Volume XXVI, No. 1
Office of Federal Operations
The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO)
Carlton M. Hadden, Director, OFO
Awo Sarpong Ansu, Acting Assistant Director, OFO's Special Services Staff
Editor: Robyn Dupont
Writers: Nichole Davis, Robyn Dupont, Melissa Perry, Stephanie Ross, Alisa Silverman
The Digest is now available online through EEOC's homepage at www.eeoc.gov/federal/digest/index.cfm.
(The Commission will now redact Complainants' names when it publishes decisions. There will be no change with regard to the way in which the Commission communicates its decisions to the parties. 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.)
Agency Failed to Develop Adequate Record to Make Determination on Claim of Sex Discrimination Based on Gender Stereotype. Complainant alleged that he was subjected to ongoing hostile work environment harassment when his co-workers and a Supervisor made numerous negative comments and innuendoes regarding their perception that he was gay. The Agency concluded that Complainant did not establish that he was subjected to harassment because he did not show that any of the comments were directed toward his status as a male, but appeared to be directed toward his sexual orientation which was not covered by the Commission's regulations. The Commission initially found that the Agency failed to properly define Complainant's claim of sex discrimination. The Commission has previously held that as long as allegations state a viable claim of sex discrimination, the fact that a complainant has characterized the basis of discrimination as sexual orientation does not defeat an otherwise valid sex discrimination claim. Title VII's prohibition on sex discrimination includes discrimination on the basis of gender, and this includes discrimination because an individual fails to conform to gender-based expectations, stereotypical or otherwise. Complainant alleged that his co-workers constantly made derogatory references to his sexual orientation, and used slurs that have been historically used as highly offensive, insulting and degrading sex-based epithets against gay men. The Commission concluded that Complainant's claim of harassment based on his perceived sexual orientation was a claim of discrimination based on the perception that he did not conform to gender stereotypes of masculinity, and therefore stated a viable claim under Title VII's sex discrimination prohibition. The Commission further found that the record in the case was insufficiently developed to determine if the Agency discriminated against Complainant based on sex. Despite Complainant's identification of witnesses, the Agency did not make an adequate effort to determine whether those witnesses could corroborate his allegations, and the complaint needed to be adjudicated within the larger context of Complainant's claim of ongoing harassment spanning several years. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132452 (November 18, 2014).
Doctrine of Laches Not Applicable Due to Agency's Failure to Process Complaint. In 2004, an Administrative Judge (AJ) denied Complainant's motion to amend a previously filed complaint, and ordered the Agency to process the matter as a new claim. Complainant ultimately filed an appeal with the Commission in 2013, asserting that the Agency failed to process his claim, and the Commission noted that it was unclear from the record whether the Agency had in fact processed the claim as directed. The Agency argued that the doctrine of laches should apply because the records relating to the claim had been destroyed pursuant to its record retention policy and it would be difficult to process the claim due to the passage of time. The Commission, however, found that the doctrine of laches was not applicable because the Agency's culpability in not complying with the AJ's order outweighed any failure by Complainant to diligently pursue his claim. The record contained no evidence that the Agency at any time complied with the AJ's order to process the claim as a separate EEO complaint. Thus, the Agency was ordered to complete processing the claims referenced in the AJ's order if it had not done so, or send Complainant a copy of its final action and report of investigation. Complainant v. Dep't of the Treasury, EEOC Request No. 0520140315 (October 9, 2014).
No Reduction in Attorneys' Fees Warranted. The Commission previously found that Complainant's Supervisor interfered with the EEO process and retaliated against Complainant when he threatened that filing a complaint "would not be in [Complainant's] best interest." The Agency awarded Complainant $6,870.30 in attorney's fees, reducing the fees sought by approximately half on the theory that Complainant was not successful on his claims of discriminatory non-selection and performance evaluation. While the Agency correctly noted that attorneys' fees may not be recovered for work on unsuccessful claims, the Commission stated that where a claim for relief involves a common core of facts or related legal theories, a fee award should not be reduced simply because the complainant failed to prevail on every contention raised. In this case, the Commission found that Complainant's unsuccessful non-selection and performance evaluation claims were not fractionable from his retaliatory interference claim because it could not be said that the unsuccessful claims were "distinct in all respects" from the retaliation claim on which he was successful. All of the claims had common underlying facts and the development of each claim was intertwined with the others. Therefore, no reduction in fees was warranted, and Complainant was entitled to payment of the full $13,336.30 claimed. The Commission also addressed the issue of compensatory damages, as noted below. Complainant v. Dep't of the Army, EEOC Appeal No. 0120120446 (November 14, 2014).
(The decisions below are a selected sampling of recent awards of compensatory damages. See, also, "Findings on the Merits," and "Remedies" this issue.)
Commission Increased Damages to $40,000 for Finding of Discriminatory Interference with EEO Process. The Commission previously found that Complainant's Supervisor unlawfully retaliated against Complainant and interfered with the EEO process when he threatened Complainant that filing a complaint "would not be in [his] best interest." The Agency awarded Complainant $6,000 in damages, and the Commission increased the award to $40,000. Complainant testified that the effects from the Supervisor's retaliatory behavior extended over a period of approximately three years, and he experienced embarrassment, humiliation, anguish, and the deterioration of his relationship with his co-workers. He also experienced physical symptoms including weight gain, exacerbation of previous hypertension, insomnia, loss of libido, and damage to his relationship with his wife and children. The Commission concluded that an award of $40,000 was appropriate given the nature and duration of the harm. The Commission also addressed the issue of attorneys' fees as referenced above. Complainant v. Dep't of the Army, EEOC Appeal No. 0120120446 (November 14, 2014).
Commission Increased Damages in Claim of Discriminatory Non-Selection to $10,000. The Agency found that Complainant was discriminated against based on her sex when she was not selected for a position, and awarded her $3,000 in non-pecuniary compensatory damages. On appeal, the Commission increased the award to $10,000. Complainant submitted a statement noting that she suffered embarrassment, humiliation, and damage to her professional reputation, as well as a loss of self-esteem. A statement from Complainant's husband confirmed the impact the discrimination had on Complainant's daily life, the strain on her marriage, and diminished happiness from regular home and family activities. Complainant adequately described the adverse impact caused by having fewer hours each week to spend with her family and on personal activities. Complainant v. Dep't of Agric., EEOC Appeal No. 0120130765 (October 24, 2014).
(See also by category, this issue.)
Complaint Improperly Dismissed for Misuse of EEO Process. Complainant was one of 53 employees from a specific Agency facility who filed formal EEO complaints alleging discrimination when he did not receive an eight-hour time off award during fiscal year 2013. The Agency dismissed all of the complaints for misuse of the EEO process, asserting that the complaints were a collective effort to overwhelm the EEO complaint processing system since there was no evidence of disparate treatment or reprisal. The Commission concluded that the dismissal was improper, finding nothing in the record to show that the complaints were motivated by anything more than a desire to prevent disparate treatment with regard to the awards. There was no evidence of a collective effort by the Complainants to overwhelm the EEO system, and each Complainant appeared to have filed only one complaint. The fact that all of the Complainants were represented by the same union official was not sufficient to establish misuse of the process. The Commission also found no credible argument that the 53 complaints could actually overwhelm the system given that the matters could be consolidated for joint processing. The Agency's assertions that the Complainants did not offer evidence of disparate treatment or reprisal addressed the merits of the claims without a proper investigation as required by the Commission's regulations. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120150514 (December 30, 2014). (The Commission issued a separate decision in each of the 53 appeals and in each case found no misuse of the EEO process).
Complaint Improperly Dismissed on Grounds that Matters Were Raised in Grievance. The Agency dismissed Complainant's claim of discrimination and retaliation surrounding her proposed removal and the cancellation of a particular program, stating that those matters merged into a grievance filed with respect to Complainant's removal. The Union President indicated that the Agency invoked binding arbitration under the collective bargaining agreement in the matter of Complainant's removal, and Complainant acknowledged that the union requested arbitration on her behalf. The record, however, did not contain a copy of the relevant collective bargaining agreement reflecting that claims of discrimination were permitted to be raised in the grievance process. Further, there was no evidence that the claim concerning Complainant's participation in the specified program was raised in the grievance process. Thus, the Commission concluded that the Agency improperly dismissed Complainant's complaint. Complainant v. Dep't of Commerce, EEOC Appeal No. 0120142525 (November 25, 2014).
Complaint Improperly Dismissed for Being Moot. Complainant alleged that she was retaliated against when she was subjected to an investigative interview that resulted in a letter of warning. As a remedy, she requested that management cease bullying her. On appeal, the Commission found that the Agency improperly dismissed the complaint for being moot. Complainant stated on appeal that she was subjected to ongoing harassment by the Postmaster for two years, and that management took no action when informed of the incidents. Thus, the Commission concluded that despite the fact that the letter of warning had been reduced to an official discussion, Complainant articulated a claim of hostile work environment that was likely to continue. In addition, while Complainant did not expressly seek compensatory damages as a remedy, her description of the alleged harm could arguably be construed as a claim for damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142751 (November 18, 2014).
Agency Improperly Dismissed Complaint for Failure to Timely Contact EEO Counselor and Failure to State a Claim. Complainant alleged that the Agency failed to properly compensate her at the GS-14 level of the position she occupied and subjected her to harassment when she attempted to obtain appropriate compensation. The Commission found that Complainant alleged a continuing wage-related violation and, as such was aggrieved. Complainant occupied a GS-14 position, but her pay and personnel actions did not reflect her grade. To the extent that the Agency asserted that it did not act because it felt no action was warranted, this addressed the merits of the claims and was irrelevant to the procedural issue of whether Complainant has stated a justiciable claim. In addition, Complainant alleged an ongoing violation of Title VII and the ADEA with respect to discrimination in compensation. She was therefore entitled to pursue her discrimination claim each time these alleged discriminatory wages were paid, which included when she sought counseling in November of 2013. Thus, the Commission found that Complainant's compensation claim was timely. She also alleged acts of harassment and reprisal within 45 days of the date that she sought counseling, which the Commission stated were timely as part of a continuing violation. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120142124 (October 30, 2014).
Agency Improperly Fragmented Claim of Harassment. The Commission found that the Agency improperly fragmented Complainant's claim of discriminatory harassment. A fair reading of Complainant's formal complaint showed that she alleged she was subjected to a series of related incidents of harassment including being denied assistance, humiliated and mocked due to her physical disability. Complainant asserted that the Agency was aware that she had a disability and that her condition was exacerbated by her Supervisor's actions. Taken together, the matters alleged stated an actionable claim of harassment. Further, since several of the incidents comprising Complainant's harassment claim occurred with the 45-day time period preceding her EEO Counselor contact, her complaint of harassment was timely. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142380 (October 23, 2014).
Complaint Improperly Dismissed for Filing a Grievance. The Commission found that the Agency failed to substantiate its dismissal of Complainant's complaint on the grounds that she filed a grievance on the same matter. Complainant acknowledged that she sought assistance from her union representative, but stated that the representative did not plan to file a formal grievance. Complainant clearly stated that she sought review of her performance appraisal under a specific section of the Agency's Handbook which the record showed was only available to employees who were not covered by the Negotiated Procedure. While a Union Official indicated that Complainant was a bargaining unit employee, there was no evidence in the record showing that Complainant filed a grievance or that one was filed on her behalf, and the Agency failed to provide any copy of a grievance. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142429 (October 21, 2014).
Complaint Improperly Dismissed for Failure to State a Claim and Being Moot. Complainant alleged that the Agency discriminated against her when it denied her reasonable accommodation, gave her an unsatisfactory performance appraisal, placed her on a performance improvement plan, and proposed to remove her from employment. Complainant noted on appeal that she retired before the effective removal date, and alleged that the Agency's actions were equivalent to constructive discharge. The Commission found that the Agency improperly dismissed the complaint for failure to state a claim and being moot. While the Agency asserted that Complainant failed to request accommodation, that rationale went to the merits of the claim and was not relevant to the procedural issue of whether she stated a viable claim. The Agency conceded that Complainant presented a note from her physician that contained a number of medical restrictions, and Complainant stated that she verbally requested accommodation on a number of occasions. Further, Complainant would be entitled to a variety of remedies including compensatory damages if the actions raised were found to be discriminatory. Therefore, her claims were not rendered moot by her retirement. The Commission also stated that Complainant alleged that she received a final removal notice within weeks of filing her complaint, and should be allowed to amend her complaint to include the constructive discharge claim. Complainant v. Overseas Private Inv. Corp., EEOC Appeal No. 0120142216 (October 21, 2014).
Agency Failed to Properly Identify Claim of Harassment. Complainant alleged that the Agency subjected her to discriminatory and retaliatory harassment, and cited six incidents in support of her claim. The Commission found that the Agency erred when it failed to identify the claim of harassment, and dismissed two incidents, one for untimely EEO Counselor contact and one for failure to state a claim. Complainant alleged a series of events that occurred over a two-year period and created a hostile work environment. Instead of treating these events as a claim of harassment, the Agency acted improperly by considering the matters in a piecemeal manner. Further, the EEO Counselor's report showed that Complainant raised several other events and Complainant contacted the EEO Counselor within 45 days of the most recent alleged event. Complainant v. Dep't of Justice, EEOC Appeal No. 0120112862 (October 21, 2014).
(See by statute, as well as multiple bases, this issue.)
Denial of Reasonable Accommodation Found. Following a hearing, an AJ found that the Agency discriminated against Complainant on the basis of disability when it failed to provide her with reasonable accommodation, and the Commission affirmed the AJ's decision on appeal. Complainant was hired under a two-year Federal Career Internship Program (FCIP) appointment as a Claims Authorizer, and was qualified because she identified a reasonable accommodation that would allow her to perform the essential functions of her position. Specifically, the Commission stated that Complainant's request for additional time for on-the-job training beyond the two-year FCIP period would have been a feasible solution to Complainant's problems with processing cases efficiently. The Agency's Personnel Policy Manual noted that it had the authority to extend FCIP appointments up to 120 days, and could request an extension of one year from the Office of Personnel Management. The Commission agreed with the AJ that the requested accommodation would not have lowered the Agency's production standard, but would have provided accommodation in the form of training which would have enabled Complainant to meet the production standard. The Commission concluded that the Agency failed to prove that the requested accommodation would have caused an undue hardship, and made only generalized conclusions regarding the impact of the accommodation on other employees and customers. Further, while the Agency questioned the effectiveness of the accommodation and asserted that its policies prohibited management from requesting an extension for the purpose of giving Complainant an opportunity to demonstrate improvement in performance, neither of those assertions showed that the requested accommodation would be a significant difficulty or expense for the Agency. The Commission also affirmed the AJ's decision to award damages, stating that the Agency failed to make a good faith effort to reasonably accommodate Complainant's disability. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0720120034 (November 26, 2014).
Racial Harassment Found. The Commission found that Complainant was subjected to harassment on the basis of his race. Complainant alleged that he was the subject of scandalous e-mails and newspaper articles initiated by Agency managers, and that he was threatened with physical harm. Witness testimony reflected a strong indication that a Deputy Manager was responsible for disseminating information to the media regarding alleged ethical violations by Complainant in relation to the hiring of minority employees and money paid to historically Black universities. The Commission found that the Manager's conduct was sufficiently severe and pervasive to alter the conditions of Complainant's employment and create a hostile work environment. As a result of the Manager's inflammatory assertions, Complainant's name and picture were published in the media and the Agency's Inspector General opened an investigation. The record, however, contained no evidence that Complainant did in fact act in an unethical manner. Further, during the Inspector General's investigation, employees described co-workers in derogatory terms and raised issues of racism and reverse discrimination, and the hearing testimony described a culture of extreme bigotry and racial epithets and symbols being directed toward African-American employees. Complainant's career and reputation were clearly affected by the Manager's actions. The Commission noted that there was no dispute that many different levels of management were aware of the e-mails and public articles implicating Complainant but made little or almost no effort to stop the harassment. Thus, the Commission concluded that the Agency failed to immediately and effectively address the hostile work environment, and was liable for the harassment. The Agency was ordered, among other things, to pay Complainant $42,500 in proven compensatory damages, provide a minimum of eight hours of EEO training for the Manager, and consider taking disciplinary action against her. Complainant v. Dep't of Energy, EEOC Appeal No. 0720130030 (December 12, 2014).
Retaliation Found with Regard to Working Conditions. Complainant worked as an Environmental Scientist and his duties included delineating the extent of wetlands on property, which was not an exact science and could be subjective. The record showed that Complainant disagreed with other Environmental Scientists' decisions on several occasions, and had a tense relationship with his supervisor (S1) because they did not share the same philosophy regarding wetland delineation. Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of religion and in reprisal for prior EEO activity. An AJ found no evidence of religious discrimination but determined that S1 retaliated against Complainant when he took away Complainant's signature authority, made comments to a co-worker that it would be in her best interest not to work with Complainant, and questioned Complainant's co-workers and consultants about Complainant's performance. The AJ stated that these actions would dissuade a reasonable person from engaging in the EEO process, and S1 had no legitimate, non-retaliatory reason for the conduct.
The Commission agreed with the AJ that many of Complainant's allegations were examples of workplace disagreements between a subordinate and a supervisor. The Commission, however, also affirmed the AJ's finding of retaliation with regard to the three matters. Although S1 stated that he revoked Complainant's signature authority because Complainant had done things "outside the norm," the AJ did not find the testimony convincing and there was no evidence that Complainant had been issued any discipline for his alleged errors. Further, the Commission agreed with the AJ that repeatedly attempting to solicit negative information from a third party would dissuade a reasonable person from participating in the EEO process, and there was no legitimate reason for S1's actions. With regard to remedies, the Commission increased the AJ's award of non-pecuniary damages to $10,000 finding that the award was consistent with the amounts awarded in similar cases. The Commission affirmed the AJ's decision regarding pecuniary damages, noting that much of Complainant's medical treatment was related to other non-retaliatory events. Complainant v. Dep't of the Army, EEOC Appeal No. 0120120232 (October 24, 2014).
(See also "Findings on the Merits" in this issue.)
No Entitlement to Damages for Increased Tax Liability Resulting from Lump Sum Settlement. Petitioner and the Agency entered into a settlement agreement in 1993 which provided that the Agency would, among other things, process Petitioner's application for disability retirement and remove references to disciplinary actions. The Commission previously found that the Agency breached the agreement, and pursuant to the terms of the agreement, should reinstate Petitioner to his position. The Commission later ordered the Agency to properly award Petitioner back pay and benefits he would have received for the time he should have been reinstated. In response to the most recent petition for enforcement, the Commission found that Petitioner was not entitled to payment for the adverse tax consequences of receiving a lump sum pay award. Petitioner conceded that the Agency provided him with back pay and other benefits. The Commission has held that reimbursement of additional tax liability arising from a lump sum payment of back pay is a form of pecuniary compensatory damages because the purpose of such an award is to compensate Petitioner for the proximate injury caused by employment discrimination. In this case, Petitioner's claim did not arise from a finding of discrimination, but from a determination that the Agency breached the 1993 settlement agreement. Although the settlement agreement specifically provided that the Agency would reinstate Petitioner if it failed to abide by the terms thereof, the agreement did not contain a provision for compensatory damages or tax liability in the event of a breach. Therefore, Petitioner was not entitled to pecuniary damages in the form of compensation to offset tax liability from the lump sum back pay payment. Petitioner v. Dep't Homeland Sec., EEOC Petition No. 0420140001 (December 5, 2014).
Remedies Discussed. The Agency adopted an AJ's decision finding that Complainant was subjected to sex and age discrimination and awarding make whole relief. Complainant ultimately appealed to the Commission alleging that the Agency failed to comply with the relief awarded in its final action. With regard to the restoration of leave, the Commission noted that the parties presented two different sources of information that yielded different figures for the amounts of leave used. The Commission noted that uncertainties should be resolved in favor of Complainant, and since the figures from the Agency's clock rings were more favorable to Complainant, the Agency complied with the order when it restored a greater number of hours than reflected on Complainant's pay stubs. The Commission then examined Complainant's request for a lump sum payment for restored sick leave given that she had retired from the Agency. The Commission rejected the Agency's argument that it can do nothing to correct the matter since the Office of Personnel Management (OPM) has already calculated Complainant's service credit and retirement benefits. The Commission has previously held that an agency must still provide accurate information to OPM to enable OPM to recalculate a complainant's retirement benefits. Therefore, the Agency was directed to notify OPM of Complainant's restored hours of sick leave. The Commission noted that it could not consider a request for additional attorneys' fees incurred in the processing of the underlying complaint because Complainant did not initially appeal that matter. The Commission remanded the issue of whether Complainant was entitled to a performance bonus given that the record on that issue was not adequately developed. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122965 (November 13, 2014), request for reconsideration denied, EEOC Request No. 0520150187 (May 22, 2015).
Back Pay Discussed. The Agency found that Complainant was subjected to racial harassment for six years and constructively discharged. As part of the award of relief, the Agency concluded that Complainant was entitled to $56,130 in back pay. Complainant challenged the amount of the back pay award on appeal. The Commission initially noted that Complainant had a duty under Title VII to mitigate damages by making a reasonable good faith effort to find other employment, and amounts earnable with reasonable diligence will reduce an award of back pay. In this case, the back pay award ran from the date of Complainant's constructive discharge until the date of the Agency's reinstatement order, a period in excess of four years. The Agency, however, inexplicably determined that Complainant was entitled to back pay for only one year during which time he was receiving treatment from a therapist. While the Agency appeared to find that Complainant was fit to work after that time, the record showed that Complainant was not fit to work even after the therapist's treatment ended. The therapist specifically stated that Complainant would be able to work only very limited duties and the therapist recommended that he not work at all. The therapist further stated that he did not expect Complainant's health to significantly improve, and the record indicated that Complainant continued to receive treatment throughout the relevant period. Thus, the Commission determined that the Agency erred in limiting back pay to the period during which Complainant was receiving treatment from the therapist since the evidence did not support a conclusion that Complainant was fit to work after that time. The Agency was ordered to recalculate back pay to include any period during which Complainant was substantially unemployable. Complainant v. Dep't of Agric., EEOC Appeal No. 0120112546 (November 7, 2014).
Reinstatement and Front Pay Discussed. An AJ found that the Agency discriminated against Complainant on the basis of disability and in reprisal for prior EEO activity when it failed to reasonably accommodate him and terminated him during his probationary period. Complainant filed an appeal asserting that the AJ failed to award him reinstatement or front pay. The Commission found that Complainant was entitled to be reinstated to the position he held at the time he was separated from the Agency, subject to successful completion of his probationary period. The AJ found that Complainant's Supervisors exhibited animosity toward him, and denied his requests for accommodation because they had already determined that Complainant could not succeed in the position. The AJ further found that the steps undertaken to accommodate Complainant were a sham and motivated by the Supervisors' belief that Complainant had a disabling condition. The Commission concurred with the AJ that it was unclear whether Complainant would have succeeded in the position because his initial requests for accommodation in the form of an ergonomic chair and keyboard, voice recognition software and a flexible schedule were never provided. Further, Complainant identified another Supervisor willing to provide Complainant with adequate training and presumably effective accommodations. The Commission concluded that, under the circumstances, the appropriate make-whole relief includes reinstatement to the position Complainant held at the time of his termination or a substantially equivalent position subject to the successful completion of the remaining months of his probation with effective reasonable accommodations. The Commission stated that Complainant should be placed into a position where he receives appropriate training and reports to different Supervisors. The Commission determined that the facts of the case did not support an award of front pay, as there was no evidence Complainant's former position had been abolished or that reinstatement would necessarily result in an antagonistic relationship in light of the identification of another appropriate Supervisor. Complainant v. Dep't of the Interior, EEOC Appeal No. 0120131556 (October 9, 2014).
Sanctions Not Warranted Where Delay Due to Settlement Negotiations. An AJ issued a decision sanctioning Complainant for causing delays in the hearing process. According to the record, Complainant and the Agency attempted to reach a settlement, and on two occasions Complainant agreed to and then withdrew offers at the last minute. In addition, Complainant cancelled mediation the day before it was scheduled to occur. Complainant asserted that her former attorney made a settlement offer that included terms to which she did not consent. In his decision, the AJ noted that he was not finding that the parties had a binding and enforceable agreement, but ordered the enforcement of the oral settlement agreement stating that it was a better alternative than canceling the hearing and ordering the Agency to issue a final decision on the merits of the claim. The Agency declined to implement the AJ's sanction, finding that it was unduly harsh, and the Commission agreed with the Agency. The Commission found that Complainant's actions, despite causing unnecessary inconveniences and delay, did not rise to the level of contumacious conduct such as to warrant the imposition of sanctions. The Commission also noted that Complainant did not violate an AJ Order or act in bad faith. The Agency was instructed to submit the matter for a hearing. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0720150005 (December 11, 2014).
Commission Sanctions Agency for Failing to Provide Complete Complaint File. The Commission sanctioned the Agency for failing to provide the complaint file by issuing a default judgment in favor of Complainant. The Commission notified the Agency that it was required to submit a copy of the entire complaint file in response to Complainant's appeal, and that the failure to do so could result in the Commission drawing an adverse inference. When the Agency failed to respond, the Commission issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed, again requesting that the Agency provide the complete complaint file. The Agency failed to comply with the terms of the Notice, and the Commission stated that there had been an excessively long delay with no meritorious explanation as to why the Agency did not submit the file. Since the Commission was unable to properly determine whether the Agency's findings and conclusions were supported by the record, the Commission found that the most appropriate sanction was a default judgment for Complainant. The Commission further determined that Complainant established a prima facie case of retaliation, and was entitled to individual remedies. Complainant v. Broad. Bd. Of Governors, EEOC Appeal No. 0120110117 (November 6, 2014).
Commission Affirms Sanctions Imposed on Agency. Complainant filed a complaint alleging the Agency discriminated against her on the basis of race and in reprisal for protected EEO activity with regard to her request for a flexible workplace arrangement ("flexiplace"). After a hearing, Complainant discovered that the Agency obtained a draft transcript of two days of the hearing without providing a copy to Complainant. Complainant requested sanctions based upon the Agency's actions. Because the Agency obtained the draft transcript before the close of the hearing, the AJ believed the Agency was trying to prepare for the examination of witnesses. The AJ, in finding that the Agency's counsel was trying to obtain an unfair tactical advantage, determined the appropriate sanction was to issue a decision in favor of Complainant finding that the Agency improperly denied her request for emergency flexiplace on a specific day based on race. The AJ found that Complainant failed to establish discrimination with regard to two additional matters. On appeal, the Commission affirmed the Agency's finding of no discrimination with regard to two issues and affirmed the AJ's decision to impose sanctions. The Commission found the AJ's issuance of a sanction was narrowly tailored to the Agency's actions because the Agency violated the spirit of the Commission's order that transcripts be provided to both parties to afford them "equal footing." The Commission found the Agency's actions were deceptive, creating an inference that the Agency was trying to obtain an unfair advantage during the hearing. Further, the Agency had no right to early access to the hearing transcript. The nature of the Agency's action was egregious, and the Agency did not provide an explanation to the AJ as to why it obtained the draft transcript. The Commission found a significant prejudicial effect from the Agency obtaining a rough draft of the transcript that could have afforded the Agency an unfair advantage in preparing for the examination of key witnesses, and had a substantial effect on the integrity of the EEO process. The Commission found that Complainant was denied the opportunity to work emergency flexiplace on a specific date while a Caucasian employee was afforded the opportunity to work episodic flexiplace, and therefore, Complainant was entitled to relief in the form of proven pecuniary and non-pecuniary compensatory damages. Complainant v. Pension Benefit Guar. Corp., EEOC Appeal No. 0720130001 (October 9, 2014).
Breach of Settlement Found. The parties entered into a settlement agreement that provided, among other things, that the Agency would change Complainant's performance rating from "unsuccessful" to "fully successful." There was no dispute that the Agency changed the rating in Complainant's official personnel file. The Commission found, however, that the Agency breached the agreement when it retained the original rating in an "unofficial" file and used that rating during the investigation of an unrelated EEO complaint. The Agency acknowledged that it retained the "unofficial" rating, and the Commission stated that it was reasonable for Complainant to expect that the original rating would not be used or referenced by the Agency. Complainant v. Dep't of the Army, EEOC Appeal No. 0120142643 (December 22, 2014), request for reconsideration denied, EEOC Request No. 0520150178 (April 29, 2015).
Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement that provided, among other things, that the Agency would remove a Letter of Reprimand from Complainant's disciplinary file, and the parties would not discuss the terms of the agreement except as necessary to ensure compliance. Complainant had initially been issued a suspension which was reduced to the Letter of Reprimand. Complainant subsequently asserted that Agency Counsel sent the settlement agreement to the Office of Professional Responsibility shortly after it was signed, and that the Agency reinstated the original suspension one year later. While the Agency stated that it rescinded the Notice of Proposed Suspension, the Commission found that the Agency was in breach of the agreement. By its terms, the agreement permitted the Letter to be used in subsequent actions. The agreement, however, also specifically stated that its terms could not be used as a basis "to seek or justify similar terms in any subsequent matter." Therefore, the Commission found that the Agency did not in fact comply with the requirement to remove the Letter from Complainant's disciplinary file or the requirement that the matter addressed in the agreement not be discussed or publicized in any manner except as necessary for the parties to carry out the agreement. The fact that the Agency took steps subsequent to the date on which it stated it removed the Letter implied that the Letter remained in Complainant's file, and the Agency failed to explain why the agreement was forwarded to the Office of Professional Responsibility. The Commission noted that if Complainant chose to have his initial EEO complaint reinstated, the Agency should permit him to amend the complaint to include new incidents of reprisal. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120141926 (October 16, 2014).
Complainant Raised Viable Claim of Sex-Stereotyping. Complainant's allegation that the Agency subjected him to discrimination and harassment because he was gay stated a viable claim of sex-stereotyping under Title VII. Complainant stated that he is openly gay and shares details of his family life in the same manner as his heterosexual co-workers. Thus, Complainant alleged that he was treated differently because he did not conform to the stereotype that a man should not be romantically partnered with a man or should not acknowledge he is gay to co-workers. Despite the Agency's assertions that the claims could not be adjudicated through the EEO process, such allegations stated cognizable claims and employees who believe they were discriminated against because of their sexual orientation should be counseled concerning their right to file complaints under the EEO process. The Commission concluded, however, that Complainant failed to prove that he was subjected to unlawful discrimination or harassment. Complainant v. Consumer Fin. Prot. Bureau, EEOC Appeal No. 0120141108 (December 18, 2014), request for reconsideration denied, EEOC Request No. 0520150209 (May 19, 2015).
Complaint that Agency Rescinded Offer of Employment Stated Viable Claim. Complainant's allegation that the Agency rescinded an offer of employment stated a viable claim of national origin discrimination. The issue addressed a claim of personal injury or harm to a term, condition or privilege of employment, and the Agency's assertions that Complainant failed to meet suitability requirements addressed the merits of the claim without a proper investigation as required by the Commission's regulations. Further, the Agency failed to establish that the claim constituted a collateral attack on another forum. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120141044 (December 18, 2014).
Complainant Raised Viable Claim of Ongoing Harassment Based on Sex and Reprisal. The Commission found that the Agency characterized Complainant's complaint too narrowly and improperly dismissed it for failure to state a claim. The complaint was not limited to one incident involving a specific management official, but included allegations that other managers removed some of his responsibilities, assigned new duties to his unit and denied his travel requests. The broader reading of Complainant's allegations was clearly sufficient to state a claim of ongoing hostile work environment harassment. In this case, Complainant asserted that a management official sent e-mails to senior officials accusing him of committing a crime, and the Commission noted that in certain instances, the damage to Complainant's reputation may be sufficient to invoke the protections of the EEO process even absent any specific adverse actions by the Agency. Complainant v. Dep't of the Interior, EEOC Appeal No. 0120142360 (December 16, 2014).
Complaint Alleged Viable Claim of Retaliation. The Commission found that Complainant's claim that his Supervisor wrote him up on three occasions stated a viable claim of retaliation. The Agency asserted that the write-ups were merely memoranda for the record and kept in the Supervisor's files. The Commission concluded, however, that such memoranda for the record, regardless of whether they were part of Complainant's personnel file, would be reasonably likely to deter a person from engaging in protected EEO activity especially in light of the frequency described by Complainant. Complainant v. Dep't of the Army, EEOC Appeal No. 0120142439 (November 28, 2014).
Complaint Alleged Viable Claim of Discrimination. Complainant alleged that the Agency discriminated against him on the basis of age when it requested that he provide confidential medical information that it did not request from other similarly situated employees. The Commission concluded that Complainant, in essence, was alleging that he was subjected to an improper request for medical information, and the Agency improperly dismissed the matter for failure to state a claim. The Agency's assertion that the request was not improper went to the merits of the complaint, and was not relevant to the procedural issue of whether Complainant set forth an actionable claim. Complainant v. Dep't of the Army, EEOC Appeal No. 0120133299 (November 19, 2014), request for reconsideration denied, EEOC Request No. 0520150212 (May 13, 2015).
Complaint Alleged Viable Claim of Disability Discrimination. The Commission found that Complainant's claim that the Agency discriminated against her when management did not assist her down the stairs during a fire drill and dismissed her concerns about the incident stated a viable claim of disability discrimination. By raising a concern regarding her ability to safely exit the building during a fire drill, Complainant addressed a personal loss or harm regarding a term, condition or privilege of employment for which there was a remedy. Complainant v. Dep't of Educ., EEOC Appeal No. 0120142519 (October 30, 2014).
Agency Improperly Dismissed Claim of Harassment Based on Race and Color. Complainant alleged that management subjected him to ongoing harassment on the basis of his race and color, including yelling at him in the presence of co-workers, treating him with disrespect, issuing him a letter of warning, referring to him as "boy," and stating that Complainant was "getting too big for his britches." The Commission found that Complainant's allegations, including the use of "boy" a historically degrading term used against African American men, stated a viable claim of racial harassment that required further investigation. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142501 (October 29, 2014).
Evidence Sufficient to Find Agency Joint Employer. Complainant, a Language Instructor at the Agency's Foreign Service Institute, alleged that the Agency discriminated against him on the bases of his religion and age. The Commission concluded that there was sufficient evidence in the record to find that the Agency qualified as a joint employer. The Commission noted that the Agency failed to perform an adequate analysis in applying the common law agency test, and instead summarily concluded that Complainant could not meet the test since he was employed by a contractor. Complainant worked at an Agency facility using Agency equipment, and an Agency supervisor decided to terminate Complainant. Therefore, the Agency exerted sufficient control to be considered a joint employer with regard to Complainant's claim of discriminatory termination. In addition, Complainant was an applicant for two direct-hire positions at the Agency and, as such, stated a claim with regard to those matters. Complainant v. Dep't of State, EEOC Appeal No. 0120131112 (October 17, 2014); see also Complainant v. Dep't of Transp., EEOC Appeal No. 0120141746 (November 25, 2014), request for reconsideration denied, EEOC Request No. 0520150186 (May 7, 2015) (the Agency exercised sufficient control over Complainant's position to qualify as his joint employer for purposes of the EEO complaint process. The Agency required Complainant to be present during specific hours, and Complainant had to meet numerous Agency requirements and perform functions specified by the Agency, including passing a background check, wearing a uniform, and attending various Agency training. Further, the record suggested that the Agency's termination of Complainant's contract resulted in his unemployment); but see Complainant v. Dep't of the Army, EEOC Appeal No. 0120142416 (December 2, 2014) (the Agency did not exercise sufficient control over Complainant's position to qualify as a joint employer. While Complainant worked on Agency premises using Agency tools, material and equipment, the contractor maintained an active presence at the facility with Supervisors who gave Complainant daily assignments and were involved in her appraisal, and the record demonstrated that Agency managers had no control over Complainant's assignments. The contractor also administered Complainant's compensation and leave).
Agency Improperly Dismissed Complainant's Claim of Per Se Violation of Rehabilitation Act. Complainant's allegation that the Agency's Legal Division requested and obtained a copy of his medical file raised an allegation of a per se violation of the Rehabilitation Act. The Agency's assertion that the action was appropriate from a "need-to-know" perspective was not relevant to the procedural issue of whether Complainant set forth an actionable claim. Complainant articulated the claim with sufficient clarity and addressed a personal loss or harm to a term, condition or privilege of employment for which there was a remedy. Complainant v. Dep't of Transp., EEOC Appeal No. 0120142249 (October 14, 2014).
Complainant Alleged a Pattern of Harassment Which Stated One Cognizable Claim. The Commission found that a fair reading of Complainant's complaint and pre-complaint documents showed that the claim was not comprised exclusively of the one matter identified by the Agency, but instead raised a pattern of discriminatory harassment. Complainant addressed a number of incidents preceding the incident involving his Supervisor, including three other instances in which his Supervisor yelled at him for various things. Therefore, Complainant stated one viable claim of harassment consisting of a series of actions described in his pre-complaint and formal complaint documents. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142121 (October 7, 2014).
Agency Improperly Fragmented Claim of Hostile Work Environment. Complainant alleged that the Agency subjected him to racial harassment and discrimination with regard to an altercation with a co-worker. The Commission reversed the Agency's decision dismissing the complaint, stating that the Agency looked at the allegations as a single-day event instead of treating the events as incidents of the claim of continuing harassment. The record showed that Complainant had been called a "boy" and referred to with a racial slur, and the Agency was aware that he had been issued disciplinary actions, and placed in off duty status by three management officials within the 45 days preceding his EEO contact. Thus, the Agency acted improperly by treating the matters in Complainant's complaint in a piecemeal manner. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141850 (October 7, 2014); see also Complainant v. Dep't of Justice, EEOC Appeal No. 0120140168 (November 13, 2014) (Complainant alleged that she was subjected to harassment by a Supervisor which included a series of events that occurred over a three-year period. Instead of treating the incidents as part of a claim of ongoing harassment, however, the Agency looked only at the last event and improperly treated the matters raised in a piecemeal manner. When Complainant's claims were viewed in the context of a claim of harassment, they stated a claim and the Agency's dismissal was improper).
Complaint Improperly Dismissed as Collateral Attack on an Agency Process. The Commission found that the Agency improperly dismissed Complainant's claim that the Agency discriminated against her on the basis of sex when it subjected her to an investigation for allegedly falsifying a document. While the Agency asserted that the matter constituted a collateral attack on the Special Investigative Services (SIS) process, Complainant worked in SIS and alleged that a male employee who committed a similar mistake was treated more favorably than she. Thus, the investigation was in the nature of a performance/conduct issue. Complainant also claimed that she was reassigned and her hours were changed, which was sufficient to allege a viable claim of sex discrimination. Complainant v. Dep't of Justice, EEOC Appeal No. 0120141843 (October 7, 2014); see also Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141889 (November 6, 2014) (A fair reading of the formal complaint and related EEO counseling materials revealed that Complainant alleged that she was retaliated against when she was accused of misconduct and improper performance of her official duties. Thus, the investigation at issue was in the nature of a management investigation into a conduct issue of an employee and was not a collateral attack on the Office of Inspector General's investigative process. The Commission stated that being referred for an investigation by the OIG stated a viable claim of unlawful reprisal).
Agency Improperly Dismissed Claim of Retaliation. Complainant alleged that the Agency retaliated against her when an alleged discriminating official she named in a prior complaint took steps to renew an investigation by the Office of Internal Affairs that had been previously resolved. The Commission found that the Agency improperly dismissed the claim, stating that although the original investigation occurred prior to Complainant's initial EEO complaint the actions to renew the investigation appeared to have occurred more recently. Further, a fair reading of the complaint showed that Complainant was not challenging a determination by the Office of Internal Affairs but was alleging that the request for an investigation was made in retaliation for her prior EEO activity. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120140774 (October 3, 2014), request for reconsideration denied, EEOC Request No. 0520150114 (April 1, 2015).
Complaint Alleging Denial of Continuation of Pay Properly Dismissed. Complainant's allegation that he did not receive all of the continuation of pay he requested in his application to the Department of Labor's Office of Workers' Compensation Programs (OWCP) failed to state a viable claim within the EEO process. Complainant did not allege that any action by the Agency caused him to receive a lower award, and it was improper for Complainant to attempt to collaterally attack actions which occurred during the OWCP process. The proper forum for Complainant to have raised his concerns was through the OWCP proceeding itself. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142586 (December 30, 2014).
Agency Properly Dismissed Claim Regarding Investigative Interview. Complainant's allegation that the Agency subjected her to an investigative interview failed to state a viable claim of discrimination. The Commission has held that being subjected to an agency investigation does not render an individual aggrieved where the complainant did not suffer an adverse action as a result of the investigation. In this case, there was no evidence that the investigative interview resulted in disciplinary or other adverse action. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142757 (December 18, 2014).
Allegation Regarding Union Activity Properly Dismissed. Complainant's allegation that the Agency denied her union steward time to process grievances was properly dismissed for failure to state a claim. The claim involved an issue relating to union representation and was a collateral attack on a separate forum which should be raised within the grievance process. The Commission further found that the action was not of a type reasonably likely to deter Complainant or others from engaging in protected EEO activity. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142489 (October 23, 2014); see also Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142170 (October 29, 2014) (Agency properly dismissed complaint alleging that Complainant was not included in a settlement agreement with the union. An issue relating to a union settlement agreement constituted a collateral attack on a separate forum and Complainant should raise the matter within the grievance process); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120142347 (November 5, 2014) (Complainant's allegation concerning the Agency's compliance with a grievance decision was a collateral attack on another administrative proceeding and failed to state a claim within the meaning of the Commission's regulations); Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120142257 (November 7, 2014) (the Agency properly dismissed the complaint because it concerned union matters. Complainant's allegation that the Agency failed to act in response to her formal grievance should be raised with the Federal Labor Relations Authority, and the relief she was seeking, removal of union officials and actions to enforce accountability of the union confirmed that her claim was against the union. Finally, while Complainant asserted that co-workers accused her of making racial statements, the Commission has held that challenges to an EEO complaint filed by another employee would have a chilling effect on the EEO process and there is no remedial action available when another individual files an EEO complaint); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142298 (December 5, 2014) (Complainant's allegations concerning actions of the union vice president in his union role towards her as a fellow union officer do not state a claim and were properly dismissed. None of the alleged events directly related to a term, condition or privilege of Complainant's employment and Complainant did not name any Agency management officials. In addition, Complainant's allegations concerning criminal charges brought against her constituted a collateral attack on another proceeding and should be raised within the criminal court system).
AJ's Issuance of Decision without a Hearing Was Proper. The Commission found that the AJ's decision on summary judgment in favor of the Agency was proper. According to the record, Complainant was involved in a heated exchange with a co-worker. One month later, while meeting with a Supervisor to discuss what disciplinary action he might face, Complainant made a gesture with his hand as if he had a gun, and stated "Pow, pow, pow…that's how I would expect an incident to be handled at the U.S. Postal Service." Complainant was then terminated. The Commission noted that while Complainant asserted that the AJ did not acknowledge his opposition to the Agency's motion for summary judgment, the AJ specifically referenced Complainant's opposition in her decision. Further, the Commission found that Complainant essentially admitted making a "gun gesture" and uttering the words that led to his termination. The Commission stated that Complainant's intent was not material to proving discrimination, and management witnesses provided clear and unrebutted statements as to why they were fearful of a gun gesture and reference to the Postal Service. Complainant failed to prove that the Agency's actions were motivated by discriminatory animus, and the Commission found no basis to disturb the AJ's decision. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120132641 (November 13, 2014).
Commission Affirms AJ's Issuance of a Decision without a Hearing Finding No Discrimination. After considering the parties' motions for a decision without a hearing and the responses, the AJ issued a decision without a hearing in favor of the Agency. The Commission found that the AJ's issuance of a decision without a hearing was appropriate, and affirmed the finding of no discrimination or discriminatory constructive discharge. The record had been adequately developed, and Complainant was given notice of the Agency's motion for a decision without a hearing and the opportunity to respond. She also received a comprehensive statement of undisputed facts and had the opportunity to engage in discovery. Even assuming all facts in favor of Complainant, the Commission stated that a reasonable fact-finder could not find in her favor. Specifically, there was no dispute that Complainant transferred to another office on her own accord, and she did not allege that she was subjected to a hostile work environment while working in that office. Therefore, Complainant failed to show that the Agency engaged in discrimination that became so intolerable that she had no choice but to resign from her position after she transferred to the other office. Complainant v. Dep't of Agric., EEOC Appeal No. 0120120596 (October 9, 2014).
Commission Reversed Decision on Summary Judgment Finding Issues of Material Fact and Credibility. The Commission found that the AJ's issuance of a decision on Complainant's allegation of reprisal without a hearing was improper because there were conflicting facts and questions of witness credibility. The Commission initially determined that Complainant established a prima facie case of reprisal. There was no dispute that management officials were aware of her prior EEO activity, and a counseling session and suspension less than one month after Complainant settled a prior complaint were reasonably likely to deter protected activity. The Commission determined that the AJ essentially made credibility determinations in favor of the Agency without a hearing. The Commission noted that the AJ gave full weight to the accounts of Complainant's first and second level Supervisors providing nondiscriminatory business reasons for removing Complainant from her position, yet did not account for conflicting statements by Complainant and co-workers that she was held to a much stricter standard than other employees. Additionally, the Commission noted that Complainant had never been disciplined prior to her EEO activity. Complainant v. Dep't of the Air Force, EEOC Ap. No. 0120140481 (December 4, 2014).
Decision on Summary Judgment Reversed Because Genuine Issues of Material Fact Were in Dispute. Complainant alleged that the Agency discriminated against him when it did not award him a specific position because of his disability. The Commission determined that the AJ erred in issuing a decision without a hearing in favor of the Agency. While it was undisputed that Complainant was an individual with a disability, the AJ failed to address whether Complainant was qualified and, if so, whether Complainant posed a direct threat to himself or other employees. Further, the record contained conflicting evidence as to whether Complainant could physically perform the essential duties of the position, and it was unclear from the position description what the actual requirements of the position entailed. Finally, the Commission noted that there was also a dispute concerning whether the Agency conducted an individualized assessment or could establish that Complainant was a direct threat. Complainant stated that he was never asked to take a general fitness examination or furnish a doctor's note demonstrating that that the medical restrictions caused by his disabilities would not impede his ability to safely perform the duties of the position. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120120665 (December 4, 2014).
AJ's Finding of No Genuine Issue of Material Fact Reversed. Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of disability and in reprisal for prior protected EEO activity when management instructed him to violate his medical restrictions and, on several occasions, the Agency subjected him to ongoing harassment, including a Letter of Warning for failure to follow instructions. Without a hearing, the AJ determined that the record presented no material facts in dispute and Complainant did not establish discrimination. Specifically, the AJ determined that the Agency put forth legitimate, nondiscriminatory reasons for its actions, and Complainant did not show the Agency's reasons were pretext for discrimination. Lastly, the AJ concluded that Complainant failed to establish the alleged harassment occurred as a result of his disabilities or retaliatory animus. On appeal, the Commission concluded that the AJ erred in finding no genuine issues of material fact and thus, a hearing was required. The Commission found that a genuine dispute of material fact existed as to whether the Agency forced a disabled employee to work outside his medical restrictions. The AJ also failed to address Complainant's reasonable accommodation claim. The record indicated that Complainant's physician requested that Complainant work a driving route, but Complainant was required to deliver, at least in part, by walking. Thus, the dispute of material fact precluded summary judgment on Complainant's reasonable accommodation claim under the Rehabilitation Act. Moreover, the Commission found that the AJ erred in finding that Complainant failed to establish a prima facie case of reprisal, when he had, in fact, previously participated in the EEO process. The Commission remanded the matter for a hearing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123214 (October 8, 2014).
Commission Reversed Decision on Summary Judgment Finding Material Facts in Dispute. An AJ issued a decision without a hearing, over Complainant's objections finding that he was not subjected to race discrimination and/or retaliation. On appeal, the Commission found that the issuance of a decision without a hearing was improper because there were material facts in dispute. Specifically, the AJ stated that Complainant had "issues working with others." Complainant, however, asserted that management "branded him" as a problem employee when in fact he successfully worked with various groups. The Commission noted that the AJ appeared to rely heavily on statements from a certain manager when Complainant argued that the manager admitted an "aversion" to Complainant and issued him a "meritless" evaluation. Further, while the AJ found that Complainant was "advised" not to interact with a particular manager and was not included in meetings because he was not a division lead, Complainant contended that he was "ordered" not to interact with the manager and was inexplicably excluded from meetings in which he had previously participated in reprisal for engaging in EEO activity. The Commission concluded that the AJ did not draw justifiable inferences in Complainant's favor, choosing instead to credit the Agency's explanations for its actions, and there were too many disputed facts and issues of credibility to support a decision without a hearing. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120130408 (October 8, 2014).
Commission Reversed Decision on Summary Judgment Finding that AJ Failed to Draw Justifiable Inferences in Complainant's Favor. Without allowing for discovery, an AJ issued a decision without a hearing in favor of the Agency. The AJ found that the Agency articulated legitimate, non-discriminatory reasons for its decision not to classify Complainant's position at a higher level, and that Complainant did not provide specific evidence which created a genuine issue of credibility regarding the Agency's explanation which would have proven pretext. The Commission reversed the AJ's decision, stating that the AJ did not draw justifiable inferences in Complainant's favor and instead chose to credit the Agency's explanations for its action. The Agency acknowledged that Complainant was performing at a higher level, and her supervisor stated that her performance warranted that she be paid at that level. Complainant was the only Director working under a particular management official who was not compensated at the higher level.
The Commission noted that the report of investigation contained only two affidavits that of Complainant and the management official, and the two officials who had greater knowledge of the events provided only unsworn statements. In addition, there was no discovery at the hearing stage. Complainant pointed to instances when Agency officials' statements were in contradiction or were based on unverified and unsworn statements, and the Commission noted that the AJ relied upon these statements. The Commission further stated that while the AJ assumed it was inappropriate to examine actions across different organizational units, the AJ did not consider that all of the named comparative employees held the same title and reported to the same second-level supervisor. The record did not provide evidence to support the Agency's contentions concerning non-competitive promotions, and the record did not contain testimony from the witnesses Complainant identified. The AJ failed to consider Complainant's argument that the Agency's failure to consider her for a non-competitive promotion was evidence of pretext given that management was aware she was working well beyond her position description and never attempted to adjust her position description to match her duties pursuant to relevant Agency guidelines. The Commission concluded that there were too many disputed facts and issues of credibility to support a decision without a hearing. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130416 (October 8, 2014).
Sufficient Justification Found for Excusing One Week Delay in Seeking Counseling. Complainant was placed with the Agency through a contractor, and contacted the Commission when he was terminated from his position. Complainant then initiated contact with an Agency EEO Counselor. The Agency dismissed his complaint, asserting that he failed to timely contact the Counselor and the Commission reversed the decision on appeal. Complainant explained that he was confused as to whether he needed to initiate a claim as a private sector employee or with the Agency, and he contacted the Commission within the 45-day limitation period. Further, he contacted an Agency EEO Counselor two days after being advised to do so by the Commission. The Commission concluded that, given Complainant's employment status, his confusion over where to file was understandable and provided adequate justification for excusing the brief one-week delay in seeking EEO counseling. Complainant v. Sec. & Exch. Comm'n, EEOC Appeal No. 0120140391 (December 19, 2014).
Limitation Period for Initiating EEO Contact Begins on Effective Date of the Personnel Action. The Commission reversed the Agency's dismissal of Complainant's claim for failure to timely initiate EEO counseling, because the Agency based its determination on the date Complainant received notice of the adverse employment action, rather than the effective date of the action. The Agency issued a Removal Notice to Complainant on September 6, 2013, which stated that removal would occur "no sooner than 30 calendar days from receipt of notice." Complainant initiated contact with an EEO counselor on November 15, 2013, more than 45 days after she received the Notice. However, the Commission noted that based on the language of the Removal Notice, the earliest possible date the termination would have been effective was October 6, 2013. Therefore, Complainant timely raised the matter with an EEO counselor. Additionally, the Agency bears the burden of proof when dismissing a claim on the basis of timeliness, and the Agency did not provide proof of the effective date of the removal. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141703 (December 18, 2014).
Complainant Timely Contacted EEO Counselor Upon Learning of Discrimination. The Agency improperly dismissed Complainant's complaint for failure to timely contact an EEO Counselor. While the Agency stated that Complainant was effectively removed from employment on January 22, 2014, Complainant asserted that she was off work for medical reasons beginning in August 2013 and was not aware she had been terminated until March 2014 when she called to inquire about her insurance. While the record contained a Notification of Personnel Action form indicating that Complainant's removal was effective on January 22, the form was not processed until February 19, 2014, and the record did not show when Complainant received notice of her removal. Therefore, her contact with the EEO Counselor on April 3, 2014, was timely. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142769 (December 17, 2014).
Complainant Timely Contacted EEO Counselor with Regard to Claim of Harassment. The Commission found that the Agency incorrectly framed Complainant's complaint as concerning only a Letter of Suspension and not the broader claim of harassment which was timely. The pre-complaint form showed that Complainant clearly sought counseling for ongoing harassment, and the Counselor's report reflected a broader claim comprising various incidents. The Commission rejected the Agency's argument that Complainant was inappropriately using the appeal to extend the scope of the original complaint, noting that the Notice of Right to File a Formal Complaint described the claim as including harassment, and Complainant specifically mentioned harassment in his formal complaint. Thus, the dismissal of his complaint was not proper. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133000 (December 11, 2014).
Agency Did Not Meet Burden of Supporting Determination of Untimely EEO Counselor Contact. The Agency dismissed Complainant's claim of discrimination concerning his removal, stating that he failed to contact an EEO Counselor within 45 days of receiving the removal notice. On appeal, the Commission found that the dismissal was improper. The Commission's regulations clearly provide that the limitation period for seeking EEO counseling begins with the effective date of the personnel action. In this case, while the removal notice stated that Complainant's removal would be effective "no sooner than 30 calendar days" from the date of his receipt of the notice, the Agency failed to provide proof of the actual effective date of the removal. Therefore, the Agency failed to meet its burden of supporting its timeliness determination. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142564 (November 25, 2014).
Insufficient Evidence that Complainant Had Knowledge of Limitation Period for Contacting Counselor. The Commission found that the Agency failed to show that Complainant had actual or constructive knowledge of the time limit for contacting an EEO Counselor, and as such improperly dismissed his complaint. There was no evidence in the record that EEO posters or notices were on display in Complainant's work facility. Further, while the Agency submitted a copy of Complainant's training record, there were no affidavits from management asserting that any of the training courses outlined the 45-day limitation period. Complainant stated that the Agency failed to provide her with notice of the time limits for initiating an EEO complaint, and it was the Agency's burden to produce sufficient evidence to support its contention that it notified Complainant of her rights. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120141282 (November 7, 2014).
EEO Contact Timely. In reversing the Agency's finding of untimely EEO Counselor contact, the Commission found that the Agency failed to show that Complainant's contact with the facility's EEO Officer/Manager (EEOI) did not constitute the date on which Complainant initiated EEO contact. The Agency's EEO poster did not clearly set forth the proper contact information for initiating the EEO complaint process, and contained EEOI's telephone number and picture. In addition, the record contained training material on the topic of sexual harassment which included EEOI's name, picture, and telephone number as the contact for more information or consultation on the topic. Thus, the Commission determined that the day Complainant contacted EEOI constituted her initial EEO contact date, which was ultimately within the 45 day time limit. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140346 (October 3, 2014).
Complaint Properly Dismissed for Failure to Timely Contact EEO Counselor. The Commission found that the Agency properly dismissed Complainant's complaint for failure to timely contact an EEO Counselor. Complainant was out of work due to an on-the-job injury. He acknowledged that he was told that the Agency denied his request to return to work on limited duty in July 2013. The Commission rejected Complainant's assertion that his delay in seeking counseling should be excused because he did not reasonably suspect discrimination until he returned to work in November, stating that Complainant's discovery of additional comparators at that time did not create a new claim. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142271 (November 6, 2014), request for reconsideration denied, EEOC Request No. 0520150138 (April 16, 2015).
Complaint Properly Dismissed for Failure to Timely Contact EEO Counselor. The Agency properly dismissed Complainant's claim that he was issued a proposed suspension for failure to timely contact an EEO Counselor. It was undisputed that Complainant was notified of the proposed suspension as early as April 9, 2013, but failed to initiate EEO contact until August, well beyond the 45-day limitation period. The fact that Complainant did not sign for the suspension notice was not relevant given that he knew of the action, and the Commission has held that utilization of Agency procedures including grievance actions does not toll the limitation period for initiating counseling. Finally, the Agency provided an affidavit from a manager stating that EEO posters containing appropriate information about the time limits for contacting an EEO Counselor were in place at Complainant's facility. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141737 (October 3, 2014).
Agency Improperly Dismissed Complaint as Untimely. The Agency dismissed Complainant's complaint as untimely, stating that Complainant's attorney at the time received notice of the right to file on February 24, 2014, but did not file the formal complaint until March 12, 2014. The UPS delivery notice in the record was signed by an individual who did not appear to be Complainant or his previous attorney. Complainant submitted a sworn statement from his former attorney stating that she did not receive the notice until February 28. Further, the Agency did not advise Complainant that it was relying upon the doctrine of constructive receipt. Therefore, the Commission concluded that there was adequate justification for a one-day delay that may have occurred in the filing of the formal complaint. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142180 (November 4, 2014).
Complaint Found Timely Where Inadequate Evidence of Receipt of Notice of Right to File. The Commission found that the Agency improperly dismissed Complainant's complaint as untimely, because there was inadequate evidence of Complainant's receipt of the notice of right to file. While the record contained a FedEx tracking print-out indicating delivery in "Pensacola, FL," there were no further details regarding the address to indicate that Complainant actually received the notice. The Commission stated that the Agency always bears the burden of providing evidence and/or proof to support a reasoned determination as to timeliness, and there was no evidence to support the Agency's assertion regarding the date of receipt of the notice or evidence that the formal complaint was not actually mailed on the date it was postmarked. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120142013 (October 3, 2014).
(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.)
Gender Identity and Sexual Orientation Coverage under Title VII
Case Law Update: Review of Pre and Post Macy Title VII Protections for LGBT Employees
By: Robyn Dupont and Nichole Davis
Title VII of the Civil Rights Act of 1964, prohibits employment discrimination based on race, color, religion, sex, or national origin.1 While early Title VII court decisions rejected discrimination claims by Lesbian, Gay, Bisexual and Transgender (LGBT) individuals, the Commission and courts have increasingly recognized that employment actions motivated by LGBT status are actionable as sex discrimination in violation of Title VII. Applying Title VII to discrimination against LGBT applicants and employees does not create new protected groups under the law, but rather simply recognizes the scope of the existing protected characteristic of "sex."
In 2012, the Commission adopted a Strategic Enforcement Plan (SEP) that established priorities for the Commission and sought to develop ways to integrate Commission programs, in order to reduce employment discrimination in the workplace.2 As the government agency responsible for "monitoring trends and developments in the law, workplace practices, and labor force,"3 the Commission recognized "coverage of lesbian, gay, bisexual and transgender individuals under Title VII"s sex discrimination provisions, as they may apply,"4 as an emerging issue of importance. The Commission also acknowledged that "this enforcement priority is consistent with positions the Commission has taken in recent years regarding the intersection of LGBT-related discrimination and Title VII's prohibition on sex discrimination."5
In Price Waterhouse v. Hopkins,6 the Supreme Court recognized that employment decisions based on sex stereotypes are actions taken "because of …sex" in violation of Title VII. In Price Waterhouse, a female senior manager, Ann Hopkins, sued her employer under Title VII, alleging that the company discriminated against her on the basis of sex when considering her for a promotion.7 Hopkins was the only female out of 88 candidates being considered for partner that year. She provided evidence that many partners who submitted comments about her candidacy found her to be an outstanding and efficient professional, but others found her personality too aggressive and abrasive for a woman.8 Furthermore, a company official who explained to Hopkins why her candidacy was placed on hold told her that she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."9 Ruling that these actions were evidence that sex motivated the denial of partnership to Hopkins, the Court recognized that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII. The Court explained that Title VII's "because of sex" provision strikes at the "entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Id. (quoting City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (internal citation omitted)).
In a subsequent case, Oncale v. Sundowner Offshore Services, Inc.,10 the Supreme Court held that Title VII prohibits sex-based harassment even when the perpetrator and the victim are the same sex. The Court noted that even if the legislators who enacted Title VII might not have envisioned the law covering same-sex harassment, Title VII "must extend to [sex-based] discrimination of any kind that meets the statutory requirements." Id. at 79-80.
Applying these precedents, the Commission and courts have found discrimination based on LGBT status violates Title VII.
In Macy v. Dep't of Justice,11 the Agency revoked Complainant's job offer after she revealed that she was in the process of transitioning from male to female. Complainant filed a formal complaint stating that she was discriminated against on the basis of "sex, gender identity (transgender woman) and on the basis of sex stereotyping." The Agency separated the claim into two issues, stating that it would process only the claim based on sex (female) under Title VII and the Commission's federal sector EEO regulations, 29 C.F.R. Part 1614, and that the claim based on gender identity stereotyping would be processed instead only under its internal procedures.
On appeal, Complainant argued that her entire claim was within the Commission's jurisdiction and should be investigated under Title VII. The Commission agreed and found that each of the formulations of Complainant's claims were simply different ways of stating the same claim of discrimination based on sex, a claim cognizable under Title VII. The Commission held that a transgender person could establish a sex discrimination claim in various ways if she experienced discrimination on the basis of gender identity. Further, the Commission concluded that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination based on sex, and such allegations therefore state a viable claim under Title VII.
Applying Macy, the Commission has since found discrimination against transgender applicants and employees in a variety of fact patterns involving the terms and conditions of employment, including deliberate refusal to use a transgender individual's new name and corresponding pronouns, agency failure to timely correct employment records to reflect an employee's new gender identity, and agency failure to allow access to restroom facilities corresponding to an employee's gender identity.
For example, in Complainant v. U.S. Postal Serv.,12 Complainant alleged that the Agency discriminated against her on the basis of sex (transgender) when it withdrew a job offer. The Commission stated that complaints of discrimination based on transgender status should be processed under Title VII and through the federal sector EEO process as claims of sex discrimination. In addition, in Complainant v. U.S. Postal Serv.,13 Complainant, who was transgender, alleged that her Supervisor repeatedly and deliberately referred to her as "he" Or by her former name. The Commission noted that supervisors and co-workers should use the name and pronoun of the gender the employee identifies with in communications with and about the employee, holding that the repeated intentional misuse of the employee's name and pronoun may constitute sex-based disparate treatment and/or harassment.
In Complainant v. Dep't of Veterans Affairs,14 the Commission found that a sex discrimination allegation involving the failure to revise agency records when requested pursuant to a change in gender identity states a valid Title VII sex discrimination claim. Complainant explained that he was undergoing treatment for gender identity disorder, and had legally changed his name. Complainant alleged that the Agency failed to act on his request to change his name in its computer system, which created questions from clients and other employees. Complainant also stated that the Information Security Officer reacted to his request with hostility, and threatened to terminate Complainant's access to all Agency computer systems. The Commission stated that Complainant alleged, in essence, that the Officer was hostile toward him because he changed his gender identity, and the situation continued for over a year impacting his ability to successfully meet the workload demands of his job. When viewing the cumulative effect of Complainant's allegations in the light most favorable to him, Complainant stated a viable claim of sex discrimination actionable under Title VII.
Most recently, in Lusardi v. Dep't of the Army,15 the Commission held that agency restrictions on a transgender woman's ability to use a common female restroom facility constituted disparate treatment based on sex, and also that the restroom restrictions combined with offensive remarks, including intentional repeated pronoun misuse, subjected her to hostile work environment harassment based on sex. The Agency acknowledged that Complainant's transgender status was the motivation for its decision to prevent her from using the common women's restroom. The Commission noted that its decision in Macy clearly established that discrimination against transgender individuals because of their gender identity is unlawful sex discrimination. Therefore, the Commission found that there was direct evidence of sex discrimination. The Commission held that when an individual has transitioned to the gender that reflects her or his gender identity, denial of equal access to the restroom consistent with her or his gender identity is sex discrimination under Title VII. The Commission stated that Title VII does not require any particular medical procedure as a prerequisite for equal opportunity and access to facilities, and co-worker discomfort, confusion, or anxiety may not justify discriminatory terms and conditions of employment, including the denial of access to particular restrooms. Regarding Complainant's transition plan with the Agency, the Commission found that any plan with a transitioning employee related to facility access cannot prospectively waive Title VII rights, and the employee retains the right under Title VII to use facilities consistent with her or his gender. Therefore, the Commission found that the Agency subjected Complainant to disparate treatment because of her sex when it denied her access to the restroom consistent with her gender identity.
The Commission also found that Complainant was subjected to hostile work environment harassment based on sex. Witness testimony showed that the team leader intentionally and repeatedly called Complainant traditionally male names, pronouns, and "sir." The team leader used male names and pronouns in e-mails to insult Complainant or convey sarcasm, and witnesses stated that the team leader sometimes laughed when mentioning Complainant in groups and would say her female name with a smirk. The Commission has previously held that supervisors and co-workers should use the name and gender pronoun that corresponds to the gender identity with which the employee identifies, and the failure to use the employee's correct name may constitute unlawful sex-based harassment.16 The Commission found that while inadvertent and isolated slips of the tongue likely would not constitute harassment, in this case, the team leader's conduct occurred multiple times and was intended to humiliate and ridicule Complainant. As such, the Commission found that the alleged conduct was sufficiently severe and pervasive to subject Complainant to a hostile work environment. The Commission further found that although Complainant did not report the team leader's harassment to management, the conduct was so pervasive, well-known, and openly practiced in the workplace that the Agency should have known about it. Moreover, the Agency negligently failed to take prompt and effective correction action to address the harassment. Therefore, the Agency was liable for the harassment.
The Commission has also applied these precedents to find sex discrimination actionable under Title VII in a range of cases involving lesbian, gay, and bisexual applicants or employees.
Most recently, in Baldwin v. Dep't of Transportation,17 the Commission held that a claim of discrimination on the basis of sexual orientation necessarily states a claim of sex discrimination under Title VII. The Agency had dismissed Complainant's claim of sex discrimination because it involved an allegation of discrimination based on sexual orientation, and the Agency believed that the Commission did not have jurisdiction over such claims. The Commission reversed the Agency's decision, finding that a claim of discrimination on the basis of sexual orientation necessarily states a claim of sex discrimination. This is because an employee alleging discrimination on the basis of sexual orientation can show that his or her employer subjected the employee to treatment that would not have occurred but for the employee's sex, took the employee's sex into account by treating him or her differently based on the sex of the persons with whom the employee associates, and/or treated the employee differently because the employee violated fundamental sex stereotypes, norms, or expectations about who individuals should be attracted to.18
The Commission's decision in Baldwin builds on prior Commission decisions in the federal sector. In Veretto v. U.S. Postal Serv.,19 the Commission found that Complainant alleged a plausible claim of sex stereotyping that would entitle him to relief under Title VII when Complainant alleged that a male co-worker continuously harassed him after the co-worker found out that Complainant was marrying a man. Similarly, in Castello v. U.S. Postal Serv.,20 the Commission found that Complainant also raised a viable claim of discrimination based on sex stereotyping. Complainant alleged that she was subjected to continuous workplace harassment, based on sexual orientation, and her appeal was originally dismissed on the ground that sexual orientation is not a separate basis covered by Title VII. In reconsidering the case, the Commission stated that when Complainant alleged that the co-worker made an offensive comment about Complainant having relationships with women, he was motivated by his attitudes about stereotypical gender roles in relationships. Thus, Complainant stated a claim of sex discrimination under Title VII.
Finally, in Complainant v. Dep't of Energy,21 Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the bases of sex and perceived sexual orientation when he was continuously subjected to a hostile work environment by his co-workers and Supervisors. Specifically, Complainant stated that three co-workers repeatedly referred to him using offensive anti-gay slurs, and spread rumors about his sexual orientation. Complainant informed his Supervisor, the Unit Commander, and the Section Chief about the conduct, but the harassment continued. The Commission found that Complainant established that he was subjected to a hostile work environment on the basis of sex. Complainant was called derogatory sex-based names, his property was defaced with these offensive sex-based names, he was ostracized by his co-workers and Supervisors and he was not fairly assigned work. Further, the Commission noted that the slurs used against Complainant were historically used as offensive, insulting, and degrading sex-based epithets against LGB men and women viewed as insufficiently masculine or feminine. Thus, the Commission concluded that the Agency was liable for the harassment because it failed to exercise reasonable care to prevent and correct the harassing behavior.
While there is still no explicit federal statutory prohibition of discrimination based on gender identity or sexual orientation, Title VII's sex discrimination prohibition has been held by both the Commission and the courts to reach discrimination against LGBT individuals.22
2 U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2013-2016, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, http://www.eeoc.gov/eeoc/plan/sep.cfm (last visited Dec. 2, 2012).
5 What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Nov. 20, 2014, 9:32 AM), http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.
22 Links to the Commission decisions reviewed in this article, as well as additional LGBT cases, can be found at www.eeoc.gov/federal/reports/lgbt_cases.cfm. Examples of court decisions supporting coverage of LGBT-related discrimination under Title VII are summarized at www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm. All LGBT-related discrimination allegations should be processed as claims of sex discrimination under Title VII. Instructions for federal agencies on handling such claims are available at www.eeoc.gov/federal/directives/lgbt_complaint_processing.cfm. Additional useful resources include: What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm; OPM-EEOC-OSC-MSPB Guide: Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment, www.opm.gov/LGBTGuide; OPM Guidance on Employment of Transgender Individuals, www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/; DOL/OSHA Guide to Restroom Access for Transgender Employees, www.osha.gov/newsrelease/trade-20150601.html; U.S. Department of Justice Memorandum, www.justice.gov/opa/pr/attorney-general-holder-directs-department-include-gender-identity-under-sex-discrimination.