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U.S. Equal Employment Opportunity Commission



 Digest Seal The DIGEST Of Equal Employment Opportunity Law


Fiscal Year 2016, Volume 1

Office of Federal Operations

December 2015


Inside

Selected EEOC Decisions on:

SELECTED NOTABLE EEOC DECISIONS FROM FY 2015


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

Carlton M. Hadden, Director, OFO
Jamie Price, Director, OFO's Special Services Staff
Digest Staff
Editor: Robyn Dupont
Writers:Lucy Allen, Diana Arrieta, Lauren Bridenbaugh, Nichole Davis, Robyn Dupont, Maria Kaplan, Eric Loose, Melissa Perry, Joseph Popiden, Navarro Pulley, Rae Raucci, Stephanie Ross, Aaron Rubin, Alisa Silverman

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

(Volume 1 of the Fiscal Year 2016 Digest contains a sampling of summaries of decisions of note from Fiscal Year 2015, some appearing in previous issues, selected by the staff of the Digest from among the volume of decisions the EEOC issued during that fiscal year. The summaries are neither intended to be exhaustive or definitive as to the selected subject matter, nor are they to be given the legal weight of case law in citations. For summaries of decisions involving claims of harassment, see by statute as well as under multiple bases. During Fiscal Year 2015, the Commission redacted Complainants' names when it published decisions. This change was made to address privacy concerns and to ensure consistency with the Commission's approach in the rest of its enforcement work and the investigations of complaints. - Ed.)

SELECTED EEOC DECISIONS

Agency Processing

Complaint Should Have Been Held in Abeyance While Complainant Deployed.  Complainant, a member of the National Guard, was deployed shortly before filing her formal complaint.  She notified the Agency of her deployment before it commenced an investigation and asked the Agency to hold the complaint in abeyance.  The Agency, however, issued a final decision finding no discrimination.  On appeal, the Commission found that the Agency should have held Complainant's case in abeyance while she was deployed, and Complainant must, at a minimum, be given the opportunity to participate in the investigation by providing an affidavit and responding to the affidavits of management officials.  Therefore, the matter was remanded to the Agency for processing.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0520150345 (September 4, 2015).

Agency Improperly Issued Second Final Decision Dismissing Complaint.  In a prior decision, the Commission reversed the Agency's dismissal of Complainant's complaint for untimely EEO Counselor contact and remanded the matter for processing.  The Agency did not seek reconsideration, but instead, issued a "Notice of Amended Dismissal" again dismissing the complaint for failure to timely contact an EEO Counselor.  In response to the instant appeal, the Commission found that the Agency erred when it dismissed the complaint after the Commission had already addressed the issue of Complainant's EEO Counselor contact.  The Commission noted that had the Agency requested reconsideration of the initial appellate decision, it could have presented its arguments as to when Complainant developed a reasonable suspicion of discrimination.  The initial appellate decision became final when the parties failed to file a timely request for reconsideration, and the regulations did not permit the Agency to unilaterally decide not to comply with the Commission's order to process the complaint.  Complainant v. Dep't of the Navy, EEOC Appeal No. 0120151663 (August 20, 2015); see also Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120123136 (July 10, 2015) (The Agency improperly dismissed the complaint as untimely when, in a prior decision, the Commission reversed the Agency's dismissal of the complaint on the same grounds and the Agency did not request reconsideration of that decision.  Applying the doctrine of "law of the case," the Commission stated that legal or factual determinations once rendered are generally binding on the parties in subsequent proceedings in the same case).

Agency Improperly Dismissed Class Complaint.  The Commission reversed the Agency's dismissal of a class agent complaint.  The Agency asserted that the Class Agent submitted the complaint prior to her telephone interview with the EEO Counselor and prior to receiving the Notice of Right to File, and failed to use the Agency's form.  The Commission stated that an employee or applicant may submit a class complaint at any point if the Class Agent believes a class complaint is warranted and no particular Agency form is required.  The Commission also noted that the Agency cannot dismiss a class complaint, but must refer it to an AJ for a determination. Complainant v. Dep't of the Army, EEOC Appeal No. 0120132116 (July 31, 2015).

Agency Improperly Denied Complainant EEO Counseling.  Complainant filed an appeal with the Commission after receiving a letter from the Agency refusing to process her request for EEO counseling.  The letter indicated that the Agency would not process Complainant's request for counseling because the claims were identical to claims raised earlier, and to those raised in a pending class action.  The Commission found that the Agency erred in refusing to provide counseling to Complainant, noting that its regulations do not provide for an Agency's refusal to process a complaint at the pre-complaint stage.  The Agency was ordered to process the request for counseling and any subsequent formal complaint filed in accordance with the Commission's regulations.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120152012 (June 19, 2015); see also Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120152011 (June 19, 2015).

Agency Failed to Investigate Claim of Sex Stereotyping.  Complainant filed a complaint alleging discrimination on multiple bases including sex stereotyping due to her sexual orientation when she was paid at a lower rate than most of her male colleagues and removed during her probationary period.  The Agency accepted the complaint but dismissed the basis of sexual orientation as beyond the jurisdiction of the EEO process.  Complainant later attempted to amend her complaint to include allegations that her supervisor disclosed her sexual orientation, and suggested she perform sexual favors for a male co-worker.  The Agency again rejected the basis of sex (sexual orientation).  On appeal, the Commission vacated the Agency's final decision, stating that Title VII prohibits sex discrimination including sex stereotyping discrimination and gender discrimination.  The Commission found Complainant's claim cognizable that management took action against her because she had a same sex partner, thus not conforming to her sex stereotype.  This claim, the Commission stated, covered all the claims raised in her complaint as amended.  Accordingly, the Commission declined to address the merits of Complainant's claims and remanded the matter for a supplemental investigation on her sex-stereotyping claims.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140202 (June 3, 2015).

Agency's Dismissal of Complaint on Grounds Complainant Was Not Employee is Barred by Doctrine of Res Judicata.  The Commission found that Complainant, whom the Agency alleged was a contract employee, was instead a joint employee by virtue of res judicata.  The Agency raised the issue before an Administrative Judge (AJ) as part of a determination on class certification.  While the AJ denied certification, the AJ found that the Agency was a joint employer.  The Agency fully implemented the AJ's decision and did not challenge the findings on appeal.  Complainant v. Dep't of the Navy, EEOC Appeal No. 0120132185 (May 29, 2015).

Agency Improperly Denied Complainant Access to EEO Process.  Complainant contacted the Agency's EEO Office and attempted to file a complaint.  An Agency EEO Specialist acknowledged receiving Complainant's pre-complaint paperwork.  The Assistant Director of EEO subsequently informed Complainant, however, that the Agency would not process his EEO claims because it did not appear that he was an employee of the Agency.  Although the Agency did not provide Complainant with appeal rights, he contacted the Commission with regard to the Agency's failure to process his claim.  The Commission stated that while the Agency determined that Complainant was not an employee or applicant for employment, it was improper for the Agency to deny Complainant EEO counseling and the opportunity to file a formal complaint.  Therefore, the Agency was ordered to process the matter pursuant to the EEOC's regulations.  Complainant v. Dep't of Justice, EEOC Appeal No. 0120150096 (February 12, 2015).

Agency Failed to Develop Adequate Record to Make Determination on Claim of Sex Discrimination Based on Gender Stereotype.  Complainant alleged that he was subjected to ongoing hostile work environment harassment when his co-workers and a supervisor made numerous negative comments and innuendoes regarding their perception that he was gay.  The Agency concluded that Complainant did not establish that he was subjected to harassment because he did not show that any of the comments were directed toward his status as a male, but appeared to be directed toward his sexual orientation which was not covered by the Commission's regulations.  The Commission initially found that the Agency failed to properly define Complainant's claim of sex discrimination.  The Commission has previously held that as long as allegations state a viable claim of sex discrimination, the fact that a complainant has characterized the basis of discrimination as sexual orientation does not defeat an otherwise valid sex discrimination claim.  Title VII's prohibition on sex discrimination includes discrimination on the basis of gender, and this includes discrimination because an individual fails to conform to gender-based expectations, stereotypical or otherwise.  Complainant alleged that his co-workers constantly made derogatory references to his sexual orientation, and used slurs that have been historically used as highly offensive, insulting and degrading sex-based epithets against gay men.  The Commission concluded that Complainant's claim of harassment based on his perceived sexual orientation was a claim of discrimination based on the perception that he did not conform to gender stereotypes of masculinity, and therefore stated a viable claim under Title VII's sex discrimination prohibition.  The Commission further found that the record in the case was insufficiently developed to determine if the Agency discriminated against Complainant based on sex.  Despite Complainant's identification of witnesses, the Agency did not make an adequate effort to determine whether those witnesses could corroborate his allegations, and the complaint needed to be adjudicated within the larger context of Complainant's claim of ongoing harassment spanning several years.  Complainant, aka Haywood C., v. U.S. Postal Serv., EEOC Appeal No. 0120132452 (November 18, 2014).

Doctrine of Laches Not Applicable Due to Agency's Failure to Process Complaint.  In 2004, an AJ denied Complainant's motion to amend a previously filed complaint, and ordered the Agency to process the matter as a new claim.  Complainant ultimately filed an appeal with the Commission in 2013, asserting that the Agency failed to process his claim, and the Commission noted that it was unclear from the record whether the Agency had in fact processed the claim as directed.  The Agency argued that the doctrine of laches should apply because the records relating to the claim had been destroyed pursuant to its record retention policy and it would be difficult to process the claim due to the passage of time.  The Commission, however, found that the doctrine of laches was not applicable because the Agency's culpability in not complying with the AJ's order outweighed any failure by Complainant to diligently pursue his claim.  The record contained no evidence that the Agency at any time complied with the AJ's order to process the claim as a separate EEO complaint.  Thus, the Agency was ordered to complete processing the claims referenced in the AJ's order if it had not done so, or send Complainant a copy of its final action and report of investigation.  Complainant v. Dep't of the Treasury, EEOC Request No. 0520140315 (October 9, 2014).

Attorney's Fees

AJ Properly Applied Laffey Matrix to Award of Attorney's Fees.  The AJ found that the Agency discriminated against Complainant and Complainant was therefore entitled to attorney's fees.  The Commission affirmed the AJ's use of the Laffey Matrix to determine the hourly rate to use in calculating a reasonable attorney's fee award.  Specifically, the Commission found that the AJ's use of the Laffey Matrix was appropriate given that Complainant's attorney entered into a fee agreement for a lower hourly rate because he knew Complainant would be financially burdened by the customary hourly rate.  Complainant v. Dep't of Transp., EEOC Appeal No. 0720140022 (September 16, 2015) (The decision's discussion of compensatory damages is referenced below-Ed.).

Attorneys' Fees Modified.  The Commission previously found that the Agency discriminated against Complainant on the basis of his race when it did not select him for a position, and subsequently denied the Agency's request for reconsideration.  In response to Complainant's appeal of the Agency's decision on attorneys' fees, the Commission acknowledged that the record contained a statement regarding the managing partner's education and experience, but no information regarding the other 16 attorneys who worked on the case.  Further, while the Commission disagreed with the Agency's assertion that the bulk of hours requested were unreasonable, the Commission did find some redundancy given the number of attorneys working on the complaint.  Therefore, the Commission concluded that a 25 percent across-the-board reduction of the entire amount requested was justified.  Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120133384 (September 15, 2015).

Complainant Entitled to Attorney's Fees Based on Rate Where She Was Working.  The Agency awarded attorney's fees based on the hourly rate of the city in which Complainant lived rather than the city in which Complainant's attorney practiced.  On appeal, the Commission agreed with Complainant that she was entitled to an award of attorney's fees based upon the reasonable hourly rate in Washington DC where her attorney practiced law.  Complainant stated that her Supervisor required her to work in the Washington DC area three days per week during the relevant period.  Therefore, even though Complainant requested that correspondence be sent to her permanent home address, the Commission found that it was reasonable for Complainant to retain counsel in the area she was living and working most weekdays when she was available to meet with counsel.  The Commission did reduce the claimed hours by 60 percent because Complainant did not prevail on her claim of harassment.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140049 (March 25, 2015); but see Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133350 (September 11, 2015) (the Agency produced sufficient evidence that attorneys practicing employment law were available in the area where Complainant lived and Complainant offered no evidence to show that these attorneys were not qualified to represent her in the matter).

No Reduction in Attorneys' Fees Warranted.  The Commission previously found that Complainant's Supervisor interfered with the EEO process and retaliated against Complainant.  The Agency reduced the attorney's fees sought by approximately half on the theory that Complainant was not successful on his claims of discriminatory non-selection and performance evaluation.  While the Agency correctly noted that attorneys' fees may not be recovered for work on unsuccessful claims, the Commission stated that where a claim for relief involves a common core of facts or related legal theories, a fee award should not be reduced simply because the complainant failed to prevail on every contention raised.  In this case, the Commission found that Complainant's unsuccessful non-selection and performance evaluation claims were not fractionable from his retaliatory interference claim because it could not be said that the unsuccessful claims were "distinct in all respects" from the retaliation claim on which he was successful.  All of the claims had common underlying facts and the development of each claim was intertwined with the others.  Therefore, no reduction in fees was warranted, and Complainant was entitled to payment of the full amount claimed.  Complainant v. Dep't of the Army, EEOC Appeal No. 0120120446 (November 14, 2014) (The Commission also addressed the issue of compensatory damages, as noted below- Ed.).

Class Complaints

Commission Affirmed AJ's Decision to Certify Class.  An AJ certified a class action claim defined as Agency employees who were denied promotions since 1994 based upon the Agency's policy or pattern and practice of retaliating against employees because they engaged in protected EEO activity.  The Commission affirmed the AJ's findings on appeal.  Complainant identified a class of approximately 3,000, and the AJ found evidence that established common questions of fact and law between Complainant and the proposed class members, namely an Executive Committee who made decisions regarding all GS-14 promotions and leadership positions.  The Committee members had knowledge of the prior EEO activity of the candidates, and there was statistical evidence to support the claim of retaliation.  Therefore, the Commission found no reversible error in the AJ's findings that the putative class met the elements of commonality and typicality.  Further, it was clear that the number of purported class members satisfied the requirement of numerosity, and Complainant's two attorneys possessed the necessary experience to adequately represent the class.  Complainant v. Dep't of Justice, EEOC Appeal No. 0720110008 (September 15, 2015).

Commission Certified Class Complaint.  While before an AJ, Complainant sought to convert her individual complaint into a class action, and sought certification of the class of all Agency employees who had been potentially impacted by the Agency's use of a Request for Reasonable Accommodation Form since 2002.  The AJ denied pre-certification discovery and class certification on the class criteria of commonality and typicality.  On appeal, the Commission determined that the AJ's decision to deny certification without offering Complainant, as putative Class Agent, an opportunity to conduct any discovery to address certification requirements constituted an abuse of discretion.  In addition, the Commission determined that commonality and typicality were established.  Complainant identified a policy or practice of the Agency which affected all employees seeking a reasonable accommodation. Complainant claimed that she was subjected to discrimination by having to provide overly broad medical information on the form when requesting an accommodation or not be accommodated. All employees seeking an accommodation were required to complete the form when requesting an accommodation.  Further, the Commission stated that based on the evidence, the numerosity criterion had been preliminarily satisfied, making joinder of the complaint impractical.  The proposed class members would consist of all employees who had to complete or completed the form when requesting an accommodation.  In addition, the Agency used the form for several years, at least since 2002.  Also, the Agency component against which the complaint was lodged was geographically diverse with overseas facilities and encompasses several states.  The Commission concluded that the Class Agent conditionally met the criteria for class certification.  Complainant v Department of Def., EEOC Appeal No. 0120103592 (September 9, 2015).

Commission Affirmed AJ's Decision to Certify Class Complaint.  The Commission affirmed the AJ's decision to certify a class of female employees at a specific Agency facility who were allegedly denied "use of force" training and subjected to sexual harassment.  The Commission found that Complainant alleged a sufficiently tailored class comprised of current and former female employees at the facility working in potentially thirteen job classifications and comprising at least 87 class members.  The class representative was also found to have the requisite skills and experience necessary to prosecute a class action.  Complainant, et al. v. Dep't of Justice, EEOC Appeal No. 0720140032 (May 29, 2015).

Class Certification Denied.  An AJ denied class certification, finding that the purported class did not meet the requirements of numerosity or commonality, and the Commission affirmed the AJ's decision on appeal.  The Commission noted that Complainant failed to identify a specific policy or practice of retaliation which the Agency applied to the class as a whole, and the proposed class lacked uniformity in terms of its membership and claims.  The proposed class members were in various locations around the globe, in various positions, had different supervisors, and alleged a variety of claims and bases.  The Agency was ordered to notify each of the Complainants that it would resume processing the individual complaints.  Complainants v. Dep't of Def., EEOC Appeal Nos. 0120141231, et al. (March 30, 2015).

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.)

Commission Increased Agency's Award of Damages to $150,000.  In a previous decision, the Commission found that the Agency subjected Complainant to a discriminatory hostile work environment and denied him reasonable accommodation.  Following a supplemental investigation, the Agency awarded Complainant $13,000 in non-pecuniary compensatory damages.  On appeal, the Commission increased the award to $150,000.  Complainant stated that the Agency's discriminatory actions led him to skip family dinners, become less communicative, have difficulty sleeping, and become isolated at work and home.  He had panic attacks which created problems with his blood pressure.  The Commission determined that Complainant experienced embarrassment, humiliation, panic attacks, anxiety, and sleeping problems, and withdrew from his family and co-workers.  The Commission previously found that Complainant was subjected to harassment nearly every day for almost two and one-half years, and the harassment was perpetrated not only by co-workers but also by management officials.  Complainant's wife provided an affidavit supporting his claim, stating that Complainant described the situation as "torture."  The Commission found that Complainant failed to support his assertion that he would not have undergone cochlear implant but for the harassment, and, therefore, Complainant was not entitled to pecuniary losses.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141161 (February 3, 2015).

Commission Affirmed AJ's Award of $120,000 in Damages.  The Commission affirmed the AJ's award of $120,000 in non-pecuniary damages for sexual harassment based on Complainant's credible testimony that over a three year period her previously alleviated depression returned, and she suffered from paranoia, anxiety, and insomnia.  Complainant also had difficulty with marital relations, and sought medical help and counseling from the Agency's Employee Assistance Program.  The Commission also affirmed the AJ's award of pecuniary damages.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720130028 (June 10, 2015).

Commission Increased Agency's Award of Damages to $100,000.  The Commission previously found that the Agency discriminated against Complainant when it failed to reasonably accommodate his disability.  In the underlying decision, the Commission increased the Agency's award of non-pecuniary damages from $30,000 to $100,000.  Complainant stated that the failure to accommodate aggravated her asthma and depression.  The Agency failed to search for a suitable reassignment for Complainant and kept him working for five months in a position that exposed him to toxic irritants resulting in both physical and psychological harm. Complainant felt humiliated, depressed, and anxious, and experienced sleep disturbances and severe mood changes.  His wife corroborated these symptoms.  The Commission agreed with the Agency that Complainant did not establish entitlement to pecuniary damages for medical expenses since the documentation presented did not establish a sufficient link between the services and the discrimination.  Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140216 (February 25, 2015).

Commission Increased Agency's Award of Damages to $75,000.  The Commission previously found that the Agency subjected Complainant to racial harassment.  The Commission increased the Agency's award of $25,000 in non-pecuniary damages to $75,000 based upon statements from individuals who knew Complainant supporting her claim that she suffered depression, anxiety, sleep issues and pain as a result of the harassment.  In addition, Complainant was treated by a psychologist and psychiatrist for depression and anxiety due to workplace harassment for a period of five years.  The Commission affirmed the Agency's award of pecuniary damages.  Complainant v. Dep't of the Interior, EEOC Appeal No. 0120131110 (September 18, 2015).

Commission Affirmed AJ's Award of $75,000 in Damages.  After finding that the Agency subjected Complainant to a hostile work environment on the basis of sex, the AJ awarded Complainant $75,000 in non-pecuniary compensatory damages.  The Commission affirmed the award on appeal.  Complainant presented evidence that she had panic attacks, anxiety, and difficulty sleeping, and immediately sought medical help after incidents with her supervisor.  She was treated for anxiety, depression and periods of disassociation.  Complainant's doctor indicated that her symptoms were similar to post-traumatic stress syndrome, and treated her with psychotherapy and medication.  The Commission noted that while Complainant's treating physician opined that the sexual harassment was the primary factor for Complainant's medical condition, the record showed that other events also caused the harm she experienced.  Therefore, the amount awarded by the AJ was found to be reasonable.  Complainant v. Dep't of Justice, EEOC Appeal No. 0120120012 (July 15, 2015).

Commission Affirmed AJ's Award of $60,000 in Damages.  The AJ found that the Agency discriminated against Complainant on the bases of race, age and reprisal and awarded her $60,000 in non-pecuniary compensatory damages.  The Commission affirmed the award on appeal, noting that Complainant's testimony as well as that of her physician showed that the discrimination resulted in an exacerbation of Complainant's medical conditions including sleeplessness, anxiety, stress, and depression.  Complainant v. Dep't of Transp., EEOC Appeal No. 0720140022 (September 16, 2015) (The decision's discussion of attorney's fees is referenced above-Ed.).

Commission Increased AJ's Award of Damages to $60,000.  After finding that the Agency failed to reasonably accommodate Complainant's disability, the AJ awarded Complainant $45,000 in non-pecuniary damages.  The Commission increased the award to $60,000 based on objective evidence which established that the discrimination caused Complainant emotional distress for an extended period of time. Complainant stated that she suffered acute exacerbation of severe anxiety and depression, hair loss, weight gain, sleeplessness and migraines.  Complainant's medical records confirmed her assertions.  Complainant v. Dep't of Transp., EEOC Appeal No. 0120120933 (February 20, 2015).

Commission Affirmed AJ's Award of $50,000 in Non-pecuniary Damages.  The Agency stipulated that Complainant established a claim of discriminatory sexual harassment, and, following a hearing, the AJ awarded Complainant $50,000 in non-pecuniary compensatory damages.  The Commission affirmed the AJ's award on appeal, noting that Complainant had a history of depressive disorder, and experienced other stressors in her life which also caused Complainant's emotional distress.  The award was in line with other cases in which the complainant experienced depression, suicidal ideations, anxiety, difficulty concentrating, insomnia, and stomach problems.  The Commission also found that the AJ properly reduced Complainant's claimed pecuniary damages given that not all of the stressors were caused by the sexual harassment.  Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130353 (September 9, 2015).

Commission Affirmed AJ's Award of $50,000 in Non-pecuniary Damages.  The Commission affirmed the AJ's award of $50,000 in non-pecuniary compensatory damages after finding that Complainant was discriminated against on the basis of disability and retaliation when it failed to accommodate her, disclosed confidential medical information, and denied her a within grade increase.  Complainant testified that she suffered extreme stress, shock and humiliation, much of which she attributed to the co-worker's behavior, and the stress manifested itself in frequent absences from work, headaches, rashes, weight fluctuations, depression, anxiety, insomnia, nightmares, and suicidal ideations.  The AJ determined that although Complainant clearly suffered severe and numerous mental and physical effects during the relevant time period, as corroborated by extensive medical and counseling records, she did not prove that all of these effects were attributable to the discrimination and reprisal.  The Commission also found that Complainant should be awarded 50 percent of the claimed past, pecuniary damages because only half of the claimed damages were attributable to the findings of discrimination. The Commission agreed with the AJ that Complainant failed to show a nexus between her request for future pecuniary damages for treatment and the discrimination.  Complainant  v. Dep't of Justice, EEOC Appeal No. 0120123467 (April 3, 2015).

AJ's Award of $50,000 in Non-pecuniary Damages Affirmed.  An AJ found that the Agency discriminated against Complainant with regard to his performance appraisal, a transfer, and two nonselections.  The Commission found substantial evidence in the record to support the AJ's award of $50,000.  In a detailed analysis, the AJ considered Complainant's wife's credible testimony regarding his mood and temper, as well as their ensuing divorce.  Complainant's wife noted that the family learned to "walk on eggshells," and would stay away from Complainant after the work week.  Additionally, Complainant testified to feeling hopeless and "held hostage" by the repeated denial of transfers.  Complainant v. Dep't of Justice, EEOC Appeal No. 0720140012 (January 22, 2015).

Commission Increased Damages to $40,000 for Finding of Discriminatory Interference with EEO Process.  The Commission previously found that Complainant's Supervisor unlawfully retaliated against Complainant and interfered with the EEO process when he threatened Complainant that filing a complaint "would not be in [his] best interest."  The Agency awarded Complainant $6,000 in damages, and the Commission increased the award to $40,000.  Complainant testified that the effects from the Supervisor's retaliatory behavior extended over a period of approximately three years, and he experienced embarrassment, humiliation, anguish, and the deterioration of his relationship with his co-workers.  He also experienced physical symptoms including weight gain, exacerbation of previous hypertension, insomnia, loss of libido, and damage to his relationship with his wife and children.  The Commission concluded that an award of $40,000 was appropriate given the nature and duration of the harm.  Complainant v. Dep't of the Army, EEOC Appeal No. 0120120446 (November 14, 2014) (The Commission also addressed the issue of attorneys' fees as referenced above-Ed.).

Commission Increased Agency's Award of Damages to $35,000.  The Commission previously found that the Agency discriminated against Complainant on the basis of his race when it did not select him for a position.  The Commission subsequently increased the Agency's award of $1,000 in damages to $35,000 based upon evidence that Complainant experienced anxiety, depression, mental anguish, and chronic sleeplessness as a result of the discrimination which affected his marriage and relationship with his family and friends.  Complainant provided letters from his pastor and a friend attesting to his claim of emotional harm.  Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120133385 (September 15, 2015).

Commission Affirmed AJ's Award of $35,000 in Damages.  After finding that the Agency discriminated against Complainant when it gave her an unacceptable performance rating, the AJ ordered the Agency to pay Complainant $35,000 in compensatory damages, and the Commission affirmed the award on appeal.  Complainant and her spouse testified that she suffered sleeplessness, anxiety and an increase in migraine headaches, as well as a loss of enjoyment of life.  Complainant sought help from the Agency's Employee Assistance Program, a therapist and a psychiatrist, and the AJ considered that Complainant and her husband requested transfers to a different location in order to remove themselves from the facility where the discrimination occurred.  The Commission noted that while a portion of Complainant's suffering was attributable to incidents of harassment for which no discrimination was found a portion also resulted from Complainant's receipt of the unacceptable rating.  Complainant v. Dep't of Justice, EEOC Appeal No. 0720150006 (June 15, 2015).

Commission Affirmed Agency's Award of $10,000 in Damages.  The Commission previously found that the Agency failed to select Complainant because of his responses to an impermissible medical inquiry.  The Agency conducted a supplemental investigation and awarded Complainant $10,000 in non-pecuniary compensatory damages, and the Commission affirmed the award on appeal.  The Agency provided a detailed analysis of the record which included an affidavit in which Complainant denied having any medical or psychological problems as a result of the non-selection.  Further, Complainant's sick leave record did not suggest any adverse health effects associated with the action.  Complainant's extended absence 18 months later was not due to the denial of a promotion but was related to a change in Complainant's work assignment.  The Commission agreed with the Agency that more weight should be given to a psychiatrist's contemporaneous submission than to that of a social worker four years after the incident.  Therefore, the Commission concluded that the award of $10,000 was sufficient to compensate Complainant for his feelings of depression, anger, sorrow and loss of self esteem.  The Commission also affirmed the Agency's denial of Complainant's claim for pecuniary damages.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140548 (March 20, 2015).

Commission Increased Award of Compensatory Damages to $10,000. In a previous decision, the Commission found that the Agency failed to provide Complainant with reasonable accommodation and discriminated against her on the basis of disability when it threatened her with discipline.  The Agency subsequently awarded Complainant $7,000 in non-pecuniary damages, and the Commission increased the award to $10,000 on appeal.  The Commission found that Complainant properly submitted evidence in the form of her statement as well as statements from a co-worker and two relatives showing that the Agency's denial of reasonable accommodation exacerbated her multiple sclerosis, which caused Complainant to experience pain, sleeplessness, crying spells, and muscle spasms.  Complainant also experienced desperation, humiliation, depression, anguish, anxiety, and despair. The Commission denied Complainant's request for pecuniary damages because she was unable to submit evidence of actual loss or expense. Complainant offered bills for physical therapy, but was unable to connect the treatment to the Agency's failure to accommodate. Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120133266 (February 11, 2015); request for reconsideration denied, EEOC Request No. 0520150280 (July 30, 2015).

Commission Increased Damages in Claim of Discriminatory Non-Selection to $10,000.  The Agency found that Complainant was discriminated against based on her sex when she was not selected for a position, and awarded her $3,000 in non-pecuniary compensatory damages.  On appeal, the Commission increased the award to $10,000.  Complainant noted that she suffered embarrassment, humiliation, and damage to her professional reputation, as well as a loss of self-esteem.  Complainant's husband confirmed the impact the discrimination had on Complainant's daily life, the strain on her marriage, and diminished happiness from regular home and family activities.  Complainant adequately described the adverse impact caused by having fewer hours each week to spend with her family and on personal activities.  Complainant v. Dep't of Agric., EEOC Appeal No. 0120130765 (October 24, 2014).

Commission Increased Damages to $5,000.  After finding in a prior decision that the Agency retaliated against Complainant when it issued him a letter of warning, the Commission increased the Agency's award of compensatory damages from $1,000 to $5,000 based on Complainant's statement that he suffered from insomnia, headaches, mood swings and marital problems.  Complainant's statement was corroborated by his wife, but his medical evidence did not prove exacerbation of his condition due to the discrimination. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132114 (May 29, 2015).

Commission Awarded $2,000 in Damages.  The Commission reversed the Agency's finding that Complainant was not entitled to compensatory damages and awarded Complainant $2,000 based on the minimal evidence of Complainant's own statements that he was unhappy with the Agency's treatment of him and that it affected his health and welfare.  Complainant failed to provide any supporting statements from family members, physicians or clergy to support his claim. Complainant v. Dep't of Agric., EEOC Appeal No. 0120131546 (June 10, 2015).

Commission Affirms Agency's Award of $500 in Damages.  The Commission previously ordered the Agency to investigate Complainant's claim for damages after finding that it discriminated against him when it did not permit him to wear a jacket on two occasions.  The Agency ultimately awarded Complainant $500 in non-pecuniary damages, and the Commission affirmed the award on appeal.  While Complainant requested compensation for emotional harm for discrimination that had been ongoing since 2001, the Commission found discrimination only with regard to two incidents that occurred in 2010.  The Agency's award took into account the severity and duration of the harm, and was consistent with Commission precedent.  The Commission further found that Complainant did not establish entitlement to any past or future pecuniary losses.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123142 (March 20, 2015).

Dismissals

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

Complaint Improperly Dismissed for Failure to State a Claim and Mootness.  Complainant filed a complaint alleging discrimination when he was instructed to pull down 70 letters a minute, and issued a 7-day suspension and a 14-day suspension.  The Agency dismissed the first claim for failure to state a claim, asserting that Complainant had not shown harm with respect to a term, condition, or privilege of employment, and the remaining two claims on the grounds that the discipline was expunged in the grievance process.  On appeal, the Commission found, with regard to the first claim that Complainant was alleging that he was forced to work beyond his medical limitations which set forth an actionable denial of accommodation claim.  As to the remaining claims, the Commission noted that the matters were more properly analyzed on the basis of mootness, and found the claims were not moot because the Agency failed to submit evidence that the discipline had actually been expunged.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120151514 (August 11, 2015).

Complaint Improperly Dismissed for Alleging Proposed Action and Failure to State a Claim.  The Commission found that the Agency improperly dismissed Complainant's complaint that she was subjected to unlawful retaliation when her manager issued her a Personal Improvement Plan (PIP), and on the same day, started the process to issue her disciplinary action for her failure to attend an office event.   In reversing the Agency's decision, the Commission noted that while the Agency argued in part that the claims should be dismissed because they concerned proposed, rather than effectuated actions the Commission's regulations specifically exclude retaliation claims from its direction to dismiss claims that allege a proposed personnel action or other preliminary step to taking a personnel action.  Further, Complainant asserted that her supervisor was motivated by retaliatory animus because he was forced to promote her as a result of a prior EEO settlement.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120151534 (August 5, 2015).

Improper Fragmentation of Complaint Found.  Complainant alleged harassment arising from ten different issues over more than seven years.  On appeal, the Commission reversed the Agency's final decision dismissing the complaint in its entirety, finding that the Agency improperly fragmented Complainant's claim.  The Commission rejected the Agency's dismissal of certain issues as untimely, stating that the issues were raised by Complainant collectively as part of a larger hostile work environment claim, and at least one incident occurred within forty-five days of the initial EEO counselor contact.  The Commission further rejected the Agency's dismissal of one issue for failure to state a claim, again noting that it was properly viewed in the context of Complainant's broader assertion of harassment.  Finally, the Commission addressed the Agency's dismissal of three issues in which Complainant contended that she had been charged annual leave and AWOL instead of leave under the Family Medical Leave Act (FMLA).  The Commission noted that to the extent Complainant alleged improper compliance with FMLA, the allegations would fall outside the Commission's regulations, but to the extent Complainant had alleged that she was not properly paid for leave, she stated a claim whether such leave came under FMLA or not.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120151261 (July 23, 2015); see also Complainant v. Dep't of the Navy, EEOC Appeal No. 0120151407 (July 30, 2015) (the Agency erroneously fragmented the individual incidents into separate claims when they together constituted a claim of harassment/hostile work environment which stated a claim, and the last alleged incident was within the 45-day time limit); Complainant v. Dep't of Def., EEOC Appeal No. 0120122957 (July 15, 2015) (the Agency improperly fragmented Complainant's claim of harassment and dismissed the matter for failure to state a claim and untimely EEO Counselor contact.  Complainant alleged a series of events, including tangible and intangible employment actions, which stated a single claim of harassment.  Further, two of the alleged incidents occurred within 45 days of Complainant's contact with the EEO Counselor).

Proposed Action that Is Part of Harassment Complaint States a Claim. Complainant alleged discrimination when he was issued a proposal to terminate letter and he was asked to provide additional documentation in support of a request for reasonable accommodation.  The Agency dismissed the first issue as a proposed action and the second issue for failure to state a claim.  On appeal, the Commission noted that the EEO Counselor's report reflected a series of alleged incidents that were part of a claim of ongoing harassment.  With regard to the first issue in particular, the Commission held that when a proposed action is purportedly combined with other acts of harassment to form a pattern of alleged harassment, the Agency may not properly dismiss it on grounds that it alleges a proposal to take action.  Complainant v. Dep't of Transp., EEOC Appeal No. 0120151386 (July 21, 2015).

Dismissal of Complaint for Failure to Cooperate Improper.  While the Agency dismissed Complainant's complaint for failure to state a claim stating that Complainant failed to sufficiently respond to its requests to clarify his allegations, the Commission found that the dismissal was more properly analyzed for failure to cooperate.  In this regard, the Commission found no evidence that Complainant engaged in delay or contumacious conduct.  Further, the record reflected specific reasons Complainant felt that he was discriminated against and the names of the alleged discriminatory officials and corrective action sought. The Commission directed the Agency to continue processing the complaint and advised Complainant to cooperate in the further processing of his claims or face possible dismissal for failing to cooperate if he did not do so.  Complainant v. Gen. Serv. Admin., EEOC Appeal No. 0120151346 (July 9, 2015).

Dismissal of Complaint as Untimely and for Failure to State a Claim Improper.    The Commission reversed the Agency's dismissal of Complainant's complaints alleging that he was retaliated against when he was issued a Notice of Termination of Term Appointment, and an unfavorable midterm evaluation.  While the Agency asserted that Complainant received notice of his right to file a formal complaint via email, Complainant stated that he was unable to open the email and the record did not clearly establish that Complainant was able to access the Notice at the time the email was sent.  Further, the Commission's regulations make it clear that a claim that a preliminary step or proposed action is retaliatory is actionable.  Complainant v. Dep't of the Army, EEOC Appeal No. 0120142862 (May 29, 2015).

Complaint Properly Dismissed for Stating the Same Claim Previously Raised.  The Agency properly dismissed Complainant's complaint on the grounds that she previously sought EEO Counseling on the same matter.  According to the record, Complainant withdrew that informal complaint, and the Commission noted that once Complainant has withdrawn an informal complaint, absent a showing of coercion, Complainant cannot reactivate the EEO process by filing a formal complaint on the same issue.  Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120150636 (May 7, 2015).

Complaint Improperly Dismissed for Misuse of EEO Process.  Complainant was one of 53 employees from a specific Agency facility who filed formal EEO complaints alleging discrimination when he did not receive an eight-hour time off award during fiscal year 2013.  The Agency dismissed all of the complaints for misuse of the EEO process, asserting that the complaints were a collective effort to overwhelm the EEO complaint processing system since there was no evidence of disparate treatment or reprisal.  The Commission concluded that the dismissal was improper, finding nothing in the record to show that the complaints were motivated by anything more than a desire to prevent disparate treatment with regard to the awards.  There was no evidence of a collective effort by the Complainants to overwhelm the EEO system, and each Complainant appeared to have filed only one complaint.  The fact that all of the Complainants were represented by the same union official was not sufficient to establish misuse of the process.  The Commission also found no credible argument that the 53 complaints could actually overwhelm the system given that the matters could be consolidated for joint processing.  The Agency's assertions that the Complainants did not offer evidence of disparate treatment or reprisal addressed the merits of the claims without a proper investigation as required by the Commission's regulations.  Complainant v. Dep't of the Navy, EEOC Appeal No. 0120150514 (December 30, 2014).  (The Commission issued a separate decision in each of the 53 appeals and in each case found no misuse of the EEO process).

Complaint Improperly Dismissed for Filing a Grievance.  The Commission found that the Agency failed to substantiate its dismissal of Complainant's complaint on the grounds that she filed a grievance on the same matter.  Complainant acknowledged that she sought assistance from her union representative, but stated that the representative did not plan to file a formal grievance.  Complainant clearly stated that she sought review of her performance appraisal under a specific section of the Agency's Handbook which the record showed was only available to employees who were not covered by the Negotiated Procedure.  While a Union Official indicated that Complainant was a bargaining unit employee, there was no evidence in the record showing that Complainant filed a grievance or that one was filed on her behalf, and the Agency failed to provide any copy of a grievance.  Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142429 (October 21, 2014).

Agency Failed to Properly Identify Claim of Harassment.  Complainant alleged that the Agency subjected her to discriminatory and retaliatory harassment, and cited six incidents in support of her claim.  The Commission found that the Agency erred when it failed to identify the claim of harassment, and dismissed two incidents, one for untimely EEO Counselor contact and one for failure to state a claim.  Complainant alleged a series of events that occurred over a two-year period and created a hostile work environment.  Instead of treating these events as a claim of harassment, the Agency acted improperly by considering the matters in a piecemeal manner.  Further, the EEO Counselor's report showed that Complainant raised several other events and Complainant contacted the EEO Counselor within 45 days of the most recent alleged event.  Complainant v. Dep't of Justice, EEOC Appeal No. 0120112862 (October 21, 2014).

Findings on the Merits and Related Decisions

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

Under the Pregnancy Discrimination Act

Commission Found Discrimination Based on Pregnancy and Sex.  Complainant alleged that her Supervisor subjected her to discrimination and harassment based on her sex and pregnancy, including threatening her with termination, denying her leave for pre-natal care, disabling her government e-mail account, and ultimately terminating her.  Complainant indicated that while the Agency subsequently rescinded her termination months later, it did not assign her to a different supervisor. Complainant stated that because the Agency refused to grant her request to be assigned to a different supervisor, she was had no choice but to resign, resulting in a constructive discharge.  The Commission found that the Supervisor's reasons for Complainant's termination were unworthy of belief and pretext for discrimination based on Complainant's sex and pregnancy. The Supervisor denied Complainant leave for pre-natal appointments and sickness, and several employees indicated that the Supervisor did not treat women as well as men.  Complainant was threatened with termination on her first day, and a co-worker was coerced into accusing Complainant of wrongdoing.  The Commission also found that Complainant was subjected to a hostile work environment and subsequently constructively discharged when the Agency canceled her termination, but failed to assign her to a different supervisor.  The Supervisor, by his actions, clearly expressed hostility toward Complainant due to her sex and pregnancy, and the Agency knowingly placed her back into a hostile work environment.  The Commission concluded that a reasonable person in Complainant's position would have found the working conditions intolerable.  The Agency was ordered, among other things, to offer Complainant retroactive reinstatement away from the Supervisor, with appropriate back pay and benefits, and investigate her claim for damages.  Complainant v. Dep't of the Air Force, EEOC Request No. 0520140092 (February 12, 2015).

Under the Rehabilitation Act

Disability Discrimination Found.  In 2010, Complainant admitted to the Agency that she altered her pay stub so that she could receive additional state benefits.  Complainant was later terminated for "Improper Conduct" resulting from her actions.  Complainant filed an EEO complaint alleging that the Agency subjected her to disability-based discrimination when she was issued the termination.  Following a hearing, the AJ issued a final decision finding discrimination, and the Commission affirmed the decision on appeal.  The Agency did not contest the AJ's finding that Complainant was a qualified individual with a disability.  Further, the AJ found Complainant to be credible and management was aware of her disability.  The record showed that two co-workers also engaged in financial fraud and were not removed from the Agency, and the Plant Manager testified that he intended to reduce the co-workers' proposed removals to 14 day suspensions.  The Plant Manager was inconsistent in his reasons for issuing the Notice of Removal to Complainant as compared to the co-workers, and the evidence simply did not support some of his stated reasons.  The Agency was ordered, among other things, to reinstate Complainant, with appropriate back pay, and delete all references to the removal action from her personnel records.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720140025 (September 28, 2015).

Denial of Reasonable Accommodation Found.  Complainant was off work following a work-related injury, and returned with a five-pound lifting restriction, and well as other limitations.  Approximately four months later, Complainant was told to go home because her limitations prevented her from performing her mail processing duties, namely lifting 10-pound trays, and the Plant Manager was concerned she would reinjure herself.  Complainant stated that she was able to perform her duties and nothing in the record disputed this assertion.  On appeal, the Commission found that Complainant was substantially limited in the major life activity of lifting because she was unable to lift more than five pounds for a period of six months or more. The Commission further found that Complainant was able to perform her mail processing duties by splitting her trays of mail.  Moreover, the Commission found that the Agency failed to establish a direct threat defense because the Plant Manager's concern was based on his subjective interpretation without the benefit of an individualized assessment.  Therefore, the Commission concluded that the Agency discriminated against Complainant on the basis of disability by failing to reasonably accommodate her.  The Agency was ordered, among other things, to return Complainant to her Mail Processing position and pay her appropriate back pay and attorney's fees.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120113802 (September 18, 2015).

Denial of Reasonable Accommodation Found.  Complainant filed a complaint alleging disability discrimination when she was not provided with an ergonomic chair, and when her manager issued her a leave counseling memorandum.  On appeal, the Commission initially found that Complainant was alleging a single claim of denial of reasonable accommodation.  The Commission also found, as to the merits of the complaint, that the record did not support the Agency's assertion that the delay in providing the chair was caused by the vendor or that the Agency had offered Complainant a loaner chair, which she declined.  The Agency did not order the replacement chair in a timely manner and Complainant told the Agency early on that the interim chair was not effective.  The Commission also found that the leave memorandum was a direct result of the delay in providing Complainant with the ergonomic chair.  Accordingly, the Commission found that the Agency violated the Rehabilitation Act.  As part of the relief ordered, the Commission directed the Agency to expunge the leave counseling memorandum, restore the appropriate leave, provide back pay for any leave without pay taken as a result of the delay in obtaining the ergonomic chair, and investigate Complainant's claim for compensatory damages.  Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120132563 (August 11, 2015).

Denial of Reasonable Accommodation Found.  Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of his disability when it denied him reasonable accommodation in the form of full-time work with daytime hours.  On appeal, the Commission rejected the Agency's position that Complainant had not made a reasonable accommodation request.  It was undisputed that Complainant could otherwise perform the duties of his clerk position, and the only medical limitation was the hours he could work.  Complainant provided a 12 and one-half hour window during which he could work eight hours, and gave the Agency a variety of positions he could perform and a variety of locales.  However, the Agency merely administratively closed his request.  The Commission found no evidence that the Agency considered the merits of the accommodation request or offered alternatives. Instead, the Agency provided Complainant with four hours of work each shift and little evidence about the position or why it was limited to four hours.  The Agency failed to show that accommodating Complainant would have resulted in an undue hardship.  As part of the relief awarded, the Commission ordered the Agency to provide Complainant with a full-time position to which he could be reassigned with hours during the daytime and with appropriate benefits including back pay and interest.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132617 (August 11, 2015).

Denial of Reasonable Accommodation Found.  The Commission found that the Agency failed to reasonably accommodate Complainant's disability.  The Agency did not dispute that Complainant was a qualified individual with a disability, and relied upon a determination by the Office of Workers' Compensation Programs (OWCP) that the two job offers it made to Complainant were suitable.  The Commission noted, however, that while the modified assignments addressed Complainant's lifting restrictions, they did not account for Complainant's need for breaks in activity.  The Commission stated that a decision by OWCP does not relieve the Agency of its duty to provide reasonable accommodation.  The Agency was ordered, among other things, to conduct a supplemental investigation to determine what reasonable accommodation Complainant required, and restore any leave used by Complainant due to the Agency's failure to accommodate her.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122166 (July 30, 2015).

Denial of Reasonable Accommodation Found.  The Agency provided accommodations to Complainant from 2000 until 2011, at which time Complainant filed an EEO complaint alleging, in relevant part, discrimination based on disability when his Supervisor (S1) gave him an assignment that was beyond his skills and experience, and did not respond to his e-mail requesting an explanation for reassignment of his duties.  On appeal, the Commission found that the Agency unlawfully denied Complainant's request for accommodation.  The Commission noted that, when requesting reasonable accommodation, an employee is not required to use the words "reasonable accommodation."   It undisputed that the Agency was aware of Complainant's disability and ongoing need for accommodation dating back to 2000, and the Agency's duty to provide reasonable accommodation was ongoing.  Even assuming that S1 was not aware of Complainant's disability, Agency management should have notified S1 of Complainant's need for reasonable accommodation when S1 became Complainant's permanent supervisor in.  The Commission found that neither S1 nor any other Agency official provided Complainant with accommodation regarding the assignment, and S1 neither engaged in the interactive process with Complainant nor gave him feedback.  The Commission found that the Agency failed to act in good faith and was therefore liable for compensatory damages.  The Commission noted that, after receiving a request for reasonable accommodation, the Agency and the employee should engage in an informal, interactive process to clarify what the employee needs and identify the appropriate accommodation.  As part of the relief awarded to Complainant, the Commission ordered the Agency to immediately recommence providing Complainant with reasonable accommodation, engaging in the interactive process as might be necessary to establish the necessary accommodation, and investigate Complainant's claim for damages.  Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120132360 (July 9, 2015).

Denial of Reasonable Accommodation Found.  The Agency found that Complainant was denied reasonable accommodation from May 7, 2008 to March 2, 2010, and the Commission modified the decision, stating that the period of denial of accommodation extended to August 10, 2011.  Complainant used a space heater as an accommodation from 2001 until May 2008, at which time there were numerous discussions with management officials regarding Complainant's requests for accommodation.  The Commission determined that the Agency failed to have a reasonable accommodation policy in place which would have designated where requests and documentation should go.  In addition, the Agency was unable to locate Complainant's prior medical documentation which was misplaced in a wrong file and delayed years in searching for it.  The Agency should have been aware of Complainant's most recent documentation when it was supplied to the Office of Resolution Management.  The Commission affirmed the Agency's finding of no discrimination with regard to several other matters.  The Agency was ordered, among other things, to investigate Complainant's claim for compensatory damages.  Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120123071 (May 28, 2015).

Disability Discrimination Found.  Complainant, a Security Specialist, had been diagnosed with Cerebral Palsy and, as a result, walked using crutches with forearm braces and had trouble with fine motor skills. Complainant was issued an unacceptable performance appraisal and was placed on two Performance Improvement Plans (PIPs).  While management alleged that Complainant had difficulty performing her duties, Complainant stated she had difficulty because the Agency revoked certain accommodations when it placed her on the second PIP.  Complainant filed a formal EEO complaint after she was ultimately terminated from the Agency, and the Agency issued a final decision finding no discrimination.  On appeal, the Commission concluded that Complainant established that she was denied reasonable accommodation.  The Commission also found that Complainant was subjected to disparate treatment and a hostile work environment in retaliation for her requests and ongoing need for accommodation.  In so finding, the Commission noted that management alleged that Complainant's legal matters and her EEO complaints were disruptive.  The Commission noted that the Assistant Section Chief (ASC) felt that Complainant was not given a fair chance during the trial assignment and averred that Complainant was unjustly terminated.  The ASC stated that Complainant was assigned only the most difficult tasks instead of the mix of assignments other employees received, and opined that Complainant would have performed successfully had she been given a fair mix of assignments.  Complainant was not asserting that the performance metrics should have been waived, but only that she should have been given a fair chance to meet the metrics.  Lastly, the Commission found that management's actions against Complainant were severe and pervasive enough to establish a hostile work environment.  The Commission concluded that the Agency acted in bad faith, and, therefore, Complainant was eligible for compensatory damages.  The Agency was also ordered, among other things, to offer Complainant reinstatement with appropriate back pay and benefits, change the unacceptable performance ratings, and expunge any negative documentation regarding the ratings and Complainant's termination from its records.  Complainant v. Dep't of Justice, EEOC Appeal No. 0120121339 (May 8, 2015), request for reconsideration denied, EEOC Request No. 0520150404 (November 12, 2015).

Denial of Reasonable Accommodation Found When Agency Failed to Provide Interpreter.  Complainant filed an appeal from an Agency decision finding, among other things, that it did not fail to accommodate Complainant's disability.  Complainant alleged that the Agency failed to provide her with a sign language interpreter for meetings including safety talks.  The Agency conceded that Complainant was a qualified individual with a disability, and the record showed that the Agency provided an interpreter during Complainant's initial training period.  The Agency acknowledged, however, that it did not provide Complainant with an interpreter for standup meetings or safety talks.  Further, the Postmaster stated that she was unaware of the requirement to provide an interpreter.  The Commission rejected the Agency's rationale that it did not provide Complainant with an interpreter because she was able to read lips and did not specifically request one, finding that the Agency was obligated to provide an interpreter for work meetings as a reasonable accommodation even if Complainant did not request one. The Commission noted that the Agency did not claim that providing an interpreter would have constituted an undue hardship.  The Agency was ordered, among other things, to investigate Complainant's claim for compensatory damages, and, since she had been reinstated pursuant to a pre-arbitration settlement, provide complainant with a sign language interpreter at meetings and safety talks.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122130 (March 11, 2015).

Disability Discrimination Found.  Complainant worked at an Agency nuclear plant.  Complainant alleged that the Agency discriminated against him on the basis of disability when, due to his detached retina and monocular vision, he was not allowed to work as a dual-rate foreman and was not allowed to travel to perform certain work.  After the Agency issued a final decision finding no discrimination, Complainant requested reasonable accommodation in the form of a waiver of a vision test.  The Agency required employees in the foreman position to comply with Department of Transportation (DOT) regulations, part of which was a vision test which required applicants to have binocular vision.  The Agency did not respond to Complainant's request to waive this test as an accommodation.  Complainant applied for and was rejected for a position at least partly based on his failure of the vision test.  Complainant filed another EEO complaint, and the Agency concluded that Complainant was not a qualified individual with a disability and was not subjected to discrimination.

The Commission found that, while Complainant did not ask for a "reasonable accommodation" verbatim, the Agency should have been on notice that he was requesting such.  The Commission, additionally, found that the Complainant was an individual with a disability because his vision impairment substantially limited a major life activity, and that the Agency discriminated against the Complainant based on this disability.  Complainant met all of the qualifications for the job except the requirement that his vision conform to DOT regulations.  The Agency failed to conduct an individualized assessment of Complainant, and instead dismissed him immediately due to his impairment. The Agency failed to show that the DOT regulations that it adopted and relied upon in denying Complainant's application were a business necessity, and the Agency had full discretion in choosing whether or not to require applicants to comply with DOT regulations. Complainant was qualified for the position that he was seeking, and would have been selected as a permanent foreman if not for the Agency's discrimination.  The Agency was ordered, among other things, to offer Complainant the position with appropriate back pay and benefits, and provide him with reasonable accommodation. Complainant v. Tenn. Valley Auth., EEOC Appeal Nos. 0120093256 & 0120111968 (February 20, 2015).

Denial of Reasonable Accommodation Found.  Complainant alleged that the Agency denied him a reasonable accommodation for his disability in the form of a hardship transfer to another office.  After six months of commuting, Complainant's condition worsened and he asked to work from home one hundred percent of the time.  Complainant submitted a statement from his physician recommending that, in order to prevent the worsening of Complainant's condition, he should work from home all the time to avoid prolonged driving.  The Agency's Supervisory Human Resources Specialist and Disability Program Manager denied Complainant's request to telework one hundred percent of the time on the basis that driving and commuting to work was not considered to be a major life activity or function. The Agency allowed Complainant to telework three days per week and to report to the office one day per week, but concluded that not all of the essential functions of Complainant's job could be performed from a remote location, and that the requested accommodation would require removal of essential job functions. Complainant began using sick or unscheduled annual leave on each day that he was scheduled to report to the office. The Agency then issued Complainant an official reprimand.

Following a hearing, the AJ found that the Agency discriminated against Complainant when it failed to reasonably accommodate his condition, and the Commission affirmed the finding on appeal.  The Commission determined that Complainant was qualified for his position, and substantial evidence supported the AJ's finding that Complainant's inability to work at the Minneapolis office did not result in any significant deficiencies in his job performance.  Further, the Agency did not demonstrate that Complainant's requested accommodations would constitute an undue hardship, especially given the fact that Complainant received a "fully successful" performance evaluation while telecommuting 100 percent of the time.  The Agency was ordered, among other things, to provide Complainant with reasonable accommodation, and pay Complainant $15,000 in proven non-pecuniary damages.  Complainant v. Dep't of Housing & Urban Dev., EEOC Appeal No. 0720130029 (February 12, 2015).

Denial of Reasonable Accommodation Found.  Following a hearing, an AJ found that the Agency discriminated against Complainant on the basis of disability when it failed to provide her with reasonable accommodation, and the Commission affirmed the AJ's decision on appeal.  Complainant was hired under a two-year Federal Career Internship Program (FCIP) appointment as a Claims Authorizer, and was qualified because she identified a reasonable accommodation that would allow her to perform the essential functions of her position.  Specifically, the Commission stated that Complainant's request for additional time for on-the-job training beyond the two-year FCIP period would have been a feasible solution to Complainant's problems with processing cases efficiently.  The Agency's Personnel Policy Manual noted that it had the authority to extend FCIP appointments up to 120 days, and could request an extension of one year from the Office of Personnel Management.  The Commission agreed with the AJ that the requested accommodation would not have lowered the Agency's production standard, but would have provided accommodation in the form of training which would have enabled Complainant to meet the production standard.  The Commission concluded that the Agency failed to prove that the requested accommodation would have caused an undue hardship, and made only generalized conclusions regarding the impact of the accommodation on other employees and customers.  Further, while the Agency questioned the effectiveness of the accommodation and asserted that its policies prohibited management from requesting an extension for the purpose of giving Complainant an opportunity to demonstrate improvement in performance, neither of those assertions showed that the requested accommodation would be a significant difficulty or expense for the Agency.  The Commission also affirmed the AJ's decision to award damages, stating that the Agency failed to make a good faith effort to reasonably accommodate Complainant's disability.  Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0720120034 (November 26, 2014).

Under Title VII

Sexual Harassment Found.  Complainant, the only woman working in her section, filed an EEO complaint alleging that a male coworker (C1) who sometimes served as Acting Supervisor sexually harassed her, including inappropriately touching her, and telling Complainant he loved her.  In a final decision, the Agency acknowledged that Complainant had been subjected to sexual harassment by C1, but determined that the Agency was not liable for the harassment.  On appeal, the Commission concluded that Complainant's allegations were supported by the weight of the evidence, and that the conduct was unwelcome and severe enough to create a hostile work environment.  With regard to the Agency's liability, management acknowledged that the union reported the harassment a few days after the first incident, and the Commission stated that the Agency had a duty to take immediate and appropriate corrective action no matter the source of the report.  The Commission noted that there was no documentation in the record reflecting that C1 was disciplined for harassing Complainant, and counseling C1 did not stop him from harassing Complainant.  Witnesses attested that C1 sometimes visited and lurked in Complainant's work area even after the Agency reassigned him to another building. The Commission determined that the Agency's failure to properly address the harassment left Complainant vulnerable to the very type of disturbing confrontation that ultimately occurred in this case, and, therefore, the Agency's response was inadequate.  Consequently, the Commission found that the Agency did not satisfy the affirmative defense and was liable for the harassment of Complainant.  The Agency was ordered, among other things, to bar C1 from Complainant's work facility and from communicating with her while at work, and to ensure that Complainant was not in C1's chain of command and C1 did not act in any supervisory capacity over Complainant.  Complainant v. Dep't of the Navy, EEOC Appeal No. 0120130704 (September 16, 2015).

Failure to Accommodate Religion Found.  Complainant, a relief postmaster, requested five days of leave to attend a religious convention.  Although she secured coverage for her absence, management rejected the coverage because it would have resulted in overtime pay.  When Complainant did not report for duty on the requested dates, resulting in the facility remaining closed, management provided coverage for the remainder of her absence.  Complainant was subsequently charged AWOL and removed from her position.  On appeal, the Commission held that the Agency had not made a good faith attempt to accommodate Complainant's religious beliefs, finding in particular that the overtime was de minimis and did not impose an undue burden on the Agency.  Among the relief ordered were reinstatement, back pay and damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133188 (July 24, 2015).

Agency Subjected Complainant to Hostile Work Environment Based on Sex.  The Commission found that Complainant was subjected to a hostile work environment based on his sex.  Specifically, a co-worker touched Complainant's shoulders, and made sexual references, which the co-worker indicated was a "running joke" for almost 10 years.  The Commission found that the conduct was not merely an isolated incident, and Complainant changed his work schedule three times to avoid contact with the co-worker.  After Complainant reported the conduct, there were two additional incidents, and the Commission found that, given the duration of the harassment, the Agency failed to take immediate and appropriate corrective action.  The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide training for the co-worker.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120112975 (July 15, 2015).

Race Discrimination Found in Non-Selection. The Commission granted a request for reconsideration in part, finding that the Agency discriminated against a Complainant based on race when it declined to select her as a GS-07 Secretary.  The Commission concluded that the reasons proffered by the Agency for Complainant's non-selection were pretextual.  In so finding, the Commission relied in part on witness testimony that one of the two selectees did not make the original certificate of eligibles list at either the GS-06 or GS-07 level, but was subsequently instructed by management to resubmit her application and revised her application with assistance from one of the selecting officials.  The Commission also found persuasive the absence, on the relevant certification, of any dates or signatures from the selecting officials or the personnel official who audited the list, as well as the fact that the certification lists offered into evidence were generated within two days after management met with the EEO counselor, that is more than three months after the issuance of the lists. Finally, the Commission noted both inconsistencies in the testimony and documentary evidence regarding the number and substance of interviews conducted and the inclusion of a Job Tracking History form for the selectee. The record also contained a workforce profile which showed that less than 10 percent of employees at the facility were African American, as well as documentation that the department in question was 100 percent white.  Finally, the Commission noted that the only other African American female applicant was also not selected, even though she and Complainant were the only secretarial contractors at the facility who exclusively performed secretarial duties.  The Agency was ordered, among other things, to offer Complainant the position with appropriate back pay and benefits.  Complainant v. Dep't of Labor, EEOC Request No. 0520120381 (June 25, 2015).

Sexual Harassment Found.  The Commission found that Complainant was subjected to sexual harassment by a co-worker for over one year, including offensive and unwelcome comments and touching, and that the Agency failed to take prompt and effective action after being informed of the unwelcome conduct.  Specifically, the Agency waited 11 days to speak with Complainant and 21 days to speak with the co-worker, during which time the conduct continued, and the Agency only disciplined the offending co-worker three months later.  According to the record, another co-worker reported to management that she had been subjected to similar sexual harassment from the male co-worker.  The Commission noted that management did not separate Complainant and the male co-worker immediately after learning of the allegations of sexual harassment, and the Agency erred when it eventually did separate them by forcing Complainant to change her shift against her will, while the male co-worker was allowed to keep his shift.  Finally, there was no evidence in the record that the Agency took any steps to ensure the harassment would not occur again, and since the record indicated that this harassment likely affected more than just Complainant, the Agency should have provided the whole facility with anti-harassment training.  The Agency was ordered, among other things, to investigate Complainant's entitlement to compensatory damages, and provide 8 hours of EEO training to all management officials and all non-supervisory employees.  Complainant v. Dep't of Def., EEOC Appeal No. 0120130331 (May 29, 2015).

Agency Liable for Sexual Harassment.  In its final decision, the Agency conceded that Complainant met the first four elements of her sexual harassment claim.  On appeal, Commission found that the Agency failed to take immediate and appropriate corrective action in this case and therefore, the Agency was liable for the conduct of Complainant's supervisor.  The Agency could not argue that it took immediate corrective action to end the harassment when its own investigation revealed that Complainant's supervisor failed to follow the Agency's established sexual harassment protocol.  The record showed that Complainant immediately approached her supervisor for assistance, just after having been sexually harassed by another employee.  However, Complainant's supervisor took no action.  The Commission further found that while the supervisor's inaction was acknowledged and addressed by Agency management, the initial inaction by Complainant's supervisor was the reason that liability attached to the Agency.  Although the Agency subsequently responded in an appropriate manner, this response was not immediate, and Complainant was left on her own to seek relief from the harassment.  The Agency was ordered, among other things, to investigate Complainant's claim for damages and provide training for the supervisor.  Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120123232 (May 21, 2015).

Denial of Religious Accommodation.  Complainant filed a formal EEO complaint alleging, in relevant part, religious discrimination when she purportedly was denied the opportunity to observe her Sabbath.  On appeal, the Commission found no evidence that the Agency took any action to facilitate a voluntary swap in a good faith effort to reasonably accommodate Complainant.  Further, the belief of Agency management that requiring Complainant's colleagues to work on her Saturdays was unfair did not in itself constitute an undue hardship especially since there was evidence the Complainant's previous supervisor was able to grant her request for every Saturday off.  The Commission noted the different acceptable alternatives for accommodating conflicts between work schedules and religious practices in addition to voluntary swaps, including lateral transfers and flexible scheduling.  As part of the relief awarded, the Commission ordered the Agency, at a minimum, to disseminate information to all individuals, who share substantially similar qualifications, of the opportunity to swap Saturday work obligations with Complainant by posting the information on a bulletin board, or other means regularly used by the Agency to advertise such opportunities.  The Commission also ordered the Agency to ensure that Complainant was not placed in the position of having to seek volunteers herself.  Complainant v. Dep't of Def., EEOC Appeal No. 0120150382 (May 1, 2015).

Disparate Treatment Due to Sex Stereotyping Found.  The Commission held that the Agency's restrictions on a transgender woman's ability to use a common female restroom facility constituted disparate treatment based on sex, and also that the restroom restrictions combined with offensive remarks, including intentional repeated pronoun misuse, subjected her to hostile work environment harassment based on sex.   The Agency acknowledged that Complainant's transgender status was the motivation for its decision to prevent her from using the common women's restroom.  Therefore, the Commission found that there was direct evidence of sex discrimination.  The Commission held that when an individual has transitioned to the gender that reflects her or his gender identity, denial of equal access to the restroom consistent with her or his gender identity is sex discrimination under Title VII.  The Commission stated that Title VII does not require any particular medical procedure as a prerequisite for equal opportunity and access to facilities, and co-worker discomfort, confusion, or anxiety may not justify discriminatory terms and conditions of employment, including the denial of access to particular restrooms.  Therefore, the Commission found that the Agency subjected Complainant to disparate treatment because of her sex when it denied her access to the restroom consistent with her gender identity.  The Commission also found that Complainant was subjected to hostile work environment harassment based on sex when a team leader intentionally and repeatedly called Complainant traditionally male names, pronouns, and "sir."  The Commission found that while inadvertent and isolated slips of the tongue likely would not constitute harassment, in this case, the team leader's conduct occurred multiple times and was intended to humiliate and ridicule Complainant.  The Commission further found that the conduct was so pervasive, well-known, and openly practiced in the workplace that the Agency should have known about it.  Moreover, the Agency negligently failed to take prompt and effective correction action to address the harassment.  Lusardi v. Dep't of the Army, EEOC Appeal No. 0120133395 (April 1, 2015).

Sex Discrimination Found with Regard to Reassignment.  Complainant filed an appeal from an Agency decision finding that it did not discriminate against him on the basis of sex when it denied his request for a reassignment.  On appeal, the Commission found that Complainant established a prima facie case of sex discrimination and the Agency failed to provide a legitimate, nondiscriminatory reason for denying the reassignment.  The record contained the minutes from the Career Board meeting during which Complainant's request was denied.  The minutes, however, contained only the names of the officials present.  The remaining content of the meeting was redacted without explanation.  The minutes did not specifically show which Career Board members denied Complainant's request or provide any information regarding the reason for the decision.  The Agency, in fact, acknowledged the failure to provide a substantive reason for denying Complainant's request for reassignment.  The Commission was not persuaded by the Agency's general assertion that transfer decisions were discretionary and consistent with staffing needs. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and offer him reassignment.  Complainant v. Dep't of Justice, EEOC Appeal No. 0120123094 (March 9, 2015); request for reconsideration denied, EEOC Request No. 0520150309 (August 11, 2015).

Racial Harassment Found.  The Commission found that Complainant was subjected to harassment on the basis of his race.  Complainant alleged that he was the subject of scandalous e-mails and newspaper articles initiated by Agency managers, and that he was threatened with physical harm.  Witness testimony reflected a strong indication that a Deputy Manager was responsible for disseminating information to the media regarding alleged ethical violations by Complainant in relation to the hiring of minority employees and money paid to historically Black universities.  The Commission found that the Manager's conduct was sufficiently severe and pervasive to alter the conditions of Complainant's employment and create a hostile work environment.  As a result of the Manager's inflammatory assertions, Complainant's name and picture were published in the media and the Agency's Inspector General opened an investigation.  The record, however, contained no evidence that Complainant did in fact act in an unethical manner.   Further, during the Inspector General's investigation, employees described co-workers in derogatory terms and raised issues of racism and reverse discrimination, and the hearing testimony described a culture of extreme bigotry and racial epithets and symbols being directed toward African-American employees.  Complainant's career and reputation were clearly affected by the Manager's actions.  The Commission noted that there was no dispute that many different levels of management were aware of the e-mails and public articles implicating Complainant but made little or almost no effort to stop the harassment.  Thus, the Commission concluded that the Agency failed to immediately and effectively address the hostile work environment, and was liable for the harassment.  The Agency was ordered, among other things, to pay Complainant $42,500 in proven compensatory damages, provide a minimum of eight hours of EEO training for the Manager, and consider taking disciplinary action against her.  Complainant, aka Alex W., v. Dep't of Energy, EEOC Appeal No. 0720130030 (December 12, 2014).

Under Multiple Bases

Race Discrimination and Retaliation Found.  Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of her race and in retaliation for prior EEO activity when it issued her a lower performance rating than similarly situated employees outside of her protected groups.  On appeal, the Commission found that Complainant was discriminated against as alleged.  The record revealed that Complainant's supervisor was unable to offer a legitimate, non-discriminatory reason for why Complainant was rated lower in one of her critical performance elements.  For the three years prior, Complainant consistently had been rated as "Exceeded" with regard to the element at issue.  The supervisor claimed that Complainant failed to clean the work areas outside of her work space, but management did not show that this was a requirement for recognition at the higher level.  In addition, the supervisor used the same narrative language for Complainant's rating, which the supervisor used to justify the higher rating for the other comparators.  The Agency was ordered, among other things, to change the Complainant's rating of record from "Excellent" to "Outstanding," and provide the appropriate monetary relief due Complainant including any award money she would have received.  Complainant v. Dep't of Def., EEOC Appeal No. 0120132616 (September 25, 2015).

Disability Discrimination and Retaliation Found.  Complainant filed an EEO complaint alleging that the Agency subjected him to unlawful harassment and denial of reasonable accommodation based on his disability and in retaliation for requesting reasonable accommodation.  Complainant also alleged that he was terminated from his position.  Following a hearing, the AJ concluded that Complainant had established unlawful disability discrimination and retaliation for prior EEO activity, and the Commission upheld the AJ's findings of discrimination on appeal. The facts supported the AJ's determination that Complainant was qualified for his Trainee/Intern position, and that the Agency failed to provide Complainant with effective accommodation despite his multiple requests.  The record also did not support the Agency's assertion that Complainant posed a direct threat to himself or others.  With regard to the allegation of harassment, the Commission stated that the supervisor engaged in acts of harassment, and the Agency failed to take any corrective action even after Complainant made upper management aware of the hostile environment.  The Agency was ordered, among other things, to reinstate Complainant to his Border Patrol Trainee/Intern position with appropriate back pay and benefits, and pay him $52,250 in proven compensatory damages.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720140021 (August 19, 2015).

Sexual Harassment and Reprisal Found.  Complainant, a female correctional counselor at a detention center, alleged that the Agency subjected her to sexual harassment and reprisal when a male co-worker invaded her personal space, breathed heavily on her neck, and made sexual noises.  Although there was videotape footage of the incident, the Agency refused to allow Complainant to view it and the videotape was not made part of the record.  Nonetheless, in its final decision finding no evidence of harassment, the Agency relied on its own contention that a Special Investigative Agent (SIA) claimed he had reviewed the videotape and did not observe any harassing conduct.  On appeal, noting that the record contained neither a copy of the videotape nor testimony from the SIA, the Commission held that the Agency's assertions about the content of the videotape were not evidence.  Because Complainant's testimony was detailed, internally consistent and consistent with testimony from other witnesses, and in light of prior allegations of similar conduct against the individual by both Complainant and others, the Commission found that the weight of the evidence corroborated Complainant's allegations. Further, because the incident occurred in a locked, isolated area, which heightened the physically threatening nature of the behavior, the Commission concluded that it was severe enough to create a hostile work environment.  Based on the Agency's failure to discipline the individual and its denial of Complainant's request for reassignment to another shift to avoid contact with him, the Commission held that the Agency was liable because it failed to take immediate and appropriate corrective action.  Finally, the issuance of a cease-and-desist letter to Complainant after she reported the alleged harassment was found to constitute unlawful reprisal.  In addition to compensatory damages, expungement of the cease-and-desist letter, training of staff, and consideration of discipline against a senior manager, the Commission ordered rescission of AWOL charges against Complainant and monetary compensation for leave taken when Complainant began coming to work late in order to avoid the accused. Complainant v. Dep't of Justice, EEOC Appeal No. 0120132393 (June 25, 2015).

Racial Harassment and Retaliation Found.  Complainant alleged that the Agency subjected him to a hostile work environment based on race and reprisal in connection with his discovery of a hangman's noose in an Agency vehicle and the Agency's response thereafter.  In its final decision, the Agency found that it had taken immediate and appropriate corrective action to address the allegations of harassment, thus shielding itself from liability.  On appeal, the Commission initially cited the Senior Manager of the EEO Office for a lack of impartiality, characterizing as inappropriate an e-mail from the Senior Manager to management officials involved in the complaint in which the Senior Manager opined, "[h]opefully [Complainant's] appeal will be dismissed in short order, but we will keep you posted."  Turning to the merits, the Commission held that the presence of a hangman's noose for nine days following Complainant's initial discovery was an objectively hostile event which was sufficiently severe to alter the conditions of his employment and to create an abusive work environment.  Complainant's supervisor failed to report the incident or take any action at the time Complainant reported the noose because he believed it was not a "legal" hangman's noose since it did not have enough knots on it.  The noose was not removed until four days later when Complainant reported it to a different supervisor, and there was no evidence that the Agency conducted training following the incident.  Therefore, the Commission found that the Agency failed to take action that would have shielded it from liability.  Finally, the Commission held that the Agency retaliated against Complainant when it issued him a "below standards" Electronic Problem Observation Program report (ePOP) for failure to timely report his discovery of the noose.  The relief ordered included, among other things, a supplemental investigation regarding compensatory damages, and expungement of the ePOP from Complainant's record. Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120123132 (May 14, 2015).

Race Discrimination and Retaliation Found with Regard to Non-selection.  On appeal the Commission found that Complainant was able to demonstrate that the Agency's explanations for her non-selection for a full time position were a pretext for race discrimination and reprisal.  The record contradicted the Agency's assertion that supervisors rated Complainant for the position.  Further, in addition to the absence of documented evidence of the alleged negative supervisory ratings, other evidence showed that the Agency did not collect recommendations for Complainant's application from all supervisors, and some supervisors testified that they were not asked to recommend Complainant.  This, the Commission stated, undermined the Agency's argument that Complainant was not selected due to these recommendations.   The Agency's assertion that Complainant received letters of counseling and disciplinary actions was also contradicted by the record.  The record showed that Complainant had higher mid-year evaluations than the majority of the selectees and received numerous awards.  Thus, the Commission found that Complainant met her burden of demonstrating that the Agency's legitimate, nondiscriminatory, reasons for not selecting her for full-time conversion were a pretext for discrimination.  As part of the relief awarded, the Agency was ordered to determine the appropriate back pay, with interest, and other benefits due Complainant between the period of her non-selection and the effective date of her conversion to a full-time position.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120130097 (April 30, 2015), request for reconsideration denied, EEOC Request No. 0520150421 (November 25, 2015).

Agency Failed to Articulate Legitimate, Nondiscriminatory Reason for Non-selection.  The Commission found that the Agency failed to articulate a specific, clear, and individualized explanation for Complainant's non-selection, and consequently, Complainant was denied a fair opportunity to demonstrate pretext.  The Selecting Officials set forth no objective facts to support their vague, generalized conclusions that the Selectees were more qualified for the position.  Thus, the Agency failed to rebut the inference of discrimination which was created when Complainant established a prima facie case of race, color, and age discrimination, and the Commission determined that the Agency discriminated against Complainant when it did not select her for the Financial Management Assistant position.  The Agency was ordered, among other things, to offer Complainant the position or a substantially equivalent position, and pay Complainant appropriate back pay and benefits.  Complainant v. Dep't of Agric., EEOC Appeal No. 0120132105 (April 24, 2015), request for reconsideration denied EEOC Request No. 0520150377 (October 1, 2015); see also Complainant v. Dep't of Agric., EEOC Appeal No. 0120132107 (April 29, 2015) (the Agency failed to meet its burden of persuasion of articulating a legitimate, nondiscriminatory reason for its actions when the Selecting Officials failed to provide with specificity a clear and individualized explanation for Complainant's non-selection for the vacancies at issue.  Thus, the Agency failed to rebut the inference of discrimination raised when Complainant established a prima facie case of discrimination).

Agency Failed to Articulate Legitimate, Non-Discriminatory Reason for its Actions.  Complainant filed an EEO complaint alleging race and sex discrimination after he was reassigned to a different Agency facility and his prior position and duties were given to another employee.  According to the Agency, the Supervisor who reassigned Complainant told the EEO Counselor that Complainant had been reassigned due to Agency needs.  The Supervisor, however, never provided an affidavit during the investigation because he resigned from the Agency.  The Agency found the EEO Counselor's report articulated the Supervisor's legitimate, non-discriminatory reason for the reassignment and that Complainant had not presented evidence to rebut this explanation.  On appeal, the Commission found the Agency failed to articulate a legitimate, non-discriminatory reason for its action because the record did not contain evidence from any appropriate Agency official articulating the Agency's reasons for the reassignment.  The Commission stated that even if it were to accept the asserted Agency reason as valid, it was too generalized and vague for Complainant to rebut and, therefore, would not constitute a sufficient legitimate, nondiscriminatory reason.  The Commission did find evidence, however, that the reassignment was made for unlawful discriminatory motives.  Specifically, three of Complainants co-workers averred that his reassignment appeared to be a demotion motivated by Complainant's race, and one co-worker related the reassignment to Complainant's sex.  Thus, the Commission found that the Agency failed to overcome Complainant's prima facie case of race and sex discrimination.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120140085 (January 15, 2015).

Retaliation

Retaliation Found with Regard to Reassignment.  The Commission found that the Agency retaliated against Complainant when it reassigned him to a different position after he sought EEO counseling regarding a non-selection.  The reassignment occurred two days after management was informed of Complainant's EEO contact.  While the Supervisor stated that Complainant was reassigned because he was the most qualified employee available, the record showed that Complainant had no notice of the potential reassignment until the day management learned he was pursuing an EEO complaint.  Further, there was testimony in the record from an Agency Foreman that while Complainant had extensive experience in his long-held position, he had limited experience in the work required for the position to which he was reassigned.  Therefore, the Commission concluded that, more likely than not, Complainant's reassignment was not due to operational needs but instead made in retaliation for his EEO activity.  The Agency was ordered, among other things, to investigate Complainant's claim for damages and provide appropriate training for the responsible officials.  Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120131406 (September 25, 2015).

Retaliation Found.  After a hearing, an AJ found that Complainant failed to prove that he was subjected to unlawful retaliation.  On appeal, he Commission found that the AJ erred as a matter of law when she found no reprisal with regard to the Chief's inquiry into Complainant's previous EEO complaint, as well as regarding the Supervisor's filing of a grievance concerning Complainant's appointment pursuant to an EEO settlement agreement.  The Commission found that the Chief engaged in actions that were reasonably likely to deter employees from engaging in EEO activity when he subjected Complainant's EEO statements to management's review and scrutiny.  The Commission noted that EEO complaints should be investigated and adjudicated within the EEO process by designated EEO officials, not by management.  Additionally, the Commission found that by informing Complainant about the inquiry into his previous EEO activity, the Chief engaged in conduct that could dissuade employees from participating in the EEO process.  The Commission also found that the Supervisor's grievance was retaliatory and reasonably likely to deter employees from engaging in EEO activity.  The Agency was ordered, among other things, to provide Complainant with proven compensatory damages, and to provide at least eight hours of in-person EEO training to the responsible management officials.  The Commission affirmed the AJ's findings of no discrimination with respect to a performance evaluation, letter of reprimand, letter of warning, training, and teaching assignments.  Complainant v. Dep't of the Interior), EEOC Appeal No. 0120132365 (September 11, 2015).

Per Se Retaliation and Disparate Treatment Found.  Complainant alleged, in pertinent part, that the Agency retaliated against him when it reduced his work hours, and made certain verbal statements that constituted per se retaliation.  The AJ, after a hearing, found both disparate treatment and per se retaliation and the Commission affirmed the AJ's decision on appeal.  The Commission initially rejected the Agency's argument that the "but for" standard discussed in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013) applied to the first claim.  The Commission further found that substantial evidence in the record supported the AJ's findings of retaliation.  The Commission noted that Agency management officials made certain statements in response to Complainant's assertion that the Agency's hiring and scheduling practices were discriminatory that demonstrated a retaliatory attitude and were linked to the reduction of his work hours.  Specifically, Agency managers stated, among other things, "If you pursue this, I have no choice but to reduce your hours;" and "If you guys keep pushing this, they won't let me work you guys more than 20 hours per week."  Although the Agency argued that the AJ erred in crediting the hearing testimony of Complainant and his witnesses about those verbal statements over the hearing testimony of Agency management, the Agency did not demonstrate that the Commission should reject the AJ's credibility determinations which were based in large part on witness demeanor.  The Commission also found that the AJ properly awarded Complainant the attorney's fees.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720140014 (August 19, 2015); see also Complainant v. Dep't of Justice, EEOC Appeal No. 0720140036 (September 22, 2015) (Commission noted that the "but for" standard articulated in Nassar does not apply to retaliation claims by federal sector applicants or employees because the relevant statutory language does not employ the "because of" language on which the Supreme Court based its holdings).

Retaliation Found.  Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it did not select him for a full-time Statistician position.  On appeal, the Commission found that the AJ's issuance of a decision without a hearing was appropriate because no genuine issue of material fact existed.  However, the Commission found that the AJ erred in finding in favor of the Agency, as the record reflected by a preponderance of the evidence that Complainant was subjected to reprisal for his prior protected EEO activity.  Specifically, the record established that at least for one panel member (Sl), and more likely than not the whole interview panel, Complainant's prior protected EEO activity was taken into consideration when the decision was made not to refer Complainant to the selecting official.  Sl stated in his affidavit that he discussed what he learned about Complainant's prior protected EEO activity with the other members of the review panel, noted that Complainant's prior protected EEO activity was "impossible to ignore" and stated "yes, I think it was taken into consideration" by other panel members.  The Commission further noted that even if it were to assume arguendo that the Selecting Official was unaware of S1's and the interview panel's retaliatory motivations, under the "cat's paw" theory, the Agency was still liable for the discrimination.  Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120184 (August 6, 2015); but see Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120132084 (April 24, 2015) (the Commission found that there was no competent evidence that Complainant's supervisor was disposed to provide a rating other than the one that was provided in an objective and nondiscriminatory manner, and there was no persuasive evidence that the supervisor acted as a conduit of discrimination, that she lowered Complainant's ratings after any discussions with another management official, or that she was motivated by discriminatory animus).

Retaliation Found.  Complainant, a Supervisory Lieutenant, began representing an employee who filed an EEO complaint against management at the facility. Complainant subsequently filed an EEO complaint in which he alleged that the Agency retaliated against him when another Supervisory Lieutenant (C1) verbally attacked him about his EEO activity in the presence of staff, the Associate Warden lowered his "outstanding" rating on his annual performance evaluation, and he was reassigned from the position of Administrative Lieutenant and denied the opportunity to serve as Acting Captain.  An AJ held a hearing and issued a decision finding that Complainant did not prove that the Agency's explanations for its actions were a pretext for discrimination.  On appeal, the Commission found that the AJ erred as a matter of law with regard to C1's verbal attack. The Commission noted that C1 broadcasted Complainant's EEO activity in the presence of Complainant's co-workers and management, and his remarks subjected Complainant to ridicule because of his EEO activity.  Therefore, even standing alone, C1's conduct was reasonably likely to deter an employee from engaging in EEO activity, and, therefore, constituted per se retaliation.

Regarding the performance evaluation, the Commission noted that the Agency never provided Complainant with an explanation for the rating, and Complainant's supervisor (S1) provided specific testimony regarding Complainant's performance and testified that Complainant deserved an outstanding rating.  S1 noted that before she even met Complainant, the former Warden advised her to be careful of Complainant because he was known "to file EEO complaints on everything."  The Commission noted that the AJ did not render any credibility determinations regarding the witnesses, or address their testimony in her decision, and the Commission found S1's testimony to be more credible than AW1's.  The Commission found evidence of retaliation to be compelling such that no reasonable finder of fact could conclude that AW1's explanation for lowering Complainant's evaluation was worthy of belief.  The Commission also determined that no reasonable fact-finder could conclude that the Agency's explanation for removing Complainant from his assignment was worthy of belief and the AJ's conclusion that Complainant did not prove reprisal was not supported by substantial evidence.  As part of the relief awarded, the Commission ordered the Agency to investigate Complainant's entitlement to compensatory damages, and ensure that the named management officials were removed from Complainant's chain of command.  Complainant v. Department of Justice, EEOC Appeal No. 0120132430 (July 9, 2015).

Retaliation Found.  Complainant filed an EEO complaint alleging, among other things, that the Agency retaliated against him when it issued him a five-day suspension.  An AJ held a hearing on the matter, and found that the Agency retaliated against Complainant as alleged.  On appeal, the Commission initially noted that the "but for" standard discussed in the Supreme Court's decision in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013) does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not contain the "because of" language on which the Supreme Court based its holdings.  The Commission affirmed the AJ's finding, stating that Complainant engaged in protected activity when he made statements to a supervisor indicating that he opposed the Agency's alleged discriminatory practices and intended to file an EEO complaint.  Complainant was then subjected to an adverse action when he was suspended for five days.  There was a causal nexus between the two because Notice of Proposed Suspension and the Notice of Suspension specifically referenced Complainant's remarks to his supervisor about his intention to file an EEO complaint.  The Agency was ordered, among other things, to pay Complainant $3,000 in proven compensatory damages and back pay for the five day of suspension, and expunge Complainant's records.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720140037 (May 29, 2015).

Per Se Reprisal Found.  The Commission found that the Agency committed a per se violation of the anti-reprisal provision of Title VII.   Specifically, the Commission found that the comments of both Complainant's immediate (S1) and second level supervisor (S2) were reasonably likely to deter Complainant from engaging in the EEO process.  S1 told Complainant that she wished Complainant had come to her about the EEO matter, and S1 felt like she was not given any courtesy to address the issue with Complainant.  In addition, S1 and S2 confronted Complainant about her EEO activity the next day.  The Commission noted that Sl admitted to S2 that she (Sl) may have made a mistake in talking to Complainant about her EEO contact.  Further, S2 averred as to his disappointment with Complainant's EEO Counselor contact.  The Commission affirmed the Agency's finding that Complainant failed to establish her claim of hostile work environment.  The Agency was ordered, among other things, to investigate Complainant's claim for damages and provide training for S1 and S2.  Complainant v. Dep't of Def., EEOC Appeal No. 0120140624 (May 21, 2015).

Retaliation Found When Agency Posted Complainant's EEO Information in a Public Place.  While the Commission affirmed the Agency's finding of no discrimination with regard to the majority of issues raised in Complainant's complaint, the Commission stated that Complainant alleged, and management did not deny, that a supervisor placed a note on her time card indicating that she had an EEO appointment.  Complainant stated that the note was placed in a public space and could be seen by co-workers.  The Commission rejected the Agency's contention that this did not constitute reprisal because Complainant had not shown that other employees saw the note.  Instead, the Commission concluded that placing information about Complainant's EEO activity in such a public, exposed place was inappropriate and could have revealed her EEO activity to numerous other employees.  Consequently, the Commission found that the supervisor's conduct was reasonably likely to deter employees from engaging in EEO activity, and therefore violated Title VII's prohibition on retaliation.  The relief ordered included investigation of Complainant's claim for compensatory damages, and training for the responsible management official.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133300 (May 12, 2015).

Retaliation Found.  Complainant alleged that the Agency subjected her to a hostile work environment on the basis of reprisal when, among other things, she was verbally counseled and issued a Counseling Memorandum and 10-day suspension.  After a hearing, an AJ found that Complainant failed to establish that she was subjected to retaliatory harassment.  On appeal, the Commission found a preponderance of the evidence established that Complainant was subjected to reprisal discrimination for bringing her EEO concerns to Agency leadership and outside of her immediate chain of command.  The record established that every time Complainant raised her EEO concerns with Agency leaders she was subjected to varying forms of discipline.  The Commission noted each time Complainant brought her EEO concerns to the attention of Agency leaders she was engaging in protected EEO activity because she was opposing discrimination by explicitly communicating to her employer a belief that the Agency's activities constituted discrimination.  Disciplining an employee for raising EEO concerns with Agency leaders could have a chilling effect on the EEO process as it was reasonably likely to deter employees from pursuing the EEO process.  The Agency was ordered, among other things, to take steps to ensure that all reprisal at Complainant's facility cease, expunge any reference to the disciplinary actions and counseling Complainant received for reporting her EEO concerns, and investigate her claim for damages.  Complainant, aka Ela O., v. Dep't of the Treasury, EEOC Appeal No. 0120122603 (May 8, 2015).

Retaliation Found in Agency Pressure on Complainant to Revise EEO Statement.  Complainant, who engaged in prior protected EEO activity when she submitted a statement in support of a co-worker's sexual harassment complaint, filed a formal complaint alleging that the Agency harassed and retaliated against her.  The Commission affirmed the Agency's finding that it subjected Complainant to unlawful retaliation which constituted a per se violation of Title VII.  Specifically, a Human Resources (HR) Specialist asked Complainant to rewrite a Report of Contact (ROC) she had submitted regarding her co-worker's complaint, while also reminding Complainant that she was under a Last Chance Agreement.  In addition, Complainant's second-level supervisor accused Complainant of failing or refusing to cooperate in the investigation of the co-worker's complaint and directed her, under threat of possible disciplinary action, to submit a ROC within three days.  The Commission held that the HR Specialist's interference with the wording of Complainant's statement and unlawful disclosure of Complainant's involvement in the investigation were reasonably likely to deter Complainant and/or other employees from personally engaging in the EEO process.  The Commission upheld the Agency's finding of no discrimination on other claims. The relief ordered included, among other things, the payment of costs and attorneys' fees, and investigation of Complainant's claim for compensatory damages. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120123044 (April 10, 2015).

Retaliation Found with Regard to Letter of Counseling.  The Commission found, among other things, that the Agency retaliated against Complainant when it issued him a Letter of Counseling (LOC).  Complainant's Supervisor participated in a hearing on Complainant's prior EEO complaint approximately four months before he issued Complainant the LOC, and the outcome of the prior complaint was pending at that time.  While the Agency asserted that the LOC was issued because of conduct issues, the Commission found that reason to be a pretext for retaliation.  The record showed that Complainant was outspoken and not timid about voicing his opinion.  The record, however, did not support the Agency's contentions regarding the various incidents cited in the LOC, and the Agency did not provide any explanation as to why it did not obtain statements from the various management officials involved.  The Commission also stated that the Agency failed to follow its own Resource Guide regarding the issuance of discipline which specified that employees be interviewed.  There was no mention in Complainant's performance appraisals of any conduct issues.  Thus, Complainant established that the Agency's articulated reasons for the LOC were a pretext for retaliation.  The Commission found no evidence of age discrimination or a discriminatory hostile work environment.  The Agency was ordered, among other things, to investigate Complainant's claim for damages, and expunge all references to the LOC from Complainant's personnel records.  Complainant v. Dep't of Commerce, EEOC Appeal No. 0120120157 (March 24, 2015).

Commission Affirmed AJ's Finding of Retaliation.  Complainant filed an EEO complaint alleging, among other things, that the Agency retaliated against him when it terminated him from his position for violating a Last Chance Agreement (LCA).  Complainant missed a collection box when delivering his route and the Agency cited this infraction as grounds to invoke termination under the terms of the LCA.  After holding a hearing, the AJ found that Complainant established discrimination based on reprisal.  Specifically, Complainant demonstrated that a missed collection box was not the type of infraction to incur discipline, that neither of the involved Supervisors had ever issued so much as a letter of warning for a missed collection box, and that the Agency exaggerated its concern over the potentially delayed mail in order to terminate Complainant.  On appeal, the Commission affirmed the AJ's finding of retaliation.  The Commission rejected the Agency's arguments that the Supreme Court's decision in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013) necessitated reversal of the AJ's decision.  The Commission has previously held that the "but for" standard discussed in Nassar does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not contain the "because of" language on which the Supreme Court based its holdings in Nassar and in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). The Commission affirmed the AJ's award of non-pecuniary compensatory damages in the amount of $10,000, and ordered the Agency, among other things, to offer Complainant reinstatement to his position with appropriate back pay and benefits.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720120041 (March 12, 2015).

Commission Affirmed AJ's Finding of Retaliation.  The AJ, after holding a hearing, found that the Agency retaliated against Complainant when it terminated him during his probationary period.  The Commission affirmed the AJ's finding on appeal.  The Commission rejected the Agency's argument that Complainant did not establish a prima facie case of retaliation because when he initially met with an EEO Counselor, he did not allege discrimination based on his membership in a protected class.  The record was clear that Complainant initiated contact with the EEO Counselor and used the EEO process before his termination.  Thus, he engaged in prior protected EEO activity.  Further, the record contained conflicting evidence as to the reasons for Complainant's termination.  While Complainant's first-line supervisor cited performance problems, Complainant's mentor did not observe any such issues.  The AJ observed that the mentor was in a better position to have first-hand knowledge of Complainant's work, and repeatedly found that the supervisor's testimony was not credible.  Therefore, the Commission concluded that the AJ's finding of retaliation was supported by substantial evidence.  The Agency was ordered, among other things, to offer Complainant the opportunity to either complete the remainder of his probationary period under different managers, or receive front pay for 2 years, and to pay Complainant $25,000 in proven compensatory damages.  Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0720130027 (March 4, 2015).

Retaliation Found with Regard to Removal.  Complainant was placed in an Administrative Assistant position at the Agency by a private staffing firm.  She alleged that she was terminated from her employment in reprisal for providing a statement as part of an investigation of her Agency supervisor.  On appeal, the Commission initially found that the Agency was a joint employer.  The Commission also found that the Agency retaliated against Complainant when it terminated her.  The Commission determined that despite ongoing animosity between Complainant and her Agency supervisor, the reasons given for her termination were a pretext for reprisal.  Complainant expressed concern about retaliation prior to acting as a witness in the investigation of her supervisor, just eight days before the Agency requested that she be terminated.  The Commission did not find a credible non-discriminatory reason for Complainant's termination.  At the time of her termination, the Agency told Complainant that she created a hostile environment.  Complainant's co-workers and managers, however, submitted statements commending Complainant's work and professionalism, and Complainant's relationship with her supervisor at that time was not particularly acrimonious relative to any other period of her employment.  Additionally, the Commission found that Complainant carried the preponderance of the evidence that her termination was a pretext for discrimination.  The Commission noted that rather than viewing the history between Complainant and her supervisor as a possible non-discriminatory reason for her termination, it made Complainant more vulnerable to reprisal.   A complainant already in a difficult relationship with her supervisor is more likely to be discouraged from participating in protected activity if pre-existing discord is too readily accepted as a defense.  The Agency was ordered, among other things, to pay Complainant appropriate back pay and benefits, and investigate her claim for damages.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120142302 (January 28, 2015).

Retaliation Found with Regard to Working Conditions.  Complainant worked as an Environmental Scientist and his duties included delineating the extent of wetlands on property, which was not an exact science and could be subjective.  The record showed that Complainant disagreed with other Environmental Scientists' decisions on several occasions, and had a tense relationship with his supervisor (S1) because they did not share the same philosophy regarding wetland delineation.  Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of religion and in reprisal for prior EEO activity.  An AJ found no evidence of religious discrimination but determined that S1 retaliated against Complainant when he took away Complainant's signature authority, made comments to a co-worker that it would be in her best interest not to work with Complainant, and questioned Complainant's co-workers and consultants about Complainant's performance.  The AJ stated that these actions would dissuade a reasonable person from engaging in the EEO process, and S1 had no legitimate, non-retaliatory reason for the conduct.

The Commission agreed with the AJ that many of Complainant's allegations were examples of workplace disagreements between a subordinate and a supervisor.  The Commission, however, also affirmed the AJ's finding of retaliation with regard to the three matters.  Although S1 stated that he revoked Complainant's signature authority because Complainant had done things "outside the norm," the AJ did not find the testimony convincing and there was no evidence that Complainant had been issued any discipline for his alleged errors.  Further, the Commission agreed with the AJ that repeatedly attempting to solicit negative information from a third party would dissuade a reasonable person from participating in the EEO process, and there was no legitimate reason for S1's actions.  With regard to remedies, the Commission increased the AJ's award of non-pecuniary damages to $10,000 finding that the award was consistent with the amounts awarded in similar cases.  The Commission affirmed the AJ's decision regarding pecuniary damages, noting that much of Complainant's medical treatment was related to other non-retaliatory events.  Complainant v. Dep't of the Army, EEOC Appeal No. 0120120232 (October 24, 2014).

Mixed Motive

Mixed Motive Discussed in Case Alleging Religious Discrimination.  The Commission found that certain comments by an Agency management official constituted direct evidence of religious discrimination.  Specifically, a Unit Chief commented that Complainant had a spiritual disconnect, questioned whether Complainant loved Jesus and God, and said that she did not think God wanted Complainant to be at the Agency.  A co-worker confirmed that Complainant told her about the Unit Chief's comments, and noted that the Unit Chief had made comments about other employees not being Christian.  Further, the Unit Chief acknowledged speaking to Complainant about his Christianity, and described herself as sounding "preachy."  Nevertheless, the Commission stated that discrimination was one of multiple motivating factors in the case, and the Agency established that it would have taken the same actions toward Complainant, specifically giving him an "Unacceptable" performance rating, and recommending his termination, even absent the discrimination.  The record showed that Complainant had a confrontation with a co-worker, as well as performance issues, and was placed on a Performance Improvement Plan prior to being assigned to work with the Unit Chief.  Therefore, Complainant was not entitled to personal relief.  The Commission also concluded that Complainant did not establish that he was constructively discharged.  The Agency was ordered, among other things, to provide appropriate training for the Unit Chief.  Complainant v. Dep't of Justice, EEOC Appeal No. 0120122878 (March 27, 2015).

Official Time

Official Time to Pursue EEO Complaint Discussed.  In her formal complaint, Complainant alleged that she had been denied official time to work on amendments to a pending EEO complaint.  In its final decision, the Agency responded that management had asked her to take the time on another day.  Complainant did not dispute management's assertion that in lieu of the time she wanted to take, she was granted official time to work on her EEO complaint on two subsequent days.  On appeal, the Commission noted that its regulations entitle an employee to a reasonable amount of official time to prepare the complaint or respond to Agency requests for information.  In this case, Complainant has not produced evidence that the official time needed to work on her EEO complaint had to occur on a specific day, and it was not reasonable to ask her to take the time on later days instead.  Therefore, in affirming the Agency's final decision, the Commission found no persuasive evidence that Complainant was improperly denied official time.  Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120131095 (April 21, 2015).

Remedies

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

Remedies Discussed.  The Commission modified the AJ's order, agreeing with the Agency that it was unreasonable to require it to forward a copy of the decision finding discrimination to other federal agencies where the responsible employees may currently be working.  The Commission, instead, ordered the Agency to include a copy of the AJ's decision as part of the identified employees' official personnel files for the time the employees worked at the Agency.  In addition, the Commission modified the AJ's order regarding payment for sick leave, noting that federal employees are not entitled to a cash payment for unused sick leave.  The Agency was ordered, however, to restore Complainant's sick leave and file a request on her behalf with the Office of Personnel Management to recalculate her annuity based on any additional service credit she may be entitled to as a result of the additional unused sick leave balance.  Complainant v. Dep't of the Army, EEOC Appeal No. 0720140011 (September 22, 2015).

Back Pay and Equivalent Positions Awarded in Two Non-selections.  In two separate complaints arising from the same selection process, the Commission previously ordered relief upon an Agency finding of discrimination.  The Agency subsequently refused to award relief on the grounds that neither Complainant would have been selected even in the absence of discrimination.  On appeal, the Commission noted that management testimony indicated that one of the Complainants was considered to be the top candidate by the selecting officials and the remaining seven candidates were considered equally suitable.  The Commission observed that the Agency had offered no analysis of the application materials to show that neither complainant would have been selected in the absence of discrimination.  Because the conclusions of the panel were not determinative, the Commission ordered the award of a substantially equivalent position to each Complainant and investigations of back pay owed. Complainant v. Dep't of Def., EEOC Appeal No. 0120130238 (July 21, 2015); Complainant v. Dep't of Def., EEOC Appeal No. 0120130240 (July 21, 2015).

Agency Failed to Comply with Commission's Order to Retroactively Place Petitioner into Position.  Upon finding discrimination, the Commission ordered the Agency, among other things, to offer Petitioner retroactive placement into a Labor Relations Specialist EAS-17/19 position.  In response to a petition for enforcement, the Commission found that the Agency had not complied with its prior order.  The record showed that the position was a career ladder position to the EAS-19 level, and the Commission agreed with Petitioner that he should have been retroactively placed at the EAS-17 level, and retroactively promoted 18 months after the appointment date.  Contrary to the Agency's assertion, Petitioner did not reject its offer but merely sought clarification as to the career ladder promotion.  Further, the Commission stated that Petitioner's appointment should be retroactive to the date the Selectee was officially placed into the position as reflected on the Selectee's Personnel Action form.  Complainant v. U.S. Postal Serv., EEOC Petition No. 0420140007 (February 19, 2015).

No Entitlement to Damages for Increased Tax Liability Resulting from Lump Sum Settlement.  Petitioner and the Agency entered into a settlement agreement in 1993 which provided that the Agency would, among other things, process Petitioner's application for disability retirement and remove references to disciplinary actions.  The Commission previously found that the Agency breached the agreement, and pursuant to the terms of the agreement, should reinstate Petitioner to his position.  The Commission later ordered the Agency to properly award Petitioner back pay and benefits he would have received for the time he should have been reinstated.  In response to the most recent petition for enforcement, the Commission found that Petitioner was not entitled to payment for the adverse tax consequences of receiving a lump sum pay award.  Petitioner conceded that the Agency provided him with back pay and other benefits.  The Commission has held that reimbursement of additional tax liability arising from a lump sum payment of back pay is a form of pecuniary compensatory damages because the purpose of such an award is to compensate Petitioner for the proximate injury caused by employment discrimination.  In this case, Petitioner's claim did not arise from a finding of discrimination, but from a determination that the Agency breached the 1993 settlement agreement.  Although the settlement agreement specifically provided that the Agency would reinstate Petitioner if it failed to abide by the terms thereof, the agreement did not contain a provision for compensatory damages or tax liability in the event of a breach.  Therefore, Petitioner was not entitled to pecuniary damages in the form of compensation to offset tax liability from the lump sum back pay payment.  Petitioner  v. Dep't Homeland Sec., EEOC Petition No. 0420140001 (December 5, 2014).

Back Pay Discussed.  The Agency found that Complainant was subjected to racial harassment for six years and constructively discharged.  As part of the award of relief, the Agency concluded that Complainant was entitled to back pay.  The Commission initially noted that Complainant had a duty to mitigate damages by making a reasonable good faith effort to find other employment, and amounts earnable with reasonable diligence will reduce an award of back pay.  In this case, the back pay award ran from the date of Complainant's constructive discharge until the date of the Agency's reinstatement order, a period in excess of four years.  The Agency, however, inexplicably determined that Complainant was entitled to back pay for only one year during which time he was receiving treatment from a therapist.  While the Agency appeared to find that Complainant was fit to work after that time, the record showed that Complainant was not fit to work even after the therapist's treatment ended.  The therapist specifically stated that Complainant would be able to work only very limited duties and the therapist recommended that he not work at all.  The therapist further stated that he did not expect Complainant's health to significantly improve, and the record indicated that Complainant continued to receive treatment throughout the relevant period.  Thus, the Commission determined that the Agency erred in limiting back pay to the period during which Complainant was receiving treatment from the therapist since the evidence did not support a conclusion that Complainant was fit to work after that time.  The Agency was ordered to recalculate back pay to include any period during which Complainant was substantially unemployable.  Complainant v. Dep't of Agric., EEOC Appeal No. 0120112546 (November 7, 2014).

Reinstatement and Front Pay Discussed.  An AJ found that the Agency discriminated against Complainant on the basis of disability and in reprisal for prior EEO activity when it failed to reasonably accommodate him and terminated him during his probationary period.  Complainant filed an appeal asserting that the AJ failed to award him reinstatement or front pay.  The Commission found that Complainant was entitled to be reinstated to the position he held at the time he was separated from the Agency, subject to successful completion of his probationary period.  The Commission concurred with the AJ that it was unclear whether Complainant would have succeeded in the position because his initial requests for accommodation in the form of an ergonomic chair and keyboard, voice recognition software and a flexible schedule were never provided.  Further, Complainant identified another supervisor willing to provide Complainant with adequate training and presumably effective accommodations.  The Commission concluded that, under the circumstances, the appropriate make-whole relief includes reinstatement to the position Complainant held at the time of his termination or a substantially equivalent position subject to the successful completion of the remaining months of his probation with effective reasonable accommodations.  The Commission stated that Complainant should be placed into a position where he receives appropriate training and reports to different supervisors.  The Commission determined that the facts of the case did not support an award of front pay, as there was no evidence Complainant's former position had been abolished or that reinstatement would necessarily result in an antagonistic relationship in light of the identification of another appropriate Supervisor.  Complainant v. Dep't of the Interior, EEOC Appeal No. 0120131556 (October 9, 2014).

Sanctions

Commission Issued Default Judgment for Complainant as Sanction.  Following a hearing, the AJ found that Complainant failed to prove that the Agency discriminated against him when it did not select him for a position.  Complainant filed an appeal with the Commission.  The Commission notified the Agency that it was required to submit a copy of the entire complaint file within 30 calendar days, and, after the Agency submitted some information, the Commission contacted the Agency about the missing documentation on four different occasions.  The Commission finally issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed, and warned the Agency that its failure to supply the documents could lead to sanctions.  The Agency never responded to the Notice.  Based on the conduct of the Agency in this case, the Commission found that the imposition of sanctions was warranted, and issued a default judgment in favor of Complainant.  The Commission noted that this default judgment was supported by the record that was supplied by the Agency, and drew an adverse inference that the missing documents would have revealed that discriminatory animus existed regarding Complainant's age.  The Commission further found that the Agency erred when it did not amend Complainant's complaint to include religion as a basis of discrimination, and drew an adverse inference that the missing documents would have revealed discriminatory animus existed regarding Complainant's religion.  The Agency was ordered, among other things, to offer Complainant the position, with appropriate back pay and benefits, conduct a supplementary investigation into Complainant's claim for compensatory damages, and evaluate its EEO program and the policy, process and practice it uses to maintain the official EEO record, including the complaint file and hearing record.  Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120083446 (September 28, 2015).

Dismissal of Hearing Request as Sanction Proper.  The Commission found that the AJ did not abuse his discretion when he dismissed Complainant's request for a hearing with prejudice.  While the Agency timely initiated discovery, Complainant never initiated discovery in the matter.  Further, even though Complainant was granted an extension to file prehearing submissions, he never submitted anything, and failed to respond to the Agency's motion.  Complainant also submitted a late response to the AJ's Order to Show Cause.  The Commission concluded that the evidence in the record regarding Complainant's counsel's long history of failing to comply with court-ordered deadlines, combined with Complainant's failure to respond to the AJ's Orders and deadlines, supported the AJ's decision to sanction Complainant by dismissing his request for a hearing.  The Commission further affirmed the Agency's decision finding no discrimination.  Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120131377 (September 17, 2015).

AJ's Award of Attorney's Fees as Sanction Affirmed.  The AJ ordered the Agency to compensate Complainant's attorney in the amount of $7,012.50 as a sanction for the Agency's failure to timely and fully produce discovery and comply with the AJ's orders.  Subsequently, the Agency issued a Final Order implementing the AJ's finding of discrimination and the corresponding remedy, but did not implement the AJ's Order on Complainant's Request for Sanctions.  On appeal, the Commission noted that the AJ did not award attorney's fees and costs to Complainant pursuant to 29 C.F.R. § 1614.501(e).  Instead, the AJ imposed monetary sanctions pursuant to 29 C.F.R. § 1614.109(f)(3).  Section 15 of the ADEA provides for a waiver of sovereign immunity, and monetary sanctions are "necessary and appropriate to carry out [the Commission's] responsibilities."  Further, an award of attorney's fees and costs as a sanction is substantively different from an award of attorney's fees to a prevailing party.  The AJ did not, as the Agency asserted on appeal, award attorney's fees "recast as sanctions."  The Commission found, therefore, that the AJ's award of monetary sanctions in this case was appropriate.   Complainant v. Dep't of the Army, EEOC Appeal No. 0720130011 (August 7, 2015).

Commission Sanctioned Agency for Failing to Timely Complete Investigation.  The Commission sanctioned the Agency for failing to timely investigate Complainant's complaint, stating that the Agency failed to begin, much less complete an investigation within the 180 day period specified in the regulations.  Further, the Agency did not provide any documentation or explanation for its failure to complete the investigation in a timely manner.  The Commission noted that the limited record was insufficient to support Complainant's claims, and, therefore, remanded the matter for an administrative hearing.  As a sanction, the Commission stated that the Agency was not allowed to use the affidavits or exhibits contained in the report of investigation to support either a motion to dismiss or a motion for summary judgment, and also could not rely upon the affidavits in lieu of witnesses who were unavailable to testify at the hearing.  Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120132260 (July 17, 2015).

Commission Affirmed AJ's Default Judgment for Complaint.  The AJ granted Complainant's Motion for Sanctions and issued a default judgment in Complainant's favor, stating that the Agency failed to provide the complete complaint file or show good cause for the delay in producing the complaint file.  The Commission's regulations afford broad authority to AJs for the conduct of hearings, including the inherent powers to conduct a hearing and to issue appropriate sanctions, which include issuing default judgments.  The Commission concluded that a default judgment against the Agency was not an abuse of AJ discretion, even though the mailing of the complaint file was just one day late, especially based on the history of the parties including the Agency's past pattern of misconduct. The Commission noted that the same AJ had imposed a default judgment against the Agency in Complainant's previous complaint for multiple Agency failures in the EEO process.  The Commission reduced the AJ's award of damages to $25,000 stating that the amount was consistent with awards in similar cases and the AJ's award of a higher amount to compensate Complainant for the duration and severity of the harm caused by the Agency's actions was impermissibly punitive in nature.  Complainant v. Dep't of the Air Force, EEOC Appeal No. 0720090009 (June 5, 2015).

Dismissal of Hearing Request as Sanction was Proper.  The Commission found that Complainant's medical and family circumstances did not excuse her untimely response to the AJ's order and the Agency's discovery requests, because she did not inform the AJ of these events prior to the dismissal of the hearing.  Complainant failed to respond to any of the Agency's discovery requests and did not timely respond to the AJ's Order to Show Cause.  The Commission therefore affirmed the AJ's decision to dismiss the hearing request.  The Commission also affirmed the Agency's finding of no discrimination.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120150295 (April 14, 2015).

Dismissal of Hearing Request with Prejudice as Sanction Not Proper.  Complainant advised the AJ that he wished to pursue a global settlement on all of his claims through mediation, including matters raised in a complaint that was still under investigation.  The AJ agreed to this approach, and established a deadline for the parties to submit either a settlement agreement or motion for dismissal, without prejudice, of the hearing request.  After the parties were unable to reach a settlement agreement and did not file a motion for dismissal, the AJ dismissed the hearing request with prejudice.  The Commission found that the AJ abused his discretion by sanctioning Complainant.  The record was clear that the agreed-upon purpose of the dismissal without prejudice was to allow the hearing request to be refiled upon completion of the investigation in the related complaint.  Further, Complainant explained that the Agency refused to agree to a dismissal without prejudice after the parties could not reach a settlement agreement.  The Commission stated that while Complainant should have notified the AJ of the Agency's refusal, the omission was not sufficient to justify dismissal of the hearing altogether.  At best, any failure was the joint responsibility of both parties and did not justify the imposition of a sanction on only Complainant.  Since the Commission found no prejudice to the Agency by Complainant's actions, it remanded the matter for a hearing.  Complainant v. Dep't of the Army, EEOC Appeal No. 0120130347 (March 31, 2015).

Dismissal of Hearing Request as Sanction Was Proper.  The AJ dismissed Complainant's hearing request as a sanction for failing to comply with an order to apprise the Agency in writing of her settlement demands.  On appeal, the Commission stated that when a party fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party.  Complainant stated that she presented the required information to the Agency representative, and submitted her attorney's telephone records, which appeared to show that her attorney was in contact with the Agency during the relevant time period. The Commission, however, was not persuaded by these documents, noting that Complainant's signed statement amounted to a bare assertion without supporting evidence, and the attorney's records did not reveal what was discussed during the telephonic contacts. Therefore, the AJ did not abuse her discretion when she dismissed Complainant's hearing request for failure to follow an order.  The Commission also found that Complainant failed to meet her burden to show that the Agency's legitimate reasons for denying her promotion were a pretext for discrimination.  Complainant v. Dep't of Commerce, EEOC Appeal No. 0120140776 (February 13, 2015); request for reconsideration denied, EEOC Request No. 0520150277 (July 20, 2015).

Sanctions Not Warranted Where Delay Due to Settlement Negotiations.  An AJ issued a decision sanctioning Complainant for causing delays in the hearing process.  According to the record, Complainant and the Agency attempted to reach a settlement, and on two occasions Complainant agreed to and then withdrew offers at the last minute.  In addition, Complainant cancelled mediation the day before it was scheduled to occur.  Complainant asserted that her former attorney made a settlement offer that included terms to which she did not consent.  In his decision, the AJ noted that he was not finding that the parties had a binding and enforceable agreement, but ordered the enforcement of the oral settlement agreement stating that it was a better alternative than canceling the hearing and ordering the Agency to issue a final decision on the merits of the claim.  The Agency declined to implement the AJ's sanction, finding that it was unduly harsh, and the Commission agreed with the Agency.  The Commission found that Complainant's actions, despite causing unnecessary inconveniences and delay, did not rise to the level of contumacious conduct such as to warrant the imposition of sanctions.  The Commission also noted that Complainant did not violate an AJ Order or act in bad faith.  The Agency was instructed to submit the matter for a hearing.  Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0720150005 (December 11, 2014).

Commission Sanctions Agency for Failing to Provide Complete Complaint File.  The Commission sanctioned the Agency for failing to provide the complaint file by issuing a default judgment in favor of Complainant.  The Commission notified the Agency that it was required to submit a copy of the entire complaint file in response to Complainant's appeal, and that the failure to do so could result in the Commission drawing an adverse inference.  When the Agency failed to respond, the Commission issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed, again requesting that the Agency provide the complete complaint file.  The Agency failed to comply with the terms of the Notice, and the Commission stated that there had been an excessively long delay with no meritorious explanation as to why the Agency did not submit the file.  Since the Commission was unable to properly determine whether the Agency's findings and conclusions were supported by the record, the Commission found that the most appropriate sanction was a default judgment for Complainant.  The Commission further determined that Complainant established a prima facie case of retaliation, and was entitled to individual remedies.  Complainant, aka Shena S., v. Broad. Bd. Of Governors, EEOC Appeal No. 0120110117 (November 6, 2014).

Commission Affirms Sanctions Imposed on Agency.  Complainant filed a complaint alleging the Agency discriminated against her on the basis of race and in reprisal, and, after a hearing Complainant discovered that the Agency obtained a draft transcript of two days of the hearing without providing a copy to Complainant.  Complainant requested sanctions based upon the Agency's actions.  The AJ, in finding that the Agency's counsel was trying to obtain an unfair tactical advantage, determined the appropriate sanction was to issue a decision in favor of Complainant finding that the Agency improperly denied her request for emergency flexiplace on a specific day based on race.  The AJ found that Complainant failed to establish discrimination with regard to two additional matters.  On appeal, the Commission affirmed the Agency's finding of no discrimination with regard to two issues and affirmed the AJ's decision to impose sanctions. The Commission found the AJ's issuance of a sanction was narrowly tailored to the Agency's actions because the Agency violated the spirit of the Commission's order that transcripts be provided to both parties to afford them "equal footing."  The Commission found the Agency's actions were deceptive, creating an inference that the Agency was trying to obtain an unfair advantage during the hearing.  Further, the Agency had no right to early access to the hearing transcript.  The nature of the Agency's action was egregious, and the Agency did not provide an explanation to the AJ as to why it obtained the draft transcript.  The Commission found a significant prejudicial effect from the Agency obtaining a rough draft of the transcript that could have afforded the Agency an unfair advantage in preparing for the examination of key witnesses, and had a substantial effect on the integrity of the EEO process. Complainant v. Pension Benefit Guar. Corp., EEOC Appeal No. 0720130001 (October 9, 2014).

Settlement Agreements

Settlement Agreement Invalid Due to Lack of Consideration.  The Commission found the settlement agreement invalid as lacking consideration where the Agency agreed to research Complainant's personnel record to determine if Complainant was eligible to be rehired.  If the Agency was able to confirm eligibility, it would clear Complainant's record and indicate he was eligible.  The Commission stated the Agency failed to incur a legal detriment, and the applicable provision of the agreement was based on generalizations and contingencies.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120150588 (April 14, 2015).

Breach of Settlement Found.  Complainant alleged that the Agency breached a settlement agreement when it did not provide him with a neutral letter of recommendation or expunge his termination from all of his personnel records.  The Commission agreed that the Agency breached the agreement.  While the Agency asserted that it removed the reference to Complainant's termination from his Official Personnel Record, Complainant's Manager continued to maintain information regarding the termination in a management file which was inconsistent with the terms of the agreement.  The Commission rejected the Agency's assertion that a subsequently signed release relieved it from complying with the agreement, stating that the language of the agreement clearly showed that the parties intended to be bound by its terms which constituted the "entire agreement."  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130621 (March 19, 2015).

Breach of Settlement Found.  Complainant and the Agency entered into a settlement agreement which provided that the Agency would cancel a two-day suspension if Complainant did not commit any misconduct that warranted discipline before a specific date.  The Commission found that the Agency breached the agreement when it failed to cancel the suspension.  While the Agency indicated that Complainant was under investigation for misconduct that occurred prior to the specified date, a logical reading of the relevant settlement provision required the Agency to remove the suspension unless disciplinary action was actually issued before the specified date.  To find otherwise would allow the Agency to never comply with the agreement by keeping the subsequent matter "under investigation."  The Commission found that the Agency had ample time to decide if the misconduct warranted disciplinary action prior to the deadline in the settlement agreement.  Therefore, the Agency was ordered to cancel the suspension.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120150057 (February 20, 2015); request for reconsideration denied, EEOC Request No. 0520150298 (July 11, 2015).

Breach of Settlement Found.  The parties entered into a settlement agreement that provided, among other things, that the Agency would change Complainant's performance rating from "unsuccessful" to "fully successful."  There was no dispute that the Agency changed the rating in Complainant's official personnel file.  The Commission found, however, that the Agency breached the agreement when it retained the original rating in an "unofficial" file and used that rating during the investigation of an unrelated EEO complaint.  The Agency acknowledged that it retained the "unofficial" rating, and the Commission stated that it was reasonable for Complainant to expect that the original rating would not be used or referenced by the Agency.  Complainant v. Dep't of the Army, EEOC Appeal No. 0120142643 (December 22, 2014), request for reconsideration denied, EEOC Request No. 0520150178 (April 29, 2015).

Stating a Claim

Single Racial Slur Stated Viable Claim of Discrimination.  The Commission found that Complainant's complaint that his supervisor used a racial slur on one occasion stated a viable claim of discrimination.  The remark was reflective of a historically offensive slur toward Complainant's race, and the Commission has previously held that a limited number of historically racial epithets or slurs may constitute discriminatory harassment.  Complainant v. Dep't of the Army, EEOC Appeal No. 0120151576 (September 18, 2015); see also Complainant v. Dep't of the Army, EEOC Appeal No. 0120151118 (May 22, 2015) (Complaint's allegation that a co-worker used a racial slur stated a viable claim of discrimination.  A single incident of historically offensive racial slurs may create a hostile work environment).

Agency Improperly Addressed Underlying Merits When Dismissing the Claim.  The Agency improperly dismissed Complainant's complaint alleging that it denied him reasonable accommodation for a period of four months.  While the Agency stated that Complainant ultimately bid on a position with the hours and days off he needed, and that the half-hour time difference was "minor," such assertions address the merits of the claim without a proper investigation as required by the regulations.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120151809 (September 15, 2015); see also Complainant v. Office of Pers. Mgmt., EEOC Appeal No. 0120142797 (February 9, 2015) (in its decision dismissing Complainant's issue concerning insurance coverage, the Agency improperly addressed the merits of the underlying claim and made several assertions regarding Complainant's health insurance plan.  The first issue in the analysis of this type of claim of discrimination is whether the challenged term or provision of the employer provided health insurance plan is, in fact, a "disability-based distinction," and therefore, evidence, rather than mere assertions, must be gathered during an investigation concerning the actual provisions at issue); Complainant v. Dep't of the Army, EEOC Appeal No. 0120150452 (March 17, 2015) (Complainant's allegation that he was not promoted stated a viable claim of discrimination.  The Agency's assertion that his name was not forwarded to the Selecting Official addressed the merits of the claim and was irrelevant to the procedural issue of whether he stated a viable claim); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133369 (June 4, 2015) (Complainant alleged an injury-in-fact, loss of seniority privileges, and the Agency erred in addressing the merits of the complaint without a required proper investigation).

Complainant Raised Actionable Claim of Harassment.  Complainant filed a complaint alleging sexual harassment, specifically that a co-worker (C1) told employees that Complainant was gay, frequented gay bars, showed pictures of Complainant in a gay bar, and made derogatory comments to him when she passed him at work.  The Commission noted that sexual orientation discrimination allegations set forth a valid claim of sex discrimination under Title VII and should be processed accordingly.  Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120151170 (August 14, 2015).

Improper Dismissal for Collateral Attack on Another Administrative Process. Complainant alleged harassment when his Branch Chief and the Agency's Office of Professional Responsibility ("OPR") reviewed his caseload and conducted interviews regarding his work which resulted in unwarranted scrutiny by management and less favorable assignments.  The Agency dismissed the complaint, reasoning that Complainant was not aggrieved and that the complaint constituted a collateral attack on an OPR investigation.  On appeal, the Commission held that the allegations of ongoing harassment were sufficient to state a claim. The Commission stated that because Complainant was not challenging an OPR adjudicatory determination, and because his complaint included actions of the Branch Chief that may have resulted in the OPR investigation, the complaint did not constitute an impermissible collateral attack.  Complainant v. Court Serv. & Offender Supervision Agency, EEOC Appeal No. 0120150462 (July 21, 2015); see also Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142821 (January 16, 2015) (a fair reading of the complaint and EEO counseling material showed that the claim concerned the removal action, and while adjudication of the claim would by necessity involve an examination of the OIG investigation, the complaint did not constitute a collateral attack on the investigative process); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142813 (January 22, 2015) (Complainant's allegation that she was treated more harshly than similarly situated employees when subordinates' complaints about her were referred to the OIG for investigation did not constitute a collateral attack on the OIG process.  Instead, Complainant asserted that complaints about a similarly situated white manager were informally resolved by the Agency); Complainant v. Dep't of Justice, EEOC Appeal No. 0120141843 (October 7, 2014) (while the Agency asserted that the matter constituted a collateral attack on the Special Investigative Services (SIS) process, Complainant worked in SIS and alleged that a male employee who committed a similar mistake was treated more favorably than she, thereby making the investigation an issue of performance/conduct); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141889 (November 6, 2014) (A fair reading of the formal complaint and related EEO counseling materials revealed that Complainant alleged that she was retaliated against when she was accused of misconduct and improper performance of her official duties.  Thus, the investigation at issue was in the nature of a management investigation into a conduct issue of an employee and was not a collateral attack on the Office of Inspector General's investigative process.  The Commission stated that being referred for an investigation by the OIG stated a viable claim of unlawful reprisal).

Complainant Stated Viable Claim of Disability Discrimination.  Complainant, who had a disabled parking permit, alleged that the Agency eliminated one of three handicap parking spaces in order to provide parking for a supervisor.  The Agency erred when it focused on only one incident in which Complainant was instructed to move his vehicle from the former handicap space and dismissed the matter for failure to state a claim.  Complainant raised a viable claim of disability discrimination when the Agency denied him a reasonable accommodation.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120151315 (July 17, 2015).

Agency Did Not Exercise Sufficient Control over Student to Qualify as Employer.  The Agency did not exercise sufficient control over Complainant, a participant in a Naval Postgraduate School program, to qualify as her employer.  Complainant received a scholarship managed by a non-government entity, and was a full-time student during the period in question.  While completing an internship program, Complainant did not perform work integral to the Agency, was not required to have a certain level of skill, and did not receive any compensation from the Agency.  Complainant v. Dep't of Def., EEOC Appeal No. 0120131331 (July 15, 2015).

Reprisal Claim Stated.  The Commission found that the Agency improperly dismissed Complainant's complaint for failure to slate a claim.  In her formal complaint, Complainant alleged that she was subjected to unlawful retaliation when an Agency official made false allegations against her, threatened her with discipline, and changed her training schedule.  The Commission found that the alleged incidents were reasonably likely to deter Complainant or others from engaging in protected activity.  Complainant v. Dep't of the Army, EEOC Appeal No. 0120151034 (May 21, 2015).

Bearded Employee Referred to as Terrorist States a Claim.  Complainant alleged that he was subjected to religious discrimination when the Agency denied him an accommodation by keeping him in non-uniform duty because of his beard, and his supervisor referred to him as a terrorist during a meeting between management and union members.  The Commission found that Complainant alleged that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy and, therefore, stated an actionable claim.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120150911 (May 19, 2015).

Applicant Stated Viable Claim of Discrimination.  Complainant, a job applicant, filed a formal EEO complaint alleging that he was denied an opportunity to fairly compete for an advertised position because of his sex.  Complainant clearly stated a viable claim of discrimination, and had standing to file an EEO complaint as an applicant for federal employment.  Complainant v. Dep't of the Navy, EEOC Appeal No. 0120141487 (April 23, 2015).

Complaint and Pre-complaint Documents Reflect Actionable Claim.  A fair reading of the complaint and pre-complaint documents, as well as Complainant's statement on appeal showed that Complainant was in essence alleging age discrimination with regard to the change in his schedule.  While the basis may not have been expressly articulated, Complainant emphasized his age and seniority several times.  Additionally, the change in Complainant's non-scheduled day off addressed a personal loss or harm to a term, condition or privilege of employment.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120150380 (March 10, 2015); see also Complainant v. Dep't of the Navy, EEOC Appeal No. 0120151317 (July 8, 2015) (the Commission found, from a review of the complaint and EEO Counselor's report, that Complainant had alleged a pattern of harassment including her supervisor's publicly mocking her hearing impairment); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120150833 (April 30, 2015) (a review of the pre-complaint and formal complaint documentation, as reinforced by Complainant's appellate statements, showed that Complainant alleged a pattern of harassment with sufficient clarity and specificity); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142121 (October 7, 2014) (a fair reading of Complainant's complaint and pre-complaint documents showed that the claim was not comprised exclusively of the one matter identified by the Agency, but instead raised a pattern of discriminatory harassment, including three other instances in which his supervisor yelled at him for various things).

Nature of Alleged Comments Sufficiently Severe to State Viable Claim of Harassment.  Complainant's claim that, on one occasion, a co-worker called him a "homo," and said Complainant was "living in sin" and would go to hell stated a viable claim of sex-based harassment.  The hateful nature of the alleged comments, coupled with the alleged lack of adequate response from management was sufficiently severe to require further investigation.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133382 (February 11, 2015).

Agency Improperly Dismissed Claim as Collateral Attack on OWCP Process.    Complainant's allegation that the Agency discriminated against him when it told him it had no work for him after he refused to accept a modified job offer stated a viable claim.  A fair reading of the complaint showed that it was not a collateral attack on the OWCP process, but rather a claim of a denial of reasonable accommodation of Complainant's disability-related medical restrictions.  Complainant asserted that he was already working in a modified position which accommodated his restrictions, but the Agency stopped accommodating him when he did not accept the offer of a new position.  The Commission noted that the duty to accommodate is independent of whether OWCP decides an employee should be offered a specific position.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120150024 (February 6, 2015); see also Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120150197 (February 12, 2015) (a fair reading of the complaint and EEO counseling report shows that the Complainant was asserting that the job offer made to him did not comply with his medical restrictions, and, therefore, Complainant was arguing that the Agency refused to accommodate him.  The Agency erred in defining the claim as a collateral attack on the OWCP process); but see, Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120150839 (May 1, 2015) (the Agency properly dismissed Complainant's complaint alleging that he did not receive continuation of pay (COP) for a compensable work-related injury, noting that a complainant cannot use the EEO process to collaterally attack the OWCP adjudicatory process, which is the proper forum for such challenges); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142865 (January 22, 2015), request for reconsideration denied, EEOC Request No. 0520150414 (November 12, 2015). (The Agency properly dismissed Complainant's complaint alleging that the Agency controverted her accident claim with the OWCP.  The Commission found that Complainant was attempting to use the EEO process to address an issue which had already been decided in her favor in the OWCP forum.  The proper forum for contesting the outcome of an OWCP claim was with the Department of Labor); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142586 (December 30, 2014) (Complainant's allegation that he did not receive all of the continuation of pay he requested in his OWCP application failed to state a viable claim within the EEO process.  Complainant did not allege that any action by the Agency caused him to receive a lower award, and it was improper for Complainant to attempt to collaterally attack actions which occurred during the OWCP process).

Complainant Stated a Viable Claim of Discrimination.  The Agency improperly dismissed Complainant's claim of discrimination on the grounds that she did not apply for the position cited in her formal complaint.  While Complainant conceded that she did not apply for the position, she alleged that the qualifications for the position detailed in the vacancy announcement were changed so that she and other African American females in the office were ineligible.  Complainant stated that she performed the duties of the position in an acting capacity, and asserted that she was actively discouraged from applying for the position based on a discriminatory motivation.  Therefore, Complainant stated a viable claim.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120143106 (January 30, 2015).

Complainant Stated a Viable Claim of Sex Stereotyping.  The Commission found that Complainant's allegations of harassment stated a viable claim of sex discrimination.  The fact that Complainant characterized the basis of discrimination as sexual orientation did not otherwise defeat a valid claim.  Complainant alleged a plausible sex stereotyping case which would entitle him to relief under Title VII.  Complainant alleged that he was subjected to a hostile work environment including co-workers making sexually suggestive comments to him, using a high pitched voice when talking to Complainant, and asking Complainant if he was wearing a dress and high heels.  The Commission found that the claim of harassment was based upon the perception that Complainant did not conform to gender stereotypes of masculinity, and therefore, stated a claim of sex discrimination under Title VII.  Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120387 (January 28, 2015); see also Complainant aka Hal T., v. Consumer Fin. Prot. Bureau, EEOC Appeal No. 0120141108 (December 18, 2014), request for reconsideration denied, EEOC Request No. 0520150209 (May 19, 2015) (Complainant's allegation that the Agency subjected him to discrimination and harassment because he was gay stated a viable claim of sex-stereotyping under Title VII.  Complainant stated that he is openly gay and shares details of his family life in the same manner as his heterosexual co-workers.  Thus, Complainant alleged that he was treated differently because he did not conform to the stereotype that a man should not be romantically partnered with a man or should not acknowledge he is gay to co-workers.  Despite the Agency's assertions that the claims could not be adjudicated through the EEO process, such allegations stated cognizable claims and employees who believe they were discriminated against because of their sexual orientation should be counseled concerning their right to file complaints under the EEO process).

Complainant Stated a Viable Claim of Retaliation.  Complainant's claim that the Agency subjected her to a pre-disciplinary interview and intimidated her by discussing evidence from a prior EEO complaint stated a viable claim of retaliatory harassment.  The Commission found that the actions raised in the complaint would be reasonably likely to deter Complainant or others from engaging in protected activity.  In addition, Complainant provided evidence on appeal that the interview resulted in a 14-day suspension.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142959 (January 22, 2015).

Agency Improperly Defined Claim of Harassment.  The Agency improperly limited Complainant's claim to only two specific incidents.  A fair reading of the complaint, EEO counseling report, and statement submitted on appeal indicated that Complainant was alleging that she was subjected to ongoing harassment by a co-worker because of her race that included threats of physical violence.  Complainant also stated that she reported the matter to management but no action was taken.  Therefore, viewing the claim in the light most favorable to Complainant, the allegations were sufficient to state a viable claim of harassment.  Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120142842 (January 16, 2015).

Agency Improperly Dismissed Claim of Retaliation.  Complainant's assertion that the Agency disclosed private and confidential records from an EEO proceeding, made threats against him, issued warnings, and harassed him stated a viable claim of retaliation.  A fair reading of the complaint, in conjunction with the related EEO counseling report, revealed that Complainant was alleging that the Agency's Special Counsel transmitted a confidential document from another employee's EEO complaint to an outside arbitrator in order to discredit Complainant.  The Commission found that the actions cited would create a chilling effect on Complainant's and other employees' pursuit of the EEO process such that Complainant's allegations stated a cognizable claim.  The Commission further found that Complainant was not making an impermissible collateral attack on the grievance process.  Complainant v. Pension Benefit Guar. Corp., EEOC Appeal No. 0120143006 (January 15, 2015); request for reconsideration denied, EEOC Request No. 0520150231 (July 21, 2015).

Agency Improperly Fragmented Claim of Ongoing Harassment.  The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment by dismissing the complaint for failure to state a claim.  A fair reading of the complaint showed that Complainant claimed she was subjected to a series of related incidents of sexual harassment including being grabbed and shaken, sent to another location, and not allowed to make a presentation.  Complainant stated that after she reported the initial incident, she was subjected to a hostile work environment.  These matters taken together stated an actionable claim of harassment.  Complainant v. Dep't of Justice, EEOC Appeal No. 0120140381 (January 9, 2015); see also Complainant v. Dep't of Def., EEOC Appeal No. 0120150732 (April 30, 2015) (the Agency improperly considered each allegation in a piecemeal fashion dismissing each for different reasons rather than considering the cumulative effect of the nine allegations, which when viewed in the light most favorable to Complainant set forth an actionable claim of discriminatory harassment).

Complaint Stated a Viable Claim of Hostile Work Environment.  Complainant's claim that the Agency discriminated against her when her Supervisor threatened her with pre-disciplinary interviews stated a viable claim of hostile work environment.  Complainant stated that she was being singled out in her all-male office, and other employees who committed the same infractions were not subjected to pre-disciplinary interviews or discipline.  The Commission noted that while interviews by themselves may not state a claim, in this case Complainant stated that they were being used to harass her because of her sex.  Complainant's claim that a Manager rescinded a grievance settlement did not state a separate claim under the EEOC's regulations, the action may be considered as possible evidence in the harassment claim.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142642 (January 6, 2015).

Claim that Agency Rescinded Offer of Employment Stated Viable Claim.  Complainant's allegation that the Agency rescinded an offer of employment stated a viable claim of national origin discrimination.  The issue addressed a claim of personal injury or harm to a term, condition or privilege of employment, and the Agency's assertions that Complainant failed to meet suitability requirements addressed the merits of the claim without a proper investigation as required by the Commission's regulations.  Further, the Agency failed to establish that the claim constituted a collateral attack on another forum.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120141044 (December 18, 2014).

Complainant Raised Viable Claim of Ongoing Harassment Based on Sex and Reprisal.  The Commission found that the Agency characterized Complainant's complaint too narrowly and improperly dismissed it for failure to state a claim.  The complaint was not limited to one incident involving a specific management official, but included allegations that other managers removed some of his responsibilities, assigned new duties to his unit and denied his travel requests.  The broader reading of Complainant's allegations was clearly sufficient to state a claim of ongoing hostile work environment harassment.  In this case, Complainant asserted that a management official sent e-mails to senior officials accusing him of committing a crime, and the Commission noted that in certain instances, the damage to Complainant's reputation may be sufficient to invoke the protections of the EEO process even absent any specific adverse actions by the Agency.  Complainant v. Dep't of the Interior, EEOC Appeal No. 0120142360 (December 16, 2014).

Complaint Alleged Viable Claim of Retaliation.  The Commission found that Complainant's claim that his supervisor wrote him up on three occasions stated a viable claim of retaliation.  The Agency asserted that the write-ups were merely memoranda for the record and kept in the supervisor's files.  The Commission concluded, however, that such memoranda for the record, regardless of whether they were part of Complainant's personnel file, would be reasonably likely to deter a person from engaging in protected EEO activity especially in light of the frequency described by Complainant.  Complainant v. Dep't of the Army, EEOC Appeal No. 0120142439 (November 28, 2014).

Complaint Alleged Viable Claim of Discrimination.  Complainant alleged that the Agency discriminated against him on the basis of age when it requested that he provide confidential medical information that it did not request from other similarly situated employees.  The Commission concluded that Complainant, in essence, was alleging that he was subjected to an improper request for medical information, and the Agency improperly dismissed the matter for failure to state a claim.  The Agency's assertion that the request was not improper went to the merits of the complaint, and was not relevant to the procedural issue of whether Complainant set forth an actionable claim.  Complainant v. Dep't of the Army, EEOC Appeal No. 0120133299 (November 19, 2014), request for reconsideration denied, EEOC Request No. 0520150212 (May 13, 2015).

Complaint Alleged Viable Claim of Disability Discrimination.  The Commission found that Complainant's claim that the Agency discriminated against her when management did not assist her down the stairs during a fire drill and dismissed her concerns about the incident stated a viable claim of disability discrimination.  By raising a concern regarding her ability to safely exit the building during a fire drill, Complainant addressed a personal loss or harm regarding a term, condition or privilege of employment for which there was a remedy.  Complainant v. Dep't of Educ., EEOC Appeal No. 0120142519 (October 30, 2014).

Agency Improperly Dismissed Claim of Harassment Based on Race and Color.  Complainant alleged that management subjected him to ongoing harassment on the basis of his race and color, including yelling at him in the presence of co-workers, treating him with disrespect, issuing him a letter of warning, referring to him as "boy," and stating that Complainant was "getting too big for his britches."  The Commission found that Complainant's allegations, including the use of "boy" a historically degrading term used against African American men, stated a viable claim of racial harassment that required further investigation.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142501 (October 29, 2014).

Agency Improperly Dismissed Complainant's Claim of Per Se Violation of Rehabilitation Act.  Complainant's allegation that the Agency's Legal Division requested and obtained a copy of his medical file raised an allegation of a per se violation of the Rehabilitation Act.  The Agency's assertion that the action was appropriate from a "need-to-know" perspective was not relevant to the procedural issue of whether Complainant set forth an actionable claim.  Complainant articulated the claim with sufficient clarity and addressed a personal loss or harm to a term, condition or privilege of employment for which there was a remedy.  Complainant v. Dep't of Transp., EEOC Appeal No. 0120142249 (October 14, 2014).

Claim Alleging Dissatisfaction with the EEO Process Properly Dismissed.  The Commission affirmed the Agency's dismissal of the complaint on the grounds that its sole claim concerned Complainant's dissatisfaction with the processing of a previously filed complaint.  The Commission noted that dissatisfaction with the EEO process must be raised within the underlying complaint, not a new complaint.  Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120121927 (August 28, 2015).

Complaint Properly Dismissed as Collateral Attack on FMLA Process.  Complainant's allegations that the Agency improperly designated leave he took as FMLA fell under the authority of the Department of Labor, and it was inappropriate to use the EEO process to collaterally attack actions that occurred during the FMLA process.  The Commission also noted that, as a remedy, Complaint was requesting that his FMLA leave be restored.  To the extent Complainant was subsequently alleging that the Agency was denying him reasonable accommodation, the Commission advised Complainant to contact an EEO Counselor if he wished to pursue that matter through the EEO process.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120151035 (June 2, 2015); but see Complainant v. Dep't of the Army, EEOC Appeal No. 0120150845 (May 1, 2015) (Complainant was actually alleging that her supervisor was retaliating against her by requesting more information regarding her FMLA leave request at the last minute and the action was part of a pattern of retaliatory harassment. The Commission has a policy of considering retaliation claims broadly and that such claims need not be limited to actions affecting a condition of employment).

Complaint Regarding Actions Related to Representative Failed to State a Claim.  The Commission found that Complainant's claims that while serving as a representative, he was denied an extension of time to review a report of investigation, and that the Agency intimidated another employee to change from Complainant to another representative failed to state a claim.  Complainant himself did not suffer harm with respect to a term, condition, or privilege of employment.  Complainant v. Gen. Serv. Admin., EEOC Appeal No. 0120150322. (April 16, 2015).

Agency Properly Dismissed Claim Regarding Denial of Security Clearance.  The Agency properly dismissed Complainant's claim that it denied his security clearance.  While the Commission is not precluded from determining whether the requirement to maintain a security clearance was applied in a discriminatory manner, Complainant's claim directly challenged the substance of the Agency's security clearance determination, and Complainant was seeking to have his clearance reinstated.  Complainant v. Dep't of the Army, EEOC Appeal No. 0120150270 (April 1, 2015).

Agency Properly Dismissed Claim Regarding Union Activity.  The Agency properly dismissed Complainant's claim that it undermined his position as a Union Director and failed to notify him of certain positions.  The proper forum for Complainant to have raised his challenges to actions involving his role as a Union Director was within the processes provided for under the collective bargaining agreement and statutes concerning union rights.  It was inappropriate to use the EEO process to collaterally attack actions involving the collective bargaining process.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120150009 (February 6, 2015); see also

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142489 (October 23, 2014) (the claim involved an issue relating to union representation and was a collateral attack on a separate forum which should be raised within the grievance process); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142170 (October 29, 2014) (Agency properly dismissed complaint alleging that Complainant was not included in a settlement agreement with the union.  An issue relating to a union settlement agreement constituted a collateral attack on a separate forum and Complainant should raise the matter within the grievance process); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120142347 (November 5, 2014) (Complainant's allegation concerning the Agency's compliance with a grievance decision was a collateral attack on another administrative proceeding and failed to state a claim within the meaning of the Commission's regulations); Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120142257 (November 7, 2014) (the Agency properly dismissed the complaint because it concerned union matters.  Complainant's allegation that the Agency failed to act in response to her formal grievance should be raised with the Federal Labor Relations Authority, and the relief she was seeking, removal of union officials and actions to enforce accountability of the union confirmed that her claim was against the union.  Finally, while Complainant asserted that co-workers accused her of making racial statements, the Commission has held that challenges to an EEO complaint filed by another employee would have a chilling effect on the EEO process and there is no remedial action available when another individual files an EEO complaint); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142298 (December 5, 2014) (Complainant's allegations concerning actions of the union vice president in his union role towards her as a fellow union officer do not state a claim and were properly dismissed.  None of the alleged events directly related to a term, condition or privilege of Complainant's employment and Complainant did not name any Agency management officials.  In addition, Complainant's allegations concerning criminal charges brought against her constituted a collateral attack on another proceeding and should be raised within the criminal court system); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120150140 (February 23, 2015) (Complainant's claim that he lost a position in a union election allegedly due to posters on display at the worksite did not allege a loss or harm to a term, condition or privilege of employment, and was properly dismissed for failure to state a claim); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120151326 (July 10, 2015) (collateral attacks to other administrative proceedings were not cognizable, and Complainant should raise her concerns with the grievance determination within the grievance process itself, and not through the EEO process).

Summary Judgment

Summary Judgment Affirmed.  Complainant filed an EEO complaint alleging that the Agency retaliated against her when managers approached Complainant on her route about her performance, and she was ultimately told that her transitional appointment would not be renewed. Following an investigation, the AJ issued a decision without a hearing finding no discrimination.  On appeal, the Commission found that there were no genuine issues of material fact in dispute and the record was adequately developed.  Therefore, the Commission concluded that the AJ's issuance of a decision without a hearing was appropriate.  With respect to the merits of the claims, the Commission found that the Agency articulated legitimate, non-discriminatory reasons for its actions.  Responsible management officials testified to multiple performance problems on Complainant's part that were ongoing despite correction.  Complainant failed to prove that the Agency's stated reasons were a pretext for discrimination.  Accordingly, the Commission affirmed the Agency's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140414 (April 21, 2015).

Decision on Summary Judgment Affirmed.  The Commission affirmed the AJ's decision on summary judgment finding no discrimination where the Agency ordered Complainant to undergo a fitness for duty examination.  The record supported the AJ's finding that, even assuming Complainant established a prima facie case, he failed to present evidence to rebut the Agency's legitimate nondiscriminatory reasons for its action.  Specifically, Complainant was sent for a fitness for duty examination following reports that he came to work with gobs of cream on his face and cotton sticking out of his ears; was observed having two incidents of road rage and one incident of losing control of his vehicle; had complaints from citizens, co-workers and the police about his unsafe behavior and reckless driving; and was seen returning from deliveries with bloody hands from stuffing mailboxes.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133021 (April 15, 2015); request for reconsideration denied, EEOC Request No. 0520150364 (October 1, 2015).

Summary Judgment Affirmed.  The Commission affirmed the AJ's decision on summary judgment finding that the Agency did not retaliate or discriminate against Complainant when it did not select her for the position of Deputy Ethics Counselor.  While Complainant argued that the Selecting Official should have known of her prior EEO activity, the AJ assumed that Complainant established a prima facie case of retaliation.  Therefore, the matter was not a material issue of fact.  Further, the record was adequately developed, and the Agency articulated legitimate, nondiscriminatory reasons for choosing the Selectee, specifically he had more experience doing similar work, had a law degree, and performed better during the interview.  Complainant failed to offer any evidence to show that the Agency's stated reasons for not selecting her were not worthy of credence or motivated by discriminatory or retaliatory reasons.  Complainant v. Dep't of the Interior, EEOC Appeal No. 0120121833 (March 4, 2015).

AJ's Issuance of Decision Without a Hearing Was Proper.  The Commission found that the AJ's decision on summary judgment in favor of the Agency was proper.  According to the record, Complainant was involved in a heated exchange with a co-worker.  One month later, while meeting with a Supervisor to discuss what disciplinary action he might face, Complainant made a gesture with his hand as if he had a gun, and stated "Pow, pow, pow…that's how I would expect an incident to be handled at the U.S. Postal Service."  Complainant was then terminated.  The Commission noted that while Complainant asserted that the AJ did not acknowledge his opposition to the Agency's motion for summary judgment, the AJ specifically referenced Complainant's opposition in her decision.  Further, the Commission found that Complainant essentially admitted making a "gun gesture" and uttering the words that led to his termination.  The Commission stated that Complainant's intent was not material to proving discrimination, and management witnesses provided clear and unrebutted statements as to why they were fearful of a gun gesture and reference to the Postal Service.  Complainant failed to prove that the Agency's actions were motivated by discriminatory animus, and the Commission found no basis to disturb the AJ's decision.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120132641 (November 13, 2014).

Decision on Summary Judgment Reversed.  The Commission found that the record was not adequately developed for the AJ to have issued a decision on summary judgment.  The record contained no testimony or documentary evidence concerning all of the alleged incidents of harassment raised by Complainant in his formal complaint, and the Agency only investigated four disability-related incidents.  The Agency did not investigate incidents related to Complainant's claim of national origin or age-based harassment.  In addition, the AJ made no factual determination of what particular functions of Complainant's position were essential and the record did not contain any evidence which would help address that issue.  Further, the AJ erred in concluding that there was no genuine issue of material fact, and appeared to have inappropriately weighed the evidence in concluding that Complainant's medical documentation was unconvincing and contradicted by a supervisor's testimony that Complainant was well enough to contact him during the period at issue in the complaint.  Therefore, the Commission remanded the matter for an administrative hearing.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111921 (June 19, 2015).

Decision on Summary Judgment Reversed.  Complainant alleged that the Agency discriminated against him when he was subjected to harsher scrutiny than his co-workers, and removed from his detail assignment.  Following an investigation, the AJ issued a decision without a hearing finding no discrimination.  On appeal, the Commission found that there were genuine issues of material fact in dispute and the record was inadequately developed.  The Commission noted that the AJ effectively made credibility determinations in favor of the Agency and against Complainant in the presence of conflicting statements and documentation concerning Complainant's performance.  The Commission determined that there were simply too many unresolved issues which required an assessment as to the credibility of management officials, co-workers, and Complainant, and which required the determination whether discriminatory animus, a factual finding, was the real reason for the Agency's actions.  Therefore, the Commission concluded that judgment as a matter of law for the Agency should not have been granted.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120123143 (July 2, 2015).

Decision on Summary Judgment Reversed.  Complainant, who has hearing loss in one ear, filed a formal complaint alleging discrimination when the Agency placed him on restricted duty status and gave him a lower performance rating.  On appeal from an AJ's decision on summary judgment, the Commission found that there were genuine issues of material fact with regard to whether the use of a hearing aid would be a reasonable accommodation during a hearing test, and if so, whether it would eliminate the risk of harm or reduce it to an acceptable level.  The Agency asserted that Complainant posed a direct threat due to his hearing loss because as a Special Agent, the ability to localize sounds in the field is essential to the performance of his law enforcement duties.  The Agency further contended that a hearing aid could not be a reasonable accommodation because it could break, malfunction, or become dislodged during a law enforcement scenario.  The Commission stated, however, that the record contained evidence that could undermine the Agency's arguments.  Specifically, the record showed that the Agency allows individuals with vision impairments to wear glasses during medical examinations and in the field.  The Agency acknowledged the conflicting vision and hearing policies but was not able to rectify the conflict.  Therefore, the Commission concluded that a hearing was necessary.  Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120110248 (February 20, 2015).

Decision on Summary Judgment Reversed.  The Commission found that the AJ erred when she concluded that there was no genuine issue of material fact in the case.  In finding no discrimination, the AJ relied on the Agency's reasons for its actions, but failed to analyze evidence which could dispute the Agency's stated reasons.  For example, while the Agency alleged that Complainant's request for work at home was denied because it did not have a formal "work at home" policy, the Commission found that several other individuals within the Agency were permitted to work at home, casting doubt on the Agency's motives for denying Complainant's request.  Furthermore, while the Agency argued that Complainant was relocated to another office for operational needs, Complainant asserted that an official told her that other employees were afraid of her following her hospitalization.  The Commission also noted that the AJ failed to consider Complainant's claim of discrimination and harassment based on sex stereotyping or the Agency's disclosure of her medical information.  Thus, the Commission found that there were many unresolved issues which required a thorough assessment following an administrative hearing.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120120413 (February 11, 2015).

Decision on Summary Judgment Reversed.  Complainant worked as a Letter Carrier in a facility which for several decades delivered mail on Sunday, but not Saturday, in order to accommodate the Saturday day of worship for the large Seventh Day Adventist population in the city.  In 2011, the delivery schedule was changed so mail would be delivered on Saturday and not on Sunday.  Complainant notified the Officer-in-Charge (OIC) that he was a Seventh Day Adventist and could not work on Saturdays.  He requested the OIC provide reasonable religious accommodation that would keep him from being required to work on Saturdays.  The OIC informed Complainant he could request annual leave or leave without pay on Saturdays but that the collective bargaining agreement required these requests be approved in order of the requestor's seniority.  The OIC also suggested Complainant explore trading schedules with other carriers.   The Commission found that summary judgment was not appropriate in the case because genuine issues of material fact existed which could only be resolved through a hearing. Specifically, the Commission found significant issues of material fact including whether it would impose an undue hardship on the Agency to revisit its decision to change the schedule, whether the Agency's efforts to provide Complainant with a religious accommodation were adequate and effective, and what the impact of the Agency's agreements with its union had on this matter and whether efforts could have been made to negotiate exceptions with the union.  The Commission remanded the complaint for an administrative hearing.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140854 (January 28, 2015).

Commission Reversed Decision on Summary Judgment Finding Issues of Material Fact and Credibility.  The Commission found that the AJ's issuance of a decision on Complainant's allegation of reprisal without a hearing was improper because there were conflicting facts and questions of witness credibility.  The Commission determined that the AJ essentially made credibility determinations in favor of the Agency without a hearing.  The Commission noted that the AJ gave full weight to the accounts of Complainant's first and second level supervisors providing nondiscriminatory reasons for removing Complainant from her position, yet did not account for conflicting statements by Complainant and co-workers that she was held to a much stricter standard than other employees.  Complainant v. Dep't of the Air Force, EEOC Ap. No. 0120140481 (December 4, 2014).

Decision on Summary Judgment Reversed Because Genuine Issues of Material Fact Were in Dispute.  Complainant alleged that the Agency discriminated against him when it did not award him a specific position because of his disability.  The Commission determined that the AJ erred in issuing a decision without a hearing in favor of the Agency.  While it was undisputed that Complainant was an individual with a disability, the AJ failed to address whether Complainant was qualified and, if so, whether Complainant posed a direct threat to himself or other employees.  Further, the record contained conflicting evidence as to whether Complainant could physically perform the essential duties of the position, and it was unclear from the position description what the actual requirements of the position entailed.  Finally, the Commission noted that there was also a dispute concerning whether the Agency conducted an individualized assessment or could establish that Complainant was a direct threat.  Complainant stated that he was never asked to take a general fitness examination or furnish a doctor's note demonstrating that that the medical restrictions caused by his disabilities would not impede his ability to safely perform the duties of the position.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120120665 (December 4, 2014).

Commission Reversed Decision on Summary Judgment Finding Material Facts in Dispute.  The Commission found that the issuance of a decision without a hearing was improper because there were material facts in dispute.  The Commission noted that the AJ appeared to rely heavily on statements from a certain manager when Complainant argued that the manager admitted an "aversion" to Complainant and issued him a "meritless" evaluation.  Further, while the AJ found that Complainant was "advised" not to interact with a particular manager and was not included in meetings because he was not a division lead, Complainant contended that he was "ordered" not to interact with the manager and was inexplicably excluded from meetings in which he had previously participated in reprisal for engaging in EEO activity.  The Commission concluded that the AJ did not draw justifiable inferences in Complainant's favor, choosing instead to credit the Agency's explanations for its actions, and there were too many disputed facts and issues of credibility to support a decision without a hearing.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120130408 (October 8, 2014).

Timeliness

Agency Failed to Provide Sufficient Evidence of Constructive Notice of Time Limitations.  The Commission rejected the Agency's assertion that Complainant had constructive notice of the time limitation for initiating EEO Counselor contact.  While the Agency provided evidence showing that Complainant attended training addressing the EEO process and a slide explaining the 45-day limitation period, the slide did not reference which training it pertained to and there was no evidence that Complainant actually viewed or received the slide.  The record was devoid of any evidence showing that the applicable time limitation was covered during the training Complainant attended, and, therefore, the Agency failed to establish that Complainant had constructive notice of the limitation period.  Complainant v. Dep't of the Navy, EEOC Appeal No. 0520120198 (September 22, 2015).

Complaint Properly Dismissed for Failure to Timely Contact EEO Counselor.  Complainant contacted an EEO Counselor in 2011 with regard to events that occurred in 2009 and 2010.  The Commission found that the Agency properly dismissed the matters.  While Complainant argued that she was not familiar with the EEO process and did not know the time limits for seeking counseling, the Commission stated that the complaint was barred by the doctrine of laches because Complainant failed to diligently pursue her claim.  In addition, Complainant failed to show that she was so incapacitated by her medical condition that the time limits should be waived in her case.  Complainant v. Dep't of Justice, EEOC Appeal No. 0120132779 (September 4, 2015).

EEO Counselor Contact Deemed Timely.  Complainant filed a complaint when the Agency did not schedule him for the required testing for a bid he received in May 2014.  The Agency dismissed the complaint for untimely EEO Counselor contact, stating that his November 2014 EEO Counselor contact was well beyond the applicable time limitation.  On appeal, the Commission noted Complainant's comments in his complaint that he had been told "on multiple times" that he would be tested.  The Commission could not determine that Complainant had a reasonable suspicion of discrimination in May 2014 given the protracted nature of the event, and therefore, reversed the Agency's dismissal. Complainant v. U.S. Postal Service, EEOC Appeal No. 0120151730 (August 26, 2015).

Commission Found Equitable Grounds for Excusing Delay in Seeking EEO Counseling.  The Agency dismissed Complainant's complaint alleging discrimination regarding his 2010 termination for untimely EEO counselor contact, stating that Complainant did not initiate EEO counseling until October 14, 2014, well beyond the applicable 45-day time limitation.  On appeal, the Commission determined that this was not a case of Complainant "sitting on his rights" for a four-year period prior to initiating EEO Counselor contact.  Complainant attempted to initiate EEO contact on September 15, 2010, one day after his termination, and was told in a November 22, 2010 meeting with individuals at the Agency's EEO Office that his claim of sex-stereotyping was "not covered under the purview of Title VII."  Thus, the Commission found equitable grounds for excusing Complainant's delay in successfully engaging in the EEO complaint process to raise his claim of discrimination.  Complainant v. Dep't of the Army, EEOC Appeal No. 0120150820 (August 12, 2015).

Limitations Period Extended With Adequate Justification.  The Commission exercised its discretion to find adequate justification for extending the limitation period for seeking EEO counseling.  Complainant, a Social Work Intern, alleged discrimination when she learned she would not be interviewed for a position.  Complainant contended that, because she did not believe the EEO process was available to her as an intern, she initially raised her concerns with the facility Director.  The Director asked Complainant to submit her documentation to him, which she did, and he in turn submitted it to the EEO Manager.  The Commission noted that Complainant's contact with the Director was within 45 days of when she first suspected discrimination, and her contact was deemed timely. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120151285 (July 21, 2015).

Complainant Timely Contacted Agency Official Logically Connected with EEO Process.  The Commission found that Complainant timely initiated his EEO complaint on the date he contacted the Diversity and Civil Rights Officer, an Agency official logically connected to the EEO process.  The record contained documentation showing that he placed a call to the Officer's number on the date alleged.  The Commission rejected the Agency's assertion that Complainant should have used the designated e-mail address or toll free number set forth on Agency posters, stating that the letter of reprimand which Complainant received provided the Officer's number for Complainant to contact regarding EEO matters.  Finally, the Officer indicated that his duties include providing EEO counseling.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120150791 (May 7, 2015)See also Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120150632 (May 5, 2015) (Complainant, an applicant for employment, timely contacted an Agency human resources official about his EEO concerns.  Complainant did not have the benefit of EEO information and training afforded Agency employees, and, therefore, his contact was sufficient to put the Agency on notice of his concerns and refer him to the EEO process); Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140346 (October 3, 2014) (the Agency failed to show that Complainant's contact with the facility's EEO Officer/Manager did not constitute the date on which Complainant initiated EEO contact.  The Agency's EEO poster did not clearly set forth the proper contact information for initiating the EEO complaint process, and contained the telephone number and picture of the EEO Officer/Manager.  The record also contained training material on the topic of sexual harassment which included the EEO Officer/Manager's name, picture, and telephone number as the contact for more information or consultation on the topic.  Thus, the Commission determined that the day Complainant contacted the EEO Officer/Manager constituted her initial EEO contact date, which was ultimately within the 45 day time limit).

Complaint of Denial of Reasonable Accommodation Timely.  Complainant timely raised his claim that he was denied reasonable accommodation with an EEO Counselor.  While Complainant listed the date on which he received a letter from the Agency's District Reasonable Accommodation Committee as the date of discrimination, a fair reading of the record showed that the denial of reasonable accommodation claim was ongoing and Complainant alleged that the Agency continued to deny him an effective accommodation.  The Commission noted that the Agency's failure to provide such an accommodation constituted a violation each time Complainant needed it.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120150736 (May 6, 2015); see also Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120150614 (April 9, 2015).

Adequate Justification for Extending Limitation Period Found.  The Agency dismissed Complainant's complaint for untimely EEO Counselor contact, asserting that an EEO poster with the limitation period had been posted at the facility during the time in question.  On appeal, however, the Commission found adequate justification to excuse Complainant's untimely counselor contact.  The Commission noted that Complainant hired an attorney within days of being told not to return to work, but the attorney unfortunately died shortly thereafter.  It was not immediately clear what steps that attorney had taken, if any, on Complainant's behalf.  At the same time, Complainant promptly sought the assistance of his union, but the representative filed a grievance and did not advise him to seek EEO counseling.  It was not until Complainant hired his current attorney in early July 2014, that the attorney immediately requested EEO counseling for Complainant.  The Commission found this sequence of events adequate justification for excusing Complainant's untimely request for counseling.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120150753 (April 21, 2015).

Complaint Properly Dismissed for Failure to Timely Contact an EEO Counselor.  The Commission found that Complainant failed to timely contact an EEO Counselor.  Neither Complainant nor her attorney telephoned the EEO Office despite the fact that a number was provided in the letter of termination.  Instead, Complainant's attorney sent a letter via email to an Agency employee not connected to the EEO process.  The Commission found that the email did not constitute EEO Counselor contact, noting that Complainant through her attorney did not make a follow-up inquiry regarding the attempted Counselor contact until nearly 3 months after the deadline for EEO counselor requests.  Complainant v. Dept. of Justice, EEOC Appeal No. 0120150686 (April 14, 2015); request for reconsideration denied, EEOC Request No. 0520150393 (October 30, 2015).

Complainant Timely Contacted EEO Counselor Upon Reasonably Suspecting Discrimination.  The Agency improperly dismissed Complainant's complaint for untimely EEO Counselor contact, finding that Complainant should reasonably have known of the discrimination at or around the time of the denial of her request for reassignment.  Complainant stated that she was originally told that her request was denied because of her attendance record and did not suspect discrimination until she later learned that other male employees with similar attendance records were reassigned to the position she sought.  Thus, Complainant did not develop a reasonable suspicion of discrimination until March 2014, and contacted the EEO Counselor within 45 days.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142960 (February 6, 2015); see also Complainant v. Dep't of Justice, EEOC Appeal No. 0120150047 (March 10, 2015) (Complainant asserted that he did not reasonably suspect discrimination with regard to his nonselection until he spoke with an Agency Test Coordinator who advised him that the Selecting Official had given other reasons for not hiring Complainant than those he gave Complainant.  At that time, Complainant suspected he was being retaliated against and contacted an EEO Counselor within 45 days); but see Complainant v. Gen. Serv. Admin., EEOC Appeal No. 0120150065 (February 6, 2015), request for reconsideration denied, EEOC Request No. 0520150281 (May 28, 2015) (Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact because Complainant should have reasonably suspected discrimination when a co-worker allegedly told her more than one year before she contacted an EEO Counselor that one member of the interview panel made a comment about her age.  Further, Complainant had constructive knowledge of the applicable time limitation when she completed No Fear Act Training approximately five months before her EEO contact).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact.  Complainant alleged that the Agency discriminated against him when it did not select him for a specific position. The Agency dismissed the complaint for untimely EEO Counselor contact, and the Commission reversed the dismissal on appeal.  While the Agency alleged that Complainant was sent an e-mail on February 20, 2014, notifying him of his non-selection for the position, Complainant argued that he did not see the e-mail, explaining that he learned of the selection on March 24, 2014, when the person who was chosen started working. Complainant contacted an EEO counselor within 45 days of that date.  The Commission found that the Agency failed to provide adequate proof that Complainant was aware of his non-selection prior to March 24, 2014, the date the Selectee started working in the position.  As such, the Commission stated that Complainant's EEO counselor contact of April 16, 2014 was within the forty-five day limitation period from when he reasonably suspected discrimination.  Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120142948 (January 23, 2015).

Limitation Period for Initiating EEO Contact Begins on Effective Date of the Personnel Action.  The Commission reversed the Agency's dismissal of Complainant's claim for failure to timely initiate EEO counseling, because the Agency based its determination on the date Complainant received notice of the adverse employment action, rather than the effective date of the action.  The Agency issued a Removal Notice to Complainant on September 6, 2013, which stated that removal would occur "no sooner than 30 calendar days from receipt of notice."  Complainant initiated contact with an EEO counselor on November 15, 2013, more than 45 days after she received the Notice.  However, the Commission noted that based on the language of the Removal Notice, the earliest possible date the termination would have been effective was October 6, 2013.  Therefore, Complainant timely raised the matter with an EEO counselor.  Additionally, the Agency bears the burden of proof when dismissing a claim on the basis of timeliness, and the Agency did not provide proof of the effective date of the removal.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141703 (December 18, 2014).

Complainant Timely Contacted EEO Counselor Upon Learning of Discrimination.  The Agency improperly dismissed Complainant's complaint for failure to timely contact an EEO Counselor.  While the Agency stated that Complainant was effectively removed from employment on January 22, 2014, Complainant asserted that she was off work for medical reasons beginning in August 2013 and was not aware she had been terminated until March 2014 when she called to inquire about her insurance.  While the record contained a Notification of Personnel Action form indicating that Complainant's removal was effective on January 22, the form was not processed until February 19, 2014, and the record did not show when Complainant received notice of her removal.  Therefore, her contact with the EEO Counselor was timely.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142769 (December 17, 2014).

Insufficient Evidence that Complainant Had Knowledge of Limitation Period for Contacting Counselor.  The Commission found that the Agency failed to show that Complainant had actual or constructive knowledge of the time limit for contacting an EEO Counselor, and as such improperly dismissed his complaint.  There was no evidence in the record that EEO posters or notices were on display in Complainant's work facility.  Further, while the Agency submitted a copy of Complainant's training record, there were no affidavits from management asserting that any of the training courses outlined the 45-day limitation period.  Complainant stated that the Agency failed to provide her with notice of the time limits for initiating an EEO complaint, and it was the Agency's burden to produce sufficient evidence to support its contention that it notified Complainant of her rights.  Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120141282 (November 7, 2014).

Complaint Properly Dismissed for Untimely EEO Counselor Contact.  Complainant alleged discriminatory reprisal in the form of denied travel pay between March and August, 2013.  Complainant raised the issue with his union, and was informed in February, 2014, that they would not reimburse him.  Complainant initiated contact with an EEOC counselor on March 9, 2014, and subsequently filed a formal complaint.  The Commission upheld the Agency's dismissal for failure to timely contact an EEO Counselor.  The denial of travel pay occurred on August 31, 2013.  At that time, the 45-day time limitation was triggered under the "reasonable suspicion" standard.  The Commission has consistently held that the utilization of agency procedures, union grievances, or other remedial processes does not toll the limitation period for contacting an EEO Counselor.  Thus, Complainant's choice to address the matter with his union did not excuse the delay in contacting a Counselor.  Complainant did not allege that he was unaware of the applicable limitation period.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120142698 (January 8, 2015).

Complaint Properly Dismissed for Failure to Timely Contact EEO Counselor.  The Agency properly dismissed Complainant's claim that he was issued a proposed suspension for failure to timely contact an EEO Counselor.  It was undisputed that Complainant was notified of the proposed suspension as early as April 9, 2013, but failed to initiate EEO contact until August, well beyond the 45-day limitation period.  The fact that Complainant did not sign for the suspension notice is irrelevant given that he knew of the action, and the Commission has held that utilization of Agency procedures including grievance actions does not toll the limitation period for initiating counseling.  Finally, the Agency provided an affidavit from a manager stating that EEO posters containing appropriate information about the time limits for contacting an EEO Counselor were in place at Complainant's facility.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141737 (October 3, 2014).

Adequate Justification Found for One-day Delay in Filing Complaint.  The Commission found that Complainant received the notice of right to file a formal complaint on December 19, 2014 and filed a formal complaint on January 6, 2015, one day beyond the limitation period.  The Commission noted that Complainant had hand surgery, was on pain medication, and had been diagnosed with "acute major depression and anxiety."  Accordingly, the Commission exercised its discretion and found adequate justification for excusing Complainant's missing the filing deadline by one day.  Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120151307 (August 10, 2015); see also Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120150777 (April 29, 2015) (Complainant provided adequate justification in the form of FMLA documentation showing that she was incapacitated for medical reasons during the applicable limitation period, to justify a one-day delay in filing her complaint).

Agency Bears the Burden of Showing Untimeliness.  The Agency dismissed Complainant's complaint for untimely filing of the formal complaint, finding that Complainant missed the filing deadline by four days.  On appeal, the Commission found that the record in this case contained insufficient evidence reflecting Complainant's receipt of the Notice of Right to File on the date claimed by the Agency.  The record contained a United States Postal Service "Track & Confirm" print-out, which indicated a delivery in a particular city without any further details of the address.  The Commission determined that there was no evidence indicating that Complainant actually received the Notice.  The Commission noted that where, as here, there is an issue of timeliness, an Agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.  Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120131029 (April 24, 2015).

Complaint Improperly Dismissed as Untimely.  The Agency dismissed Complainant's complaint as untimely stating that he filed his formal complaint nearly two months after the Agency notified him of his right to file.  The Commission found that the dismissal was improper, because the Agency submitted only an unsigned FedEx delivery confirmation which did not show that Complainant actually received the notice.  Complainant v. Dep't of the Navy, EEOC Appeal No. 0120150769 (April 17, 2015).

Complaint Improperly Dismissed as Untimely.  The Agency dismissed Complainant's complaint as untimely, asserting that it notified Complainant of her right to file a formal complaint by email on the same day it sent her the notice via certified mail.  The Commission rejected the Agency's argument, stating that the record showed that Complainant filed her complaint 12 days after receiving the notice by certified mail.  Therefore, her complaint was timely filed.  Complainant v. Dep't of Justice, EEOC Appeal No. 0120150239 (March 18, 2015).

Complaint Improperly Dismissed as Untimely.  The Agency dismissed Complainant's formal complaint as untimely, stating that Complainant received notice of her right to file a complaint on November 4, 2013, but did not actually file her complaint until April 2014.  On appeal, the Commission found that Complainant was confused by the Agency's processing of her complaint.  Specifically, the record showed that Complainant received an e-mail from the Agency in October 2013 stating that the claim had been accepted for mediation.  Complainant attempted to clarify the situation through telephone calls and emails to Agency EEO Officials, and the Agency issued Complainant a second notice of her right to file a complaint in April 2014.  Complainant filed her complaint within 15 days of receiving that notice.  The Commission found that the Agency's dismissal was improper given the contradictory information she received regarding the status of her claim.  Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142918 (January 22, 2015).

Complaint Found Timely Where Inadequate Evidence of Receipt of Notice of Right to File.  The Commission found that the Agency improperly dismissed Complainant's complaint as untimely, because there was inadequate evidence of Complainant's receipt of the notice of right to file.  While the record contained a FedEx tracking print-out indicating delivery to a particular city, there were no further details regarding the address to indicate that Complainant actually received the notice.  The Commission stated that the Agency always bears the burden of providing evidence to support a reasoned determination as to timeliness, and there was no evidence to support the Agency's assertion regarding the date of receipt of the notice or evidence that the formal complaint was not actually mailed on the date it was postmarked.  Complainant v. Dep't of the Navy, EEOC Appeal No. 0120142013 (October 3, 2014).