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U.S. Equal Employment Opportunity Commission



The DIGEST Of Equal Employment Opportunity Law


Volume XXIII, No. 3

Office of Federal Operations

Summer 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, Attorney Advisor
Digest Staff
Editor: Robyn Dupont
Writers: Amelia Demopulos, Robyn Dupont, Caroline Hyatt, Aaron Rubin, Pennington Winberg

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


SELECTED EEOC DECISIONS

Agency Processing

Agency Failed to Properly Process Complainant's Complaint. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when she was denied a promotion. In addition, Complainant alleged that she was subjected to a retaliatory hostile work environment by her Supervisor. Complainant cited several incidents in support of her claim of harassment. The Agency investigated the complaint and provided Complainant with a report of investigation and notice of her right to request an administrative hearing. Complainant requested a final decision from the Agency. Before issuing the final decision, the Agency determined that the record was inadequate with regard to the issue of the promotion, and the Agency conducted a supplemental investigation. The Agency notified Complainant that it would provide her with a copy of the supplemental investigation report, and, "if there is no right to request a hearing," forward the report for issuance of a final decision. The Agency ultimately issued a decision finding no discrimination. On appeal, the Commission found that the Agency improperly processed Complainant's complaint. Nothing in the record showed that the Agency provided Complainant with the supplemental investigation report or gave her a chance to respond to the evidence therein. Further, the Commission stated that, when the Agency conducts a supplemental investigation, an integral component of that process requires the Agency to provide the results to Complainant and afford her the opportunity to request a final decision or a hearing. The Agency argued that Complainant had the opportunity to rebut its arguments on appeal. The Commission found, however, that the Agency was required to provide Complainant with an opportunity to review and respond to the supplemental investigation before the Agency makes its final decision, and to revisit her decision whether to ask for a final decision or an administrative hearing. The matter was remanded to the Agency for further processing. Harrison v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121105 (May 22, 2012), request for reconsideration denied, EEOC Request No. 0520120480 (October 24, 2012).

Agency Failed to Amend Complainant's Complaint. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it failed to properly train him, subjected him to ongoing harassment and terminated him from his Trainee position. In its acceptance letter, the Agency noted that Complainant's reprisal claim was not within the purview of Title VII because he alleged reprisal only for refusing to sign a counseling performance plan and informing management that he was not being properly trained. The Agency subsequently issued a final decision finding no discrimination. The Agency noted that Complainant did not have appeal rights to the Commission, but did state that Complainant had the right to an administrative hearing. Complainant subsequently requested a hearing. The Administrative Judge (AJ), however, dismissed the matter on the grounds that the issue of whether Complainant was harassed and discriminated against based on "conduct not affecting performance" did not raise any prohibited bases of discrimination. The AJ noted that while Complainant alleged, during the investigation, that the Agency terminated him in retaliation for his EEO activity, Complainant did not request to amend his complaint to include that matter. On appeal, the Commission found that the Agency failed to amend Complainant's complaint to include the claim related to his termination in accordance with the EEOC's regulations and management directive. The record contained an e-mail which Complainant sent to the Acting Supervisor for Intake and Investigation specifically stating that he wished to amend his complaint to add the termination based on reprisal for filing an EEO complaint. The Acting Supervisor advised Complainant that an amendment was not required, and that he could add a basis to his complaint at any time by notifying the Investigator. Complainant then raised the issue in his affidavit. The Commission rejected the Agency's assertion that the matter was not like or related to Complainant's other claims, noting that Complainant indicated that once he filed his EEO complaint, "things became worse" and culminated in his termination. Thus, the Commission concluded that the claim involving Complainant's termination grew out of the initial claims. Complainant did not challenge the initial claims on appeal, and, therefore, the Commission remanded the issue of Complainant's termination for further processing. Walker v. Soc. Sec. Admin., EEOC Appeal No. 0120112197 (May 10, 2012).

Notice of Right to Hearing Did Not Sufficiently Advise Complainant of Rights. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it placed her on a Performance Improvement Plan. After determining that Complainant failed to timely request a hearing, the Agency issued a final decision finding no discrimination based upon evidence gathered during the investigation. On appeal, the Commission found that the Agency improperly issued a final decision in the matter. According to the record, Complainant received the investigative file and notice of her right to request a hearing, and faxed a hearing request to the Commission within 30 days. While there was no evidence that Complainant sent a copy of the request to the Agency, the Commission noted that the notice did not inform Complainant that she risked forfeiture of her right to a hearing if she failed to do so. Instead, the Agency advised Complainant only that her failure to provide a copy of her request to the Agency could result in "non-processing" of the request or placement on an inactive docket which could be remedied by Complainant subsequently notifying the Agency of her request for a hearing. The Commission found that the notice was fundamentally insufficient to put Complainant on notice that she risked forfeiture of her right to a hearing, and would have lead her to believe that she risked far less dire consequences for the omission. The Commission stated that, lacking this notice, Complainant's request for a hearing effectively transferred jurisdiction of the complaint to the Commission such that the Agency had no jurisdiction to issue a final decision. The Commission remanded the matter for an administrative hearing. Pearsey v. Dep't of Veterans Affairs, EEOC Appeal No. 0120103636 (April 19, 2012).

Attorney's Fees

Hourly Rate Calculated Based on the Area Where Claim Occurred. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of his disability when it did not detail him to a Group Leader position, and retaliated against him when it did not place him on official duty or provide travel time to attend an EEO hearing. Following a hearing, the AJ found that Complainant was discriminated against with regard to the detail. Complainant then submitted a petition for attorney's fees. The amount requested reflected the hourly rate in Washington, D.C. where the attorney was located. The AJ adjusted the hourly rate downward to reflect the prevailing rate paid for services in North Carolina where the claim arose. The AJ also reduced the award by 15 percent across the board, stating that the number of attorneys involved in the case was excessive, and Complainant did not prevail on his claim of retaliation.

Complainant appealed the issue of attorney's fees to the Commission, and the Commission modified the award. The Commission noted that the matter arose and was litigated in North Carolina. Further, the Agency submitted evidence showing that attorneys specializing in employment discrimination were readily available in Complainant's area. Complainant did not produce any countervailing evidence. Thus, the Commission concluded that the Agency proved, by a preponderance of the evidence, that it was unreasonable for Complainant to retain counsel from outside North Carolina. Complainant did not submit any evidence as to the prevailing rates in North Carolina. The Commission noted, however, that the Agency did not object to the hourly rates determined by the AJ with the exception of the rate awarded for attorneys with a great deal of experience. Therefore, the Commission affirmed the AJ's decision regarding the hourly rates for all other attorneys, and modified the rate for experienced attorneys to reflect the evidence presented by the Agency. With regard to the across the board reduction, the Commission stated that the retaliation claim upon which Complainant did not prevail was distinct from the claim regarding the detail, because the claims did not involve common legal theories or facts. Thus, the Commission found that an across the board reduction of 15 percent was appropriate. Taber v. U.S. Postal Serv., EEOC Appeal No. 0120110658 (June 28, 2012).

Attorney's Fees Discussed. Complainant filed a formal EEO complaint alleging, among other things, that the Agency failed to provide him with reasonable accommodation. Following a hearing, the AJ found that the Agency acted in good faith when it provided Complainant with temporary measures to accommodate his disability. The AJ concluded, however, that the Agency violated the Rehabilitation Act when it failed to provide Complainant with a permanent, effective accommodation for a period of approximately seven months. Complainant's attorney ultimately submitted a fee petition, and the Agency awarded Complainant $12,320.95 in attorney's fees.

On appeal, the Commission modified the award. The Commission initially noted that the reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community. While the Agency's award was based on the prevailing rate in Atlanta, Georgia, where the action arose, the Commission found that the Agency did not present sufficient evidence that Complainant's decision to use out-of-state counsel was unreasonable. Specifically, the Agency failed to provide any evidence that local counsel was available with the experience in EEO law, or who had practice experience with the Commission like Complainant's first attorney (A1). Complainant stated that he could not find a suitable attorney in Atlanta, and was referred to A1 who practiced in Washington, D.C. Thus, the Commission found that it was appropriate to use the Washington, D.C. hourly rate.

The Commission found, however, that the presence of a second attorney (A2) was duplicative and unnecessary, and his fee petition was properly disallowed. Both A1 and A2 billed for the same services, and there was no showing that the case was unusually complex or difficult such that it would have required the presence of two legal experts. It was undisputed that A1 had 20 years of EEO legal experience. With regard to the hours expended, the Commission stated that, in certain instances, the hours claimed by A1 were vague and inadequately documented. For example, A1 included two entries totaling 13.5 hours for "Preparation for Hearing," and "Witness Preparation for Hearing," without any indication of what work was performed. In addition, the Commission stated that the fee petition indicated that a large number of people, including three paralegals and four law clerks, spent time working on the case for no readily apparent reason. The Commission noted that Complainant did not establish that the Agency acted in bad faith with respect to his accommodation request, and, thus, did not prevail in his claim for damages. Therefore, the Commission concluded that a 15 percent across-the-board reduction in attorney's fees was appropriate in the case. The Commission stated that, consistent with prevailing case law, an adjustment for a delay caused by the length of time of the litigation justified granting a request for current hourly rates, and, based upon the Laffey Matrix, A1's hourly rate should be $475. Thus, the Commission determined that Complainant was entitled to $58,422.20 in attorney's fees. Jimenez v . Dep't of Health & Human Serv., EEOC Appeal No. 0120083765 (June 12, 2012).

Attorney's Fee Award Modified. The parties entered into a settlement agreement which provided, among other things, that the Agency would pay reasonable attorney's fees and costs as determined by an AJ. In a previous decision, the Commission found that the Agency failed to comply with a settlement agreement to the extent that it did not pay Complainant attorney's fees and costs as determined. The Agency was ordered to pay the specified fees and costs, and the Commission noted that, as a prevailing party, Complainant was entitled to reasonable attorney's fees for the appeal. Complainant subsequently submitted a fee petition in the amount of $5,066.26 for work done on the appeal including conferring with the Agency representative and AJ regarding the request for fees, drafting allegations of breach and the appeal to the Commission, responding to the Agency's appeal, and requesting clarification of the Commission's initial decision on the allegation of breach. The amount also included costs for photocopying, faxing and mailing documents, and the subscription costs of utilizing a legal research database. The Agency reduced the amount, arguing that many of the expenses were not related to the issue of attorney's fees or supported by the record.

On appeal, the Commission modified the Agency's award. The Commission found that the hours spent for research regarding the Equal Pay Act were reasonable based on the scope, degree, and complexity of the case given that Complainant's counsel had to address the Agency's appeal arguments including a claim that Complainant could not recover fees under that statute. The Commission stated that the Agency correctly denied charges that had been previously included or withdrawn, including time relating to the breach letter and original notice of appeal. In addition, the Agency also correctly excluded fees for postage, in-house photocopying and faxing, and on-line research because of a lack of specificity regarding those expenses. In addition, the Commission noted that computerized legal research is considered overhead and should already be captured by the attorney's reasonable hourly rate. The Commission rejected the Agency's assertion that Complainant's fees and costs should be reduced by half, stating that the discussion and research of the Equal Pay Act and settlement breach were intertwined with the issue of attorney's fees and therefore necessary. The Agency was ordered to pay $4,411.40 in fees and costs. Dahlman v. Consumer Prod. Safety Comm'n, EEOC Appeal No. 0120101320 (June 12, 2012).

Attorney's Fee Award Was Proper. Complainant filed two formal EEO complaints alleging that he was subjected to a discriminatory hostile work environment and suspended for one day. The AJ consolidated the complaints and, following a hearing, found that the Agency did discriminate against Complainant by subjecting him to a hostile work environment. The AJ found no discrimination, however, with regard to the suspension. The AJ ordered the Agency, among other things, to pay Complainant $23,440 in attorney's fees. The AJ rejected the Agency's assertion that the fees should be reduced by 50 percent because Complainant did not prevail on the suspension allegation, stating that the Agency failed to establish that the claim was so distinct from the successful hostile environment claim as to justify a reduction in fees. On appeal, the Commission found that the AJ's fee award was appropriate. The Commission stated that Complainant's unsuccessful suspension claim was intertwined with his successful hostile environment claim and arose from a common core of facts. Complainant raised the allegation in an EEO complaint in which he accused the Agency of institutional racism and alleged that co-workers used threatening language about him in e-mails. The co-worker whose accusation led to the suspension was one of the individuals who sent the offensive e-mails and whose conduct Complainant protested. Thus, the Commission agreed that the unsuccessful claim was not so distinct from the successful claim to justify a reduction in attorney's fees. Ighile v. Dep't of Justice, EEOC Appeal No. 0720110010 (April 13, 2012).

Reduction in Attorney's Fees Appropriate. In a previous decision, the Commission found that the Agency breached the terms of a settlement agreement. Thereafter, Complainant's attorney submitted a Motion for Attorney's Fees which included a bill for 43.9 hours for services rendered from September 21, 2006 through October 10, 2007. The Agency asserted that the number of billing entries appeared to be excessive. On appeal, the Commission found that a 25 percent across-the-board reduction was warranted. The Commission noted that when reviewing fee petitions which contain many excessive, redundant, unnecessary or inadequately documented expenditures of time, in lieu of engaging in a line-by-line analysis, the Commission may apply an across-the-board reduction in the number of hours requested. The Commission specifically cited an entry which appeared to describe the same tasks as an earlier entry. The Commission also stated that the hours billed for the preparation of the fee petition appeared to be excessive in light of the number of billing entries contained therein, the sole affidavit accompanying the petition, and the absence of any evidence corroborating the hourly rate. The Agency was ordered to pay Complainant's attorney $9,877.50 in attorney's fees. Cain v. Dep't of the Army, EEOC Appeal No. 0120082019 (April 11, 2012).

Class Complaints

Commission Modified Relief in Class Complaint. Complainants filed a class complaint alleging discrimination based on race and reprisal by the Manager of Distribution Operations at their facility. An AJ certified the class and returned the case to the Agency for processing. When the Agency failed to take the ordered actions, the class agents moved for sanctions against the Agency. The AJ subsequently entered a default judgment in favor of the class, and held a hearing on damages. The AJ found that the evidence, including testimony from several individuals, supported a finding of discrimination on the stated bases. The AJ ordered the Agency to reimburse class members for lost overtime and pay attorney's fees and costs. In addition, the AJ determined that three of the Complainants (Complainants CS, JB, and US or Complainants 1, 2 and 4) were each entitled to $10,000 in non-pecuniary damages. One of the Complainants (Complainant NR or Complainant 3) was determined not to be a member of the defined class. Complainants 1, 2 and 4 filed appeals contending, among other things, that the AJ's non-pecuniary damages award was too low.

On appeal, the Commission modified the award of damages. The Commission noted that the AJ properly determined that Complainant 3, a Mail Handler on another Tour, was not a member of the subject class. The Commission also stated that the AJ properly ordered the Agency to compensate class members for overtime they would have received absent the discrimination. With regard to damages, the Commission found that Complainant 1 was entitled to an award of $85,000 in non-pecuniary damages based upon testimony that he suffered from insomnia, and nausea, felt depressed, was fearful, felt intimidated, had anxiety, and distanced himself from his family. The Commission determined that Complainant 2 was entitled to an award of $50,000 in non-pecuniary damages. Complainant 2 testified that he suffered from stress, humiliation, and nausea, and that the discrimination aggravated his headaches. He also noted that he experienced difficulties in his marriage. Finally, the Commission increased Complainant 4's award to $85,000, based upon testimony from his wife that he was upset and agitated because of the discrimination, worried about losing his job, withdrew from family and friends, was depressed, and experienced heart palpitations, headaches, loss of appetite and trouble sleeping. The Commission also ordered the Agency to post the class finding and notify potential members of their rights to file a request for individual relief. Smith, Basden, Estate of Ulysses Smith, & Richardson v. U.S. Postal Serv., EEOC Appeals No. 0120081661, 0120081674, 0120081677, & 0120081917 (July 12, 2012).

Class Certification Granted. At the time the complaint arose, one of the named Complainants (C) was a "light duty" Mail Processing Clerk who had medical restrictions due to a non-work related injury. C alleged that the Agency denied her reasonable accommodation forcing her to use leave or work in violation of her restrictions. The other named Complainant (W) was a "limited duty" Letter Carrier who had sustained a work-related injury. W alleged that the Agency sent her home rather than provide her work within her medical restrictions and ordered her to perform work in violation of those restrictions. Both of the claims were subsumed in another pending class action, and ultimately C and W were designated the class agents. An AJ ultimately granted class certification, and defined the class to include all limited and light duty employees in a specific district whose hours had been limited, including being sent home and told not to return to work, since June 12, 2007.

On appeal, the Commission affirmed the AJ's findings. The Commission initially noted that the record contained evidence showing that C had an impairment which substantially limited her ability to perform manual tasks, and that W was substantially limited in the major life activities of walking and standing. The Commission stated that was a sufficient showing by the class agents at the certification stage. With regard to the actual class certification, the Commission found that the class submitted evidence specifically identifying over 100 potential class members, and the record supported the AJ's determination that there were sufficient individuals to establish numerosity. Further, the evidence supported an inference that there existed a class of individuals who were harmed by the identified policy of refusing work to disabled employees and sending them home. Thus, the class shared common questions of fact. The Commission rejected the Agency's arguments concerning the differences in craft and workers' compensation status of C and W, stating that the issue concerned the underlying question was whether the Agency satisfied its obligations under the Rehabilitation Act concerning reasonably accommodating its employees. Thus, the complaint met the elements of commonality and typicality. Finally, the Agency did not dispute that the Class Counsel was able to adequately represent the interests of the class. The matter was remanded to the Agency for further processing. Cooper & West, et al. v. U.S. Postal Serv., EEOC Appeal No. 0720090043 (May 9, 2012).

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.)

Complainant Not Entitled to Compensatory Damages for Breach of Settlement. In the underlying appellate decision, the Commission found that the Agency breached the terms of a settlement agreement, and ordered specific compliance. Complainant filed a request for reconsideration of that decision, arguing that he should be entitled to compensatory damages as a result of the Agency's breach. The Commission denied Complainant's request for reconsideration. The Commission noted that, when breach of settlement is found, it can order compliance with the terms of the agreement or that the underlying complaint be reinstated for processing. Nothing in the EEOC's regulations provided for compensatory damages to be awarded for a breach of settlement. Compensatory damages are only available when a Complainant is found to have been discriminated against. Thayer v. U.S. Postal Serv., EEOC Request No. 0520120218 (June 13, 2012).

Compensatory Damages Awarded to Seven Complainants. Complainants filed an EEO complaint as a group, alleging, among other things, that the Agency subjected them to a hostile work environment on the basis of sex. Following a hearing, the AJ found that the Agency was liable for the harassment because it did not respond to the situation. The AJ conducted a separate hearing on the issue of damages, and issued a decision in that regard. The Agency filed an appeal only with regard to the relief. On appeal, the Commission found that Complainants' emotional and physical harm were the result of suffering years of harassment by a male coworker. The record established that all of the Complainants were diagnosed with post traumatic stress disorder because of the harassment, and many had evidence of severe emotional and physical harm. The Commission conducted a detailed analysis of each Complainant's damages directly attributable to the harassment. After taking into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, and the many years the Complainants suffered the harm (sometimes seven years or more), the Commission awarded each Complainant between $45,000 and $75,000 in non-pecuniary compensatory damages. Leggett et. al. v. U.S. Postal Serv., EEOC Appeal Nos. 0720110039, et al., (July 12, 2012).

$150,000 in Non-pecuniary Damages Awarded for Retaliation. In a prior decision, the Commission found that the Agency retaliated against Complainant when it terminated her training, and ordered the Agency, among other things, to investigate Complainant's claim for damages. The Agency ultimately issued a decision awarding Complainant $35,000 in non-pecuniary compensatory damages. On appeal, the Commission found that award was insufficient. The affidavits and medical documents in the record showed that the discrimination caused Complainant to suffer severe emotional pain and mental anguish, including severe depression, vomiting, uncontrollable crying spells, difficulty concentrating, frequent panic attacks, fear for her safety, nightmares, and insomnia. In addition, Complainant experienced loss of enjoyment of life, withdrew from her relationships, and experienced significant injury to her professional standing and reputation, dramatic weight fluctuation, and worsening stomach problems. The record included an affidavit from Complainant's Counselor who treated Complainant for two years, as well as affidavits from Complainant's neighbor and brother. Given the persistent duration and severity of the emotional, physical, and professional harm Complainant suffered, the Commission found that she was entitled to an award of $150,000 in non-pecuniary damages. Coopwood v. Dep't of Transp., EEOC Appeal No. 0120083127 (May 2, 2012).

$50,000 Awarded for Sex-Based Harassment. The Agency issued a final decision finding that Complainant was subjected to hostile work environment harassment because of her sex. The Agency noted that Complainant may be entitled to an award of compensatory damages provided she was able to establish a causal relationship between the discrimination and any losses. On appeal, the Commission stated that, despite the fact that Complainant failed to submit a formal claim for damages, she did provide significant statements indicating how the hostile work environment harassment negatively affected her. Complainant indicated that the hostile work environment affected her health and caused her a great deal of stress, as well as headaches, and an upset stomach. She had trouble sleeping and concentrating, and experienced depression and anxiety. Complainant stated that the stress negatively affected her relationship with her husband and son. Complainant stated that she called in sick once or twice a month because she did not want to be at work because of the hostile environment. The Agency acknowledged that the work environment degraded Complainant's trust in her fellow employees. The record also showed that Complainant was off work for approximately three months due to the stress of the harassing events. The Agency did not specifically dispute any of the testimony pertaining to the pain and suffering Complainant experienced. Therefore, the Commission concluded that Complainant was entitled to an award of $50,000 in compensatory damages. Bradstreet v. Dep't of the Army, EEOC Appeal No. 0120112517 (June 27, 2012).

$4,000 in Non-pecuniary Compensatory Damages Awarded. In a prior decision, the Commission found that the Agency discriminated against Complainant when it changed his days off and failed to forward his Family Medical Leave Act paperwork. The Agency conducted a supplemental investigation, and awarded Complainant $600 in non-pecuniary compensatory damages. On appeal, the Commission found that the Agency's award was insufficient and raised the amount to $4,000. A preponderance of the evidence showed that Complainant was made to feel unwelcome, got extremely upset and stressed, and experienced a flare up of his anxiety, hypertension, and intestinal problems from late October 2007 until January 2008 as a result of the discrimination. The record contained statements from Complainant and his wife, as well as medical documentation to support these assertions. The Commission noted, however, that Complainant did not show a causal connection after the specified period. Further, the acts of discrimination occurred over a short period of time and were not severe. The Commission concluded that an award of $4,000 for the symptoms Complainant experienced over approximately four weeks was consistent with Commission precedent. The Commission also found that Complainant was entitled to payment for some medical expenses, including doctors' visits, diagnostic procedures, and short term medications which to some extent were more likely than not connected to the flare ups resulting from the discrimination. Hudson v. U.S. Postal Serv., EEOC Appeal No. 0120120891 (May 9, 2012).

$1,500 Awarded for Discriminatory Retaliation. In a previous decision, the Commission found that the Agency retaliated against Complainant when his supervisor interfered with his EEO activity. Following an investigation regarding Complainant's claim for compensatory damages, the Agency issued a final decision finding that no award of damages was warranted because there was no evidence that its reprisal had caused Complainant mental or emotional harm.  On appeal, the Commission noted that Complainant stated in an affidavit that the supervisor's conduct was humiliating, threatening, abusive, stressful and demeaning, and that it caused him anxiety, emotional distress and physical pain.  Beyond the affidavit, however, Complainant did not provide other evidence in support of his damages claim.  Although Complainant provided documentation for neck, shoulder and back injuries, those injuries predated the Agency's reprisal. Moreover, there was no evidence that the reprisal exacerbated or aggravated those injuries.   After considering the nature of the unlawful acts, and the severity and extent of the demonstrated harm, the Commission awarded Complainant $1,500 in non-pecuniary damages. Minor v. U.S. Postal Serv., EEOC Appeal No. 0120103711 (May 17, 2012).

Dismissals

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

Dismissal for Filing a Grievance Was Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it terminated her from her position. The Agency dismissed the complaint stating that Complainant filed a grievance on the same matter prior to filing her formal complaint. Complainant denied filing a grievance concerning her termination. Complainant indicated that she wrote to the Human Resources Manager and had a brief meeting concerning her termination, but stated that the meeting was not part of the negotiated grievance process and no union representative was present. The Commission noted that the record did not contain a copy of any grievance filed by Complainant concerning her termination. Further, the Agency did not provide a copy of the collective bargaining agreement to support its assertion that it provided for claims of discrimination. Thus, the Commission concluded that Complainant's formal complaint was improperly dismissed. Arias v. Dep't of the Navy, EEOC Appeal No. 0120121225 (May 25, 2012).

Dismissal for Stating the Same Claim Was Improper. Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of her disability, age, and prior EEO activity when she was forced to retire in May 2010. Complainant stated that she was forced to retire because of ongoing discriminatory harassment, and cited several incidents in support of her claim. According to the record, Complainant had filed an earlier complaint raising the issue of harassment. The Agency dismissed the instant complaint on the grounds that it stated the same claim as that raised previously. On appeal, the Commission found that the dismissal was improper. The Commission noted that although the incidents of harassment which Complainant asserted prompted her departure from the Agency were the same as those raised in the prior complaint Complainant did not actually raise a constructive discharge claim at that time. The Commission stated that Complainant's constructive discharge claim was inextricably intertwined with her prior complaint, and ordered that the prior complaint be amended to include that issue. Herron v. U.S. Postal Serv., EEOC Appeal No. 0120120683 (May 15, 2012).

Dismissal for Filing Grievance Improper. Complainant filed a formal EEO complaint on December 2, 2011, alleging that the Agency discriminated against him on the basis of his age when it failed to select him for a position. The Agency dismissed the complaint on the grounds that Complainant previously elected to raise the claim in the negotiated grievance process. On appeal, the Commission found that the dismissal was improper. Complainant stated that the grievance was dismissed as untimely prior to the time he filed his EEO complaint. The Commission noted that it has previously held that a grievance must be timely in order to preclude subsequent initiation of an EEO complaint. Thus, Complainant was not precluded from filing an EEO complaint with regard to his non-selection. Lee v. Small Bus. Admin., EEOC Appeal No. 0120121147 (May 10, 2012); see also Williams v. Small Bus. Admin., EEOC Appeal No. 0120121148 (May 11, 2012) (prior grievance regarding Complainant's non-selection which was dismissed as untimely did not preclude Complainant from filing an EEO complaint on that matter).

Dismissal Was Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race, sex, disability and prior EEO activity. The Agency determined that the complaint consisted of four matters: an official discussion for conducting a Request for Discipline on the workroom floor; an investigative interview and request for discipline; a notice of proposed removal; and an accusation that Complainant was using drugs. The Agency dismissed the first claim for failure to state a claim stating that Complainant should have raised the allegation under the Freedom of Information Act. The Agency dismissed the remaining matters for failure to timely contact an EEO Counselor. On appeal, the Commission found that the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment. A fair reading of the matters identified in the complaint showed that Complainant claimed she was subjected to a series of related harassing incidents from February 2011 through October 2011. These matters, taken together, stated an actionable claim of harassment. Further, the Commission stated that the matter concerning the official discussion was timely raised, and the remaining allegations were part of the same discriminatory harassment claim. Thus, the entire claim was timely raised. Stelter v. U.S. Postal Serv., EEOC Appeal No. 0120120760 (May 10, 2012).

Dismissal for Filing a Prior Grievance Was Improper. Complainant worked for the Agency as a Probationary Air Traffic Specialist. He filed a formal EEO complaint alleging that the Agency discriminated against him when it subjected him to continuous unfavorable training conditions and terminated him from his position. The Agency dismissed the complaint on the grounds that Complainant elected to pursue the matter through the negotiated grievance procedure. On appeal, the Commission found that the dismissal was improper. While the record showed that the union filed a grievance concerning the Training Review Board's decision to end Complainant's training, the grievance did not raise the issues of Complainant's termination or the quality and fairness of the training Complainant was provided on an ongoing basis. Further, the Commission noted that the Agency noted in its response to the grievance that the negotiated grievance procedure was not available to Complainant to challenge his termination because he was in a probationary period. Finally, the Commission stated that the Agency failed to provide a copy of the collective bargaining agreement, so the record failed to show that the grievance process permitted claims of discrimination to be raised. Thus, the matter was remanded to the Agency for further processing. Mason v. Dep't of Transp., EEOC Appeal No. 0120120887 (April 11, 2012).

Findings on the Merits and Related Decisions

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

Under the Rehabilitation Act

Improper Disclosure of Medical Records Found. Complainant previously worked for the Agency as a Customer Services Representative, but resigned after advising his Supervisor that he could not handle the detailed nature of the position due to his hearing impairment, tinnitus, learning disability and Attention Deficit Hyperactivity Disorder (ADHD). Several months later, he applied for a Forest Technician position and was selected. However, he only worked three days before separating from the Agency again, this time due to a dispute regarding whether he met the requirements for the position. After his separation, Complainant learned that his position classification had been "reduced." Complainant applied for a number of other positions within the Agency, but was not successful. In an effort to determine why he had not been selected, he retained Global Verification Services (Global) to contact his references. Global reported that when it contacted his former Customer Services Representative Supervisor, the Supervisor disclosed that Complainant had resigned, in part, due to his ADHD.

Complainant filed an EEO complaint alleging that the Agency made an unauthorized medical disclosure. After holding a hearing on the matter, the AJ concluded that, although Complainant's supervisor had disclosed his medical information while providing a reference, it was not a violation of the Rehabilitation Act. The AJ cited authority indicating that voluntarily disclosed medical documentation is not confidential, unless disclosed in an employee health program or medical examination. On appeal, the Commission concluded that the AJ erred as a matter of law. Citing EEOC guidance and relevant case law, the Commission noted that it has long recognized that an employer's confidentiality obligation extends to all medical information disclosed by an employee including information voluntarily disclosed. The Commission remanded the issues of compensatory damages and attorney's fees. Humphries v. Dep't of Agric., EEOC Appeal No. 0120083870 (June 12, 2012).

Disability Discrimination Found with Regard to Job Offer. Complainant applied for the position of Electrician (Student Trainee), and received a conditional offer of employment. He was advised that his employment was conditional upon successfully passing a pre-employment physical. During the physical, Complainant's hearing was tested twice and the results reviewed by an Agency Audiologist. Complainant had a high-frequency hearing loss, and the Audiologist determined that he did not meet the requirements for the position. The Agency restricted Complainant from working in industrial environments. Complainant's hearing was subsequently tested by two private Audiologists, with similar results. The Agency's Occupational Health Physician (OHP) medically cleared Complainant, included work area restrictions, and indicated that Complainant should use hearing aids. Nevertheless, the Agency rescinded the job offer. Following the investigation, the AJ issued a decision in the matter without a hearing finding that the Agency discriminated against Complainant as alleged.

On appeal, the Commission concluded that a decision without a hearing was appropriate because there were no genuine issues of material fact. The Commission found that the Agency regarded Complainant as an individual with a disability who was substantially limited in the major life activity of working. Specifically, even viewing the facts in the light most favorable to the Agency, the record showed that the Agency perceived Complainant to be substantially limited in performing any job in an industrial environment. The Agency Audiologist stated that the results of Complainant's hearing tests indicated that he could not perform shipboard work, dry dock work or "roaming" work. Further, the Commission found that Complainant was qualified for the Electrician apprentice position, and the only bar to his employment was the Agency's perception that he was medically unsuitable because of his need to use hearing aids.

The Commission found that the Agency failed to establish that Complainant posed a direct threat to himself or others. The record clearly showed that the Agency was motivated by concern based upon a fear of a future risk of injury. The record did not show, however, that the Agency conducted an individualized assessment to determine what harm, if any, Complainant would have been subjected to if he had used his hearing aids in the specific work environment. The record only contained the Agency Audiologist's opinion in general terms that individuals could be harmed if they used hearing aids in an industrial environment. In addition, while it was clear from the record that hearing protection was required to work in the location where the job was located, the Agency did not assess what types of hearing protection, if any, would have been available to Complainant. Thus, the Commission found that the Agency discriminated against Complainant when it rescinded the job offer. The Agency was ordered, among other things, to offer Complainant the position with appropriate back pay and benefits, and pay him $85,000 in proven non-pecuniary compensatory damages. Ward v. Dep't of the Navy, EEOC Appeal No. 0720070029 (April 26, 2012), request for reconsideration denied, EEOC Request No. 0520120430 (July 20, 2012).

Denial of Reasonable Accommodation Found. Complainant, an Administrative Assistant, was diagnosed with various conditions, and in 2004 requested to be allowed to report to work after the beginning of her office's core hours. Her request was denied, but her Supervisor at the time allowed her to earn compensatory time on weekday evenings and use the time the following morning. Based on this arrangement, Complainant was permitted to report to work at 10:00 each day. In 2008, Complainant was assigned a new supervisor who required that she report to work earlier. Complainant completed a request for reasonable accommodation asking for flexibility in her scheduled arrival time, but the new Supervisor noted that flexibility already existed and Complainant could have arrived between the hours of 6:30 a.m. and 9:30 a.m. Complainant submitted additional medical documents, but her request for accommodation was denied. Complainant then filed a formal EEO complaint alleging, among other things, that the Agency denied her reasonable accommodation.

On appeal, the Commission found that Complainant was an individual with a disability under the pre-ADA Amendments Act framework, noting that she was born with a missing right hand and that such a congenital condition constituted a "targeted" disability in the federal government. The Commission noted that Complainant, due to her medical conditions, required flexibility to allow her to begin her work day at 10:00 a.m. The Commission stated that requiring Complainant to arrive at work by 9:30 a.m. was not an accommodation as the Agency had asserted. The Commission rejected the Agency's assertions that the flexible schedule presented a risk of harm to Complainant because she would be in the building alone after 6:00 p.m., and that providing Complainant with a work schedule beginning at 10:00 a.m. would have been an undue hardship. The Commission noted that Complainant had been arriving at work at 10:00 a.m. for approximately four years without incident. Thus, the Commission concluded that the Agency failed to provide Complainant with a reasonable accommodation in violation of the Rehabilitation Act. The Agency was ordered, among other things, to provide Complainant with a reasonable accommodation in the form of a flexible work schedule, restore any leave used by Complainant due to the failure to provide her with a reasonable accommodation, and investigate Complainant's claim for damages. Lamb v. Soc. Sec. Admin., EEOC Appeal No. 0120103232 (March 21, 2012), request for reconsideration denied, EEOC Request No. 0520120399 (October 10, 2012).

Denial of Reasonable Accommodation Found. Complainant, an Air Conditioning Equipment Mechanic, WG-10, sustained an injury on the job when he was exposed to unsafe levels of bacteria. As a result, he was diagnosed with asthma which caused difficulty breathing when he was exposed to certain substances. Complainant submitted requests for reasonable accommodation in 2005 and 2006. Specifically, Complainant requested that the Agency reduce the amount of time he worked on air handlers. A Reasonable Accommodation Review Committee (RARC) concluded that Complainant would not be able to work in his current position, and recommended that Complainant be moved to another assignment. In March 2006, the Agency's Engineering Service staff meeting agenda listed 10 vacant positions, including an Electronics Mechanic and Vehicle Operator position. In May 2006, the Agency began a search for vacant positions for Complainant, and ultimately assigned him to a GS-6 level clerical position with rotating shifts. The Department of Labor deemed this position unsuitable for Complainant. Complainant then applied for an Electronic Mechanic position, but was not referred to the Selecting Official. Complainant filed two formal EEO complaints alleging, among other things, that the Agency discriminated against him when it denied him reasonable accommodation. Following an investigation, an AJ issued a decision without a hearing finding no discrimination.

On appeal, the Commission initially found that the AJ's issuance of a decision without a hearing was appropriate because there were no genuine issues of material fact. The Commission concluded, however, that Complainant was denied reasonable accommodation. According to the record, the RARC determined that Complainant was an individual with a disability, and was substantially limited in the major life activity of breathing. The Commission noted that the Agency did not consider Complainant to be a qualified individual with a disability with respect to his Air Conditioning Equipment Mechanic position. The Commission stated, however, that the Agency must look beyond the position which the employee presently encumbered when determining whether the employee was "qualified." The record reflected that Complainant asked to be assigned to an available position in the Engineering Department, where at least nine positions were available. The Agency did not dispute that Complainant could perform the essential functions of the Motor Vehicle Operator position, and there was no evidence that the position would have affected Complainant's medical condition. Therefore, Complainant was a qualified individual with a disability. While the Agency stated that the Motor Vehicle Operator position was filled in April 2006, the RARC recommended that management perform a search for vacant positions for Complainant in March 2006, more than one month prior to the time the position was filled. Thus, Complainant showed that there was a vacant position for which he was qualified at the time he sought accommodation, and the Agency should have assigned him to that position. The Commission noted that the GS-6 level clerical position was not equivalent to Complainant's prior position in terms of pay, status, or related factors. Thus, the Commission concluded that the Agency failed to make a good faith effort to accommodate Complainant. The Agency was ordered, among other things, to offer Complainant a Vehicle Operator position or substantially equivalent position in the Engineering Department, pay Complainant appropriate back pay and benefits, and conduct a supplemental investigation with regard to Complainant's claim for damages. Petted v. Dep't of Veterans Affairs, EEOC Appeal No. 0120090266 (December 14, 2011), request for reconsideration denied, EEOC Request No. 0520120240 (December 7, 2012).

Under Title VII

Sex-Based Harassment Found. Complainant filed a formal EEO complaint alleging, among other things, discrimination on the basis of sex when she was continuously subjected to a hostile work environment by her Supervisor beginning in July 2008. Following an investigation, Complainant requested an administrative hearing. Complainant testified that her Supervisor was overly friendly, shared too much information about his life, and stared at her inappropriately. Complainant asserted that he would routinely come into her office and stare at her chest and crotch. She also asserted that the Supervisor made various remarks to the effect that she was attractive and needed to find a man. Testimony from other individuals, both male and female, corroborated Complainant's assertion that the Supervisor generally stared at women's chests in the office. An AJ concluded that the Agency was not liable because the conduct in question was not sufficiently severe to constitute a hostile work environment.

On appeal, the Commission reversed the AJ's finding regarding sex-based harassment, concluding that the conduct in question was severe enough to constitute a hostile work environment. The Commission noted that the record showed that Complainant was subjected to unwelcome verbal and physical conduct based on her sex, and that the Supervisor's conduct became "progressively worse" such that it interfered with Complainant's ability to do her job. Thus, from a reasonable person's point of view, the conduct had the purpose or effect of unreasonably interfering with Complainant's work environment. The Commission also found that, while the Agency did quickly commence an investigation into Complainant's allegations, it did not take prompt action to address the situation. The record reflected that it was almost four months before any corrective action was taken and Complainant was provided with a different supervisor. Thus, the Agency was liable for the harassment. The Agency was ordered to, among other things, determine Complainant's entitlement to compensatory damages, and provide EEO training to responsible management officials. Schmid v. U.S. Postal Serv., EEOC Appeal No. 0120101575 (June 12, 2012).

Sex-Based Harassment Found. Complainant worked for the Agency as a Budget Analyst. Complainant filed a formal EEO complaint alleging that the Agency subjected her to sex-based harassment and that her second-level Supervisor (S2) and the Deputy Base Civil Engineer (S3) failed to take action to end the discrimination. Complainant stated that S2 denied her the opportunity to attend two training conferences; changed office policy coverage with regard to leave, scheduling, meetings and conferences when Complainant requested leave and training; gave another employee (E2) high profile duties; demeaned female subordinates; and told Complainant he hated women. Following a hearing, the AJ issued a decision finding that Complainant was subjected to harassment based on her sex which created a hostile work environment.

The Commission affirmed the AJ's findings on appeal. The Commission noted that the record showed that Complainant was subjected to unwelcome verbal and non-verbal conduct based on her sex. Specifically, Complainant testified about S2's negative behavior toward her and other women in the office, and toward women in general. According to Complainant, S2 insinuated that women were stupid, talked down to women, spoke to women in a curt manner, and made various negative comments about two women. Other witnesses also testified as to S2's hostile treatment of women in the office, stating that S2 acted aggressively toward women, called them "stupid," and questioned their abilities. The Commission declined to reweigh the witnesses' credibility on appeal, stating that the Agency did not show that the testimony of Complainant and her witnesses so lacked credibility that a reasonable fact finder would not find it credible. The Commission further found that the record supported the AJ's determination that S2's behavior reasonably interfered with Complainant's work performance. The Commission stated that S2's actions were sufficiently pervasive to create an abusive work environment, and the record showed that S2 exhibited a pattern of offensive conduct toward Complainant and the women in the office for almost two years. Finally, the Agency failed to demonstrate, by a preponderance of the evidence that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities. The Agency was ordered, among other things, to pay Complainant $100,000 in proven compensatory damages, and $129,216.53 in attorney's fees. Fivecoat v. Dep't of the Air Force, EEOC Appeal No. 0720110035 (May 15, 2012).

Race Discrimination Found. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it did not select her for a Social Worker Executive position in 2006. According to the record, the retiring Social Worker Executive recommended Complainant to be Acting Social Worker Executive in 2003. The Chief of Staff, however, appointed another employee (SE1) to the Acting position. In 2006, Complainant applied for the position of Supervisory Social Worker (Social Worker Executive) and was referred for consideration. A panel reviewed the applications, and recommended that the Chief of Staff re-advertise the position since none of the candidates demonstrated the necessary leadership and management skills. The Chief of Staff disagreed, and convened a second panel to re-evaluate Complainant, SE1, and two other candidates. The panel recommended SE1, and the Chief of Staff ultimately chose SE1 for the position. Complainant had 27 years of social work experience at the Agency, including a six month appointment as an Acting Social Worker Executive. SE1 had 26 years of social work experience, 20 of which were at the Agency and served as an Acting Social Worker Executive for three years. Following the investigation, Complainant requested an administrative hearing in the matter. During the hearing, the Chief of Staff testified that SE1 had done "an outstanding job" in the Acting position, and he thought she got along with others better than Complainant. The Chief acknowledged that he had "probably" made disparaging or derogatory statements about African-Americans at some point at time, but stated that he did not do so in a public forum. He denied making derogatory statements about Complainant, but stated that he had heard concerns from other people about Complainant's inability to collaborate with others. Complainant's Supervisor, however, stated that the Chief called Complainant "divisive" and "a troublemaker," and stated that she "caused problems." Complainant stated that there had never been an African-American Social Worker Executive during her 30 years at the facility. The AJ ultimately issued a decision finding that the Agency did not discriminate against Complainant.

On appeal, the Commission found that the evidence showed, more likely than not, that Complainant's non-selection was motivated by race. Complainant, an African-American, was on the list of qualified candidates referred to the second panel, but was not selected in favor of a candidate outside of her protected group. While the Agency articulated a legitimate, nondiscriminatory reason for selecting SE1, that is her experience in the Acting position, ability to work well with others, and responses to interview questions, the Commission found that, given the totality of the circumstances, the Agency's reasons were a pretext for race discrimination. The record contained an admission by the Chief that he made negative race-related statements about African-Americans. The Commission found that this admission constituted relevant evidence of racial bias or animus. Further, there was unrebutted evidence of the lack of African-Americans in Supervisory Social Worker positions, and the demographic breakdown of employees in the Office of the Chief of Staff showed that all four of the GS-13 or higher level employees were Caucasian. The record also showed that SE1's three-year appointment to the Acting position was an unusual personnel practice, and the Chief failed to provide an explanation for why he appointed SE1 instead of following through with the recommendation to appoint Complainant. Thus, the Commission concluded that the Agency's explanation for Complainant's non-selection was a pretext for race discrimination. The Commission noted that the AJ erred in not allowing a statement from the retiring Social Worker Executive that Complainant was the strongest candidate and surpassed SE1, and in failing to reconcile the testimony of the Chief that he did not make derogatory comments about Complainant with the Supervisor's testimony that he had done so. Thus, Complainant proved, by a preponderance of the evidence that she was discriminated against on the basis of her race. The Agency was ordered, among other things, to retroactively offer Complainant the Supervisory Social Worker (Social Worker Executive) position or a substantially equivalent position with appropriate back pay and benefits, and conduct a supplemental investigation with regard to Complainant's claim for damages. Barnette v. Dep't of Veterans Affairs, EEOC Appeal No. 0120100558 (May 11, 2012), request for reconsideration denied, EEOC Request No. 0520120469 (October 24, 2012).

Race Discrimination Found. Complainant, a Maintenance Coordinator, applied for the position of Maintenance Supervisor. Complainant met the minimum qualifications for the position, and was interviewed but not selected. Complainant was ranked eighth of the nine candidates interviewed. Complainant subsequently filed a formal EEO complaint, alleging that the Agency discriminated against him on the basis of his race when it did not select him for the position. In his affidavit, Complainant also alleged that the Agency retaliated against him when it reassigned him to a different position. While the Agency amended the complaint to include the basis of reprisal, the Agency failed to add the reassignment claim. The Agency subsequently issued a final decision finding no discrimination.

On appeal, the Commission initially found that Complainant established a prima facie case of race discrimination, because he met the qualifications for the position but was not selected in favor of two candidates outside of his protected group. The Commission further determined that the Agency failed to meet its burden of articulating a legitimate, nondiscriminatory reason for Complainant's non-selection. While the Maintenance Manager averred that he used a position selection matrix to determine the best qualified candidates, he did not explain why he chose the two Selectees over Complainant. The Manager failed to provide an individualized explanation for Complainant's scores on the position selection matrix. When asked by the EEO Investigator to compare Complainant's qualifications with those of the Selectees, the Manager listed the numbers on the matrix but did not provide any additional information as to why Complainant received lower scores or what qualities made the Selectees better qualified for the position. The Manager's statements about the candidates' supervisory experience were also not sufficiently specific and clear, and provided no insight into how the Manager evaluated the Selectees' supervisory experience in comparison with Complainant's experience. Thus, the Commission stated that the Agency failed to rebut the inference of discrimination, and the Commission found that Complainant was discriminated against when he was not selected for the position. The Agency was ordered, among other things, to offer Complainant the Maintenance Supervisor position, or a substantially equivalent position, with appropriate back pay and benefits, and investigate Complainant's claim for compensatory damages. The Commission also found that the Agency erred in not amending Complainant's complaint to include the subsequent, but related, reassignment claim. Since the record did not contain any documentation or other evidence regarding the reassignment, the Commission ordered the Agency to conduct a supplemental investigation and issue a new decision with regard to that issue. Duncan v. Tenn. Valley Auth., EEOC Appeal No. 0120100344 (December 14, 2011), request for reconsideration denied, EEOC Request No. 0520120244 (November 9, 2012).

Under Multiple Bases

Race Discrimination and Retaliation Found. Complainant, a Plumber/Helper, filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race and in reprisal for prior protected EEO activity when it failed to promote him to the WG-10 level. The record showed that the Agency, pursuant to a settlement agreement in a prior complaint, agreed to have Complainant perform the WG-10 position for six weeks in order to determine if he was qualified for the promotion. If Complainant was determined qualified, the Agency agreed to post a WG-10 position for which he could apply. At the end of the evaluation period, the Work Leader did not recommend Complainant for a promotion. It is undisputed that the Work Leader was aware of Complainant's EEO activity. The Supervisor also recommended against Complainant's promotion, although he had not inspected Complainant's work during the trial period. As a result, Complainant was not promoted to the WG-10 position.

Following a hearing, the AJ found that Complainant was discriminated against as alleged, and the Commission affirmed the AJ's decision on appeal. The Commission initially noted that the record supported the AJ's finding that Complainant was qualified for the position based upon his successful performance in his WG-9 level position and the lack of evidence that he failed to adequately perform during the trial period. Further, while the Agency articulated legitimate non-discriminatory reasons for its decision not to recommend Complainant for promotion, the AJ found that the testimony of the responsible management officials at the hearing was vague, contradictory and, in sum, not credible. The AJ stated that the management officials failed to provide specific and detailed answers during the hearing, and their testimony was not always supported by the evidence of record. Thus, the Commission concluded that Complainant established discrimination with regard to the non-selection. The Agency was ordered, among other things, to retroactively promote Complainant with appropriate back pay and benefits, and pay Complainant $25,000 in proven compensatory damages. Muse v. Dep't of Justice, EEOC Appeal No. 0720110032 (July 12, 2012).

Race, Sex and Reprisal Discrimination Found. Complainant worked for the Agency as an Electrician and Temporary Electrical Instructor. He filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race and sex, and in reprisal for prior EEO activity when it did not select him for a Maintenance Specialist Nuclear (Electrical Planner) position. According to the record, Complainant applied for four Electrical Planner positions advertised under the same vacancy announcement. Complainant had an electrical license, two associate degrees, and 19 years of electrical experience, 17 of which were in maintenance. Complainant also served as an Instructor. Neither Complainant nor any of the four African-American males who applied for the positions were offered an interview. Four Caucasian males who had no prior EEO activity were selected. The record showed that there were no African-American Planners at the facility during the period in question.

On appeal, the Commission found that the Agency discriminated against Complainant when it did not select him for the Electrical Planner position. The Commission initially noted that Complainant was qualified for the position, but was not referred for an interview while others outside of his protected class with lesser qualifications were interviewed and selected. In addition, one of the officials involved in the selection process (S2) was a participant in Complainant's first EEO complaint and had been deposed less than one month before Complainant applied for the position herein. While the Agency maintained that Complainant did not receive a high enough rating of an objective matrix to be offered an interview, the Commission found that Complainant proved, by a preponderance of the evidence, that the Agency's reasons were a pretext for discrimination and retaliation. The record showed that Complainant was credited with only five to 10 years of experience, and did not receive credit for his degrees or his specialized license. The Agency selected individuals with less education, experience, and years of service than Complainant, and even credited some individuals with more experience than was warranted by their resumes. The responses provided by management officials did not explain why they deviated from Agency standards or why Complainant did not receive full credit for his education and experience. The Commission found that the matrix was based on subjective criteria that adversely denied Complainant an equal and fair opportunity to compete for the position based on his actual qualifications. The Agency's reasons for not selecting Complainant were inconsistent with the objective evidence in the record, and, thus, the Commission found that they were not true or legitimate. The Agency was ordered, among other things, to retroactively place Complainant into an Electrical Planner position or a substantially equivalent position, with back pay and benefits, and investigate his claim for compensatory damages. Thirlkill v. Tenn. Valley Auth., EEOC Appeal No. 0120121029 (June 6, 2012).

Race Discrimination and Retaliation Found. Complainant, a Vehicle Operator, filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his race (African-American) and in reprisal for prior EEO activity when he was not provided with training and higher-level detail assignments. Complainant asserted that other employees outside of his protected groups received these benefits. Following a hearing, the AJ issued a decision finding discrimination. Specifically, the AJ found that the Agency discriminated against Complainant when it did not select him for an Acting Supervisor detail. The AJ determined that Complainant was well qualified for higher-level details, had a positive performance record with no performance problems or disciplinary action, and every witness agreed that Complainant had been a superb employee. Nevertheless, Complainant never once was afforded the opportunity for Acting Supervisor details or training in his over 20 years with the Agency. Complainant expressly requested the opportunity to serve as an Acting Supervisor in 2004, but was not placed into the position even though there was a regular rotation of other employees into the detail. The Acting Supervisor positions were not posted, and Complainant never received feedback from management as to why he was not selected. One Supervisor (S1) testified that he told the Manager on a number of occasions that Complainant could do the work of an Acting Supervisor and that the Manager should give Complainant the opportunity. The AJ acknowledged that some Caucasian employees chosen for the detail assignments were well qualified, but found that others were not, and specifically pointed to several individuals who were less qualified than Complainant. The AJ allowed the Agency to submit the Manager's deposition to be used in lieu of testimony because of the Manager's health, but found him not to be a credible witness because he was evasive and frequently stated that he did not recall incidents and conversations.

On appeal, the Commission affirmed the AJ's finding of discrimination. The Commission rejected the Agency's argument that Complainant could only establish a prima facie case by comparing himself to others in the same job title. The record showed that all employees at the facility were eligible for temporary assignments to Acting Supervisor positions provided they were qualified, and, as such, Complainant could be compared to all employees at the facility. Further, Complainant engaged in protected EEO activity when he filed prior complaints of discrimination, the Agency officials were aware of his activity, and he was subsequently denied supervisory details. With regard to the Manager's statements, the Commission found that even if the Manager's lack of recollection was due to his illness, his testimony did not rebut the assertions of Complainant and S1 concerning the Manager's unwillingness to consider Complainant for a detail assignment. The Agency was ordered, among other things, to pay Complainant $20,000 in proven compensatory damages, give Complainant the next available Acting Supervisor assignment, give Complainant future assignments in rotation with his co-workers, and provide him with back pay representing the times his co-workers were detailed into the Acting Supervisor position. Johnson v. U.S. Postal Serv., EEOC Appeal No. 0720100024 (May 15, 2012).

Race, Sex, Age and Reprisal Discrimination and Harassment Found. Complainant, a Service Representative, filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race, sex, age and in reprisal for prior EEO activity when her Supervisor subjected her to a hostile work environment for over one and one-half years, and when the Agency announced a Claims Representative position as a bilingual position in a deliberate effort to preclude her from applying. Following a hearing, the AJ found that Complainant was discriminated against and harassed as alleged. On appeal, the Commission affirmed the AJ's findings. Complainant cited a number of incidents when co-workers outside of her protected groups were treated more favorably. For example, some Trainees were allowed to train each other while Complainant was told not to do so. In addition, another employee was permitted to have someone from outside of the office observe his work. Complainant stated that her Supervisor threatened her career, yelled at and contradicted her at an office-wide meeting, told her not to use the front door, and delayed approval of her Family and Medical Leave Act request. Even after the individual was no longer supervising Complainant, he continued to have significant interactions with her, and witnesses testified that the Supervisor singled Complainant out for harsh treatment. The AJ found that while the Agency removed the individual from his position as Complainant's immediate Supervisor, the action did little good and the Supervisor continued to harass Complainant. The Commission found that substantial evidence, coupled with the AJ's determination that Complainant's testimony concerning her treatment by the Supervisor was credible, supported the AJ's determination that the actions complained of occurred as Complainant described and were sufficiently severe or pervasive to create a discriminatory hostile work environment. The Commission also concluded that the Agency failed to meet its burden of proving its affirmative defense that it exercised reasonable care to prevent and promptly correct the harassing behavior.

With regard to the Claims Representative position, the record showed that it was widely known at the Agency that Complainant wanted such a position. Complainant argued that the Agency advertised the position with the requirement that the successful applicant speak both Spanish and English for the sole purpose of preventing her from qualifying for the position. The Commission rejected the Agency's assertion that the AJ improperly used a disparate impact analysis, stating that the AJ found that the Agency discriminated against Complainant by deliberately preventing her from applying or qualifying for the position. While the Agency articulated a legitimate reason for its action, that is it needed a Spanish-language Representative to handle claimants who spoke only Spanish, Complainant successfully established pretext. The Agency took no action to determine if there was a need for a bilingual Claims Representative in the area, and the office conducted an average of only three Spanish-speaking interviews per month. In addition, 19 percent of the employees in the office were bilingual, Agency employees had access to an interpreter service, and the individual selected had not conducted interviews with Spanish-speaking clients since being hired. The Commission noted that it was not ruling that, in general, the hiring of bilingual employees constituted discrimination, only that, in this case, the AJ's findings were supported by substantial evidence. The Agency was ordered, among other things, to provide Complainant with priority consideration for the next available Claims Representative position, and pay her $65,000 in proven compensatory damages. Banks v. Soc. Sec. Admin., EEOC Appeal No. 0720100014 (April 27, 2012).

Disability Discrimination and Retaliation Found. Complainant began working for the Agency in the mid-1990s, and injured his back in 2004. During his employment, Complainant had various problems with the Postmaster (S1) and filed several claims against her. In 2005, the Agency converted Complainant from a part-time flexible Carrier to a full-time regular Carrier, and changed his route. Complainant subsequently re-injured his back while on the job. Complainant indicated that the re-injury occurred from carrying more weight and for a longer distance during his route. In November 2005, Complainant's neurologist asked the Agency to allow Complainant to use a pull cart to carry mail. In July 2006, Complainant's family physician restricted Complainant to no lifting over 15 pounds and no bending, prolonged standing or walking, and requested that Complainant be allowed to use roller bags when carrying mail. The record reveals that the physician and a neurosurgeon subsequently provided additional restrictions, and the neurosurgeon stated that Complainant was totally disabled in June 2007. Complainant underwent additional examinations by two different neurosurgeons, and returned to work on May 8, 2010.

Complainant ultimately filed a formal EEO complaint in May 2007 alleging that the Agency discriminated against him on the bases of his sex and disability, and in reprisal for prior EEO activity when it denied him reasonable accommodation and subjected him to a hostile work environment. Complainant asserted that S1 assigned him to a different route because she knew he had residual issues from his original injury. Complainant also stated that S1 tried to get others to dislike Complainant, made negative comments about him, and subjected him to greater scrutiny. Following an investigation, an AJ held a hearing in the matter, and found that the Agency discriminated against Complainant on the basis of his disability when it failed to provide him with reasonable accommodation, and subjected him to a retaliatory hostile work environment.

The Commission affirmed the AJ's findings on appeal. The record showed that Complainant was unable to lift more than 15 pounds, had difficulty walking and could not reach above his head. Thus, the record supported the AJ's finding that Complainant was an individual with a disability because he was substantially limited in the ability to lift, walk, and reach. Further, the Commission found that Complainant was qualified, since he was able to perform the essential function of "casing and delivering mail" with the assistance of the requested reasonable accommodations. Complainant's doctors requested a pull/push cart for Complainant and no lifting over 15 pounds, which the Agency did not provide. Instead, the Agency continued to require Complainant to deliver and collect mail without the cart. The Commission found that the accommodations which the Agency did provide, a satchel weighing no more than 20 pounds and a limited dismount exception were not effective. While the Agency stated that it did not provide the cart because it would not have been safe due to the lack of sidewalks and amount of traffic, the Agency allowed Complainant to walk the same route wearing simply an orange safety vest. In addition, a co-worker testified that he carried Complainant's route at some time and used a push cart. The AJ did not credit S1's testimony concerning accommodation of Complainant and the circumstances of his route. Thus, the Commission concluded that the Agency failed to present credible evidence that it would have been an undue burden to provide Complainant an effective accommodation, and, as such, the Agency violated the Rehabilitation Act.

With regard to the AJ's finding of retaliation, the Commission noted that Complainant filed prior complaints against S1, and S1 was aware of Complainant's prior EEO activity. Given the timeline in the case, the history between Complainant and S1, and the adverse actions S1 took against Complainant, the record supported the AJ's finding of reprisal. Complainant testified that, among other things, S1 publicly referred to him as an overweight television character, tried to isolate him from his co-workers, subjected him to greater scrutiny, sought a fraud investigation against him, and talked about Complainant and his EEO matters to others. The Commission found the testimony and evidence supported Complainant's assertions. Thus, the Commission found that substantial evidence supported the AJ's finding of hostile work environment harassment based on reprisal. As relief, the Agency was ordered to, among other things, offer to reinstate Complainant to his position or a substantially equivalent position, with appropriate back pay and benefits, and pay Complainant $100,000 in proven compensatory damages. Small v. U.S. Postal Serv., EEOC Appeal No. 0720100031 (April 5, 2012).

Retaliation

Retaliation Found with Regard to Termination and Evaluation. Complainant, a Casual Letter Carrier, injured her knee while at work. Complainant initially indicated to her Supervisor that she intended to resign, and two days later told her Supervisor that the Human Resources Office arranged to transfer her to another position within her medical restrictions. Complainant subsequently informed the Station Manager that she intended to resign from her position at a later date in order to be reassigned to the new position. The Station Manager asked Complainant to resign that day, and when Complainant did not do so, the Station Manager terminated Complainant and completed a final evaluation rating her as "unsatisfactory." The Station Manager did not inform Complainant of her termination, and Complainant only learned of the action when she reported to Human Resources for reassignment. Complainant then filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her age and disability when, among other things, it terminated her and gave her a bad evaluation. At the conclusion of the investigation, Complainant requested an administrative hearing. During the pre-hearing process, Complainant submitted a motion to amend her complaint to add the basis of reprisal. The AJ granted Complainant's motion and, after a hearing, found that Complainant was subjected to reprisal with regard to her termination and the evaluation.

On appeal, the Commission initially declined to address several issues leading up to Complainant's termination for which the AJ found no discrimination, as well as the basis of age discrimination, because neither party challenged the findings on appeal. The Commission found that the AJ properly allowed Complainant to amend her complaint to include the basis of reprisal. The Commission stated that the claim of reprisal based on the same incidents that were raised initially was sufficiently like or related to the original claims and could have reasonably been expected to grow out of the original investigation.

The Commission then found that the AJ's finding of reprisal was supported by substantial evidence in the record. The record showed that Complainant requested reasonable accommodation when she requested a Casual Clerk position. Further, the Commission stated that the Agency's proffered reason for terminating Complainant and providing her with a negative evaluation demonstrated a bias against Complainant's request for accommodation. Shortly after Complainant discussed her injury and medical needs with the Station Manager, the Station Manager wrote an evaluation rating Complainant's performance "unacceptable" and commented that Complainant did not complete her assigned duties and was resigning. The Station Manager testified that she terminated Complainant because "if she was not productive for me, there is no indication…that she is going to be productive for somebody else." The Station Manager also indicated that reassignment might have been an option if Complainant had discussed it with her. The Commission found that the Station Manager's statements clearly showed animus toward Complainant's choice to resign through the Human Resources Office and be reassigned, rather than resign with the Station Manager. Thus, the Commission concluded that the Agency engaged in adverse treatment that was reasonably likely to deter individuals from engaging in protected activity. Although the Station Manager testified that Complainant's work and attendance were unsatisfactory, there was no evidence to show that these reasons alone were enough to terminate Complainant and provide her with a negative evaluation. Complainant had worked for the Agency for many years, and had high performance ratings in the past. The Agency was ordered to, among other things, offer to reinstate Complainant to a Casual Clerk position with back pay and related benefits, pay Complainant $85,000 In proven compensatory damages, remove the negative evaluation, and pay Complainant proven attorney's fees and costs. Mannon v. U.S. Postal Serv., EEOC Appeal No. 0720070074 (April 4, 2012).

Retaliation Found with Regard to Termination. Complainant, an Aviation Security Officer, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when it terminated her from her position. Complainant stated that she was never told there were concerns with her performance, and the termination occurred one month after she filed a complaint regarding job assignments. Following an investigation, the Agency issued a final decision finding no discrimination. On appeal, the Commission concluded that Complainant was discriminated against when she was terminated. A number of reasons were given for the termination by one of Complainant's Supervisors (S2), including that she was a "problem employee" who needed to be counseled about her work. However, another Supervisor (S1) did not support S2's articulated reasons, stating only that the Agency was allowed to terminate a Security Officer's employment contract for any reason. Two other Supervisors denied that Complainant had any performance problems, and one of those Supervisors even described Complainant as "one of the best hands" the Agency had. Thus, the Commission found a lack of evidence to support S2's proffered reason for Complainant's termination, which, when considered with the fact that Complainant's termination occurred only one month after filing her complaint, was sufficient to show that the Agency engaged in unlawful retaliation. The Agency was ordered, among other things, to offer Complainant reinstatement to her position, with appropriate back pay and benefits, and investigate her claim for damages. King v. Dep't of Justice, EEOC Appeal No. 0120111958 (April 3, 2012), request for reconsideration denied, EEOC Request No. 0520120397 (October 3, 2012).

Remedies

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

Remedies Discussed. Complainant filed a formal EEO complaint alleging that she was subjected to discriminatory harassment by an Agency Branch Chief. Following an investigation, Complainant requested that the Agency issue a final decision in the matter. While the Agency found that Complainant failed to prove her claim of age and national origin discrimination, the Agency did find that she was subjected to retaliatory harassment. Complainant was a non-supporting witness in the Chief's EEO case, and there was evidence in the record that the Chief escalated her harassment of Complainant to deter Complainant and others from pursuing any future EEO action. In the final decision, the Agency was ordered to conduct training for all responsible management officials, issue a decision on the issue of attorney's fees and costs, and post notice of the finding of discrimination. On appeal, the Commission found that Complainant was entitled to additional relief as a result of the finding of harassment. Specifically, the Commission stated that Complainant was entitled to have any leave she took because of the retaliatory harassment restored to her. One of Complainant's co-workers stated that Complainant was "harassed so much" by the Chief that she was out of work on sick leave for approximately three months. In addition, the Commission concluded that the Agency should offer Complainant a substantially equivalent lateral position in another branch that is not supervised by the Chief. The record showed that the Chief sent Complainant hostile e-mails, ridiculed her, accused her of engaging in improper conduct, and at least eight witnesses stated that the Chief engaged in extraordinary acts of harassment against subordinate employees. Thus, the Commission stated that the retaliatory harassment could not be remedies as long as the Chief remained in Complainant's chain of command. Jordan v. Dep't of Agric., EEOC Appeal No. 0120103446 (May 25, 2012).

Back Pay Discussed. In a prior decision, the Commission affirmed an AJ's finding that Petitioner was discriminated against on the basis of his age when he was terminated during his probationary period. The Commission ordered the Agency, among other things, to pay Petitioner back pay. Petitioner subsequently notified the Commission that he believed the Agency failed to accurately calculate his back pay award. The Commission initially denied the petition for enforcement, finding that the Agency afforded Petitioner an explanation for its back pay calculations and Petitioner failed to show that he was entitled to an additional award. The Commission subsequently issued the instant decision to address additional issues concerning the back pay award. The Agency excluded the period from June 2006 through July 2006 from the back pay award, stating that Petitioner was not making efforts to find alternate employment. The Commission noted that a back pay claimant generally has a duty to mitigate damages, and it is the Agency's burden to establish that the employee failed in his duty to mitigate. The Commission found that the Agency carried its burden of proof in this regard. During the two months at issue, Petitioner was not engaging in reasonable efforts to find comparable employment. While Petitioner was attempting to obtain a teaching certificate and may have accepted a few sporadic substitute teaching assignments, the record did not show that he was looking for comparable work or that he was ready, willing and able to work in a comparable position. The Commission stated that Petitioner voluntarily abandoned the job market during the time in question and focused on obtaining his teaching certificate. Since Petitioner made no reasonable efforts to mitigate his damages and failed to adequate explain his lack of effort, the Commission concluded that the Agency did not have to show that there were suitable positions available which Petitioner could have discovered. The Commission noted that the Agency provided a clear and concise statement of the method used to calculate Petitioner's back pay. The Acting Manager of Labor Relations stated that while the normal process is to use a 13 pay period history, Petitioner was only employed for five pay periods. Therefore, the Agency determined the hours Petitioner would have worked by adding the hours worked by the other employee in his position and the overtime hours utilized, then dividing that number by two which represented the number of employees in his position who would have worked had Petitioner not been separated. The Commission was not persuaded by Petitioner's assertion that the Agency should have used another formula to calculate back pay, and denied the petition for enforcement. Takahashi v. U.S. Postal Serv., EEOC Petition No. 0420100011 (April 11, 2012).

Sanctions

Sanctions Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it denied her leave request, and placed her in an off-duty status. Following the investigation, Complainant requested an administrative hearing. The AJ, however, ultimately cancelled the hearing as a sanction against Complainant on the grounds that she did not timely complete and return a Designation of Representative form, certify that she had read certain information, or submit a request for witnesses. The Agency then issued a final decision finding no discrimination. Prior to the Agency's issuance of the final decision, Complainant filed an appeal with the Commission challenging the AJ's sanction. The Commission noted that Complainant's appeal was interlocutory and generally would not have been considered. Given the fact that the Agency had rendered a final decision, however, the Commission found the appeal was ripe for consideration. The Commission then determined that the conduct did not warrant a sanction in this case. Complainant stated that her representative did submit a Designation of Representative form and a list of requested witnesses, albeit in an untimely manner, and explained that he had undergone heart surgery. Complainant's representative also provided related medical information. Complainant stated that she replaced her initial representative with her current attorney. The Commission considered the totality of circumstances, including the health of Complainant's representative, the fact that Complainant secured a new representative, and the lack of evidence that the Agency had been prejudiced by the events, in finding that sanctions were not warranted. Thus, the matter was remanded for a hearing. Bell v. U.S. Postal Serv., EEOC Appeal No. 0120121504 (June 13, 2012).

Sanctions Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race and sex when the Representative for the Agency's Coast Guard Mutual Assistance (CGMA) program subjected him to a hostile work environment and declined to approve the full amount of a loan he had requested. The CGMA was an independent, non-profit corporation that provided financial aid to anyone associated with the Coast Guard, including civilian employees. The Representative was an Agency employee. The AJ ultimately issued a decision finding that Complainant did not establish discriminatory harassment or disparate treatment. The AJ, however, ordered injunctive relief as a sanction for the Agency's failure to comply with his order to produce information on the race of loan applicants. Finding the loan program to be a privilege of employment, and noting the Agency's inadequate oversight over the loan program, the AJ enjoined the Agency from providing loans and grants through the CGMA program until it implemented record keeping procedures to ensure that the lending practices complied with Title VII. The AJ also ordered the Agency to pay Complainant $10,000 as well as $12,034.51 in attorney's fees and costs. The AJ further directed that training be provided to CGMA representatives. The AJ indicated that jurisdiction would be maintained to monitor the Agency's efforts to comply with his record keeping directive. He thus ordered the Agency to submit quarterly reports providing, by race, color, sex and national origin, certain information on loans involving Agency employees. The Agency adopted the finding of no discrimination but appealed the AJ's remedial orders.

On appeal, the Commission found that the AJ improperly sanctioned the Agency by enjoining it from providing loans, ordering payment of $10,000 to an unidentified entity, and retaining jurisdiction over the matter. While it was appropriate for the AJ to order attorney's fees and costs related to the discovery issue, the Commission found the additional items were not tailored to the extent and nature of the Agency's actions. The Commission agreed with the AJ's finding that the Agency had an obligation to ensure that employees were free from discrimination with respect to a term, condition, or privilege of employment. In that regard, the CGMA could provide the Agency with information regarding employees who applied for loans, and the Agency could analyze the data, as required by MD-715 to determine if a barrier existed for employees based on their race and/or sex. Thus, the Commission stated that it would have been more appropriate to have ordered the Agency to include the information regarding the CGMA loan program in its MD-715 report to the Commission.

The Commission did conclude that Complainant was subjected to a hostile work environment by the Representative. The evidence indicated that the Representative's reaction to Complainant was rooted in stereotypical views regarding race and sex. The Commission stated that the Representative's implicit bias resulted in her "fear" of a very tall, Black male. This was supported by the testimony of another Black male employee who had experienced a similar reaction from the Representative. The Commission found that the Representative's actions were severe enough to establish a hostile work environment. The Commission affirmed the AJ's finding of no discrimination as to the loan application since the record established that another employee made the decision regarding Complainant's loan with no input from the Representative. The Agency was ordered, among other things, to pay Complainant $10,000 in compensatory damages for the harassment and determine appropriate attorney's fees and costs. Ferebee v. Dep't of Homeland Sec., EEOC Appeal No. 0720100039 (April 24, 2012).

Remand for a Hearing Was Appropriate Sanction. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race, national origin, and in reprisal for prior EEO activity when it terminated him from his position. Following an investigation, the AJ issued a decision without a hearing in favor of the Agency. The Agency issued a final order implementing the AJ's decision from which Complainant appealed.

Upon determining that the Agency had not complied with the initial order to forward the complaint file, the Commission issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed, directing the Agency to forward the file immediately. The Agency responded by submitting a file that was not complete. Specifically, the file did not include any documents associated with the hearing stage proceedings. As a result, the Commission could not determine if the AJ had appropriately issued a decision without a hearing. The Commission stated that a sanction was warranted as a result of the Agency's failure to forward a complete record. The Commission concluded that the appropriate sanction was to vacate the final order and remand the matter to the Agency with instructions to arrange for a hearing. Shehata v. Dep't of Veterans Affairs, EEOC Appeal No. 0120102315 (May 9, 2012).

Denial of Hearing Request Was Proper Sanction. Complainant, a City Carrier, filed a formal EEO complaint alleging that the Agency discriminated against him when it denied him eight hours of full duty in March 2009. At the conclusion of the investigation, during which Complainant refused to submit an affidavit, Complainant requested a hearing. According to the record, Complainant and his representative failed to respond to the Agency's motion to dismiss the complaint, failed to timely submit a prehearing statement and list of witnesses, and did not submit a designation of representative form to the AJ. In addition, Complainant did not respond to the Agency's discovery requests, motion to compel discovery, or motion for summary judgment. The AJ ultimately sanctioned Complainant by dismissing his hearing request, and the Agency issued a final decision finding no discrimination. On appeal, the Commission found that the AJ's decision to deny the hearing request was an appropriate sanction. The Commission noted that Complainant and his representative appeared at a prehearing conference, and stated that they did not respond because they did not receive the motions which were sent to the wrong address. That assertion, however, was contradicted by the fact that Complainant actually acknowledged receipt of the discovery request and motion for summary judgment. Complainant's representative submitted a Track and Confirm which did contain a minor error in the zip code the AJ and the Agency were using. The AJ found, however, that the Postal Service recognized and corrected the error, and delivered the mail to the correct address. Complainant's claims to the contrary were disingenuous and contradicted by the fact that he had notice of and appeared for the prehearing conference. The Commission stated that the AJ's decision to deny the hearing request and remand the matter to the Agency was an appropriately tailored sanction and addressed Complainant's failure to comply with the Commission's directives. The Commission ultimately affirmed the Agency's finding of no discrimination, because Complainant failed to prove that the Agency's legitimate, nondiscriminatory reasons for the action were a pretext for discrimination or reprisal. Williams v. U.S. Postal Serv., EEOC Appeal No. 0120102958 (May 2, 2012).

Default Judgment Proper as Sanction for Agency's Failure to Produce Complete Record. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her disability and in reprisal for prior EEO activity when it denied her request for administrative leave. The matter had been before the Commission previously. At that time, the Commission reversed an AJ's decision without a hearing, and remanded the matter for further processing. Subsequently, a hearing was held resulting in a finding no discrimination. Complainant appealed that decision to the Commission.

The Commission noted that it made several requests to the Agency for the complete record pertaining to the complaint, including the hearing record. In addition, the Commission issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed (Notice to Show Cause). The Notice to Show Cause ordered the Agency to submit the complete file, including the hearing record or provide good cause why it could not do so. The Agency responded to the Notice to Show Cause; however, it still failed to provide a copy of the hearing record and offered no explanation for the omission. The Commission stated that the Agency's failure to submit the complete record made it impossible to determine whether the AJ's findings and credibility determinations were supported by the record. Thus, the Commission entered default judgment against the Agency as a sanction for its repeated failure to forward a complete copy of the record. The Commission noted that it had previously found that Complainant established a prima facie case of discrimination sufficient to create an inference of discrimination based on disability and reprisal which was sufficient to support the default judgment entitling Complainant to relief. The Agency was ordered, among other things, to change Complainant's leave record to show that she used administrative leave on the dates in question, and investigate her claim for compensatory damages. Smith v. Soc. Sec. Admin., EEOC Appeal No. 0120092646 (April 11, 2012).

Settlement Agreements

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement that stated, in pertinent part, that the Agency would provide Complainant with informal training regarding Complement Coordinator duties, and a "fair" opportunity to act for the Manager of Labor Relations when necessary. On appeal, the Commission found that the Agency breached the agreement when it failed to give Complainant the agreed upon training. While the Agency stated that it sent Complainant to an Advanced Complement Coordinator Training course, the record showed that Complainant had previously attended that course. The Commission stated that "informal training" did not mean sending Complainant to a class he had already taken. Further, given Complainant's assertions that another employee received constant informal training on the job which allowed the person to better qualify for future positions, the Commission concluded that the training Complainant was given was not informal training. With regard to the Manager position, the Agency stated that Complainant served in an acting capacity for one day. The Commission, however, noted that this occurred after Complainant filed his notice of breach. In addition, the Agency did not dispute Complainant's assertion that another employee was allowed to serve in the acting position for several weeks. Thus, the Commission was not convinced that the Agency gave Complainant a "fair opportunity" to serve as an Acting Manager. The Agency was ordered to specifically implement the terms of the agreement. Milito v. U.S. Postal Serv., EEOC Appeal No. 0120121051 (May 18, 2012).

Breach of Settlement Found. The parties entered into a settlement agreement whereby the Agency would provide Complainant with 80 hours of annual leave. In a memorandum dated June 27, 2011, the Human Capital Management Division (Division) informed Complainant that it could not change her leave balance to provide her with the agreed upon annual leave, and, instead, Complainant would receive an 80-hour time off award. Complainant rejected the Agency's offer citing different restrictions on the use of award leave, and suggested that the Agency increase the award to 120 hours. Complainant ultimately alleged that the Agency breached the settlement agreement when it did not provide her with the 80 hours of annual leave. On appeal, the Commission found that the Agency did breach the agreement. Complainant correctly noted that there were differences between annual and award leave. While the Agency asserted that the determination concerning the annual leave was made after conversations with the Defense Finance and Accounting Services (DFAS), the record did not include any evidence such as an affidavit or statement from either an individual in the Division or DFAS to support that assertion. The Commission found that the Agency's memorandum alone was insufficient to prove that it could not provide Complainant with 80 hours of annual leave as agreed. The Agency was ordered to replace the 80 hours of award leave provided to Complainant with 80 hours of annual leave, or, in the alternative, provide Complainant with the option of reforming the settlement agreement to provide for 120 hours of award leave in lieu of annual leave. Harris v. Dep't of Health & Human Serv., EEOC Appeal No. 0120120987 (May 3, 2012), request for reconsideration denied, EEOC Request No. 0520120477 (November 16, 2012).

No Breach of Settlement Found. The parties entered into a settlement agreement in 2007 that provided, in pertinent part, that Complainant would be maintained in her current assigned area. In 2010, Complainant alleged that the Agency breached the agreement when she was not allowed to remain in her assigned area. The Agency asserted that Complainant was offered a position working four hours at her assigned area and four hours at another area because there was not enough full time work within her restrictions at the assigned area. On appeal, the Commission found that the Agency did not breach the agreement. The Commission has previously held that there is no breach of a settlement agreement where the individual has held the position specified in the agreement for a period of time and then is moved out of the position because of circumstances not anticipated at the time the agreement was executed. In this case, Complainant remained at her assigned location for a reasonable amount of time, and the Agency did not breach the agreement when operational and economic changes required the Agency to assign Complainant to a different facility almost three years later. Warner v. U.S. Postal Serv., EEOC Appeal No. 0120103715 (April 18, 2012); see also Labrum v. U.S. Postal Serv., EEOC Appeal No. 0120103162 (April 18, 2012) (the Agency did not breach the terms of the settlement agreement when it changed Complainant's job duties approximately seven years after the execution of the agreement because almost all of the tasks Complainant had been performing were absorbed by full time employees whose duties were reduced due to a decrease in mail volume); Taylor v. U.S. Postal Serv., EEOC Appeal No. 0120103737 (April 18, 2012) (the Agency did not breach the settlement agreement when, four years after the agreement was signed, operational and economic changes required the Agency to transfer Complainant to a new craft with different reporting times and days off).

No Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement in October 2006 that provided, in pertinent part, that Complainant would be given a detail assignment for at least four months, and the detail would last as long as there was an assignment available. The agreement also made provisions if and when Complainant returned to her prior position. In 2010, Complainant alleged that the Agency breached the agreement when she was returned to her former location but not to her former position or with the specified scheduled days off. On appeal, the Commission noted that Complainant was detailed to the assignment specified in the agreement for over three years, and was returned to her former location when the detail was no longer available. Thus, the Agency complied with that portion of the agreement. Further, the record revealed that the Agency designated a position for Complainant pending her possible return, and kept that position vacant until May 2009. The Commission noted that the agreement itself noted that many of the duties Complainant originally performed had become obsolete and that any changes to the position would only be undertaken for legitimate business reasons. Over two years after Complainant was detailed, the Agency abolished the position it had kept open for Complainant due to a reduced workload, and notified Complainant of this fact. When Complainant returned to her former location, she was notified that she would be used on an as needed basis since the facility was overstaffed. The Commission found that, in this case, circumstances intervened which were unforeseeable and resulted in the abolishment of Complainant's former position. Thus, the Agency's actions, taken several years after the execution of the agreement, did not constitute a breach. Vinke v. U.S. Postal Serv., EEOC Appeal No. 0120110415 (April 12, 2012).

Settlement Agreement Void for Not Meeting Requirements of OWBPA. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his age when it did not rehire him to a vacant position. The parties subsequently entered into a settlement agreement which provided, in pertinent part, that the Agency would give Complainant the opportunity to re-apply for employment if an opportunity arose within a one-year period. Following Complainant's allegation of breach, the Commission, on appeal, found that the agreement was void because it did not meet the requirements of the Older Workers' Benefits Protection Act (OWBPA). Specifically, the agreement did not mention Complainant's rights or claims under the ADEA, and there was no indication that Complainant was advised in writing to consult with an attorney. Further, there was no indication that Complainant was given a reasonable period of time in which to consider the agreement, and the agreement did not state that Complainant had seven days to revoke the agreement. Thus, the underlying complaint was remanded to the Agency for further processing. Daniels v. U.S. Postal Serv., EEOC Appeal No. 0120103252 (May 31, 2012).

Settlement Agreement Void for Lack of Consideration. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that two management officials would follow the Agency's policies and guidelines, speak and conduct themselves in a professional manner, and not use profanity or derogatory terms to employees. Complainant alleged that the Agency breached the agreement when one of the officials continued to use profanity and derogatory terms. On appeal, the Commission found that the agreement was void for lack of consideration. The Commission stated that a promise by the Agency to follow its policies and treat Complainant professionally did not constitute consideration for the withdrawal of the underlying complaint. Instead, the Agency only agreed to provide something to which Complainant was already entitled, and Complainant, in essence, received no consideration for withdrawing her complaint. Thus, the Commission found that the agreement was not enforceable, and remanded the matter for further processing. Crumer v. U.S. Postal Serv., EEOC Appeal No. 0120102598 (May 4, 2012).

Settlement Agreement Void for Lack of Consideration. The parties entered into a settlement agreement whereby the Agency agreed to refer Complainant to its District Reasonable Accommodation Committee (DRAC) and engage in the reasonable accommodation interactive process. It was also agreed that if Complainant could not continue in her carrier position, DRAC would explore whether she could be reassigned to a position to which "she is entitled by law" at or below her grade level, and if so, offer it to her. The settlement agreement contained a parenthetical that a part-time job would only be offered if no full-time job existed. It also provided that management retained the final decision on all accommodations after DRAC made its recommendations. Complainant was ultimately offered a part-time Mail Handler position, which she accepted. Later, she contended the Agency breached the settlement agreement because full time Mail Handler positions were available. On appeal, the Commission found that the settlement agreement was void because it did not offer Complainant anything more than that to which she was entitled by law, that is, reasonable accommodation for a disability. To the extent the agreement's contradictory language regarding full and part time positions created ambiguity, the Commission turned to extrinsic evidence to aid in the interpretation, noting that the Agency's attorney who negotiated the agreement stated that he believed Complainant was a full time employee and the Agency did not intend to give her a promotion to a full time position as a reasonable accommodation but only that to which she was "entitled by law." Thus, the settlement agreement was void for lack of consideration, and the complaint was remanded to the Agency for further processing. The Commission advised the Agency that since the record suggested Complainant received her part time Mail Handler position as a result of the reasonable accommodation process required by the Rehabilitation Act, nothing in its decision should disturb her placement into that position. Hawkins v. U.S. Postal Serv., EEOC Appeal No. 0120120966 (April 20, 2012), request for reconsideration denied, EEOC Request No. 0520120439 (October 24, 2012).

Settlement Agreement Void for Lack of Consideration. The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would "use due diligence" in processing Complainant's hiring, and Complainant understood that he was the next candidate for an external hire. The agreement also noted, however, that there was "no date certain" as to when hiring would occur. Complainant alleged that the Agency breached the agreement and ultimately filed an appeal. The Commission found that the agreement was void for lack of consideration. The agreement did not state that Complainant would be hired for the next opening nor did it obligate the Agency to give Complainant priority consideration. Further, Complainant was told there was a "hiring pause" and there was no way to know when that would be lifted. Thus, Complainant, in essence, received no consideration. Rachal v. U.S. Postal Serv., EEOC Appeal No. 0120102818 (April 11, 2012).

Settlement Agreement Void for Lack of Consideration. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that the Agency would hold a meeting with three management officials and various maintenance employees to discuss the rotation of overtime. Complainant notified the Agency of an alleged breach, stating that while a meeting was held, the Supervisors merely indicated that there was no overtime available. On appeal, the Commission found that the agreement was void for lack of consideration. The terms of the agreement to hold a meeting did not confer on Complainant any benefit to which he was not already entitled. Further, the Commission did not find a legal detriment to the Agency by its meeting with employees to discuss overtime. The Commission also noted that the terms of the agreement were too ambiguous and vague to be enforced. It was unclear what the parties meant by "rotation of overtime," and the parties appeared to have differing interpretations with respect to what should have occurred at the meeting. Hinojosa v. U.S. Postal Serv., EEOC Appeal No. 0120103366 (April 10, 2012).

Stating a Claim

Claims of Discrimination Based on Transgender Status Cognizable Under Title VII. The Commission accepted an appeal for the limited purpose of clarifying Title VII's coverage of claims involving transgender status. Complainant, a transgender female, alleged in her complaint that she was discriminated against based on sex, transgender status and gender identity when her job offer was canceled after the Agency learned that she was in the process of transitioning from a male to a female. The Agency refused to process the transgender status and gender identity aspects of her claim, finding those "claims" not covered by Title VII and, thus, outside EEOC's jurisdiction.

The Commission held that claims of discrimination based on transgender status, also referred to as gender identity claims, are cognizable under Title VII's sex discrimination ban and may, therefore, be processed under EEOC's regulations. The Commission noted that the Supreme Court held, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that sex discrimination under Title VII was not limited to discrimination because of biological sex. It also encompassed gender stereotyping, that is, when an employer treats an employee adversely for failing to conform to gender-based expectations or norms. The Commission noted that federal courts have widely recognized the availability of the Price Waterhouse "sex stereotyping" theory as a valid method of establishing sex discrimination in cases involving individuals who act or present in gender non-conforming ways. The Commission added that transgender individuals are not limited to proving sex discrimination under a sex stereotyping theory, but may establish sex discrimination in the same ways non transgendered individuals establish such discrimination. The Commission remanded the complaint to the Agency for processing in accordance with its ruling. The decision made no findings with respect to the merits of the claim. The decision makes clear that Commission policy is that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex in violation of Title VII. Therefore, complaints of discrimination on the basis of transgender status should be processed under Title VII as claims of sex discrimination. Macy v. Dep't of Justice, EEOC Appeal No. 0120120821(April 20, 2012).

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

Browning v. Dep't of Labor, EEOC Appeal No. 0120121405 (June 27, 2012) (Complainant's allegations of sexual harassment by her Manager, including a dozen incidents in which the Manager hugged or kissed her, stated a viable claim under Title VII. A fact finder could conclude that the Manager's conduct was severe enough to create a hostile work environment. Complainant stated that she found herself the target of repeated hugs and kisses to the point that she altered her work routine and assignments to avoid contact with the Manager. The Agency's assertions that the incidents occurred at infrequent intervals and were not sexual in nature go to the merits of the claims).

Shamloo v. Dep't of Justice, EEOC Appeal No. 0120121323 (June 15, 2012) (Complainant met the definition of an employee for purposes of stating a claim of discrimination. The contract between Complainant and the Agency indicated that the Agency controlled the means and manner of Complainant's performance. An Agency Supervisor assigned and monitored Complainant's work, and the Agency periodically evaluated Complainant's work product. While Complainant did not earn leave or retirement benefits, and the Agency did not pay taxes on Complainant's services, Complainant did nearly all of his work on Agency premises using Agency equipment, and had a continuing relationship serving the Agency for several years. Thus, the Commission found that the Agency exercised sufficient control over Complainant's position to qualify as his employer); see also Pugh v. U.S. Postal Serv., EEOC Appeal No. 0120121010 (June 15, 2012) (the Agency exercised sufficient control over Complainant's position to qualify as her employer for purposes of the EEO complaint process. The Agency conceded that it oversaw Complainant's duties, and had the right to control the means and manner of her performance, including her schedule, the precise nature of her work and her personal appearance. An Agency employee supervised Complainant's work, some of which was performed at the Agency's premises. While Complainant was required to provide her own vehicle, the Agency dictated the type of vehicle she needed. In addition, Complainant was paid monthly based on the number of hours worked each day. Complainant did not earn leave or retirement benefits and the Agency did not pay taxes, but her duties picking up and delivering mail was an integral part of the Agency's business).

Figueroa v. U.S. Postal Serv., EEOC Appeal No. 0120121557 (June 15, 2012) (the Agency's final decision too narrowly identified the claim. A fair reading of Complainant's informal and formal complaints revealed that she was alleging that the Agency denied her an appropriate amount of work to which she was entitled as a light duty employee, and that her Supervisor did not treat her fairly when he allowed another employee to continue to work the registry. Complainant stated a claim of disparate treatment based on race and sex, and adequately alleged an injury or harm to a term, condition, or privilege of employment).

Gladle v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121572 (June 13, 2012) (Complainant's allegation that her first level Supervisor told a co-worker that Complainant was filing false EEO claims and "faking" a disability, when considered with her second level Supervisor's alleged failure to take action in the matter could have a chilling effect on Complainant's use of the EEO process and stated a viable claim of reprisal).

Azadpour v. Dep't of Transp., EEOC Appeal No. 0120121414 (June 12, 2012) (Although Complainant failed to check a box on his formal complaint form to indicate the basis of alleged discrimination he was claiming, the EEO Counselor's report clearly indicated that Complainant was raising the basis of retaliation, and Complainant confirmed this on appeal. Thus, Complainant stated a viable claim).

Barksdale v. U.S. Postal Serv., EEOC Appeal No. 0120121403 (June 1, 2012) (Complaint and pre-complaint documents identified a series of incidents which were sufficient to state a viable claim of harassment, including Complainant being forced to sign a form agreeing to work two hours daily, and her Supervisor referring to injured employees as "lazy" and "useless," and yelling at Complainant for trying to work overtime. Complainant alleged a pattern of harassment, and the Agency's dismissal of the complaint for failure to state a claim was therefore improper).

Dumas v. U.S. Postal Serv., EEOC Appeal No. 0120121171 (May 31, 2012) (Complainant's claim that the Agency did not allow him to work his bid assignment and denied him overtime stated a viable claim of race and reprisal discrimination. These actions involved work assignments over a period of time and concerned a term and condition of employment. Further, Complainant asserted that employees outside of his protected group were allowed to perform work which he should have been doing, and the alleged discrimination occurred shortly after he signed an EEO settlement agreement).

Murbach v. Nat'l Sec. Agency, EEOC Appeal No. 0120121283 (May 30, 2012) (Complainant's allegation that the Agency did not provide her with a sign language interpreter for a networking dinner reception stated a viable claim of disability discrimination. The dinner was part of a conference Complainant attended. Complainant asserted that the dinner reception was a valuable part of the conference and she was deprived of the ability to effectively participate in the networking opportunity. The Commission noted that the Agency is not relieved of its obligations to provide reasonable accommodation when it contracts with a third party to conduct an event).

Santana v. U.S. Postal Serv., EEOC Appeal No. 0120120672 (May 17, 2012) (Complainant's claim that he was given an official discussion, denied union representation, threatened with discipline, and segregated from other employees stated a viable claim of retaliatory harassment. Taken cumulatively, the claims were clearly adverse and would dissuade a reasonable employee from making or supporting a charge of discrimination).

Marbly v. U.S. Postal Serv., EEOC Appeal No. 0120111499 (May 15, 2012) (Complainant's claim that a management official threatened to fire him while quoting from Complainant's testimony in a prior EEO complaint, was sufficient to state a claim of reprisal because such behavior would be reasonably likely to deter Complainant or others from engaging in protected activity).

Nuzum v. U.S. Postal Serv., EEOC Appeal No. 0120103134 (May 10, 2012) (Complainant's claim that he was sent home and not allowed to work was sufficient to show an injury or harm to a term, condition or privilege of employment, and stated a viable claim of disability discrimination. The Agency's arguments that Complainant failed to produce medical documentation and did not report to work of his own volition went to the merits of the claim, and could not be appropriately considered before an investigation had been conducted).

Harris v. Soc. Sec. Admin., EEOC Appeal No. 0120121157 (May 9, 2012) (Complainant stated a viable claim of discriminatory harassment when she asserted that, after she notified the Agency that she needed to work close to the restroom due to a medical condition related to her pregnancy, the Office Manager told her to move to a work station away from the restroom, told her he "didn't care about her Doctor's note," and directed her to remove the chair she was using to move files in excess of her lifting restrictions. Based on the severity of the alleged events, the Commission concluded that Complainant stated a claim of harassment. The Agency's discussion regarding whether or not Complainant was denied an accommodation went to the merits of the complaint without a proper investigation as required by the regulations).

McCarty v. U.S. Postal Serv., EEOC Appeal No. 0120121066 (May 3, 2012) (Complainant identified a series of alleged incidents, including being subjected to investigations and defamatory statements and denied limited duty work which, when considered with his previous complaint of similar or related incidents by the same responsible management officials stated a viable claim of retaliatory harassment).

Mackey v. Dep't of Transp., EEOC Appeal No. 0120121050 (April 25, 2012) (the Agency improperly framed the claim as concerning only the reassignment to a position at the same pay and grade level. Complainant actually alleged that he was reassigned to his prior position in order to remove him from consideration for a promotional opportunity. Complainant stated that the Agency manipulated his assignment and transferred him to another unit so that he would not qualify for the promotion, and, therefore, he stated a viable claim of discrimination).

Scott v. U.S. Postal Serv., EEOC Appeal No. 0120120986 (April 20, 2012) (Complainant's allegation that she was converted to a Non-Traditional Full Time employee with a schedule of 30 hours per week rather than to a Traditional Full Time employee with a schedule of 40 hours per week stated a viable claim of age discrimination. The Agency's assertion that the conversion was done pursuant to the collective bargaining agreement addressed the merits of the allegation and was irrelevant to the procedural issue of whether Complainant stated a claim under the EEOC's regulations).

Cannon v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113357 (April 18, 2012) (Complainant's allegation that he was denied a promotion stated a viable claim of discrimination. While the Agency characterized the claim as concerning an application for a promotion, Complainant actually alleged that a similarly situated employee outside of his protected class was given a noncompetitive promotion. In addition, Complainant raised a disparate impact claim when he alleged that nurses who were predominantly non-White females were given a salary increase while Physician Assistants who were predominantly Caucasian males were not).

Kuettel v. U.S. Postal Serv., EEOC Appeal No. 0120112793 (April 13, 2012) (Complainant's pre-complaint documents, formal complaint, and statement on appeal showed that she was alleging ongoing sexual harassment by her supervisors and co-workers, including the use of derogatory names, comments about sexual activity, threats to harm Complainant and her children, and unwanted physical contact, which when considered in the light most favorable to her were sufficiently severe or pervasive to state an actionable claim).

Smith v. Dep't of Transp., EEOC Appeal No. 0120120912 (April 12, 2012) (the formal complaint and pre-complaint documents identified a series of incidents that included Complainant's Supervisor informing her she would have additional duties outside of her position description, talking to her in a loud, aggressive and intimidating tone, telling her not to work in a particular office, refusing to adjust her work schedule, and telling her she would be terminated, which alleged a pattern of harassment sufficient to state a cognizable claim under the EEOC's regulations).

Diaz v. U.S. Postal Serv., EEOC Appeal No. 0120121049 (April 11, 2012) (Complainant's allegation that the Manager created a situation in which he could report Complainant and see that he was disciplined in retaliation for Complainant's refusal to withdraw an earlier EEO complaint filed against the Manager stated a viable claim. Complainant stated that the Manager drove around him in an unsafe manner when Complainant was driving an Agency vehicle, causing Complainant to change lanes and abruptly stop. Complainant stated that he attempted to report the unsafe actions, but was given an investigative interview concerning the incident and a proposed suspension for using a cell phone while operating his truck. The Commission stated that those actions would be of the type reasonably likely to deter Complainant from engaging in protected EEO activity).

Puckett v. Tenn. Valley Auth., EEOC Appeal No. 0120120160 (February 28, 2012) (Complainant's allegation that the Agency discriminated against her when it did not select her for a Manager position stated a viable claim of sex discrimination. Although the Agency stated that it cancelled the vacancy announcement for the position, Complainant claimed that the vacancy announcement was cancelled to avoid giving her the position because she was female).

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

Friedman v. Dep't of the Army, EEOC Appeal No. 0120121009 (May 31, 2012) (the Agency properly dismissed Complainant's complaint for failure to state a claim because the record showed that Complainant was not an employee of the Agency. Complainant owned a cleaning service which was awarded a contract by the Agency. The record showed that the Agency did not have the right to control when, where or how Complainant performed her job, nor did it have the right to assign her additional projects or set the hours of work or duration of the job, and Complainant's company furnished all supplies, materials, equipment and transportation necessary to do the work. The Agency paid the company on a monthly basis, and did not provide benefits or withhold taxes. While Complainant performed work on the Agency's premises and there was a continuing work relationship between Complainant and the Agency, the contract and nature of the relationship between the parties did not support a finding that there was an employment relationship); see also Hicks v. Nat'l Aeronautics & Space Admin., EEOC Appeal No. 0120121424 (July 2, 2012) (Complainant was employed by an Agency contractor to provide security services, and the Agency did not exercise sufficient control over Complainant's job to qualify as an employer. Complainant's function involved a moderate level of expertise, she held a top secret security clearance, and worked on Agency premises with materials and equipment provided by the Agency. However, Complainant was not in a "main mission" position, her duties were dictated by the contract, and Agency managers did not provide day-to-day supervision to Complainant or assign her additional projects. The contractor dictated the specific hours she worked, paid her salary and benefits, and both parties stated that Complainant was considered an employee of the contractor for purposes of social security and taxes. The Agency acknowledged that it requested that the contractor identify positions it could cut to reduce its budget, but the contractor identified Complainant's position); Murphy v.U.S. Postal Serv., EEOC Appeal No. 0120121249 (June 27, 2012) (Complainant was solely an employee of an Agency contractor that provided mail transportation service under a term contract. The contractor hired and paid Complainant. The Agency did not provide Complainant with a vehicle or vacation time or assign him work, Complainant was not entitled to participate in the Agency's retirement plan and the contractor paid taxes for Complainant. While the Agency controlled when and where Complainant picked up and dropped off mail, as well as his access to its facilities, there was little else of Complainant's employment that was under the Agency's control); Casiana v. Dep't of the Interior, EEOC Appeal No. 0120121318 (June 15, 2012) (Complainant served as a contractor performing custodial duties for the Agency and was not an employee. While Complainant worked on Agency premises, Complainant provided all equipment and materials, and had flexibility on when she cleaned. Further, under the contract, Complainant supervised her own services, and received payment in installments after submitting invoices. She did not receive leave, did not accumulate retirement benefits, and the Agency did not pay taxes on her services); Timmons v. U.S. Postal Serv., EEOC Appeal No. 0120120899 (May 9, 2012) (the Agency properly dismissed Complainant's complaint for failure to state a claim because the evidence showed that Complainant was solely an employee of one of the Agency's contractors. The documentation of record reflected that this was the parties' intention, and the contractor provided Complainant with the vehicle necessary to perform his duties and paid him for his work. While the Agency controlled when and where Complainant received mail and his access to Agency facilities, there was little else under the Agency's control. Complainant was not allowed to participate in the Agency's retirement plans, the Agency did not withhold taxes, and there was no indication that the Agency had the power to discipline Complainant, approve his leave, or terminate him).

Faugno v. Dep't of the Navy, EEOC Appeal No. 0120103479 (May 24, 2012) (Complainant's allegation that the Agency discriminated against him when it did not select him for a Medical Resident position failed to state a claim pursuant to the EEOC's regulations. Various documents in the record show that the position had an active duty service obligation pursuant to Department of Defense Directives, and Complainant did not dispute that he had to be in an active duty status in order to occupy the position).

Feldman v. Dep't of Agric., EEOC Appeal No. 0120121194 (May 25, 2012) (the Agency properly dismissed Complainant's claim that he was discriminated against when he learned that several employees received time off awards for helping to organize a diversity program. Complainant did not allege that he was denied the opportunity to volunteer for a diversity program or that he participated in such a program but was not recognized, and therefore, was not aggrieved for purposes of the EEOC's regulations).

Summary Judgment

Summary Judgment Proper. Complainant, a Federal Air Marshal, filed a formal EEO complaint alleging that the Agency subjected him to a discriminatory hostile work environment, including chastising him about his appearance and for seeking assistance from a field office regarding his off-duty employment memorandum, placing him on a strength building program, and issuing him a letter of reprimand for unprofessional conduct. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately issued a decision without a hearing finding that Complainant had not been subjected to discrimination or harassment. On appeal, the Commission affirmed the AJ's decision. The Commission initially determined that the AJ properly issued a decision without a hearing. The AJ viewed the evidence in the light most favorable to Complainant when considering the allegations, and noted that there was no dispute that the Special Agent in Charge had spoken to Complainant about his appearance, that Complainant contacted Headquarters for information when he had been instructed not to do so, and that Complainant received a reprimand for his communications with Headquarters. Thus, there were no facts in dispute and no need to resolve any issues of credibility. Further, there was no evidence that the incidents were related to Complainant's national origin or age, and the events, taken as a whole, did not constitute harassment. Finally, the Agency stated that it issued the letter of reprimand because Complainant sent e-mails to another employee, who considered them intimidating and caustic, and Complainant initially refused to identify the source of personal information about the other employee. Complainant did not show that the Agency's reason for the reprimand was a pretext for discrimination. Acosta v. Dep't of Homeland Sec., EEOC Appeal No. 0120093483 (May 11, 2012).

Summary Judgment Proper. Complainant, a former Attorney with the Agency, filed a formal EEO complaint alleging that the Agency discriminated against him when it did not select him for an Attorney position in May 2008. Following an investigation, Complainant requested an administrative hearing. The AJ granted the Agency's motion for a decision without a hearing and found no discrimination. The AJ found that Complainant did not show that he was qualified for the position because he failed to note on his application that he accepted early retirement in October 2007, and Complainant could not have been hired for the same position he held prior to his retirement or rehired for a period of one year. On appeal, the Commission initially found that the AJ's issuance of a decision without a hearing was proper. While Complainant asserted that he could have established that the Agency had the authority to rehire him, the Commission stated that it could assume, for purposes of analysis, that Complainant established a prima facie case. The Commission found that the record was adequately developed and there were no disputes of material fact. Further, the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant. The Panelists who reviewed the resumes knew Complainant, and had concerns about his performance while at the Agency. One Panelist stated that Complainant was considered difficult to work with and was not a team player. Further, Complainant's experience was in a different area than were the vacancies. The Commission concluded that Complainant failed to establish that the Agency's reasons were a pretext for discrimination, and merely asserted, without any supporting evidence, that his age and prior EEO activity played a part in the Agency's decision not to hire him. Gianini v. Dep't of Defense, EEOC Appeal No. 0120112852 (April 20, 2012).

Summary Judgment Improper. Complainant filed a formal EEO complaint alleging that the Agency subjected him to hostile work environment harassment in reprisal for his prior EEO activity. Complainant cited various incidents in support of his claim, including being denied early dismissal and assigned an increasingly heavier work load. The AJ ultimately granted the Agency's motion for a decision without a hearing, and found no discrimination. On appeal, the Commission concluded that the issuance of a decision without a hearing was improper. The Commission initially noted that the AJ improperly fragmented Complainant's harassment claim, and instead treated all of the incidents cited as separate matters. In addition, while the AJ found that Complainant did not engage in protected EEO activity until he contacted the EEO Counselor in March 2007, Complainant engaged in opposition activity when he sent an e-mail to his Supervisor in December 2006 complaining of racial bigotry in the department. Complainant stated that he also verbally complained to department members about the racial bigotry prior to sending the e-mail, and he believed employees in the department were tired of his complaints. The Commission found that there were genuine issues of material fact in the case regarding whether Complainant was denied early dismissal and his work load. Complainant and his Supervisor gave conflicting statements in their affidavits regarding those issues. Thus, the Commission stated that there were unresolved issues which required as assessment of the credibility of Complainant and various Agency employees such that the AJ should not have made a judgment as a matter of law in favor of the Agency. The complaint was remanded for an administrative hearing. Samuels v. Dep't of Homeland Sec., EEOC Appeal No. 0120093633 (May 9, 2012).

Summary Judgment Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when, among other things, she was placed on medical disability and "medical retirement," she was not promoted or provided with adequate support, management officials made various statements to her co-workers concerning her condition and work status, and she was given an inaccurate performance appraisal. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately granted the Agency's motion for a decision without a hearing and found no discrimination. On appeal, the Commission found that the AJ relied on credibility determinations without properly considering Complainant's contrary representations or gaps in the factual record. For example, the AJ relied upon declarations by various Agency officials regarding Complainant's application for disability retirement which Complainant clearly disputed in her own statement. Further, Complainant's assertions were supported by the Disability Program Manager. The Commission found it particularly troubling that the AJ considered witness credibility when finding that the Agency was justified in directing Complainant to have a fitness for duty examination because Complainant cried at the office. The Commission noted that Complainant asserted that, although she cried at the office, she was able to perform her duties and the record showed that she received positive performance evaluations during the relevant time. The Commission found that witness testimony and evidence in the record created a genuine issue of fact as to whether Complainant's supervisors had a reasonable belief that she was unable to perform the essential functions of her position or posed a direct threat. Thus, there were unresolved questions as to whether the Agency had a legitimate reason to require Complaint to undergo a fitness for duty examination. The Commission stated that, in ruling on a motion for a decision without a hearing, the evidence of the non-moving party must be believed and all justifiable inferences must be drawn in the non-moving party's favor. In this case, there was conflicting testimony between Agency officials and Complainant regarding the matters at issue and judgment as a matter of law for the Agency should not have been granted. The matter was remanded for a hearing on the complaint. Sauls v. Dep't of the Treasury, EEOC Appeal No. 0120080247 (April 12, 2012).

Summary Judgment Improper. Complainant, a Food Inspector, filed a formal EEO complaint alleging that the Agency discriminated against her when her Supervisor did not approve her request for leave, charged her with being absent without leave while she was on military duty, and denied her reasonable accommodation. Following an investigation, Complainant requested an administrative hearing. The matter was initially assigned to an AJ who conducted discovery. The Agency responded to Complainant's discovery requests, but Complainant asserted that the response was inadequate and nonresponsive. The AJ denied Complainant's Motion for Sanctions in relation to the Agency's discovery response, but granted a Motion to Compel and ordered the Agency to produce various documents. The matter was then assigned to a second AJ, who issued a Compel Order directing the Agency to produce various documents. The Agency did not provide the information to Complainant, and instead moved for a decision without a hearing. Complainant then filed various motions related to discovery and the Agency's request for a decision without a hearing. The second AJ granted the Agency's motion for a decision without a hearing, and found no discrimination.

On appeal, the Commission found that the AJ erred in issuing a decision without a hearing. Both the initial AJ and the second AJ determined that the record was incomplete and ordered the Agency to provide specific evidence during discovery. Further, the record revealed that the Agency's responses to Complainant's discovery requests were wholly inadequate, evasive, and non-responsive. The Commission noted that the second AJ sought to correct the deficiencies in the Agency's responses when he issued an order compelling the Agency to produce 17 types of evidence that were material to the case. Nevertheless, the Agency failed to comply and the AJ did not enforce the order. The Commission concluded that the AJ erred in ruling on the Agency's motion for a decision without a hearing prior to the resolution of the discovery dispute. The Commission noted that there remained genuine issues of material fact in dispute, including whether Complainant properly contacted the Agency and received approval for military leave and what actions were taken in regard to Complainant's request for accommodation. Thus, the Commission stated there was a need for a hearing to assess the credibility of the management officials and Complainant, and the matter was remanded for further processing. Shimitz v. Dep't of Agric., EEOC Appeal No. 0120080675 (April 12, 2012), request for reconsideration denied, EEOC Request No. 0520120431 (November 16, 2012).

Timeliness

EEO Counselor Contact Timely. Complainant contacted an EEO Counselor in October 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against him on the basis of his disability when it denied him reasonable accommodation and subjected him to harassment. The Agency dismissed the complaint for failure to timely contact the EEO Counselor. On appeal, the Commission found that the Agency erred when it dismissed the complaint. With regard to the hostile work environment claim, the Commission noted that the latest incident occurred on August 29, 2011, and the Agency stated that Complainant contacted the Counselor on October 11, 2011, which was within 45 days. The Commission stated that, even assuming the contact occurred on October 12 as noted in the Counselor's report, it was still timely. Further, the Agency's dismissal of Complainant's claim concerning the denial of reasonable accommodation appeared to be erroneously based on the date on which Complainant requested the accommodation instead of when the request was denied. The record showed that the process occurred over several months, and was not a single event on a particular day. Complainant engaged in a number of conversations attempting to get a permanent reassignment, and was only ordered to return to his old work location on October 24, 2011. Thus, his contact was also timely with regard to that issue. Williams v. Dep't of Transp., EEOC Appeal No. 0120121175 (June 14, 2012).

EEO Counselor Contact Timely. Complainant contacted an EEO Counselor on September 8, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against him when it changed his duty station. The Agency dismissed the matter for failure to timely contact an EEO Counselor, stating that management notified Complainant of the reassignment on April 14, 2011, which was more than 45 days prior to his contact. On appeal, the Commission found that the dismissal of Complainant's complaint was improper. The effective date of the reassignment was August 14, 2011. Thus, Complainant's contact was within the 45 day limitation period. Leaton v. Dep't of Homeland Sec., EEOC Appeal No. 0120121089 (May 2, 2012); see also, Schwenke v. U.S. Postal Serv., EEOC Appeal No. 0120121445 (June 6, 2012) (Complainant timely contacted the EEO Counselor within 45 days of the effective date of his removal); Mothersole v. U.S. Postal Serv., EEOC Appeal No. 0120121102 (June 5, 2012) (While the record contained a Notice of Removal stating that Complainant would be removed from employment on December 18, 2010, the Commission determined that the Notice was not dispositive for computation of the 45-day limitation period for contacting an EEO Counselor. The record included a Notification of Personnel Action form indicating that Complainant's removal was effective on July 3, 2011, and that the action was processed on July 13, 2011. The later date corroborated Complainant's assertion that a decision from an Arbitrator made his removal officially effective on July 13, 2011, and, therefore, his contact with the EEO Counselor on August 19, 2011, was timely).

Time Limit for Contacting EEO Counselor Waived. Complainant, a Clinical Social Worker, was hired by the Agency through a staffing firm (Firm). Less than one year later, she filed a formal EEO complaint alleging that the Agency discriminated and retaliated against her when it indefinitely suspended her privileges to see patients in April 2011, harassed her, and denied her adequate training and work space. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that her contact with the Counselor in July 2011 was beyond the 45-day limitation period. On appeal, the Commission found that the limitation period should be waived. Complainant submitted an affidavit stating that she contacted an Agency EEO Counselor regarding her claims of discriminatory harassment in April 2011, but was told that she needed to contact the Firm. It was undisputed that Complainant, through her attorney, sent a letter to the Firm less than one month after her privileges were suspended alleging that the Agency subjected her to race discrimination and retaliation. Complainant stated that she expected that her complaint would be referred to the Agency, but she learned on June 17, 2011, that the Firm did not investigate the matter or refer her complaint to the Agency. Complainant again initiated contact with the EEO Counselor on July 14, 2011. The Commission found that Complainant acted reasonably in first raising her complaint with the Firm because she was advised to do so by the EEO Counselor, and both her initial contact with the Counselor and her contact with the Firm were made within the 45-day limitation period. Thus, the Commission found sufficient reasons to waive the time limits, and remanded the matter for processing. Myers v. Dep't of the Army, EEOC Appeal No. 0120120759 (May 1, 2012), request for reconsideration denied, EEOC Request No. 0520120458 (November 16, 2012).

EEO Counselor Contact Timely. Complainant filed a mixed case appeal with the Merit Systems Protection Board (MSPB) alleging, among other things, that the Agency discriminated against her when it terminated her from employment. While her appeal was pending, Complainant contacted an EEO Counselor regarding her termination in January 2010, and with regard to her request for reasonable accommodation in April 2010. Complainant ultimately filed a formal complaint alleging that the Agency subjected her to discrimination and a hostile work environment when it denied her request for accommodation, breached the confidentiality of her medical records, forced her to use leave, and terminated her from her position. The Agency dismissed the matter for failure to timely contact an EEO Counselor based upon the January 14, 2010 date of contact. On appeal, the Commission found that the Agency improperly dismissed the complaint. The record showed that the MSPB dismissed Complainant's December 29, 2009 mixed case appeal for lack of jurisdiction, and the EEOC's regulations provide that the date on which an individual files an appeal with the MSPB shall be deemed to be the date of initial contact with the EEO Counselor. Thus, December 29, 2009, was deemed to be the date of initial contact with the EEO Counselor, and, since the alleged discriminatory actions occurred on or about November 25, 2009, Complainant's EEO Counselor contact was timely. Knight v. Dep't of Homeland Sec., EEOC Appeal No. 0120110052 (April 24, 2012); see also, Bradley v. Dep't of the Navy, EEOC Appeal No. 0120121768 (June 28, 2012), request for reconsideration denied, EEOC Request No. 0520120529 (December 11, 2012) (the date on which Complainant filed his appeal with the MSPB is deemed the date of initial contact with the EEO Counselor, and, as such, he timely initiated his complaint).

EEO Counselor Contact Timely. Complainant contacted an EEO Counselor in July 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against him when, in May 2011, management did not tell him that a co-worker threatened his life. The Agency dismissed the matter for failure to timely contact the EEO Counselor. On appeal, the Commission noted that Complainant stated that he had no knowledge of his right to file an EEO complaint during the 45 day limitation period or the applicable time limit for doing so. The Commission stated that the Agency failed to provide evidence, such as an affidavit by an EEO official stating that posters with the information were available or that Complainant took EEO training which included information concerning the limitation period, showing that Complainant had constructive knowledge of the time limit. Thus, Complainant's assertion that he had no knowledge of the applicable limitation period was not rebutted by the Agency. Parcisco v. U.S. Postal Serv., EEOC Appeal No. 0120120867 (April 17, 2012).

EEO Counselor Contact Timely in Part. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it did not select him for eight positions. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that his contact with the Counselor in September 2011 was more than 45 days after he was notified of the majority of the non-selections on March 31, 2011. On appeal, the Commission noted that Complainant learned of one of the non-selections in May 2011, and attempted to pursue the EEO complaint process virtually contemporaneously by e-mailing Agency personnel on May 24, 2011. Complainant clearly manifested an attempt to pursue the EEO complaint process, and the Agency personnel to whom the e-mail was addressed were copied on several e-mails by the EEO Counselor. The Agency did not deny that these personnel were reasonably connected to the EEO process. Thus, the Commission concluded that Complainant timely raised one of the claims within the 45-day limitation period. The Commission affirmed the Agency's dismissal of the remaining seven claims, noting that Complainant learned of those non-selections on or about March 31, 2011. Thompson v. Tenn. Valley Auth., EEOC Appeal No. 0120120674 (April 10, 2012).

Formal Complaint Deemed Timely Filed. Complainant contacted the Agency's EEO representative and subsequently filed a formal complaint on November 27, 2011, alleging that the Agency subjected him to an ongoing hostile work environment and denied him reasonable accommodation. The Agency dismissed the complaint as untimely, stating that it sent Complainant a Notice of Right to File via the United Parcel Service (USP) which left the package at Complainant's house on November 7, 2011. On appeal, the Commission found that Complainant was not aware of the delivery of the Notice until November 14, 2011. The Commission noted that the time limit for filing a complaint is not triggered until Complainant actually receives the Notice. The Agency acknowledged that "unbeknownst" to Complainant the Notice was delivered on November 7. The Commission noted that while the package may have been left on that date, there was insufficient evidence to show that Complainant had actual receipt. Thus, the Agency failed to meet its burden of obtaining sufficient information to support its determination as to timeliness. Zinski v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121402 (June 29, 2012).

Adequate Justification for Extending the Period for Filing a Formal Complaint Found. Complainant filed a formal complaint on November 4, 2011, alleging that the Agency discriminated against him on the bases of his race and age. The Agency dismissed the complaint as untimely, stating that Complainant received the Notice of Right to File a Complaint (Notice) on September 26, 2011. On appeal, the Commission found that there was adequate justification for extending the limitation period for filing a complaint. Specifically, Complainant stated that he was on a temporary, overseas assignment for five weeks from September 25, 2011, through October 28, 2011, and that the Notice was sent to his office where it was signed for without his authorization. Complainant stated that he did not receive the Notice until he returned to work on October 31, 2011. Thus, the complaint was remanded for processing. Scharein v. Dep't of the Army, EEOC Appeal No. 0120121135 (May 11, 2012).

Formal Complaint Timely Filed. Complainant contacted an EEO Counselor and subsequently filed a formal complaint on December 20, 2010, alleging that the Agency discriminated against her when it did not give her a performance award. The Agency dismissed the complaint as untimely, stating that the EEO Counselor e-mailed Complainant the Notice of Final Interview/Notice of Right to File a Formal Complaint (Notice) on November 24, 2010. On appeal, the Commission noted that the Agency bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. While it appeared that Complainant spoke with the EEO Counselor on November 23, Complainant disputed many of the details of that conversation. Specifically, Complainant stated that she never received a final interview and the EEO Counselor did not advise her to read her e-mail when she returned to work on November 30. The Commission stated that the Agency did not present any evidence, such as the property page of the transmitted e-mail, showing if or when Complainant received the Notice, and, therefore, failed to meet its burden of establishing that the formal complaint was not timely filed. Stover v. Dep't of the Navy, EEOC Appeal No. 0120112732 (April 24, 2012); see also Butler v. Dep't of the Navy, EEOC Appeal No. 0120112636 (May 9, 2012) (While the EEO Counselor asserted that she sent Complainant the Notice of Final Interview/Notice of Right to File a Formal Complaint by e-mail and told Complainant to read the e-mail when she returned to work, Complainant disputed those assertions and stated that she did not receive a final interview. The Agency did not meet its burden of showing if or when Complainant received the notice by, for example, including the property page of the transmitted e-mail, and thus, the complaint was timely).

Formal Complaint Timely Filed. Complainant contacted an EEO Counselor and subsequently filed a formal complaint alleging that the Agency discriminated against her when it denied her overtime and her Supervisor harassed her. The Agency dismissed the complaint as untimely, stating that Complainant received notice of the right to file a complaint on August 15, 2011, but her complaint was not postmarked until August 31, 2011, which was beyond the 15-day limitation period. On appeal, the Commission found that Complainant timely filed her complaint. The envelope in which Complainant filed her formal complaint contained two postmarks, August 20, 2011, and August 31, 2011. The Commission noted that there was no explanation for the different postmarks. Therefore, the Commission found that Complainant's formal complaint was in the mail stream by August 20, 2011, and was timely filed. Hamiel v. U.S. Postal Serv., EEOC Appeal No. 0120120653 (April 10, 2012).

ARTICLE
Compliance with Final Commission Decisions:
An Overview

By Amelia Demopulos, Robyn Dupont and Aaron Rubin

(The following article is not intended to be an exhaustive or definitive discussion of a complex area of law, nor is it intended as legal advice. The article is generally based on EEOC documents available to the public at the Commission's website at http://www.eeoc.gov/, as well as on Commission case law. For a discussion of compliance as it relates to various orders and decisions of the Agency, Commission, and AJ see Digest of EEO Law, "Compliance: The Regulatory Requirements and a Case Update," Vol. XXI, No.3 (Summer 2010). Some decisions cited may have appeared in previous editions of the Digest. -Ed)

BACKGROUND

Complainants who file federal sector EEO complaints have the right to appeal the Agency's final action or dismissal to the Commission.1 In cases in which the Commission determines that an Agency has improperly dismissed the underlying complaint on procedural grounds, the Commission can order the Agency to process the matter. When the Commission finds that an applicant or an employee has been discriminated against, the Agency shall provide the individual with full relief.2 The relief ordered in a final Commission decision is mandatory and binding on the Agency.3 If the Agency fails to implement the relief ordered by the Commission, the Order is subject to judicial enforcement.

The EEOC's regulations provide several means of enforcement for its decisions. The regulations state that the Commission shall take all necessary actions to ascertain whether the Agency is implementing the Commission's decision.4 If the Agency fails to comply with the decision, the Commission shall take action to obtain compliance.5 To help ensure that an Agency complies with the Commission's decision, the case is assigned to a Compliance Officer (CO).

If a Complainant believes that the Agency is not complying with the Commission's decision, the Complainant may petition the Commission for enforcement of the decision.6 In addition, if the Agency fails to comply with the decision, the Commission can issue a notice to show cause to the Agency head requesting that the Agency provide adequate evidence of compliance or compelling reasons for its non-compliance.7 The Commission can also refer the matter to the Office of Special Counsel.8 If the Commission ultimately determines that the Agency is not complying with a decision, or the Agency fails to submit any required report of compliance, the Commission will notify the Complainant of his or her right to file a civil action for enforcement of the decision.9

A COMPLIANCE OFFICER'S PERSPECTIVE

The goal of the CO is to ensure that the Commission's Orders in federal sector decisions are fully complied with. Therefore, the key question is: "What did the Commission order?" The answer may be anything from a simple remand to the Agency for further processing, to a more complex finding of unlawful employment discrimination, with specific remedies and time frames set forth. Compliance with the Commission's Orders is mandatory and generally Agencies make a good faith effort to comply.

There are generally two types of decisions issued by the Commission in cases of federal sector appeals, procedural dismissals and findings on the merits of the underlying allegations. The former involve a determination as to whether the agency erred in dismissing an EEO complaint or otherwise failed to process the complaint in accordance with the EEOC regulations. If the Commission finds that the Agency improperly dismissed an EEO complaint on procedural grounds or failed to properly process the complaint, the Commission will remand the matter to the Agency for processing pursuant to the EEOC regulations.

Decisions on the merits of the complaint, on the other hand, go to the question of whether the Agency discriminated against the Complainant based on race, color, sex, religion, national origin, age, disability, retaliation for prior EEO activity, or genetic information. When the Commission finds that the Agency has discriminated against a Complainant, the Commission will order the Agency to provide the Complainant with various elements of relief. The type of relief awarded depends on the nature of the discrimination. The purpose of relief is to make the victim whole as much as possible; that is, to place the victim of discrimination in the position he or she would have been in had the unlawful discrimination not occurred. Relief can be monetary or nonmonetary. Monetary relief can include back pay, interest on back pay, awards and bonuses, payment for sick leave or annual leave, compensatory damages, Thrift Savings Plan matching contributions and earnings, adjustment of retirement pay, and attorney's fees and costs. Nonmonetary relief can include hiring, reinstatement, promotions, adjustment of performance appraisals, benefits (such as seniority), and expunging of disciplinary actions, In addition, the Commission may order the Agency to conduct EEO training for managers and staff, as well as to consider discipline for those officials found responsible for the discrimination. The Commission does not consider training to be a form of discipline. Further, the Commission may order the Agency to post a notice that a violation of EEO law occurred at the Agency's facility or activity. Remedies such as compensatory damages directly benefit the individual who has been harmed by the discrimination. Remedies such as notice posting inure to the benefit of the public and may not be waived by a settlement agreement resolving the underlying complaint.

The Commission also issues decisions addressing whether an Agency has complied with the terms of a settlement agreement or a final Agency action.10 If the Commission finds a breach of a settlement agreement, it can order specific performance, requiring the agency to comply with the applicable provision of the agreement. The Commission can also order the agency to reinstate the underlying complaint at the point at which processing ceased. With regard to final Agency actions, the Commission can order the Agency to specifically comply with the terms of the relief ordered.11

A CO will close compliance when he or she has determined that the agency is in compliance with the Commission's orders in a given case. Compliance will also be closed when the Complainant has filed a civil action in a U.S. District Court on the same issues in the EEO complaint; the parties have settled the matter; the complaint has been forwarded for a hearing before an EEOC AJ; the Agency has issued a FAD with appeal rights; or a party has filed a request for reconsideration of the Commission's appellate decision. As a rule, remanded procedural matters are generally straightforward. Merit cases are often far more complex legally and factually and take longer to resolve, especially those matters involving calculations of back pay, interest, and taxes. The parties benefit most from an early resolution of these issues, and it is the goal of the CO to achieve full compliance with the Commission's orders.

Petitions for Enforcement

Most of the petitions docketed under the EEOC's Regulations concern enforcement.12 Rarely do the PFEs contend that the Agency has completely failed to comply with the Commission's Order. Most often, the PFE alleges that the Agency has not fully complied with what it was ordered to do. This was the situation in Scambiaterra v. Envtl. Prot. Agency,13 and Paulin v. Envtl. Prot. Agency.14 In both cases, the Commission reversed the Agency's procedural dismissal and ordered the Agency to continue processing the complaint consistent with the EEOC regulations. The Agency initially complied, and both Petitioners ultimately requested final agency decisions which they claimed to have never received. The Agency offered no evidence that it had in fact ever issued the requested final decisions. Consequently, the Commission ordered it to do so.

In addition, in Scott v. U.S. Postal Serv.,15 the Commission found that the Agency failed to comply with its prior order regarding the processing of Petitioner's claim of hostile work environment. Complainant had raised various allegations concerning her work environment, which the Commission had found stated a single claim of on-going harassment. Following the Commission's remand, the Agency again dismissed several of the incidents cited by Complainant for failure to state a claim. In addressing the petition for enforcement, the Commission found that the Agency misunderstood the prior Order and improperly fragmented Petitioner's claim of hostile work environment harassment. The Commission reiterated that the incidents cited by Petitioner were not separate claims but were evidence offered to support Petitioner's claim of harassment. The Commission ordered the Agency to process the hostile work environment claim in accordance with the guidance provided concerning the requirement to avoid fragmentation.

In Page v. Dep't of Homeland Sec.,16 the Agency complied with the Commission's Order to Petitioner's satisfaction with the exception of the calculation of back pay. With regard to back pay, Petitioner contended that the Agency's calculations were inadequate in three respects. First, Petitioner claimed that the Agency failed to include any amount for overtime pay that Petitioner was unable to earn because of the discriminatory removal. Second, Petitioner stated that the Agency did not compensate him for the increased tax liability he incurred by virtue of receiving his back pay award in a lump sum rather than over a period of years. Finally, Petitioner stated that the Agency did not adjust his base pay to take into account a step increase he would have earned had he not been removed. The Commission concluded that Petitioner's legal position was well taken because Commission precedent provided that back pay awards be increased to compensate for: (1) lost overtime pay; (2) increased tax liability for lump sum payments; and (3) step increases that would have taken place during the back pay period. The Commission noted that the record contained no indication as to whether the Agency was either disputing Petitioner's position or had ultimately made the adjustments. Thus, the Commission ordered it to do so.

Similarly, in Goldberg v. Dep't of State,17 Petitioner only challenged the Agency's compliance with respect to back pay and restoration of leave. The Agency provided a lump sum payment of $125,098.89 in back pay, 504 hours of sick leave, and 240 hours of annual leave but gave no explanation as to how it came up with those figures. Petitioner raised a number of questions about the back pay award including, inter alia, whether the five-year period during which she had been discriminatorily denied employment had been added to her service computation date for purposes of retirement benefits, and why deductions were made for a life insurance program in which she was not enrolled during that same 5 year period. Again, Petitioner's legal position was well taken because Commission precedent required an Agency to provide a clear and concise "plain language" statement of the formulas and methods used to calculate awards. Noting that the Agency failed to provide this information, the Commission ordered it to do so.

In Clemente v. Dep't of Justice,18 however, the Commission found that the Agency complied with its prior Order. Petitioner challenged the Agency's denial of his request for a transfer to either Hawaii or southern California and claimed that the Agency made errors in deducting for life insurance as well as in calculating his thrift savings plan contributions. According to Petitioner, these errors were to his financial detriment. The Agency responded to all of Petitioner's challenges in great detail including, inter alia, explaining how the collective bargaining agreement applied to transfer requests. The Agency also noted that it consulted with a representative of the National Finance Center and arranged for an audit to be performed with regard to the tax consequences of Petitioner's thrift savings plan contributions. The Commission concluded that the Agency's responses were adequate to support the conclusion that it had fully complied with the Order and had in fact gone beyond what the order required in an effort to accommodate Petitioner.

Guiding the Commission's review of PFEs is the principle that they are not vehicles to give to Petitioners more than the previous orders entitled them. In Healey v. Dep't of Veterans Affairs,19 Petitioner argued that the Agency had not complied with the Commission's prior Order when it failed to provide him with a Quality Step Increase (QSI) which he believed he would have been entitled to had he not been discriminated against. The Commission rejected Petitioner's position, concluding that there was simply no evidence that the "full relief" to which Complainant was entitled included the speculative QSI.

In Velazquez-Mateo v. Dep't of Def.,20 Petitioner challenged the Agency's compliance with the Commission's prior decision on her breach of settlement claim involving disability retirement. In her petition, Petitioner claimed that the Agency had failed to approve her for long term disability retirement which she alleged entitled her to a significantly higher monthly benefit. The Commission found that Petitioner had not in fact bargained for either long term disability or the manner in which her disability retirement was to be calculated. The Commission also found more than adequate evidence that the Agency had complied with the order to accept Complainant's expert medical opinion as sufficient evidence for the purposes of the retirement for which Complainant had bargained.

CONCLUSION

As stated, the relief ordered in a final Commission decision is mandatory and binding on the Agency. To help ensure that an Agency complies with the Commission's decision, the case is assigned to a CO who works toward that goal. By having a CO monitor compliance and issuing decisions on PFEs, the Commission can ensure that its decisions are implemented.


Footnotes

1 29 C.F.R. § 1614.401(a).

2 29 C.F.R. § 1614.501(a).

3 29 C.F.R. § 1614.502(a). The Regulations provide that an Agency can delay providing certain relief when there is a request for reconsideration. When a request for reconsideration is denied, however, the Agency shall provide the relief ordered and there is no further right to delay implementation of the ordered relief. 29 C.F.R. § 1614.502(c).

4 29 C.F.R. § 1614.503(b).

5 Id.

6 29 C.F.R. § 1614.503(a).

7 29 C.F.R. § 1614.503(e).

8 29 .C.F.R. § 1614.503(f).

9 29 C.F.R. § 1614.503(g).

10 29 C.F.R. § 1614.504(b).

11 See 29 C.F.R. § 1614.504(c).

12 See 29 C.F.R. § 1614.503.

13 EEOC Petition No. 0420100019 (December 27, 2010).

14 EEOC Petition No. 0420100020 (December 27, 2010).

15 EEOC Petition No. 0420120011 (June 25, 2012).

16 EEOC Petition No. 0420090012 (September 16, 2011).

17 EEOC Petition No. 0420100006 (September 23, 2011).

18 EEOC Petition No. 0420100016 (February 1, 2011).

19 EEOC Petition No. 0420110001 (September 15, 2011).

20 EEOC Petition No. 0420100008 (May 12, 2011).