finding that amount was more in line with recent Commission precedent, accounting for the present-day value of comparable awards.  Jaunita W. v. Dep't of Agric., EEOC Appeal No. 0120161304 (June 15, 2018), request for reconsideration denied, EEOC Request No. 0520180510 (Sept. 26, 2018). (a summary of the Commission's decision regarding attorney's fees can be found above - Ed.)

Complaint Processing

Agency Failed to Thoroughly Investigate Complainant's Claims of Pregnancy and Disability Discrimination.  Complainant filed a formal EEO complaint based on sex and disability (complications of pregnancy) when the Agency failed to accommodate her medical restrictions and issued her a Termination During Probation letter.  The Agency ultimately issued a final decision finding no discrimination.  On appeal, the Commission found that the Agency failed to thoroughly investigate and analyze Complainant's claim of pregnancy discrimination.  Specifically, Complainant asserted that she was denied the accommodation of light duty work, sent home without pay, and discharged.  The Commission stated that the record needed development to identify employees who were similar in their ability or inability to work who were provided accommodations, including individuals who were injured at work and those receiving accommodations pursuant to the Rehabilitation Act.  The record also needed development to allow for a determination as to whether the Agency's legitimate, nondiscriminatory reasons were a pretext for discrimination.  The Agency also failed to investigate Complainant's claim of disability discrimination.  Complainant's request for light duty work could be construed as a request for reasonable accommodation.  The Commission noted that a pregnant employee may be entitled to reasonable accommodation for limitations resulting from pregnancy-related conditions that constitute a disability, or for limitations resulting from the interaction of the pregnancy with an underlying impairment.  The Commission remanded the complaint for a supplemental investigation.  Dollie T. v. U.S. Postal Serv., EEOC Appeal No. 0120161743 (June 14, 2018).

Agency Failed to Amend Complainant's Complaint.  Complainant filed a formal EEO complaint alleging that the Agency subjected her to a hostile work environment that included being assigned higher-level duties without reclassifying her position at a higher grade; not selecting her for a higher-grade position and instead reassigning her to a position outside of her expertise; and failing to give her a performance evaluation and indefinitely extending her performance plan.  According to the record, Complainant asked the EEO Investigator to add a claim that she was paid less than a male co-worker who performed similar work, and referenced the claim in two subsequent emails, but the Investigator failed to take any action regarding that claim.  The Agency subsequently issued a final decision finding no discrimination.  The Commission's regulations provide that a complainant can amend her pending complaint to add like or related claims at any time prior to the agency's issuance of the notice at the conclusion of the investigation.  The Commission found that Complainant attempted to amend her complaint to include a claim under the Equal Pay Act and a claim of disparate treatment based on sex that was like or related to her existing claims.  Since Complainant's amended claims appeared intertwined with her original claims, the Commission did not address the merits of the Agency's decision, but remanded the entire amended complaint for further processing.  Dollie T. v. Dep't of Educ., EEOC Appeal No. 0120160474 (Apr. 12, 2018).

Dismissals

(See also by category, this issue.)

Complaint of Harassment Improperly Dismissed.  Complainant filed a formal EEO complaint alleging that she was subjected to harassment regarding her request for a religious waiver from taking the influenza vaccine.  Complainant included eight incidents in support of her claim of harassment and denial of religious accommodation.  On appeal, the Commission found that the Agency improperly treated the matters raised in the complaint in a piecemeal manner, and dismissed the various incidents for stating the same claim as that raised in a prior complaint mootness, failure to state a claim, and failure to timely contact an EEO Counselor.  Complainant identified a series of events which allegedly occurred over four years, some of which within 45 days of when she contacted the EEO Counselor, which allegedly created a hostile work environment.  Therefore, Complainant stated a timely claim of harassment.  While the Agency asserted that Complainant's requests for religious accommodation were resolved in her favor, the Commission found that determination went to the merits of the complaint and were irrelevant to the procedural issue of whether she stated a justiciable claim.  Further, the Agency provided no evidence to support its assertion that Complainant raised any of the matters in a prior complaint, and Complainant was not provided with an assurance that the alleged violation would not recur.  Sana I. v. Dep't of the Navy, EEOC Appeal No. 0120181177 (June 29, 2018).

Complaint Improperly Dismissed for Stating the Same Claim Previously Raised.  The Commission reversed the Agency's dismissal of the complaint as identical to a previous complaint, stating "identical" does not mean "similar."  The previous complaint concerned payroll actions taken by the Agency while Complainant was still employed, whereas the present complaint concerned payroll actions taken by the Agency after her separation, and included a retaliation charged stemming from the previous complaint.  Catheryn P v. Dep't of Def., EEOC Appeal No. 0120180922 (Jun. 7, 2018).

Complaint Improperly Dismissed for Untimely EEO Contact & Failure to State a Claim.  The Commission reversed the dismissal of the complaint for untimely EEO counselor contact and for failure to state a claim.  The Commission found that the Agency had offered Complainant reassignment as a reasonable accommodation but did not actually place her in the position.  When Complainant realized 10 months later that she would not be placed into the position, she contacted an EEO counselor.  The Commission found the claim was timely because the Agency had misled complainant.  The Commission also found Complainant's claim that the Agency failed to provide her the work duties of her position, which she received following her Office of Worker's Compensation Programs (OWCP) claim, was not challenging the position's duties or the processing of her EEO claim and was therefore not a collateral attack on the OWCP process.  Violet F. v Dep't of Veterans Affairs, EEOC Appeal No. 0120181343 (Jun. 5, 2018).

Complaint Improperly Dismissed for Mootness.  Complainant filed an EEO complaint alleging, among other things, that he was subjected to a hostile work environment from April 2015 until May 2017.  After Complainant retired from the Agency, the Agency ultimately dismissed the complaint as moot on grounds that Complainant's retirement effectively eradicated the effects of the Agency's alleged discriminatory conduct.  On appeal, the Commission determined that Complainant's retirement did not completely and irrevocably eradicate the effects of the alleged discrimination.  While there was no reasonable expectation that the alleged discrimination would recur, there was no showing that no relief was available if discrimination was proven.  Complainant asserted that he was forced to retire from the Agency because of the alleged discrimination, and Complainant's counsel discussed that matter with the Agency prior to the issuance of the final decision. Because Complainant had clearly raised a claim of constructive discharge, the Commission determined that the subject claims had not necessarily been rendered moot by his retirement.  If Complainant were to prevail on a claim of constructive discharge, he would be entitled to reinstatement, and workplace remedial relief would then be available to him. Therefore, the issue of constructive discharge was remanded to the Agency for investigation.  Homer B. v. Dep't of the Navy, EEOC Appeal No. 0120181122 (May 9, 2018).

Complaint Improperly Dismissed for Filing Civil Action.  The Commission reversed the AJ's and Agency's dismissal of the complaint because Complainant had filed a civil action in federal court on the same matter.  Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it did not pay him back pay for his retention bonus.  Complainant had filed a claim for retroactive retention pay as a violation of 5 U.S.C. Section 5596, as an unjustified personnel action, in the U.S. Court of Claims, not under one of the statutes prohibiting employment discrimination.  So, while the claims may have concerned the same matter, the civil action did not preclude Complaint's EEO complaint, which was also not rendered moot.  Vern R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120162363 (May 3, 2018).

Complaint Improperly Dismissed for Untimely EEO Contact & Failure to State a Claim.  Complainant, who is autistic, filed a formal EEO complaint by and through his father who has power of attorney, alleging that he was harassed and terminated.  The Agency dismissed the first claim for failure to timely contact an EEO Counselor, and the second claim for failure to state a claim, asserting that Complainant was not an employee or applicant for employment.  On appeal, the Commission exercised its discretion to excuse any delay in seeking EEO counseling.  Complainant argued that he was not aware of the 45-day limitation period and/or how to seek counseling.  While the record included an EEO poster, the Agency failed to provide any information on whether it was posted, and, if so, where.  Given that Complainant was at the Agency only to stock shelves, it was unlikely he saw the poster or knew it applied to him.  It was also unlikely Complainant's father, who had power of attorney, would have seen the poster.  The Commission also found that the Agency exercised sufficient control over Complainant's employment to qualify as his employer for purposes of the EEO process.  While Complainant provided his own equipment, and was paid by vendors on a piece-work basis, his work stocking shelves was regulated by the Agency.  Agency managers controlled the activities of stockers and Complainant's activity was closely monitored by an Agency employee.  Complainant worked on Agency premises six days per week for six years, and his work was part of the regular business of the Commissary.  Finally, the Agency discharged Complainant from employment.  Therefore, the Agency's dismissal of Complainant's second claim was also improper.  Shelton D. v. Dep't of Def., EEOC Appeal No. 0120180591 (Apr. 27, 2018).

Claim Regarding Incident Occurring Prior to Execution of Settlement Agreement Properly Dismissed.  According to the record, Complainant and the Agency entered into a settlement agreement which provided, in pertinent part, that Complainant agreed not to file any new complaints regarding "any matter" that could have been raised prior to the date he signed the agreement.  The Commission found that the Agency properly dismissed Complainant's subsequent complaint alleging that he was barred from the Agency's fitness center one month before he signed the settlement agreement.  While the agreement did not contain the Agency number of the instant complaint, the language estopped Complainant from filing any complaints related to events that occurred before the agreement was signed.  The Commission noted that this was not a prospective waiver and did not bar new complaints related to events occurring after the agreement was signed.  Julius C. v. Dep't of the Air Force, EEOC Appeal No. 0120181081 (Apr. 24, 2018).

Complaint Properly Dismissed for Raising Matter on Appeal to MSPB & Failure to State a Claim.  Complainant filed a formal complaint alleging that she received a Notice of Proposed Reduction in Grade and Pay, and was issued a Letter of Debt Determination.  The Commission found that the Agency properly dismissed the first claim on grounds that Complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding her downgrade.  Regardless of whether Complainant raised discrimination during her MSPB hearing, she may not raise the same claim with the MSPB and in the EEO process.  The Commission also found that the Agency's dismissal of the second claim for failure to state a claim was proper.  The claim was both a collateral attack on the decision of an Arbitrator and fell under the Debt Collection Act, and, as such, was a collateral attack on another adjudicatory proceeding.  Glenda L. v. U.S. Postal Serv., EEOC Appeal No. 0120180971 (Apr. 12, 2018), request for reconsideration denied, EEOC Request No. 0520180376 (Aug. 24, 2018).

Complaint Improperly Dismissed in Part.  Complainant filed a formal EEO complaint in 2017 alleging that the Agency discriminated against her when she was not selected for positions in 2012 and 2013, and placed on a Performance Improvement Plan (PIP) in 2017, and when a supervisor sent an email to employees at her facility naming those, including Complainant, who were on a PIP.  The Commission found that the Agency properly dismissed the claims concerning Complainant's nonselection for positions in 2012 and 2013 for failure to timely contact an EEO Counselor.  Complainant should have reasonably suspected discrimination at the time of the nonselections and did not present sufficient justification for waiving the applicable time limit.  The Commission concluded, however, that the dismissal of the remaining claims for failure to state a claim was improper.  Complainant's claims that she was placed on a PIP and that an email was sent to her entire facility that named her as being on a PIP, when considered collectively, were sufficiently severe or pervasive to state an actionable claim of harassment.  Maricruz Y. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180977 (Apr. 5, 2018).

Complaint Properly Dismissed for Alleging Proposal to Take Action.  The Commission found that the Agency properly dismissed Complainant's complaint alleging that he was issued a Notice of Proposed Removal.  There was no evidence that Complainant was actually removed from the Agency.  The Commission noted that Complainant can file a new complaint if and when the Agency actually takes a personnel action.  Lenard H. v. U.S. Postal Serv., EEOC Appeal No. 0120161423 (Apr. 5, 2018).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact & Stating the Same Claim as Raised Previously.  Complainant contacted an EEO Counselor and ultimately filed a formal complaint alleging that he was "taken off the clock" and issued a Notice of Proposed Removal.  Complainant stated that employees who were not in his protected groups remained employed, and Complainant requested to be returned to duty with back pay.  On appeal, the Commission initially noted that the Agency incorrectly characterized Complainant's complaint as concerning his proposed removal.  The Commission concluded that a fair reading of the complaint showed that Complainant was challenging the Agency's ultimate decision to take action which is considered to have merged with the proposal.  In this case, Complainant initially filed a mixed case appeal with the MSPB which was dismissed for jurisdictional reasons.  Therefore, the date Complainant filed the MSPB appeal was deemed to be the date of initial contact with the EEO Counselor, and Complainant initiated contact in a timely manner.  Further, the Commission found that the Agency erred to the extent it dismissed the complaint as raising the same claim as a claim raised at the time of the proposed removal, because the current complaint challenged the ultimate decision to remove Complaint from employment.  Jermaine H. v. U.S. Postal Serv., EEOC Appeal No. 0120181295 (Apr. 3, 2018).

Findings on the Merits and Related Decisions

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

Under the Rehabilitation Act

Denial of Reasonable Accommodation Found.  Complainant, a Sales Store Checker, injured her knee and requested not to be assigned to the self-checkout lane as performing this fast-paced assignment caused her pain.  Complainant was granted accommodation for two years after providing medical documentation, and successfully performed the duties of her position.  However, a new supervisor subsequently took over who questioned Complainant's need for the accommodation and requested new medical documentation.  Following the submission of the new documentation, the supervisor denied Complainant's accommodation request after consulting with the Disability Program Manager (DPM).  Contrary to Complainant's physician, the DPM did not find that Complainant's injury was a disability.  The Commission determined that while it was within the new supervisor's right to request updated medical documentation, the Agency provided no justification for denying the accommodation request.  The Commission was troubled by the Agency's lack of participation in the interactive process.  Complainant's physician indicated on several occasions that Complainant had degenerative joint disease and should not perform the self-checkout assignment because she had to pivot to complete the job.  With each assignment to the self-checkout lane, Complainant's physician provided documentation that the self-checkout line was damaging her knee, but management disregarded the medical documentation.  Although failing to engage in the interactive process is not a violation in and of itself, the Commission noted, when, as here, it results in the denial of a reasonable accommodation such a failure is actionable.   Finally, the Agency did not establish that providing Complainant the requested accommodation would have resulted in an undue hardship.  Complainant had been provided with the accommodation of not having to perform self-checkout duties for two years before the new supervisor arrived.  The Agency did not argue, nor did the record indicate, that the Agency suffered an undue hardship during this period.  The Agency was ordered, among other things, to take all steps necessary to provide Complainant with an effective reasonable accommodation, and investigate her claim for damages.  Anya F. v. Dep't of Def., EEOC Appeal No. 0120160945 (June 21, 2018).

Agency Denied Complainant Reasonable Accommodation When It Unreasonably Delayed Providing Her Fulltime Telework.  Complainant alleged that she was denied a reasonable accommodation when management did not approve her request for fulltime telework.  Complainant informed the Agency that she had allergies and sensitivity to the air quality in the building and could smell mold. She further reported that she experienced watering eyes, coughing, sneezing, and headaches because of the mold growing outside her window and "desperately need[ed] something to be done" because she had bronchitis and asthma.  It was undisputed that Complainant's building had mold and other conditions which made employees sick, including Complainant, and the Agency even moved its offices to another location in response to employee complaints and the discovery of mold in the building.  The Commission found that because exposure to substances in the building precipitated and exacerbated Complainant's medical conditions, fulltime telework was the only appropriate accommodation in this case, aside from moving Complainant's office to another building.  Although the record revealed that the Agency approved telework agreements for Complainant, there was no evidence that the Agency allowed Complainant to telework fulltime until several months after her requests, which the Commission found was an unreasonable delay.  The fact that Complainant and other employees were subsequently allowed to telework fulltime indicated that fulltime telework was not an undue hardship on the Agency.  To the extent that Complainant contended that she was denied other accommodations during the time in question, the Commission found that she failed to show how these matters were related to her disclosed medical conditions.  The Commission also found that the Agency's actions were not severe or pervasive enough to create a hostile work environment.  The Agency was ordered, among other things, to restore any leave taken by Complainant because of its failure to provide her with reasonable accommodation, investigate Complainant's claim for damages, and provide appropriate training for the named responsible officials.  Retha W. v. Dep't of Agric., EEOC Appeal No. 0120161254 (June 21, 2018), request for reconsideration denied, EEOC Request No. 0520180501 (Sept. 27, 2018).

Disability Discrimination Found Regarding Complainant's Five-Day Suspension.  The Commission found that the Agency discriminated against Complainant when it suspended her for five days.  The Agency maintained that it suspended Complainant because she did not complete assignments in a timely manner and made errors in her work products.  Complainant informed the Agency, however, that she had Frontal Temporal Lobe Dementia, and that the condition affected her thinking processes, which caused her to take much longer to complete tasks.  Complainant's job largely consisted of performing tasks that necessarily involved composing documents and typing.  Therefore, the Agency was aware that Complainant needed significantly more time to complete her assignments, and Complainant's failure to complete assignments by set deadlines and work product errors were mostly attributable to her condition.

Commission guidance provides that an agency may discipline an individual with a disability for violating a conduct standard, even if the misconduct resulted from the disability, as long as the conduct standard is job-related for the position in question and consistent with business necessity.  However, work product errors and untimely completion of work assignments are not matters of misconduct; they are matters of performance.  Thus, the appropriate manner to respond to such matters is through measures designed to address performance problems, such as appraisals, remedial training, non-disciplinary counseling, and Performance Improvement Plans.  When, as here, an agency is aware that performance problems are caused by a disability but disciplines an employee for those performance problems, the agency's actions are punitive against the employee's status as an individual with a disability.  Consequently, the Commission concluded that suspending Complainant for five days was tantamount to suspending her because of her disability.  The Commission further concluded that the Agency failed to rebut the inference of discrimination created when Complainant established a prima facie case of disability discrimination by articulating a legitimate, nondiscriminatory reason for its actions.  Therefore, the Commission found that the Agency discriminated against Complainant based on her disability when it suspended her for five days. The Commission found, however, that Complainant failed to demonstrate she was denied a reasonable accommodation.  The Agency was ordered, among other things, to remove any reference to the suspension from all personnel records, reimburse Complainant for any lost pay, and investigate Complainant's claim for damages.  Marx H. v. Dep't of the Navy, EEOC Appeal No. 0120162333 (June 19, 2018).

Delay in Providing Reasonable Accommodation Violated Rehabilitation Act.  The Commission found that the Agency violated the Rehabilitation Act when it delayed providing Complainant with an ergonomic chair as a reasonable accommodation for more than three months.  The Agency did not dispute that Complainant, who had a knee impairment that affected him in the major life activity of sitting, was a qualified individual with a disability.  Further, the Commission found that the three-month delay in providing Complainant with an ergonomic chair was unnecessary.  While the Agency approved Complainant's request for the chair shortly after it was submitted, the record showed that Agency employees then delayed providing Complainant with the chair because Agency managers could not determine what the procedures were to do so.  The record indicated that the Agency's acquisition department resisted ordering the chair for reasons such as the lack of an approval number.  Complainant submitted all required documentation to establish his need for the chair as an accommodation, and the delay was due solely to the actions of Agency employees.  The Agency should have had reasonable accommodation procedures in place at the time and informed its employees about those procedures.  The Agency was ordered, among other things, to provide Complainant with reasonable accommodation in the form of an ergonomic chair, investigate his claim for damages, and provide appropriate training for employees in its acquisitions department.  Ronnie R. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120161406 (May 31, 2018).

Denial of Reasonable Accommodation Found.  The Commission found that the Agency denied Complainant a reasonable accommodation when it told her that she could not wear her neck brace and, on at least one occasion, sent her home because she was wearing her neck brace.  The preponderance of the evidence in the record established that the Agency was aware of Complainant's need to wear the neck brace while working without limitation since receiving a Medical Status Report, yet the Agency would not allow her to do so.  The Agency did not show that allowing Complainant to wear a neck brace would constitute an undue hardship.  Accordingly, Complainant established that she was denied a reasonable accommodation.  The Agency was ordered to, inter alia, determine the amount of back pay owed for dates on which Complainant was required to take leave without pay as a result of the Agency denying her a reasonable accommodation between the time it received the Report, and the date of Complainant's retirement.  The Commission affirmed the Agency's finding that Complainant was unable to prove disparate treatment for being sent home early because there was no work available within her restrictions.  Huong A. v. U.S. Postal Serv., EEOC Appeal No. 0120161249 (May 9, 2018).

Denial of Reasonable Accommodation Found.  The Commission found that the Agency discriminated against Complainant when it failed to provide him with reasonable accommodation.  The Agency conceded that Complainant had hypertension which substantially limited his cardiovascular system, and the record revealed that Complainant cannot travel by air because it aggravates his hypertension placing him at risk of stroke or a heart attack.  The Agency asserted that travel by air is an essential function of Complainant's job as a Special Agent, because Agents need to travel on short notice.  The Commission found, however, that air travel was not an essential function but a method of performing an essential function.  The Agency did not submit evidence that established Special Agents were routinely needed on short notice to conduct interviews or issue warrants, and, in fact, when faced with long-distance travel, the Agency had a practice of using local resources instead of incurring travel expenses for its Agents.  Further, there was limited information in the record as to how often Agents were needed on short notice to perform other duties, and the record showed that Complainant and at least one other Agent successfully performed their duties without traveling by air.  Finally, the Agency failed to establish that Complainant's inability to fly created an undue hardship on its operations.  There was evidence in the record showing that Agency managers saw Complainant's refusal to fly as an attitude problem rather than related to his hypertension, which the Commission found to be evidence of discriminatory animus connected to his disability status.  The Commission noted that while Complainant's claim of harassment did not rise to the level of a hostile work environment, the evidence did support the finding that the Agency did not engage in good faith efforts to provide Complainant with a reasonable accommodation.  The Agency was ordered, among other things, to provide Complainant with a reasonable accommodation that allows him to travel by means other than air, restore any leave used due to the Agency's failure to provide a reasonable accommodation, and investigate Complainant's claim for damages.  James R. v. Envtl. Prot. Agency, EEOC Appeal No. 0120122981 (Apr. 4, 2018).

Under Title VII

Agency Failed to Articulate Legitimate Reason for Changing Complainant's Light Duty Hours.  The Commission found that the Agency discriminated against Complainant based on sex when it changed her duty hours while she was on light duty, while four male light-duty comparators retained their duty hours.  The Commission rejected the Agency's argument that Complainant and the comparators were not similarly situated because they had different medical restrictions.  The Commission found the light duty work given to the male comparators was within Complainant's medical restrictions.  Further, Complainant and the comparators worked the same tour (shift), at the same facility, reporting to the same supervisor and officer-in-charge, in the same craft (Mail Handlers), and were covered by the same collective bargaining agreement.  Also, when each of the comparators was returned to regular duties, Complainant was not permitted to work their light duty hours.  The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide three hours of appropriate training to the responsible official.  Tanya P. v. U.S. Postal Serv., EEOC Appeal No. 0120160846 (Apr. 30, 2018).

National Origin Discrimination Found Regarding Agency's Implementation of English-Only Rule.  The Commission found that the Agency discriminated against Complainant on the basis of national origin when it implemented an English-only rule that was not justified by business necessity.  The Agency issued Complainant a Letter of Expectations which directed her and her subordinates to always "use the English language when discussing work topics in the work environment."  The Commission found the instruction, on its face, constituted an English-only rule.  There was no evidence in the record that requiring employees to speak only English when discussing work topics was necessary for the safe or efficient operation of the Agency.  While a supervisor stated that an unnamed employee complained about the use of Tagalong in the workplace because she felt excluded, there was no evidence of a widespread problem involving language-related interpersonal conflicts or derogatory or intimidating conduct.  In addition, the Agency could have used a nondiscriminatory alternative, such as individually counseling employees about appropriate workplace conduct to address the problem.  The Commission affirmed the Agency's finding that Complainant failed to establish disparate treatment discrimination or a hostile work environment.  The Agency was ordered, among other things, to review and revise the English-only rule at issue to ensure violations do not recur, remove the Letter of Expectations from all official records, and investigate Complainant's claim for damages.  Minda W. v. Dep't of the Navy, EEOC Appeal No. 0120162040 (Apr. 24, 2018).

Under Multiple Bases

Sex and Reprisal Discrimination Found Regarding Denial of Overtime.  Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on sex and in reprisal for prior EEO activity when it denied her overtime on three occasions.  The Agency issued a decision finding no discrimination, and the Commission reversed the Agency's decision on appeal.  The Commission disagreed with the Agency's assertion that Complainant failed to establish a prima facie case of reprisal, stating it was clear that Complainant's supervisor, who was named as the responsible official in Complainant's prior complaint, untruthfully attested that he had no knowledge of Complainant's prior EEO activity.  Further, the Agency did not address Complainant's contention that the supervisor responded to the EEO Counselor in connection with the former complaint.  Therefore, Complainant established a prima facie case of reprisal.  The Commission also found that Complainant established a prima facie case of sex discrimination, because the record showed that two male employees worked overtime on the dates in question while Complainant did not.  Complainant and the two comparative employees all worked in the same section and were all placed on the overtime desired list.  While the supervisor stated that he simply made an error in not assigning Complainant overtime and she was later provided with make-up dates, the Commission found that the supervisor's credibility was undermined by his untruthful statement regarding the prior EEO complaint.  Further, he later stated, during the investigation, that there was no reason to offer make-up overtime and he had not done so.  The record also contained a statement from a Union Steward expressing her belief that the supervisor had been assigning overtime in violation of Agency policy.  The Commission found that Complainant established that the Agency's reasons for not providing Complainant with overtime were pretexts for discrimination.  The Agency was ordered to pay Complainant overtime for the dates in question in the amount accrued by the comparators, and investigate her claim for compensatory damages.  Pamila R. v. U.S. Postal Serv., EEOC Appeal No. 0120160810 (June 29, 2018).

Sex & Age Discrimination Found Regarding Nonselection.  The Commission found that the Agency discriminated against Complainant based on sex and age when it did not select her for a supervisory position.  The Agency presented a certificate showing that the selectees were ranked higher than Complainant on the promotional assessment test.  However, the record did not contain the candidates' scores, any information about the assessment test, how the scores were derived, or the relevance of the test to the position.  Also, while the recommending official stated the selectees' work performance was above Complainant's, this was a bare assertion that did not identify any aspect of work performance where the selectees exceeded Complainant's performance.  For these reasons, the Commission found the Agency failed in its burden to articulate a legitimate non-discriminatory reason for the non-selection.  The Commission also found that Complainant's qualifications, by virtue of her prior law enforcement and supervisory experience, were plainly superior to those of the selectees.  The Commission ordered the Agency, among other things, to place Complainant in the position with back pay and interest, and investigate her claim for compensatory damages.  Felisha A. v. Dep't of Homeland Sec., EEOC Appeal No. 0120162314 (Jun. 5, 2018), request for reconsideration denied, EEOC Request No. 0520180497 (Sept. 27, 2018).

Agency Liable for Sexual Harassment & Retaliation.  The Commission found that the Agency was liable for co-worker sexual harassment.  Specifically, the Agency failed to take appropriate corrective action by not removing the co-worker from Complainant's work area during the investigation, resulting in Complainant having to request leave or reassignment.  The Commission also found that the Agency retaliated against Complainant when it did not take steps to ensure that the co-worker was not working with Complainant during the investigation, threatened to charge her with being absent-without-leave if she did not return to her work station, had Complainant take leave, and ultimately forced her to request reassignment to another position due to the Agency's inaction in removing the alleged harasser.  The Commission has stated that an agency may need to take intermediate action pending the investigation of a harassment claim, such as transferring the alleged harasser, to ensure further harassment does not occur.  The Agency was ordered, among other things, to offer to retroactively restore Complainant to her former position, restore any leave Complainant used due to the unlawful harassment, and investigate her claim for damages.  Danita S. v. Dep't of Transp., EEOC Appeal No. 0120161096 (May 17, 2018).

Agency Violated Rehabilitation Act by Sending Complainant for Fitness-for-Duty Examination and Retaliated Against Her.  The Commission found that the Agency violated the Rehabilitation Act when it instructed Complainant to submit to a fitness-for-duty examination (FFDE).  The Agency's disbelief of already provided medical evidence of Complainant's disability did not justify the FFDE.  The Commission also found that the Agency retaliated against Complainant when it provided her with a lower performance appraisal.  Complainant established a connection between the lower appraisal and her request for reasonable accommodation.  Because the denigration in her appraisal was related to her absence from a particular location due to her reasonable accommodation, this amounted to punishing her for seeking a reasonable accommodation and thus violated the Rehabilitation Act.  The Commission found that Complainant failed to establish that she was denied reasonable accommodation.  The Agency was ordered, among other things, to retroactively raise Complainant's performance rating, and investigate her claim for damages.  Giselle W. v. Dep't of Justice, EEOC Appeal No. 0120162671 (May 14, 2018), request for reconsideration denied EEOC Request No. 0520180518 (Sept. 27, 2018).

Retaliation

Reprisal Found.  Preponderant evidence established that Complainant was issued a letter of counseling by her supervisor for reporting harassment to individuals designated to receive such complaints.  Because of her report of harassment to senior managers, Complainant's supervisor also reduced Complainant's performance evaluation, and included in his commentary that she needed to follow the chain of command.  Complainant, therefore, established that she was subjected to adverse actions based upon her protected activity.  The Commission noted that a reasonable employee in Complainant's circumstances would be deterred from engaging in protected activity if a letter of counseling and lowered performance evaluation resulted from a report of harassment.  Therefore, the Commission found that Complainant proved by a preponderance of the evidence that she was subjected to a hostile work environment based on reprisal.  Complainant, however, did not prove a hostile work environment based on sex. Colleen M. v. Dep't of Justice, EEOC Appeal No. 0120161381 (June 26, 2018).

Reprisal Found.  Complainant filed an EEO complaint alleging that the Office Director advised her temporary Detail Supervisor that she had previously filed an EEO complaint.  Specifically, during the EEO counseling of a previous complaint, the Director of the Financial Management Directorate (the Director) contacted Complainant's Detail Supervisor and informed her that Complainant was engaged in settlement discussions for an EEO complaint.  The parties concurred that the Director spoke with the Detail Supervisor about Complainant's prior EEO activity.  The Director contended that she discussed Complainant's prior EEO activity with the Detail Supervisor only to reach a settlement by finding Complainant a permanent assignment in the Office in which she had been detailed.  Although this was a legitimate, nondiscriminatory reason, the Commission found that Complainant established that the Director's explanation was a pretext for discrimination.  The record reflected that the Director inquired first about Complainant's performance, subsequently inquired about whether there was a permanent, assignment available for her, and only mentioned Complainant's EEO activity after being advised that there were not any available vacant positions.  Therefore, the Commission found no justification for disclosing Complainant's prior EEO activity.  The Commission found that the Director's decision to mention Complainant's prior EEO complaint would have deterred a reasonable person from engaging in protected activity, and this conversation by design would have the effect of intimidating and/or interfering with Complainant's EEO activity.  The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training to the Director.  Jazmine F. v. Dep't of Def., EEOC Appeal No. 0120162132 (June 22, 2018).

Reprisal Discrimination Found Regarding Non-selection.  The Agency gathered a panel to screen and conduct interviews of candidates for a Contract Administrator position.  After Complainant's interview, but before the panel solidified the rankings, a manager on the panel who had previously worked with Complainant performed an internet search of Complainant's name and reported to the panel that Complainant had engaged in prior EEO activity while at another agency.  The manager described Complainant as a "high risk" candidate.  Another panel member stated he was concerned about Complainant's ability to work in a team setting, which was based on information from the manager regarding Complainant's previous work history.  The manager admitted that he considered Complainant's EEO activity in his decision not to recommend Complainant, and stated that the other panelists may have been influenced as well.  The Commission found that this constituted direct evidence that an impermissible factor was considered during the hiring process.  While the record revealed that there were other factors that contributed to Complainant's nonselection, including the quality of his interview, the Commission found that Complainant proved by a preponderance of the evidence that he was subjected to reprisal discrimination during the selection process.  However, Complainant did not prove by a preponderance of the evidence that he was subjected to discrimination with regard to remaining 21 non-selections raised in his complaint.  The Agency was ordered, among other things, to provide appropriate training to the panel members and selecting official, and consider taking disciplinary action against them for the discrimination.  King W. v. Dep't of Def., EEOC Appeal No. 0120160925 (June 19, 2018).

Reprisal Found Regarding Non-Promotion.  Complainant filed an EEO complaint alleging that the Agency discriminated against her based on reprisal when it did not promote her to a GS-6 position.  Complainant contended that she was previously sexually harassed by a supervisor, and she requested to be moved to a location at her workplace that was not open to the public in order to avoid any confrontation with the prior supervisor who continued to come to her workplace.  Complainant stated that when she was subsequently transferred, she was denied a promotion for which she previously qualified.  On appeal, the Commission noted that the Agency stated legitimate, nondiscriminatory, reasons for the alleged adverse actions.  Specifically, the Agency explained that Complainant was not promoted because she was not occupying a position that was eligible for the noncompetitive promotion.  The Commission found, however, that Complainant demonstrated that the Agency's stated reasons were pretextual.  Complainant and her union representative confirmed that the Chief told Complainant she would be moved to a position which would allow for a GS-6 promotion given the fact that she was already working in such a position.  Further, Complainant's SF-50 was never updated to reflect the move, and management's response indicated a degree of deliberateness to the initial action of transferring Complainant to a position in which she would not be promoted.  Due to the Agency's actions, Complainant received a significantly less desirable reassignment after a report of harassment, which the Agency did not dispute occurred.  Accordingly, Complainant proved by a preponderance of the evidence that she was subjected to reprisal.  The Agency was ordered, among other things, to promote Complainant to the GS-6 level in her current position or a substantially equivalent position, and pay her appropriate back pay and benefits.  Susann G. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120162437 (May 25, 2018).

Remedies

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

Commission Modified AJ's Award Following Default Judgment.  The Commission modified the AJ's order of relief following the issuance of a default judgment against the Agency as a sanction in both Complainant's harassment and non-selection claims.  However, the AJ only awarded relief for the harassment claim, because the AJ found Complainant had not requested relief concerning the non-selection.  The Commission modified the order to include placing Complainant in the position for which he was not selected.  The record showed Complainant established a prima facie case of discrimination as to the non-selection which was sufficient to find entitlement to relief.  The Commission also found the AJ erred in not awarding Complainant the make-whole relief he was entitled to simply because he did not make a specific request for it.  Timothy M. v. Dep't of the Navy, EEOC Appeal No. 0120162429 (Jun. 28, 2018).

Commission Not Estopped from Seeking Relief by Complainant's Bankruptcy Filing.  The Commission rejected the Agency's argument that it need not comply with an AJ's award of compensatory damages and back pay because Complainant filed for bankruptcy and, therefore, the matter was under the jurisdiction of the bankruptcy trustee.  The Commission stated that it has a public policy interest in enforcing antidiscrimination laws and remedying discrimination.  The interest is not served by allowing a discriminating employer to benefit from a complainant's bankruptcy, least of all where it appears that the discrimination substantially contributed to the complainant's declaring bankruptcy in the first place.  Therefore, the Commission is not judicially estopped from seeking victim-specific relief such as back pay and compensatory damages on behalf of a complainant who files for bankruptcy.  In this case, the AJ and the Commission specifically found the Agency liable for its discriminatory failure to accommodate Complainant, and ordered the Agency to remedy the discrimination by, among other things, paying Complainant compensatory damages and back pay.  The Commission's authority under Title VII and the Rehabilitation Act dictates that it remedy discrimination without regard to Complainant having filed for bankruptcy.  The Commission rejected the Agency's assertion that the AJ was biased in favor of Complainant, and stated that the AJ was correct in not considering what the bankruptcy court may do with a portion of the award.  The Commission noted that had the AJ reduced the award of damages based upon what another court may do, she would not have been granting Complainant "make whole relief."  Finally, the Commission found that the AJ correctly determined that the Agency failed to reasonably accommodate Complainant beginning in January 2008.  The Commission clarified that the Agency should reimburse Complainant for leave used, noting that the back pay award does not compensate Complainant for paid leave taken during the applicable period.  Adina P. v. U.S. Postal Serv., EEOC Appeal No. 0720110016 (Apr. 25, 2018). (additional decisions addressing the effects of a complainant's bankruptcy filing can be found in the Compensatory Damages section above-Ed.).

Sanctions

Commission Affirmed AJ's Issuance of Default Judgment Against Agency as Sanction.  The Commission affirmed the AJ's default judgment against the Agency as a sanction for failure to timely complete the report of investigation.  The Commission found the record lacked application materials or qualifications of the selectees for two of the positions, the identity of the selectee for a third position, and interview notes for all three positions.  The Commission rejected the Agency's assertion that Complainant could have cured these defects through discovery, stating discovery is to perfect the record and not a substitute for an appropriate investigation.  The Commission further noted Complainant had twice requested the Agency include the relevant information that was omitted.  Ross H. v. U.S. Postal Serv., EEOC Appeal No. 0720180001 (May 17, 2018). (a summary of the Commission's decision regarding -compensatory damages can be found above - Ed.).

Commission Affirmed Dismissal of Hearing Request as Sanction.  The Commission affirmed the AJ's dismissal of the hearing request because Complainant failed to comply with the AJ's Case Management Order and subsequent Order regarding discovery disputes.  Both orders directed Complainant to provide a preliminary witness disclosure statement and warned of the sanctions.  Complainant failed to comply, so his hearing request was properly dismissed.  The Commission also affirmed the Agency's finding that Complainant failed to prove discrimination.  Ike D. v. Dep't of Veterans Affairs, EEOC Appeal No, 0120161282 (May 17, 2018), request for reconsideration denied, EEOC Request No. 0520180448 (Sept. 12, 2018).

Commission Modified AJ's Sanctions Order.  The Commission modified the AJ's sanction order excluding Respondent, a non-lawyer representative, from hearings currently before the AJ and disqualifying Respondent's representation in future cases not yet filed at the hearing stage for 180 days.  The Commission found the Respondent engaged in contumacious conduct when he scheduled depositions for times when the Agency attorney and witnesses were unavailable against the AJ's ruling; refused to provide the Agency attorney and a witness with a dial-in number to participate in a deposition telephonically; refused to use the Agency facility which may have had teleconference capability in favor of a location that had no teleconference capability because he did not want to pay for the service; failed to inform the Agency attorney he did not plan to use exhibits in certain depositions; and cancelled depositions at the last minute.  Furthermore, Respondent exhibited insulting behavior revealing a fundamental disrespect for the AJ, the Agency attorney and the EEO process when he referred to the AJ's "so-called" ruling and the Supervisory AJ's "so-called" supervisory role; ignored the AJ's e-mail ruling because it did not contain a formal title, caption, and signature; repeatedly addressed Agency counsel by her maiden name contrary to the AJ's warning; and referred to the Agency's attorney's "purported pregnancy…causing her disability."  The Commission found that Respondent's behavior in these cases, as well as before another AJ, demonstrated that Respondent has engaged in a pattern of disruptive and willfully stubborn and disobedient behavior.  The Commission reduced the disqualification from one year to 180 days as sufficient time for Respondent to modify his behavior.  The Commission also disallowed disqualification as to matters on appeal, since the conduct only occurred at hearing.  In the Matter of Arnold T, EEOC Appeal No. 1120160001 (Apr. 30, 2018).

AJ Properly Sanctioned Complainant by Denying Hearing Request.  An AJ sanctioned Complainant by dismissing her hearing request after she failed to comply with the AJ's order to appear for a deposition and failed to show good cause why she could not comply with the order.  On appeal, the Commission found that the AJ's denial of Complainant's hearing request was appropriate.  In this case, the record showed that Complainant did, in fact, fail to comply with the AJ's order, and did not show good cause why she was unable to do so.  Contrary to the assertion of Complainant's representative, the AJ did not need to find that Complainant engaged in "contumacious conduct" to issue the sanction.  The Commission affirmed the Agency's finding of no discrimination.  Maya F. v. Dep't of the Interior, EEOC Appeal No. 0120162362 (Apr. 24, 2018).

Settlement Agreements

Breach of Settlement Found.  The Commission reversed the Agency's decision finding it did not breach a settlement agreement with Complainant following her termination.  The parties agreed the Agency would change its recommendation not to rehire Complainant on her exit and performance evaluations.  Thereafter, when Complainant applied for positions with the Agency and was not hired, Complainant realized that her personnel file still showed her as having a "do not rehire" status.  The Agency claimed the agreement did not include changing the personnel file.  The Commission found the Agency, in entering into the agreement, violated its duty of acting in good faith and in fair dealing, since the purpose and effect of the agreement was to allow Complainant to be rehired.  Kate H. v. U.S. Postal Serv., EEOC Appeal No. 0120180895 (Jun. 28, 2018).

No Breach of Settlement Found.  The Commission affirmed the Agency's finding of no breach of settlement.  The agreement provided Complainant would be returned to her original bid hours, but did not provide a time limit on this provision.  After three years, the Agency changed Complainant's bid hours for "operational needs" because Complainant was logging excessive overtime. The Commission found that the terms of the agreement provided no expectation that Complainant would work the agreed to hours indefinitely.  Elvera S. v. U.S. Postal Serv., EEOC Appeal No. 0120181102 (May 3, 2018).

Breach of Settlement Found.  Complainant initiated the EEO complaint process believing that the Agency subjected her to unlawful harassment and discrimination.  The parties subsequently entered into a settlement agreement which provided, among other things, that the Agency would provide Complainant with training through a Focused Provider Practice Evaluation Plan (FPPE), and, at the conclusion of training, Complainant would provide two favorable letters of reference.  On appeal, the Commission found the Agency failed to meet its burden of establishing mutual mistake and that any "mistake" made in the case was made by the Agency itself.  While the Agency asserted that providing Complainant with FPPE training prior to obtaining the letters of reference violated its policies, the Agency did not show which portions of its regulations supported that contention.  Further, if the Agency wanted the parties to be bound by such regulations, it should have included specific references to them in the settlement agreement.  Complainant stated that she provided letters of recommendation to the Agency prior to beginning work and was approved by the Credentialing Office.  The Commission stated it would not void the agreement because the Agency officials who negotiated and executed the agreement were unaware of the alleged requirements for FPPE participation.  The Agency was ordered to provide Complainant training through FPPE as set forth in the settlement agreement.  Colene R. v. Dep't of the Army, EEOC Appeal No. 0120180763 (Apr. 11, 2018).

Stating a Claim

Complaint Improperly Dismissed.  Complainant filed a formal EEO complaint alleging, among other things, that the Office of Professional Responsibility forwarded a criminal report of investigation involving her to the Office of Personnel Security and Suitability which began a review of her continued eligibility for a security clearance.  In addition, Complainant stated the Office of Personnel Security and Suitability requested that she submit to a mental evaluation, implying that failure to cooperate could result in the suspension of her security clearance.  The Agency conducted an investigation, and an AJ subsequently dismissed the claims on grounds that they related to Complainant's security clearance.  On appeal, the Commission found that the dismissal was improper.  The Commission is not precluded from determining whether the grant, denial or revocation of a security clearance is conducted in a nondiscriminatory manner.  An agency's decision to initiate a review of a complainant's security clearance is not the result of any substantive decision making process, and hence is reviewable.  In this case, Complainant contends that, because of her sex and in reprisal for complaining that she has sexually harassed the Agency sought to "shut her down" and stop her from continuing to complain.  The acts of forwarding information, initiating a review, and requesting a medical examination go to process, not substance, and are reviewable by the Commission.  Willa B. v. Dep't of State, EEOC Appeal No. 0120162798 (June 29, 2018).

Complaint Alleging Discriminatory Comments in Appraisal Stated a Claim.  The Commission reversed the Agency's dismissal of the complaint alleging that Complainant's supervisor included negative comments in her annual performance rating.  Complainant had persuaded her supervisor to remove all but one of the negative comments but the supervisor refused to raise her performance scores accordingly.  The remaining negative comments were still part of Complainant's official record.  The Commission found that removing the comments went to the merits of the claim and was irrelevant to the procedural issue of whether the claim was justiciable.  Frida L. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120181340 (Jun. 6, 2018).

Complaint Alleging Discriminatory Investigation Resulting in Suspension Stated a Claim.  The Commission reversed the Agency's dismissal of the complaint for failure to state a claim.  Complainant claimed the Agency's internal investigation was incomplete and discriminatory, resulting in her receiving a 30-day suspension.  The Commission noted that an internal investigation into a complainant's misconduct often fails to state a claim.  In this case, however, the investigation resulted in a suspension, and, as such, Complainant stated a viable claim.  Emilia Z. v. Dep't of the Army, EEOC Appeal No. 0120180905 (Jun. 5, 2018).

Complaint Alleging Sexual Harassment Improperly Dismissed.  According to the record, Complainant reported allegations of sexual harassment to the Agency, and the Agency investigated the matter but found that the named co-worker did not harass Complainant. Complainant then filed a formal EEO complaint citing the Agency's determination that she was not sexually harassed.  After Complainant requested a hearing in the matter, an AJ determined that Complainant's complaint should be dismissed because she was raising allegations regarding the processing of a prior complaint and did not file a complaint regarding the underlying allegations of harassment.  On appeal, the Commission concluded that Complainant was in fact raising the underlying claim of harassment in the instant complaint and stated a viable claim.  In a case where there is an allegation of co-worker harassment, a complainant, in order to prove agency liability, must focus in part on management's response upon learning of the harassment.  Complainant was not expressing dissatisfaction with the processing of a prior EEO complaint, she was expressing concerns about the Agency's investigation of her harassment claims which were not the basis of an EEO complaint at that time.  Therefore, the dismissal of the complaint was improper.  Zenobia P. v. U.S. Postal Serv., EEOC Appeal No. 0120160264 (May 29, 2018).

Complaint of Harassment Improperly Dismissed.  Complainant alleged her supervisor refused to intervene to protect her from a harassing situation involving a co-worker who intimidated and bullied Complainant.  Complainant stated, in her formal complaint, that the incident was part of an ongoing hostile environment.  An examination of the EEO Counselor's report showed that Complainant addressed several incidents of alleged harassment, and the Commission found that, when considered together, the incidents were sufficiently severe and pervasive to state a claim.  Lavonne E. v. U. S. Postal Serv., EEOC Appeal No. 0120181279 (May 16, 2018); Additional Decisions Involving Dismissal of Harassment Claims for Failure to State a Claim Include: Shantel H. v. U.S. Postal Serv., EEOC Appeal No. 0120181379 (May 16, 2018) (examination of the formal complaint and EEO Counselor's report showed that Complainant addressed several incidents of alleged harassment by her supervisors such that she stated a cognizable claim).

Complaint Improperly Dismissed for Failure to State a Claim.  Complainant filed a complaint alleging discrimination and harassment by a co-worker who was a union steward.  The Agency dismissed the complaint, stating that the co-worker's actions were within the scope of his duties as a union steward and should be addressed through the collective bargaining agreement or by the National Labor Relations Board (NLRB).  Thus, the Agency asserted the complaint was a collateral attack on those processes.  The Commission found the co-worker's actions were in concert with the Agency and stated a cognizable claim of harassment.  Simply because the alleged perpetrator was a union steward did not turn this matter from an EEO complaint to a matter that could only be addressed by the grievance process or by the NLRB.  Shondra H. v. U.S. Postal Serv., EEOC Appeal No. 0120181211 (May 3, 2018).

Complaint Improperly Dismissed for Failure to State a Claim.  Complainant alleged her supervisor informed her that her OWCP claim had been denied and he was informing the District Reasonable Accommodation Committee he did not have enough work for her.  Complainant stated her supervisor sent her to the office with no work to do.  The Commission found that Complainant's claim was not a collateral attack on the OWCP process but, in combination with being sent to the office, Complainant was in effect alleging the Agency failed to accommodate her disability.  Renae P. v. U.S Postal Serv., EEOC Appeal No. 0120181198 (May 3, 2018).

Complaint Alleging Placement on Month-long Administrative Leave Improperly Dismissed for Failure to State a Claim.  Complainant filed a formal complaint alleging that the Agency discriminated against him when he was forced to stop work and placed on administrative leave pending a fitness-for-duty examination.  On appeal, the Commission found that while paid administrative leave for a brief period may not state a claim, a month-long period of forced paid administrative leave states a claim.  Accordingly, the Commission reversed the Agency's dismissal of Complainant's claim for failure to state a claim.  Jonathan V. v. U.S. Postal Serv., EEOC Appeal No. 0120181020 (Apr. 13, 2018).

Complaint Regarding Memorandum of Counseling Improperly Dismissed for Failure to State a Claim.  Complainant filed a formal complaint alleging discrimination by the Agency when Complainant was issued a non-disciplinary Memorandum of Counseling.  On appeal, the Commission noted that the Memorandum provided that a copy would be maintained on file by the Deputy Special Agent in Charge for an unspecified period of time.  Further, the Memorandum's stated purpose was to "make future discipline unnecessary."  The Commission has previously held that memoranda or letters of counseling that are placed in a supervisor's folder suggest an intent to use it as a basis for future discipline.  Therefore, Complainant was aggrieved and stated a viable claim.  Loyd H. v. U.S. Postal Serv., EEOC Appeal No. 0120180738 (Apr. 10, 2018); Additional Decisions Involving Letters of Counseling Include: Arnoldo P. v. Dep't of Homeland Sec., EEOC Appeal No. 0120181320 (June 20, 2018), request for reconsideration denied, EEOC Request No. 0520180498 (Oct. 4, 2018) (Complainant's claim that he was issued a letter of counseling that included language stating "…a copy of this letter may be retained in local supervisory file for up to one year as documentation that you have been placed on notice regarding this issue of concern and the consequences of repeated behavior" stated a viable claim.  The letter cautioned that future incidents may result in a placement on an Improvement Plan Notice or other appropriate action, up to and including removal.  Such language suggested the letter was being retained as the basis of future, cumulative discipline).

Commission Found Agency Was Joint Employer.  The Commission found the Agency exercised sufficient control over Complainant's position to qualify as her joint employer for purposes of the EEO process.  The Agency noted that the contractor assigned Complainant's work, established her working hours, approved her leave requests, could hire/fire her, paid her, set the rate of pay and benefits, and withheld her taxes.  The Commission stated, however, that Complainant performed her duties at the Agency facility; used Agency equipment; had an Agency email account, telephone number and access badge; and was subject to the Agency's set hours as specified in the contract.  Most significantly, the record showed the Agency controlled Complainant's day-to-day work, assigned her work, monitored her, evaluated her performance, controlled what systems she would audit, and instructed her to perform functions outside the terms of the contract.  E-mail records and Complainant's log showed ongoing and almost daily communication and interactions between Complainant and the Agency supervisor.  The record also showed the Agency was responsible for Complainant's termination.  Myrna S. v. Dep't of the Interior, EEOC Appeal No. 0120161414 (Apr. 30, 2018); Additional Decisions Addressing Whether Complainant Was an Employee or Independent Contractor Include:  Delphia F v. Dep't of Def., EEOC Appeal No. 0120181098 (May 16, 2018) (Complainant was a bagger at the Agency's commissary who the Agency permitted to offer customers her services in return for tips.  The Agency did not provide Complainant with payment, benefits or leave and did not set Complainant's schedule, evaluate her performance, give her assignments or supervise her.  Because the Agency did not exert sufficient control over Complainant, she was not a de facto employee of the Agency); Venetta S. v. Dep't of the Treasury, EEOC Appeal No. 0120180708 (Apr. 6, 2018) (Complainant had been a Tour Guide at the Agency's facility for three years and the Agency provided her with written material for visitors and an identification badge.  The staffing firm, however, hired Complainant, provided her with pay, benefits and a uniform, and set her schedule.  Complainant also reported to an employee of the staffing firm, and the firm made the selection decision which Complainant raised in her complaint.  Therefore, Complainant was a contractor for purposes of the EEO process);  Alvaro M. v. Dep't of Def., EEOC Appeal No. 0120180260 (Apr. 5, 2018), request for reconsideration denied, EEOC Request No. 0520180403 (Oct. 18, 2018) (while Complainant had worked on Agency premises using Agency equipment for 10 years, and sometimes received assignments from the Agency, the record showed that the staffing firm made an independent decision, after investigating allegations regarding Complainant's behavior, to offer Complainant the option of working in another facility rather than being terminated.  The staffing firm ultimately terminated, then reinstated Complainant.  Therefore, the Agency did not have sufficient control over Complainant's employment to be deemed his joint employer).

Complaint Regarding Settlement Negotiations Properly Dismissed.  The Commission affirmed the Agency's dismissal of Complainant's formal complaint alleging that she was not allowed to write her own position description for failure to state a claim.  Complainant asserted that the Agency attempted to resolve a prior EEO complaint by offering to transfer her to another position but denied her request to write her own position description.  The Commission stated that a settlement offer does not give rise to a viable allegation, and such offers do not adversely affect a term, condition, or privilege of employment.  Further, settlement negotiations, including any statements and proposals made therein, are to be treated as confidential and privileged in order to facilitate candid interchange to settle disputes informally.  Fidelia F. v. Dep't of the Army, EEOC Appeal No. 0120181273 (May 29, 2018).

Complaint Properly Dismissed Because Complainant Filed Her Claim Against the Wrong Party.  Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination when she received notification that her Health and Life Insurance plans had been terminated.  The Agency dismissed the complaint for failure to state a claim, finding that it was a collateral attack on a decision by the Office of Personnel Management (OPM).  On appeal, the Commission found that the complaint was properly dismissed for failure to state a claim because Complainant had asserted her claim against the incorrect party. The Commission has previously found that OPM, not the Agency, is responsible for determinations involving insurance coverage under the Federal Employees Health Benefit program.  Billi W. v. U.S. Postal Serv., EEOC Appeal No. 0120181214 (May 25, 2018).

Complaint Properly Dismissed as Attack on OWCP Process.  The Agency dismissed Complainant's formal EEO complaint alleging that it failed to respond to a request from OWCP for failure to state a claim.  The record contained a letter from OWCP dated the day before Complainant filed his complaint stating that no further submissions were necessary.  The Commission affirmed the Agency's dismissal on grounds that the matter constituted a collateral attack on the OWCP process.  Complainant was challenging actions directly related to the adjudication of his worker's compensation claim, and should have raised the matter with the Department of Labor not in the EEO process.  Randy G. v. U.S. Postal Serv., EEOC Appeal No. 0120181127 (Apr. 26, 2018).

Complaint Properly Dismissed.  The Commission affirmed the Agency's dismissal of Complainant's claim that he was not permitted to bid on certain positions for failure to state a claim.  Complainant averred that he did not apply for the position in question.  Further, he did not present evidence that he was actively discouraged from applying by management or that the application process was secretive.  The Commission noted that, had Complainant applied and been selected, he could then have filed an EEO complaint if he believed his seniority was changed due to his protected classes.  Tania O. v. U.S. Postal Serv., EEOC Appeal No. 0120180536 (Apr. 25, 2018).

Complaint Alleging Poster for Blacks in Government Displayed in Building Properly Dismissed for Failure to State a Claim.  The Commission affirmed the Agency's dismissal of Complainant's complaint alleging discrimination regarding a poster for the group Blacks in Government that was displayed at his facility.  Complainant failed to show that he suffered harm or loss to a term, condition, or privilege of employment, and did not allege that he was personally impacted by the presence of the poster.  While Complainant may not have agreed with the tenets of the organization, there was no indication that he was harmed or harassed by the display of the poster.  Calvin D. v. Dep't of Homeland Sec., EEOC Appeal No. 0120180958 (Apr. 10, 2018).

Summary Judgment

Summary Judgment Affirmed in Equal Pay Act Claim.  Complainant, a Physician Assistant at an Agency Medical Center, filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex and in reprisal for prior protected EEO activity when he became aware that Nurse Practitioners received a higher rate of pay than Physician Assistants.  After an investigation, the AJ issued a summary decision finding no discrimination.  On appeal, the Commission found that the Agency met its affirmative defense by showing that the alleged pay disparity was based on a factor other than sex. The record revealed that the Agency was required by statute and regulations to maintain separate pay scales for Physician Assistants and Nurse Practitioners. The Medical Center used salary surveys of private sector pay to determine pay scales for each position, and, based on the survey, a pay chart was developed, approved by the facility Director, and forwarded to the VA Central Office for authorization and implementation. The Director explained that the Medical Center had been having great difficulty attracting and hiring qualified Nurse Practitioners. The Director stated that the Medical Center had recently conducted a salary survey and increased Nurse Practitioner pay to achieve parity with private sector employees and to meet a need for Nurse Practitioners at the Medical Center.  The Medical Center did not have similar difficulty in attracting, hiring, or retaining Physician Assistants and did not have unfilled Physician Assistant vacancies.  This gender-neutral explanation was not rebutted by Complainant and sufficed to convince the Commission that the Agency did not violate the Equal Pay Act.  The Commission found that there was no evidence that Complainant's prior EEO activity played any part in the setting of his salary.  Berry K. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180967 (May 25, 2018).

Summary Judgment Reversed.  Complainant filed a formal complaint alleging discrimination based on sex and disability when the Postmaster sent her harassing letters, yelled at her, made inappropriate sexual remarks, forced her to attend training, and sent her home on two occasions.  An AJ issued a decision without a hearing finding that Complainant failed to show that the Agency's nondiscriminatory explanations for the actions were a pretext for discrimination.  On appeal, the Commission found that the AJ erred when he concluded there was no genuine issue of material fact in the case and issued a decision on summary judgment.  The AJ concluded that the Agency was not liable for the harassment because Complainant failed to report the incidents.  The Commission noted, however, that the Agency is subjected to vicarious liability for harassment when it is created by a supervisor with immediate or higher authority over Complainant.  While the Agency's anti-harassment policy advised employees to report harassment to managers, supervisors, or Human Resource Managers, the Postmaster, who the Commission noted was almost certainly the highest-ranking management official at the facility and supervised Complainant, was the alleged harasser in this case.  Further, Complainant stated that she reported the harassment to the Agency's Human Resources hotline.  There was no evidence that the Agency provided Complainant with another supervisory official to whom she could report the harassment, and it was reasonable that Complainant would be fearful of reporting harassment by the Postmaster.  The Agency was aware of Complainant's sexual harassment allegations at least shortly after she initiated EEO contact.  Nevertheless, there was no evidence that the Agency conducted an internal investigation of the harassment allegations or otherwise promptly did anything to prevent the harassment from recurring.  The Commission noted that the case hinged on credibility determinations about the assertions of Complainant and the Postmaster.  Therefore, the complaint was remanded for an administrative hearing.  Gaynell A. v. U.S. Postal Serv., EEOC Appeal No. 0120162728 (June 14, 2018).

Summary Judgment Reversed.  The Commission found that the AJ erred when she concluded that there was no genuine issue of material fact in this case.  In finding no discrimination with respect to Complainant's claim that the Administrative Officer (A1) discriminated against him based on reprisal when he questioned Complainant about his EEO complaint, the AJ appeared to have relied on a Human Resources Specialist's (HR3) account of the discussion between Complainant and A1 rather than viewing the evidence in the light most favorable to Complainant, the non-moving party.  The Commission found that, viewing the evidence in the light most favorable to Complainant, this claim stated a prima facie case of reprisal.  Therefore, examination under oath of Complainant, Al, and HR3 was required for the AJ to make credibility determinations and assess the full context of the conversation.  Moreover, the AJ overlooked the close temporal nexus between A1's conversation with Complainant about his EEO complaint and Complainant's termination which raised a strong inference of reprisal.  Further development of the record was required to assess whether the Agency's proffered legitimate, nondiscriminatory reasons for Complainant's termination were pretextual.  Whitney G. v. Dep't of Homeland Sec., EEOC Appeal No. 0120162460 (May 9, 2018).

Summary Judgment Reversed.  The Commission concluded that the AJ erred when, on her own motion, she issued a decision without a hearing finding that Complainant failed to establish a hostile work environment.  Specifically, in finding that Complainant failed to establish that she was subjected to conduct that was sufficiently severe or pervasive, the AJ improperly weighed the evidence and relied on the credibility of management officials.  The Commission stated that the AJ must also assess the alleged responsible official's credibility at a hearing to determine whether questions regarding Complainant's retirement plans were based on age-based animus.  Further, the AJ improperly relied upon statements from two management officials in finding that they did not attempt to solicit negative feedback about Complainant, and Complainant did not have the opportunity to cross-examine the management officials.  The Commission found unresolved issues which required an assessment as to the credibility of various management officials, co-workers, and Complainant herself.  The Commission further noted that while the Agency properly dismissed claims regarding a detail and the removal of Complainant's Contracting Officer's warrant as discrete acts, the Agency and the AJ failed to consider whether those actions were part of Complainant's hostile work environment claim.  Therefore, the entire claim was remanded for an administrative hearing.  Marvella B. v. Gen. Serv. Admin., EEOC Appeal No. 0120150997 (Apr. 3, 2018).

Timeliness

Agency Improperly Dismissed Formal Complaint as Untimely, but Properly Dismissed Eight Allegations for Failure to Timely Contact EEO Counselor.  The Commission reversed the Agency's dismissal of Complainant's complaint for failure to timely file.  Complainant had timely completed a Notice of Right to File a Discrimination Complaint form, which included a description of the alleged discrimination.  Complainant later submitted a Formal Complaint form, beyond the 15-day time limit for timely filing a formal complaint.  The Commission found the design of the Notice, which requested detailed information about the claim, created reasonable confusion about the need to submit an additional form.  The Commission also noted the correct form was not supplied to complainant.  The Commission found Complainant's submitting the Notice constituted a good faith effort to timely file a formal complaint.  The Commission found, however, that the Agency properly dismissed eight allegations for untimely EEO Counselor contact.  Six of those allegations concerned discrete hiring and promotions which were effective more than 45 days before Complainant contacted the EEO Counselor.  Further, the evidence showed that Complainant reasonably suspected that the alleged denial of his request to serve as Auditor in Charge, and his request for performance feedback were discriminatory at the time they occurred more than 45 days before he initiated EEO contact.  Augustine S. v. Dep't of State, EEOC Appeal No. 0120181255 (May 17, 2018).

Filing Date of Motion to Amend Deemed Date of Initial EEO Counselor Contact.  Complainant filed a motion to amend with the AJ assigned to hear a prior EEO complaint, alleging that she was issued a Letter of Reprimand.  After the AJ denied Complainant's motion, she contacted an EEO Counselor and filed a new formal complaint.  The Agency dismissed this complaint for failure to timely contact an EEO Counselor.  On appeal, the Commission found that the dismissal was improper.  Pursuant to the Commission's regulations, if an AJ denies a motion to amend because the allegations are not like or related to the pending complaint, the AJ should order the Agency to process the new claims as a separate EEO complaint.  In this case, the AJ should have ordered the Agency to process the additional allegations and instructed the Agency that the filing date of the motion to amend should be used to determine whether initial EEO contact was timely.  Therefore, since Complainant filed her motion to amend within 45 days of the alleged discriminatory incident, her EEO contact was timely.  Chau B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120181131 (Apr. 26, 2018).

Reasonable Accommodation Claim Timely Raised.  Complainant 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 Agency investigated the claim, but an AJ ultimately granted the Agency's motion to dismiss the claim for failure to timely contact an EEO Counselor.  According to the record, Complainant first requested additional telework days while she completed a trauma recovery program.  Complainant and the Agency continued to interact about her request until the Agency ultimately approved the additional telework in April 2013.  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.  Reita M. v. Dep't of Housing & Urban Dev., EEOC Appeal No. 0120160803 (Apr. 5, 2018).

Complaint Timely Raised with EEO Counselor.  Upon returning to work following treatment for a psychiatric disability, Complainant was sent for a fitness-for-duty (FFD) examination despite providing the Agency with a note from his doctor that cleared him for work.  Following the FFD, 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 about when this placement would end.  Therefore, since Complainant was impacted by the alleged daily discrimination, his contact with the EEO Counselor was timely.  Jermaine G. v. U.S. Postal Serv., EEOC Appeal No. 0120180858 (Apr. 3, 2018).

Complaint Timely Filed.  The Agency dismissed Complainant's formal complaint, on grounds that it was untimely, stating that it was filed more than fifteen days after Complainant received the Notice of Right to File on June 14, 2017.  Based on a thorough review of the record, the Commission determined that the Agency failed to adequately support its decision.  The record contained a Postal Service "Tracking" print-out for the certified mail tracking number associated by the Agency with the Notice that indicated a delivery to a particular town without any further details of the address.  There was no evidence, other than this generalized reference to a city and zip code, indicating when Complainant actually received the Notice.  Where, as here, there is an issue of timeliness, the Agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.  Gaylord I. v. Dep't of Agric., EEOC Appeal No. 0120172673 (June 26, 2018).

Commission Found Sufficient Justification to Excuse Brief Delay in Filing Formal Complaint.  Complainant acknowledged that she filed her formal complaint one day past the 15-day deadline, but stated that she left for a "high threat" out-of-state detail assignment the day after receiving the Notice of Right to File a Discrimination Complaint.  Complainant noted that while the detail was supposed to last five days it lasted 10 days, and she was not able to access the information necessary to file her complaint during that time.  The Commission found that sufficient justification to excuse Complainant's one-day delay in filing her formal complaint.  Priscila F. v. Dep't of Justice, EEOC Appeal No. 0120181476 (June 12, 2018).

Complaint Properly Dismissed as Untimely.  The Commission affirmed the Agency's dismissal of Complainant's complaint on the grounds it was untimely filed.  The Agency provided evidence showing that Complainant received the Notice of Right to File a Formal Complaint on November 22, 2016, which included clear instructions for filing and the 15-day requirement.  Complainant did not file her complaint until October 25, 2017.  The Commission rejected Complainant's attorney's argument that the complaint warranted equitable tolling because he sent the complaint to the wrong email address two days before the deadline.  The Commission stated that Complainant's attorney waited 10 months without any confirmation from the Agency that it received Complainant's formal complaint, and the prolonged lack of response indicated a lack of due diligence that did not warrant equitable tolling.  Justine R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180630 (Apr. 11, 2018).

 

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.)

HARASSMENT IN THE WORKPLACE:

AN OVERVIEW OF THE LAW ON HOSTILE WORK ENVIRONMENT & RECENT COMMISSION DECISIONS FINDING SEXUAL HARASSMENT

                                                             

INTRODUCTION

In 1986, the Supreme Court addressed the issue of harassment in Meritor Savings Bank v. Vinson,[1] holding that Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in the workplace.  Sexual harassment in the workplace remains a persistent problem, and the Commission is committed to continuing its focused efforts to help fight sexual harassment.

In furtherance of this effort, in 2015 EEOC Chair Jenny R. Yang created the Select Task Force on the Study of Harassment in the Workplace.[2]  The mission of the Select Task Force was to examine the problem of workplace harassment in all its forms, and to look for ways to better prevent and remedy it.  Former EEOC Commissioner Chai R. Feldblum and then-Commissioner, now-Acting Chair Victoria A. Lipnic served as co-chairs of the Select Task Force.  The task force consisted of a select group of outside experts, including management and plaintiffs' attorneys, representatives of employee and employer advocacy groups, labor representatives, and academics who have studied this field for years - sociologists, psychologists, and experts in organizational behavior.

From April 2015 through June 2016, the task force held a series of meetings - some were open to the public, some were closed working sessions, and others were a combination of both.  The task force received testimony from more than 30 witnesses and received numerous public comments.  Co-Chairs Feldblum and Lipnic issued their Co-Chair's Report on June 20, 2016.  The report includes detailed recommendations for harassment prevention, including effective policies to reduce and eliminate harassment and recommendations for targeted outreach and future research.[3]   

The Co-Chair's Report continues to guide and inform the EEOC's work to prevent workplace harassment.  It has also been cited outside the EEOC as a blueprint for renewed focus on harassment prevention efforts - especially given the increased attention to the issue in the wake of the allegations against Harvey Weinstein and the growth of the #MeToo movement since October 2017. 

In June 2018, Acting Chair Lipnic and former Commissioner Feldblum held a meeting and one-time reconvening of the task force, titled "Transforming #MeToo into Harassment-Free Workplaces: A Reconvening of the EEOC's Select Task Force on the Study of Harassment in the Workplace."  Witnesses and task force members addressed workplace harassment in light of the #MeToo movement and discussed how employers can and have worked to transform their workplaces and prevent and stop harassment.[4]

On October 31, 2018, the Commission held a public meeting titled "Revamping Workplace Culture to Prevent Harassment."  Witnesses with backgrounds in law, academia, labor, and business highlighted harassment-prevention strategies focused on leadership, accountability, and training.[5]

Growing out of the Select Task Force and the Co-Chair's Report, the Commission has also developed several resources to assist employers in preventing harassment, including a Chart of Risk Factors and Responsive Strategies, and Checklists addressing Leadership and Accountability[6]; a resource document titled "Promising Practices for Preventing Harassment"[7]; and a new training program on Respectful Workplaces.[8]  For more information on the EEOC's recent efforts, including the agency's enforcement efforts, see "What You Should Know: EEOC Leads the Way in Preventing Harassment."[9]

As an additional aid and reference for agencies and Complainants, this article first provides a brief overview of the Supreme Court case law addressing workplace harassment under Title VII. The article then provides summaries of recent Commission decisions finding sexual harassment.

SUPREME COURT DECISIONS

As noted, the Supreme Court addressed the issue of harassment in Meritor Savings Bank v. Vinson[10] in 1986.  The Court supported the Commission's position, holding that sexual harassment can in fact be a form of discrimination prohibited by Title VII.  The Meritor Court also laid the foundation for the basic analysis to be used by lower courts in all harassment cases.[11]  The Court found that for an atmosphere of harassment or hostility to be actionable the offending behavior must be sufficiently severe or pervasive to alter the victim's employment conditions and create an abusive working environment.[12]  The Meritor standard requires an objectively hostile environment, an environment that a reasonable person would find hostile or abusive.[13]  In addition, the victim in the case must subjectively perceive that the environment is abusive.[14]  The Court also addressed the important question of whether "voluntary" but unwelcome sexual activity could constitute sexual harassment.[15]  The Court found that "voluntary" sexual activity or activity which the complainant was not actually forced to participate in against his or her will was not a defense to a sexual harassment suit brought pursuant to Title VII.[16]  The Court noted that the key factor was whether the sexual advances and subsequent sexual activity was "unwelcome" and not whether the victim had a choice not to participate.[17]

In Harris v. Forklift Systems,[18] the Supreme Court ruled that in a sexual harassment case the plaintiff does not have to prove concrete psychological harm to establish a Title VII violation.  At the same time, conduct that is not severe or pervasive enough to create "an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive," is beyond Title VII's reach.[19]  In evaluating a hostile work environment, all factors were to be weighed including: frequency of the discriminatory conduct; its severity; whether it is humiliating or physically threatening, or a merely offensive utterance; and whether the conduct unreasonably interferes with an employee's work performance.[20]  To be actionable, the alleged harassing behavior need not drive the victim from her job, but it must be of such severity or pervasiveness as to pollute the working environment and thereby alter the conditions of the plaintiff's employment.[21]

In Faragher v. City of Boca Raton, Florida,[22] and Burlington v. Ellerth,[23] the Supreme Court indicated that employers would be subject to a strict liability standard when employees with supervisory control engage in harassment that results in tangible employment actions.[24]   In situations where supervisors engage in harassment that does not result in a tangible employment action, an employer can avoid vicarious liability by showing that (1) the organization exercised reasonable care to avoid, correct, and mitigate any harassing behavior and (2) that the plaintiff unreasonably declined to take advantage of preventive or corrective opportunities that the organization provided.[25]  The Faragher and Ellerth decisions greatly impacted how sexual harassment cases were litigated.

APPLICATION OF THE ONCALE REASONABLE PERSON STANDARD

Following the Supreme Court's decision in Harris, the Circuit Courts articulated differing interpretations of the reasonable person standard.  The Courts disagreed on whether the standard referred to a reasonable person generally, or more specifically to a reasonable person of the same sex as the plaintiff.  The Court of Appeals for the Second Circuit applied the more general reasonable person standard when addressing a claim of sexual harassment in Tomka v. Seiler Corp.[26]  However, the Third Circuit, in West v. Philadelphia Elec. Co.,[27] interpreted the standard as applying to a "reasonable person of the same protected class."

In Oncale v. Sundowner Offshore Services,[28] the Supreme Court, in addressing the issue of same-sex harassment, set forth an analysis based on the objective reasonable person standard.  The Court emphasized that the "objective severity of the harassment should be judged from the perspective of a reasonable person in the plaintiff's position."[29]  The Supreme Court did not address the split in the Circuit Court decisions.  The Supreme Court did, however, examine the harassing conduct within the "social context in which the particular behavior occurs" and is experienced by the victim of the harassment.[30]  Such an analysis, the Court noted, depends on a number of circumstances, expectations, and relationships which "are not fully captured by a simple recitation of the words used or the physical acts performed."[31]

The Circuits have continued to apply somewhat different analyses when addressing whether the alleged harassment created an environment that a reasonable person would find hostile or abusive.  The First Circuit directly adopted Oncale's analysis focusing on whether a reasonable person in the plaintiff's position would find the conduct hostile or abusive.[32]  The Eleventh Circuit, on the other hand, has interpreted Oncale as requiring that the severity of the harassment be considered in light of the plaintiff's circumstances.[33]

COMMISSION DECISIONS FINDING SEXUAL HARASSMENT

The Complainant in Trina C. v. Dep't of Justice,[34] alleged that she was subjected to a hostile work environment based on sex when she worked as a Trial Attorney serving in a one-year detail at the U.S. Embassy in Iraq.  The Commission concluded that Complainant was subjected to a hostile work environment based on her sex because she was subjected to pervasive unwelcome conduct involving her statutorily protected class.  Examples included management's belittlement of Complainant regarding her assignments and work product, reassignment of work, and comments referencing Complainant's manner of dress and her cooking skills.  In addition, the record contained other examples of management's discriminatory conduct toward women in the office which included yelling at female staff members, exclusion of female staff members, and more favorable treatment of male staff members regarding work assignments.

In Heidi B. v. Dep't of Homeland Sec.,[35] the AJ found that the Agency subjected Complainant to sexual harassment.  The Commission affirmed the AJ's findings on appeal.  Assuming, arguendo, that the Unit Leader (S1) was a co-worker rather than a supervisor, the Commission found that the Agency was still liable for S1 's actions because it knew about S1 's conduct and did not take immediate and appropriate corrective action.  Specifically, while the Agency took measures to stop the harassment, it did not take any action to correct its effects on Complainant or ensure that similar sexual harassment by another employee did not take place.  The Commission agreed with the AJ that although the Agency promptly removed S1 from the workplace, it did not take any action to prevent further retaliatory harassment.  In addition, the Agency did not communicate to or educate the rest of the staff that sexually harassing conduct was against Agency policy and would not be tolerated.

In Complainant v. Dep't of the Navy,[36] Complainant, the only woman working in her section, filed an EEO complaint alleging that a male coworker who sometimes served as Acting Supervisor sexually harassed her, including inappropriately touching her, and telling Complainant he loved her.  In a final decision, the Agency acknowledged that Complainant had been subjected to sexual harassment by the co-worker, but determined that the Agency was not liable for the harassment.  On appeal, the Commission concluded that Complainant's allegations were supported by the weight of the evidence, and that the conduct was unwelcome and severe enough to create a hostile work environment.  With regard to the Agency's liability, management acknowledged that the union reported the harassment a few days after the first incident, and the Commission stated that the Agency had a duty to take immediate and appropriate corrective action no matter the source of the report.  The Commission noted that there was no documentation in the record reflecting that the co-worker was disciplined for harassing Complainant, and counseling the co-worker did not stop him from harassing Complainant.  Witnesses attested that the co-worker sometimes visited and lurked in Complainant's work area even after the Agency reassigned him to another building. The Commission determined that the Agency's failure to properly address the harassment left Complainant vulnerable to the very type of disturbing confrontation that ultimately occurred in this case, and, therefore, the Agency's response was inadequate.  Consequently, the Commission found that the Agency did not satisfy the affirmative defense and was liable for the harassment of Complainant.

In Scarlet M., Maxima R., Sharolyn S. v. Dep't of the Navy,[37] three female Complainants alleged sexual harassment when the Director at the location where the women worked installed a hidden video camera in the women's restroom.  The Agency argued that it should not be held liable for the Director's actions because it took "prompt and effective action to prevent further harassment and correct what had already occurred."  In all three complaints, the Agency conceded there was clear evidence of unwelcome conduct of a sexual nature and the Director admitted that he videotaped only women.  The Agency also acknowledged that the Director's actions created an offensive work environment for Complainants.  The Commission rejected the Agency's assertion that it took corrective action once it was informed of the Director's actions, stating that Base Security was informed of the camera within hours of its placement in the women's bathroom.  The Commission noted that the harm began as soon as the camera was set in place by the Director who was the highest-ranking Agency official at the facility.  The Commission noted that in cases when both parties exercise reasonable care, the Agency's affirmative defense will fail.  Therefore, despite the Agency's best efforts when it learned of the harassment, the Commission could not find Complainants unreasonably failed to take advantage of any preventative or corrective opportunities.

In Complainant v. Dep't of Def.,[38] the Commission found that Complainant was subjected to sexual harassment by a co-worker for over one year, including offensive and unwelcome comments and touching, and that the Agency failed to take prompt and effective action after being informed of the unwelcome conduct.  Specifically, the Agency waited 11 days to speak with Complainant and 21 days to speak with the co-worker, during which time the conduct continued, and the Agency only disciplined the offending co-worker three months later.  According to the record, another co-worker reported to management that she had been subjected to similar sexual harassment from the male co-worker.  The Commission noted that management did not separate Complainant and the male co-worker immediately after learning of the allegations of sexual harassment, and the Agency erred when it eventually did separate them by forcing Complainant to change her shift against her will, while the male co-worker was allowed to keep his shift.  Finally, there was no evidence in the record that the Agency took any steps to ensure the harassment would not occur again, and since the record indicated that this harassment likely affected more than just Complainant, the Agency should have provided the whole facility with anti-harassment training.

In Complainant v. Dep't of Veterans Affairs,[39] the Agency conceded that Complainant met the first four elements of her sexual harassment claim.  On appeal, the Commission found that the Agency failed to take immediate and appropriate corrective action in this case and therefore, the Agency was liable for the conduct of Complainant's supervisor.  The Agency could not argue that it took immediate corrective action to end the harassment when its own investigation revealed that Complainant's supervisor failed to follow the Agency's established sexual harassment protocol.  The record showed that Complainant immediately approached her supervisor for assistance, just after having been sexually harassed by another employee.  However, Complainant's supervisor took no action.  The Commission further found that while the supervisor's inaction was acknowledged and addressed by Agency management, the initial inaction by Complainant's supervisor was the reason that liability attached to the Agency.  Although the Agency subsequently responded in an appropriate manner, this response was not immediate, and Complainant was left on her own to seek relief from the harassment.  The Agency was ordered, among other things, to investigate Complainant's claim for damages and provide training for the supervisor. 

In Complainant v. Dep't of Justice,[40] Complainant, a female Correctional Counselor at a detention center, alleged that the Agency subjected her to sexual harassment when a male co-worker invaded her personal space, breathed heavily on her neck, and made sexual noises.  Although there was videotape footage of the incident, the Agency refused to allow Complainant to view it and the videotape was not made part of the record.  Nonetheless, in its final decision finding no evidence of harassment, the Agency relied on its own contention that a Special Investigative Agent claimed he had reviewed the videotape and did not observe any harassing conduct.  On appeal, noting that the record contained neither a copy of the videotape nor testimony from the Agent, the Commission held that the Agency's assertions about the content of the videotape were not evidence.  Because Complainant's testimony was detailed, internally consistent and consistent with testimony from other witnesses, and, in light of prior allegations of similar conduct against the individual by both Complainant and others, the Commission found that the weight of the evidence corroborated Complainant's allegations.  Further, because the incident occurred in a locked, isolated area, which heightened the physically threatening nature of the behavior, the Commission concluded that it was severe enough to create a hostile work environment.  Based on the Agency's failure to discipline the individual and its denial of Complainant's request for reassignment to another shift to avoid contact with him, the Commission held that the Agency was liable because it failed to take immediate and appropriate corrective action.

Complainant in Complainant v. Dep't of Energy,[41] filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the bases of sex, perceived sexual orientation, when he was continuously subjected to a hostile work environment by his co-workers and supervisors.  Specifically, Complainant stated that three co-workers repeatedly referred to him using offensive anti-gay slurs and spread rumors about his sexual orientation.  Complainant informed his Supervisor, the Unit Commander, and the Section Chief about the conduct, but the harassment continued. In addition, Complainant stated that other Supervisors made offensive comments to him, subjected him to strict scrutiny, and ordered a co-worker to investigate Complainant.

On appeal, the Commission found that Complainant established that he was subjected to a hostile work environment on the bases of sex.  Complainant was called derogatory sex-based names, and his property was defaced with these offensive sex-based names.  The record showed that Complainant informed his Supervisors of the harassment by his co-workers and they failed to take corrective action.  The Commission noted that the harassment was not limited to sex-based epithets, but included being ostracized by co-workers and Supervisors, being subjected to more strict scrutiny, and unfairly assigned work.  The harassment was perpetrated by both co-workers and Supervisors, and the record was replete with instances where Complainant complained of the harassment throughout his entire chain of command, but the Supervisors did nothing to ensure the harassment would stop.  Thus, the Commission concluded that the Agency was liable for the harassment, and, further, failed to exercise reasonable care to prevent and correct the harassing behavior.

In Miller v. Dep't of Veterans Affairs,[42] Complainant stated that, less than one month after he began working at the Agency, a co-worker (EF) began to harass him, including among other things, calling him a derogatory name, placing chocolate in his desk with a paper towel blotted with lipstick, asking personal questions, making sexually suggestive comments sending him an e-mail stating that he should tell his wife he was planning to have an affair with EF, and exposing herself on one occasion.  Complainant stated that he was forced to resign in January 2008 due to the harassment.  Complainant noted that he reported the conduct to his supervisor on almost a daily basis.  In addition, Complainant stated that the Chief Financial Officer (CFO) merely shrugged when he tried to tell her about the harassment and asked him if he could be professional.  Complainant stated that he felt that he was going to lose his job because nothing was being done about the harassment.  EF denied that many of the incidents cited happened as Complainant described, and asserted that Complainant retaliated against her after she declined his suggestion that they have an affair.

On appeal, the Commission initially found that Complainant was more credible than EF with respect to the events at issue.  The Commission noted that Complainant reported EF's conduct to management on several occasions, while EF did not report that Complainant engaged in any harassing conduct until management confronted her about Complainant's allegations.  In addition, the record contained a memorandum from Complainant's supervisor which corroborated Complainant's assertions.  The Commission found that Complainant established a prima facie case of sexual harassment.  Complainant was subjected to conduct of a sexual nature by EF including sexual comments, romantic propositioning, vulgar taunting and name calling, indecent exposure, and unwanted exposure to sexually-oriented material in the workplace over a three-month period, all of which contributed to the overall sexually hostile work environment for Complainant.  Further, the conduct was unwelcome as evidenced by the fact that Complainant reported the behavior to management several times and repeatedly told EF to cease communication with him.  The Commission noted that Complainant was forced to work in the same area as the harasser even after he reported the offensive conduct to management.  The Agency acknowledged that management was aware of Complainant's allegations by early November, but asserted that it was unable to determine which party was the harasser because both Complainant and EF gave different versions of the events.  The Commission stated, however, that the Agency is required to weigh each party's credibility and determine whether harassment occurred.  If the evidence is inconclusive, the Agency must undertake further preventative measures, such as providing targeted training and monitoring.  The Commission concluded that the Agency should have taken prompt and effective action to address the harassment after being notified of the incidents in early November.

CONCLUSION

Harassment remains a serious issue in the federal workplace.  We have come a long way since the U.S. Supreme Court's landmark holding in Meritor Savings Bank v. Vinson that workplace harassment was an actionable form of discrimination prohibited by Title VII, but as stated in the Report of the Co-Chairs of the Select Task Force on the Study of Harassment in the Workplace: "sadly and too often we still have far to go."[43]  By ensuring that managers and employees are knowledgeable about the laws and decisions addressing sexual harassment, federal agencies can better prevent and address these issues.



[2] EEOC Select Task Force on the Study of Harassment in the Workplace, https://www.eeoc.gov/eeoc/task_force/harassment/.

[3] EEOC Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic 5-15 (June 20, 2016), https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf.

[4] Transforming #MeToo Into Harassment-Free Workplaces, Meeting of the EEOC Select Task Force on the Study of Harassment in the Workplace (June 11, 2018), https://www.eeoc.gov/eeoc/task_force/harassment/6-11-18.cfm.

[5] Revamping Workplace Culture to Prevent Harassment, Meeting of the Equal Employment Opportunity Commission (Oct. 31, 2018), https://www.eeoc.gov/eeoc/meetings/10-31-18/index.cfm.

[6] EEOC Select Task Force on the Study of Harassment in the Workplace, Checklists and Chart of Risk Factors for Employers, https://www.eeoc.gov/eeoc/task_force/harassment/checklists.cfm.

[7] Promising Practices for Preventing Harassment (Nov. 2017), https://www.eeoc.gov/eeoc/publications/promising-practices.cfm.

[8] EEOC Launches New Training Program on Respectful Workplaces (Oct. 4, 2017), https://www.eeoc.gov/eeoc/newsroom/release/10-4-17.cfm.

[9] What You Should Know:  EEOC Leads the Way in Preventing Workplace Harassment (Oct. 4, 2018), https://www.eeoc.gov/eeoc/newsroom/wysk/preventing-workplace-harassment.cfm; see also https://www.eeoc.gov/eeoc/task_force/harassment/resources.cfm.

[11] Id. at 67.

[15] Meritor, 477 U.S. at 68.

[16] Id.

[17] Id.

[19] Harris, 510 U.S., at 21 (citing Meritor, 477 U.S., at 67).

[20] Harris, 510 U.S. 17.

[21] Id. at 21-22.

[24] Id.

[25] Id.

[26] 66 F.3d 1295 (2nd Cir. 1995); see also Watkins v. Bowden, 105 F.3d (11th Cir. 1997) (finding that the District Court's jury instruction defining a hostile work environment as one that a reasonable person would find hostile or abusive was appropriate).

[27] 45 F.3d 744, 753 (3rd Cir. 1995); see also Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995) (stating that a hostile environment must be determined from the perspective of a "reasonable person with the same fundamental characteristics").

[29] Id., at 81.

[30] Id.

[31] Id.

[33] Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir. 2012) (addressing a claim of racial harassment).

[43] EEOC Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic iv (June 20, 2016),

https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf.