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U.S. Equal Employment Opportunity Commission



The DIGEST Of Equal Employment Opportunity Law


Volume XXIV, No.2

Office of Federal Operations

Spring 2013


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
Robert Barnhart, Acting Director, OFO's Special Services Staff
Digest Staff
Editor & Writer: Robyn Dupont

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


SELECTED EEOC DECISIONS

Attorney's Fees

Attorney's Fees Discussed. The Agency issued final decisions in relation to two requests from Complainant's attorney for fees and costs associated with prior appeals and petitions for enforcement. Complainant appealed those decisions to the Commission. The Commission initially addressed the issue of whether Complainant was a prevailing party for purposes of awarding attorney's fees. The Commission found that Complainant prevailed in her prior appeal insofar as the Commission determined that the Agency breached a settlement agreement which the parties had entered into and must pay Complainant back pay. In addition, Complainant's attorney spent a significant amount of time attempting to get the Agency to comply with the Commission's prior order regarding back pay and ultimately filed a petition for enforcement. While the Commission denied the petition for enforcement because the Agency corrected its error, the Commission noted that Complainant would not have had to file the petition for enforcement had the Agency timely complied with its previous Orders. Therefore, Complainant was entitled to reasonable attorney's fees associated with the filing of the petition for enforcement. The Commission noted that Complainant was not entitled to attorney's fees for work performed in pursuit of her claim of age discrimination because attorney's fees are not available under the Age Discrimination in Employment Act (ADEA).

With regard to the amount of fees, the Commission found that, in connection with the first appeal, Complainant was not entitled to fees for work related to a request for reconsideration which dealt with her age discrimination claim. The Commission, however, disagreed with the Agency's assertion that the remaining hours claimed were unreasonable. Further, the Commission stated that the Agency erred in finding that Complainant was only entitled to the hourly rate set forth in a fee agreement. It was clear that Complainant's attorney entered into the fee agreement with Complainant at a reduced rate based upon public interest motives, and, therefore, Complainant was entitled to the prevailing market rate. With regard to the work associated with the Agency's non-compliance with the Commission's previous Order and the filing of the petition for enforcement, as well as the second appeal, the Commission noted that the Agency did not challenge the number of hours claimed. Finally, the Commission found that Complainant's attorney provided sufficient evidence to support the claim for reasonable costs. Thus, the Agency was ordered to pay Complainant a total of $28,950 in attorney's fees and $53.12 in costs. Sheehy v. Nat'l Sec. Agency, EEOC Appeal Nos. 0120101664 & 0120102282 (January 17, 2013).

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.)

Agency Liable for Compensatory Damages Resulting from Disability Discrimination. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his disability when it failed to provide him with a sign language interpreter during staff meetings on six occasions. In its final decision, the Agency acknowledged that it "did not always accommodate Complainant's requests for reasonable accommodation." Nevertheless, the Agency stated that it had reasons for not providing an interpreter on the dates in question, specifically, confusion over the date of a meeting, cancellation of a meeting, "management oversight," no "associated request," and traffic delays. The Agency found that it was not liable for compensatory damages because it made a good faith effort to accommodate Complainant's disability as evidenced by its implementation of an Interpreter Procedure to provide Complainant with accommodation.

On appeal, the Commission noted that, given the Agency's acknowledgment that it did not provide Complainant with accommodation on some occasions, the only issue on appeal was whether the Agency was liable for damages. An Agency is not liable for compensatory damages in cases of disability discrimination where it demonstrates that it made a good faith effort to accommodate the disability. The Commission found that the Agency made a good faith effort with regard to two of the meetings. Specifically, in one case, the Agency cancelled the meeting thereby ensuring that no information was communicated for which Complainant did not have equal access. With regard to the second meeting, the Commission noted that the Agency procured an interpreter, but the interpreter was delayed due to traffic. The Commission concluded, however, that the Agency did not make a good faith effort to accommodate Complainant with regard to the remaining four meetings. Complainant specifically requested an interpreter in accordance with the Agency's Interpreter Procedure on two occasions, but there was no evidence that the Agency took any action on those requests and Complainant was not provided with an interpreter. The other two meetings were recurring meetings and there was no evidence the Agency took any steps to obtain an interpreter on those occasions. When asked why it did not provide an interpreter, the Agency stated that "this may have been missed," and "it appears this one fell through the cracks." Thus, it was clear that on at least four occasions, the Agency did not make Complainant's request for accommodation a priority and did not even attempt to obtain an interpreter. The Commission found that the Agency's inaction did not qualify as an attempt to provide a reasonable accommodation. While the Agency did provide Complainant with an interpreter on 11 occasions, the Commission emphasized that the Agency's duty to provide reasonable accommodation was ongoing. Therefore, the Agency was liable for compensatory damages in connection with its failure to provide accommodation on four occasions, and the matter was remanded for a supplemental investigation on the issue of damages. Rathore v. Dep't of Def., EEOC Appeal No. 0120114330 (February 14, 2013), request for reconsideration denied, EEOC Request No. 0520130418 (August 30, 2013).

$50,000 Awarded for Retaliatory Harassment and Termination. The Agency found that Complainant proved she was subjected to unlawful retaliation when she was harassed and terminated from her position, and subsequently awarded her $10,000 in non-pecuniary damages. On appeal, the Commission increased the award. Complainant provided a statement from her therapist and medical documentation establishing that she suffered from an adjustment disorder with mixed anxiety and depression which was caused by the retaliatory discharge. The documentation also showed that Complainant would continue to need treatment. Complainant consistently expressed a profound fear of the official who terminated her, and stated that she experienced headaches, fear of going out alone and difficulty sleeping. Thus, the Commission concluded that Complainant was entitled to an award of $50,000 in non-pecuniary damages. The Commission affirmed the Agency's award of $5,837.29 in future pecuniary damages, and $2,506.97 in past pecuniary damages, as well as $15,000 in attorney's fees and costs. Rey v. Dep't of the Interior, EEOC Appeal No. 0120123231 (February 1, 2013).

$38,000 Awarded for Disability Discrimination. Following a hearing, an Administrative Judge (AJ) found that the Agency discriminated against Complainant on the basis of her disability when it denied her reasonable accommodation, and awarded Complainant $15,000 in non-pecuniary compensatory damages. On appeal, the Commission modified the award. Complainant stated that she had physical pain and was unable to participate in sports or tend to her family and home as she did in the past. Complainant provided a letter from her podiatrist stating that the Agency's failure to provide Complainant with accommodation exacerbated her condition, and Complainant became depressed due to the chronic pain. Complainant's cousin and co-worker stated that prior to the discrimination, Complainant was energetic and outgoing but can no longer clean her house, or attend her children's functions. Another co-worker indicated that Complainant no longer participates in church functions, has problems walking, and is usually depressed. Complainant provided documentation showing that she received psychological counseling related to her medical condition. The evidence showed that the Agency's denial of accommodation interfered with Complainant's healing following her two surgeries. The Commission noted, however, that the record indicated that Complainant's life was drastically affected by her medical condition prior to the discriminatory denial of accommodation. The Commission found that an award of $38,000 was consistent with awards made in similar cases. Murrell v. U.S. Postal Serv., EEOC Appeal No. 0120103507 (January 18, 2013).

$30,000 Awarded for Sexual Harassment. The Agency issued a final decision finding that Complainant was subjected to sexual harassment by a Supervisor, and subsequently awarded Complainant $500 in compensatory damages. On appeal, the Commission found that the award was not adequate. The Commission noted that Complainant's petition for damages was not in the record or submitted on appeal. Nevertheless, the Commission found that the record contained relevant evidence in the form of Complainant's affidavit that was sufficient to support an award for emotional harm. Complainant stated that she suffered emotional harm from being physically touched and sexually degraded by the Supervisor for a period of between one and two years. Complainant felt embarrassed and violated, and feared for her safety. She was scared to go to work and to leave the facility after work, and was one of several employees who sought a temporary protection order against the Supervisor. The Commission concluded that Complainant was entitled to an award of $30,000 in non-pecuniary damages. The Commission noted that the lack of medical testimony or documentation in the record reduced what could have been a higher award. Adams v. Dep't of Health & Human Serv., EEOC Appeal No. 0120112249 (March 19, 2013).

$20,000 Award for Retaliatory Non-selection Affirmed. The Agency found that Complainant was subjected to retaliation when she was not selected for a temporary position, and awarded her $20,000 in non-pecuniary compensatory damages. On appeal, the Commission found that the award was proper. Complainant provided a written statement indicating that she suffered from emotional distress on a daily basis, irritable bowel syndrome, loss of enjoyment of life, a strained marital relationship, and low self esteem. Complainant also stated that she experienced emotional distress related to the financial hardship she endured as a result of her non-selection. Complainant provided statements from her sister and a reverend in support of her claim. The record established that Complainant experienced emotional distress and financial hardship as a result of the retaliation. Most of the evidence submitted, however, failed to substantiate Complainant's alleged injuries and failed to prove the injuries were caused by the Agency's actions. For example, Complainant provided notes from her physician dated prior to the retaliation, and the medical records regarding her irritable bowel syndrome failed to link the condition to the non-selection. The Commission agreed with the Agency that while Complainant may have experienced pain and suffering because of the retaliatory non-selection and for a period of time afterward, she did not establish the she suffered permanent or catastrophic long-term harm. McFarland v. Dep't of Homeland Sec., EEOC Appeal No. 0120120392 (March 14, 2013).

$20,000 Awarded for Denial of Accommodation. The Commission previously determined that the Agency discriminated against Complainant when it failed to provide her with an effective accommodation for her disability. The Agency subsequently awarded Complainant $20,000 in compensatory damages, and the Commission found that this award was proper. Complainant provided affidavits from herself, her mother, and a neighbor. Complainant asserted that, due to the Agency's failure to accommodate her, she was unable to sleep at night, dreaded going to work, gained weight, and experienced high blood pressure due to stress. In addition, she stated that the discrimination negatively affected her social and marital life. Complainant's mother and neighbor supported these assertions. Complainant also noted that she accepted a referral for an appointment with a psychiatrist due to depression and anxiety. The Commission found that the Agency's award of $20,000 was not monstrously excessive and was consistent with amounts awarded in similar cases. Logan-Arrington v. Dep't of the Air Force, EEOC Appeal No. 0120121792 (March 1, 2013).

$18,000 Award for Discriminatory Termination Affirmed. The Commission previously found that the Agency discriminated against Complainant when it terminated him during his probationary period. The Agency conducted a supplemental investigation and awarded Complainant $18,000 in non-pecuniary compensatory damages. The Commission affirmed the award on appeal. While Complainant sought damages for expenses he incurred in connection with the purchase of a new home, the Commission found no evidence that the discrimination was the proximate cause of the expenses. Specifically, Complainant made the down payment on a house and paid taxes in 1998 approximately two years before he was hired by the Agency. In addition, the mortgage payments Complainant made were not incurred because of the Agency's actions but were day-to-day living expenses that he would have had regardless thereof. Complainant also sought an award of damages based on his inability to find a job following his termination. The Commission noted, however, that Complainant did not provide any evidence that his reputation was damaged or that the Agency's discriminatory actions were the cause of his inability to find a job. The Agency did not malign or defame Complainant in any way that would have allowed the Commission to presume that his reputation had been damaged. With regard to his claim for damages for depression, the Commission concluded that an award of $18,000 was appropriate. Complainant claimed that he suffered depression as a result of his termination but did not submit any evidence from a medical professional indicating the severity or duration thereof. Complainant also did not provide any testimony from friends or family members concerning the manifestations of depression he may have exhibited. There was evidence that Complainant received prescriptions for anti-depression medication for brief periods several years after his termination. Bustamante v. U.S. Postal Serv., EEOC Appeal No. 0120120185 (March 14, 2013).

$15,000 Awarded for Retaliation. In a prior decision, the Commission found that the Agency retaliated against Complainant when it reassigned her from her Manager position and stripped her of her managerial duties. The Agency conducted a supplemental investigation and awarded Complainant $7,500 in non-pecuniary compensatory damages. On appeal, the Commission found that the award was inadequate, and raised the award to $15,000. The Commission agreed with the Agency that Complainant was not entitled to damages for events that occurred prior to the retaliatory reassignment. Complainant stated, however, that she was embarrassed and humiliated when she lost her office, her keys were taken away in front of her peers, her managerial computer access and Agency cell phone were removed, and management told her former staff not to talk to her, all events the Commission found to be inextricably intertwined with the retaliatory reassignment. Further, Complainant stated that she "shut down" and withdrew from other people. Complainant did not describe having physical symptoms of stress, but her daughter stated that Complainant had chest pain, indigestion, headaches, anxiety, and a loss of energy. Complainant acknowledged that some of her distress resulted from the strain and intense workload following her return to her manager position, a matter for which there had not been a finding of discrimination. The Commission concluded that an award of $15,000 was consistent with the amount awarded in similar cases. Fuentes v. U.S. Postal Serv., EEOC Appeal No. 0120113519 (March 11, 2013).

$10,000 Awarded for Denial of Reasonable Accommodation. In a previous decision, the Commission affirmed the Agency's final decision finding that Complainant was denied reasonable accommodation when he was not allowed to telework. Complainant was given the opportunity to provide information in support of his claim for damages, and sought pecuniary damages for medical expenses, as well as non-pecuniary damages. Complainant noted that he would supply documentation regarding the expenses. The Agency issued a final decision on the issue of damages, stating that Complainant did not submit any documentation regarding medical expenses, and that some of the claimed expenses were incurred prior to the request for accommodation. The Agency further stated that it made a good faith effort to engage in the interactive process, and, therefore, Complainant was not entitled to an award of compensatory damages.

On appeal, the Commission initially noted that Complainant informed the Agency of his attempts to obtain documentation regarding his medical expenses, and the Agency should have extended the investigation to allow Complainant time to obtain this information. Nevertheless, the Commission denied Complainant's claim for pecuniary damages, stating that Complainant failed to present sufficient evidence to show that the claimed expenses were proximately caused by the Agency's failure to accommodate his request for telework. With regard to the claim for non-pecuniary damages, the Commission found that the Agency did not engage in a good faith effort to accommodate Complainant and, instead, issued an outright rejection of his request to telework. Complainant's alleged inappropriate conduct on one occasion during the interactive process did not render the Agency's actions to be in good faith, as the discriminatory denial of accommodation occurred prior to Complainant's misconduct and Complainant submitted a second request for accommodation which was also rejected in its entirety. The Commission noted that Complainant did not provide medical documentation to support his claim for damages, but did provide his own statement and a statement from his wife showing that he experienced stress, humiliation, loss of enjoyment of life, sleeplessness, and loss of self esteem, and feared losing his job,. Further, the denial of accommodation aggravated his epilepsy. Thus, the Commission concluded that Complainant was entitled to an award of $10,000 in non-pecuniary damages. Zehe v. Nat'l Aeronautics & Space Admin., EEOC Appeal No. 0120113282 (March 26, 2013).

$2,500 Awarded for Disability Discrimination. An AJ found that the Agency violated the Rehabilitation Act when a Supervisor informed Complainant's co-workers about her medical condition, and the Agency delayed in providing Complainant with reasonable accommodation. The AJ awarded Complainant $2,500 in compensatory damages. The Commission affirmed the award on appeal. While Complainant claimed that she had been denied accommodation since 1999, the AJ's finding of discrimination was limited to a six month period. Complainant did not challenge the limitation of the claim before the AJ or with the Agency when her complaint was initially accepted. Further, Complainant did not provide any additional evidence to support her claim for damages during that timeframe. Complainant stated that she was "devastated and hurt" by the events alleged in her complaint and had neck and back problems, but she did not provide any evidence to establish what portion of her distress was caused by the two events for which the AJ found discrimination. Lopez-Rosende v. U.S. Postal Serv., EEOC Appeal No. 0120123565 (February 28, 2013).

Dismissals

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

Complaint Improperly Dismissed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it forced her to take sick leave while waiting for a reassignment. According to the record, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) prior to filing the instant complaint, and the MSPB dismissed the matter for lack of jurisdiction. An AJ ultimately dismissed Complainant's EEO complaint based upon her earlier filing with the MSPB, and the Agency implemented that decision. On appeal, the Commission found that the dismissal was improper. While the AJ relied upon the doctrine of res judicata, Commission precedent has held that the doctrine of res judicata is not applicable in cases in which the MSPB has dismissed an appeal for lack of jurisdiction. Therefore, the matter was remanded for an administrative hearing. Moore v. U.S. Postal Serv., EEOC Appeal No. 0120114079 (March 26, 2013).

Complaint Improperly Dismissed as Being Moot. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race, national origin and prior EEO activity. Complainant included a nine-page statement outlining the alleged discrimination, including several disciplinary actions. The Agency only accepted and investigated claims concerning a March 2011 suspension. An AJ ultimately dismissed the case as being moot based on a grievance settlement related to the suspension, and the Agency implemented the dismissal. On appeal, the Commission initially stated that a fair reading of the complaint showed that Complainant was not solely raising a claim of disparate treatment regarding the suspension. Instead, he was asserting a claim of ongoing harassment based on his national origin and retaliatory animus when the Supervisor targeted him by imposing a harsher schedule, more stringent time constraints, and more reporting requirements. He also stated that the Agency retaliated against him as a warning to other employees not to speak up for their rights. The Commission noted that, by partially accepting the claims, the Agency improperly fragmented Complainant's claim of ongoing discrimination and harassment, and neither the AJ nor the Agency addressed this claim. Further, a fair reading of Complainant's claims and the investigative record suggested that there was a possibility that the alleged harassment could continue, and the relief provided by the grievance settlement did not eradicate the alleged effects of the hostile work environment. Therefore, the claim was not moot. Finally, while the Agency stated that an allegation concerning a letter of warning was not timely raised, that matter was part of Complainant's claim of ongoing harassment. Therefore, the entire claim was remanded to the Agency for processing. Cheung v. U.S. Postal Serv., EEOC Appeal No. 0120122294 (March 20, 2013).

Dismissal of Complaint Improper. Complainant filed a formal EEO complaint alleging that the Agency subjected her to discriminatory harassment and retaliation, denied her reasonable accommodation, issued her a proposed reprimand, and charged her with being absent without leave (AWOL). The Agency characterized the complaint as comprising 10 allegations, and dismissed four issues for failure to state a claim, one issue as being moot, and the remaining allegations for untimely EEO Counselor contact. On appeal, the Commission found that the dismissal was improper. With regard to the date of Complainant's contact with the Counselor, the record showed that Complainant dropped off a completed Formal Complaint form at the Agency's EEO Office on May 31, 2012. The Agency considered that date as the initial contact. The Agency acknowledged, however, that Complainant contacted a Counselor on January 20, 2012. The Commission noted that the Agency did not provide a contemporaneous affidavit or any statement from an EEO Counselor indicating that Complainant's January 2012 contact was not for purposes of initiating the EEO complaint process. While the Agency pointed to Complainant's response on the complaint form that she "never filed any complaint just had a conversation with a counselor," the Commission was not convinced that statement amounted to an admission that Complainant did not intend to initiate a complaint in January 2012. The Commission noted that a complaint is not "filed" at the informal stage, and Complainant could simply have meant that she sought counseling in January 2012 but had not filed a formal complaint. The record contained a February 2012 e-mail from Complainant asking for an extension of her case. Complainant also spoke with an EEO Intake Specialist in February 2012 and there was no evidence that the Specialist notified Complainant that she had not already initiated the complaint process. Finally, Complainant's representative sent a note to the EEO Office in February requesting the EEO Counselor's report. While the EEO Office requested more information from the representative, the Commission stated that the Agency did not notify Complainant or her representative that there was no informal complaint on file. Thus, the Commission found that while there may have been some confusion on the part of the Agency's EEO Office about Complainant's intentions, the record supported a finding that she believed she had done enough to initiate the complaint process. The Commission found that Complainant's EEO Counselor contact on January 20, 2012, was timely.

With regard to the Agency's assertion that several matters failed to state a claim, the Commission did find that one issue constituted a collateral attack on the workers' compensation process and was properly dismissed. The remaining allegations, however, stated a valid claim of hostile work environment harassment, and denial of reasonable accommodation. Complainant asserted that a co-worker repeatedly touched her in an improper manner and made inappropriate comments to her, and that another co-worker also harassed her. Complainant asserted that management did not take any action to stop the harassment. Thus, those matters were remanded to the Agency for processing. Alford v. Dep't of the Army, EEOC Appeal No. 0120130109 (February 22, 2013).

Dismissal of Complaint Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race, color, national origin and disability. The Agency framed the claim as alleging discrimination when Complainant was denied Temporary Quarters Subsistence Expense (TQSE), travel pay and administrative leave; excluded from meetings; micromanaged; subjected to verbal assaults; and harassed. The Agency then dismissed the complaint for failure to state a claim and for filing a grievance on the same matter. On appeal, the Commission found that the dismissal was improper. The Agency asserted that Complainant did not indicate discrimination based on one of the statutes enforced by the Commission. The Commission stated, however, that the formal complaint clearly identified several covered bases. In addition, the Agency sought to dismiss "incidents where utterances were made" without clearly identifying the particular incidents to which it was referring. The Commission noted that, in support of his claim for harassment, Complainant described being micromanaged regarding faxes to patients, excluded from meetings, the subject of meritless complaints regarding his licensing, and berated in front of his colleagues. Thus, the Commission found that the Agency erred in dismissing the complaint for failure to state a claim. In addition, the Commission stated that the record did not contain a copy of a negotiated grievance that provided for the acceptance of grievances which allege discrimination. Moretta v. Dep't of Health & Human Serv., EEOC Appeal No. 0120123449 (January 29, 2013).

Findings on the Merits and Related Decisions

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

Under the Rehabilitation Act

Denial of Reasonable Accommodation Found. Complainant worked as a Parcel Post Distribution Machine Operator. According to the record, she reported to work on October 26, 2011, to find that the restrooms could not be used due to a lack of running water at the facility. Complainant requested administrative leave, noting that she had a medical condition. Complainant stated that she has a chronic kidney condition. Complainant approached a Supervisor (S1) and explained that she needed to leave the facility. S1 believed that Complainant was looking for an excuse to leave work and refused to sign her request for administrative leave. A second Supervisor (S2) advised Complainant that she could use the restroom at a gas station one mile away or a store three miles away. Complainant was unable to work on October 27 because there was no portable restroom and no running water in the building, and submitted another request for administrative leave. She also submitted a Report of Hazard, stating that the lack of running water was a hazard due to her medical condition. Management indicated that a portable restroom would be put in place with water bottles and hand sanitizer. The Agency denied Complainant's requests for administrative leave on October 26, 27 and 28, and charged her with AWOL. Complainant subsequently filed a formal EEO complaint alleging that the Agency's actions were based on her disability and prior EEO activity, and the Agency issued a final decision finding no discrimination.

On appeal, the Commission noted that the Agency acknowledged that Complainant established that she was a qualified individual with a disability. Further, the Commission found that Complainant made the Agency aware that she required the use of a restroom due to her medical condition. Complainant indicated, on the request forms, that she was requesting administrative leave because of a medical condition. In addition, the Report of Hazard clearly stated that Complainant was unable to use the restroom due to a lack of running water and that this constituted a hazardous condition due to her medical condition. Complainant also stated that she made it known to management that she had a medical condition which had been documented in the past. The Commission found that Complainant's request for administrative leave constituted a request for reasonable accommodation, and, due to the Agency's failure to recognize it as such, management officials did not engage in the interactive process.

The Commission noted that the Agency's failure to engage in the interactive process does not, by itself, require a finding that Complainant was denied reasonable accommodation. In this case, however, the Commission concluded that the Agency's failure to engage in the interactive process resulted Complainant not receiving reasonable accommodation. Specifically, the Commission rejected the Agency's assertion that allowing Complainant to travel to another location to use the restroom was an effective accommodation. Complainant noted that she may not have been able to wait to leave the facility and travel to a location one to three miles away. In addition, while the Agency asserted that there was a portable restroom available on the dates Complainant requested administrative leave, Complainant stated that there was no portable restroom available on October 26 or 27. The Agency did not specify when the portable restroom was delivered or if Complainant was informed when it was installed. Therefore, Complainant showed that she should have been provided with administrative leave on the three dates in question. The Agency failed to argue or present any evidence that providing Complainant with administrative leave would have constituted an undue hardship, and, as such, the Commission found that the Agency violated the Rehabilitation Act. The Agency was ordered, among other things, to change Complainant's time and attendance record to show that she was on administrative leave on the dates in question, pay Complainant appropriate back pay and benefits, and investigate her claim for damages. Pitts v. U.S. Postal Serv., EEOC Appeal No. 0120130039 (March 13, 2013).

Denial of Reasonable Accommodation Found. Complainant filed a formal EEO complaint alleging, among other things, that the Agency failed to provide her with reasonable accommodation. According to the record, Complainant entered into an Abeyance Agreement with the Agency which provided that she would submit medical documentation whenever she had an unscheduled absence. On May 31, 2008, Complainant's psychiatrist submitted documentation to the Agency which described Complainant's diagnosis, prognosis, the medication she was prescribed and her limitations. The psychiatrist stated that Complainant could have periods of sickness and would need to attend medical appointments, but would be able to perform her job as a Contract Representative. Complainant stated that, at times, she was so incapacitated from her disabilities that she was unable to get out of bed in the morning. In October 2008, Complainant requested reasonable accommodation in the form of unscheduled leave. The Agency notified Complainant that she must provide very detailed information, as outlined in a list it provided, from her psychiatrist regarding her prognosis, treatment, effects and limitations. Complainant's psychiatrist characterized the request as "absurd" and refused to comply, stating that she had already provided sufficient information regarding Complainant's disability. In addition, Complainant was unable to pay the fee required for a more detailed medical report. As a result, her request for accommodation was denied. Complainant submitted an additional medical report to the Agency in January 2009, but the Agency did not treat that information as a request to reassess her request for unscheduled leave. Following a hearing on the issue, an AJ found that the Agency discriminated against Complainant on the basis of her disability when it did not provide her with accommodation.

On appeal, the Commission affirmed the AJ's finding. The Commission rejected the Agency's assertion that it engaged in the interactive process, stating that there was no evidence in the record that the Agency addressed Complainant's request for a reassessment after she submitted the January 2009 medical report. The Commission agreed with the AJ that, if the Agency felt the documentation was insufficient to determine whether flexible leave would accommodate Complainant, it should have asked Complainant or her psychiatrist for additional information such as whether flexible leave would have alleviated her symptoms and how often she needed such leave. The Agency should not have ignored Complainant's request to reassess flexible leave as an accommodation. While the Agency contended that Complainant failed to provide the requested medical documentation to support her request, the Commission found that the Agency failed to show that the documentation submitted by Complainant's psychiatrist in May 2008 was insufficient. The AJ also determined that the Agency's request for additional information was problematic because it was "absurdly detailed and elevate[d] form over substance."

Finally, the Commission found that the Agency did not provide Complainant with reasonable accommodation when it entered into the Abeyance Agreement. That document appeared solely to address disciplinary issues. Further, Complainant described her condition as being so debilitating on occasion that she could not get out of bed. The Commission found that requiring Complainant to provide medical documentation every time she used sick leave exacerbated her symptoms due to her fear of getting in trouble for not providing the information, and was not an effective accommodation. The Commission noted that while it would have been an undue hardship for the Agency to allow Complainant to take unscheduled leave in an unfettered manner, Complainant testified that she would have benefited from an accommodation where she could take one day of unscheduled leave every other month without having to provide medical documentation. The Commission found that allowing Complainant to take six days of unscheduled leave per year would not have been an undue hardship to the Agency. Thus, had the Agency made a good faith effort to engage in the interactive process, it could have found a reasonable accommodation that would have allowed Complainant to perform the essential functions of her position without an undue hardship to the Agency. The Agency was ordered, among other things, to pay Complainant $10,000 in proven non-pecuniary damages, as well as attorney's fees and costs. Underwood v. Soc. Sec. Admin., EEOC Appeal No. 0720120001 (January 18, 2013).

Disability Discrimination Found with Regard to Delay in Providing Accommodation. Complainant, a temporary safety and health clerk, filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of her disability when it did not provide her with reasonable accommodation. Specifically, Complainant stated that she experienced problems with her computer monitor due to a vision impairment, and notified the Area Director of the issue by June 2009. Complainant contacted the Agency's Information Technology (IT) Help Desk after the Area Director's actions in adjusting the settings on the monitor failed to correct the problem. The Help Desk gave Complainant a flat panel monitor, but the Area Director gave that monitor to the Assistant Area Director because he believed Complainant improperly requested the monitor. Complainant again advised the Area Director that the monitor still bothered her eyes in July 2009. After Complainant contacted the Regional Director, the flat screen monitor was returned to her. In its final decision, the Agency found that it provided Complainant with reasonable accommodation.

On appeal, the Commission noted that the Area Director failed to recognize that Complainant's initial request for a new monitor constituted a request for reasonable accommodation. The Commission noted that an employee is not required to use "magic words" when making a request for accommodation. In this case, Complainant told the Director that she needed a new monitor due to her medical condition, and the Director should have treated the request for equipment as a reasonable accommodation request. As a result of the Director's failure to recognize that Complainant requested accommodation, Complainant had to contact other offices to assist with her request. Further, after the Help Desk provided Complainant with accommodation, the Director confiscated the flat screen monitor and provided it to someone else. Therefore, the Commission found that the Area Director caused an undue delay in Complainant's eventual provision of a flat screen monitor. The Commission further stated that the Agency failed to demonstrate that the Area Director made the requisite good faith effort to provide accommodation, and, as such, the Agency was ordered, among other things, to determine whether Complainant was entitled to compensatory damages. The Commission found that Complainant was not subjected to harassment or discriminatory disparate treatment with regard to the other issues in her complaint. Johnson-Morgan v. Dep't of Labor, EEOC Appeal Nos. 0120110728 & 0120112988 (January 9, 2013), request for reconsideration denied, EEOC Request Nos. 0520130243 & 0520130244 (July 30, 2013).

Under Multiple Bases

Race and Age Discrimination Found with Regard to Discipline. Complainant worked as a Housekeeping Aide, a position he had held for approximately 20 years. He had no record of any prior disciplinary action or misconduct. In May 2011, Complainant was involved in a confrontation with a Nurse after he found some money in the hallway. All of the witnesses averred and the responsible management officials acknowledged that the Nurse put her hand in Complainant's pocket to retrieve the money, and pulled out Complainant's car keys. Complainant asked for the keys back several times, but the Nurse refused to return them to Complainant. Complainant stated that he then "grabbed her hand," retrieved his keys and left the area. The record did not contain a statement from the Nurse. In addition, the Nurse's Supervisor, who witnessed the incident, walked away when Complainant asked for assistance, stating that she did not want to get involved. There was no statement from the Supervisor in the record. One of the witnesses contacted the Agency's Police Services, and a police report was filed concerning the "verbal argument." Neither Complainant nor the Nurse gave a statement about the incident and the police did not file charges. Complainant's Supervisor issued him a notice of proposed removal as a result of the incident, which was ultimately mitigated to a one-day suspension. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race and age when it disciplined him as a result of the incident but did not issue comparable discipline to the Nurse.

On appeal, the Commission found that the Agency discriminated against Complainant as alleged. The responsible management officials stated that they were enforcing the Agency's zero tolerance policy for workplace violence when they proposed Complainant's removal, and subsequently suspended him. The managers indicated that they relied on statements from some witnesses that Complainant twisted the Nurse's arm and said he would "crush" her. The Commission concluded, however, that Complainant established that the articulated reason was a pretext for discrimination. The Commission noted that the Agency's zero tolerance policy would be legitimate, if warranted in this case and consistently enforced in a non-discriminatory manner. The Agency, however, did not provide any explanation for why the nurse, who was also involved in the incident, was not similarly disciplined when it was undisputed that she instigated the conflict, aggressively approached Complainant, and deliberately put her hand in Complainant's pocket. The Commission found no evidence that the Nurse was disciplined at all for her role in the matter. Therefore, without an explanation for the differing treatment, the Commission was left with the inference that the difference was the result of discriminatory factors. Further, the Commission found very little support in the record for the Agency's assertion that Complainant's behavior violated the zero tolerance policy. The Agency police found no basis to file a criminal charge against Complainant, and the record contained no statement from the nurse herself indicating that she believed Complainant's actions amounted to "violence" toward her. The Commission also found telling the absence of any statement from the Nurse's Supervisor who witnessed the incident and was asked to intervene. Therefore, the Commission determined that the Agency discriminated against Complainant when it disciplined him for the incident cited. The Agency was ordered, among other things, to rescind the suspension and expunge all references related to the matter from Complainant's personnel records, restore any pay lost, and investigate Complainant's claim for damages. Davis v. Dep't of Veterans Affairs, EEOC Appeal No. 0120123564 (March 19, 2013).

Retaliation

Retaliation Found with Regard to Performance Appraisal. Complainant worked for the Agency as an Intern or trainee, Human Resources Specialist, and had engaged in prior EEO activity of which her managers were aware. In 2009, Complainant's Supervisor rated her as Level 4 "Exceeds Expectations" on her annual performance appraisal. The Chief of Staff, however, returned the appraisal to the Supervisor, stating that he wanted further justification for the high score. Complainant's Supervisor believed that Complainant's rating was reduced because of her prior EEO activity. Ultimately, the Supervisor reduced the rating because the Chief would not move the appraisal along otherwise. Complainant filed a formal EEO complaint alleging that the Agency retaliated against her with regard to the appraisal. An AJ ultimately granted the Agency's motion for summary judgment and issued a decision 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 found, however, that the AJ erred in finding in favor of the Agency, as the record showed that Complainant was in fact subjected to retaliation. The Commission stated that the AJ erred in finding that Complainant did not establish a prima facie case because she did not show that she was treated differently than similarly situated comparative employees. The Commission noted that was not the proper analysis for a claim of retaliation, and the AJ, instead, should have examined how Complainant was adversely treated and whether or not the treatment was based on prior protected activity. In this case, all management officials were aware that Complainant engaged in protected activity, and she was subjected to adverse treatment when the Chief of Staff ordered the Supervisor to lower her performance rating. The evidence of record also established that there was a nexus between the protected activity and the lower rating. The claim for damages in Complainant's prior complaint was pending at the time the Chief of Staff ordered Complainant's appraisal to be lowered. Further, the testimony of Complainant's Supervisor established that the Chief was motivated by reprisal. The Supervisor described an ongoing bias from upper management against Complainant since she engaged in prior EEO activity.

While the Chief stated that he returned the appraisal for revision because it was poorly written, the score was not justified, and the rating was too high given Complainant's few years of service, the Commission found the reasons to be pretextual. The record showed that three of the five appraisals returned by the Chief were for employees who had engaged in protected activity. In addition, the Supervisor stated that she was the only person who observed Complainant's performance on a daily basis, and believed Complainant deserved a Level 4 rating, describing her work as "well above" what was required. The Supervisor also noted that the Chief never discussed Complainant's performance with her. The Commission noted that the Agency conducted a fact finding conference and had the opportunity to question the Supervisor about her statements but did not do so. Thus, a hearing was not necessary to further examine the Supervisor, and the Commission concluded that the Agency retaliated against Complainant. The Agency was ordered, among other things, to change Complainant's performance appraisal, and investigate her claim for damages. Coffee v. Dep't of the Army, EEOC Appeal No. 0120120117 (March 15, 2013).

Retaliation Found. Complainant, an Education Technician, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when her overall annual performance rating was reduced from "outstanding" to "exceeds," and she was refused entrance to the facility prior to her start time. Following a hearing, the AJ found discrimination with regard to those matters, and the Commission affirmed the findings on appeal. Complainant's first and second level supervisors, who were the rater and reviewer for her appraisal, were aware that she had filed a prior EEO complaint. The Agency asserted that Complainant's ratings had been inflated and that she was "borderline" between an overall rating of outstanding and exceeds. In addition, the Agency stated that Complainant was denied access to the facility on the days in question because it was Agency policy that no one was allowed to enter before their start time.

The AJ found that the Agency's explanations for its actions were a pretext to mask reprisal discrimination. Complainant received an overall rating of "outstanding" in the previous year based upon the same ratings on six job elements. Complainant also received "outstanding" ratings in the two years prior. All three appraisals had the same rating and reviewing officials. The Agency admitted that Complainant's performance did not decline, and her second level Supervisor acknowledged that her prior appraisal rating of "outstanding" was deserved. The AJ found that the Agency's explanation that the rating was lowered because the first level Supervisor inflated his ratings was not credible. The responsible officials sought advice from Human Resources on what overall rating to give Complainant, but did not do this for other employees. With regard to Complainant's entry into the facility, the AJ noted that Complainant and her supervisor testified that another employee was allowed admittance prior to his start time. The Commission rejected the Agency's assertion that the matters did not constitute adverse actions. Complainant testified that she could have received a monetary or time off award if she had gotten an "outstanding" rating. Further, the Commission noted that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation.

The Agency noted that management feared that Complainant would file an EEO complaint if she did not receive an overall "outstanding" rating, and, therefore, discussed the matter with Human Resources. The AJ expressed concern that Complainant's first and second level supervisors would discuss Complainant's EEO complainant and potential to file another while completing her performance appraisal. Further, the Commission noted that the two employees cited by the Agency as having their overall ratings decreased received ratings of "exceeds" in three of five elements, and four of five elements, respectively. Thus, there was no discretion but to give those employees an overall rating of "exceeds." The Commission concluded that the AJ's finding of discrimination was supported by substantial evidence. The Commission also affirmed the AJ's finding of no discrimination with regard to three other matters. The Agency was ordered, among other things, to change Complainant's overall rating to "outstanding" for the year in question and provide her with any benefits she would have received as a result thereof, as well as pay her $10,000 in proven compensatory damages and attorney's fees. Renner v. Dep't of Justice, EEOC Appeal No. 0720130004 (January 29, 2013).

Retaliatory Non-selection and Harassment Found. Complainant, a temporary Housekeeping Aid, filed a formal EEO complaint alleging that the Agency retaliated against him when it did not select him for a permanent position, and his Supervisor harassed him. Following a hearing, the AJ found that Complainant was discriminated against as alleged. The Commission affirmed the AJ's findings on appeal. Complainant applied for a permanent position and his application was referred to his Supervisor for an interview. The Supervisor, however, sent a memorandum to Human Resources stating that Complainant would not be interviewed for the position noting that he had been excessively late and missing from work. Complainant stated that his absences had been for medical treatment or hospitalization for a serious medical condition, and he believed his absences had been excused. Complainant's Supervisor confirmed that he received medical documentation from Complainant, but indicated that he did not submit it to his Manager and did not save the documentation. Further, Complainant had previously initiated an EEO complaint after he was issued a Notice of Termination for absenteeism. The AJ noted that Complainant entered on duty with the Agency as a disabled veteran with a 100 percent disability rating. Thus, the Agency should have reasonably anticipated that he would be absent due to illness or to seek medical treatment. Further, the AJ stated that, despite its assertion that Complainant was not selected because of excessive absenteeism, Complainant's Supervisor failed to keep an accurate accounting of medical documentation provided by Complainant. The AJ found that Complainant's Supervisor independently provided a negative reference to Human Resources in an effort to thwart Complainant from being selected for a permanent position.

With regard to the issue of harassment, the record showed that Complainant's Supervisor confronted Complainant as he left the Agency's Employee Health Clinic. The confrontation occurred in front of other patients and employees and an Agency physician and the Chief of Human Resources had to assist in quieting the disturbance created by the Supervisor. The physician provided a letter to Human Resources detailing the Supervisor's conduct, describing it as "overbearing…undignified and belittling." While the Supervisor stated that Complainant subsequently acted in a threatening manner toward him, the AJ noted that he failed to report any of the incidents and Complainant denied engaging in threatening conduct or making threatening statements. Therefore, the AJ did not find the Supervisor's assertion to be credible. The Agency was ordered, among other things, to reinstate Complainant into a permanent Housekeeping Aid position if he was able to return to work, with appropriate back pay and benefits, and pay Complainant $32,500 in proven compensatory damages. Johnson v. Dep't of Veterans Affairs, EEOC Appeal No. 0720120023 (January 16, 2013).

Remedies

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

Remedies Discussed. In a prior decision, the Commission found that the Agency subjected Petitioner to a discriminatory hostile work environment and retaliation. The Agency was ordered, among other things, to pay Petitioner $65,000 in non-pecuniary compensatory damages, retroactively promote her to a GS-12 position, determine the appropriate amount of back pay, interest and other benefits, remove two named individuals from their supervisory roles over Petitioner, and provide 40 hours of EEO training to all management officials at Petitioner's facility. The Agency was also directed to submit a Report of Compliance to the Commission and Petitioner. Petitioner subsequently filed a petition for enforcement and clarification, stating that she was unable to determine from the redacted Report of Compliance whether compliance had been achieved. Petitioner also indicated the Internal Revenue Service (IRS) informed her that the damage award was considered taxable and was subjected to interest and penalties. The Agency stated that it did not send Petitioner an un-redacted Report of Compliance because it contained information regarding other employees that was protected under the Privacy Act.

The Commission noted that redaction of information protected under the Privacy Act, such as specific information concerning disciplinary action taken against another employee, is appropriate in an EEO Report of Compliance sent to a complainant. In the instant case, however, the Agency noted that it would not provide Petitioner with the Report, "redacted or not." The Commission stated that the Agency was required to disclose non-disciplinary information to Petitioner in the Report. The Commission set forth only four specific items that should be redacted, and instructed the Agency to re-issue the Report to Petitioner. The Commission further found that the Agency did not provide Petitioner with adequate information to demonstrate how it calculated the amount of back pay to which she was entitled. The Commission stated that the Agency must provide detailed documentation regarding its back pay calculations and use clear and concise "plain language" as to the methods of calculation. The Commission also noted that the Agency had not provided appropriate training to all management officials at the facility.

With regard to damages, the Commission noted that the IRS excluded damages from gross income only to the extent that they are compensation for emotional distress caused by physical injury or sickness, and considered damages taxable unless they are reimbursement for medical or other out-of-pocket costs. The Commission has held that it is beyond the Commission's purview to categorize an award of damages in terms of its potential federal income tax ramifications. The Commission noted that, in the underlying decision on appeal, it found that Petitioner's non-pecuniary compensatory damages were partially based on physical injuries she suffered as a result of the Agency's discrimination. Specifically, the Commission stated that Petitioner experienced mental anguish and physical injuries because of the harassment. Nevertheless, the Commission stated that it was beyond its purview to determine how much, if any of the damages awarded Petitioner should be considered taxable gross income. The Agency was ordered to re-issue the Report of Compliance with only the four redactions specified, send all information regarding back pay calculations to Petitioner, and provide training to all management officials at Petitioner's facility. Kessel v. Dep't of Commerce, EEOC Petition No. 0420110014 (January 31, 2013).

Sanctions

Imposition of Sanctions Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to harassment. Following an investigation, Complainant requested an administrative hearing. Prior to the scheduled hearing date, the Agency made its initial discovery requests. Complainant, who was not represented by counsel, responded by noting that the information requested had already been provided during the investigation. The record includes an e-mail from Complainant to the Agency indicating that he had subsequently spoken with the AJ and understood what he needed to provide in response to the discovery requests. Complainant then provided the Agency with his response to the interrogatories and a number of documents, as well as his response to the Agency's stipulation of facts. The Agency found that the responses were still not complete and filed a motion to compel Complainant to respond, which the AJ granted. Complainant provided his responses within the specified time frame and indicated that he had executed a release for his medical records. The Agency then filed a motion with the AJ for sanctions against Complainant, asserting that his responses were still inadequate and not responsive. The AJ determined that sanctions were appropriate, and dismissed Complainant's hearing request. The Agency issued a final decision finding no discrimination.

On appeal, the Commission found that Complainant's actions did not warrant the sanction imposed by the AJ in this case. The record showed that Complainant, who was not represented by legal counsel, repeatedly attempted to respond to the Agency's requests and provided those responses within the deadlines imposed. Complainant was frequently in communication with the Agency and the AJ regarding the interrogatories and tried to provide the information requested. Further, although the Agency continued to request additional information, it failed to clarify specifically what it was seeking from Complainant. Thus, the Commission was not persuaded that Complainant affirmatively failed to cooperate with the discovery process and the AJ's orders. The Commission also stated that it appeared there was sufficient information in the investigative report for the parties to proceed to a hearing. The Commission remanded the complaint for an administrative hearing. Cauldwell v. Fed. Deposit Ins. Comm'n, EEOC Appeal No. 0120122818 (February 19, 2013).

Commission Declines to Sanction Agency. Complainant filed a formal EEO complaint in March 2010, alleging that the Agency retaliated against him with regard to his working conditions and performance appraisal, and subjected him to a hostile work environment. The Agency provided Complainant with a copy of the report of investigation and notice of the right to request an administrative hearing in September 2010. When Complainant did not respond, the case was forwarded to the Agency's unit (OEDCA) responsible for issuing a final decision. After review, OEDCA determined that the record was inadequate and requested a supplemental investigation. Complainant was notified of the supplemental investigation in April 2011. OEDCA received the supplemental investigation, which contained a number of witness statements, including one from Complainant, and a significant amount of documentary evidence, on June 28, 2011. The Agency issued its final decision on July 30, 2011, finding no discrimination.

The Commission noted that Complainant raised only one issue on appeal that is the Agency's final decision was not timely issued from when he received the original report of investigation. The Commission rejected Complainant's request that a finding of discrimination be entered in his favor. The EEOC's regulations provide that an Agency shall issue its final decision within 60 days of either receiving a request for a decision or the end of the time period for Complainant to make a request. In this case, since Complainant failed to respond, the final decision should have been issued by the end of December 2010 in order to meet the 60-day deadline. The Commission noted that, under certain circumstances, it has sanctioned agencies for failure to adhere to the deadlines in the regulations. In this case, however, the Commission found adequate justification for the Agency's delay. Specifically, the Agency found significant defects in the initial investigation which needed to be corrected in order to make a reasoned decision. Therefore, the Agency conducted a supplemental investigation. The record showed that Complainant was notified of the decision to conduct the supplemental investigation and submitted a statement during that time. The Commission found no indication in the record that Complainant ever objected to the supplemental investigation, and the Agency issued its final decision within three weeks of its completion. Thus, the Commission declined to sanction the Agency for its delay, and affirmed the Agency's finding of no discrimination or harassment. Landis v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113959 (February 14, 2013).

Dismissal of Hearing Request as Sanction Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it denied her reasonable accommodation and subjected her to harassment. Following an investigation, Complainant requested an administrative hearing. The AJ, however, dismissed the hearing request as a sanction for Complainant's failure to prosecute her complaint. Specifically, Complainant failed to timely submit a Prehearing Report as instructed in the Scheduling Order. Complainant did submit what the AJ described as "a voluminous, unordered, and incomplete package of documents" which purported to include a Prehearing Report and response to the AJ's Order to Compel Discovery. In addition, at the Prehearing Conference, Complainant's counsel indicated that Complainant had not participated in a scheduled deposition because of her hearing impairment despite acknowledging that the Agency asked what was needed to ensure that the deposition occurred. The AJ also stated that Complainant had an opportunity to show just cause for her failure to prosecute and that Complainant's counsel cited her work on other legal matters, lack of assistance, printing problems, and personal injuries as a justification for the delay. Noting that the Scheduling Order and the Order to Compel advised Complainant that failure to comply with EEOC Orders could lead to sanctions. The AJ dismissed the hearing request and remanded the matter to the Agency for the issuance of a final agency decision. The Agency then issued a decision finding no discrimination.

On appeal, the Commission found that the AJ correctly determined that the appropriate sanction was to dismiss Complainant's hearing request and to return the complaint to the Agency for a final decision. Complaint did not submit a timely Prehearing Report and, following an Order to Compel Discovery, submitted unordered and incomplete materials. Although Complainant argues that the AJ should have issued a Show Cause Order, we note that the Order Dismissing Complainant's Hearing Request specifically stated that Complainant had an opportunity to show just cause for the failure to prosecute her claim. Complainant's Counsel did not provide a sufficient explanation during the Prehearing Conference. Rather than dismiss the complaint, the AJ chose the lesser sanction of remanding the matter to the Agency for a final decision. With regard to the merits of the underlying complaint, the Commission found that Complainant failed to prove her claims of discrimination and harassment. Jarrell v. U.S. Postal Serv., EEOC Appeal No. 0120090443 (January 24, 2013).

Agency Sanctioned for Failing to Provide Complete Complaint File. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race, color, age and prior EEO activity. Following an investigation, Complainant requested an administrative hearing. Over Complainant's objections, the AJ granted the Agency's motion for summary judgment and found no discrimination. Complainant then appealed the matter to the Commission. The Commission sent the Agency a letter dated July 21, 2010, asking it to provide the complete record pertaining to the complaint within 30 calendar days. The Agency partially complied by submitting a portion of the record. The Commission made several additional attempts, through e-mail, to obtain the complete file. On August 3, 2012, the Commission issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed which ordered the Agency to submit the complete complaint file or provide good cause why it could not do so by August 24, 2012. The Agency failed to respond to the Notice within the specified time frame. The Commission concluded that the Agency's repeated failure to submit the complete record, including its failure to adhere to the deadline contained in the Notice, warranted the imposition of sanctions. The Commission noted that the Agency submitted additional documentation over 100 days past the deadline in the Notice, but found that sanctions were warranted notwithstanding the late submissions. The Commission, therefore, remanded the matter for an administrative hearing. Kelly v. Dep't of Health & Human Serv., EEOC Appeal No. 0120102870 (January 8, 2013).

Settlement Agreements

Settlement Agreement Void for Lack of Consideration. The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would adhere to Complainant's stated medical restrictions as set forth by his medical provider, and any perceived confusion regarding the restrictions would be resolved within the confines of the EEO laws and Agency regulations. Complainant alleged that the Agency breached the agreement when he was forced to work beyond his restrictions. On appeal, the Commission found that the agreement was invalid due to a lack of consideration. On its face, the agreement contained no substantive Agency obligation beyond what was already required under the Rehabilitation Act. Specifically, the Agency was already required to provide reasonable accommodation based upon valid medical documentation. Therefore, the agreement was unenforceable due to a lack of adequate consideration. The Agency was ordered to resume processing of the underlying complaint. Riggs v. U.S. Postal Serv., EEOC Appeal No. 0120130535 (March 28, 2013).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement which provided, among other things, that Complainant would resign from the Agency, and the Agency would write a letter to the Office of Security and Law Enforcement concerning Complainant's separation. The referenced letter was included as an attachment to the agreement and stated that Complainant met the requirements for issuance of a "retired badge and credentials," and was separating from the Agency "in good standing." Complainant alleged that the Agency breached the agreement when it failed to issue him retirement credentials, and issued a form SF-50 indicating that he resigned "in lieu of inovl[untary] action." While the Agency stated that it corrected the form, Complainant asserted that the original form remained in his electronic personnel file.

On appeal, the Commission found that the Agency breached the agreement. The Commission noted that the attachment, incorporated into the agreement by reference, provided that Complainant was separating from the Agency in good standing, and Complainant's personnel records should have reflected this agreement. Therefore, any records remaining as a part of Complainant's personnel file that suggest he did not separate from the Agency in good standing would constitute a breach of settlement. Further, the Agency provided no explanation as to why Complainant's retirement credentials were withheld other than that it was a decision by its headquarters Office of Security and Law Enforcement. The Commission found that withholding a retirement badge and credentials without explanation violated the spirit of the agreement. The Commission noted that if the Agency never intended to issue the credentials, then it acted in bad faith when it agreed to issue a letter requesting them. The Agency was ordered, among other things, to take the necessary steps to remove the incorrect SF-50 and any other documentation that would suggest Complainant left the Agency under circumstances other than in good standing from Complainant's electronic personnel file, and issue Complainant his retirement badge and credentials. Hottle v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130135 (February 15, 2013), request for reconsideration denied, EEOC Request No. 0520130373 (August 21, 2013).

Settlement Agreement Unenforceable. The parties entered into a settlement agreement in February 2010, which provided, in pertinent part, that the Customer Service Supervisor would not have any input in decisions regarding Complainant's duties, requests for time off or "anything else having to do with" Complainant. Complainant subsequently notified the Agency in April 2011 that it was in breach of the settlement agreement. Specifically, Complainant stated that the Supervisor interfered with his work schedule, and another official failed to monitor and enforce the agreement. On appeal, the Commission found that the agreement was unenforceable. The Commission found the Supervisor's actions in making and posting Complainant's weekly schedule were contrary to the language of the settlement agreement requiring him to have no input in decisions having to do with Complainant. Further, the Commission found that the fact the Supervisor continued to make Complainant's schedule and that Complainant did not claim this was a breach in and of itself for some time demonstrated a lack of meeting of the minds. The Commission also noted that the Supervisor had subsequently become the Acting Station Manager. Thus, any request he made for custodial services could be interpreted as a decision involving Complainant since Complainant could be called upon to perform them. The Commission found that the lack of meeting of the minds and vague language created insurmountable problems with the enforceability of the agreement. Olvera v. U.S. Postal Serv., EEOC Appeal No. 0120113559 (February 5, 2013).

Breach of Settlement Found. The parties entered into a settlement agreement which provided, among other things, that the Agency would remove a Notice of Removal from Complainant's Official Personnel File, consider Complainant to have retired in good standing, create a new Form 50 for Complainant reflecting that he retired from the Agency, and cooperate with the Office of Personnel Management (OPM) on any requests for information regarding Complainant's retirement. Complainant subsequently alleged that the Agency breached the agreement by failing to clearly communicate with OPM resulting in the rejection of his application for early retirement. On appeal, the Commission found that the Agency breached the agreement. Complainant stated that he entered into the agreement with the intention that he would be eligible for early retirement, and the record supported that assertion. The Agency acknowledged that it failed to generate a Form 50 showing that Complainant retired. The Commission rejected the Agency's assertions that it could not generate a Form 50 showing that Complainant "retired," and complied with the agreement by changing the Form 50 to reflect that Complainant "resigned." The Commission stated that the settlement agreement expressly obligated the Agency to consider Complainant retired and create a Form 50 reflecting that status. The Agency was ordered to contact OPM and indicate that Complainant had retired under an "early out" process. The Commission noted that if OPM then rejected Complainant's retirement application, the Agency should reinstate the underlying complaint for processing. Madison v. U.S. Postal Serv., EEOC Appeal No. 0120123013 (January 23, 2013).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement which provided, in pertinent part, that the Agency would, as soon as possible, provide certain training and a mentor to Complainant. After Complainant raised an allegation of breach, the Agency issued a final decision finding that it was in compliance with the agreement. The Agency asserted that the provisions of the agreement were contingent upon Complainant's ability to return to work, but that Complainant's psychologist indicated she was unable to return to work and needed a medical transfer to a different station before he would clear her for work. On appeal, the Commission found that the Agency breached the settlement agreement. The record contained several documents relating to Complainant's ability to work. A note from a psychologist, addressed to Complainant's medical physician, presented Complainant's diagnosis and recommended that Complainant transfer to another position due to a medical condition that prevented her from functioning in her present job. Subsequently, Complainant's physician wrote that she could return to work for four hours per day "without threat to self or others." Complainant's physician also completed an Office of Workers' Compensation Programs (OWCP) form which provided similar information. The Commission noted that the settlement agreement did not explicitly require Complainant to obtain clearance to return to work as a condition precedent to executing the remainder of the agreement. The Commission rejected the Agency's argument that it could not be in breach of the agreement because Complainant had not returned to work. The Commission stated that if the Agency had correctly read Complainant's medical documentation, then she would have returned to work immediately upon the execution of the settlement agreement. The Commission ordered the Agency to reinstate the underlying complaint for processing. Jones v. U.S. Postal Serv., EEOC Appeal No. 0120123035 (January 9, 2013).

Portions of Settlement Agreement Found Void. The parties entered into a settlement agreement which provided, in relevant part, that each party would be treated with dignity and respect, including that there would be no retaliation as a result of the underlying EEO complaint, and that the parties would more effectively communicate with regard to route issues. The agreement also provided that the Agency would allow Complainant to begin his tour 8 minutes later one day within 5 days. Complainant subsequently alleged that the Agency breached the agreement when his Supervisor walked with him on the street, without prior notification, used "loud and ag[glressive language," and ordered him to proceed in an unsafe manner. On appeal, the Commission found that the provisions of the settlement agreement concerning the parties being treated with dignity and respect and assuring that there would be no retaliation did not confer on Complainant any benefit that he was not already entitled to as a matter of law. In addition, the agreement to have "more effective communication with regard to route" was too vague to be enforced. Therefore, the Commission found that those provisions were void for lack of consideration. The Commission stated, however, that consideration was exchanged through the remaining portion of the agreement, specifically the provision regarding Complainant being allowed to begin his tour 8 minutes later. Thus, the settlement agreement was reformed without the mentioned provisions. Lawson v. U.S. Postal Serv., EEOC Appeal No. 0120123506 (January 23, 2013), request for reconsideration denied, EEOC Request No. 0520130310 (August 15, 2013).

No Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that Complainant would report to a different facility, but would remain employed at the GS-5, step 10 level. Complainant subsequently alleged that the Agency breached the agreement when it reduced her pay and advised her that her eligibility for enhanced pay had ended. The Agency provided evidence showing that Complainant's pay grade remained at the specified level, but that her previous rate of pay was higher because it was based on a retained pay rate to which she was no longer entitled. On appeal, the Commission found that the Agency did not breach the settlement agreement. The Commission stated that the agreement was unambiguous that the grade level would be preserved, but did not mention Complainant's salary. While the Commission noted that it was a logical extension to see salary as equivalent to grade, the Commission could not read such a provision into the agreement. Hundley v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130048 (March 8, 2013).

No Breach of Settlement Found. The parties entered into a settlement agreement on March 11, 2011, which provided, in pertinent part, that two named management officials would meet with Complainant and a representative within 30 days to discuss the matters raised in her complaint. Complainant alleged that the Agency breached the agreement when it failed to meet with her within the 30-day time frame. According to the record, a letter was delivered to Complainant on April 26, 2011, notifying her that a meeting had been scheduled for April 29, but Complainant failed to appear for the meeting. The Plant Manager telephoned Complainant's work area and Complainant's Supervisor stated that she told him she was not going to attend the meeting. On appeal, the Commission found that the Agency substantially complied with the agreement by scheduling the meeting a little over two weeks after the 30-day time limit set forth in the agreement. The Commission found no indication that the Agency acted in bad faith in failing to meet the 30-day time limit or that the two week delay undermined the intent of the agreement. The Commission noted that Complainant chose not to attend the meeting. Gregory v. U.S. Postal Serv., EEOC Appeal No. 0120113710 (January 30, 2013).

Stating a Claim

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

King v. Dep't of the Navy, EEOC Appeal No. 0120130101 (March 20, 2013) (the Agency improperly separated out Complainant's claim regarding a performance improvement plan (PIP) and dismissed that claim, as well as a claim of harassment for failure to state a claim. Complainant alleged a series of events which allegedly occurred for nearly one year, and clearly stated that the PIP and the actions surrounding the PIP were provided in support of her claim of hostile work environment. Further, while the Agency stated that Complainant had not engaged in protected activity, Complainant asserted that the Supervisor targeted her because of her previous contact with the EEO Office).

Williams v. U.S. Postal Serv., EEOC Appeal No. 0120130290 (March 7, 2013) (the Agency incorrectly concluded that the alleged harassment was related to Complainant's Family and Medical Leave Act (FMLA) approved condition and was within the jurisdiction of the U.S. Department of Labor. A fair reading of the complaint and EEO counseling report indicated that Complainant asserted that Agency managers harassed her by repeatedly asking for information about her medical condition, discussed her condition with other employees, did not communicate with her, forced her to take a position with split days off, required her to work on her non-scheduled day, denied her sick leave requests, and did not take action against a co-worker who made a racist remark).

Salazar v. U.S. Postal Serv., EEOC Appeal No. 0120130031 (February 22, 2013) (Complainant's claim that the Agency revealed his personal medical information to co-workers and told them he had "mental issues" stated a viable claim. The Commission's regulations implementing the Rehabilitation Act provide for the confidentiality of medical records, and documentation or information of an individual's diagnosis is without question medical information that must be treated as confidential except in certain circumstances. Therefore, Complainant's allegation of unlawful medical disclosure must be investigated before a decision can be made on the merits of the claim).

Day v. U.S. Postal Serv., EEOC Appeal No. 0120122376 (February 19, 2013) (Complainant's claim that the Agency dismissed her from new hire orientation and withdrew a job offer stated a viable claim of sex discrimination. Complaints of discrimination based on transgender status should be processed under Title VII and through the federal sector EEO process as claims of sex discrimination. Thus, Complainant's claim that she was discriminated against because of her transgender status stated a claim under Title VII).

Horowitz v. Dep't of Health & Human Serv., EEOC Appeal No. 0120114091 (February 5, 2013) (the Agency improperly dismissed Complainant's claim of discrimination for failure to state a claim on the grounds that he was not an Agency employee. Complainant stated that he was supervised on a daily basis by Agency managers, and that there was no difference between direct-hire and contractor anesthesiologists within the department. Further, the Agency provided Complainant with his assignments, conducted weekly case conferences, set the schedule, verified time sheets, and provided him with equipment and supplies. Complainant was paid on an hourly basis and worked for the Agency for nearly four years. While the Agency did not pay taxes for Complainant or provide him with benefits, the record showed that the Agency had sufficient control over Complainant's position to qualify as his employer or joint employer for purposes of the EEO complaint process); See also Lee v. Dep't of the Army, EEOC Appeal No. 0120112643 (January 24, 2013) (the Agency improperly dismissed Complainant's claim of discrimination on the grounds that he was not an Agency employee. Complainant was hired under a contract with a private contractor, and the Agency did not provide him with the materials to perform his job or any leave or benefits. The Agency, however, directly supervised Complainant, and controlled his work hours, duty responsibilities and leave requests; Complainant's position did not require a high level of skill or expertise; his relationship with the Agency lasted approximately one year; he was paid at an hourly rate; and the Agency had unfettered control over the decision to terminate Complainant. Thus, the Agency exercised sufficient control over Complainant's position to be rendered a joint employer).

Johnson v. U.S. Postal Serv., EEOC Appeal No. 0120113693 (February 7, 2013) (Complainant's allegation that the Agency discriminated against her when it did not provide her with continuation of pay, overcharged her for health insurance, and cancelled her life insurance stated a viable claim. Contrary to the Agency's assertions, the matters were not related to Complainant's OWCP Claim, and the alleged failure to provide Complainant with continuation of pay was an Agency action rather than a matter for the Department of Labor. In addition, the allegations regarding insurance related to an alleged failure by the Agency's Human Resources Office).

Muschler v. Envtl. Prot. Agency, EEOC Appeal No. 0120123476 (February 1, 2013) (Complainant's allegation that he was subjected to an investigation by the Agency's Inspector General stated a viable claim of retaliation. The action could dissuade a reasonable employee from making or supporting a charge of discrimination, and, if proven true, could have a chilling effect on EEO participation).

Rolfing v. Dep't of Health & Human Serv., EEOC Appeal No. 0120123230 (January 24, 2013) (Complainant's allegation that the Agency retaliated against her when it changed her assignment stated a viable claim of retaliation. Complainant stated that, following the implementation of a settlement in her prior EEO complaint, the Agency changed her performance expectations so that she would be expected to work in a different area, and such an action was reasonably likely to deter Complainant or others from engaging in protected activity).

Quintero v. Dep't of the Air Force, EEOC Appeal No. 0120123375 (January 24, 2013), request for reconsideration denied, EEOC Request No. 0520130309 (July 31, 2013) (Complainant's claim that the Agency discriminated against him on the basis of his disability when it denied him overtime stated a viable claim. The Agency's assertion that Complainant's injury did not warrant coverage under the Rehabilitation Act addressed the merits of the claim without a proper investigation and was irrelevant to the procedural issue of whether he stated a claim).

Sandifer v. Dep't of the Navy, EEOC Appeal No. 0120123349 (January 18, 2013) (Complainant's claim that her Supervisor and Agency managers intentionally delayed processing her application for disability retirement stated a viable claim of discrimination. Complainant clearly alleged a financial injury as well as a personal deprivation in the Agency's delay).

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

Hooker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130289 (March 8, 2013), request for reconsideration denied, EEOC Request No. 0520130332 (July 26, 2013) (the Agency properly dismissed Complainant's complaint alleging that the Agency violated the Drivers Privacy Protection Act when it accessed his driver's license information. The Act provides the exclusive statutory framework governing the disclosure of personal information contained in state motor records, and jurisdiction rests exclusively in the U.S. District Courts).

Garvin v. U.S. Postal Serv., EEOC Appeal No. 0120130280 (March 8, 2013) (Complainant's allegation concerning problems with the delivery of her mail and the location of her mail box failed to state a claim within the meaning of the EEOC's regulations. Complainant last worked for the Agency approximately 10 years previously, and the matter related to her status as a customer of the Agency not an employee).

Harris v. U.S. Postal Serv., EEOC Appeal No. 0120130222 (February 25, 2013) (Complainant's claim that the Agency discriminated against him when it failed to enforce a grievance arbitration decision failed to state a claim pursuant to the EEOC's regulations. The Commission has consistently held that an employee cannot use the EEO complaint process to lodge a collateral attack on another forum's proceeding, and Complainant must seek enforcement of the arbitration decision within the negotiated grievance process).

Akanbi v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121972 (February 21, 2013) (the Agency properly dismissed Complainant's complaint for failure to state a claim on the grounds that Complainant was not an Agency employee or applicant for employment. Complainant was a senior nursing student at Loyola University. The agreement between the Agency and the University provided that the University would select trainees for the program, evaluate their performance and conduct. While the Agency provided supervision for the trainees and had the power to dismiss them, it did not provide Complainant with any monetary compensation, leave, or benefits, and Complainant did not receive any such compensation from the University. Therefore, Complainant failed to show that he was an employee of the Agency, and the Agency's intent was to train him as a student. Complainant did not indicate that he intended to create an employment relationship); see also, Hill-Keyes v. Soc. Sec. Admin., EEOC Appeal No. 0120123560 (February 19, 2013) (the Agency did not exercise sufficient control over Complainant's job to qualify as her employer for purposes of the EEO complaint process. Complainant, a psychologist worked as a Medical Consultant on Agency premises, and the Agency provided her with equipment. She worked for the Agency for a period of approximately seven years doing work central to the Agency's mission, and the Agency terminated the Blanket Purchase Agreement under which she was working. Nevertheless, Complainant worked independently, and the Agency did not routinely review her work or complete performance appraisals. Complainant set her own hours, and could have outside employment. Complainant was paid based upon the number of reports she submitted, and was not provided with leave or benefits); Garrett v. Tenn. Valley Auth., EEOC Appeal No. 0120123477 (February 19, 2013) (the Agency properly dismissed the complaint for failure to state a claim on the grounds that Complainant was not an employee or applicant for employment. The record showed that Complainant worked as a government contractor and the Agency did not control the means and manner of his daily work performance and did directly supervise his work. Complainant was assigned to the Agency as a "task managed" employee whereby he was hired, supervised, and directed by the contractor, and his work was not an integral part of the Agency's business. The contractor provided most of Complainant's initial training, and made the decision to suspend and subsequently terminate Complainant. The contractor was also responsible for Complainant's work schedule, salary, leave, benefits and tax documentation. Thus, the Agency did not exercise sufficient control over Complainant's position to establish a de facto employment relationship).

Garrett v. U.S. Postal Serv., EEOC Appeal No. 0120123384 (January 25, 2013) (the Agency properly dismissed Complainant's claim that she was discriminated against when she was subjected to a fact finding interview for failure to state a claim. Complainant was not disciplined as a result of the discussion and the discussion was not itself a disciplinary action).

Hall v. Dep't of Homeland Sec., EEOC Appeal No. 0120121561 (January 9, 2013) (Complainant's claim that the Agency discriminated against him on the bases of his race, sex and color when his Supervisor verbally counseled him and placed him on a list of "problem employees" did not state a viable claim under Title VII. Complainant did not allege that any adverse action was taken as a result of the verbal counseling, and provided no explanation concerning the nature of the purported list or how he was negatively impacted by it).

Summary Judgment

Summary Judgment Proper. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of her disability when it denied her request for reasonable accommodation. Following an investigation, Complainant requested a hearing before an AJ. The Agency submitted a motion for a decision without a hearing, and set forth a statement of facts, none of which were disputed by Complainant. The AJ granted the motion, over Complainant's objections, and issued a decision finding no discrimination. On appeal, the Commission found that the AJ properly issued a decision on summary judgment. The Commission determined that there were no disputed issues of material fact. The Commission was not persuaded by Complainant's argument that she did not receive notice of a proposed decision without a hearing or statement of undisputed facts. In this case, the AJ did not issue a sue sponte motion for summary judgment. Instead, the Agency set forth a statement of material facts it believed failed to raise any genuine issues, and Complainant did not dispute the facts as they pertained to her disability and restrictions. Further, the Commission found no evidence in the record to controvert the Agency's statement. According to the record, Complainant requested reasonable accommodation, and detailed a vast list of restrictions on her ability to walk at a distance, lift and carry objects heavier than five pounds. She also was unable to perform fine manipulation or key in codes for more than two hours daily. Complainant's position required her to key in zip code numbers, a function she was unable to perform 75 percent of her eight-hour day. The Agency submitted data showing a declining volume of mail, and a surplus of workers. It was unable to locate a vacant, unfunded position for Complainant. The Commission noted that Complainant's restrictions were so severe that she could not perform the duties of any of the vacant positions the Agency had available. Thus, the Commission affirmed the AJ's finding of no discrimination. Fain v. U.S. Postal Serv., EEOC Appeal No. 0120123487 (February 7, 2013).

Summary Judgment Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race, sex (sexual orientation), disability, and prior EEO activity when he was harassed when he returned to work following a leave of absence. Following an investigation, Complainant requested a hearing before an AJ. The AJ issued a decision on summary judgment. The AJ initially dismissed the basis of sexual orientation, but found the basis of sex appropriate to address Complainant's allegations concerning stereotypically gay gestures and references to Complainant as "flamboyant." The AJ ultimately stated that Complainant was not substantially limited in a major life activity, and did not establish a causal connection between his prior EEO activity and the actions at issue. Finally, the AJ concluded that Complainant failed to allege actions that rose to the level of a hostile work environment, or show that the actions were discriminatory.

On appeal, the Commission found that the AJ's issuance of a decision on summary judgment was improper. The Commission initially determined that Complainant's allegations stated a viable claim of sex discrimination and Complainant's characterization of the basis as sexual orientation did not defeat the otherwise valid sex discrimination claim. Complainant alleged that he was mocked as effeminate and told he had "flamboyant" mannerisms which were unsuited to the work place. These allegations were sufficient to state a claim of discrimination for failure to match gender-conforming behavior and, thus, stated a claim of sex discrimination. The record revealed that there were material facts in dispute regarding Complainant's allegation of hostile work environment harassment based on sex, such as whether a Supervisor used terms such as "honey," "sweetie," or "baby," or made "overtly gay" gestures. In addition, there was a dispute as to whether another Supervisor referred to Complainant as "flamboyant" to mock him based upon his perceived sexual orientation. The Commission noted that the second Supervisor had passed away since Complainant filed his complaint making this the type of situation in which a hearing was required to judge the credibility of available witnesses and make findings regarding the material issues in contention. The Commission also found that there were genuine issues of material fact regarding claims concerning Complainant's working conditions, including facts that went to the motivation based on race and reprisal. The Commission concluded that the AJ could not have reached a finding of no discrimination in this case except by resolving significant conflicting evidence in the Agency's favor, which was inappropriate in a grant of the Agency's motion for summary judgment. Therefore, the complaint was remanded for an administrative hearing. Baker v. Soc. Sec. Admin., EEOC Appeal No. 0120110008 (January 11, 2013).

Timeliness

Extension of Time for Contacting EEO Counselor Warranted. Complainant initially contacted an EEO Counselor on April 19, 2011, alleging that the Agency discriminated against him on the bases of his race, color and disability. The Agency acknowledged Complainant's EEO contact and asked him to complete pre-complaint counseling forms. The Agency indicated that Complainant's failure to complete the forms within 10 days could result in the closing of his complaint for failure to proceed. Complainant e-mailed the Agency on May 1, 2011, stating that he received the forms on April 21, 2012, but did not have sufficient time to complete them due to work obligations and pending leave. Complainant indicated that he intended to continue to pursue his allegations and requested an extension of time in which to complete the required forms. There is no indication in the record that the Agency responded to Complainant's request. Complainant made an additional request for an extension, but the Agency advised him that his request for counseling had been closed. The Agency noted that Complainant should submit a written allegation or the completed forms if he believed it should reconsider the decision to cancel his counseling request. Complainant contacted the Agency several times thereafter, but there was no indication in the record that the Agency ever replied to Complainant's requests for an extension. Complainant submitted the forms, and the Agency ultimately dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found sufficient evidence in the record to warrant an extension of the time limit for initiating EEO contact. The Commission noted that the Agency failed to respond to any of Complainant's repeated requests to extend the counseling period. Therefore, the dismissal was improper and the complaint was remanded for further processing. Michael v. U.S. Postal Serv., EEOC Appeal No. 0120130329 (March 22, 2013).

EEO Counselor Contact Deemed Timely. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it terminated her from her position in November 2011. The Agency dismissed the complaint, stating that Complainant's contact with the EEO Counselor in August 2012 was beyond the 45-day limitation period. On appeal, the Commission found that the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness. Complainant, on appeal, stated that she initially contacted EEO personnel in November 2011, and was told that she could pursue the matter first with the Office of Professional Responsibility Board (OPRB) then subsequently file an EEO complaint. Complainant noted that an EEO Specialist contacted her in August 2012, and she told the Specialist that she had filed a claim with OPRB first on the advice of EEO personnel. The Commission noted that the Agency failed to respond to Complainant's assertion that she was provided with inaccurate information when she initially contacted EEO staff in November 2011. Thus, the matter was remanded for processing. Gaines v. Dep't of Homeland Sec., EEOC Appeal No. 0120130405 (March 19, 2013).

EEO Counselor Contact Timely. Complainant, an applicant for employment with the Agency, contacted an EEO Counselor on November 17, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against him when it rescinded a job offer in August 2011. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that the Agency improperly dismissed the complaint. The record did not clearly support the Agency's claim that Complainant reasonably suspected discrimination on August 5, 2011. Complainant informed the Counselor that he believed he was discriminated against on the basis of a perceived disability due to a statement made by a former co-worker during the background investigation. Complainant stated that he learned of the statement on October 11, 2011, and had no prior knowledge of a perceived disability. Complainant denied telling the Agency that he suspected discrimination in August. The record contained evidence of an e-mail exchange between Complainant and the Counselor in which Complainant indicated that he learned of the discrimination on October 11, 2011. Thus, the Commission determined that Complainant timely contacted the EEO Counselor upon learning of the alleged discrimination. Michel v. Dep't of Justice, EEOC Appeal No. 0120123297 (January 18, 2013).

Dismissal of Complaint for Failure to Timely Contact EEO Counselor Improper. Complainant contacted an EEO Counselor on April 11, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it issued her a Notice of Removal in August 2010. Complainant stated that, during a March 2011 arbitration hearing, she learned for the first time that comparable employees did not receive similar Notices. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that the Agency's dismissal was improper. The record contained no evidence rebutting Complainant's assertion that she first learned that similarly situated co-workers received less harsh discipline for the same infraction in March 2011. In fact, Complainant's assertion was corroborated by an Agency Supervisor. The Agency failed to present any evidence to support its assertion that Complainant should have developed a reasonable suspicion of discrimination at an earlier date. Thus, the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness. Schroeder v. U.S. Postal Serv., EEOC Appeal No. 0120113585 (January 11, 2013).

Complaint Improperly Dismissed as Untimely. Complainant contacted an EEO Counselor in May 2010, alleging that the Agency discriminated against him when it subjected him to a hostile work environment. On June 8, 2010, the EEO Counselor sent Complainant an e-mail "Notice of Rights-Extension of Time," asking Complainant to agree to a 60-day extension of time for informal processing. The e-mail stated that Complainant had five days to respond to the request. The EEO Counselor then sent Complainant a Notice of Right to File a Formal Complaint on June 10. Complainant responded to the EEO Counselor on June 12, 2010, questioning the two Notices, and signed an Extension of Time form on that date. Complainant subsequently amended his complaint to include the issue of his termination, and filed a formal EEO complaint on August 22, 2012. The Agency dismissed the complaint as untimely. On appeal, the Commission stated that the Agency provided unclear information to Complainant, and Complainant reasonably believed that the informal counseling period had been extended. Complainant responded to the request for an extension of time within the five day period specified by the EEO Counselor, and agreed to extend the informal processing. The record was devoid of evidence that the Agency communicated to Complainant that it would not extend the counseling period. Instead, the record suggested that the Agency was continuing to process the complaint at the informal stage. The EEO Counselor's report indicated that an extension request was granted on June 12, 2010, and that the Counselor was still processing the matter at the informal level subsequent to the Notice being issued on June 10. Therefore, the Commission stated that the Agency should have issued Complainant a valid Notice of Right to File subsequent to the extension of the counseling period. The Commission rejected the Agency's assertion that the doctrine of laches should bar Complainant's claim, stating that the Agency's actions contributed to Complainant's belief that it was continuing to process the complaint at the informal level. Thus, the Commission concluded that the dismissal was improper. Williams v. Dep't of Def., EEOC Appeal No. 0120130153 (February 11, 2013).

Formal Complaint Timely Filed. Complainant filed a formal complaint on June 9, 2011, alleging that the Agency subjected her to discrimination on the basis of her disability and in reprisal for prior EEO activity. The Agency dismissed the complaint as untimely, stating that Complainant received the notice of right to file a formal complaint by e-mail on May 16, 2011. On appeal, the Commission found that the dismissal was improper. While the e-mail expressly requested that Complainant confirm receipt of the notice, the Agency did not submit any evidence showing that Complainant received the notice on May 16, and Complainant did not acknowledge receipt of the e-mail on that date. Thus, the Commission concluded that the Agency failed to meet its burden of obtaining sufficient information to support a determination as to timeliness, and the Commission was not persuaded that the complaint was not timely filed. Miller v. Dep't of the Army, EEOC Appeal Nol. 0120113549 (January 31, 2013).

Extension of Time for Filing Formal Complaint Warranted. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it subjected him to two drug tests, placed him on emergency off-duty non-pay status, and revealed his medical information to his co-workers. The Agency dismissed the complaint as untimely. The record showed that Complainant received the notice of right to file a formal complaint on May 23, 2012, and the Agency received the formal complaint in an envelope without a postmark on June 15, 2012. Complainant was assumed to have filed his complaint within five days of the Agency's receipt, which was eight days beyond the applicable 15-day limitation period. On appeal, Complainant presented a letter from his psychologist indicating that, during the period in question, he was diagnosed with a major depressive disorder and anxiety and was taking a number of different medications. The psychologist stated that Complainant's symptoms included significant concentration and memory deficits which would have "severely limited his ability" to navigate the EEO process. Thus, the Commission found that an extension of the time limit for filing a complaint was warranted in this case. Hambrick v. U.S. Postal Serv., EEOC Appeal No. 0120123246 (January 15, 2013).

Formal Complaint Timely Filed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it failed to reasonably accommodate her and issued her a notice of separation. The Agency dismissed the complaint as untimely. On appeal, the Commission found that the Agency's dismissal was improper. According to the record, Complainant received the notice of right to file a formal complaint on June 4, 2012. Complainant dated her complaint on June 18, 2012, and the complaint was mailed to the Agency by Priority Mail in an envelope containing a mailing label issued by the Postal Service on that date. The Agency asserted that Complainant did not actually mail her complaint until June 27, 2012, as evidenced by its Track and Confirm system which indicated that the envelope was not "Enroute/processed" until that date. The Commission found, however, that the Track and Confirm system was not adequate proof that Complainant did not mail the envelope containing the complaint on June 18, the date she purchased the label. The Commission noted that there were many potential reasons for the delay and no affirmative proof that Complainant delayed mailing her complaint. Sullivan v. U.S. Postal Serv., EEOC Appeal No. 0120123247 (January 15, 2013).

ARTICLE
Abuse of Process

(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. Some decisions cited may have appeared in previous editions of the Digest. -Ed)

INTRODUCTION

The Commission has historically had the inherent power to control and prevent abuse of its orders, processes and procedures, as they provide the means necessary to eliminate unlawful employment discrimination in the federal government.1 In addition, the EEOC's regulations provide for the dismissal of a complaint which evidences a clear pattern of misuse of the EEO process for ends other than that which it was designed to accomplish.2 Specifically, the regulations state that a clear misuse of the EEO process requires evidence of multiple complaint filings, as well as allegations that are similar or identical, lack specificity, or involve matters previously resolved, or evidence the Complainant has circumvented other administrative processes, retaliated against the Agency's administrative processes or overburdened the EEO complaint system.3

The Commission aims to preserve a complainant's EEO rights whenever possible, and therefore rarely permits the dismissal of a complaint on these grounds.4 Therefore, the Agency bears a very high standard of proof to show that a complainant's actions constitute an abuse or misuse of the EEO process.5 Filing numerous complaints alone is not a sufficient basis for dismissal, and the focus of the analysis is on the totality of the individual's claims, circumstances and intentions. Nevertheless, evidence of multiple complaint filings combined with the subject matter of the complaints, such as frivolous, similar or identical allegations or allegations involving matters previously resolved, may be considered in determining whether a complainant has engaged in a pattern of abuse of the EEO process.6 Further, the Commission has consistently found abuse of process in those cases in which a complainant has been removed from employment, has litigated the removal, and been unsuccessful in obtaining reemployment with the Agency involved.7

Recent Commission Decisions Finding Abuse of Process

In Ardalan v. Dep't of the Army,8 the Commission found that the underlying complaint should be dismissed for abuse of process. Complainant worked for the Agency from 1989 through 1995, and challenged her termination before the MSPB and in U.S. District Court. Both the Commission and the Court found that Complainant failed to establish that her termination was discriminatory. Complainant continued to apply for various positions with the Agency, and the Commission had previously considered her claims of discriminatory non-selection on two occasions. Complainant filed an additional complaint in September 2011, alleging that the Agency discriminated against her when it did not select her for over 90 vacant positions, including positions available under three specific vacancy announcements. On appeal, the Commission affirmed the Agency's dismissal of the complaint for abuse of process. While Complainant had not reached the sheer number of complaints present in prior cases where the Commission has found abuse of process, she consistently claimed a continuing violation for all non-selections dating from 2002 through the filing of the instant complaint and claimed that over 90 positions were discriminatorily denied to her. The Commission stated that her allegations were all similar or identical, and involved matters previously resolved not only by the Commission but also by the MSPB, the U.S. District Court, and the Ninth Circuit Court of Appeals. Complainant, nevertheless, continued to persist in raising the same claims with each non-selection. The Commission concluded that Complainant's claims of non-selection, in the face of several Commission and federal court findings that she was not discriminated against, showed a willingness to utilize the EEO process to pursue her grievances against the Agency.

The Complainant in Stoyanov v. Dep't of the Navy,9 worked for the Agency until 2010 when he was removed from employment. Complainant filed numerous complaints alleging that the Agency discriminated against him when he was not referred or selected for various positions. The Agency indicated that Complainant continued to apply for positions that were reserved for current employees. On appeal, the Commission determined that the underlying complaints were part of a pattern of abuse perpetuated by Complainant to punish the Agency by burdening the EEO system. Despite knowing that the complaints he filed were meritless, Complainant filed over 50 administrative EEO complaints to vex the Agency rather than vindicate his rights under the EEO laws. The Commission noted that Complainant's removal was upheld by the MSPB and the Commission denied his petition for review of that decision. Nevertheless, Complainant had applied for positions only open to current employees on at least 17 occasions since his removal, and filed EEO complaints each time he was rejected as not qualified.

The Commission noted that Complainant continued to argue that his removal was wrongful and that he believed he was a current employee. Complainant knew he could not be referred for an interview or selected for the positions due to his non-employee status, and even misrepresented himself as an employee on job applications. Agency officials warned Complainant that they would not consider him unless his employment status changed, but Complainant disregarded the warnings and filed EEO complaints each time he received notice of his non-selection. Therefore, the Commission concluded that Complainant's only objective in applying for the positions was to then file futile EEO claims against the Agency, and Complainant used the EEO process to retaliate against the Agency and its officials for his removal and perceived unjust treatment. The Commission emphasized that the EEO process is not to be used as a means to carry out a personal grudge. The Commission found the facts of this case similar to those in a prior decision where the Commission found abuse of process. Complainant refused to cooperate with Agency officials in correcting the false information he supplied on his job applications, and attempted to use the administrative process to strike back at the Agency. The Commission concluded that it would not permit Complainant to overburden the EEO system, and affirmed the dismissal of his complaint.

In Ebner-Cupples v. U.S. Postal Serv.,10 the Commission found that the AJ properly determined the Complainant engaged in abuse of process. The AJ provided a lengthy and detailed description of Complainant's litigation activity before the federal courts and in the EEO process, beginning after her resignation in 1996. None of Complainant's actions were successful, and the Commission had previously affirmed the Agency's finding that Complainant was not entitled to priority reinstatement. The U.S. District Court also issued a decision in the Agency's favor with regard to the denial of reinstatement. Nevertheless, Complainant filed "tens of thousands of papers" with the AJ and repeatedly requested discovery from the Agency that was irrelevant and information that was requested in previous complaints or already in her possession. She also made claims concerning matters that she was advised were not within the Commission's jurisdiction. The AJ characterized Complainant's complaints as "untimely, duplicative, and meritless," and concluded that her actions in the underlying case were indicative of an abuse of the EEO system. The Commission agreed with the AJ's finding of abuse of process, noting that Complainant had filed multiple complaints alleging that she was entitled to a hiring preference, notwithstanding the fact that she was not entitled to such a preference and the matter had previously been adjudicated. When considered with her actions before the AJ, Complainant's activity constituted an abuse of process. The Commission advised Complainant that further repetitive claims regarding entitlement to a hiring preference could be dismissed by the Agency without further processing.


Footnotes

1 See Buren v. U.S. Postal Serv., EEOC Request No. 05850299 (November 18, 1985) (finding that Complainant pursued a scheme involving misuse or misapplication of the administrative process which clearly amounted to an abuse of the administrative process).

2 See Fisher v. Dep't of Def., EEOC Appeal No. 01962325 (December 11, 1998).

3 29 C.F.R. § 1614.107(a)(9).

4 See Kessinger v. U.S. Postal Serv., EEOC Appeal No. 01976399 (June 8, 1999); Equal Employment Opportunity Commission, Management Directive 110 (MD-110), Ch. 5, § IV.A.4 (November 19, 1999).

5 Id.

6 See Goatcher v. U.S. Postal Serv., EEOC Request No. 05950557 (October 18, 1996).

7 See Abell v. Dep't of the Interior, EEOC Appeal No. 01A33023 (May 13, 2004) (finding abuse of process where complainant filed 25 complaints over non-selections for positions for which he was not eligible).

8 EEOC Appeal No 0120120302 (August 23, 2012), request for reconsideration denied, EEOC Request No. 0520130011 (February 28, 2013).

9 EEOC Appeal Nos. 0120113142, et al. (December 6, 2011); see also, Stoyanov v. Dep't of the Navy, EEOC Appeal Nos. 0120113142, et al. (December 6, 2011) (finding that the Agency properly dismissed complaints filed by Complainant for abuse of process).

10 EEOC Appeal No. 0120073731 (October 15, 2009).