Fiscal Year 2019, Volume 4
Office of Federal Operations
Selected EEOC Decisions on:
The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO).
Carlton M. Hadden, Director, OFO
Dexter Brooks, Director OFO's Federal Sector Programs, & Acting Assistant Director, OFO's Special Operations Division
Editor: Robyn Dupont
Writers: Craig Barkley, Ayana Bowman, Trevis Busteed, Larissa Davis, Robyn Dupont,
Mary O'Rourke, Joseph Popiden, Navarro Pulley
The Digest is available online through EEOC's homepage at www.eeoc.gov/federal/digest/index.cfm.
(The Commission redacts Complainants' names when it publishes decisions, and all federal sector appellate decisions issued for publication use a randomly generated name as a substitute for the name of the complainant. This randomly generated first name and last initial is assigned using a computer program that selects names from a list of pseudonyms and bears no relation to the complainant's actual name. This change was made to address privacy concerns and to ensure consistency with the Commission's approach in the rest of its enforcement work and the investigations of complaints.)
Commission Modified Agency's Award of Attorney's Fees. In its final decision, the Agency found that it discriminated against Complainant based on disability by failing to engage in the interactive process to consider alternative accommodation options. Complainant then retained an attorney and presented evidence showing entitlement to compensatory damages. Complainant also requested back pay. Following a second final agency decision, the Commission found that Complainant was entitled to back pay and increased the Agency's award of nonpecuniary damages. Thereafter, Complainant's attorney submitted a statement of fees. The Agency found that the attorney's hourly rate was reasonable, but the Agency reduced the amount of the fees, finding that some of the work was duplicative of prior work by the Complainant. The Agency also excluded hours for work completed before the appeal. In the instant decision, the Commission found that the Agency failed to show that 3.4 hours claimed for research were duplicative. The attorney provided detailed information regarding the specific research he performed, including a list of cases and topics. Further, the Commission disagreed with the Agency's exclusion of hours for work performed prior to the issuance of its second decision. The Commission's prior decision included an order stating that Complainant was entitled to fees and costs incurred in the processing of the complaint and did not limit the fees to those incurred after the issuance of the Agency's second decision. Liza B. v. Dep't of Agric., EEOC Appeal No. 0120181084 (May 14, 2019).
Commission Modified Award of Attorney's Fees. The Commission previously found that the Agency denied Complainant reasonable accommodation and discriminated against him based on disability and prior EEO activity. The Agency then issued a final decision regarding Complainant's award of attorney's fees and costs. On appeal, the Commission modified the award. The Commission agreed with the Agency that the attorney failed to show that she had ever billed or collected $650 per hour. The Commission noted, however, that the attorney had been awarded $450 per hour for 10 years and found that some increase over time was needed considering her significant experience in employment discrimination. Therefore, the Commission increased the hourly rate to $500. The Commission reduced the hours claimed for fees and costs prior to the time Complainant filed his complaint, and excluded time spent for things such as "Received affidavit package," and "Affidavit mailed to Investigator" as being vague. The Commission declined to implement the Agency's across-the-board reduction of the remaining hours. Victor S. v. U.S. Postal Serv., EEOC Appeal No. 0120180973 (Apr. 16, 2019).
Commission Affirmed AJ's Award of Attorney's Fees. Complainant filed an EEO complaint alleging that the Agency discriminated against him when it issued him a successful performance appraisal. An Administrative Judge (AJ) found in Complainant's favor and ordered the Agency, among other things, to pay attorney's fees. The AJ reduced the attorney's fee award, finding the requested fees excessive, redundant, and unnecessary. On appeal, the Commission concluded that the AJ's reduction in the amount of attorney's fees was appropriate. The Commission found the requested fees duplicative and unreasonably excessive given the basic nature of the case. The Commission also found that the Agency adequately complied with the AJ's notice-posting order when the Agency visibly displayed the notice on a departmental bulletin board for the required sixty-day period. Odis H. v. Dep't of Def., EEOC Appeal No. 0120171383 (Mar. 28, 2019).
Commission Modified Award of Attorney's Fees. In a prior decision, the Commission affirmed an AJ's finding of discrimination and award of attorney's fees. Complainant then submitted a supplemental petition for attorney's fees for work on the successful appeal. The Agency rejected the attorney's supplemental request on several bases, including the hourly rate. In the underlying decision, the Commission found that the Agency erred in reducing the attorney's hourly rate. The Commission reasoned that although the AJ properly reduced the attorney's fees for the hearing, there was no reason to extend the reduction to the successful appeal. While the Commission rejected the Agency's assertion that the fees should be reduced by half, the Commission agreed with the Agency that two specific entries were vague. Thus, the Commission modified the Agency's decision to reflect the attorney's requested hourly rate, but struck the two vague entries. Cletus W. v. Dep't of the Treasury, EEOC Appeal No. 0120170739 (Mar. 27, 2019).
Commission Affirmed Denial of Class Certification. Complainant filed a formal EEO complaint alleging that the Agency did not provide him with promotional opportunities because of his race. The Agency processed the complaint as a class complaint and forwarded it to an AJ for consideration. The AJ ultimately denied class certification finding that the purported class did not meet the requirements of numerosity, commonality, and typicality. The Commission affirmed the decision on appeal. The Commission agreed with the AJ that Complainant did not allege a timely denial of promotion and indicated only that a coworker was promoted to a position for which Complainant did not apply. Therefore, the Commission concluded that the Class Agent did not show that there was a shared injury among the class members sufficient to meet the requirements of commonality or typicality. The Commission also concurred with the AJ's finding that the purported class consisting of 18 potential members failed to meet the numerosity prerequisite for certification. Finally, the Class Agent did not retain counsel and did not possess the skills, experience and resources necessary to represent the interests of the class. The Commission also affirmed the Agency's dismissal of Complainant's individual claim on the grounds that the matter failed to state a claim given Complainant's acknowledgment that he did not apply for the promotion at issue. William G. v. U.S. Postal Serv., EEOC Appeal No. 2019001459 (May 23, 2019).
(See, also, "Findings on the Merits," and "Remedies" this issue.)
Commission Increased Award of Damages to $65,000. The Agency found that it failed to provide Complainant with reasonable accommodation on five occasions during a five-month period, and awarded her, among other things, $40,000 in nonpecuniary compensatory damages. The Commission increased the award to $65,000 on appeal, finding that Complainant's statement, along with that of a supporting witness, established that for an extended period, the Agency's failure to accommodate Complainant caused her to experience physical discomfort/pain, deterioration of her medical condition, emotional distress, loss of enjoyment of life, and negative impacts on familial relationships. Further, the award was consistent with Commission precedent. The Commission affirmed the Agency's award of $5,332.14 in past pecuniary damages, as well as the Agency's finding that Complainant did not prove her claim for future pecuniary damages. Elene K. v. Soc. Sec. Admin., EEOC Appeal No. 0120170703 (Mar. 27, 2019).
Commission Increased Agency's Award of Non-Pecuniary Damages to $50,000. Upon a second remand by the Commission, and a determination that the Agency failed to reasonably accommodate Complainant, the Agency issued a final decision awarding Complainant $5,000 in non-pecuniary compensatory damages. Complainant appealed and provided evidence that she suffered injury because of the Agency's failure to accommodate her for more than five years. Specifically, Complainant stated that she suffered great pain and fatigue due to working without accommodation and was unable to do household chores. She also experienced elevated blood pressure and loss of enjoyment of life. Complainant's husband submitted a statement supporting Complainant's claim. The Commission concluded that the Agency was not responsible for any pre-existing conditions, but was responsible for exacerbating Complainant's condition and determined that an award of $50,000.00 was more in line with Commission precedent. Yvette H. v. Dept. of Def., EEOC Appeal No. 0120172249 (Mar. 21, 2019).
Commission Affirmed AJ's Award of $16,000 in Compensatory Damages. Following a hearing, the AJ found that the Agency discriminated against Complainant when it did not make a good faith effort to accommodate him for a period of approximately 10 weeks. As relief, the AJ awarded Complainant, among other things, $16,000 in nonpecuniary compensatory damages. The Commission affirmed the award on appeal. Complainant provided statements from two coworkers in support of his claim. Complainant had difficulty sleeping, isolated himself, and was frustrated, irritated and anxious. While Complainant questioned the AJ's finding that the Agency engaged in the interactive process after the 10-week period, the Commission found that substantial evidence showed that the Agency attempted to obtain additional information regarding Complainant's condition after it granted his request to telework, and it was reasonable to allow time to implement the accommodation. The Commission concluded that $16,000 was in line with awards in similar cases. Kerry B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180317 (May 31, 2019).
Commission Affirmed AJ's Award of $15,000 in Compensatory Damages. Following a hearing, the AJ found that Complainant was harassed when the Agency issued him a Memorandum for Record of Pre-Action Investigation Meeting, and awarded him, among other things, $15,000 in nonpecuniary compensatory damages. The Commission affirmed the award on appeal. Complainant testified that he had difficulty sleeping, experienced back and leg pain, stress and frustration, gained weight, feared losing his job, and experienced marital problems. Complainant's wife provided testimony in support of his claim. The Commission agreed with the AJ that the evidence did not support that the issuance of the Memorandum caused Complainant's back or leg pain. Further, Complainant was not entitled to damages for stress from pursuing his EEO complaint. The Commission found that Complainant's harm was consistent with that in prior decisions awarding $10,000, and when considering the need to adjust for inflation, a $15,000 award was proper. Jess P. v. Dep't of Def., EEOC Appeal No. 0120180553 (May 31, 2019).
Commission Affirmed Agency's Award of $10,000 in Compensatory Damages. The Commission previously found that the Agency denied Complainant reasonable accommodation when it involuntarily reassigned him to a position he was unable to perform because of his medical restrictions and later sent him home because there was allegedly no work available. The Agency subsequently awarded Complainant $10,000 in nonpecuniary compensatory damages, and the Commission affirmed the award on appeal. The Commission noted that there was no question Complainant experienced harm resulting from the discrimination. Complainant suffered ongoing stress, depression and insomnia. Beyond conclusory statements, however, Complainant provided few details concerning the psychological or physical harm he suffered due to the discrimination. Complainant alleged he developed Type II diabetes following the discrimination and submitted articles attempting to show that, because he had no family history of diabetes and was not overweight, the diabetes was caused by the stress from the discrimination. Nevertheless, Complainant did not produce any evidence demonstrating that there was a nexus between the discrimination and his diagnosis of diabetes. The Commission concluded that the Agency's award of $10,000 was sufficient to address the harm Complainant suffered and was consistent with decisions in comparable cases. The Commission also affirmed the Agency's award of $29.49 in pecuniary damages for antidepressants and sleep medication related to the depression and insomnia he experienced due to the discrimination. Victor S. v. U.S. Postal Serv., EEOC Appeal No. 0120181004 (May 8, 2019).
Commission Affirmed Agency's Award of $10,000 in Compensatory Damages. The Agency found that Complainant was discriminated against when management required additional medical documentation prior to providing her with certain computer software as an accommodation. The Agency subsequently awarded Complainant $10,000 in nonpecuniary compensatory damages, and the Commission affirmed the award on appeal. Complainant alleged that she experienced anxiety attacks, depression, mental anguish, and became anti-social, indicating that she will continue to see a psychologist for emotional stress and take related prescriptions indefinitely. While Complainant provided letters from her husband, mother, and sister regarding her emotional distress, they attributed Complainant's condition not only to the denial of accommodation, but also to Complainant's worker's compensation claim and other contributing factors. Complainant's doctor also noted that Complainant experienced an unrelated traumatic incident that she had difficulty getting over. The Commission found that the award of $10,000 was appropriate given that a substantial portion of the emotional distress complainant suffered was related to factors outside of the denial of accommodation. The Commission agreed with the Agency that Complainant failed to provide evidence linking her claim for pecuniary damages to the denial of accommodation. Nila S. v. Dep't of the Treasury, EEOC Appeal No. 2019000420 (May 8, 2019).
Commission Increased Award of Compensatory Damages to $10,000. The Agency awarded Complainant $1,000 in non-pecuniary damages following a finding by the Commission that it failed to reasonably accommodate him. Complainant stated that he experienced emotional distress and mental anguish that led to headaches, sleeplessness, and minor bouts of depression. Complainant explained that his marriage also suffered "immeasurably." Complainant further explained that when he did not receive a reasonable accommodation for the nine months he experienced severe emotional distress due to his "realization that [he] had no choice but to apply for retirement." Complainant ultimately applied for a medical retirement. The Commission found that an award of $10,000 was consistent with its prior decisions in similar cases. Complainant provided no other objective evidence of his emotional distress beyond his personal statement. In addition, he conceded that part of the emotional harm he experienced was caused by the Agency's alleged refusal to provide him with religious accommodation for which there had not been a finding of discrimination. The Commission affirmed the Agency's award of $1,313.48 in past pecuniary damages for expenses incurred in processing his complaint. Harold M. v. Dep't of the Air Force, EEOC Appeal No. 2019002082 (Apr. 30, 2019).
Commission Increased Award of Nonpecuniary Damages to $10,000. After finding that it denied Complainant reasonable accommodation, the Agency awarded her $7,000 in nonpecuniary compensatory damages. The Commission increased the award to $10,000 on appeal. Complainant noted that after she was denied accommodation, she was under immense stress and prescribed medication for anxiety. She also experienced humiliation and embarrassment. The Commission agreed with the Agency that much of the emotional distress Complainant suffered occurred before the Agency denied her accommodation and related to an alleged hostile work environment for which no discrimination was found. The Commission also found no connection between the Agency's denial of accommodation and Complainant's physical ailments such as her allergies, spine condition, and ear infection. Nevertheless, the Commission found that $10,000 more adequately compensated Complainant for the harm she suffered as a result of the Agency's failure to reasonably accommodate her disability. The Commission affirmed the Agency's denial of Complainant's request for pecuniary damages. Keri C. v. Dep't of Homeland Sec., EEOC Appeal No. 0120171541 (Apr. 12, 2019).
Commission Increased Award of Compensatory Damages to $5,000. The Commission increased the Agency's compensatory damages award from $500 to $5,000 related to its delay in providing Complainant with an ergonomic chair as a reasonable accommodation for his knee and back conditions. Complainant stated that he felt alone, and experienced stress, anxiety, and sleep disturbances. Further, Complainant continued to suffer from pain in his joints and the delay in providing the accommodation caused him to struggle with on-going pain. The Agency contended that Complainant failed to show his condition was aggravated by the lack of an ergonomic chair and that he was not "particularly specific" regarding the nature and severity of his harm. The Commission rejected the Agency's arguments, finding Complainant was harmed by using the standard chair. He clearly explained that during the prolonged delay he continued to use his standard chair and applied ice packs he kept in the office freezer to help with the back pain. Further, he attested that after receiving the new chair, he did not have to put ice on his back at work or take pain pills. The Commission found that $5,000 took into account the lengthy delay (98 days) and harm Complainant endured as a result of the Agency's actions and was consistent with amounts awarded in similar cases. Ronnie R v. Dep't of Health & Human Serv., EEOC Appeal No. 2019001754 (May 7, 2019).
Commission Affirmed AJ's Award of $4,500 in Compensatory Damages. The AJ found that Complainant was subjected to reprisal when she received a letter which included comments that on their face discouraged her from participating in the EEO process. The AJ awarded Complainant $4,500 in nonpecuniary compensatory damages, and the Commission affirmed the award on appeal. Complainant presented evidence that connected the discrimination to certain health symptoms that she experienced at or around the time of the discrimination. The AJ noted that three months prior to the discrimination, Complainant experienced a number of symptoms including depression, anxiety, sleep disturbance, crying spells, and gastro-intestinal disturbance. The AJ found that, nevertheless, Complainant received prescriptions for medication to treat a depressive disorder, stress, and back and shoulder pain sufficiently proximate in time to the discrimination to establish a causal connection. The AJ found that the remaining symptoms and medication changes which occurred later in time were not causally connected to the discrimination. The AJ considered the nature, number and duration of Complainant's pre-existing conditions, many of which were evident years before the discrimination. The Commission found that the record disclosed that Complainant had been suffering the same and similar symptoms for a work-related workers' compensation claim for several years prior to the discrimination. The Commission stated that the Agency was responsible only for loss caused by the alleged discrimination and that the substantial evidence of record did not support a finding that Complainant's continuing medical conditions were caused by the discrimination. Ludie M. v. U.S. Postal Serv., EEOC Appeal No. 0120170459 (May 9, 2019).
AJ Improperly Dismissed Complaint. The Commission vacated the Agency's decision on the merits of the underlying claim and remanded the matter for a hearing. Complainant had requested a hearing and while the case was at the hearing stage, the parties verbally agreed to settle the matter. Complainant acknowledged his agreement to settle before the AJ but refused to sign the agreement invoking his right to withdraw within seven days. The Agency agreed that the settlement had been revoked but the AJ dismissed the complaint as settled. Thereafter, the Agency issued a decision on the merits finding no discrimination. The Commission found Complainant had the right to set aside the agreement under the Older Worker's Benefits Protection Act, and the AJ erred in dismissing the hearing request. Lee R. v. U.S. Postal Serv., EEOC Appeal No. 0120180413 (May 9, 2019).
(See also by category, this issue.)
Complaint Properly Dismissed as Stating the Same Claim Raised Previously & for Failure to State a Claim. Complainant filed a formal complaint alleging that management shared his medical information during a coworker's case and disclosed his medical information at a District Reasonable Accommodation Committee meeting. The Commission affirmed the dismissal of both claims on appeal. Complainant previously raised the issue of management sharing his medical information during the coworker's case in an informal complaint that Complainant voluntarily withdrew. The Commission found nothing in the record to establish that the Agency misled or misinformed Complainant on this matter. With regard to the second claim, the Agency asserted that the meeting was held to determine whether Complainant could be accommodated pursuant to his medical restrictions. Therefore, the Agency correctly determined that Complainant did not allege a personal loss or harm regarding a term, condition or privilege of employment. To the extent Complainant was claiming a violation of the Health Insurance Portability and Accountability Act, that matter was not within the Commission's jurisdiction and must be raised with the Department of Health and Human Services. Luis H. v. U.S. Postal Serv., EEOC Appeal No. 2019002564 (May 31, 2019).
Complaint Improperly Dismissed in Part. The Agency defined Complainant's complaint as alleging discrimination when other individuals were selected for specific positions, and when Complainant was issued a Letter of Warning. The Agency dismissed the first claim for failure to state a claim and the later claim for untimely EEO Counselor contact. On appeal, the Commission initially found that the Agency mischaracterized Complainant's claims regarding vacant positions. Complainant alleged that on numerous occasions, the Agency posted misleading vacancy announcements or failed to post positions to discourage Complainant from applying due to her race, sex, and age. Therefore, Complainant alleged an injury or harm to a term, condition or privilege of employment, and the Agency's dismissal of that claim was improper. The Commission affirmed the dismissal of the matter concerning the Letter of Warning, stating that Complainant failed to raise the claim within the 45-day limitation period. Alvina S. v. U.S. Postal Serv., EEOC Appeal No. 2019002102 (May 21, 2019).
Complaint Improperly Dismissed as Being Identical to Previous Claim. Complainant claimed that the Agency subjected him to discrimination when he was denied the opportunity to fully perform his duties in July 2018, including working on District Court cases and training. Complainant's previous complaint alleged that he was discriminated against when he was denied the opportunity to fully perform his duties and to work on District Court cases in April and May 2017. In the instant complaint, the EEO Counselor's Report noted that Complainant identified the dates of alleged discrimination as July 10, 13, and 19, 2018, and August 16, 2018. The Commission found that Complainant had not alleged the same claim as his prior EEO complaint because, while similar, the new allegations involved a different time period and incidents than the prior complaint. Jon M. v. Dep't of Justice, EEOC Appeal No, 2019001396 (May 10, 2019).
Complaint Improperly Dismissed for Failure to State a Claim and Mootness. Complainant alleged that she was subjected to ongoing harassment from 2015 through the present, including being subjected to unwelcome touching and comments by a coworker. Complainant also stated that the coworker interrupted her and was rude to her after she requested that the coworker cease harassing her. The Commission reversed the Agency's dismissal of the complaint, finding that the Agency improperly limited the scope of Complainant's harassment claim to incidents occurring after she notified the Agency of the coworker's behavior. Viewing all of the alleged incidents collectively, the Commission found that Complainant set forth an actionable claim of harassment. While the Agency implied that it corrected the alleged harassment when it was notified of the coworker's conduct, that argument went to the merits of Complainant's claim and was not relevant to the procedural issue of whether she stated a justiciable claim. Further, to the extent the Agency determined that that the claim had been rendered moot because the coworker was reassigned and then retired, the Commission noted that a fair reading of Complainant's formal complaint indicated that she was seeking compensatory damages. Should Complainant prevail on the complaint, the possibility of an award of compensatory damages existed, and her complaint was therefore not moot. The Commission declined to address the Agency's assertion, raised for the first time on appeal, that Complainant failed to timely contact an EEO Counselor, but noted that the complaint included actions which were within the regulatory limitation period preceding her initial EEO contact. Zenia M. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019002305 (May 7, 2019).
Complaint Improperly Dismissed for Untimely EEO Counselor Contact & Failure to State a Claim. Complainant filed a formal EEO complaint alleging discrimination on the bases of sex and reprisal when he was notified he would be removed from his position. The Agency viewed the claim as relating to a September 2017 last chance agreement and dismissed the complaint on grounds that Complainant failed to timely contact an EEO Counselor and for failure to state a claim. On appeal, the Commission found that the Agency improperly dismissed the complaint for untimely EEO Counselor contact. Complainant contacted the Counselor within 45 days of the effective date of his removal which in this case constituted the personnel action controlling the determination of timeliness. Neither the execution of the last chance agreement nor the advanced notice of the removal triggered the 45-day limitation period. The Commission also disagreed with the Agency's assertion that the matter failed to state a claim, stating that Complainant's removal was clearly a personnel action that stated a viable claim. While the Agency claimed that the last chance agreement should be viewed as a settlement agreement, and that Complainant's union activity did not involve protected EEO activity, those arguments went to the merits of the complaint and were irrelevant to the procedural issue of whether Complainant state a viable claim. Fidel S. v. Dep't of Homeland Sec., EEOC Appeal No. 2019000391 (Apr. 3, 2019).
Agency Improperly Dismissed Complaint for Raising the Same Claim as in a Prior Complaint. Complainant filed a formal complaint alleging that the Agency improperly conducted the hiring process for his reader assistant and hired a lesser qualified candidate, thereby denying him a reasonable accommodation. The Agency dismissed the complaint on grounds that it stated the same claim raised in a prior complaint, and the Commission reversed the dismissal on appeal. The current complaint, filed in 2018, was not identical to the prior complaint, filed in 2017, as the complaints involved separate search processes that occurred during distinct time periods. The Commission noted that while the Agency dismissed reprisal as a basis for discrimination stating that Complainant's whistleblowing activity did not constitute protected EEO activity, Complainant specifically alleged that the Agency acted in retaliation for his prior EEO complaints when it recently failed to accommodate him. Clinton M. v. Soc. Sec. Admin., EEOC Appeal No. 2019000586 (Apr. 2, 2019).
Complaint Improperly Dismissed as Being Moot. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it issued him a Letter of Warning. The Agency dismissed the complaint on grounds that it failed to state a claim, arguing that the Letter of Warning was reduced to an official discussion through the grievance process. On appeal, the Commission found that the matter was more properly analyzed in regard to whether the claim had been rendered moot. While the record contained a copy of a grievance agreement indicating that the Letter of Warning would be reduced to an official discussion, there was no documentation showing that the Letter was actually expunged from Complainant's file. In addition, Complainant requested compensatory damages, and the Agency failed to address that issue. Therefore, the Commission concluded that the dismissal was improper. Jody L. v. U.S. Postal Serv., EEOC Appeal No. 2019001860 (Apr. 3, 2019).
(See by statute, as well as multiple bases, this issue.)
Disability Discrimination Found Regarding Denial of Accommodation & Charge of AWOL. Complainant alleged, among other things, that she was discriminated against based on her disabilities (diabetes, gastroparesis disease) when the Agency ordered her to return to work or face discipline, and later reprimanded her for being Absent Without Leave (AWOL). The Agency ultimately issued a final decision finding no discrimination. On appeal, the Commission found that while Complainant requested a reasonable accommodation, that is continued Leave Without Pay (LWOP) for disability-related absences, there was no indication that management initiated or engaged in any sort of interactive process with Complainant to explore means to accommodate her well-known disability. Complainant's absences, some of which required hospitalization, were due largely to symptoms of her diabetes, and Complainant or her husband consistently and timely notified Complainant's supervisor of the absences, including the reasons for them. After Complainant's earned leave, donated leave, and Family Medical Leave Act coverage ran out, the Agency charged her with AWOL and ordered her to return to work. Complainant did so, but her absences continued, and she was reprimanded for continued AWOL. The Agency did not dispute the validity of Complainant's illness but, applied its blanket attendance policy. The Commission found that the Agency was unable to meet its burden of proving that granting Complainant additional excused absences (LWOP) would have created an undue hardship on its operations. The Commission has stated that employers may need to modify general leave policies when providing accommodation and emphasized that engagement in the interactive process with the employee is specifically designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship. Complainant noted on appeal that she now works three hours per day, and her attendance has been good because she is experiencing fewer symptoms from her disability due to the changed schedule. The Commission found that had the Agency engaged in the interactive process with Complainant, it might have discovered this other viable accommodation. The Agency was ordered, among other things, to expunge the AWOL charges and resulting reprimand, to revise its leave policy to allow for leave as a reasonable accommodation, and to provide Complainant with appropriate back pay, compensatory damages and attorney's fees. Irina T. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120180568 (Apr. 3, 2019).
Agency Violated Rehabilitation Act When It Disclosed Confidential Medical Information. Complainant filed an EEO complaint alleging, among other things, disability discrimination when the Agency disclosed Complainant's medical information. Complainant had previously reported his medical conditions and medication use to the Agency. The Agency acknowledged that management officials placed and maintained documentation listing Complainant's condition and prescribed medication in his driver's personnel file in the Postal Vehicle Services Unit. While the Agency stated that the records were not shared with just anyone who requested them, the Commission concluded that the Agency violated the Rehabilitation Act because it did not maintain Complainant's medical information in a separate medical file. The Agency was ordered, among other things, to expunge all medical information concerning Complainant from non-medical files and ensure that his medical information is maintained in a separate medical file, as well as investigate his claim for damages. The Commission affirmed the Agency's findings that Complainant did not prove additional claims of disparate treatment discrimination and did not meet his burden of proof to show that genetic information played any role in the alleged incidents. Porter P. v. U.S. Postal Serv., EEOC Appeal No. 0120171893 (Mar. 27, 2019).
Agency Violated Rehabilitation Act by Allowing Access to Confidential Medical Records & Making Impermissible Medical Inquiry. The Commission found that the Agency violated the Rehabilitation Act when four coworkers were able to access Complainant's confidential medical records without a valid business-related reason for doing so. The Commission also found that Complainant was subject to an unlawful disability inquiry when the Agency requested additional medical documentation to substantiate her need for leave as a reasonable accommodation. The record clearly showed that Complainant had provided sufficient information to substantiate her disabilities and need for leave as an accommodation for disability-related flare ups. The documentation indicated that Complainant's conditions were chronic and likely permanent, and the record showed that the Agency was fully apprised of the permanent nature of Complainant's disability and restrictions. The Commission noted that while the Agency made the impermissible medical inquiry, the supervisor consulted with Human Resources afterward and informed Complainant she did not need to provide the additional medical documentation. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training to the two supervisors and four coworkers. The Commission affirmed the Agency's finding that Complainant was not subjected to disparate treatment discrimination regarding additional claims, or a hostile work environment. Dixie B., v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170175 (Mar. 26, 2019).
Disability Discrimination Found Regarding Failure to Reasonably Accommodate & Performance Issues. Due to a car accident, Complainant was diagnosed with long-term back and neck injuries. As a result, Complainant's physician recommended that she telework from home full-time with proper accommodations because the "mobility, distance, time of actions and travel required" for Complainant to work in the office all exceed her current medical limitations. In a previous decision, the Commission found that the Agency improperly revoked Complainant's telework accommodation and inexplicably delayed restoring this accommodation for four months, failed to respond to Complainant's request for assistive technology, software, and training, and penalized Complainant for its own failure to accommodate her.
Complainant filed the instant formal complaint alleging, among other things, that the Agency continued to deny her reasonable accommodation for her disabilities, as well as subjected her to discrimination when it gave her a performance counseling memorandum and placed her on a performance improvement plan (PIP). The Commission again concluded that the Agency failed in its duty to reasonably accommodate Complainant's disabilities by either not providing Complainant with adequate equipment, software and training, or unreasonably delaying the provision of necessary technology, to support her accommodation of full-time telework which, in turn, negatively impacted Complainant's work performance. The Commission further find that the performance counseling memorandum and placement on a PIP for performance issues directly resulted from the Agency's failure to reasonably accommodate Complainant with adequate technology required to effectively telework from home. To remedy the discrimination, the Commission ordered the Agency, among other things, to determine Complainant's entitlement to compensatory damages, and expunge the performance counseling memorandum and the PIP from Complainant's personnel file and other official Agency records. Patricia W. v. Dep't of Homeland Sec., EEOC Appeal No. 0120172637 (Mar. 26, 2019).
Agency Liable for Racial Harassment. Complainant filed a formal complaint alleging that coworkers harassed him because of his race, including taking his tools, leaving him negative notes, attempting to restrain him in a chair with a metal hose clamp, and restraining him to a chair with duct tape. Complainant also stated that he was denied reasonable accommodation and continuation of pay. On appeal, the Commission initially noted that while the Agency analyzed Complainant's complaint as consisting of three claims, it was more appropriately viewed as a single claim of hostile work environment. The Commission found Complainant's account of the incidents to be wholly credible. Complainant's coworkers generally confirmed that the incidents happened as described, and the Agency suspended one employee and proposed to terminate two others after determining that Complainant's allegations were credible. The Commission noted that Complainant, the only African-American plumber at the facility, was subjected to physical assaults, and management's assertion that they did not believe there was racial animosity behind the incidents was not credible. The Commission found that the Agency was responsible for the harassment, because management was aware of the harassment approximately six months prior to the incident involving the duct tape yet did not take immediate and appropriate corrective action. The Agency was ordered, among other things, to offer Complainant a reassignment, pay him appropriate back pay with interest and benefits, restore any leave used due to the harassment, and investigate Complainant's claim for damages. Stanton S. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170582 (Apr. 16, 2019).
Race & Sex Discrimination Found Regarding Termination During Probationary Period. The Commission affirmed the AJ's finding that the Agency discriminated against Complainant based on race and sex when it terminated him during his probationary period. The Agency stated that it terminated Complainant because of two incidents that were being investigated. The Commission found that the AJ properly determined the Agency's articulated reasons were pretextual. Two supervisors stated that both alleged incidents were minor and not terminable offenses. In addition, the coworker's allegations which were the basis for one investigation were refuted by two other employees. The AJ credited Complainant's testimony that his supervisor regarded him as a "big, Black man" and thus stereotyped Complainant as aggressive and intimidating. The Commission found the supervisor's own testimony that while Complainant may not have intended to be aggressive or intimidating, the supervisor felt that way because Complainant was a large man in his personal space, confirmed that Complainant was being racially stereotyped. The Agency's credibility was also negated by the termination of another probationary Black male employee shortly after Complainant's termination and the incorrect designation of that employee as White male in discovery. The Commission affirmed the AJ's award of $62,750 in compensatory damages based on statements from Complainant's girlfriend and mother that Complainant became despondent, depressed, anxious, did not attend to his physical health, took up cigarettes and alcohol, lost hope, and gave up pursuing custody of his child. Complainant also stated his professional reputation was damaged by the termination. Marquis K. v. Dep't of the Navy, EEOC Appeal No. 0720180014 (May 10, 2019).
Retaliation Found Regarding Nonselection. Complainant filed an EEO complaint alleging, among other things, that the Agency retaliated against her when it did not select her for the position of Supervisory Border Patrol Agent (ERB position). On appeal, the Commission found that Complainant was subjected to discrimination based on reprisal for engaging in prior EEO activity with respect to her non-selection for the ERB position. Complainant established a prima facie case of reprisal discrimination, and the Agency did not articulate a legitimate, non-discriminatory reason for its action. While Complainant was included on the Certificate of Eligibles (COE), she was not recommended or selected for an interview. Seven of the 23 candidates on the COE were selected for an interview. The Agency did not indicate how it determined which seven candidates would be interviewed, or why Complainant was not one of the seven although all 23 were deemed qualified and included on the COE. It was not enough for the Agency to simply state that the selecting official, or their designee, had the discretion to interview any applicants referred as best qualified, especially in a case where all the interviewees, unlike Complainant, had never engaged in protected EEO activity. The Agency was ordered, among other things, to place Complainant in the ERB position, pay Complainant backpay with interest from the date she would have started in the position, and conduct a supplemental investigation on Complainant's entitlement to compensatory damages. The Commission affirmed the Agency's finding that Complainant did not establish a prima facie case of national origin or sex discrimination with regard to the ERB position, because two of the interviewees were members of Complainant's protected groups. The Commission also affirmed the Agency's finding that Complainant was not discriminated against when she was not selected for another position. Ashlea P. v. Dep't of Homeland Sec., EEOC Appeal No. 0120182299 (May 29, 2019).
Retaliation Found Regarding Performance Review. Pursuant to a request for a reasonable accommodation and settlement of an EEO complaint, Complainant had been working from home five days per week when the Agency gave her an unsatisfactory progress review. The review assessed Complainant's performance as unsatisfactory in her interpersonal skills, as well as other performance elements. On appeal, the Commission determined that the Agency's stated reasons for the review were pretexts for discrimination, and the Agency penalized Complainant for not being physically present in the office. The review did not directly relate to Complainant's performance. Further, maintaining personal interactions was a natural challenge of working from home. The Commission noted that the unsatisfactory review was issued at a time when Complainant's team production numbers were high, and Complainant had never received an unsatisfactory review before she began a telework schedule. The Commission found that the unsatisfactory rating was clearly motivated by Complainant's telework agreement which was given to her as an accommodation. Management even threatened to end her telework due to the questionable performance review. Therefore, Complainant established that the Agency retaliated against her when it issued her the unsatisfactory review. The Agency was ordered, among other things, to remove any references to the review from Complainant's personnel records and investigate her claim for damages. The Commission affirmed the Agency's finding that Complainant failed to prove she was denied reasonable accommodation or subjected to harassment. Wanita Z. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120171549 (May 17, 2019).
(See also "Findings on the Merits" in this issue.)
Complainant Entitled to Placement into Position as Remedy for Retaliation. The Agency determined that it discriminated against Complainant based on reprisal when conducting a suitability determination during the selection process for a Patent Examiner position. The Agency ultimately did not select Complainant for the position. As relief, the final decision ordered the Agency, among other things, to conduct a new suitability determination, and offer Complainant the position if he was found suitable. On appeal, Complainant asserted that the Agency should have awarded him a retroactive appointment to the position and a non-competitive promotion. The Commission agreed with Complainant, finding that the Agency erred in not retroactively placing the Complainant in the position for which he applied. The Commission noted that where discrimination is found, the Agency must provide the Complainant with a remedy that constitutes full, make-whole relief. That is, the Agency was required to restore the Complainant as nearly as possible to the position he would have occupied absent the discrimination. The evidence in this case failed to establish that, absent the discrimination, the Agency would not have placed Complainant in the Patent Examiner position. The Agency informed Complainant he had been selected for the position, and the record contained documentation listing his entry-on-duty date. Nevertheless, a Human Resources Specialist found Complainant was not suitable for hire, a decision the Agency found constituted reprisal discrimination. The Commission concluded that the Agency did not meet its burden of showing that Complainant's termination from his prior employment would have resulted in an unfavorable suitability determination. Therefore, the Commission ordered the Agency, among other things, to retroactively place Complainant into the Patent Examiner position with appropriate back pay and benefits and compensate him for any adverse tax consequences. The Commission affirmed the Agency's finding that Complainant failed to prove his additional claims of disparate treatment and disparate impact discrimination. Lazaro G. v. Dept. of Commerce, EEOC Appeal No. 0120170802 (May 17, 2019).
Commission Affirmed AJ's Dismissal of Complainant's Hearing Request as Sanction. Complainant failed to provide a sworn statement indicating the factual bases of her claims either during the investigation or in response to the Agency's discovery motion. The AJ subsequently granted the Agency's motion to dismiss the hearing request, stating that Complainant merely stated that the file contained "everything except testimony from my witness." The Commission found that the record supported the contention that Complainant refused to provide a sworn statement indicating the factual bases of her claims. Complainant contended she did not provide the affidavit because she feared it would be shown to management officials. However, the Commission found this did not justify Complainant's failure as management would clearly be aware of her testimony and other evidence presented at a hearing. The Commission also rejected Complainant's assertion that she was afraid for one of her witnesses and needed a protective order from the AJ for him to testify as this did not justify Complainant's failure to submit her own statement. Therefore, the Commission concluded that the AJ did not abuse his discretion by dismissing Complainant's hearing request. The Commission affirmed the Agency's decision finding no discrimination. Carolyn M. v. U.S. Postal Serv., EEOC Appeal No. 0120181158 (May 9, 2019).
Commission Affirmed AJ's Dismissal of Hearing Request as Sanction. Complainant requested a hearing on his complaint of discrimination. The Agency served discovery requests on the Complainant, but he failed to meet the discovery deadlines. Complainant provided the discovery materials after the deadline, at which point the Agency requested to meet with Complainant to discuss the deficiencies in his discovery responses. The Agency then filed a Motion to Compel Discovery and Request for Extension of the Discovery Deadline, and Complainant responded to the motions. The AJ issued an Order granting the Agency's Motion and Request, and The AJ warned Complainant that failure to respond to the discovery requests by the deadline could result in sanctions, up to and including dismissal of the hearing. When Complainant failed to meet the deadlines, the AJ determined that there was good cause to dismiss Complainant's hearing request, and she remanded the complaint to the Agency, ordering it to issue a final decision. On appeal, the Commission found that the AJ's dismissal of the hearing request was appropriate, because Complainant failed to provide adequate responses to the discovery requests and rebuffed the Agency's attempt to discuss the deficiencies in his response. The Agency failed to issue a final decision in the matter as instructed by the AJ and Commission the ordered the Agency to do so. Monroe M. v. Dep't of Transp., EEOC Appeal No. 0120170817 (Mar. 26, 2019).
Commission Sanctioned Agency for Failure to Comply with Regulatory Time Frame for Issuing Final Decision. According to the record, Complainant did not request a hearing after receiving the report of investigation, and the Agency failed to issue the final decision within the regulatory timeframe. Complainant filed a motion for sanctions and requested the Commission issue a default judgment in his favor. The Commission determined that a default judgment was not warranted, as the Complainant failed to show that he was prejudiced by the Agency's delay in issuing a final decision for more than a year. The Commission noted, however, that the Agency did not comply with its obligation to issue a final decision in accordance with the regulatory timeframes and did not provide a valid reason for the late issuance of the final decision. Therefore, as a deterrent to future non-compliance, the Commission sanctioned the Agency by ordering the Agency to post a notice concerning its failure to comply with the 60-day regulatory time frame for issuing a decision and provide training to the Agency's EEO management officials. Jordan S. v. Dept. of Justice, EEOC Appeal No. 0120171870 (Mar. 20, 2019).
Breach of Settlement Found. Complainant alleged that the Agency breached the settlement agreement that the parties entered into when it did not reassign her to the position to which she had been detailed and transfer the Full-Time Equivalent slot (FTE) from her prior office. The Agency asserted that the settlement agreement should be considered void due to mutual mistake. Specifically, the Agency alleged that the position specified in the agreement was not located in the office to which Complainant had been detailed; there was no FTE for the position at that office; and Complainant's prior office was to be reorganized and could not relinquish the FTE. The Commission rejected the Agency's argument that the agreement was void due to mutual mistake, and instead found that the Agency breached the agreement. The Commission stated that the Agency's assertion that no position existed in the new office was "false and disingenuous" because Complainant had held the position for some time. The Commission also found that the Agency failed to explain why it was impossible to transfer the FTE when the matter was anticipated and addressed by the settlement terms. The Agency was ordered to comply with the terms of the settlement agreement. Lidia B. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019001712 (May 8, 2019).
Agency Substantially Complied with Settlement Agreement. The Commission found that the Agency substantially complied with the terms of the settlement agreement requiring Agency management to conduct a stand-up meeting to address the Agency's shoe policy. The meeting was to occur within 10 days of the November 7, 2018 settlement agreement. The Agency acknowledged that the meeting occurred on November 20, 2018, which was beyond the 10-day deadline. The Commission has held that a brief failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. Therefore, the Commission affirmed the Agency's decision finding it did not breach the agreement. Denis C. v. U.S. Postal Serv., EEOC Appeal No. 2019002356 (Apr. 26, 2019).
No Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that the Agency would assign Complainant to a specific unit at the same series and grade. The Agency retained the right to temporarily assign Complainant other duties as needed. Complainant alleged that the Agency breached the agreement when, over 10 years later, it transferred her to another unit. On appeal, the Commission found that the Agency did not breach the agreement. Complainant received the benefit of the agreement for almost 11 years. The Commission has previously held that where a settlement agreement assigns a position but does not specify the duration of the position, it is reasonable to assume that the parties did not intend that the position would last forever. The Commission noted that, to the extent Complainant believed the reassignment itself was discriminatory, she could file a new complaint raising that allegation. Donna W. v. Dep't of Homeland Sec., EEOC Appeal No. 2019000362 (Apr. 12, 2019).
Settlement Agreement Void for Mutual Mistake. The parties entered into a settlement that provided, in pertinent part, that the Agency would "audit/review" Complainant's route and correct any discrepancies. The Agency also agreed to complete the necessary paperwork if the audit revealed that Complainant was due a monetary adjustment. According to the record, there was some disagreement between Complainant and the Agency as to the effective date of the route adjustment. After the Agency agreed to the date Complainant requested and completed the audit and route adjustments, Complainant was not due back pay but instead owed the Agency. Emails in the record indicated that the EEO Specialist was not aware of the possibility of an overpayment at the time of settlement. Instead, she and Complainant had been told there would be significant back pay due to Complainant. The Commission found that the settlement agreement was void for mutual mistake. Both parties acted under the mutual mistake that the result of the audit and route adjustment would be back pay due to Complainant. This had a material effect on the agreement, and there was no evidence that either party knew of the possible outcome when the agreement was executed. The Commission ordered the Agency to resume processing the underlying EEO complaint from the point processing ceased. Shanti N. v. U.S. Postal Serv., EEOC Appeal No. 0120180212 (Apr. 10, 2019).
Breach of Settlement Found. Complainant and the Agency entered into a settlement that provided, among other things, for Complainant to be removed from a named supervisor's direct supervision. On appeal, the Commission found that the Agency breached the settlement agreement. The Commission agreed with the Agency that including the supervisor as a passive recipient on emails involving Complainant's assignments did not constitute a breach of the agreement. The record, however, showed that the supervisor made active decisions regarding Complainant which clearly violated the terms of the agreement. Specifically, there was evidence that the supervisor denied Complainant's request for more time to see a patient, and her request for sick leave. The Commission noted that Complainant obtained other benefits through the agreement, and, therefore, ordered the Agency to specifically comply with the terms related to the named supervisor. Kyoko H. v. Dep't of Veteran Affairs, EEOC Appeal No. 2019001697 (Mar. 29, 2019), request for reconsideration denied, EEOC Request No. 2019003252 (Aug. 16, 2019).
Agency Improperly Dismissed Claim of Harassment. Complainant alleged that she was subjected to a discriminatory hostile work environment when her supervisor yelled at her, angrily hit his desk, grabbed her by the coat, pulled her up, and pushed her away. Considering the totality of circumstances alleged, a physical altercation accompanied by a loud and angry outburst, the Commission found that Complainant's claim was sufficient to state a viable claim of hostile work environment. Cassy W. v. U.S. Postal Serv., EEOC Request No. 2019001353 (May 10, 2019).
Commission Found Sufficient Evidence that Agency Qualified as Joint Employer. The Agency dismissed Complainant's complaint of harassment for failure to state a claim, finding that Complainant was an employee of a staffing firm and not the Agency. The Agency acknowledged that Complainant worked on Agency premises using Agency equipment and had served the Agency as a Licensed Practical Nurse since March 2014, which was a long duration. The Agency also stated that its contract with the staffing firm required Complainant to have two years of prior experience, advanced life support certification, and fulfill continuing education obligations. The Commission found that this pointed to joint control over Complainant's employment. The Agency conceded in its decision that it exercised control over Complainant's work product by providing her with daily patient assignments and feedback based on her work product, and that it monitored her time and attendance. The Commission stated that the Agency's factual findings in its decision alone showed it had sufficient control over Complainant's employment to be her joint employer for the purpose of the EEO complaint process. Terrie M. v. Dep't of Def., EEOC Appeal No. 2018000063 (May 2, 2019); Additional Decisions Addressing the Issue of Joint Employment Include: Eugenia C. v. Dep't of the Navy, EEOC Appeal No. 2019000953 (May 9, 2019) (the Commission affirmed the Agency's dismissal of Complainant's complaint for failure to state a claim because Complainant was not an employee of the Agency, but was employed by a staffing firm, and the Agency did not have sufficient control over Complainant's position. The staffing firm took care of Complainant's compensation and Complainant's onsite staffing firm supervisor and her staffing firm manager controlled when, where, and how she performed her job. Further, most direction came from her staffing firm supervisors; the staffing firm supervisor approved Complainant's work schedules and hours; and Agency employees did not have the authority to tell Complainant when to come in or leave work. The Commission found that this evidence did not support a finding that the Agency had sufficient control over Complainant's position to be her joint employer).
Agency Improperly Defined Claim of Harassment as Single Incident & Dismissed Complaint for Failure to State a Claim. Complainant filed a formal complaint alleging ongoing harassment. The Agency defined Complainant's claim as concerning the single incident provided as an example and dismissed the matter for failure to state a claim. The Commission found that a fair reading of the complaint reflected that Complainant alleged a pattern of harassment and the complaint was not comprised exclusively of the one incident mentioned by the Agency. Instead, the complaint addressed a variety of incidents preceding the cited incident. Additionally, Complainant's appeal detailed further harassing incidents since he filed his claim. Complainant also noted that the named responsible management officials were also previously listed in his prior EEO complaint, and, thus, Complaint raised an allegation of reprisal. Jermaine G. v. U.S. Postal Serv., EEOC Appeal No. 2019002255 (May 9, 2019); Additional Decisions Addressing Viable Harassment Claims Include: Rosie T. v. U.S. Postal Serv., EEOC Appeal No. 2019002265 (May 10, 2019) (Complainant alleged that she was subjected to ongoing harassment involving incidents beyond the one identified by the agency in its dismissal decision. While the formal complaint form indicated that the alleged discriminatory event occurred in a specific month and year, the EEO Counselor's Report indicated that Complainant raised two additional alleged incidents of harassment. The Commission found that a fair reading of the complaint, in conjunction with the related EEO counseling report and Complainant's statement on appeal, showed that she was raising a viable claim of ongoing discriminatory harassment sufficient to state a claim); Tyra T. v. U.S. Postal Serv., EEOC Appeal No. 2019002290 (May 3, 2019) (instead of treating Complainant's complaint as one of harassment, the Agency improperly identified the formal complaint as being comprised of two distinct events and then dismissed both individually for failure to state a claim. Complainant asserted that her complaint involved more than the two incidents described by the Agency involving her supervisor's conduct and an incorrect worker's compensation form. She also alleged the Agency summarily denied her request for an ergonomic chair and frequently relegated her to the least desirable assignments such as working in the lobby. The Commission found that, taken together, Complainant's allegations stated a viable claim of harassment).
Complaint Stated Viable Claim of Harassment. The Commission reversed the Agency's dismissal of Complainant's complaint for failure to state a claim. Complainant alleged her coworker physically threatened women and minorities, and her manager stalked and physically intimidated her on the workroom floor. In dismissing the complaint, the Agency stated the subject claims constituted a generalized grievance and were insufficiently vague to state an actionable harassment claim. On appeal, further details revealed the manager engaged in retaliatory harassment by spying on Complainant and by assigning an additional supervisor to her work area to monitor her. Complainant asserted that the Agency official physically intimidated her by using a cellphone to conduct video surveillance, and the official's behavior changed after Complainant raised the claim of hostile work environment regarding the coworker's harassment. The Commission found that Complainant's allegations stated a viable claim of harassment. Eryn O. v. U.S. Postal Serv., Appeal No. 2019002286 (May 7, 2019).
Complaint Stated Viable Hostile Work Environment Claim. Complainant filed a formal EEO complaint alleging discrimination when two management officials assigned him duties outside of his regular work area on various days over a period of several weeks and threatened to report him for disciplinary action because he was not in his work area. The Agency dismissed the complaint for failure to state a claim, and the Commission reversed the decision on appeal. The Commission stated that while each incident by itself may have appeared to concern relatively minor matters, when considered together, given the breadth of the allegations over consecutive months involving the same two management officials, Complainant stated a viable claim of harassment that required further investigation. Cliff C. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019001477 (Apr. 24, 2019).
Complainant Stated Viable Age Discrimination Claim. Complainant alleged that the Agency discriminated against her when they denied her overtime. The Agency dismissed the complaint for failure to state a claim, viewing the matter as a collateral attack on the Border Patrol Agency Pay Reform Act (BPAPRA). On appeal, the Commission found that Complainant was an aggrieved employee because she suffered harm or loss for which there is a remedy with respect to overtime as a term of employment. The Agency's reasoning that the BPAPRA required the denial went to the merits of the claim and not to the procedural issue of failure to state a claim. Therefore, the dismissal was improper. Claudia A. v. Dep't of Homeland Sec., EEOC Appeal No. 2019000403 (Apr. 18, 2019).
Complaint Properly Dismissed as Collateral Attack on Debt Collection Act. The Agency dismissed Complainant's complaint alleging discrimination when she received a Letter of Demand of Indebtedness for failure to state a claim. The Commission affirmed the dismissal on appeal, agreeing with the Agency that the claim constituted an impermissible collateral attack on the Debt Collection Act. The Commission does not have jurisdiction to decide matters covered by the Debt Collection Act, and the proper forum for Complainant to have raised her challenge was under that process. Shenika B. v. U.S. Postal Serv., EEOC Appeal No. 2019002994 (May 24, 2019).
Summary Judgment Affirmed. The AJ issued a decision without a hearing finding that Complainant failed to prove her claim of race and sex discrimination with regard to a Letter of Warning that she received for improper conduct. The Commission affirmed the AJ's decision on appeal. The Commission concluded that, even construing any inferences raised by the undisputed facts in Complainant's favor, a reasonable fact finder could not find for Complainant. Assuming Complainant established a prima facie case, the Agency established a legitimate, nondiscriminatory reason for the Letter of Warning. Specifically, Complainant failed to follow safety procedures when she delayed contacting her supervisor to report an accident. The supervisor also questioned whether Complainant conducted herself in a safe manner while delivering mail. Complainant failed to establish that the Agency's stated reason was a pretext for discrimination. The Agency provided evidence that other injured employees similarly received discipline for violating safety rules. Susan A. v. U.S. Postal Serv., EEOC Appeal No. 2019000891 (Apr. 10, 2019).
Summary Judgment Reversed. The Commission found that the AJ erred when he issued a decision without a hearing finding no discrimination regarding Complainant's allegation that the Agency rated her "minimally successful" on her performance evaluation. The Commission found that the central factual issue was whether the Agency's articulated reasons for giving Complainant the annual evaluation rating were true. The record evidence on this question was in conflict on at least two important points. First, the Agency contended that Complainant's failure to properly perform her duties resulted in Agency personnel being issued weapons without being properly qualified to carry them. Complainant denied that she had any responsibility for weapons training of employees (other than reviewing their certification documents) and asserted that she correctly reported that the employees involved were not weapons certified. Second, the Agency contended that when Complainant's supervisor requested that Complainant provide written support for her argument that her evaluation rating should be raised, she failed to provide the requested documentation. In contrast to the Agency's contention, Complainant stated that she provided the documentation to the supervisor. Therefore, the Commission concluded that there were genuine issues of material fact in the case that required a hearing. Mickie B. v. Dep't of Justice, EEOC Appeal No. 0120180590 (May 9, 2019).
Summary Judgment Reversed. Complainant filed a formal EEO complaint alleging that he was subjected to sexual and non-sexual harassment and discriminated against when his supervisor failed to inform him of training requirements, issued him a lower performance rating, and did not appoint him to serve as the Unit Manager. On appeal, the Commission found that the AJ erred when she concluded there was no genuine issue of material fact. Specifically, the AJ relied upon the unsworn affidavit of Complainant's supervisor who was the alleged harasser, and inappropriately credited the supervisor's affidavit rather than Complainant's assertions. The Commission disagreed with the AJ's finding that there was no evidence of harassment. The record contained corroborating affidavits from Complainant's co-worker supporting Complainant's claim that he was harassed because he did not fit the supervisor's image of a "masculine" male. The Commission also found sufficient evidence to raise a genuine dispute of material fact as to whether Complainant was treated differently after he complained about the supervisor's conduct. The Commission acknowledged that the record also contained statements from other coworkers who claimed they did not witness any harassment. Thus, the Commission concluded that the parties should be afforded an opportunity to cross-examine the available witnesses, and the matter was remanded for an administrative hearing. Horacio M. v. Dep't of Justice, EEOC Appeal No. 0120170934 (Apr. 9, 2019).
Agency Failed to Prove Complainant's EEO Contact Was Untimely. Complainant contacted an EEO Counselor in October 2018 and subsequently filed a formal complaint alleging that the Agency discriminated against him when it failed to respond to his requests to complete a verification form necessary to apply for benefits available to first responders of the September 11 terrorist attacks. The Agency dismissed Complainant's complaint for failure to timely contact an EEO Counselor. According to the record, Complainant made several inquiries to the Agency's Human Resources Office regarding the forms and was told in July 2018 that Human Resources managers would be unavailable indefinitely until further notice. The Commission found that it was reasonable for Complainant to have expected that he might receive some assistance even after the July response. The Commission noted that it is the Agency's burden to prove untimeliness, and it failed to do so in this case. Therefore, the dismissal of Complainant's complaint was improper. Lionel J. v. U.S. Postal Serv., EEOC Appeal No. 2019002925 (May 29, 2019).
Complainant Timely Raised Claim of Harassment. Complainant alleged that her supervisor sexually harassed her, including forcibly kissing her and grabbing and squeezing her face. The Agency dismissed the complainant for failure to timely contact an EEO Counselor based solely on one incident. On appeal, the Commission noted that, in her informal and formal complaints, Complainant detailed numerous incidents of alleged harassment beginning in 2014, several of which occurred within the 45-day limitation period. Therefore, the Agency improperly dismissed Complainant's claim of ongoing sexual harassment, as well as her claim that upper-level management did not properly respond after she reported the incidents. The Commission strongly recommended, given the serious nature of Complainant's allegations and her claim that management failed to remove her from the supervisor's supervision, that the Agency remove Complainant from the supervisor's supervision during the processing of the complaint. Bettyann B. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019002089 (Apr. 24, 2019).
Complainant Timely Contacted EEO Counselor. The Commission reversed the Agency's dismissal of Complainant's complaint alleging that she was discriminated against when she was placed in off-duty status on March 30, 2017. While the Agency asserted that Complainant's contact with the EEO Counselor in May 2017 was beyond the 45-day limitation period, the Commission stated that Complainant was alleging that she remained in off-duty status at the time she initiated EEO counseling and had not been paid during the period in question. Thus, Complainant's claim was ongoing within the 45 days preceding her initial EEO contact. Kellye C. v. U.S. Postal Serv., EEOC Appeal No. 2019001833 (Apr. 23, 2019).
Complainant Timely Raised Denial of Reasonable Accommodation Claim. Complainant filed a formal EEO complaint alleging that the Agency denied him reasonable accommodation and discriminated against him when it terminated him from employment. The Agency accepted Complainant's claim regarding his termination and ultimately found no discrimination, but dismissed the reasonable accommodation claim for failure to timely contact an EEO Counselor. Complainant alleged the Agency failed to accommodate him through the day of his removal. The Commission stated that, since the Agency's duty to accommodate is ongoing, Complainant timely initiated contact with the EEO Counselor regarding his reasonable accommodation requests. The Commission rejected the Agency's assertion that the record was sufficiently developed as to the reasonable accommodation claim, noting that the EEO Investigator only asked cursory questions about that matter. Therefore, because Complainant alleged that the denial of accommodation led to his removal, the Commission declined to address the removal and remanded the entire claim for further processing. Buck S. v. U.S. Postal Serv., EEOC Appeal No. 0120180137 (Apr. 3, 2019).
Complainant Timely Contacted EEO Counselor Within 45 Days of Effective Date of Removal. Complainant received a Notice of Proposed Removal in February 2018, and a Decision on Notice of Proposed Removal confirming her removal effective June 23, 2018. Complainant contacted an EEO counselor on July 16, 2018, regarding the removal and subsequently filed a formal complaint of discrimination. The Agency dismissed the complaint for failure to timely contact an EEO Counselor within 45 days of receiving the February Notice. On appeal, the Commission stated that Complainant had 45 days from the effective date of her termination to timely contact an EEO Counselor. Therefore, Complainant's contact was well within the limitation period, and the Agency's dismissal was improper. Leisa C. v. Dep't. of Agric., EEOC Appeal No. 2019001265 (Apr. 3, 2019).
Complaint Properly Dismissed for Untimely EEO Counselor Contact. Complainant contacted an EEO Counselor in March 2018 and subsequently filed a formal complaint alleging the Agency discriminated against him when it did not select him for a supervisory position. According to the record, Complainant learned of his nonselection in October 2017. The Agency dismissed the complaint for failure to timely contact an EEO Counselor and the Commission affirmed the dismissal on appeal. The Commission noted that Complainant reasonably suspected he was the victim of unlawful discrimination long before he sought counseling, and the suspicion motivated him to file a Freedom of Information Act (FOIA) request in October 2017. Complainant did not assert that he was unaware of the EEO complaint process, or that he was unaware of the necessity for contacting an EEO Counselor within 45-days of the alleged discriminatory event. Instead, Complainant argued that he could not have reasonably developed suspicions until his FOIA request was fulfilled. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered. Thus, the time limitation is not triggered until Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Moreover, the Commission has consistently held that use of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. Mitchell K. v. Dep't of the Navy, EEOC Appeal No. 2019002360 (Apr. 30, 2019).
Insufficient Evidence to Show Complainant Incapacitated to a Degree that Prevented Timely EEO Counselor Contact. The Agency dismissed the complaint finding that Complainant's contact with the EEO Counselor in September 2018 was beyond the applicable limitation period for events that occurred in January. The Commission affirmed the dismissal on appeal, noting that the record showed Complainant completed EEO training which included information on the relevant time limitation for seeking counseling. While Complainant stated that she became depressed there was no evidence to establish that Complainant was so incapacitated that she was unable to timely contact an EEO Counselor. Madalene A. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019002220 (Apr. 17, 2019).
Complaint Properly Dismissed for Failure to Timely Contact EEO Counselor. Complainant contacted an EEO Counselor in February 2018, and subsequently filed a formal complaint alleging that the Agency discriminated against him when it did not select him for a Supervisory Language Specialist position in October 2017. The Commission affirmed the Agency's dismissal of the complaint for failure to timely contact an EEO Counselor. According to the record, Complainant was notified that he was not chosen for the position in October 2017 and learned the identity of the selectees, but stated he delayed initiating EEO counseling while waiting for an explanation from management as to why he was not selected. Complainant met with Agency officials in January 2018 to discuss the selections, but the Commission noted that the only additional information he learned was that the process was very competitive. The Commission found that this information would not have triggered a belief that discrimination occurred unless Complainant already had a reasonable suspicion of discrimination prior to the meeting. Further, while Complainant stated that he learned the selectees were not all qualified shortly before the meeting, he did not state when he learned this or what he learned that made him believe that the selectees were not all qualified for their positions. Therefore, the Commission concluded that Complainant reasonably suspected discrimination in October 2017. Archie D. v. Dep't of Homeland Sec., EEOC Appeal No. 2019000588 (Apr. 10, 2019).
Complainant Provided Sufficient Justification to Excuse Brief Delay in Filing Complaint. The Commission reversed the Agency's dismissal of Complainant's complaint as untimely. Complainant received notice of her right to file a complaint on November 9, 2018, but did not file her complaint until December 13, 2018, which was beyond the 15-day limitation period. On appeal, Complainant provided medical documentation from her treating physician indicating that Complainant had been diagnosed with chronic depression, and that this condition interfered with "normal daily functions," such as calling in to work and tardiness. The physician specifically indicated that Complainant's condition should excuse her failure to submit EEO paper work on time. The Commission has held that, in cases involving physical or mental health difficulties, an extension is warranted where the individual is so incapacitated by her condition that she is unable to meet the regulatory requirements. Therefore, the Commission found that Complainant provided sufficient justification to excuse the brief delay in filing her complaint. Karan F. v. U.S. Postal Serv., EEOC Appeal No. 2019002420 (May 7, 2019).
Formal Complaint Properly Dismissed as Untimely. According to the record, Complainant received a Notice of Right to File an Individual Complaint of Discrimination on December 18, 2018, but did not file a formal complaint until January 3, 2019, which was beyond the 15-day limitation period. The Agency dismissed the complaint as untimely, and the Commission affirmed the dismissal on appeal. While Complainant asserted that she was depressed and stressed by the complaint process, the Commission has consistently held that an extension of time is warranted only where an individual is so incapacitated by their medical condition that she is unable to meet the regulatory time limits. Complainant failed to provide persuasive evidence that she was so physically and/or mentally incapacitated that she was unable to meet the deadline for filing her complaint. Mathilda S. v. Soc. Sec. Admin., EEOC Appeal No. 2019003005 (May 24, 2019).
Formal Complaint Untimely Where Filed at the Wrong Address. Complainant received a Notice of Right to File a Formal Complaint on March 6, 2018. Both the Notice and an earlier final interview letter informed Complainant of the applicable deadline and the proper address to file her formal complaint with the Agency. Complainant, however, sent the formal complaint to the Commission rather than the address specified in the Notice. The Commission has previously held that when provided with the proper address, filing at the wrong address does not constitute a proper filing. The Agency did not receive Complainant's formal complaint until March 2018. Therefore, the Commission found that Complainant's complaint was untimely filed. Keri C. v. U.S. Postal Serv., EEOC Appeal No. 2019002318 (Apr. 26, 2019); Additional Decisions Addressing Complaints Filed at the Wrong Address Include: Luke R. v. U.S. Postal Serv., EEOC Appeal No. 2019001914 (May 2, 2019) (the record established that the Agency provided Complainant with the proper Agency address and limitation period for filing his complaint. Complainant, however, filed his formal complaint with the Commission rather than with the Agency. The Commission affirmed the Agency's dismissal of the complaint on grounds it was untimely filed, stating that when provided with the proper address, filing at the wrong address does not constitute a proper filing).
(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.)
Title VII protects workers from employment discrimination based on their religion. The law forbids discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, training, benefits, and other terms and conditions of employment. Title VII also prohibits employers from subjecting an employee to a hostile work environment because of his or her religious beliefs or practices, or because the employee chooses not to engage in religious beliefs or practices. An unlawful hostile environment based on religion might take the form of verbal and/or physical harassment or the unwelcome imposition of religious views or practices on an employee.
Title VII further requires reasonable accommodation of an employee's sincerely held religious beliefs, observances, and practices when requested. Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. The U.S. Supreme Court has defined undue hardship as an accommodation that would require more than a de minimis cost.
The need for religious accommodation most often arises where an individual's religious beliefs, observances, or practices conflict with a specific task or requirement of the job or application process. The employer's duty to accommodate will usually entail making a special exception from, or adjustment to the specific requirement so that the employee or applicant will be able to practice his or her religion. Accommodation requests often relate to work schedules, dress and grooming, or religious expression or practice while at work. Alternatives for accommodating an employee's religious practices include, but are not limited to, voluntary schedule substitutes and swaps, flexible scheduling, and lateral transfers or job changes.
The prohibition on religious discrimination and requirement for reasonable accommodation apply whether an employee's religious views are mainstream or non-traditional, and even if the views are not recognized by an organized religion. Title VII's protections also extend to individuals who profess no religious beliefs. Further, the Commission defines "religious practices" to include moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views. Mere personal preferences, or social, political, or economic philosophies, however, are not religious beliefs protected by Title VII.
The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires an employee to demonstrate that: (1) he or she has a bona fide religious belief, the practice of which conflicted with their employment; (2) he or she informed the agency of this belief and conflict; and (3) the agency nevertheless enforced its requirement against the employee. Once the employee establishes a prima facie case, the agency must show that it made a good faith effort to reasonably accommodate the employee's religious beliefs and, if such proof fails, the agency must show that the alternative means of accommodation proffered by the employee could not be granted without imposing an undue hardship on the agency's operations. Undue hardship does not become a defense until the employer claims it as a defense to its duty to accommodate, and, as noted, an employer must demonstrate that an accommodation would require more than a de minimis cost.
In Melania U. v. U.S. Postal Serv., the Commission found that the Agency discriminated against Complainant when it denied her requests for religious accommodation. Complainant's supervisor repeatedly denied Complainant's requests to have Sundays off to observe her religion. While the supervisor stated that he could not grant Complainant's requests because other employees already had Sundays off based on seniority, neither the supervisor nor Complainant's second-level supervisor explored any other type of accommodation for Complainant. For example, the Agency did not ask other employees whether they would voluntarily change their work schedules. The Commission found the supervisors' statements that they needed Complainant to work on Sundays because there were "too many vacancies," and that the Agency could not manage with only one supervisor were speculative and insufficient to demonstrate an undue hardship.
Complainant in Stanton S. v. U.S. Postal Serv., submitted a written request to his Manager for a religious accommodation, stating that due to his religious beliefs he is not permitted to work on Sundays. The Manager responded to Complainant's religious accommodation request in writing, notifying him that another employee had volunteered to work on Sundays, so Complainant would not need to routinely work on that day. When Complainant failed to report for training as scheduled on several Sundays, however, he was marked as absent without official leave (AWOL) and issued a Notice of Removal for failing to report to work on three consecutive Sundays, as well as failure to report to work on two days when he used approved leave. Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of religion (Methodist).
On appeal, the Commission noted that Complainant clearly provided the Agency with a letter indicating that his religious belief forbade him from working on Sundays. Despite the Agency's indication that another employee would take on the regular Sunday assignment, the Agency still required Complainant to come to work on three consecutive Sundays to attend training and indicated that Complainant would be expected to work some Sundays as a backup to the other employee. Accordingly, the Agency essentially denied Complainant's religious accommodation. In addition, the Agency did not provide any evidence regarding the availability of other employees who could serve as a Sunday backup. As such, the Commission concluded that the Agency failed to meet its burden of proving undue hardship in granting Complainant's request for religious accommodation. The Commission also concluded that the first removal was inextricably intertwined with the Agency's unlawful denial of religious accommodation. The Commission noted that while Complainant later exhibited inappropriate conduct when he used profanity and walked out of a meeting, the evidence of record did not support a finding that this conduct would have resulted in a removal action had it not been for the conflict over Complainant's requests for religious accommodation and the imposition of the first removal.
In Mac O. v. U.S. Postal Serv., Complainant, a Seventh-Day Adventist, filed a formal complaint alleging, among other things, that the Agency denied him an accommodation not to work on his Sabbath. The Commission has held that accommodations that would require an employer to regularly pay premium wages such as overtime to substitute employees impose more than a de minimis cost on the employer and could constitute an undue hardship. The Agency, however, cannot raise the issue of overtime or any other financial or logistical issue as an undue hardship until it demonstrates that it made a reasonable effort to find an accommodation that would enable Complainant to practice his religion without having to worry about losing his job. In this case, neither the Postmaster nor the Customer Service Manager made any effort to look into the possibility of schedule swaps or any other type of accommodation, and the Manager admitted as much. Consequently, the Agency could not support its assertion that granting Complainant his request to have Saturdays off would have caused an undue hardship by forcing it to incur overtime. The Commission found that the Agency denied Complainant's request for a religious accommodation when it refused to allow him to have Saturdays off.
Complainant in Colby S. v. Dep't of Agric., alleged that the Agency failed to accommodate his religious beliefs by denying him a training exemption and directing him to complete a mandatory EEO training module. The Commission noted that employers are required to accommodate an employee's religious beliefs and practices unless it can show that doing so would cause an undue hardship. There are situations in which an employer can show that it would pose an undue hardship to excuse an employee from any part of a training, even if the employee asserts it is contrary to his or her religious beliefs to attend. For example, because an employer needs to ensure that its employees know about and comply with workplace rules regarding discrimination and harassment, it would be an undue hardship to excuse an employee from training that simply discusses and reinforces such conduct rules but does not attempt to alter the employee's religious beliefs. The Commission remanded the complaint for further investigation, finding that the record was insufficiently developed to determine whether the Agency could show an undue hardship.
In Ronnie S. v. Dep't of Veterans Affairs, Complainant alleged, among other things, that the Agency failed to provide him with religious accommodation so that he could attend Easter services. The Commission has recognized several alternatives for accommodating conflicts between work schedules and religious practices, including voluntary substitutions and swaps, flexible scheduling, lateral transfers, and changes in job assignments. Regarding voluntary substitutions or swaps, the Commission has stated that the obligation to accommodate requires employers to facilitate the securing of a voluntary substitute. In this matter, the record did not show that the Agency took any action to facilitate voluntary swaps. Instead, management placed the burden solely on Complainant. Consequently, the Commission did not find that the Agency's suggestion that Complainant ask colleagues to swap schedules constituted a good faith effort to reasonably accommodate Complainant's religious beliefs.
 42 U.S.C. § 2000e-16(a)(prohibition of employment discrimination by federal agencies based on religion); EEOC Compliance Manual, Section 12, Religious Discrimination, NO. 915.003 (July 22, 2008).
 See Mac O. v. U.S. Postal Serv., EEOC Appeal No. 0120152431 (Nov. 29, 2017), request for reconsideration denied, EEOC Request No. 0520180180 (Apr. 25, 2018).
 EEOC Appeal No. 0120170007 (Nov. 16, 2017); see also Billy L. v. Dep't of Agric., EEOC Appeal No. 0120171010 (Nov. 16, 2017); Collin R. v. Dep't of Agric., EEOC Appeal No. 0120170846 (Nov. 16, 2017).
 EEOC Appeal No. 0120132198 (May 17, 2016), request for reconsideration denied, EEOC Request No. 0520170053 (Feb. 2, 2017) (Commission reopened on its own motion to address the party's settlement agreement but did not disturb the initial finding of discrimination).