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Selected Noteworthy Federal Sector Appellate Decisions

Many noteworthy federal appellate decisions are frequently used as a part of the Commission's outreach and training efforts. To help the public identify those decisions, the Commission has decided to assign randomly generated first names and initials, along with a brief summary of the decisions to the cases. Our previous practice was to refer to the appellant as "Complainant" and replaces referring to the cases as "Complainant v Federal Agency." We will update the list periodically with the most recently issued decisions.

Case caption

Summary

Agency Processing

Chief Executive Officer (CEO), DekaTron Corporation, Complainant v. Department of Labor, EEOC No. 0120141656 (EEOC OFO 10/16/14)

http://www.eeoc.gov/decisions/0120141656.txt

The agency must provide EEO counseling and the opportunity to file a complaint under 29 CFR 1614 to the complainant, CEO of a federal contractor (and individual employees), who contacted the agency on behalf of his employees, claiming that an agency employee subjected the contractor employees to racist, sexist, and humiliating remarks which constituted discrimination based on race, religion, and disability.

Judie D. v. U.S. Postal Service, EEOC Appeal No. 0520150345 (September 4, 2015)

http://www.eeoc.gov/decisions/0520150345.txt

Complainant must, at a minimum, be given the opportunity to participate in the investigation by providing an affidavit and responding to the affidavits of management officials.

Kori S. v. Department of the Air Force (National Guard Bureau), EEOC Petition No. 0420140014 (July 2, 2015)

http://www.eeoc.gov/decisions/0420140014.txt

Decision lays out detailed explanation of basis for Commission's jurisdiction over dual-status technician cases, as well as why the Adjutant General and State National Guards in fact are Executive Agencies of the federal government subject to Commission jurisdiction.

Andy B. v. Department of the Army, EEOC No. 0120140002 (EEOC OFO 05/20/14)

http://www.eeoc.gov/decisions/0120140002.txt

The complainant was not an employee of the agency for EEO purposes, where the agency did not have sufficient control over his position to qualify as his employer; a Private Staffing Firm provided an onsite supervisor who assigned the complainant his work, and the complainant did not counter that the details of his performance were supervised or controlled by the agency.

Harvey D. v. Department of State, EEOC Appeal No.0120122385(Oct. 22, 2015)

http://www.eeoc.gov/decisions/0120122385.txt

After-acquired evidence pertaining to applicant's suitability for Foreign Service Officer position does not defeat Agency liability for non-selection, but may preclude Complainant from placement in the position at issue.

Compensatory Damages

Lula N. v. Department of Veterans Affairs, EEOC No. 0120113346 (EEOC OFO 03/21/14)

http://www.eeoc.gov/decisions/0120113346.txt

The Commission increased an award of non-pecuniary compensatory damages from $40,000 to $65,000 noting that, notwithstanding a pre-existing condition or additional aggravating factors, the agency nonetheless is responsible for the additional harm caused by its discriminatory actions.

Akiko L. v. U.S. Postal Service, EEOC No. 0720120027 (EEOC OFO 04/02/14)

http://www.eeoc.gov/decisions/0720120027.txt

The Commission upheld an award of $210,000 in non-pecuniary compensatory damages where the complainant was subjected to severe racial harassment and assault by coworkers over an extended period of time. Management not only failed to stop the harassment, but failed even to discourage it, and disclosed the details of Complainant's EEO activity to Complainant's coworkers, which led to increased harassment of Complainant.

Ivy E. v. U.S. Postal Service, EEOC No. 0720130009 (EEOC OFO 05/14/14)

http://www.eeoc.gov/decisions/0720130009.txt

The complainant was not entitled to front pay following a finding of discrimination where she had voluntarily retired and did not raise a claim of constructive discharge. An award of front pay under these circumstances would exceed "make whole" relief, placing the complainant in a better position than she would have occupied absent the discrimination.

Trina C. v. U.S. Postal Service, EEOC No. 0120141973 (EEOC OFO 11/14/14)

http://www.eeoc.gov/decisions/0120141973.txt

An award of $500 in non-pecuniary compensatory damages was appropriate where the evidence supported, in the main, a finding that the complainant's injury was attributable to other factors than the discrimination.

Anglea R. v. Environmental Protection Agency, EEOC No. 0120131489 (EEOC OFO 12/12/14)

http://www.eeoc.gov/decisions/0120131489.txt

The agency's denial of an award of compensatory damages was proper because the complainant failed to timely submit evidence in support of such an award.

Tom S. v. Department of Justice, Federal Bureau of Investigation, EEOC No. 0720140012 (EEOC OFO 01/22/15)

http://www.eeoc.gov/decisions/0720140012.txt

The agency's time to file its appeal was extended by the government shut-down. An award of $50,000 in non-pecuniary compensatory damages was proper where the agency's discrimination over a period of years made the complainant feel he was "being held hostage" in his current position, and negatively affected his marriage, culminating in divorce.

Emiko S. v. Department of Transportation, Federal Aviation Administration, EEOC No. 0120120933 (EEOC OFO 02/20/15)

http://www.eeoc.gov/decisions/0120120933.txt

The agency failed to reasonably accommodate the complainant, an Air Traffic Controller who became medically disqualified, where the reassignment offered was located outside of her driving restrictions. Although the agency eventually accommodated her, its failure to do so initially resulted in an award of $60,000 in non-pecuniary compensatory damages.

Harry E. v. U.S. Postal Service, EEOC No. 0120123142 (EEOC OFO 03/20/15)

http://www.eeoc.gov/decisions/0120123142.txt

Complainant awarded $500 in compensatory damages following a finding of retaliatory animus when he was not allowed to wear a jacket indoors during inclement weather; the complainant did not establish a causal connection between the discrimination and additional requested damages.

Brendon L. v. U.S. Postal Service, EEOC No. 0120141161 (EEOC OFO 02/03/15)

http://www.eeoc.gov/decisions/0120141161.txt

An agency award of $13,000 in non-pecuniary compensatory damages was increased to $150,000 upon a finding that the agency's award was not sufficient to remedy the effects of the harassment and failure to provide reasonable accommodation that the complainant experienced daily for nearly two and one-half years at the hands of co-workers and management officials.

Sana I. v. Social Security Administration, EEOC No. 0120132400 (EEOC OFO 02/19/14)

http://www.eeoc.gov/decisions/0120132400.txt

While external events during the last six months of a four-year period of discrimination also contributed to the complainant's worsening condition, the agency's discriminatory failure to accommodate caused the greater harm to the complainant's well-being, supporting an award of $100,000 in non-pecuniary damages.

Kendrick B. v. U.S. Postal Service, EEOC No. 0720100036 (EEOC OFO 05/13/14)

http://www.eeoc.gov/decisions/0720100036.txt

The Commission, among other things, decreased an AJ's non-pecuniary compensatory damage award from $210,000 to $120,000 based on lack of substantial evidence, noting that the AJ did not explain the basis for an award that was apportioned over a several years period, took into account evidence that was nominally excluded, and was speculative with regard to future employment.

Dismissals

Mickie B. v. Department of the Navy, EEOC No. 0120122698 (EEOC OFO 05/20/14)

http://www.eeoc.gov/decisions/0120122698.txt

The complainant, nominally a contractor, was an employee of the agency for EEO purposes, where the agency provided the complainant day-to-day supervision, had input into performance appraisals issued by the staffing firm, issued the complainant a reprimand signed by an agency Unit Head, and the staffing firm informed the complainant that it had removed her at the request of the agency.

Findings on the Merits

Under the Pregnancy Discrimination Act

Kiera H. v. Department of the Air Force, EEOC No. 0520140092 (EEOC OFO 02/13/15)

http://www.eeoc.gov/decisions/0520140092.txt

Pregnancy discrimination was found where the complainant was threatened, denied leave for pre-natal care, and ultimately terminated; she was eventually reinstated, but the agency returned her to the same supervisor, forcing her to resign (constructive discharge).

Under the Rehabilitation Act

Gwendolyn G. v. U.S. Postal Service, EEOC No. 0120080613 (EEOC 12/23/13)

http://www.eeoc.gov/decisions/0120080613.txt

The agency's imposition of a 70-pound lifting requirement was a qualification standard that was not job-related and consistent with business necessity, in that it was not tailored to measure an individual's actual ability to perform the essential function of collecting and distributing mail.

Percy K. v. U.S. Postal Service, EEOC No. 0520120403 (EEOC 04/07/14)

http://www.eeoc.gov/decisions/0520120403.txt

The complainant suffered a harm or loss to a term, condition, or privilege of employment when the Agency adjusted his delivery route, because the route adjustment resulted in new physical requirements that were more difficult for the complainant to perform.

Mozelle G. v. Department of Veterans Affairs, EEOC No. 0120121002 (EEOC OFO 04/10/14)

http://www.eeoc.gov/decisions/0120121002.txt

Reprisal discrimination and harassment based on disability were found where the agency threatened the complainant with disciplinary action and issued her a Letter of Counseling for not working in contravention of her (known to the agency) medical restrictions.

Erick N. v. Department of Justice, Federal Bureau of Prisons, EEOC No. 0520130125 (EEOC OFO 04/25/14)

http://www.eeoc.gov/decisions/0520130125.txt

The agency's argument that it would be substantially impacted by having to create and maintain a separate storage system for employees' confidential medical files was without merit. The agency was already required to create and maintain such a system by the Rehabilitation Act, and therefore should not be impacted by an appellate decision reiterating that obligation.

Claudia A. v. Tennessee Valley Authority, EEOC No. 0120120140 (EEOC OFO 05/01/14)

http://www.eeoc.gov/decisions/0120120140.txt

Although the complainant did not allege a violation of the Rehabilitation Act, the agency violated the Act when it ordered the complainant to submit to an alcohol and drug test, placed her on administrative leave, and required her to submit to a fitness for duty examination. The agency's claims that its medical inquiries were job-related and consistent with business necessity were unpersuasive, given that the agency presented no persuasive evidence that the complainant engaged in any action that would have led the agency to form a reasonable belief that she posed a direct threat to herself or others, or could not perform the essential functions of her job.

Gilberto S. v. Department of Homeland Security, Customs and Border Protection, EEOC No. 0320110053 (EEOC 07/10/14)

http://www.eeoc.gov/decisions/0320110053.txt

There is a difference between essential functions and the time at which essential functions must be performed. Job functions are the duties that a person must perform or the outcomes that must be achieved by the person in the job; attendance and timing are methods by which a person accomplishes the essential functions of a job, and go to whether the reasonable accommodation poses an undue hardship on the agency.

Ruben P. v. Social Security Administration, EEOC No. 0720130013 (EEOC OFO 08/14/14)

http://www.eeoc.gov/decisions/0720130013.txt

Where the agency considered the complainant's mental disability serious enough to warrant placing a special security guard in his workplace, it should have considered his condition serious enough to warrant the accommodation of reassignment, but failed to engage in the interactive process.

Darren M. v. Department of Education, EEOC No. 0720130002 (EEOC OFO 08/27/14)

http://www.eeoc.gov/decisions/0720130002.txt

The agency engaged in a pre-job offer, disability-related inquiry in violation the Rehabilitation Act via a question posed in the application process on the USAJOBs website; the agency is responsible for the questions put forth to the agency's applicants, even if the questions were formulated by a different agency, i.e., the Office of Personnel Management.

Mike T. v. Tennessee Valley Authority, EEOC No. 0120121877 (EEOC OFO 11/14/14)

http://www.eeoc.gov/decisions/0120121877.txt

The agency did not violate the Rehabilitation Act when it ordered a fitness for duty examination, because it had a reasonable belief, based on objective evidence (eyewitness reports of negative changes in the complainant's behavior), that the complainant may not have been able to safely perform the essential functions of his job or that he posed a direct threat.

Lavern B. v. Department of Housing and Urban Development, EEOC No. 0720130029 (EEOC OFO 02/12/15)

http://www.eeoc.gov/decisions/0720130029.txt

An agency must modify its policy concerning where work is performed if such a change is need as a reasonable accommodation, as long as the accommodation would be effective and not cause an undue hardship (full-time telework ordered as an accommodation).

Samuel R. v. Department of Veterans Affairs, EEOC No. 0120140216 (EEOC OFO 02/25/15)

http://www.eeoc.gov/decisions/0120140216.txt

The agency successfully argued that it should not be held responsible for the full extent of the complainant's injury where much of his condition pre-dated the discrimination, but nonetheless an increased award was necessary to compensate the complainant for injury sustained on account for the agency's failure to accommodate his disability.

Bryan R. v. U.S. Postal Service, EEOC No. 0120130020 (EEOC OFO 03/20/15)

http://www.eeoc.gov/decisions/0120130020.txt

The complainant's requested accommodation, that he be granted numerous unscheduled absences, was not reasonable, and would cause the agency undue hardship. No failure to accommodate was found where the agency did not continue the interactive process, but the complainant failed to identify or request any other accommodation.

Spencer T. v. U.S. Postal Service, EEOC No. 0120112516 (EEOC OFO 04/02/15)

http://www.eeoc.gov/decisions/0120112516.txt

The agency did not violate the Rehabilitation Act when the complainant's supervisor reviewed medical documentation submitted with a workers' compensation claim, and kept a copy of the documentation locked in her office. The agency did violate the Act when an acting supervisor retained a copy of the documentation after his detail ended, and kept the documentation at home in his personal possession.

Darleen R. v. Department of Transportation, Federal Aviation Administration, EEOC No. 0120081003 (EEOC 05/09/14)

http://www.eeoc.gov/decisions/0120081003.txt

The agency violated the Rehabilitation Act when it rescinded the complainant's reasonable accommodation of a variable schedule, and failed to provide an effective alternative accommodation. The agency argued that the accommodation violated its collective bargaining agreement, but proffered no evidence to support that argument.

Under Title VII

Xavier P. v. U.S. Postal Service, EEOC No. 0120132144 (EEOC OFO 11/01/13)

http://www.eeoc.gov/decisions/0120132144.txt

An agency's failure to take prompt, effective, remedial action for nearly two month after being put on notice of racial harassment (coworkers wearing attire incorporating the Confederate flag) renders the agency liable. A stand-up talk on proper attire did not mention the Confederate flag, and the Postmaster said he saw nothing wrong with that attire.

Zenobia K. v. Department of Health and Human Services, Centers for Disease Control and Prevention, 0120123000 (EEOC OFO 11/14/13)

http://www.eeoc.gov/decisions/0120123000.txt

The complainant stated a viable claim of sex discrimination where harassing actions by coworkers included, among other actions, the statement "[Complainant] is a lesbian, she is lazy, she will use you, do not help her."

Cherie F. v. Department of Homeland Security, Transportation Security Administration, EEOC No. 0120110730 (EEOC OFO 04/15/14) http://www.eeoc.gov/decisions/0120110730.txt

The agency failed to accommodate the complainant's religious beliefs when it denied her request for time off "for operational reasons" without discussing the request with her; there was a voluntary schedule swap process, but the agency did not suggest it.

Eric S. v. Department of Veterans Affairs, EEOC No. 0120133123 (EEOC OFO 04/16/14)

http://www.eeoc.gov/decisions/0120133123.txt

The complainant's allegations that the Agency refused to change his name on its computer systems following his treatment for gender identity disorder and his legal change of his name and accessed his background investigation information were sufficient to state a claim of sex discrimination actionable under Title VII.

Gregg B. v. Department of Homeland Security, Immigration and Customs Enforcement, EEOC No. 0120113331 (EEOC OFO 07/01/14)

http://www.eeoc.gov/decisions/0120113331.txt

Per se violation of Title VII found where the record demonstrated that agency personnel engaged in unmistakable hostility toward Complainant's protected EEO activity, e.g., describing EEO activity as "unprofessional."

Valencia L. v. Department of Homeland Security, Federal Law Enforcement Training Center, EEOC No. 0720130039 (EEOC OFO 08/07/14)

http://www.eeoc.gov/decisions/0720130039.txt

Sex discrimination found where the evidence established that the complainant was disciplined and ultimately terminated for multiple types of conduct that were excused for male colleagues, and/or the infractions did not occur as alleged.

Augustine V. v. U.S. Postal Service, EEOC No. 0120141486 (EEOC OFO 08/15/14)

http://www.eeoc.gov/decisions/0120141486.txt

Discrimination was found where the agency denied the complainant's request for leave to observe his Sabbath and then issued him a letter of warning for failure to maintain regular attendance. The agency failed to demonstrate that it made a good faith effort to reasonably accommodate the complainant's religious beliefs or that to do so would have imposed an undue hardship.

Haywood C. v. U.S. Postal Service, EEOC No. 0120132452 (EEOC OFO 11/18/14)

http://www.eeoc.gov/decisions/0120132452.txt

A harassment claim based on "perceived sexual orientation" that the complainant is gay stated a claim of discrimination based on the perception that the complainant did not conform to gender stereotypes of masculinity; thus it stated a viable claim under Title VII's sex discrimination prohibition.

Alex W. v. Department of Energy, EEOC No. 0720130030 (EEOC OFO 12/12/14)

http://www.eeoc.gov/decisions/0720130030.txt

Discrimination was found in the case of an African-American Director of the agency facility who was subjected to harassment when another agency employee discussed him in defamatory e-mails and newspaper articles. It was well known that a supervisor within the agency was responsible for the leaks and e-mails, and that his actions were based on the complainant's protected status as an African-American. The supervisor's actions were severe and pervasive enough to constitute harassment and the facility had a history of subjecting African-American employees to extreme bigotry, including highly charged racial epithets (the n-word) and highly charged derogatory symbols of discrimination.

Chong T. v. Department of Homeland Security, Federal Emergency Management Agency, EEOC No. 0120140085 (EEOC OFO 01/15/15)

http://www.eeoc.gov/decisions/0120140085.txt

Race and sex discrimination were found when the agency changed the complainant's job duties and job title and moved his work site, he was replaced by a person outside of his protected groups, and the agency failed to articulate to submit any evidence of a legitimate, nondiscriminatory reason for its actions. Further, affidavits by coworkers supported a finding that the agency actions were motivated by race and sex discrimination.

Bryon F. v. U.S. Postal Service, EEOC No. 0120133382 (EEOC OFO 02/11/15)

http://www.eeoc.gov/decisions/0120133382.txt

The complainant's supervisor failed to take action when a coworker called Complainant a "homo" and told him that he was "living in sin and would be going to hell"; the nature of the comments, coupled with the lack of management response, was sufficiently severe to state a claim of sex-based harassment.

Kelley P. v. Department of Justice, Drug Enforcement Administration, EEOC No. 0120123094 (EEOC OFO 03/09/15)

http://www.eeoc.gov/decisions/0120123094.txt

Sex discrimination was found where the agency failed to adequately articulate its reasons for denying the male complainant's request for a transfer to follow his wife to a new job, while granting the same request to a number of female comparators.

Tamara Lusardi

v. Department of the Army, EEOC No. 0120133395 (EEOC 04/01/15)

http://www.eeoc.gov/decisions/0120133395.txt

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. Further, Title VII does not require any particular medical procedure as a prerequisite to equal opportunity and access to facilities.

Luigi B. v. Department of Homeland Security, EEOC Appeal No. 0120110576 (8/20/14)

http://www.eeoc.gov/decisions/0120110576.txt

While Title VII's prohibition of discrimination does not explicitly include sexual orientation as a basis, the statute prohibits sex discrimination, including sex-stereotyping and gender discrimination. However, the complainant did not establish his claim.

David Baldwin v. Department of Transportation (FAA), EEOC Appeal No. 0120133080 (July 15, 2015)

http://www.eeoc.gov/decisions/0120133080.txt

An allegation of discrimination on the basis of sexual orientation is necessarily an allegation of discrimination on the basis of sex.

Taryn S. v. Selective Service System, EEOC Appeal No. 0120113421 (November 3, 2015)

http://www.eeoc.gov/decisions/0120113421.txt

Agency withdrew employment offer after learning of Complainant's criminal conviction, then hired individual of different race with same conviction. Remanded for supplementation of the record and consideration of disparate impact claim.

Margorie L. v. Department of the Army, EEOC No. 0120142868 (EEOC OFO 01/08/15)

http://www.eeoc.gov/decisions/0120142868.txt

The complainant stated a claim of sexual harassment when, at the office holiday party, a sign was hung around her neck that had on it the words "Ride 'em Hard," pictures of the incident were placed on the agency intranet, and co-workers would comment about the pictures.

Hal T. v. Consumer Financial Protection Bureau, EEOC Appeal No. 0120141108 (12/18/14)

http://www.eeoc.gov/decisions/0120141108.txt

Lesbian, gay, and bisexual employees who believe they have been discriminated against because of their sexual orientation should be counseled that they have a right to file a complaint under the 1614 process because they may have experienced sex discrimination.

Trevor H. v. Department of Transportation, Federal Aviation Administration, EEOC No. 0720140023 (EEOC OFO 07/24/14)

http://www.eeoc.gov/decisions/0720140023.txt

Discrimination found on the basis of sex (sex stereotyping) when the complainant was subjected to a hostile work environment (i.a., threats, offensive comments, and offensive graffiti) and retaliation. The Commission dismissed the agency's appeal as untimely and ordered compliance with the remedies specified by the EEOC AJ.

Nita H. v. Department of the Interior, National Park Service, EEOC No. 0320110050 (EEOC 07/16/14)

http://www.eeoc.gov/decisions/0320110050.txt

The "but for" standard does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not employ the "because of" language on which the Supreme Court based its holdings in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) and Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (requiring "but for" causation for ADEA claims brought under 29 U.S.C. § 623).

Under the American with Disabilities Act

Under the Age Discrimination in Employment Act

Serita B v. Department of the Treasury, Internal Revenue Service, EEOC No. 0720140033 (EEOC OFO 07/30/14)

http://www.eeoc.gov/decisions/0720140033%200120111532.txt

The agency violated ADEA record-keeping regulations by destroying notes made by the complainant-job applicant during an interview. An applicant's interview notes can constitute relevant documentary evidence in a non-selection case because they can either refresh the applicant's memory of a past event or be evidence of the past event if the applicant does not have an independent memory of it.

Marguerite L. v. Department of Education, EEOC No. 0120120836 (EEOC OFO 01/09/15)

http://www.eeoc.gov/decisions/0120120836.txt

Where (1) the agency had destroyed its interview notes, (2) the complainant was rated more qualified than the selectee by almost ten percentage points, and (3) two of the four members on the interview panel expressed concern about age discrimination and retaliation with a third expressing ambivalence, it was more likely than not that the complainant's non-selection was motivated by discriminatory animus.

Under the Equal Pay Act

Shameka M. v. Department of the Navy, EEOC No. 0120122462 (EEOC OFO 09/11/14)

http://www.eeoc.gov/decisions/0120122462.txt

The complainant did not establish an Equal Pay Act violation where the male comparators, while all supervisors in the same chain of command as the complainant, each performed significantly different work that required specific technical skills, education, or experience.

Under Multiple Bases

Sona B. v. U.S. Postal Service, EEOC No. 0720140002 (EEOC OFO 12/12/14)

http://www.eeoc.gov/decisions/0720140002.txt

The agency was liable for coworker harassment based on sex because it failed to take immediate and appropriate corrective action after a coworker called the complainant a "bitch," hit a table, and told the complainant she "was not safe off the clock." Further, the agency failed to reasonably accommodate the complainant's disability and retaliated against her for reporting the harassment when it withdrew without explanation an accommodation she had been granted for the previous two years.

Retaliation

Amie H. v. Department of Veterans Affairs, EEOC No. 0120110544 (EEOC OFO 09/23/13)

http://www.eeoc.gov/decisions/0120110544.txt

Complainant was not selected for a supervisory position because her immediate supervisor gave her a negative reference. Evidence established that the supervisor was unhappy that Complainant had requested reasonable accommodation of her disability. Liability was found under the "cat's paw" theory.

Barney G. v. U.S. Postal Service, EEOC No. 0120132266 (EEOC OFO 10/30/13)

http://www.eeoc.gov/decisions/0120132266.txt

A viable claim of reprisal is stated where, after notifying the Postmaster that he intended to file an EEO complaint, the agency's attorney sent the complainant a letter accusing him of asserting a fraudulent claim and threatening legal action.

Kristy E. Complainant v. Department of Interior (BIA), EEOC No. 0720120037 (EEOC OFO 10/31/13)

http://www.eeoc.gov/decisions/0720120037.txt

Reprisal found where the selecting official, knowing that the complainant would apply for a position, unilaterally changed the position's description to require a certification that he knew the complainant did not possess so that she would be found "not qualified."

Leisa C. v. Department of Defense, EEOC No. 0120132212 (EEOC OFO 11/08/13)

http://www.eeoc.gov/decisions/0120132212.txt

Per se violation (reprisal) found where Agency official stated at a meeting where the complainant was present that managers shouldn't be afraid to carry out their administrative duties because "EEOs are crap" and uttered other derisive and derogatory statements about EEO activity. The comments were likely to deter the complainant and other managers from engaging in the EEO process.

Maranda B. v. U.S. Postal Service, EEOC No. 0120132974 (EEOC OFO 01/08/14)

http://www.eeoc.gov/decisions/0120132974.txt

The complainant, a Customer Service Manager, stated a viable claim of reprisal when she was advised that the large EEO award she received was being counted against her unit's annual budget, putting her significantly over budget; that her award amount was part of a power-point presentation in a public meeting, generating comments from some attendees on whether this was her EEO award amount; and she was asked to discuss why she was over budget, when her EEO award was the cause.

Marcellus M. v. Department of Justice (FBI), EEOC No. 0120123111 (EEOC OFO 03/27/14)

http://www.eeoc.gov/decisions/0120123111.txt

Per se reprisal found where a manager, at a squad meeting, discussed problems within the squad and threatened to disband the squad if the problems continued; in the course of the discussion the manager mentioned that EEO complaints had been filed, and that he wanted to work out issues within the squad before "going outside"; and the manager subsequently did disband the squad.

Kendra W. v. Department of Veterans Affairs, EEOC No. 0120112074 (EEOC OFO 04/18/14)

http://www.eeoc.gov/decisions/0120112074.txt

Reprisal discrimination was found where the agency counseled the complainant for using an agency business envelope to mail EEO correspondence to her EEO representative, although she paid the postage herself. The complainant's use of the envelope was reasonable, because it did not appear to explicitly violate the agency's relevant mail-management policy, and did not appear to unduly disrupt the agency's operations or pose a financial burden on the agency; and reprimanding the complainant for exercising a legitimate method of corresponding with her EEO representative was reasonably likely to deter EEO activity.

Brenton O. v. Department of the Air Force, 0120130166 (EEOC OFO 05/07/14)

http://www.eeoc.gov/decisions/0120130166.txt

Direct evidence of reprisal discrimination was found where comments on the complainant's performance appraisal noted that the complainant was "seeking agreement" with co-workers that management's decisions were biased or discriminatory. Complainant's "seeking agreement" and the like constituted protected opposition and should not have been referenced as part of the appraisal.

Reggie D. v. Department of Energy, EEOC No. 0120130468 (EEOC OFO 09/12/14)

http://www.eeoc.gov/decisions/0120130468.txt

Reprisal found where the complainant, who had filed a successful complaint of harassment based on sex (sexual orientation), claimed continuing harassment. The complainant's prior EEO activity was known throughout the workplace because of the number of persons involved.

Miquel G. v. U.S. Postal Service, EEOC No. 0720120041 (EEOC OFO 03/12/15)

http://www.eeoc.gov/decisions/0720120041.txt

Reprisal was found where the complainant established pretext, proving that the infraction which triggered his removal under a "last chance agreement" was a minor infraction for which no employee had ever been formally disciplined.

Ela O. v. Department of the Treasury, Internal Revenue Service, EEOC No. 0120122603 (EEOC OFO 05/08/15)

http://www.eeoc.gov/decisions/0120122603.txt

Reprisal discrimination found where the complainant was subjected to a series of disciplinary actions for bringing her EEO concerns to the agency's leadership and outside her chain of command.

Sunday S. v. Department of Veterans Affairs, EEOC Appeal No. 0120120184 (August 6, 2015)

http://www.eeoc.gov/decisions/0120120184.txt

Member of selection panel Googled applicants' names, discovered Complainant's EEO activity, and reported it to the other panel members. Even though selecting official was not aware of the information, under cat's-paw theory, Agency is still liable.

Mixed Motive

Remedies

Manuel K. v. Department of Veterans Affairs, EEOC No. 0720130007 (EEOC OFO 11/01/13)

http://www.eeoc.gov/decisions/0720130007.txt

29 C.F.R. sec. 1614.501(a)(1) requires only that an agency post a notice of a finding of discrimination at "the affected facility," i.e., the facility where the discrimination occurred, not on the agency's website. On a case-by-case basis, there may be justification for ordering the notice to be posted on a wider basis (but not in the instant case).

Gaynell A. Department of the Navy, EEOC No. 0720100043 (EEOC OFO 04/04/14)

http://www.eeoc.gov/decisions/0720100043.txt

An employee, discriminatorily terminated from a joint-employment scheduled to end about eight months later, was not to an award of front pay beyond the expiration of the agreement under which she was employed, because the agency extended its agreement with the joint-employer to provide services for some three years after the complainant was terminated.

Ivy E. v. U.S. Postal Service, EEOC No. 0720130009 (EEOC OFO 05/14/14)

http://www.eeoc.gov/decisions/0720130009.txt

The complainant was not entitled to front pay following a finding of discrimination where she had voluntarily retired and did not raise a claim of constructive discharge. An award of front pay under these circumstances would exceed "make whole" relief, placing the complainant in a better position than she would have occupied absent the discrimination.

Sanctions

Shela O. v. Department of Health and Human Services, 0720130003 (EEOC OFO 06/16/14)

http://www.eeoc.gov/decisions/0720130003.txt

The AJ properly imposed a sanction (drawing adverse inferences) in a non-selection case where the agency destroyed interview notes, the interviewer could not explain the details of the complainant's interview or the selection process, nor identify who was granted a further interview but not selected, nor offer any explanation for why the complainant had not been referred for a further interview.

Tammy S. v. Department of Defense, Defense Intelligence Agency, EEOC No. 0120084008 (EEOC 06/06/14)

http://www.eeoc.gov/decisions/0120084008.txt

Sanctions were imposed by the Commission where the Agency took 11 months to issue a final decision after an EEOC AJ remanded the case, failed to properly conduct the EEO counseling stage, and did not comply with the "spirit or the letter" of the 29 CFR Part 1614 regulations. Further, the agency's Office of General Counsel evidenced "contempt and disrespect for the EEO process"; personnel of the EEO Office and the OGC were ordered to undergo training on their responsibilities concerning EEO processing and the appropriate role of the OGC in the EEO process.

Shena S. v. Broadcasting Board of Governors, EEOC No. 0120110117 (EEOC OFO 11/06/14)

http://www.eeoc.gov/decisions/0120110117.txt

Default judgment was the appropriate sanction where the agency failed to provide the complaint record despite numerous requests and a show-cause order. The evidence that was available was sufficient to establish the complainant's right to relief.

Torie A. v. Department of the Air Force, EEOC Appeal No. 0120132260 (July 17, 2015)

http://www.eeoc.gov/decisions/0120132260.txt

Commission imposed evidentiary sanctions against where Agency did not commence investigation of complaint until 10 days after receiving AJ's order to produce the file (281 days after complaint filed), which was three months past the 180-day deadline to complete the investigation; Agency offered no explanation for delay.

Amina W. v. Department of Energy, EEOC Appeal No. 0120113823 (November 17, 2015)

http://www.eeoc.gov/decisions/0120113823.txt

Commission imposed default judgment at appellate level as sanction for Agency's failure to provide the complete record on appeal or to show good cause. Agency did not provide the missing documents and did not respond to Show Cause Order.

 Tod P. v. Department of the Navy, EEOC No. 0720120013 (EEOC OFO 03/12/14)

http://www.eeoc.gov/decisions/0720120013.txt

On appeal, an AJ award of sanctions (attorney's fees and costs) was moot because the AJ incorporated those amounts into his subsequent award of attorney's fees and costs, which the agency did not appeal. The complainant was not entitled to recover certain costs of litigation as an equitable remedy, because he could have requested them as part of his pecuniary compensatory damages, but did not.

Settlement Agreements

Stating a Claim

Eric S. v. Department of Veterans Affairs, EEOC No. 0120133123 (EEOC OFO 04/16/14)

http://www.eeoc.gov/decisions/0120133123.txt

The complainant's allegations that the Agency refused to change his name on its computer systems following his treatment for gender identity disorder and his legal change of his name and accessed his background investigation information were sufficient to state a claim of sex discrimination actionable under Title VII.

Summary Judgment

Michel M. v. U.S. Postal Service, EEOC No. 0120140854 (EEOC OFO 01/28/15)

http://www.eeoc.gov/decisions/0120140854.txt

Summary judgment was inappropriate where there existed a genuine issue of material fact whether it was an undue hardship for this postal facility to operate and deliver mail on Sundays instead of Saturdays, as it had done for over 80 years, as it operated in an area with a substantial population of Seventh Day Adventists.

Request for Reconsideration

Class Certification

Hassan B. v. U.S. Postal Service, EEOC No. 0120091759 (EEOC 06/02/14)

http://www.eeoc.gov/decisions/0120091759.txt

Denial of class certification was appropriate where the Administrative Judge found that a class of four members did not satisfy the numerosity requirement, and the putative Class Agent did not establish the remaining prerequisites of commonality, typicality and adequacy of representation.

Vena H. v. Department of State, EEOC No. 0720110007 (EEOC 06/06/14)

http://www.eeoc.gov/decisions/0720110007.txt

Certification was proper for a class that was redefined as "[a]ll otherwise qualified applicants to the Foreign Service who were denied employment, or whose employment was delayed pending application for and receipt of a waiver, because the State Department deemed them not 'world-wide available' due to their disability." Finding that all the prerequisites for certification had been met, the decision remanded the matter to the AJ for a hearing on the merits.

Belia S. v. Department of Justice, Drug Enforcement Administration, EEOC No. 0520130561 (EEOC 08/12/14)

http://www.eeoc.gov/decisions/0520130561.txt

The Supreme Court's decision in Walmart v. Dukes does not apply to the instant class action, because the class action was past the certification process and there had been a finding on the merits.

Marica H., et al. v. Department of Justice (Bureau of Prisons), EEOC Appeal No. 0720140032 (May 29, 2015)

http://www.eeoc.gov/decisions/0720140032.txt

AJ properly certified class comprised of current and former FCC Victorville female employees allegedly subjected sexual harassment by inmates, and a local policy to deny use of force training, notwithstanding that the putative class members occupied a variety of occupations.

Elsa R., et al. v. Dep't of Defense (Education Activity), EEOC Appeal No. 0120103592 (Sept. 9, 2015)

http://www.eeoc.gov/decisions/0120103592.txt

AJ's denial of pre-certification discovery for the class action was an abuse of discretion.

Simon V., et al. v. Dep't of Justice (Bureau of Prisons), EEOC Appeal no. 0720110008 (Sept. 15, 2015)

http://www.eeoc.gov/decisions/0720110008.txt

AJ properly certified a class of Agency employees consisting of "all Agency employees (nationwide), from January 1, 1994 to the present, who have been denied promotions based upon the Agency's policy or pattern and practice of retaliating against employees because they engaged in protected EEO activity."

Harry A., et al. v. Dept. of Justice (U.S. Marshals Service), EEOC Request No. 0520120575 (November 17, 2015)

http://www.eeoc.gov/decisions/0520120575.txt

Agency's request for reconsideration denied; prior decision did not clearly err when it found that the commonality requirement of certification was met, notwithstanding application of Supreme Court decision in Walmart v. Dukes.