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U.S. Equal Employment Opportunity Commission



The DIGEST Of Equal Employment Opportunity Law


Volume XXIII, No. 2

Office of Federal Operations

Spring 2012


Inside

Selected EEOC Decisions on:


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

Carlton M. Hadden, Director, OFO
Douglas A. Gallegos, Acting Director, OFO's Special Services Staff
Digest Staff
Editor Writer: Robyn Dupont
Writers: Robyn Dupont, Caroline Hyatt, Pennington Winberg

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


SELECTED EEOC DECISIONS

Compensatory Damages

(The decisions below are a selected sampling of recent awards of compensatory damages. See, also, "Findings on the Merits," and "Remedies" this issue. - Ed.)

$125,000 Awarded for Sexual Harassment. The Commission affirmed the Administrative Judge's (AJ's) finding that the Agency subjected Complainant to hostile work environment sexual harassment for over 19 months, and that the record supported the AJ's award of $125,000 in non-pecuniary compensatory damages. Statements from Complainant, her Licensed Clinical Social Worker, her husband and a co-worker all showed that Complainant suffered severe emotional distress. Complainant stated that she was embarrassed, humiliated, and felt powerless. The Social Worker treated Complainant for acute stress, anxiety, depression, and post-traumatic stress disorder, and stated that Complainant experienced excessive crying, excessive sleeping, difficulty concentrating, feelings of fearfulness and helplessness, intrusive thoughts, guilt, hypervigilance, and paranoia. Complainant's husband stated that she lost interest in most things, became withdrawn, and did not socialize. Jackson v. Dep't of the Air Force, EEOC Appeal No. 0720110036 (March 13, 2012).

$25,000 Awarded for Denial of Religious Accommodation. In a prior decision, the Commission found that the Agency failed to accommodate Complainant's religious beliefs. Following a supplemental investigation, the Agency awarded Complainant $5,000 in non-pecuniary compensatory damages. On appeal, the Commission raised the award to $25,000, because Complainant provided evidence that she suffered "a great deal of emotional stress" by not being allowed to participate in Sunday worship for a 13-month period. Complainant stated she spent "countless" hours being counseled by her pastor. In addition, the denial of Complainant's accommodation request resulted in her having to resign from several leadership positions she held within her church. Complainant claimed that the emotional stress exacerbated her pre-existing hypertension, causing her physician to prescribe additional medication for the condition. The Commission found that while the evidence did not show that the stress caused Complainant's hypertension, it more likely than not aggravated the condition. Complainant stated that the stress caused ongoing difficulties with sleeping and extreme fatigue, and resulted in significant and ongoing hair loss which affected her sense of self esteem. Complainant presented statements from her doctor, pastor and beautician in support of her claim. White v. Dep't of Def., EEOC Appeal No. 0120103295 (February 27, 2012).

$20,000 Awarded for Denial of Reasonable Accommodation. In a prior decision, the Commission found that the Agency denied Complainant reasonable accommodation in the form of an ergonomic chair and workstation, and ordered the Agency, among other things, to investigate Complainant's claim for damages. The Agency subsequently determined that Complainant was entitled to $2,500 in non-pecuniary damages. On appeal, the Commission found the Agency's award insufficient, and concluded that Complainant was entitled to an award of $25,000. While Complainant experienced back problems prior to the discrimination, the Commission found that the denial of a doctor-prescribed accommodation for a period of 18 months resulted in an aggravation of his condition. In addition, Complainant stated that he suffered from depression, sleeplessness, irritability, problems with concentration, and loss of self-esteem. The Commission also determined that Complainant was entitled to an award of $61 in pecuniary damages for prescription co-payments based upon supporting documentation. Rafalski v. U.S. Postal Serv., EEOC Appeal No. 0120093891 (March 15, 2012).

$20,000 Awarded for Harassment. Following a hearing, an AJ found that Complainant was subjected to disability based co-worker harassment over a two-year period. In addition, based on the testimony of Complainant, his wife, and his psychiatrist, the AJ found that Complainant's medical condition had been aggravated by the harassment such that he was entitled to an award of $10,000 in non-pecuniary compensatory damages. The Agency adopted the AJ's finding of discrimination and fully implemented the relief ordered. Complainant appealed the issue of the damage award to the Commission. On appeal, the Commission concluded that the AJ's award was insufficient, and found that an award of $20,000 would adequately compensate Complainant for the physical and emotional distress he suffered as a result of the Agency's discriminatory acts. Complainant testified that he felt distressed, belittled, and suffered loss of enjoyment of life. Complainant's wife indicated that he became extremely depressed, seemed like he was "somewhere else," and stopped taking care of his appearance. Complainant's psychiatrist testified that she treated Complainant and prescribed multiple medications for his depression and anxiety which were exacerbated by the stressful work environment. Shimko v. U.S. Postal Serv., EEOC Appeal No. 0120093033 (January 6, 2012).

$2,500 Awarded for Disability Discrimination. Following a hearing, an AJ found that the Agency violated the Rehabilitation Act when it included information regarding Complainant's medical condition in her Proficiency Report which was placed in Complainant's Official Personnel Folder. The AJ awarded Complainant $1,500 in non-pecuniary compensatory damages. On appeal, the Commission found that the AJ's award was insufficient, and that Complainant was entitled to $2,500 in compensatory damages. Complainant addressed the effect of the impermissible medical disclosure as it related to her efforts to secure employment with other facilities. Specifically, she indicated that she applied to six different Agency facilities and supplied the Proficiency Report as part of the application process. Complainant also submitted affidavits from her daughter and a friend detailing the emotional distress and financial strain Complainant experienced. Daley v. Dep't of Veterans Affairs, EEOC Appeal No. 0120091580 (January 27, 2012).

Dismissals

(See also by category, this issue.-Ed.)

Complaint of Harassment Improperly Dismissed. Complainant contacted an EEO Counselor on January 26, 2011, and subsequently filed a formal complaint alleging that the Agency subjected her to harassment on the basis of her race. Complainant included a number of incidents that occurred between July 2010, and January 6, 2011 in support of her claim, as well as the Agency's posting of her position while she was on detail in April 2011. The Agency dismissed seven allegations which occurred prior to December 2010, for failure to timely contact an EEO Counselor. In addition, the Agency dismissed allegations concerning Complainant's Supervisor's attempt to reassign her and the posting of her position for failure to state a claim. On appeal, the Commission initially noted that a fair reading of the complaint, in conjunction with a letter Complainant's attorney sent to the Agency, made it clear that Complainant raised a claim of discriminatory hostile work environment. Complainant's allegations were all linked by a common theme, that her immediate Supervisor harassed her because of her race and made a number of attempts to remove her permanently from his office. Thus, Complainant's allegations, when considered together in the light most favorable to her, stated a viable claim of harassment. The Commission also found that several of the incidents occurred within 45 days of the date she sought EEO counseling, and, as such, her entire hostile environment claim was timely raised. Thus, the Agency's dismissal of the complaint was improper, and the matter was remanded to the Agency for further processing. Bulluck v. Dep't of Veterans Affairs, EEOC Appeal No. 0120114276 (March 14, 2012).

Dismissal Was Improper. Complainant contacted an EEO Counselor on March 8, 2011, and subsequently filed a formal complaint alleging that two Supervisors subjected him to ongoing discriminatory harassment. Complainant cited several specific incidents, including a February 15, 2011 mid-year performance counseling, in support of his claim. He also stated that, after he testified as a witness in a co-worker's EEO complaint, he was subjected to additional retaliatory harassment. The Agency defined Complainant's complaint as including six specific incidents, and dismissed two allegations for failure to state a claim, one allegation as being moot, and four allegations for untimely EEO Counselor contact. On appeal, the Commission stated that the Agency improperly split Complainant's claim of harassment into separate events and treated them in a piecemeal manner. The Commission then found that, in viewing the events as a single claim of harassment, Complainant contacted the EEO Counselor well within 45 days of the most recent event. In addition, while the record showed that the performance counseling document had been removed from Complainant's records, the Commission stated that the counseling was part of the larger claim of harassment. Finally, the Commission found that, when all of the incidents were viewed in the context of Complainant's complaint of harassment, they stated a viable claim. The Commission noted that this was particularly true in the context of Complainant's retaliation claim. Thus, the entire complaint was remanded to the Agency for further processing. Penarendondo v. Dep't of the Army, EEOC Appeal No. 0120120037 (March 8, 2012).

Dismissal Was Improper in Part. Complainant filed a formal EEO complaint alleging that the Agency discriminated and retaliated against him when it issued him a Notice of Removal, and did not provide him with adequate union representation. The Agency dismissed the complaint in its entirety. On appeal, the Commission found that the Agency properly dismissed the issue concerning union representation. Specifically, the Commission found that the denial of union representation failed to state a claim under the EEO process. The Commission concluded, however, that the Agency improperly dismissed the matter concerning the Notice of Removal for failure to timely contact an EEO Counselor. While the record contained a Notice of Removal dated April 20, 2011, the Notice clearly stated that the removal would be deferred until a decision was made on a grievance if one was filed. Thus, the Commission found that there was no element of finality in that Notice. Complainant stated that he subsequently received a Letter of Removal on June 8, 2011, and contacted the EEO Counselor on July 1, 2011. The Commission noted that the Agency failed to submit documentary evidence of the effective date of Complainant's removal, and therefore, failed to meet its burden of providing sufficient information to support its claim as to timeliness. Moore v. U.S. Postal Serv., EEOC Appeal No. 0120120324 (March 8, 2012).

Complaint Improperly Dismissed for Failure to Cooperate. Complainant filed a formal EEO complaint on the bases of race, color, and age when she was passed over for a regular bid position. The Agency commenced an investigation and sent Complainant a request for an affidavit. The Agency notified Complainant that failure to provide the affidavit would result in the dismissal of her complaint. When Complainant failed to submit the affidavit, the Agency dismissed the complaint for failure to cooperate. On appeal, the Commission found that there was insufficient evidence to support a conclusion that Complainant had purposely engaged in delay or contumacious conduct, where the affidavit had been delivered to the wrong post office box and Complainant provided sufficient information to permit management witnesses to respond to her allegations. There was sufficient information to allow for adjudication on the merits without Complainant's affidavit, and the Commission remanded the complaint for further processing. Wilson v. U.S. Postal Serv., EEOC Appeal No. 0120120584 (March 30, 2012).

Complaint Improperly Dismissed for Failure to Cooperate. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to harassment. Complainant listed a number of incidents in support of her claim. The Agency initially accepted the complaint for investigation, and the Investigator requested that Complainant complete an affidavit. Complainant returned the unsigned affidavit with a note indicating that "incorrect information was sent" and stating that she was still in the hospital. The Agency then dismissed the complaint for failure to cooperate. On appeal, the Commission found that the Agency's dismissal was improper. The Commission noted that Complainant replied to the Investigator's request, indicating that she was hospitalized, and provided a telephone number where she could be reached. Thus, the Commission found insufficient evidence to support the conclusion that Complainant intentionally engaged in delay or contumacious conduct. Further, Complainant provided extensive information in her pre-complaint counseling form and formal complaint, and the Investigator obtained affidavits from five witnesses, including four management officials. Thus, the matter was remanded to the Agency for further processing. Jarrett v. U.S. Postal Serv., EEOC Appeal No. 0120120348 (March 16, 2012).

Dismissal for Failure to Cooperate Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it placed her on a Performance Improvement Plan and told her she would be forced to retire. The Agency dismissed the complaint for failure to cooperate, stating that Complainant failed to return a requested affidavit. On appeal, the Commission found that, although the Agency claimed it never received Complainant's affidavit, there was insufficient evidence to support a conclusion that Complainant purposely engaged in delay or contumacious conduct. Instead, Complainant provided information during the informal stage and in her formal complaint that was sufficient to identify the specific actions she was concerned with, the relevant timeframes, and the responsible officials. In addition, Complainant spoke with the Agency's Dispute Resolution Specialist assigned to her case, and provided information as detailed in the Specialist's report. The Agency also collected extensive evidentiary documentation and an affidavit from the responsible official. Thus, the Commission concluded that the Agency should have completed its investigation, and allowed for adjudication on the merits on the claim. Delancy v. U.S. Postal Serv., EEOC Appeal No. 0120111686 (March 13, 2012).

Complaint Improperly Dismissed for Filing a Grievance. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race, national origin and color when it did not select him for a Maintenance Worker position. The Agency dismissed the complaint on the grounds that the union had filed a grievance with regard to the selection for that position. On appeal, the Commission found that the Agency failed to conclusively prove that Complainant elected to pursue the grievance process. According to the record, the union filed a grievance on behalf of 10 employees who were not selected for the position in question, including Complainant. The Commission stated, however, that there was no evidence that Complainant participated in the grievance or authorized the union to act on his behalf. Robbins v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112612 (January 13, 2012).

Issue Improperly Dismissed for Filing a Grievance. Complainant filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him when it issued him a letter of reprimand regarding a safety issue. The Agency dismissed the matter, stating that Complainant had previously raised the claim in a negotiated grievance procedure. On appeal, the Commission found that the dismissal was improper. Complainant stated that the union filed a grievance without his knowledge. Further, there was no evidence in the record that Complainant was involved in filing the grievance. The Commission noted that an agency cannot deny a complainant his statutory and regulatory right to file an EEO complaint because the union exercised its right to file its own grievance pursuant to the terms of a Collective Bargaining Agreement. Thus, the matter was remanded to the Agency for further processing. The Commission affirmed the Agency's dismissal of an allegation concerning the posting of Complainant's EEO contact information, finding that the matter stated the same claim as that raised in a prior complaint. Callahan v. Dep't of the Interior, EEOC Appeal No. 0120110309 (January 5, 2012).

Findings on the Merits and Related Decisions

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

Under the Rehabilitation Act

Denial of Reasonable Accommodation Found. Complainant, a Benefits Authorizer, used a space heater at her work station for many years to help alleviate symptoms and complications of Crohn's disease. After the Agency issued a memorandum limiting employees' use of space heaters, Complainant submitted a written request for authorization to use a heater. The Agency authorized Complainant to use a heater based upon documentation in her personnel file, however, her old space heater was not approved by Underwriters Laboratories (UL). The Agency instructed Complainant to purchase a new heater and removed her old heater from her workstation. Complainant then began bringing in blankets to work and wearing coats and gloves to try to cope with her symptoms. Subsequently, Complainant formally requested that the Agency buy her a space heater to help ease her symptoms. The Agency denied her request, relying on a workplace policy that held employees responsible for purchasing heaters once the Agency authorized their use. Complainant filed a formal EEO complaint alleging, among other things, that the Agency denied her reasonable accommodation. Following an administrative hearing, an AJ found that the Agency denied Complainant a reasonable accommodation when it refused to provide her with a space heater.

On appeal, the Commission found substantial evidence to support the AJ's finding that Complainant's Crohn's disease resulted in a physical impairment that substantially limited one or more major life activities. Complainant testified that her condition was chronic, recurring, severe, and frequent. The condition caused various symptoms that made it painful and uncomfortable to perform an essential function of her job when it was cold. In addition, the condition caused severe abdominal and joint pain, inflammation, anemia, and frequent elimination of waste. Thus, the testimony supported the AJ's finding that Complainant was substantially limited in one or more major life activities, such as food digestion and waste elimination. In weighing this evidence, the Commission rejected the Agency's argument that Complainant's hearing testimony did not constitute substantial evidence, and that only contemporaneous medical documentation and physician testimony would suffice to support a conclusion of discrimination on the basis of disability.

The Commission then concluded that the AJ's finding that the Agency failed to reasonably accommodate Complainant's disability was supported by substantial evidence. The Commission stated that the accommodation of a space heater was reasonable because it removed a workplace barrier, that is, the cold work environment, when the job could be effectively performed with more radiant heat. Further, the accommodation was effective because it addressed Complainant's severe physical pain and inflammation and enabled her to perform her job. The Commission noted that rather than request reasonable medical documentation from Complainant or ask her questions about her limitations in order to identify an effective accommodation, Complainant's Supervisors merely denied her request for a heater. The Commission noted that employers are not categorically prohibited from providing personal-use items as reasonable accommodations. Items that might otherwise be considered personal use may be required as reasonable accommodations where they are specifically designed or required to meet job-related rather than personal needs. In this case, the record did not show that Complainant intended to use the heater as a personal-use item off the job. The Agency was ordered, among other things, to provide Complainant with a space heater, and pay attorney's fees and costs. Hunter v. Soc. Sec. Admin., EEOC Appeal No. 0720070053 (February 16, 2012).

Denial of Reasonable Accommodation Found. Complainant, a Recreation Assistant, filed a formal EEO complaint alleging discrimination on the basis of disability (hearing impairment) when in February 2009 she was denied reasonable accommodation (an interpreter) for mandatory CPR training. Complainant stated that her Supervisor (S1) did not know how to obtain an interpreter, and did not provide one for her. The Agency found that Complainant failed to prove she was denied a reasonable accommodation because the training session was scheduled at the last minute and even though the Agency could not obtain an interpreter in time, Complainant agreed to attend, and successfully completed the training. On appeal, the Commission concluded that the Agency was on notice that Complainant needed to take the mandatory CPR training class in February 2009 and that it needed to obtain an interpreter. Complainant indicated that she asked S1 for an interpreter at the time she learned of the training, and reminded S1 two months prior to the training that it generally took two weeks to reserve an interpreter. The Commission was not persuaded by the Agency's assertion that an interpreter could not be arranged because the CPR training class in question was scheduled at the last minute. According to the record, S1 and another Supervisor were aware that Complainant's CPR certification was near expiration, and Complainant attended the same annual training class the previous year, at which time she was also not provided with an interpreter. The Commission stated that the Agency was obligated to provide Complainant with an interpreter, and no evidence in the record supported that providing an interpreter would have been unduly costly, extensive, substantial or disruptive or that it would have fundamentally altered the nature of the Agency's operation. Thus, the Commission found that the Agency discriminated against Complainant when it failed to provide her with a reasonable accommodation for the mandatory CPR training class. The Agency was ordered, among other things, to provide Complainant with an interpreter for all future mandatory training, and investigate her claim for compensatory damages, as well as provide training to the responsible officials regarding their obligations in providing reasonable accommodation under the Rehabilitation Act. Krewsky v. Dep't of Navy, EEOC Appeal No. 0120102511 (January 12, 2012).

Under Title VII

Sex Discrimination Found. Complainant, a Police Officer, filed a formal EEO complaint based on sex, disability, and reprisal when the Agency denied her request to return to full-time duties as a Police Officer following a stroke. Before returning to work, Complainant's doctor and neurologist found her fit to return to duty. However, she was informed that she would also need to have a psychological examination and physical standard testing, including a treadmill stress test. Complainant and her union challenged this, and agreed with the Agency to have an Agency Neurologist examine her instead. After the Agency Neurologist approved her for full duty, the Agency faxed the Neurologist a new set of standards to apply, under which the Neurologist modified her opinion and noted concerns about arduous physical exertion and carrying people in an emergency. The Neurologist concluded this time that Complainant should not return to full duty. The opinion did not reference the drug Coumadin. When Complainant requested a clarification from the Agency regarding her return, the Agency expressed its concern over her use of Coumadin, a blood thinner, and the risk of her suffering a disabling injury on the job.

Complainant withdrew reprisal as a basis for discrimination, and the AJ granted the Agency's Motion for Summary Judgment with regard to the basis of disability. Following a hearing on the basis of sex discrimination, the AJ issued a decision finding discrimination. The AJ concluded that the Agency's reason for refusing Complainant's request was merely a pretext for sex discrimination, and the Commission affirmed the AJ's findings on appeal. The Commission stated that the record supported the AJ's finding that male Officers were able to resume full duties when released by private doctors, while Complainant, after being released by two private doctors, was required to submit to additional examinations and tests. Secondly, the Commission was not persuaded by the Agency's argument that Complainant's use of Coumadin was what distinguished her situation. While the use of Coumadin could potentially differentiate the Complainant from her male comparators, the Agency requested that Complainant undergo additional examinations and tests before it knew she had been prescribed the drug. Further, the Neurologist testified that she could not recall any male Officers being sent for such tests. The Agency was ordered, among other things, to pay complainant proven pecuniary damages, and provide training for the responsible management officials. Brackett v. Dep't of Veterans Affairs, EEOC Appeal No. 0720110026 (April 3, 2012).

Sexual Harassment Found. Complainant, a Supervisory Financial Management Specialist, alleged, in pertinent part, that the Agency discriminated against her on the basis of sex when she was subjected to hostile work environment harassment by her Supervisor (S1) over a one-and-one-half year period. Following a hearing, the AJ found that Complainant established a claim of sex-based hostile work environment harassment. On appeal, the Commission affirmed the AJ's finding of discriminatory harassment. The Commission cited testimonial evidence regarding S1's negative behavior towards women in the office. Complainant testified that S1's tone of voice would change when he talked to females, and he became more aggressive and unprofessional. Complainant stated that S1 called women "stupid" and "incompetent," and questioned their ability. In addition, Complainant noted that all women were scrutinized and treated as if they did not know their jobs. Two of Complainant's co-workers also testified that S1 called female employees derogatory names, and was "overbearing, threatening, [and] intimidating" to females. Although the Agency argued that the AJ erred in crediting the testimony of Complainant and her witnesses, the Commission found that the Agency failed to show that their testimony lacked credibility such that a reasonable fact finder would not find it credible.

The Commission also concluded that S1's frequent humiliation and intimidation of women unreasonably interfered with Complainant's work performance, and that his conduct was sufficiently pervasive to create an abusive environment. Specifically, S1 exhibited a "pattern of offensive conduct" toward Complainant and women in the office over a 19 month period. Finally, the Commission concluded that the AJ properly imputed liability to the Agency since it had failed to demonstrate that Complainant unreasonably failed to take advantage of available preventive or corrective procedures to avoid harm. The Agency was ordered, among other things, to pay Complainant proven compensatory damages in the amount of $125,000, and restore 253 hours of sick leave to Complainant. Jackson v. Dep't of the Air Force, EEOC Appeal No. 0720110036 (March 13, 2012). (See also Compensatory Damages section for discussion of that award. - Ed.)

Agency Liable for Racial Harassment. Complainant filed a formal EEO complaint alleging, among other things, that the Agency harassed him on the bases of his race and color. Specifically, Complainant stated that his Supervisor (S1) subjected him to a hostile work environment. Complainant cited a number of incidents in support of his claim. The Agency ultimately issued a decision finding that the weight of the evidence supported Complainant's claim that he had been subjected to ongoing harassment. In addition to the numerous incidents cited by Complainant, the investigation revealed that S1 used racial epithets in the workplace. Nevertheless, the Agency concluded that it had no liability for the harassment because the Agency took prompt remedial action when Complainant's allegations were brought to management's attention.

On appeal, the Commission focused on the Agency's determination regarding liability. The Commission noted that Complainant's second-level Supervisor (S2), with Complainant's consent, immediately moved Complainant to another shop while he conducted an investigation of the allegations. As a result of the investigation, S1 was removed from his supervisory position. On appeal, however, Complainant contended that S1 continued to harass him by repeatedly calling in work orders for Complainant and "taunting" him. Complainant stated that he complained about the continuing harassment to S2, who said he would talk with S1, but that the harassment continued. In addition, Complainant reported to S2 that he was being harassed by co-workers who were friends with S1. Finally, Complainant stated that, after S2 retired, management tried to force Complainant back into the area where S1 worked, and the union had to intervene. Therefore, the Commission found that the Agency's actions were insufficient to remedy the situation. Although Complainant was removed from S1's supervision, S1 and his friends continued to harass Complainant. Further, Complainant reported the continued harassment to management, but it did not stop, and Complainant presented evidence of physical and emotional harm he suffered as a result of the continuing harassment. The Commission stated that the Agency's actions neither corrected the effects of the discriminatory harassment, nor stopped it from recurring. Thus, the Agency was liable for the harassment. The Agency was ordered, among other things, to take all necessary steps to ensure that Complainant had no contact with S1, provide Complainant with a designated management official to inform if subsequent acts of alleged harassment occurred, and investigate Complainant's claim for compensatory damages. Cheeks v. Dep't of the Army, EEOC Appeal No. 0120091345 (February 1, 2012).

Sex Discrimination Found. Complainant worked for the Agency as a Witness Protection Inspector. Approximately six months after starting work, Complainant was subjected to a stressful environment by her first level supervisor (Supervisor 2). In order to address the problem, Complainant's second-level supervisor (Supervisor 1), among other things, discussed relocating Complainant to a facility in a different city. In December 2005, Supervisor 1 sent Complainant to the other office to take inventory, and determine whether she wanted to move there. Complainant stated that she was told the position at the other office would probably be a noncompetitive lateral transfer. Complainant subsequently announced that she was pregnant. Complainant stated that she decided that, if she were to take the job, she would move with her two younger children, while her husband would stay behind with Complainant's step-daughter, who was nearing the end of high-school. Complainant applied for the position when it was posted as a lateral reassignment. The Assistant Director testified that he was aware that both Supervisor 1 and the Chief of Witness Security Division supported Complainant's selection for the position. Complainant testified, however, that the Chief subsequently told her that he did not believe the Assistant Director would relocate Complainant away from her family. Supervisor 1 then informed Complainant that she would not get the position because the Assistant Director did not think it was a good "business practice." Complainant stated that when she asked Supervisor 1 whether it was because she was pregnant, Supervisor 1 nodded in agreement. Ultimately, another applicant was selected for the position. The Selectee was not from the Witness Security Division, had not completed training, and did not have a security clearance. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her sex when it did not select her for a lateral transfer.

Following a hearing in the matter, the AJ found that the Agency discriminated against Complainant as alleged. While the AJ found that the Agency articulated a legitimate, non-discriminatory reason for not selecting Complainant, namely that the Assistant Director did not want Complainant to transfer and leave the office because they had upcoming major operations, the AJ ultimately concluded that the reason was a pretext for discrimination. Supervisor 1's conduct prior to Complainant's announcement of her pregnancy indicated that the Agency considered her the most qualified individual for the position. In addition, the Assistant Director provided inconsistent testimony as to whether the Selectee was the most qualified applicant. The AJ noted that neither Supervisor 1 nor the Chief ever mentioned operational needs as the reason for Complainant's non-selection. Supervisor 1 stated that he could not remember an applicant from outside of the Division being selected over an employee from within the Division for a lateral reassignment in the past. In addition, the Chief discussed with the EEO Counselor the fact that there were concerns about separating Complainant from her family. The Commission stated that it was clear from the testimony provided at the hearing and during the investigation that Complainant's family situation was considered when making the selection for the position. Rather than judging Complainant on her qualifications, Agency officials believed her family should not be separated. Further, the Commission noted that the evidence showed that male employees were not subjected to such considerations when relocations were considered. Thus, the Commission concluded that the AJ's decision finding discrimination was supported by substantial evidence. The Agency was ordered, among other things, to pay Complainant $15,000 in non-pecuniary damages, offer to transfer Complainant to the position or a substantially equivalent position, and pay her appropriate benefits, and moving expenses. Doe v. Dep't of Justice, EEOC Appeal No. 0720090006 (February 1, 2012).

Sexual Harassment Found. Complainant, a Mail Processor, filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of sex when she was subjected to a hostile work environment. Complainant stated that a Co-worker made comments about how attractive she was and how when, he got her in the "yellow room," he would turn out the lights. Complainant also stated that on two separate instances when she was in the "yellow room" the Co-worker inappropriately touched her. On the first occasion, the Co-worker grabbed Complainant's face with both hands and kissed her, and on the second occasion, hugged her from behind. Immediately following the last incident Complainant reported the Co-worker's actions to her Acting Supervisor and the Employee Assistance Program Counselor. The Agency told the Co-worker to "cease and desist" all interactions with Complainant, but took no action to physically separate Complainant and Co-Worker. The Co-worker met with Complainant and management officials, and apologized for hugging her, but denied the kiss. The Acting Manager told Complainant that she could put a note in her records regarding the incident, but could not put anything in the Co-worker's file. Complainant filed her formal complaint because she felt the Agency had not done enough to remedy the situation.

The Commission found the Agency liable for the hostile work environment because Complainant was subjected to sexual harassment by the Co-worker and the Agency failed to take prompt corrective action. The Commission initially noted that the only direct evidence about the alleged comments and actions by the Co-worker came from Complainant's affidavit, and that the management officials only stated what the Co-worker told them. Thus, the Commission found that the evidence supported Complainant's version of the events given that she was the sole witness to provide an affidavit. Further, the record showed that after Complainant reported the incidents, the Acting Manager waited one week to discuss the matter with Complainant. The Commission also noted that the Agency's investigation of the situation was insufficient because it began two weeks after Complainant reported the incidents and was merely a questioning of Complainant and the Co-worker separately, and then together, about the alleged harassment. The Commission noted that the Agency's delay in responding to the complaint, particularly in light of the fact that Complainant alleged physical touching, constituted a failure to take prompt corrective action. The Agency was ordered, among other things, to allow Complainant to submit evidence of compensatory damages, request a transfer to another facility, and request the Co-worker's transfer to another work location. Rockymore v. U.S. Postal Serv., EEOC Appeal No. 0120110311 (January 31, 2012).

Religious Discrimination Found. Complainant, a Customs and Border Patrol Officer, filed a formal EEO complaint alleging religious discrimination when, in October 2007, the Agency denied his religious accommodation request to observe the Sunday Sabbath. Prior to the events in question, Complainant had Sunday as his regularly scheduled day off (RDO). In July 2007 the Agency's rotation system changed and Complainant was scheduled to work Sundays. In August 2007, Complainant made a religious accommodation request to the EEO Manager. Complainant did not hear back from the Manager, and contacted the EEO Counselor. In October 2007 the EEO Counselor told Complainant that he could not have Sundays off, but could seek his own swaps with other employees. During the informal EEO complaint process, the EEO Manager offered to allow Complainant to seek his own swaps for the Sunday shifts, to provide him with a different shift on Sundays so that he could attend services, or to reassign him to another team with a different assignment. Complainant informed the Agency that the tenets of his religion required him to refrain from work on Sundays and from soliciting others to work on Sundays. Complainant and the Agency did not reach a solution, and Complainant continued to work Sundays. In June 2008, the Agency's Port Director sought accommodation suggestions from Complainant, and informed Complainant that the Agency was willing to notify employees of the opportunity to voluntarily swap with Complainant to alleviate Complainant having to solicit swaps. The Manager also offered to transfer Complainant to an administrative position which did not require work on Saturdays or Sundays. Complainant rejected these proposals.

Following an investigation, an AJ found that Complainant established a prima facie case of religious discrimination. Further the AJ found the Agency failed to show it could not have reasonably accommodated Complainant without undue hardship from September 2007 through June 2008. However, the AJ found that by June 2008, the Agency offered a reasonable accommodation that would alleviate Complainant's conflict between his work schedule and religious tenets. The Commission affirmed the AJ's finding of discrimination on appeal. The Agency denied Complainant's request to have Sundays off in October 2007, and merely informed Complainant that he could seek his own shift swaps. While Complainant continued to work on Sundays, the Commission noted that the fact that an employee acquiesces to the employer's work rule, continuing to work without an accommodation after the employer has denied the request, should not defeat the employee's legal claim. The Commission stated the evidence supported Complainant's contention that his religion prevented him from working on Sundays, and from asking others to work on Sundays. Therefore, the Commission agreed with the AJ's finding that requiring Complainant to seek his own swaps after he indicated it was against his faith was not a reasonable accommodation. The Commission stated that the AJ correctly determined that a reasonable accommodation would have been for the Agency to facilitate the shift swapping, which the Agency did not provide until June 18, 2008. The Agency was ordered to, among other things, immediately provide Complainant with a reasonable accommodation of his religious beliefs by seeking the voluntary swap of Complainant's Sunday work obligation, and pay Complainant $7,000 in proven non-pecuniary compensatory damages, plus proven attorney's fees and costs. Hyde v. Dep't of Homeland Sec., EEOC Appeal No. 0720110003 (January 6, 2012).

Retaliation

Retaliation Found. Complainant, an Inventory Management Specialist, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when it initiated an investigation into comments she made as a possible violation of the Agency's code of conduct. According to the record, Complainant and the Associate Warden were involved in e-mail discussions regarding the retrieval of Agency property, and the Associate Warden strongly disagreed with Complainant's approach to the matter. In recounting the situation to her Supervisor (S1), Complainant made a profane comment. S1 reported the comment to Complainant's second-level Supervisor (S2) who asked S1 to record the comment in a memorandum. In the memorandum, S1 noted that another employee also made a profane comment. S2 forwarded the memorandum to the Warden who initiated an investigation into Complainant's comments as a possible violation of the Agency's code of conduct regarding profane and obscene language. The investigation sustained the charge and S2 issued Complainant a Notice of Proposed Suspension. S2, however, declined to impose the suspension.

Following a hearing in the matter, an AJ found that Complainant was subjected to retaliation with regard to the investigation. On appeal, the Commission affirmed the AJ's findings. The Commission found that Complainant established a prima facie case of retaliation when the union sent an e-mail to S2, which was copied to Complainant, asserting that S2 was creating a hostile working environment "for people of color." The e-mail was forwarded to the Associate Warden, and, therefore, both S2 and the Associate Warden were aware that Complainant believed she was being subjected to a hostile work environment on the basis of her race. Further, the Commission noted that while the Warden, who had only recently arrived at the facility, was the ultimate decision-maker regarding whether to initiate the investigation, there was considerable evidence that the Warden only made the decision after S2 decided to forward the matter through the supervisory chain. While the Agency maintained that its policy required it to investigate unprofessional conduct, the Commission found that reason was a pretext for retaliation. The record showed that S2 took action to ensure that Complainant's comments were investigated, and did not take similar action regarding profane comments made by two other employees. S2 was notified on at least two occasions that the other employees used profanity, but took no action except with respect to Complainant's statement. While the Agency asserted that Complainant's comments were "racially tainted," that justification was not mentioned by any of the management witnesses as the reason for the investigation. Thus, the Commission concluded that the Agency retaliated against Complainant when it initiated the investigation. The Agency was ordered, among other things, to pay Complainant $15,000 in proven compensatory damages, restore 80 hours of annual leave and 80 hours of sick leave, and expunge any reference to the investigation from Complainant's personnel files. McFadden v. Dep't of Justice, EEOC Appeal No. 0720110034 (April 4, 2012).

Retaliation Found. Complainant, a Mail Processing Clerk, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him when he was not permitted to wear a jacket for severe or inclement weather on two days in February 2010. According to the record, the Senior Manager stated that he did not work in the same facility as Complainant during the time at issue, and had no contact with Complainant. The Supervisor of Distribution Operations indicated that Complainant did not ask her for permission to wear a jacket while working. The Supervisor noted that Complainant worked indoors, but stated that she was not Complainant's supervisor and did not give him any instructions. The Supervisor stated that she was on extended leave during the period in question. The Agency found that it did not discriminate against Complainant. On appeal, the Commission initially found that Complainant established a prima facie case of retaliation, in that he had previously filed several EEO complaints, including a complaint identifying the Manager and Supervisor as the responsible management officials. Further, the Commission determined that the Agency did not meet its burden of production to articulate a legitimate, nondiscriminatory reason for the action. The Commission found the record devoid of any evidence that would relate to the prohibition for Complainant to wear a jacket in inclement weather. The Manager merely indicated that he had no contact with Complainant during the period at issue, and the Supervisor was on extended leave. Thus, the Commission stated that the Agency did not set forth, with sufficient clarity, a legitimate reason why Complainant was prohibited from wearing a jacket during inclement weather, and Complainant, having established a prima facie case, prevailed on his claim of retaliation. The Agency was ordered, among other things, to conduct a supplemental investigation regarding Complainant's claim for damages, and provide the responsible officials with four hours of EEO training. Ifill v. U.S. Postal Serv., EEOC Appeal No. 0120113546 (March 21, 2012).

Per Se Retaliation Found. Complainant worked as a Telephone Operator. According to the record, Complainant became involved in a confrontation with the Shift Supervisor, after which she met with the Telecommunications Manager to discuss the matter. Subsequently, Complainant had a discussion with the Manager after Complainant heard the Manager mention her name to another employee. The Manager testified that she told Complainant that "we have settled our differences, but instead [Complainant] continues to file complaints." The Manager stated that she became upset and told Complainant she could repeat the statement to anyone she wished. Complainant subsequently filed a formal EEO complaint alleging, among other things, that the Manager disclosed information regarding her prior EEO activity to a co-worker. On appeal, the Commission found that the Manager's comments constituted a per se violation of Title VII, because they were likely to have a chilling effect and deter employees from the full exercise of their EEO rights. The Agency acknowledged in a memorandum that the Manager made inappropriate comments to Complainant about her EEO complaints, and that the Manager "may not fully understand her obligations to avoid statements that may have a chilling effect upon the willingness of individuals to…participate in the EEO process." The Commission noted that the Manager was named in Complainant's prior EEO complaints, and the Manager did not dispute that she made the comments in question. The Commission found no discrimination with regard to Complainant's other allegations of disparate treatment. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training to the Manager. Ashby v. Dep't of the Treasury, EEOC Appeal No. 0120090364 (February 27, 2012), request for reconsideration denied, EEOC Request No. 0520120435 (July 12, 2012).

Retaliation Found. Complainant, a former Correctional Officer, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when it failed to select her for a Senior Correctional Officer position, and subjected her to harassment. According to the record, Complainant had filed a prior EEO complaint alleging that another Correctional Officer locked her in a watch tower and forced her to clean toilets. Complainant asserted that when the Warden announced the selections for the Senior Correctional Officer position, he indicated that "people who file EEO complaints…would not have been selected," and "those people that filed EEO complaints don't get promoted." On appeal, the Commission found that Complainant established that the Agency's reasons for not selecting her for the position were, more likely than not, a pretext for retaliation. The Agency acknowledged that the Warden was aware of Complainant's prior EEO activity. In addition, Complainant provided evidence that supported her assertion that the Warden did not want to select people for the position who had filed EEO complaints. Specifically, one of Complainant's co-workers indicated that the Warden stated that Officers who filed complaints should not expect to be promoted. The Commission noted that none of the individuals who were selected had prior EEO activity. The Commission was also not persuaded by the Agency's negative assessment of Complainant's performance, noting that her most recent appraisal was comparable in all respects to those of the Selectees. The Commission also drew an adverse inference from the Agency's failure to retain "vouchers" from Supervisors regarding the applicants' performance, which could have supported Complainant's application. Accordingly, the Commission found the Agency retaliated against Complainant when it did not select her for the position in question.

The Commission also found that Complainant was subjected to a hostile work environment. Complainant asserted that another Correctional Officer failed to respond to her distress call, failed to open a locked door which trapped her, and failed to respond to her request for equipment. The Agency's Investigator failed to ask the Officer about any of the incidents, and another co-worker corroborated Complainant's claim regarding the equipment. While the Agency claimed that it conducted an investigation of the incidents once Complainant reported them, there was no documentation supporting that assertion. Complainant further stated that when she complained about a certain event, a Lieutenant told her "you chose to take you complaint outside the house, now you have to suffer the consequences." The Commission stated that this evidence was not rebutted. Thus, the Commission found the Agency failed to satisfy its burden of showing it investigated and remedied Complainant's harassment allegations. The Agency was ordered, among other things, to offer Complainant a retroactive promotion to the Senior Correctional Officer position or a substantially equivalent position, with appropriate back pay and benefits, and conduct an investigation into her entitlement to compensatory damages. Carson v. Dep't of Justice, EEOC Appeal No. 0120100078 (February 16, 2012).

Retaliation Found. Complainant, an Aerospace Engineer, filed formal EEO complaints alleging, among other things, that the Agency retaliated against him when his Supervisor threatened him because he declined to participate in mediation. Following a hearing, the AJ found that the Agency retaliated against Complainant when it publicly humiliated him for not attending EEO mediation. The Commission affirmed the AJ's finding on appeal. Agency officials were aware that Complainant contacted an EEO Counselor approximately two months prior to the incident. In addition, the Supervisor's yelling at and threatening Complainant regarding the mediation of his EEO complaint were likely to dissuade a reasonable employee from making or supporting a claim of discrimination. While the Agency stated that the Supervisor's comments concerned Complainant's attendance at a team building conference, the AJ properly found that reason to be pretextual. Several witnesses stated that Complainant indicated he did not want to jeopardize his EEO claim by participating in mediation, he did not want to resolve any issues related to his EEO complaint in mediation, management officials were attempting to force him to attend mediation, and he was threatened with discipline when he refused to attend. The Commission noted the Agency's argument that mediation did not go forward and no action was taken against Complainant for his failure to attend. The Commission stated, however, that claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Instead, complainants are protected from any discrimination that is reasonably likely to deter protected activity. Thus, the Commission concluded that the AJ properly found that the Agency retaliated against Complainant. The Agency was ordered, among other things, to pay Complainant $3,000 in proven compensatory damages, and provide appropriate training to the responsible management officials. Malekpour v. Dep't of Transp., EEOC Appeal No. 0720100016 (December 16, 2011), request for reconsideration denied, EEOC Request No. 0520120340 (June 21, 2012).

Official Time

Agency Did Not Meet Its Burden Regarding Official Time. Complainant, a Meat Cutter, filed a formal EEO complaint alleging, among other things, that the Agency denied his request for official time to work on a settlement discussion. The Agency issued a final decision finding that Complainant's request was denied because his "job comes first." On appeal, the Commission found that the Agency failed to meet its burden under the EEOC's regulations of addressing Complainant's request for official time. The record contained a handwritten note that indicated that Complainant's request was denied in part because the meat case had not been filled. The Store Director averred that Complainant requested official time "fairly regularly," and that he had denied Complainant's requests on many occasions. The Director noted that the denials were "always based on work requirements," and "work load and manning needs." In addition, the Meat Manager stated that the Director denied Complainant's request because Complainant needed to stock the meat case, and Complainant's job "came first." The Commission stated that none of the statements indicated why Complainant could not have been granted official time after the meat case was filled, or on a different day. The Commission found no discrimination with regard to Complainant's other allegations of harassment and disparate treatment. The Agency was ordered to require the Director and Manager to read and affirm that they understand the process for requesting official time, and reimburse Complainant for any leave he may have taken as a result of the denial of his request. Dillard v. Dep't of Def., EEOC Appeal No. 0120113984 (February 28, 2012).

Sanctions

AJ's Dismissal of Hearing Request Was Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his national origin and age, and subjected him to a hostile work environment. Complainant cited a number of incidents in support of his claim including various issues regarding his working conditions, assignments, counseling regarding his performance, and the termination of his contract position. The Agency accepted the complaint and conducted an investigation, after which time Complainant requested an administrative hearing. The AJ ultimately denied the hearing request as a sanction for failing to provide complete responses to the Agency's discovery requests. On appeal, the Commission found that the AJ's imposition of a sanction was improper. The Commission noted that Complainant, who was not represented by counsel, indicated that he was not pursuing sex discrimination as a basis, which was responsive to one of the Agency's interrogatories. Further, several of the interrogatories broadly asked Complainant to specifically provide comprehensive information regarding every incident of alleged harassment. The Commission stated that, given the numerous alleged incidents, Complainant's reference to the report of investigation, which contained extensive information and documentation regarding his claim, was sufficiently responsive. Further, the Commission indicated that Complainant's reference to his discovery request which set forth in detail his beliefs about credibility, was a complete response to an interrogatory concerning the credibility of witnesses. Complainant also sufficiently responded to interrogatories regarding damages. Finally, the Commission found that Complainant did not ignore the Agency's discovery requests, and was responsive to them. Thus, the Commission remanded the matter for an administrative hearing. Abulsaad v. Dep't of the Navy, EEOC Appeal No. 0120102379 (March 26, 2012).

Commission Sanctions Agency for Failing to Produce Evidence. Petitioner worked for the Agency as a Management and Program Analyst. In 2003, he filed a formal EEO complaint with regard to a non-selection. The individual who was selected for the position became Petitioner's Supervisor. The Agency subsequently issued Petitioner a 30-day suspension for providing certain information to the EEO Investigator and his attorney. Petitioner filed a mixed case appeal with the Merit Systems Protection Board (MSPB) alleging that the Agency retaliated against him when it issued him the suspension. The MSPB AJ issued an initial decision finding reprisal discrimination. The full Board granted the Agency's petition for review and reversed that finding. The Commission's decision on the prior petition for review found that Petitioner established a prima facie case of reprisal, and that the Agency articulated a legitimate, nondiscriminatory reason for the suspension, that is Petitioner violated a conduct standard by improperly disclosing government information during the EEO process. With respect to pretext, however, the Commission found that the record was not developed as to whether the Agency would have issued the suspension absent a retaliatory motive. The Commission remanded the matter to the MSPB for additional comparator evidence, with specific instructions to the Agency to provide evidence of how it disciplined other employees who violated the same conduct standard. On remand, the Agency submitted a copy of its standards of conduct, as well as documentation concerning two employees who were disciplined for disclosing information during the EEO complaint process. Petitioner submitted documentation concerning a Manager who Petitioner stated had not engaged in EEO activity and was not disciplined for similar disclosures. The Agency noted that it confined its comparator evidence to that which was actually considered in suspending Petitioner, and that Petitioner was aware of other instances when employees were disciplined for unauthorized disclosure of information which did not involve the EEO complaint process.

After reviewing the supplemented record, the Commission differed with the MSPB's final decision and found reprisal discrimination. The Commission noted that the purpose of remanding the matter to the Agency was to supplement the record which was devoid of comparative treatment evidence. The Commission stated that the Agency was instructed to provide evidence regarding how it disciplined other employees who violated the standards of conduct concerning the disclosure of information. The Commission noted that the Agency elected not to provide the information even though it was apparently aware of existing, relevant comparative treatment evidence. Instead, the Agency merely asserted, without proof, that it had disciplined employees for similar violations that did not occur in the EEO process without providing further information about those cases. The Commission found that the Agency failed to comply with the explicit order to produce comparative treatment evidence showing the types of discipline other employees received for similar infractions. Thus, the Commission exercised its discretion to sanction the Agency for its noncompliance, drawing an adverse inference that the requested comparative evidence would have reflected unfavorably on the Agency by showing that the Agency disciplined employees for unauthorized disclosure of government information more harshly when such disclosure occurred in the EEO process. The Commission then found that drawing such an adverse inference against the Agency was sufficient to establish pretext for Petitioner's retaliation claim. Specifically, the Commission determined that the Agency failed to provide any evidence of non-EEO uses of government information it considered unauthorized. The only evidence in the record reflected that the Agency considered the disclosure of such information and documents in the EEO process, to an EEO Investigator and to an attorney, to be unauthorized. The Commission remanded the case to the MSPB to consider all remedies appropriate with a finding of reprisal under Title VII. Smith v. Dep't of Transp., EEOC Petition No. 0320080085 (March 21, 2012).

Decision in Favor of Complainant as Sanction for Agency's Delay Was Proper. Complainant, a Senior Attorney, filed a formal EEO complaint and two subsequent amendments alleging race, sex, and age discrimination when he was not selected for other Senior Attorney positions. Complainant noted that, as a result of the discrimination, he would likely be terminated due to the proposed closing of his facility. A contract Investigator sent the final report of investigation to the Agency in January 2001, but the Agency did not send a copy of the investigative file to Complainant for over two years even though Complainant made several requests for the file. Complainant ultimately requested an administrative hearing, and the AJ ordered the Agency to produce the complaint file and notified the Agency that it could face sanctions if it failed to do so. The Agency did not properly or timely respond to Complainant's motions or the AJ's order to produce the complaint file. Instead, it unilaterally converted what had been for years an EEO complaint into a mixed-case complaint, stating that it had amended the complaint to include an allegation of constructive discharge. The Agency then attempted to issue a mixed-case final decision finding no discrimination before the AJ could exercise his inherent power to determine whether he had jurisdiction over the complaint. Without access to the complaint file, report of investigation, or final Agency decision, the AJ issued an order to retain jurisdiction over the complaint in June 2003. The AJ allowed Complainant, however, to appeal the constructive discharge claim to the MSPB. No appeal was ever filed with the MSPB, and, because no one ever informed the AJ of this fact, the AJ continued to hold the case in abeyance. This contributed to an additional four-year delay in processing the complaint. Eventually, the AJ issued a decision fully in favor of Complainant as a sanction against the Agency for failing to timely complete the investigation.

On appeal, the Commission concluded the AJ did not abuse his discretion in issuing a decision fully in favor of Complainant. Specifically, the Agency was 862 days late in sending Complainant a copy of the report of investigation. Therefore there was a basis in the record and law for the AJ to characterize the Agency's non-compliance as a failure to timely complete the investigation. The Commission noted that its regulations are clear that an investigation is "complete" only when the Agency successfully performs several actions, including providing a copy of the investigative file to the Complainant. The Commission stated that one of the most serious consequences of the delay in completing the investigation was the failure to timely interview the subordinate Agency officials who actually reviewed and evaluated Complainant's application for two of the positions. The Commission also found that the Agency failed to show good cause for the 862 day delay. There was no legal authority permitting agencies to deliberately withhold finished reports of investigation from complainants. The Commission found that the Agency's assertions that it was processing the complaint as a mixed case before the AJ ordered it to produce the complaint file, and that it was holding the complaint in abeyance due to the processing of a related class complaint were not credible. There was no documentary evidence to support the Agency's account of how it processed the complaint, and the Agency gave inconsistent and contradictory accounts of when it allegedly amended and investigated the constructive discharge claim. Finally, the cumulative effect of the Agency's failure to properly process this complaint eroded the integrity of the EEO process to such an extent that it warranted the ultimate sanction of issuing a decision in favor of Complainant. The Agency failed to follow the proper motion practices and procedures for resolving jurisdictional issues before the AJ, and exacerbated the delay initially caused by its failure to timely complete the investigation.

The Commission also found that the AJ did not abuse his discretion in determining that the limited evidence before him supported Complainant's age discrimination claim with regard to one of the non-selections. Complainant, who was more than 40 years old, was found to be highly qualified and was one of three finalists, but was not selected in favor of someone substantially younger than he was. Further, the Selecting Official averred that neither the Selectee nor Complainant had direct experience in the type of work done in that position, but the Selecting Official chose the Selectee because he thought the Selectee would be "more productive" than Complainant. The Commission found that evidence sufficient to create an inference that the Selecting Official denied Complainant an employment opportunity based on a discriminatory criterion, specifically, that older workers were less efficient or productive than younger workers. The Agency was ordered, among other things, to unconditionally offer Complainant a Senior Attorney position, or a substantially equivalent position, with appropriate back pay and benefits, and pay Complainant reasonable attorney's fees and costs. Adkins v. Fed. Deposit Ins. Corp., EEOC Appeal No. 0720080052 (January 13, 2012).

Settlement Agreements

Agency has Burden of Proof in Dispute over Whether Settlement Agreement Violates a Pre-existing CBA. Complainant entered into a settlement agreement with the Agency resolving his EEO complaint. Pursuant to the terms of the agreement, the Agency was to award Complainant a specific bid job. When the Agency did not place Complainant in the agreed upon bid job, he alleged that the Agency breached the settlement agreement. The Agency determined that the agreement violated the provisions of the collective bargaining agreement (CBA). The Agency noted that the settlement agreement would be set aside, and the underlying complaint reinstated. On appeal, the Commission originally found the Agency's final decision proper. The Commission subsequently reconsidered the matter on its own motion, noting that the case raised an issue regarding which party has the burden of proof when there was a dispute over whether a settlement agreement violated a pre-existing CBA. The Commission sought to clarify the previous decision's application of the decision in Pyles v. U.S. Postal Serv., EEOC Request No. 05920044 (April 22, 1992), and stated that Pyles stood for the principle that the Commission will examine whether a settlement agreement does in fact violate a relevant CBA before setting aside the settlement. The Commission went on to find that the Agency failed to meet its burden of establishing that the agreement was in violation of the CBA. While the Agency asserted that the agreement violated the CBA because the position at issue should have been posted for bid, the record did not clearly support that contention. Complainant stated that he received the highest score for the position when he initially applied, and should have been awarded the position. Further, a union official averred that the agreement was not in conflict with the CBA, and that Complainant was entitled to the position. Thus, the Commission remanded the matter to the Agency to implement the terms of the settlement agreement. The Commission emphasized the importance of having the Agency's Labor Relations personnel review agreements prior to execution in order to avoid conflicts with relevant CBAs. Iglesias v. U.S. Postal Serv., EEOC Request No. 0520110503 (March 30, 2012).

Settlement Agreement Void for Lack of Consideration. Complainant and the Agency entered into a settlement agreement on July 12, 2011, that provided, in pertinent part, that the Agency would reassign Complainant from the Contracting section to the Transportation section. After receiving a letter from Complainant, the Agency issued a final decision finding that it had complied with the terms of the agreement. Specifically, the Agency stated that it reassigned Complainant prior to the execution of the settlement agreement. On appeal, the Commission found that the settlement agreement was void for lack of consideration, stating that the Agency only provided as consideration something it had previously provided. The Agency acknowledged that it had already transferred Complainant to the Transportation section, and, as such, incurred no legal detriment as a result of the settlement agreement. Pagan-Nunez v. Dep't of the Army, EEOC Appeal No. 0120120257 (February 27, 2012).

Settlement Agreement Void. The parties entered into a settlement agreement that provided, in pertinent part, that Complainant would be a PTF Mail Handler "currently awaiting PTR position in Clerk Craft," and that management would continue to communicate with her. On appeal, the Commission found that the settlement agreement was void due to a lack of consideration, and was too vague to enforce. The Commission stated that the agreement, specifically the provision regarding communication, provided Complainant with nothing beyond that which the Agency was already obligated to do. In addition, there was no substantive Agency obligation, and the agreement, at best, provided only an illusory benefit to Complainant. The Commission found that the Agency did not set a time frame for placing Complainant into a PTR position, and did not specifically state that Complainant would even be entitled to such a position when one became available. Williams v. U.S. Postal Serv., EEOC Appeal No. 0120112195 (February 24, 2012).

Settlement Agreement Void. Complainant and the Agency entered into a settlement agreement that provided, among other things, that Complainant would be scheduled "consistently" for vacant routes when otherwise scheduled, and that if Complainant failed to "consistently" demonstrate her availability, she could forfeit those scheduling opportunities. On appeal, the Commission found that the term "consistently" was too vague to permit enforcement of the agreement. In addition, the Commission concluded that there did not appear to be a meeting of the minds as to what that term meant and the effect of Complainant not being "consistently" available to work vacant routes. Complainant apparently believed that her non-availability did not preclude her from all scheduling opportunities, while the Agency believed that, once Complainant was consistently unavailable, she was precluded from all scheduling opportunities. The Commission noted that a binding settlement agreement requires a contemporaneous meeting of the minds. Thus, the matter was remanded to the Agency to reinstate the underlying complaint for processing. Lukas v. U.S. Postal Serv., EEOC Appeal No. 0120103165 (February 23, 2012).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement in December 2010 that provided, in pertinent part, that Agency management would provide Complainant an Overtime Updated Tracking Sheet for the months of October, November, and December 2010 by January 13, 2011. The agreement further noted that after the Sheets had been provided, Complainant, and her representative would notify the Postmaster of any discrepancies. Subsequently, Complainant notified the Agency that it failed to provide her with a complete copy of the December Tracking Sheet, and that the October and November Sheets were not corrected. On appeal, the Commission found that the Agency's failure to perform in accordance with the deadlines specified in the agreement constituted a breach. While the Agency stated that it provided the documents to Complainant on January 5, 2011, the record showed that the Postmaster failed to submit the complete month of December, and only provided the first 20 days of the month. The Commission noted that the Agency had time to remedy, and substantially comply with the agreement by providing the last 11 days of December, but did not do so. The updated copies of the October, November, and December Sheets were conditions to be met in order for Complainant, her representative, and the Postmaster to meet and discuss potential discrepancies. The Commission ordered the Agency to reinstate the underlying EEO complaint for processing. Crutcher v. U.S. Postal Serv., EEOC Appeal No. 0120112172 (February 3, 2012).

Stating a Claim

(In the following cases, the Commission found complainants' claims to be cognizable. -Ed.)

Robinson v. Dep't of Transp., EEOC Appeal No. 0120120704 (March 26, 2012) (Complainant's allegation that the Agency permanently reassigned her to another Division stated a viable claim of retaliation. Complainant alleged that the new position involved significantly more lower-level administrative support work than her former position, impacted her ability to receive career ladder promotions, and exposed her to a greater chance of being affected by a reorganization or reduction in force. When viewed in the context of the allegations concerning the same Supervisor raised in the earlier complaint, Complainant stated a viable claim of retaliation. The Commission also noted that the Agency may have procedurally erred in not accepting the claim as an amendment to Complainant's prior complaint, and instructed the Agency to consolidate the claims if possible).

Jefferson v. U.S. Postal Serv., EEOC Appeal No. 0120120086 (March 23, 2012) (Complainant's allegation that the Agency discriminated against her when it failed to investigate an incident involving an envelope she received from another employee which contained a racial and sexist slur and the phrase "I'll get you," stated a viable claim of harassment. The Agency's alleged tolerance of the racial epithet in combination with a significantly threatening comment was sufficiently severe to state a claim of discriminatory harassment. The Agency's assertion regarding an ongoing investigation into the matter went to the merits of Complainant's claim and was not relevant to the issue of whether Complainant set forth an actionable claim).

Foster v. U.S. Postal Serv., EEOC Appeal No. 0120120261 (March 9, 2012) (the Agency mischaracterized the nature of Complainant's claim of disability discrimination when it defined the complaint as concerning the Supervisor's questioning Complainant about going to the rest room too often. Complainant explained that she had to use the rest room because she had an IV drip a few days before and her feet were swollen from having to sit for 8 hours in violation of her medical restrictions. Thus, a fair reading of the formal complaint reveals that Complainant was alleging that the Agency failed to provide her with reasonable accommodation).

Rohan v. U.S. Postal Serv., EEOC Appeal No. 0120114303 (March 9, 2012) (Complainant's allegation that the Agency discriminated against him when it forced him to accept a PTF Clerk position stated a viable claim of discrimination. While the Agency stated that the action was a voluntary downgrade, Complainant maintained that he repeatedly advised the Agency that it had failed to correctly identify the issue in his claim, and the record contained documentation in support of that assertion. Complainant conceded that he elected to accept the position, but argued that he was forced to do so because of the conduct of Agency management officials).

Ambrose v. U.S. Postal Serv., EEOC Appeal No. 0120113989 (March 6, 2012) (Complainant's claim that she was forced to work long hours for approximately two weeks, with a twofold increase in workload constituted a harm with respect to a term, condition, or privilege of employment such that it stated a viable claim of discrimination).

Ballard-Collins v. Dep't of the Army, EEOC Appeal No. 0120120047 (March 6, 2012) (Complainant alleged a series of tangible and intangible actions, including her Supervisor denying her requests for compensatory time, accusing her of falsely requesting compensatory time, drafting a disciplinary action against her, and refusing to correct the leave calendar, which stated a viable claim of hostile work environment harassment. The Agency improperly treated the matters raised in the complaint in a piecemeal manner instead of as incidents supporting a single claim of ongoing harassment); see also McCarty v. U.S. Postal Serv., EEOC Appeal No. 0120114329 (March 9, 2012) (the Agency improperly fragmented Complainant's claim and dismissed parts of it on various procedural grounds. When viewed together, Complainant's claim that he was subjected to consecutive disciplinary actions and false accusations, and denied work based on a perceived medical condition, were part of a series of alleged discriminatory and retaliatory events that alleged an ongoing pattern of harassment).

Vaughan v. Dep't of Transp., EEOC Appeal No. 0120114326 (March 5, 2012) (the Agency improperly dismissed Complainant's claim that, after she was questioned about her religion, she was subjected to a hostile work environment by her Supervisor. Complainant provided a lengthy narrative of incidents concerning her Supervisor which were sufficient to state a claim of discriminatory harassment); see also Knight v. Dep't of Veterans Affairs, EEOC Appeal No. 0120114187 (March 5, 2012) (Complainant's allegation that her Supervisor made negative comments to her, issued her an unacceptable mid-year performance evaluation and a proposed admonishment, and accused her of insubordination stated a viable claim of discriminatory harassment).

McGruder v. U.S. Postal Serv., EEOC Appeal No. 0120114269 (February 24, 2012) (Complainant's allegation that the Agency discriminated against her when it denied her request for a schedule change related to her Family Medical Leave Act claims stated a viable claim of race discrimination. Complainant asserted that she sought a change of schedule and did not get one, while employees of different races were granted similar changes in schedule. Complainant's claim of disparate treatment, therefore, is not a collateral attack on the Family Medical Leave Act process).

Love-Boykin v. U.S. Postal Serv., EEOC Appeal No. 0120114263 (February 24, 2012) (Complainant's allegation that the Agency discriminated against her when it did not post a Postmaster Secretary position stated a viable claim. Complainant alleged that the Agency decided not to post the position because management knew she had more seniority than the incumbent, and the incumbent was favored because he was a white male. Complainant also stated that the Agency's decision was based on retaliatory animus towards her for her prior EEO activity. While Complainant stated that management's actions violated the collective bargaining agreement, a fair reading of her allegations indicated that this information was provided to show that the Agency deviated from its usual procedures).

Lowe v. Dep't of the Navy, EEOC Appeal No. 0120114174 (February 23, 2012) (the Agency improperly dismissed Complainant's complaint of discrimination alleging that the Agency converted him to a GS-12 position instead of a GS-13 position. The Agency's assertion that Complainant voluntarily accepted reassignment to a National Security Personnel System position goes to the merits of Complainant's complaint and is irrelevant to the issue of whether he has stated a viable claim under Title VII).

Voss v U.S. Postal Serv., EEOC Appeal No. 0120113871 (January 31, 2012) (Complainant's claim that the Agency discriminated against him when it changed his start time from 5:50 a.m. to 9:30 a.m. stated a viable claim. While the Commission has affirmed the dismissal of claims involving minor changes in start time, the change in this case of over three and one-half hours resulted in a far different work schedule).

Bryant v. Dep't of Justice, EEOC Appeal No. 0120113916 (January 31, 2012) (Complainant's claim that the Agency targeted him for investigation by the Office of Professional Responsibility because of his prior EEO activity stated a viable claim. Complainant was not challenging the results of the investigation or the process itself, and his allegations, if true, could have a chilling effect on an employee's willingness to engage in the EEO process).

Guice v. U.S. Postal Serv., EEOC Appeal No. 0120113857 (January 30, 2012) (Complainant stated a viable claim of discriminatory/retaliatory harassment. While the Agency defined the claims as only alleging that Complainant was placed on the "deems desirable" list without prior notification, Complainant specifically referenced her "pre-complaint" when asked to explain her claim. The EEO Counselor's report shows that in addition to the "deems desirable" list issue, Complainant indicated that she was having difficulty with her leave, management was not accommodating her medical restrictions, and she was placed off work. The Commission stated that those allegations, raised during counseling and incorporated by reference in the formal complaint, stated an ongoing claim of harassment); see also, Jagdhane v. Gen. Serv. Admin., EEOC Appeal No. 0120110457 (January 27, 2012) (the Agency improperly dismissed Complainant's claim of sex and age discrimination. The formal complaint, standing alone, did not sufficiently state a claim. The Commission stated, however, that, in defining the issues raised in a complaint, the Agency should also review the EEO Counselor's report. In this case, information contained in the Counselor's report made clear that Complainant was alleging that she was improperly denied specific details and promotions, such that Complainant had shown an injury or harm to a term, condition or privilege of employment for which there was a remedy); Tesoro v. U.S. Postal Serv., EEOC Appeal No. 0120113672 (January 17, 2012) (While Complainant indicated in his formal complaint that his prior protected activity was "union steward," the pre-complaint counseling report and EEO ADR Inquiry report noted that Complainant was alleging retaliation for filing two prior EEO complaints. In order to clearly define the issues of a complaint, the Agency should not only look at a formal complaint but also consider its pre-complaint documents. Thus, the Agency's dismissal of the complaint for failure to state a claim was improper); Lee v. U.S. Postal Serv., EEOC Appeal No. 0120113980 (March 23, 2012) (where there is a thematic nexus between issues in the formal complaint and claims that were in the pre-complaint not presented in the formal complaint, those pre-complaint issues should not be considered abandoned and the issues in the formal complaint should be construed as one part of the entire claim. Complainant's complaint was in essence a continuation of the harassment claim she started during the pre-complaint process, and thus, the issues raised in the pre-complaint stage were not abandoned and Complainant stated a viable claim under the EEOC regulations).

Dykes v. U.S. Postal Serv., EEOC Appeal No. 0120111438 (January 13, 2012) (the Agency improperly dismissed Complainant's complaint for failure to state a claim. While the Agency analyzed Complainant's allegations as discrete acts, Complainant's assertions that she was not allowed to perform certain duties or have a "no lunch" workday, had her starting time changed, and was asked to provide documentation for the use of a cane stated an actionable claim of discriminatory harassment); see also, Kenawy v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113725 (January 13, 2012) (Complainant's allegations that his Chief micro-managed his assignments, delayed his access to a necessary database, and failed to assign him acting Chief duties, when considered with his assertion that he received slanderous e-mails and had his staff reduced, stated a viable claim of discriminatory harassment. If true, such behavior could reasonably interfere with Complainant's work performance and create a hostile work environment).

Bennett v. U.S. Postal Serv., EEOC Appeal No. 0120111470 (January 5, 2012) (Complainant's claim that she was issued a Notice of Proposed Removal, her supervisory duties were abruptly changed, and she was confined to the front office of her facility stated a viable claim of retaliatory harassment. Taken cumulatively, the incidents were clearly adverse and would dissuade a reasonable employee from making or supporting a charge of discrimination).

(In the following cases, the Commission affirmed the Agency's determination that the Complainant failed to state a claim. -Ed.)

Cote v. Dep't of the Air Force, EEOC Appeal Nos. 0120110601 & 0120121032 (March 28, 2012) (Complainant's allegations that the Agency discriminated against him when it placed his application for an extension of a mandatory separation date on hold pending a successful military fitness test, and that the Agency's Physical Fitness Assessment Program was discriminatory were properly dismissed for failure to state a claim. Complainant's claims addressed matters that were strictly military in nature, and were not within the purview of the EEO process. The actions applied only to uniformed members of the military, and did not apply to Complainant in his civilian employment status).

Morton-Hamlet v. U.S. Postal Serv., EEOC Appeal No. 0120114003 (February 3, 2012) (the Agency properly dismissed Complainant's claim of discrimination alleging that her Supervisor told another manager to deny a change in schedule that Complainant signed for a co-worker because Complainant was not a union steward. Complainant's claim concerned her status as a union steward rather than an employee and, therefore, the proper forum for Complainant to have raised the matters was within the negotiated grievance process. Complainant stated that the matter involved management's conversations as to "who is a steward and who the membership should go to for union business," and should be addressed within the process delineated by the negotiated bargaining agreement).

Becerra v. Dep't of the Navy, EEOC Appeal No. 0120083490 (January 13, 2012) (The Agency properly dismissed Complainant's complaint alleging that, on one occasion, he was required to wear a uniform to roll call. Complainant failed to state a claim because he did not allege that he suffered harm or loss with respect to a term, condition or privilege of employment).

Summary Judgment

Summary Judgment Was Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his race when it improperly processed his security clearance leading the Agency to rescind a job offer to him. According to the record, Complainant applied for the position of System Engineer, Electrical (Nuclear), and indicated that his prior job ended because it was a "temporary service." Complainant received a conditional offer for the job which was contingent upon, among other things, the satisfactory results from a security investigation. The Agency unit responsible for conducting the background investigation contacted Complainant's previous employer, who indicated that Complainant had been discharged for timecard fraud. Complainant was asked to respond to the discrepancy between his account and that of his previous employer, and while Complainant denied committing fraud, the only proof he could offer was the fact that he had received three months of unemployment compensation. Subsequently, another Agency unit rescinded Complainant's job offer because he did not meet the Agency's nuclear access requirements for employment due to his statements concerning his prior employment. The state unemployment compensation agency ultimately found that Complainant did not willfully make a false statement or representation regarding timecard fraud. Nevertheless, the Agency upheld its decision to deny Complainant nuclear access authorization.

Following an investigation, the AJ granted the Agency's motion for summary judgment and issued a decision without a hearing finding no discrimination. The Commission affirmed the AJ's findings on appeal. The Commission initially assumed that the AJ prematurely issued his decision one day early, and therefore, considered Complainant's argument in opposition to the motion for summary judgment. The Commission noted that it could review whether the Agency, in not hiring Complainant because it denied him access authorization, hired individuals of other races who either did not go through the authorization process at all or were denied such authorization after an investigation. On that issue, the Commission found that the record was adequately developed. The record contained adequate comparator evidence, specifically, that over a two-year period, the Agency rescinded four job offers, including those of a Caucasian and multi-race applicant, because the applicants did not meet nuclear minimum suitability. The Commission noted that it could not address the substance and merits of the Agency's decision to deny Complainant a security clearance, or scrutinize whether the Agency should have done more during its investigation. Thus, the Commission found that the AJ did not err in issuing summary judgment because there were no genuine issues of material fact in dispute. The comparator evidence showed that the Agency consistently rescinded job offers to applicants of different races for the same position after the Agency determined that the applicants did not meet nuclear minimum suitability. Thus, the Commission stated that Complainant did not establish a prima facie case of discrimination. Sims v. Tenn. Valley Auth., EEOC Appeal No. 0120101406 (January 12, 2012), request for reconsideration denied, EEOC Request No. 0520120312 (July 26, 2012).

Summary Judgment Was Improper. Complainant was hired as a Registered Nurse, subject to a one-year probationary period. According to the record, a patient's wife requested that a Licensed Practical Nurse (N1) provide her husband with pain medication. Complainant was not assigned to provide direct care to the patient, but was present when the request was made. N1 told the patient's wife that her husband would have to go to the nurses' station to get the medication, and an argument ensued. The Associate Chief Nurse stated that the wife reported the incident, and told him that Complainant and N1 were rude to her and her husband. In addition, the record contained a Report of Contact reflecting a patient/family complaint about the matter. An Administrative Board of Investigation (AIB) concluded that there was no evidence that Complainant or N1 abused or breached the "therapeutic boundaries" toward the patient or his wife. The AIB did note, however, that Complainant and N1 used poor judgment in addressing the request. Complainant was subsequently removed from his position, and filed a formal complaint of sex and age discrimination. N1 was not terminated over the incident.

Following an investigation, the AJ issued a decision without a hearing in favor of the Agency. On appeal, the Commission found that there were material facts in dispute that required resolution at a hearing. The Commission stated that the AJ's conclusion unduly narrowed the disparate treatment analysis, and focused on minor distinctions between Complainant's and N1's job descriptions rather than the conduct deemed comparable under the circumstances of the case. Further, while the AJ found that Complainant "directly supervised" N1, Complainant asserted that he was not acting as N1's supervisor and presented evidence that a Charge Nurse was present at the time in question. Further, Complainant argued that N1 had a pattern of misconduct involving patient abuse, and that the Agency ignored the misconduct of a younger, female employee and targeted him as an older male nurse. Complainant also noted that there were discrepancies in the Associate Chief Nurse's statements regarding whether N1 was disciplined, as well as the reasons given by the Agency for his termination. The Commission concluded that there was conflicting evidence on the critical issues of the disparity in discipline between Complainant and N1, and whether Complainant was directly supervising N1. Further, the Commission stated that it was not appropriate in a grant of the Agency's motion for summary judgment to resolve the conflicts in the Agency's favor. Thus, the matter was remanded for a hearing. O'Neal v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112690 (January 11, 2012).

Timeliness

EEO Counselor Contact Was Timely. Complainant applied for the position of Production Controller. He interviewed for the position on May 4, 2011, and subsequently took a leave of absence from May 23, 2011, until August 1, 2011. Complainant stated that shortly after his return, he learned from an e-mail that he was not selected for the position. Complainant contacted an EEO Counselor on August 22, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against him on the bases of his age and prior EEO activity when it did not select him. The Agency dismissed the complaint for failure to timely contact an EEO Counselor stating that it sent an e-mail to Complainant on May 26, 2011, notifying him of the non-selection. On appeal, the Commission found that the dismissal was Improper. The Commission noted that the Agency did not have any evidence that Complainant opened the e-mail notifying him of his non-selection prior to his return to work in August. While Complainant reported to work for one hour on May 26, the Agency did not show that Complainant opened the e-mail during that time. Complainant stated on appeal that he did not get the e-mail until after his return to work on August 1, and the EEO Counselor's report showed that Complainant did not learn of his non-selection until August. Thus, the Commission found that Complainant timely contacted the EEO Counselor in this case. Mendoza v. Dep't of the Army, EEOC Appeal No. 0120120599 (March 21, 2012).

Complainant Was Entitled to Waiver of the Time Limit for Contacting EEO Counselor. Complainant, a Probationary Management Assistant, filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her sex when it terminated her from her position. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant initiated EEO contact on September 15, 2011, which was more than 45 days after her December 2010 termination. On appeal, the Commission initially noted that the record supported a finding that Complainant contacted an Agency EEO office at the number listed in the termination letter as early as December 2, 2010, with the intent to pursue the EEO complaint process. At that time, Complainant spoke with the EEO Specialist, the same person who conducted her employee training program about the EEO process when she joined the Agency, and discussed filing an EEO complaint. Complainant asserted that the EEO Specialist dissuaded her from filing a complaint because she was a probationary employee, and advised her to contact the Employee Relations Specialist or the union to file a grievance. Complainant submitted a telephone log reflecting various contacts with the Agency EEO office in December 2010. The Commission found that Complainant followed the directions from the Agency and contacted the EEO office, which misdirected her from timely contacting an EEO Counselor. Thus, Complainant was entitled to a waiver of the time limit to contact a Counselor. Phillips v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120243 (March 7, 2012).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. Complainant contacted an EEO Counselor on May 22, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against her on the basis of her sex when it did not select her for a Deputy Chief position in March 2006 and March 2007. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission noted that Complainant submitted an affidavit during counseling explaining the delay, stating that the positions were not advertised and no applications were solicited. Complainant acknowledged that she was aware that other individuals were placed into the positions, but stated that she did not know that she herself was considered for the positions and rejected until April 25, 2011, during testimony in another matter. Complainant then contacted an EEO Counselor just over two weeks later. Given the facts of the case, the Commission found that Complainant did not develop a reasonable suspicion of alleged discrimination until learning that she was considered for the positions in April 2011. The Commission noted that the Agency did not deny Complainant's assertions that the positions were not advertised, and that she was not aware of how the selections were made or that she was considered for the positions until the April 2011 testimony. The Commission found it unfortunate that so much time had passed in the case, but concluded that the limitation period for seeking counseling did not begin to run until Complainant developed a reasonable suspicion of discrimination. Koppe v. Dep't of Justice, EEOC Appeal No. 0120120107 (February 27, 2012); see also Western v. U.S. Postal Serv., EEOC Appeal No. 0120120055 (March 9, 2012) (While Complainant returned to his position from his temporary assignment prematurely on April 22, 2011, he did not develop a reasonable suspicion of discrimination until learning in May 2011 that other employees did not return at the same time, and, as such, his contact with the EEO Counselor on June 10, 2011 was timely).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. Complainant contacted an EEO Counselor in July 2010, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it reduced her work hours. The Agency defined the issue as concerning the reduction of Complainant's work hours effective April 13, 2010, and dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission initially noted that a fair reading of the complaint, along with the related EEO counseling report, revealed that Complainant was alleging that the reduction in her work hours was part of a larger pattern of harassment that included being regularly bullied, allowing improper access to her medical records, telling employees not to talk to her, denying her right to leave, and being physically aggressive toward her. Complainant asserted that the harassment continued through the date on which she sought EEO counseling. Thus, the Commission found the Agency erred in dismissing the complaint. Richardson v. U.S. Postal Serv., EEOC Appeal No. 0120111122 (February 1, 2012).

EEO Counselor Contact Was Timely. Complainant, an applicant for employment, contacted an EEO Counselor on October 4, 2010, and subsequently filed a formal complaint alleging that the Agency discriminated against him on the bases of his race and prior EEO activity when it shared negative information regarding a polygraph examination he took in April 2009. Complainant further alleged that this information resulted in his non-selection for a position with the Secret Service in October 2009. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that Complainant was not aware of the alleged discrimination until September 2010. Specifically, Complainant stated that he received a response to his Freedom of Information Act request which contained the reasons for his non-selection in September. At that time, Complainant learned that the Federal Bureau of Investigation shared the results of his polygraph examination, which he felt was in retaliation for the EEO complaint he had filed relating to the exam. Thus, the Commission found that Complainant did not develop a reasonable suspicion of discrimination until September 2010, and then promptly sought EEO counseling well within the 45-day limitation period. Brown v. Dep't of Justice, EEOC Appeal No. 0120113903 (January 27, 2012).

Formal Complaint Timely Filed. Complainant filed a formal EEO complaint dated September 19, 2011, alleging that the Agency subjected her to discriminatory harassment. The Agency dismissed the complaint as untimely, stating that Complainant received the Notice of Right to File a Formal Complaint on September 10, 2011, but did not file her complaint until September 27, 2011, as evidenced by the postmark on the envelope. On appeal, the Commission found that the Agency failed to meet its burden of obtaining sufficient information to support its determination as to timeliness of Complainant's complaint. Specifically, the Commission noted that the record included an envelope addressed to the Agency's EEO complaint filing address which was postmarked September 19, 2011, the same date on the formal complaint. This indicated that the formal complaint was filed by mail within the requisite 15-day period. There was no indication as to what was contained in the other envelope postmarked September 27, and the Agency provided no reason why the Commission should not presume the complaint was first filed in the September 19 envelope. Thus, the matter was remanded for further processing. Coleman v. U.S. Postal Serv., EEOC Appeal No. 0120120619 (March 16, 2012).

Formal Complaint Timely Filed. Complainant contacted an EEO Counselor, and subsequently filed a formal complaint on January 21, 2011, alleging that the Agency discriminated against him with regard to an assignment. The Agency dismissed the complaint as untimely, stating that Complainant received the Notice of Right to File a Formal Complaint on December 21, 2010. According to the record, the EEO Counselor sent the Notice to Complainant via the United Parcel Service (UPS), and the Agency submitted information showing that a UPS package was delivered to Complainant's home address on December 21, 2010. Complainant, however, stated that neither he nor his wife received the Notice on that date. On appeal, the Commission stated that the signature on the UPS delivery notice was not legible, and it was unclear who received the Notice. Complainant indicated that he contacted the EEO Counselor on January 14, 2011, after he did not receive a Notice. Thus, the Commission found that Complainant's formal complaint was filed in a timely manner. Goodson v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112431 (March 14, 2012).

Adequate Justification Found for Excusing Untimely Filing of Complaint. Complaint filed a formal EEO complaint on August 4, 2010, alleging that the Agency discriminated against her when it ignored her medical documentation and denied her reasonable accommodation. According to the record, the Agency mailed Complainant a notice of her right to file a formal complaint which was received at Complainant's address of record on July 1, 2010. Therefore, the Agency dismissed the complaint as untimely. On appeal, the Commission noted that, generally, a certified mail return receipt signed by an individual at the Complainant's residence on a certain date establishes a presumption of constructive receipt by the Complainant on that date. In this case, however, Complainant stated that her 15-year old daughter signed for the notice. The Commission found that Complainant's daughter was not a household member of suitable age and discretion to accept important legal documents. Further, Complainant promptly responded to the Agency's notice once she was made aware of it on August 1, 2010. Thus, the Commission found adequate justification for excusing Complainant's untimely filing of her formal complaint. Meza v. U.S. Postal Serv., EEOC Appeal No. 0120103757 (January 24, 2012).

Commission Finds Sufficient Grounds to Excuse Untimely Filing of Complaint. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his age when he resigned in lieu of termination. The Agency dismissed the complaint as untimely. On appeal, the Commission noted that while Complainant received the Notice of Right to File a Formal Complaint in November 2010, he did not file his formal complaint until April 2011. Complainant asserted, however, that he felt discouraged from continuing his complaint after talking with the EEO Counselor. Complainant contacted his Senator regarding the matter, and, as a result of the Senator's inquiry, the EEO Counselor admitted telling Complainant that the EEO complaint process could be burdensome and time consuming. Subsequently, another Counselor contacted Complainant and sent him a second formal complaint form on April 8, 2011. Complainant was told at that time that he must file the complaint form with the Complaints Processing Center, and he did so on April 11, 2011. The Commission concluded that Complainant did not sit on his rights in this matter, promptly sought assistance from his Senator, and submitted his complaint form to the Complaints Processing Center in a timely manner when instructed to do so. Thus, the Commission exercised its discretion and excused Complainant's untimely filing. Rush v. Dep't of Homeland Sec., EEOC Appeal No. 0120113868 (January 23, 2012).

Limitation Period for Filing Formal Complaint Extended. Complainant contacted an EEO Counselor alleging that the Agency discriminated against her on the bases of her disability and prior EEO activity. The Agency dismissed the complaint as being untimely, stating that Complainant received a Notice of Right to File a Discrimination Complaint on April 22, 2011, but did not file her formal complaint until May 24, 2011. The Agency acknowledged that Complainant's attorney notified the EEO Counselor of his representation on April 22, and that Complainant had informed the EEO Counselor that she had retained counsel two days previously. The record showed that on April 22, Complainant's attorney requested that the Agency send all correspondence to him, and notified the EEO Counselor on May 11 that he had not yet received a Notice of Right to File a Formal Complaint. In addition, the record showed that Complainant was hospitalized on April 21, 2011, the day before her husband signed for the Notice. On appeal, the Commission found sufficient justification to extend the 15-day limitation period for filing a complaint given Complainant's medical condition, Complainant having retained a new attorney for representation one day before she was sent the Notice, and the EEO Counselor's failure to provide Complainant's new attorney with the Notice until May 11. Tarlow v. Dep't of Commerce, EEOC Appeal No. 0120113673 (January 6, 2012).

Complaint Properly Dismissed as Untimely When Sent to the Wrong Address. Complainant contacted an EEO Counselor alleging that the Agency discriminated against her when it did not allow her to return to work. According to the record, Complainant received the Notice of Right to File a Formal Complaint on August 30, 2010. Although the Notice indicated that Complainant had to file a formal complaint within 15 calendar days, she did not file her complaint until August 8, 2011. The Agency dismissed the complaint as untimely, and the Commission affirmed the dismissal on appeal. The Commission noted that Complainant initially and incorrectly filed her formal complaint with its Office of Federal Operations rather than the Agency. The record showed that the Agency provided Complainant with the proper Agency address for filing her complaint. The Commission stated that, when provided with the proper address, filing a complaint at the wrong address does not constitute a proper filing, and Complainant did not offer any justification to warrant an extension of the applicable limitation period. Pinckney v. U.S. Postal Serv., EEOC Appeal No. 0120114299 (February 21, 2012), request for reconsideration denied, EEOC Request No. 0520120326 (July 10, 2012); see also Wuestefeld v. U.S. Postal Serv., EEOC Appeal No. 0120120540 (March 23, 2012) (complaint properly dismissed where Complainant sent the formal complaint to the Commission despite the Agency having provided her with the proper Agency address for filing a complaint and the applicable 15-day limitation period).

ARTICLE
IS THE COMPLAINANT AN EMPLOYEE?
STATING A CLAIM UNDER THE EEOC'S REGULATIONS

(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 www.eeoc.gov, as well as on Commission case law. Some decisions cited may have appeared in previous editions of the Digest. -Ed.

Introduction

Title VII of the Civil Rights Act of 1964 provides that all personnel actions affecting employees in the federal sector shall be free from discrimination based on race, color, religion, sex, or national origin.1 Further, the EEOC's complaint processing regulations provide that an Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against because of race, color, religion, sex, national origin, age, disability, or in reprisal for prior EEO activity.2 Thus, in order to have standing to bring an action under the EEOC's regulations, an individual must be a federal employee or applicant for employment.3 An Agency can properly dismiss a complaint for failure to state a claim if the Complainant does not meet that criteria.4 As noted by the D.C. Circuit Court in Spirides v. Reinhardt, only those individuals in a direct employment relationship with a government employer are covered by the anti-discrimination statutes, while individuals who are independent contractors or those not directly employed by a government employer are unprotected.5

Background

It is noted that none of the pertinent federal employment discrimination laws precisely define the term "employee."6 Nevertheless, in determining whether a Complainant is in fact an employee, as opposed to an independent contractor, the Commission has focused upon the particular facts and circumstances surrounding the individual's relationship with the Agency, and not merely upon whether the Complainant meets the technical definition of an employee.

In Ma v. Dep't of Health & Human Serv., the Commission applied the common law of agency test for determining who qualifies as an "employee" under Title VII.7 The Commission noted that while it had previously applied the "economic realities test" enumerated in Spirides, the factors listed for consideration therein were drawn from the common law of agency test, and the practical application of the two has not been appreciably different. The Commission included a non-exhaustive list of factors to be examined when determining an individual's status for purposes of stating a claim under the EEOC's regulations. Specifically, the Commission will look at: 1. the extent of the employer's right to control the means and manner of the worker's performance; 2. the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; 3. the skill required in the particular occupation; 4. whether the "employer" or the individual furnishes the equipment used and the place of work; 5. the length of time the individual has worked; 6. the method of payment, whether by time or by job; 7. the manner in which the work relationship is terminated, i.e., by one or both parties, with or without notice and explanation; 8. whether annual leave is afforded; 9. whether the work is an integral part of the business of the employer; 10. whether the worker accumulates retirement benefits; 11. whether the employer pays social security taxes; and 12. the intention of the parties.

Applying the common law of agency test to the facts in Ma, the Commission determined that the Complainants were not employees of the Agency, and their complaints were properly dismissed for failure to state a claim. The Complainants, who performed research at the Agency under Visiting Fellows awards, were not required to complete specific assignments or perform a specified amount or quality of work. Further, the Agency did not have the right to assign the Complainants additional research projects without their agreement, or to establish the hours when Complainants were to perform their research. While the Commission noted that the Agency provided Complainants with all necessary supplies and equipment, it stated that the Agency Supervisor met with Complainants only periodically and did not supervise their research on a daily basis. Finally, the Commission stated that the Agency did not make social security payments for Complainants, or withhold state or local taxes, and that Complainants were not covered by the Agency's retirement or health plan, and did not accrue leave.

The Commission has also recognized that a "joint employment" relationship may exist where both an Agency and a "staffing firm" may be deemed employers.8 Similar to the analysis in Ma, a determination of joint employment requires an assessment of the comparative amount and type of control the "staffing firm" and the Agency each maintain over Complainant's work. Thus, a federal Agency will qualify as a joint employer of an individual if it has the requisite means and manner of control over the individual's work under the Ma criteria, whether or not the individual is on the federal payroll.9

The Commission will not simply count the factors set forth in Ma when making a decision as to whether an Agency would qualify as an employer of the worker.10 In addition, no one factor will be decisive, and it is not necessary to satisfy the majority of factors in order to consider a worker an employee of the Agency.11 Rather, the determination must be based on all of the circumstances in the relationship between the parties.12

Recent Commission Decisions Finding the Complainant Was an Employee

The Commission has issued a number of recent decisions applying the common law of agency test to determine whether an individual is an employee of the Agency for purposes of stating a claim of discrimination. In Kereem v. Dep't of State,13 Complainant worked as an Arabic Language Instructor/Curriculum Developer at the Agency's Foreign Service Institute (FSI). Complainant's work occurred under a Blanket Purchase Agreement (BPA). Complainant filed a formal EEO complaint alleging that the Agency subjected her to a discriminatory hostile work environment. The Agency dismissed the complaint for failure to state a claim, finding that Complainant was not an Agency employee, and the decision was initially affirmed on appeal.

The Commission subsequently granted Complainant's request for reconsideration, stating that the initial decision addressed only some of the factors under Ma, and failed to assess and weigh all of the incidents of the relationship between the Agency and Complainant. The Commission stated that the record showed that the Agency had the right to control the means and manner of Complainant's work performance, and her work was usually done under the direction of an Agency Supervisor. Complainant stated that this Supervisor observed her performance on an "almost daily basis," and had the authority to formally evaluate her work. Further, the Agency gave Complainant additional projects and training opportunities, and controlled her work hours and tasks. The Agency furnished the equipment Complainant used, and the place of work. Complainant worked at the Agency for over 17 months and was paid by the hour rather than for the cost of performing a particular job. The Agency had the authority to unilaterally terminate its relationship with Complainant, whose work the Commission found was an integral part of the Agency's business. On the other hand, the Commission noted that the Agency did not afford Complainant leave, provide her with retirement benefits, or pay social security taxes. Further, the BPA contract specifically stated that Complainant was a contractor and not an Agency employee.

The Commission weighed all of the factors set forth in Ma, and found that the Agency exercised sufficient control over Complainant's position to establish a de facto employer-employee relationship. The Commission noted that, considering the totality of the circumstances, the nature of the working relationship was such that the Agency retained a considerable degree of control over Complainant's job performance. The Commission acknowledged the BPA language identified Complainant as a contractor, but found that the record nonetheless demonstrated that the Agency qualified as an employer in this case.

In Martinez v. Dep't of the Navy,14the Commission found that the Agency was a joint employer. Complainant worked at the Agency as a Personnel Specialist through an agreement between the Agency and FSS Alutiiq Joint Venture. She filed a formal complaint alleging that the Agency discriminated against her on the basis of her disability. According to the record, Complainant worked on Agency premises and utilized an Agency electronic program to process travel vouchers. The individual who identified himself as Complainant's first-level Supervisor stated that Agency Supervisors assign the work to contractors and monitor it, provide daily supervision, and sign and approve leave. A higher-level Manager stated that Agency supervisors collect and document information on poor performance and disciplinary issues. Alutiiq had two "leads" on the Agency premises. One individual stated that she had no supervisory authority and that Agency Supervisors provided the daily supervision to contractors, and assigned and monitored their work. The other Alutiiq employee stated that while Alutiiq set the daily hours for the contractors, the Agency could change them. The record included an e-mail from the Agency to Alutiiq complaining about Complainant's performance and asking that she be released from her assignment. Complainant's termination letter stated that the Agency had asked that she be removed from its site. Thus, the Commission concluded that the Agency exercised sufficient control over Complainant's position to qualify as her employer for purposes of the EEO complaint process.

The Complainant in Salinero v. Small Bus. Admin.,15 worked as a Commerce Loan Specialist, and occupied a temporary one-year position that was later extended. Complainant indicated that his initial Supervisor at the Agency (Supervisor 1) harassed him and made derogatory comments about certain employees based on their national origin. He was assigned to another Supervisor after he complained to upper-level management. Complainant was subsequently laid off from the Agency and hired by a company that provided contract services to the Agency. Complainant stated that he did the same work he was doing when he left the Agency's employment, sat at the same desk, used the same computer, and had the same hours. He also asserted that his work was assigned and monitored by Agency Supervisors. Complainant stated that he was assigned to work under Supervisor 1, and ultimately filed a formal EEO complaint. On appeal, the Commission stated that while the contract between the private employer and the Agency stated that there was no direct employee/employer relationship between contract employees and the federal government, the language was not controlling given the actual working relationship between Complainant and the Agency. The Agency did not dispute that Complainant was assigned to the identical job as the one he held while working as a federal employee. Further, it appeared that the nature of the relationship was such that the Agency retained significant authority over Complainant and his work. Agency Managers averred that the Agency dealt with work quality and discipline problems concerning contract employees, and verified their time cards. Further, the Agency did not deny Complainant's assertion that an Agency Manager told him that his employment with the contractor would be terminated. Thus, notwithstanding the fact that the contractor paid Complainant's wages and benefits, the record showed that the Agency retained sufficient control over Complainant and his work to qualify as a joint employer.

In Roberts v. Dep't of Energy,16 the Commission found that the Agency exercised sufficient control over Complainant's position to qualify Complainant as an Agency employee for purposes of stating a claim under the EEOC's regulations. Complainant worked for the Automation and Control Savings Group (ACS), a government contractor, as an Engineer at an Agency facility. She filed a formal EEO complaint alleging that the Agency discriminated against her with regard to her termination. On appeal, the Commission stated that, although ACS paid Complainant's wages and benefits, Complainant was treated as an Agency employee on a day-to-day basis, and worked under the supervision and direction of Agency personnel who controlled the means and manner of her performance. She also worked in an Agency facility, used equipment provided by the Agency, and the Agency dictated her work schedule. Finally, it was the Agency, and not ACS, that decided to end its employment relationship with Complainant.

In Tucker v. Gen. Serv. Admin.,17 Complainant worked as a Secretary for the Agency, without interruption, under a contract between the Agency and People Processing Information (PPI). In October 2009, Complainant met with a Project Manager from PPI, the Agency's Human Resources Director and Human Resources representative, and two officers from the Department of Homeland Security, and was told she was being removed from the worksite. Complainant was then removed from her assignment at the Agency and terminated by PPI. A management witness from PPI indicated that Complainant was removed at the Agency's request, and an Agency Director stated that she had requested that action because of Complainant's behavior. Complainant then filed a formal EEO complaint alleging that the Agency discriminated against her. On appeal, the Commission noted that Complainant worked continuously for the Agency for a number of years, and, most significantly, Complainant's employment was terminated at the Agency's request. Further, the Agency controlled Complainant's work assignments and workspace, the Agency provided Complainant with day-to-day work directions, and Complainant had to clear her leave with Agency management. While the contract between the Agency and the contractor stated there was no direct employment relationship between a contractor employee and the Agency, such language was not controlling given the nature of the working relationship between the Agency and Complainant. Thus, the record showed that the Agency exercised sufficient control over Complainant's position to qualify as a joint employer.

Recent Commission Decisions Finding the Complainant Was Not an Employee

In Williams v. U.S. Postal Serv.,18 Complainant worked for USA Lone Star Converting as a Highway Contract Route Driver. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his race when it failed to ensure that Lone Star paid him money he was owed for his work. On appeal, the Commission determined that the Agency properly dismissed the complaint for failure to state a claim because Complainant was an independent contractor. According to the record, the Agency monitored drivers by observing their arrival and departure times. Any concerns the Agency had with the drivers' performance were communicated to Lone Star. Lone Star provided Complainant with the truck needed to perform his duties, and issued Complainant's pay check, as well as determined the terms of his employment, including tax withholding and benefits. In addition, Lone Star had control over personnel decisions affecting Complainant, including the eventual decision to terminate Complainant. While Complainant contended that the Agency provided him with some miscellaneous equipment and was indirectly involved in determining his wage rate through the contract with Lone Star, the Commission found that the collective weight of the evidence as measured against the Ma factors demonstrated that Complainant was an independent contractor and not an Agency employee.

The Complainant in Dubovik-Sileo v. Dep't of Justice,19 worked as a Contract Linguist. She filed a formal EEO complaint alleging that the Agency retaliated against her when it cancelled her contract. On appeal, the Commission found that the Agency properly dismissed the complaint for failure to state a claim. The record contained a copy of a Basic Ordering Agreement (BOA) signed by Complainant and the Agency. The BOA was a "labor-hour agreement" and provided that contractors were not federal government employees. The BOA indicated that Complainant operated under the day-to-day oversight of a government-designated representative who provided her with work assignments, monitored performance and productivity, and ensured that Complainant complied with mandated policies and procedures. Complainant's duties included providing translation and related services. According to the BOA, there was no guarantee as to the amount of work available, and Complainant was required to submit an invoice each month in order to be paid. The Agency paid Complainant a fixed hourly rate, and there was an annual ceiling for the amount of Complainant's pay. Complainant did not claim that the Agency provided her with annual or sick leave, medical or life insurance, or retirement benefits. Thus, the Commission concluded that the Agency did not exercise sufficient control over Complainant's position to qualify as her employer.

In Ose-Afiana v. Dep't of Homeland Sec.,20 Complainant worked as a Protective Security Officer at an Agency facility, and filed a formal EEO complaint with regard to the actions of management officials from Coastal International Security (CIS). On appeal, the Commission found that Complainant was not an Agency employee for purposes of the EEO complaint process. Complainant did not dispute the Agency's assertions that he reported to the CIS chain of command, and that CIS officials took the actions he complained of, told him what hours he would work, maintained his personnel file, controlled the manner and means of his performance, and had exclusive authority to terminate his employment. In fact, Complainant admitted that he was "not directly employed" by the Agency. Complainant's work identification card identified him as a contract guard. All of the evidence provided showed that the actions Complainant raised in his complaint were carried out by CIS personnel and not the Agency. Thus, the Commission stated that Complainant did not meet his burden of establishing that he was an Agency employee or that the Agency exercised sufficient control over Complainant to qualify as a joint employer.

In Wells v. Dep't of Transp.,21 Complainant was hired by an Agency contractor and placed on a temporary assignment with the Agency. Complainant reported a claim of sexual harassment against her immediate Supervisor, an employee of the contractor, and then filed a formal EEO complaint alleging that she only received one short term assignment after she did so. On appeal, the Commission found that Complainant was not an employee of the Agency and her complaint was properly dismissed for failure to state a claim. Complainant stated that she was hired by the contracting firm, and the contract between the firm and the Agency stated that the contractor was responsible for hiring staff, conducting training, and "assuming day-to-day operations." The contract further stated that Agency personnel "are not authorized or permitted to supervise any contract personnel". Thus, the Agency was not an employer or joint employer of Complainant.

Finally, in Palmer v. Dep't of Homeland Sec.,22 Complainant worked as a UNIX System/SAN Administrator at an Agency facility. According to the record, she was an employee of Base Technologies, a subcontractor that provided services to the Agency. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it removed her from a project. On appeal, the Commission found that Complainant was not an employee of the Agency, but was employed by a subcontractor, and therefore, her complaint failed to state a claim. The record showed that Base Technologies paid Complainant's salary, insurance and a portion of her retirement benefits. Base also approved Complainant's leave, as well as prepared her job evaluation, removed her from the project, and ultimately terminated her employment. Complainant stated that her work hours were set by Base Technologies, with only some after hours or weekend work set by the Agency.


Footnotes

1 42 U.S.C. § 2000e-16(a).

2 29 C.F.R. §§ 1614.103, .106(a).

3 Former employees may have standing to challenge a post-employment benefit associated with their employment. See, e.g., Saracino v. Nuclear Regulatory Comm'n, EEOC Appeal No. 0120111365 (June 16, 2011), request for reconsideration denied, EEOC Request No. 0520110592 (December 20, 2011). The focus of this article is not to exclude former employees from coverage, but to focus on the distinction between independent contractors and federal employees.

4 29 C.F.R. § 1614.107(a)(1).

5 613 F.2d 826 (D.C. Cir. 1979).

6 See, e.g., 29 U.S.C. §§ 262, 203(e)(1), 42 U.S.C. § 2000e(f), 29 U.S.C. § 630(f), and 42 U.S.C. § 12111(4) (defining "employee" under the Equal Pay Act, Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, respectively, as "an individual employed by an employer.").

7 EEOC Appeal No. 01962390 (May 29, 1998), citing Nationwide Mutual Insurance Co., et. al. v. Darden 503 U.S. 318 (1992) (interpreting the term "employee" as defined in the Employee Retirement Income Security Act of 1974), and Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) (addressing the Copyright Act of 1976).

8 Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997) (hereafter referred to as Enforcement Guidance).

9 See generally, Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).

10 Enforcement Guidance.

11 Id.

12 EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.I, pages 2-25 & 2-26 (May 12, 2000).

13 EEOC Request No. 0520110069 (April 26, 2012).

14 EEOC Appeal No. 0120113494 (January 6, 2012).

15 EEOC Appeal No. 0120112707 (December 7, 2011).

16 EEOC Appeal No. 0120101389 (July 22, 2011), request for reconsideration denied, EEOC Request No. 0520120030 (December 21, 2011).

17 EEOC Appeal No. 0120102242 (September 15, 2011).

18 EEOC Appeal No. 0120120252 (March 5, 2012).

19 EEOC Appeal No. 0120103751 (January 11, 2012).

20 EEOC Appeal No. 0120112709 (October 20, 2011).

21 EEOC Appeal No. 0120100445 (July 27, 2011).

22 EEOC Appeal No. 0120110153 (June 9, 2011), request for reconsideration denied, EEOC Request No. 0520110534 (August 30, 2011).