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U.S. Equal Employment Opportunity Commission



 Digest Seal The DIGEST Of Equal Employment Opportunity Law


Fiscal Year 2017, Volume 1

Office of Federal Operations

December 2016


Inside

Selected EEOC Decisions on:

SELECTED NOTABLE EEOC DECISIONS FROM FY 2016


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

Carlton M. Hadden, Director, OFO
Jamie Price, Assistant Director, OFO's Special Operations Division
Digest Staff
Editor: Robyn Dupont
Writers: Shirin Baradaran, Robyn Dupont, Evan Holland, Sarah Legault , Erin Perugini, Navarro Pulley, Laura Revolinski, Aaron Rubin, Margaret Ruckelshaus, Scott Schaefer

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

(Volume 1 of the Fiscal Year 2017 Digest contains a sampling of summaries of decisions of note from Fiscal Year 2016, 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 2016, the Commission redacted Complainants' names when it published decisions, and all federal sector appellate decisions issued for publication used a randomly generated name as a substitute for the name of the complainant. This randomly generated name consisted of a first name and last initial, and was assigned using a computer program that selects names from a list of pseudonyms bearing no relation to the complainant's actual name. 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

Commission Found the Investigation Was Inadequate. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race, disability, age, and in reprisal for prior protected EEO activity when she was involuntarily reassigned. On appeal from the Agency's decision finding no discrimination, the Commission found that the investigative record was inadequate. The Commission noted that the investigation failed to acquire information necessary to prove an essential element of Complainant's prima facie case, specifically, evidence of the races of the comparators identified by Complainant who were allegedly allowed to remain on detail. The investigative record also failed to set forth the Agency's articulated reason for imposing an involuntary reassignment on Complainant. The manager responsible for implementing the reassignment did not provide an affidavit or statement despite the investigator's documented efforts to obtain information from him. Ordering a supplemental investigation, the Commission reminded the Agency that while its burden of production is not onerous, it must provide a specific, clear, and individualized explanation for its action so that Complainant is provided with an opportunity to prove that the Agency's explanation is a pretext for discriminatory animus. Anisa U. v. U.S. Postal Serv., EEOC Appeal No. 0120141580 (July 20, 2016).

Claim Regarding Denial of Official Time Not Processed as Separate Complaint. Complainant claimed, among other things, that the Agency refused to pay him for eight hours of official time while he was attending to EEO matters. The Agency dismissed his claim for failure to state a claim. On appeal, the Commission noted that its regulations provide that if Complainant is otherwise in pay status, the Agency shall consider him to be on official time, regardless of tour of duty, when his presence is authorized or required by the Agency or the Commission during the investigation, informal adjustment, or hearing on a complaint. The Commission further noted that a claim regarding the denial of official time involves a violation of the Commission's regulations and does not require a determination of whether the denial was motivated by discrimination. Therefore, the Commission concluded that Complainant's claim should not be processed as a separate claim of discrimination, but forwarded to the Administrative Judge (AJ) assigned to hear the underlying complaint for further consideration. The Commission affirmed the dismissal of additional allegations for failure to state a claim. Whitney G. v. U.S. Postal Serv., EEOC Appeal No. 0120161289 (June 8, 2016).

Agency's Dismissal of Request for Counseling Improper. The Agency dismissed Complainant's request for EEO counseling, stating, among other things, that the claim was identical to a claim raised in a prior complaint and was a spin-off claim. On appeal, the Commission reversed the dismissal as being premature. The regulations provide for the dismissal of formal complaints and the Agency did not provide Complainant an opportunity to file a complaint. Colleen M. v. U.S. Postal Serv., EEOC Appeal No. 0120152936 (May 24, 2016).

Failure to Provide Interim Relief Results in Dismissal of Agency's Appeal. The Commission's regulations provide that if the Agency files an appeal and has not provided required interim relief, Complainant may request dismissal of the Agency's appeal. The Agency maintained that its failure to comply with these regulations should be excused because it eventually offered Complainant interim placement into the position ordered by the Administrative Judge (AJ), and its failure to comply was due to an oversight and lack of communication between Agency offices. The Commission, however, did not find these excuses sufficient to warrant a waiver of the applicable regulations. As result, the Agency's appeal was dismissed, and the Agency was instructed to provide Complainant the relief ordered by the AJ. Porter H. v. Dep't of Homeland Sec., EEOC Appeal No. 0720140018, (March 11, 2016).

Agency Improperly Failed to Process Complaint. After Complainant failed to be selected for multiple positions, she filed a formal EEO complaint which alleged that the Agency subjected her to discrimination. The Agency told Complainant that it would not complete the investigation within the regulatory timeframes. On appeal, the Commission noted that Complainant asked the Agency several times how she could request a hearing before an AJ. Instead of providing Complainant with the appropriate information, the Agency gave her a withdrawal notice. The Commission found that the Agency's actions further confused Complainant, who was not attempting to withdraw her complaint. Therefore, the Agency's closure of the matter was improper, and the Agency was ordered to process the matter pursuant to the EEOC's regulations. Jaqueline L. v. Dep't of Justice, EEOC Appeal No. 0120150694 (November 10, 2015).

Agency Failed to Properly Characterize Complainant's Claim. The Agency failed to address Complainant's denial of reasonable accommodation claim, and improperly narrowed its examination of Complainant's hostile work environment claim to two incidents. A fair reading of the complaint and related EEO counseling report revealed that Complainant was raising at least eight incidents of alleged harassment, beginning with the October 2012 denial of reasonable accommodation and ending with his January 2013 removal. The Agency could not determine that Complainant failed to prove a discriminatory hostile work environment without investigating and considering the full range of incidents Complainant alleged made up his claim. Therefore, due to an inadequate investigation, the Commission vacated the Agency's finding of no discrimination and ordered the Agency to conduct a supplemental investigation. Ted L. v. U.S. Postal Serv., EEOC Appeal No. 0120140369 (October 20, 2015).

Agency Failed to Provide Interim Relief While Appeal Was Pending. The Agency appealed an Administrative Judge's (AJ's) finding of discrimination and order to reinstate Complainant. While the appeal was pending before the Commission, the Agency did not reinstate Complainant or provide notice of the Agency's intention to provide or deny interim relief in accordance with the Commission's regulations, which permit the withholding of relief granted to Complainant except for prospective pay and benefits while an appeal is pending before the Commission. The Commission dismissed the Agency's appeal, finding that the interim relief requirement was triggered by Agency's filing of an appeal. The Commission reversed the AJ's decision not to award Complainant attorney's fees for work done on the complaint before filing, but affirmed an across-the-board reduction of hours because of excessively vague and duplicative entries. The Commission also affirmed the AJ's disallowance of an award for hours billed by Complainant's attorney for work done for Complainant's concurrent claim before the Merit Systems Protection Board (MSPB). Karry S. v. Dep't of the Air Force, EEOC Appeal No. 0720140038 (October 9, 2015).

Attorney's Fees

Commission Modified Award of Attorney's Fees. An AJ found that the Agency discriminated against Complainant with regard to her performance award, but found that Complainant failed to prove that the Agency discriminated against her with regard to a non-selection or subjected her to harassment. With regard to attorney's fees, the AJ stated that Complainant was not entitled to fees for time spent at the pre-complaint stage or for vague entries. In addition, the AJ reduced the total requested fees by 40 percent to account for excessive and redundant time claimed, and the fact that Complainant only prevailed on a portion of her complaint. On appeal, the Commission affirmed the rate awarded by the AJ, stating that the Agency failed to substantiate its request for a reduction. The Commission found, however, that the AJ erred in determining that the time billed for "work on motions," or "motion work" was too vague, because there was enough information provided regarding the subject matter of the work. The Commission agreed with the AJ that time claimed for "work on file," "review file," "review documents," "review e-mails" and "conference call" did not provide enough specificity. The Commission also found that it is unclear as to how much of the AJ's 40 percent reduction was attributable to excessive billing, and how much for the fact that Complainant only prevailed on a portion of her claim. The Commission found no evidence that the hours claimed were excessive or redundant. The Commission also found that the AJ erred by not properly accounting for Complainant's low degree of success. Complainant's case originally involved two claims, a non-selection and a hostile work environment, and the finding of discrimination was made only on one of the eight incidents cited as harassment. Additionally, the Commission found that Complainant's performance rating was fractionable from her other claims due to different legal theories, and the unrelated facts of the other incidents. The record showed that the time required for the performance rating issue was small, as compared to the other claims, and, therefore, the Commission modified Complainant's total award of attorneys' fees. Anne C. v. Dep't of Hous. & Urban Dev., EEOC Appeal No. 0720160017 (September 9, 2016).

Attorney's Fees and Costs Discussed. The Agency issued a decision addressing Complainant's claim for attorney's fees and costs following a decision by the Commission finding that comments made by Complainant's supervisor constituted per se retaliation, but finding no discrimination with regard to other issues in the complaint. The Commission agreed with the Agency's decision not to award fees to one attorney who did not submit an itemized statement that identified the number of hours spent on the claim or an hourly rate. The Commission noted that there was no evidence that this attorney ever performed any legal services on Complainant's behalf. The Commission also declined to award Complainant additional fees for a second attorney for work during the appeal, stating that this attorney only provided a list of "bills" without any itemization of related legal expenses. The Commission found that the Agency's reduction of fees was appropriate given that the retaliation claim was separate from the other claims raised for which no discrimination was found. The Commission stated that Complainant was not entitled to costs incurred prior to the filing of his formal complaint, but did award him costs associated with postage. Adam F. v. Int'l Boundary & Water Comm'n, EEOC Appeal No. 0120142479 (July 8, 2016).

Complainant Entitled to Attorney's Fees for Work Performed in Connection with Damage Claim. The Agency previously found that Complainant had been subjected to unlawful retaliation, and after a supplemental investigation, awarded Complainant $5,000.00 in compensatory damages. On appeal, the Commission found that Complainant was entitled to payment of attorney's fees for work performed in connection with her claim for damages. The Commission found that Complainant was a prevailing party on her claim for damages, and her attorneys submitted a fee petition following the Agency's final decision in that matter. The Commission stated that Complainant was not entitled to attorney's fees for work beyond the time spent on the claim for damages, including items such as Complainant's worker's compensation claim. The Commission awarded Complainant $18,462.50 in attorney's fees and proven costs. The Commission also affirmed the Agency's award of $5,000 in compensatory damages. Eve E. v. Dep't of Homeland Sec., EEOC Appeal Nos. 0120141606 and 0120161392 (May 24, 2016).

Complainant Entitled to Attorney's Fees for Work Developing the Underlying Claim Supporting Harassment Claim. Complainant appealed the AJ's reduction of attorney's fees based on a partial finding of liability and the untimely filing of a reply brief. Complainant argued that the national origin and sex based discrimination claims were not truly fractionable from the successful unlawful reprisal harassment claim. The Commission affirmed the AJ's finding that Complainant's attorney was not entitled to fees and costs related to the reply brief as the brief was untimely filed. The Commission found, however, that the AJ erred in reducing the amount of attorney's fees based on unsuccessful bases, stating that the claims of national origin and sex were not truly fractionable from the claim of reprisal as Complainant prevailed on the claim of a hostile work environment. The Commission also affirmed the AJ's compensatory damage award of $35,000. Nannie D. v. Dep't of the Army, EEOC Appeal No. 0720150021 (April 28, 2016).

Commission Orders Agency to Pay Full Amount of Requested Attorney's Fees After Agency Failed to Issue Decision on the Matter. An AJ issued a decision finding that the Agency discriminated against Complainant when it failed to select her for a position. The Agency did not properly file its appeal in a timely manner, and the Commission previously ordered the Agency to, among other things, pay Complainant specified attorney's fees as well as reasonable attorney's fees incurred in processing the appeal. Complaint, though her attorneys, submitted a fee statement and supporting information to the Agency, but the Agency failed to issue a decision in the matter within 60 days as specified in the Commission's regulations. The Commission accepted Complainant's appeal, and found that the Agency's failure to consider Complainant's petition for attorney's fees amounted to an unreasonable and unwarranted delay. The Commission has previously held that it may award the full amount of requested fees when an agency fails to timely issue a final decision on the request. The Commission found that Complainant's fee petition was reasonable and ordered the Agency to pay the full amount requested. Dorathy M. v. Dep't of Transp., EEOC Appeal No. 0120143074 (February 23, 2016).

Attorney's Fees Awarded After Finding of Breach of a Class Action Settlement. The Commission previously determined that the Agency failed to comply with the terms of a class action settlement agreement and ordered specific performance. The Commission stated that the class was entitled to an award of reasonable attorney's fees incurred as a result of pursuing the breach claim. The matter was remanded to an AJ to oversee the processing of the relief. The AJ issued an Order requiring the Agency to pay attorney's fees and costs, which the Agency appealed. In the instant appeal, the Commission rejected the Agency's assertion that the class was not a prevailing party, stating that the Commission determined that the class was in fact a prevailing party when it found that the Agency breached the terms of the settlement agreement. The Commission noted that the AJ's monitoring of the compliance proceedings resulted solely from the Agency's breach and was not a separate action. The Agency did not challenge the number of hours, hourly rate, or any of the requested costs or fees requested by the class, and the Commission ordered the Agency to pay the amount which the AJ determined was reasonable. Antony Z. v. Soc. Sec. Admin., EEOC Appeal No. 0720140007 (January 29, 2016).

Attorney's Fee Award Modified. After a hearing, an AJ found that the Agency discriminated against both Complainants when it did not promote them. The AJ subsequently awarded Complainants a combined total of $105,000 in attorney's fees. The Agency fully implemented the AJ's decisions, and Complainants appealed the award of attorney's fees. On appeal, the Commission modified the award. Complainants' attorney worked for a Washington, D.C.-based law firm. Using the "Laffey Matrix," the AJ applied different hourly rates based on the level of experience the attorney had at the time she performed particular work. The Commission found that the AJ erred as a matter of law when he did not apply the prevailing rate at the time Complainants submitted their request. The Commission also found that the attorney's charges were neither excessive nor duplicative. The AJ did not provide any reasoning or calculations related to his determination beyond his bare conclusion that he agreed with the Agency, and the Agency did not show that Complainants' attorney's fees should be reduced with respect to the alleged duplicative or excessive charges. Thus, the Commission awarded Complainants $113,952.25 in attorney's fees. Grant A. and Val L. v. Dep't of Agric., EEOC Appeal Nos. 0120132145 & 0120132146 (January 8, 2016).

Attorney's Fees Discussed. In a prior decision, the Commission ordered the Agency, among other things, to pay Complainant attorney's fees and costs after finding that it subjected Complainant to reprisal. On appeal from the Agency's final decision in that matter, the Commission increased the award of fees and costs. The Commission initially reduced the amount requested for summarizing a pre-existing medical report finding that the amount requested was not reasonable. The Commission then determined that Complainant's attorney should be compensated based upon the prevailing market rates for attorneys practicing in Washington DC. The Commission found that all of the work performed by one associate was documented and supported by contemporaneously prepared records, and the Agency did not present any evidence showing that the services were excessive or out-of-line with services provided by attorneys with similar experience. The Commission disallowed 0.1 hours claimed by another associate as duplicative. The Commission stated that the Principal Attorney was entitled to time spent reviewing the fee petition given the Attorney's responsibility for ensuring the firm's financial viability. The Commission declined to use an across-the-board reduction for time spent preparing the fee petition, but instead limited fees to only those claimed by one associate. Sanora S. v. U.S. Postal Serv., EEOC Appeal No. 0120133235 (December 11, 2015) (The Commission also discussed the Agency's award of compensatory damages, as noted below. - Ed.)

Complainant Entitled to Attorney's Fees for Work to Obtain Compliance with Commission's Final Order. In a previous decision, the Commission ordered the Agency to comply with a settlement agreement and restore 39 hours of Complainant's leave. The Agency did not restore Complainant's leave until ten months after Complainant and the Agency entered into the settlement agreement. Complainant's attorney filed an appeal for breach of the settlement agreement and took additional steps in order to ensure that the agency complied with the agreement. The Agency did not dispute on appeal that it complied with the settlement agreement only after Complainant's compliance efforts. As a result, the Commission found that Complainant was entitled to attorney's fees and costs for the efforts that were made in order to secure compliance with the settlement agreement. Samuel R. v. U.S. Postal Serv., EEOC Appeal No. 0120123028 (December 4, 2015).

Class Complaints

Class Certification Granted. The Commission reversed the AJ's finding that the Class Agent failed to satisfy the requirements for class certification. Class agent sought certification of a class of all female applicants for Customs and Border Patrol Officer positions who were denied employment if they failed to meet certain physical requirements at each of the three stages of Basic Training. Because the Class Agent had only failed to meet the physical requirements at the third stage, the AJ found commonality and typicality with that group only, which failed for numerosity, having only 4 members. The AJ did find adequacy of representation. On appeal, the Commission found that, regardless of the stage of training, the push-up requirement was the issue in question and the Class Agent satisfied the requirements of commonality and typicality. The Commission found numerosity because during the relevant period 350 female applicants failed the push-up tests. The Commission also permitted, over agency objections the addition of two Class Agents because their interests were already part of the evidentiary record. Candice B., et al. v. Dep't of Homeland Sec., EEOC Appeal No. 0120160714 (June 1, 2016).

Class Certification Affirmed. The Agency sought reconsideration of the Commission's prior decision certifying a class action alleging race discrimination. The Agency sought reconsideration in light of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), arguing that under Wal-Mart, the class should not be certified because the class members' claims of discrimination lacked a common unifying "glue." The Commission found that the evidence was sufficient to meet the requirement of commonality. Specifically, the evidence showed that there was centralized control over some personnel selections which presented a "common direction" of promotions required under Wal-Mart. The Commission noted that Wal-Mart did not set out a per se rule against class certification where subjective decision making or discretion was alleged. Finally, the manageable size of the underlying class also distinguished it from Wal-Mart. The Commission did, however, limit the class to include African-Americans who served in law enforcement or operational positions and were subjected to discrimination with regard to certain specific actions. Harry A. v. Dep't of Justice, EEOC Request No. 0520120575 (November 17, 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 affirmed the AJ's award of $192,500. The Commission found that the AJ did not abuse her discretion in admitting certain depositions when considering the issue of damages. The Commission acknowledged that the retaliation was only one factor causing Complainant's diabetes to be uncontrolled, and the evidence did not show that Complainant's later separation was caused by the discrimination. The Commission determined, however, that Complainant's pain and suffering and damage to his reputation supported the award of $192,500. Among other things, the harassment resulted in Complainant being arrested, invasively stripped searched and put in a holding cell. Complainant then had repeated hysterical crying spells and feared losing everything while waiting for his criminal hearing and the resulting finding that he was not guilty. Further, he was humiliated, his sense of himself was damaged, and he sustained extreme anxiety, despondency, sleeplessness, nightmares, depression, PTSD, and a lessening of control of his diabetes as a result of the discrimination. Ervin B v. U.S. Postal Serv., EEOC Appeal No. 0720150029 (March 15, 2016).

Commission Increased Award of Damages to $150,000. The AJ found that the Agency discriminated against Complainant on the basis of disability. The AJ's order of relief included, among other things, an award of $50,000 in non-pecuniary damages. On appeal, the Commission increased the award to $150,000, stating that, contrary to the AJ's assessment, the denial of reasonable accommodation and failure to conduct an individualized assessment resulted in Complainant not receiving a position for which she had been conditionally selected. Complainant stated that she suffered severe, long-term emotional, social and financial hardship, including loss of enjoyment of life, and damage to her relationships over seven years. The Commission noted that while damages are not available for stress resulting from the EEO process, an award of $150,000 was appropriate given the nature, severity, and duration of the harm to Complainant. Emiko S. v. Dep't of Transp., EEOC Appeal No. 0120161130 (July 19, 2016).

Commission Increased Award of Damages to $125,000. In a prior decision, the Commission found that the Agency subjected Complainant to discriminatory racial harassment, and ordered the Agency to investigate Complainant's claim for damages. On appeal from the Agency's final decision in that matter, the Commission increased the award of non-pecuniary damages to $125,000 finding that the Agency's award of $20,000 did not provide sufficient compensation for the harm suffered. The Commission disagreed with the Agency's assertion that Complainant failed to provide adequate evidence of the harm, noting that Complainant provided personal statements and statements from co-workers and a mental health counselor detailing the physical and emotional toll caused by the ongoing harassment. Complainant indicated that he experienced increased anxiety, difficulty concentrating, a loss of appetite, high blood pressure and severe headaches, and stated that his physical and emotional relationship with his wife was negatively affected. Complainant's mental health counselor indicated that Complainant lost his motivation to work, felt anxious, developed insomnia, experienced a change in appetite and drinking resulting in a 15 to 20 pound weight gain, had difficulties with fatigue and focus, and had feelings of hopelessness. She also indicated that Complainant became paranoid that the co-worker would physically harm his family, even going to the extent of developing a "safety plan" in that eventuality. Vaughn C. v. Dep't of the Air Force, EEOC Appeal No. 0120151396 (April 15, 2016).

Commission Increased Award of Damages to $80,000. The Agency awarded Complainant $15,000 in non-pecuniary compensatory damages for a discriminatory termination. The record on appeal included affidavits from Complainant and his family members. The affidavits all stated that after the termination, Complainant's PTSD worsened and he experienced depression, sleeplessness, anger, stress, weight loss, familial strain, humiliation and injuries to his credit, financial circumstances and standing. The Commission found that $15,000 would not sufficiently remedy the harm and awarded Complainant $80,000. Emmet W. v. Dep't of Agric., EEOC Appeal No. 0120143098 (May 3, 2016).

AJ's Award of $70,000 in Damages Affirmed. The Agency issued a final order implementing the AJ's finding of retaliatory harassment and rejecting the pecuniary and non-pecuniary, compensatory damages awarded by the AJ. The Commission affirmed the AJ's award of $70,000 in non-pecuniary, compensatory damages. The record showed that because of the harassment, Complainant suffered headaches, insomnia, light headedness, social impairment, difficulty communicating with her spouse, increased agitation, shortness of temper, decreased professional standing and problems thinking and performing tasks. The AJ noted, however, that Complainant had a preexisting diagnosis of depression and anxiety, and that she had experienced sleep issues and migraine headaches, and suffered a heart attack prior to the harassment. The Commission reversed the award of pecuniary damages because Complainant had not provided receipts or other evidence that showed actual loss. Herta R. v. U.S. Postal Serv., EEOC Appeal No. 0720150020 (May 6, 2016).

Commission Increased Award of Damages to $35,000. In a prior decision, the Commission ordered the Agency, among other things, to investigate Complainant's claim for compensatory damages after finding that it subjected Complainant to reprisal. On appeal from the Agency's final decision in that matter, the Commission increased the award of non-pecuniary damages to $35,000. The Commission noted that Complainant prevailed on only three of the 10 incidents she raised in her complaint, and, as such, her recovery should be 30 percent of the base award. The testimony and documentary evidence, including statements from a psychologist, and a psychiatrist, as well as affidavits from family members, friends, co-workers and Complainant's minister, established that Complainant's preexisting anxiety and depression were aggravated by the discriminatory actions. Although Complainant was able to continue working, her personality and outlook permanently changed from optimistic and hopeful to gloomy and pessimistic, and her personal relationships deteriorated. The Commission considered that Complainant was also exposed to stressors outside of work after the retaliatory incidents occurred which affected her condition. The Commission found that Complainant did not establish the necessary causative link to support a claim for future pecuniary damages, and stated that her claim for lost real estate earnings was speculative at best. The Commission did affirm the Agency's award of $18,255.50 in pecuniary damages. Sanora S. v. U.S. Postal Serv., EEOC Appeal No. 0120133235 (December 11, 2015) (The Commission also discussed the Agency's award of attorney's fees as noted above. - Ed.)

Commission Increased Award of Non-pecuniary Damages to $20,000. The Commission previously found that Complainant was subjected to sexual harassment. The Agency awarded Complainant $6,000 in non-pecuniary damages, and the Commission increased Complainant's award of non-pecuniary damages to $20,000 on appeal. The Commission did not award damages for alleged harm that had no nexus to the finding of discrimination, which occurred months and years after the sexual harassment ceased. The Commission noted, however that Complainant stated that she experienced anxiety and gastrointestinal difficulties during the harassment, and Complainant's daughter indicated that Complainant was reluctant to go to work, was sullen and despondent, and did not want to spend time with family. Complainant's physician also noted that Complainant's diabetes was poorly controlled during the period in question due to stress from the harassment. Complainant's physician referred her to a therapist due to significant stress and anxiety related to her job. Complainant stated that the Agency's failure to address the harassment caused her to experience intense emotional pain and a loss of self-esteem. The Commission affirmed the Agency's award of $252.02 in past pecuniary damages, and found that Complainant was unable to prove a nexus between future medical treatments and the sexual harassment. Ashlea P. v. U.S. Postal Serv., EEOC Appeal No. 0120141369 (April 19, 2016).

Commission Increased Award of Damages to $20,000. The Commission previously found that the Agency subjected Complainant to sexual harassment. The Commission then increased the Agency's award of $6,000 in non-pecuniary damages to $20,000 based upon Complainant's affidavit that she suffered from anxiety, mental anguish and feelings of unworthiness as a result of the Agency's failure to investigate her claims of harassment. Complainant also claimed she experienced ongoing humiliation and provided a letter from her mother attesting to her claim of emotional health. The Commission affirmed the Agency's award of pecuniary damages. The Commission also denied Complainant's request to be reimbursed for her own time in pursing her EEO complaint, stating that the EEOC's regulations do not provide for such reimbursement. Yun C. v. U.S. Postal Serv., EEOC Appeal No. 0120141368 (October 13, 2015).

Commission Awarded Complainant $10,000 in Non-pecuniary Damages. The Agency stated that Complainant failed to prove his claim for compensatory damages following a finding that it failed to provide Complainant with reasonable accommodation. On appeal, the Commission awarded Complainant $10,000 in non-pecuniary damages. Complainant stated that he experienced exacerbation of his depression, anxiety, and post-traumatic stress disorder, as well as weight gain, diminished quality of life, a strain on his relationships and sleeplessness. Complainant included supporting statements from medical professionals, family members, and friends in support of his claim. The Commission concluded that $10,000 was consistent with amounts awarded in similar cases. Mike G. v. Dep't of Agric., EEOC Appeal No. 0120152027 (September 8, 2016).

Commission Affirmed Award of $8,000 in Non-pecuniary Damages. The Commission affirmed the Agency's award of $8,000 in non-pecuniary damages related to a finding of retaliation for a lowered performance appraisal rating. Complainant stated that she experienced stress and "family problems" due to the retaliation. Complainant also submitted a statement from her children and a report from her physician. The Commission found, however, that Complainant generally failed to link the retaliatory appraisal to the symptoms and conditions she reported. For example, Complainant asserted that her emotional pain and suffering was due to harassment which was not an issue in the underlying complaint. Complainant's children and physician also did not mention the appraisal as a cause of Complainant's distress. Therefore, the Commission found that the Agency's award was adequate. Kit R. v. Dep't of the Army, EEOC Appeal No. 0120140952 (September 3, 2016).

Commission Increased Award of Non-pecuniary Damages to $5,000. The Commission previously determined that the Agency was liable for racial harassment, and ordered the Agency to investigate Complainant's claim for damages. The Agency awarded Complainant $1,000 in non-pecuniary damages. On appeal, the Commission increased the award to $5,000. Complainant asserted that he experienced stress and problems at work and at home due to the harassment, and provided statements from his wife and a counselor in support of his claim. The Commission noted, however, that the evidence showed that a great deal of Complainant's stress was caused by events unrelated to the finding of harassment. The Commission also awarded Complainant $394.12 in pecuniary damages for payments to the counselor and travel expenses to attend the counseling sessions. Sherman K. v. U.S. Postal Serv., EEOC Appeal No. 0120142089 (June 28, 2016).

Commission Increased Award of Non-pecuniary Compensatory Damages to $3,500. The Commission increased the Agency's award of non-pecuniary compensatory damages in connection with a prior finding of retaliation. As a result of the Agency's actions, Complainant stated that he suffered depression, loss of enjoyment of life, stress/anxiety, humiliation, loss of self-esteem, excessive fatigue and injury to professional standing. It was unclear how long these symptoms lasted, and Complainant did not submit any supporting documentation. Further, while Complainant stated that he was subjected to ongoing harassment, the Agency was not found liable for harassment. The Commission found that $3,500 was an appropriate award to remedy the harm. The Commission affirmed the Agency's award of 50 percent of Complainant's requested attorney's fees, stating that the submitted bills were heavily redacted and vague, and did not specify which of Complainant's EEO cases the items were billed for. Marcellus M. v. Dep't of Justice, EEOC Appeal No. 0120152864 (May 6, 2016).

Compensatory Damages Increased to $3,000. In a previous decision, the Commission found that an Agency management official's comments were reasonably likely to deter Complainant and other managers from engaging in the EEO process and constituted per se retaliation. The Agency awarded Complainant $500.00 in non-pecuniary compensatory damages. On appeal, the Commission increased that award to $3,000.00. The Commission noted Complainant's evidence that the Agency's retaliation resulted in anxiety, feelings of intimidation and disrespect, despondency, sleep loss, fatigue, difficulty in concentrating, and hypersensitivity. The Commission noted, however, that Complainant failed to show that the retaliation exacerbated her preexisting medical conditions. Onie R. v. Dep't of Def., EEOC Appeal No. 0120141870 (June 16, 2016).

Dismissals

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

Complaint Improperly Dismissed for Failure to Cooperate. Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment. The Agency dismissed the complaint for failure to cooperate, stating that Complainant failed to return her affidavit despite being notified that her failure to do so could result in the dismissal of her complaint. On appeal, the Commission found that the Agency's dismissal was improper. Complainant explained that she did not receive the request, and there was insufficient evidence to conclude that Complainant purposely engaged in delay or contumacious conduct. Further, the EEO Counselor's report showed that Complainant provided sufficient information to permit the Agency to complete its investigation without Complainant's affidavit and issue a decision on the merits. Genie S. v. U.S. Postal Serv., EEOC Appeal No. 0120151440 (September 22, 2016).

Complaint Improperly Dismissed as Raising a Matter Pursued in Grievance. The Commission found that the Agency improperly dismissed Complainant's complaint on the grounds that she raised the matter in a grievance. While the record showed that Complainant filed a grievance on the same matters, the Agency did not process Complainant's grievance because of her probationary status. Therefore, the Commission could not find that Complainant "raised" the matter in the grievance process as contemplated by the applicable regulation. Brandee B. v. Soc. Sec. Admin., EEOC Appeal No. 0120160226 (September 21, 2016).

Agency Improperly Dismissed Claim of Harassment. The Commission found that the Agency improperly dismissed Complainant's claim of ongoing harassment. Complainant articled 13 incidents in support of her claim, and the Agency dismissed the complaint for failure to timely contact an EEO Counselor. The Agency also dismissed three incidents as being moot, and one incident as alleging a proposal to take action. The Commission stated that some of the alleged incidents occurred within 45 days of Complainant's EEO Counselor contact, and, therefore, her claim of harassment was timely. Further, since Complainant asserted that the harassment was ongoing, the matter had not been rendered moot. Finally, the Commission has previously held that an agency may not dismiss an incident as preliminary when the proposed action is part of a claim of harassment. Agnus L. v. Dep't of the Army, EEOC Appeal No. 0120161698 (September 20, 2016).

Agency's Dismissal of Complaints Improper. The Commission consolidated Complainant's appeals and found that the Agency improperly dismissed both of the underlying complaints. The Commission found the Agency improperly dismissed the first complaint as untimely. The Agency asserted that the Notice of Right to File was delivered to Complainant via email on June 20, 2014, but the record failed to clearly establish that Complainant received and was able to access the Notice on that day. Complainant asserted that he was unable to open the email attachment and did not receive the Notice until July 11, 2014. Therefore, the complaint was deemed timely because the Agency was unable to meet its burden of proving when Complainant received his Notice. The Commission also found the Agency improperly dismissed Complainant's second complaint as a preliminary action. Complainant alleged that the mid-year rating was based on reprisal, and the Commission stated that an unfavorable mid-year rating could dissuade a reasonable employee from engaging in the EEO process. Carter R. v. Dep't of the Army, EEOC Appeal Nos. 0120142862 & 0120151048 (May 29, 2015).

Complaint Improperly Dismissed for Failure to Cooperate. The Commission found that the Agency improperly dismissed Complainant's complaint for failure to cooperate. There was sufficient documentation to permit continued adjudication of this matter. Specifically, the record contained correspondence from Complainant, an EEO Counselor's Report and other documents regarding the claims. The Commission noted that while some of the handwritten statements might be difficult to read, there was no indication that Complainant engaged in contumacious conduct. Murray C. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120151759 (May 17, 2016).

Complaint Improperly Dismissed as Moot. Complainant filed a complaint alleging harassment and a hostile work environment on the basis of race after the Postmaster said that no one would be allowed to speak Spanish while in the facility. The Agency dismissed the complaint for failure to state a claim, asserting that Complainant was not aggrieved because the Postmaster and other managers apologized for the statements and employees were still allowed to speak Spanish while in the facility as part of a grievance settlement. On appeal the Commission noted that the Agency's dismissal was grounded in mootness and found the claim was not moot because Complainant asserted that she was subjected to ongoing harassment by the Postmaster who purportedly made the "no speaking Spanish" statement. The Commission also noted that additional claims contained in Complainant's complaint, but not identified by the Agency in its final decision, formed a cognizable allegation of a pattern of harassment. Shan D. v. U.S. Postal Serv., EEOC Appeal No. 0120160987 (April 6, 2016).

Complaint Improperly Dismissed for Failure to State a Claim and Raising Matters Previously Addressed in the Grievance Process. The Commission found that the Agency improperly dismissed Complainant's claim of hostile work environment harassment. The Agency improperly fragmented the claim when it determined that Complainant was not aggrieved. Complainant alleged that she was subjected to varied incidents which comprised a pattern of ongoing harassment that stated a cognizable claim. Further, the language in the collective bargaining agreement did not clearly indicate that Complainant had a right to raise her claims of discrimination in the grievance process. The Commission concluded that the Agency did not offer sufficient proof that the grievance process permitted claims of discrimination. The Commission declined to address the Agency's assertions, raised for the first time on appeal that Complainant failed to timely contact an EEO Counselor since the Agency had an opportunity to dismiss the formal complaint on those grounds, but did not do so. Renee P. v. Dep't of the Army, EEOC Appeal No. 0120160524 (February 9, 2016).

Complaint Improperly Dismissed for Failure to State a Claim and Untimely EEO Contact. The Agency dismissed Complainant's complaint of sexual harassment, stating that he was alleging discrimination based on sexual orientation which was not actionable under Title VII. On appeal, the Commission stated that claims of discrimination based on sexual orientation are valid claims of sex discrimination under Title VII and should be processed according to the EEOC's regulations. Complainant raised an ongoing pattern of harassment that was sufficient to state a viable hostile work environment claim. Further, one of the alleged incidents occurred within 45 days of when Complainant initiated EEO contact, and the remaining incidents were part of the same pattern of allegedly discriminatory intimidation, homophobic comments and slurs, ridicule and insult. Thus, the Agency also erred in dismissing the complaint for untimely EEO Counselor contact. Mathew R. v. Dep't of the Navy, EEOC Appeal No. 0120152376 (February 9, 2016).

Complaint Properly Dismissed for Stating the Same Claim Raised in a Prior Complaint. The Commission affirmed the Agency's dismissal of Complainant's complaint as alleging the same reduction in grade she raised in a prior complaint. Complainant averred that she subsequently learned that another employee, not in her protected classes, had received an upgrade for the same position when she was given a downgrade. The Commission determined however that Complainant merely learned additional information, and was still trying to litigate the matter that was the subject of the prior complaint. Colleen M. v. Dep't of Labor, EEOC Appeal No. 0120160347 (February 4, 2016).

Complaint Properly Dismissed Based Upon Complainant's Election to Appeal to MSPB. Complainant filed an appeal with the Merit Systems Protection Board (MSPB) following his removal. The MSPB initially found that it had jurisdiction over the matter, but agreed to dismiss the appeal pursuant to a request from Complainant's representative. Complainant then filed an EEO complaint which was dismissed by the Agency. On appeal, the Commission found that the Agency properly dismissed the complaint, stating that Complainant's withdrawal of his MSPB appeal did not negate his prior election to proceed in that forum. Horace L. v. U.S. Postal Serv., EEOC Appeal No. 0120160018 (January 28, 2016); see also Israel F. v. U.S. Postal Serv., EEOC Appeal No. 0120160291 (February 23, 2016) (despite Complainant's voluntary withdrawal of his MSPB appeal, the initial election to pursue the non-EEO process and file an appeal with the MSPB barred Complainant from also filing an EEO complaint); Rodrigo C. v. U.S. Postal Serv., EEOC Appeal No. 0120160251 (February 12, 2016) (once a Complainant elected to proceed in the MSPB forum, his withdrawal of that appeal did not negate the election and Complainant did not have the right to switch to the EEO process even if he felt he was misled by his union steward).

Complaint Improperly Dismissed. Complainant filed a formal complaint alleging a discriminatory hostile work environment that included five specific incidents. The Agency dismissed several of the incidents for untimely EEO Counselor contact, some for failure to state a claim, and some, alternatively, as raising claims that were not raised with the Counselor. On appeal, the Commission stated that the Agency fragmented Complainant's claim of ongoing hostile work environment harassment. The Commission found, therefore, that the provision of the regulations concerning claims not raised with the Counselor was not applicable since the incidents were part of a series of related allegations of harassment. Further, given the extent of the harassment claim and the fact that a number of the incidents occurred within the 45-day limitation period for initiating EEO contact, the Agency's dismissal of the complaint for failure to state a claim and untimely EEO contact were also improper. Trent M. v. Dep't of the Army, EEOC Appeal No. 0120152440 (January 28, 2016).

Complaint Improperly Dismissed for Failure to State a Claim and Abuse of Process. The Commission found that a fair reading of Complainant's complaint showed that she was alleging the denial of a promotion to a Secretary position, and her concerns regarding a rating, objectives, and the Agency's history of filling the position with contractors constituted background evidence to support her claim. The Commission noted that when a complainant does not apply for a position she generally fails to state a claim. In this case, however, Complainant was unable to apply for the position because the Agency filled vacancies with contractors which Complainant alleged was an attempt to prevent her from being placed into those positions. Thus, Complainant was aggrieved as a result of the Agency's actions. In addition, while the Agency stated that Complainant filed 17 complaints over the last twelve years; previously filed non-selection claims; and files a complaint regarding her performance rating "nearly every year," the Commission determined that Complainant's actions were not so egregious as to justify the extreme sanction of cutting off her access to the EEO process. Thus, the Agency's dismissal was improper. Eryn M. v. Dep't of the Navy, EEOC Appeal No. 0120152545 (January 19, 2016).

Complaint Improperly Dismissed for Failure to Timely Contact EEO Counselor and Failure to State a Claim. Complainant alleged that the Agency failed to provide him with a reasonable accommodation beginning in October 2014. The Commission noted that because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it. Complainant had most recently asserted that the Agency formally denied his reasonable accommodation request in April 2015, the same month Complainant contacted the EEO Counselor. As such, the Agency's dismissal of the complaint was not appropriate. The Commission rejected the Agency's assertion that the matter constituted a collateral attack on the workers' compensation process, stating that the Agency has an ongoing duty to provide reasonable accommodation regardless of the Office of Workers' Compensation Programs' process. Garrett M. v. U.S. Postal Serv., EEOC Appeal No. 0120160081 (January 14, 2016).

Dismissal of Complaint On Grounds that Matter Was Raised in MSPB Appeal Improper. The Agency filed a motion to dismiss the complaint with the AJ, arguing that Complainant's harassment claims were inextricably intertwined with his removal which he appealed to the MSPB. The Agency further stated that Complainant had an opportunity to raise the issue of discrimination with the MSPB, but failed to do so. The AJ dismissed Complainant's complaint. The Commission disagreed. The record showed that one of the incidents of harassment did not appear to be cited by the Agency in its termination decision. Further, a harassment claim is properly a part of an EEO complaint, even if that claim encompasses incidents that were related to a complainant's removal from employment which is appealable to the MSPB. Ike D. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140592 (January 12, 2016).

Complaint of Pay Discrimination Improperly Dismissed for Failure to State a Claim and Untimely EEO Counselor Contact. Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race and disability when on March 6, 2015, she learned that the position she accepted in 2008 included higher level duties for which she was not paid. She contended that she performed the same duties as others who received higher pay. The Commission rejected the Agency's assertion that the claim involved a program administered by the Office of Workers' Compensation Programs, stating that being provided a modified job offer as a result of a job-related injury does not waive the Agency's obligation to provide equal wages. Further, the Commission noted that while complaints of discrimination should be brought to the attention of an EEO counselor within 45 days, the Lilly Ledbetter Fair Pay Act of 2009 was controlling in this matter. The Act provides that in a claim of discrimination in compensation, an unlawful employment practice occurs each time wages, benefits or other compensation is paid. Thus, Complainant timely initiated counseling. Latonya D. v. U.S. Postal Serv., EEOC Appeal No. 0120160059 (January 12, 2016).

Complaint Improperly Dismissed for Failure to Cooperate. The Agency dismissed Complainant's complaint for failure to cooperate, stating that Complainant failed to respond to a request to clarify her claims. On appeal, the Commission found no evidence that Complainant engaged in contumacious behavior or delay. Complainant provided sufficient information to the EEO Counselor about her claims of discrimination. Specifically, Complainant alleged that she was subjected to harassment by a named Agency manager who accused Complainant of not completing an assigned task, revoked her telework privileges, and placed her on a Performance Improvement Plan. Ludie M. v. Nat'l Aeronautics & Space Admin., EEOC Appeal No. 0120152861 (January 5, 2016).

Agency Improperly Fragmented Claim. Complainant filed a formal complaint regarding a number of actions by Agency managers, alleging that the Agency subjected him to discrimination on the basis of disability. The Agency dismissed four claims for untimely EEO Counselor contact, one claim alternatively for failure to state a claim, and two claims because Complainant filed an appeal concerning his removal with the MSPB. The Commission stated that a fair reading of the complaint revealed that Complainant was alleging that he had been subjected to ongoing discriminatory harassment on the basis of his disability. The allegations were proffered as examples of patterned harassment, and should not have been viewed as separate claims. Since one of the incidents occurred within the 45 days preceding Complainant's EEO Counselor contact, the entire claim of harassment was timely raised. The Commission noted that while the two allegations which were raised with the MSPB could not be considered independent claims of discrimination on their own, they should be considered as evidence in support of the claim of harassment. Bruce P. v. U.S. Postal Serv., EEOC Appeal No. 0120152141 (December 18, 2015); see also Crista H. v. Envtl. Prot. Agency, EEOC Appeal No. 0120161850 (August 2, 2016) (the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment. Some incidents occurred within 45 days of Complainant's contact with the EEO Counselor, and therefore the complaint was timely raised. In addition, by alleging a pattern of harassment, Complainant stated a cognizable claim); Felisha A. v. Dep't of Transp., EEOC Appeal No. 0120140625 (June 2, 2016) (the Commission stated that the alleged incidents, taken together, constituted a claim of harassment, and Agency improperly fragmented the claim. The Commission also found that a newly raised incident was like or related to the other incidents and that at least one of the incidents alleged in the complaint was raised within the 45-day period); Giselle W. v. Dep't of the Air Force, EEOC Appeal No. 0120150467 (April 7, 2016) (the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment. A fair reading of the complaint revealed that Complainant was alleging that she had been subjected to a series of related incidents of harassment. Furthermore, the Agency improperly dismissed two claims on the grounds of untimely EEO Counselor contact, because the incidents comprised part of Complainant's hostile work environment claim and some incidents occurred within the filing period); Florentino S. v. U.S. Postal Serv., EEOC Appeal No. 0120160356 (March 17, 2016) (the Agency improperly defined Complainant's claim as a single allegation, when a fair reading of the complaint, EEO counseling report and pre-complaint documents revealed that Complainant was raising a viable claim of ongoing harassment that included incidents which occurred within 45 days of the initial EEO Counselor contact); Ardelia I. v. Dep't of the Army, EEOC Appeal No. 0120160491 (February 10, 2016) (the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment by dismissing four claims for failure to state a claim, and one claim for failure to timely contact an EEO Counselor. A fair reading of the formal complaint shows that Complainant was alleging that she was subjected to a series of related incidents of harassment, some of which occurred within the 45-day limitation period for initiating EEO contact, which together stated an actionable claim); Milissa H. v. Dep't of the Army, EEOC Appeal No. 0120151984 (January 29, 2016) (the Agency improperly dismissed Complainant's claim of discriminatory and retaliatory harassment for failure to state a claim and failure to timely initiate EEO counseling. Complainant alleged that she was subjected to a hostile work environment, including having her rating downgraded, being kicked by a co-worker, and being verbally harassed by a supervisor, and a fair reading of the complaint showed that Complainant alleged that she was subjected to ongoing harassment which was sufficient to state a claim within the EEOC's regulations. Further, the harm was ongoing because the Agency did not finalize her evaluation until after Complainant filed her formal complaint, and Complainant's EEO Counselor contact was timely because some of the alleged incidents of harassment occurred within the applicable limitation period); Detra W. v. U.S. Postal Serv., EEOC Appeal No. 0120152326 (December 3, 2015) (Complainant alleged an ongoing pattern of discriminatory and retaliatory harassment, and, therefore, the Agency's dismissal of five claims as untimely, and others for failure to state a claim was improper. Complainant's EEO Counselor contact was timely as to some of the events cited, and, therefore older claims that constituted the same unlawful practice would not be barred. Moreover, a fair reading of the complaint sufficiently revealed a cognizable claim of hostile work environment); Isabel F. v. Small Bus. Admin., EEOC Appeal No. 0120151948 (October 14, 2015) (the Agency improperly fragmented Complainant's claim. The incidents, taken together, alleged a pattern of harassment and set forth a cognizable hostile work environment claim, and at least one incident of harassment occurred within the 45 day period preceding EEO counselor contact).

Complaint Improperly Dismissed for Mootness.  Complainant filed a complaint when her days off were changed from Saturday and Sunday to Tuesday and Sunday.  The Agency dismissed the claim for mootness, asserting that Complainant's days off were restored to Saturday and Sunday under a grievance settlement.  On appeal, the Commission found that the claim was not moot because Complainant was requesting to be paid out-of schedule-pay for the times she had to work on Saturdays. Therefore the Agency had not eradicated all the effects of the alleged discrimination. Jonnie C. v. U.S. Postal Serv., EEOC Appeal No. 0120152508 (November 19, 2015).

Complaint Properly Dismissed in Part and Improperly Dismissed in Part. Complainant alleged that she was subject to a hostile work environment on the basis of sex, specifically sexual orientation, and experienced retaliation for engaging in EEO activity. The Agency dismissed the claim of sexual harassment as not being within the jurisdiction of Title VII and dismissed a claim regarding a January 2013 letter of warning as not being timely. The Agency also concluded that Complainant failed to prove that discrimination had occurred. The Commission reversed the dismissal of Complainant's claim of sex discrimination, stating that discrimination based on an individual's sexual orientation is a form of discrimination based on sex stereotypes. The Commission agreed that the letter of warning was not timely, as it was a discrete act that occurred more than 45 days before Complainant contacted an EEO Counselor. However, the Commission stated that the letter of warning could be used as support for Complainant's claim of a hostile work environment. The Commission found that the Agency failed to adequately investigate the claim of harassment and remanded the matter for the Agency to conduct a more thorough investigation. Larita G. v. U.S. Postal Serv., EEOC Appeal No. 0120142154 (November 18, 2015).

Complaint Properly Dismissed Because Complainant Elected to File MSPB Appeal. Complainant appealed his removal to the MSPB and contacted an EEO Counselor on the same day. The Commission affirmed the Agency's dismissal of the complaint on appeal. In its removal decision, the Agency advised Complainant that he could appeal the action to the MSPB if he believed it was discriminatory or initiate an EEO complaint. The Commission stated that an election occurs with the filing of an MSPB appeal or the filing of a formal EEO complaint, not initiating EEO counseling. In this case, Complainant elected to file an MSPB appeal prior to filing a formal EEO complaint. Deangelo C. v. Dep't of Homeland Sec., EEOC Appeal No. 0120152120 (November 13, 2015).

Complaint Improperly Dismissed for Filing a Grievance. The Agency improperly dismissed Complainant's complaint for filing a grievance. There was no evidence that Complainant was involved in the filing of the grievance, which appeared to have been filed independently of Complainant by the union. As such, the Agency did not establish that Complainant elected to pursue the grievance process rather than the EEO complaint process. The Commission found that while Complainant may have participated in the union's grievance, such participation did not constitute an election within the meaning of the Commission's regulations. Ciera B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120152079 (October 21, 2015).

Findings on the Merits and Related Decisions

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

Under the Age Discrimination in Employment Act

Age Discrimination Found. Complainant worked for a staffing firm serving the Agency as an Instructor in its Training and Development Branch. Complainant filed a complaint alleging, among other things, that the Agency discriminated against her based on her age when it did not give her a pay raise after her 90-day performance review. On appeal, the Commission reversed the Agency's finding of no discrimination. While an Agency manager asserted that Complainant did not receive a raise because her performance was mediocre, Complainant proved that was not true and that it was proffered as pretext to mask age discrimination. The Agency conceded that certain information in the manager's declaration, particularly with respect to performance was not supported by the record, and hence called into question the credibility of his statements in general. Thus, the Commission concluded that the Agency discriminated against Complainant based on her age when it did not recommend to her staffing firm that she get a raise following her 90-Day performance review. The Commission found no discrimination, however, with regard to Complainant's failure to receive a raise following her subsequent performance evaluation, or her removal. The Commission also found that the Agency was not involved in Complainant's removal, and therefore was not liable for the staffing firm's action. Enriqueta T. v. Dep't of the Army, EEOC Appeal No. 0120143049 (September 2, 2016).

Age Discrimination Found with Regard to Non-selection. Following a hearing, the AJ found that the Agency discriminated against Complainant on the basis of age when it did not select her for a Program Director position. The Commission affirmed the AJ's finding on appeal. The Agency did not dispute that Complainant performed the functions of the position for 12 years. The position was subsequently abolished and replaced with a two-year term which needed to be "re-funded" after that time. Complainant was placed into the position for two years, after which time a younger employee was selected for the subsequent two-year term. The Commission stated that the Agency's contentions regarding the AJ's characterization of the position unnecessarily focused on semantics. The Agency's assertions were not sufficient to disturb the AJ's findings, and ignored Complainant's vastly superior qualifications. The Commission found that the Agency failed to meet its burden of showing that the AJ's factual determinations were not supported by substantial evidence or that the AJ made legal determinations contrary to law. The Commission, however, modified the remedies awarded by the AJ, finding the award of front pay improper. The Agency was ordered, among other things, to pay Complainant back pay as specified by the AJ, and provide training for the responsible Agency officials. Donna W. v. Dep't of Transp. EEOC Appeal No. 0720160002 (August 17, 2016).

Age Discrimination Found with Regard to Non-selection. The Commission affirmed the AJ's finding of age discrimination when Complainant was not selected for a Team Leader position. The Commission agreed with the AJ's finding that the Selecting Official's asking Complainant at the beginning of the interview how many years she had left before mandatory retirement was direct evidence of age discrimination. The Commission also agreed with the AJ's finding that the Selecting Official demonstrated age bias by asking another applicant about his years before mandatory retirement, responding favorably to the applicant's reply of 9 years, and commenting that he wondered if applicants close to retirement were motivated by a move to another location at the agency's expense and not the good of the agency. The Commission found that Complainant was better qualified for the position than the selectee because she had more experience, more upper-level experience and scored better on her application. Therefore, the Agency's articulated reason for the non-selection, that the selectee was better qualified, was a pretext for age discrimination. The Agency was ordered, among other things, to offer Complainant the position or a substantially equivalent position with appropriate back pay and benefits. Geraldine G. v. U.S. Postal Serv., EEOC Appeal No. 0720140039 (June 3, 2016).

Under the Equal Pay Act

Equal Pay Act Violation Found. The Commission found that the Agency violated the Equal Pay Act (EPA) by paying Complainant at a lower grade than a male comparator who performed the same duties with the same amount of independence and authority. Complainant's supervisor acknowledged that Complainant and the comparator performed work that was substantially similar in skill, effort and responsibility under similar working conditions, and the Agency admitted that the performance plans for both employees were essentially the same. Further, the Commission found that none of the affirmative defenses to an EPA claim were applicable. While the Agency relied on its classification system, the classification system did not accurately reflect the actual duties performed in the different classifications by Complainant and the comparator. The Agency was ordered, among other things, to pay Complainant appropriate back pay and benefits. The Commission affirmed the Agency's finding of no discrimination with regard to other matters, and remanded Complainant's Pregnancy Discrimination Act claim for investigation. Heidi B. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120152308 (June 3, 2016).

Under the Rehabilitation Act

Disability Discrimination Found. The Commission affirmed the AJ's finding that the Agency discriminated against Complainant when it failed to accommodate her and ultimately terminated her from her Transportation Security Officer position. Complainant, who has epilepsy, experienced two seizures in 2010, one while at work and one while she was off duty. The Agency subsequently disqualified Complainant from her position and terminated her. The Agency did not dispute that Complainant was an individual with a disability. With regard to the issue of whether Complainant was qualified, the Agency's physician failed to explain why the two seizures were deemed complex or severe and failed to describe how the seizures interfered with daily living. Complainant's physician stated that the seizures were not debilitating, and Complainant's manager did not observe any impact on Complainant's ability to perform her duties. Therefore, the AJ's determination that Complainant was qualified was supported by the record.

Further, while the Agency asserted that Complainant could not safely perform her duties, the AJ found that the Agency failed to conduct an individualized assessment of Complainant's condition. The Agency's physician only reviewed emergency paperwork regarding the second seizure, and the Agency failed to address the factors comprising an individualized assessment on appeal. Even assuming that Complainant was medically unable to perform the duties of her position, the AJ concluded that the Agency failed to consider providing Complainant with reasonable accommodation, and substantial evidence supported the AJ's conclusion that Complainant could have been effectively accommodated by being placed on leave-without-pay for a set period to give her adequate time to medically re-qualify. The Agency failed to show that providing such an accommodation would have been an undue hardship. The Commission reversed the AJ's award of front pay as a remedy however, stating that the record showed Complainant was aware that she could reapply for her position after being seizure free for one year. The Commission affirmed the AJ's award of $75,000 in compensatory damages, and proven attorney's fees. Kathleen P. v. Dep't of Homeland Sec., EEOC Appeal No. 0720150036 (September 26, 2016).

Agency Failed to Provide Reasonable Accommodation. The Commission found that the Agency denied Complainant a reasonable accommodation when it did not provide her with a 10-minute sit down break for every hour she worked. Specifically, the Agency failed to engage in the interactive process, did not provide specific evidence proving that providing Complainant with a 10-minute sit down break for every hour she worked (or an alternative, such as a stool) would cause an undue hardship in the particular circumstances. The Commission noted that Agency policy explicitly allowed cashiers to use a stool as a reasonable accommodation, and a co-worker asserted she had used a stool for at least six years. The Commission found that Complainant failed to prove her claim of discrimination with regard to an additional matter, and also failed to prove that she was subjected to harassment. The Agency was ordered, among other things, to engage in the interactive process and provide Complainant with reasonable accommodation. Yvette H. v. Dep't of Def., EEOC Appeal No. 0120140365 (August 29, 2016).

Disability Discrimination Found When Complainant Sent Home and Denied Light Duty. The Commission found that the Agency discriminated against Complainant on the basis of disability when it sent her home and denied her request for light duty. The record contained medical statements showing that Complainant had various conditions that substantially limited her ability to lift and walk. Further, the Commission found that Complainant was qualified because, despite the Agency's assertions to the contrary, Complainant's job description did not specify that her duties included being able to consistently carry mail six hours per day. While the Agency stated that Complainant failed to provide information from her physician when she requested light duty and did not get district-level approval, the Commission found that those stated reasons were a pretext for discrimination. The record showed that Complainant did provide a note from her doctor listing her numerous restrictions. Further, the Executive Manager noted earlier that she had a copy of Complainant's restrictions, thereby contradicting the stated reason for denying Complainant light duty. Therefore, the Commission found that the Agency discriminated against Complainant based on her disability. The Commission found that Complainant failed to establish a prima facie case reprisal. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and determine the appropriate amount of back pay, interest, and other benefits due to Complainant. Sara S. v. U.S. Postal Serv., EEOC Appeal No. 0120152270 (August 5, 2016).

Direct Evidence of Disability Discrimination Found. Complainant worked as a Criminal Investigator with the Agency's Forest Service. Complainant's duties involved working with local law enforcement to conduct drug operations/investigations dealing with illegal marijuana gardens. Complainant's duties included both office work and performing on-site inspections, which involved crawling, walking, and running. Complainant sustained an on-the-job injury, and was temporarily unable to perform certain physical activities. During this time, management allowed Complainant to perform site operations from a helicopter or landing zone so she would not have to go directly onto the site with law enforcement teams. Complainant's supervisor, however, received a complaint from local law enforcement that running operations from the helicopter was a safety concern for team members on the ground. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it threatened to remove her from her position, assigned a co-worker to write an operation plan, and gave her a "Fully Successful" performance rating with a lower award.

On appeal, the Commission initially found that the AJ properly issued a decision without a hearing, but erred in finding no discrimination in the Agency's favor. In so finding, the Commission noted that when the Agency accommodated Complainant's injury, requested medical documentation, assigned her to administrative duties, and lowered her performance rating due to her injury it treated her as if she were substantially limited in the major life activities of walking and standing. Complainant's supervisor admitted lowering Complainant's performance rating because she could not fully participate in the on-site inspections. Therefore, the Agency regarded Complainant as having an impairment that substantially limited a major life activity. The Commission further found that Complainant was a qualified individual with a disability because a majority of Complainant's duties required desk work, and on-site operations occurred at most once per week and sometimes only once per month. The Commission found that the supervisor's admissions that he directed a co-worker to write an operations plan after receiving a complaint about Complainant's injury, and that he did not give Complainant the higher performance rating because she did not fully participate in operations were direct evidence of disability discrimination. The Agency was ordered, among other things, to change Complainant's performance appraisal, pay Complainant any associated award, expunge all documentation mentioning the lower appraisal from Complainant's Official Personnel File, and investigate Complainant's claim for compensatory damages. Johana S. v. Dep't of Agric., EEOC Appeal No. 0120131804 (July 1, 2016).

Per Se Violation of the Rehabilitation Act Found. The Commission affirmed the AJ's issuance of a decision without a hearing, but reversed the AJ's finding of no discrimination regarding Complainant's allegation that two co-workers accessed her confidential medical records. The Commission found this was a per se violation of the Rehabilitation Act. The Commission has previously rejected the distinction between a complainant's status as a patient and a complainant's status as an employee with respect to accessing confidential medical records. The record clearly showed, without dispute, that the two named employees accessed Complainant's confidential medical records, and an investigation revealed that the access was neither job-related nor consistent with business necessity. The Agency was ordered, among other things, to investigated Complainant's claim for damages, and ensure that its database was managed in such a way as to prevent the release of medical information in violation of the Rehabilitation Act. The Commission affirmed the AJ's finding of no discrimination regarding Complainant's complaint of harassment and non-selection for a promotion. Melanie F. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142156 (June 23, 2016).

Disability Discrimination Found with Regard to Termination. The Commission found that the Agency violated the Rehabilitation Act when it terminated Complainant from the position of Law Enforcement Park Ranger because he failed a color-blindness test. Specifically, Complainant was unable to distinguish different shades of green. The Agency did not dispute that Complainant was an individual with a disability. Further, the Commission stated that Complainant had successfully performed in the position for the previous three years and could distinguish red from green. The Commission found that the Agency failed to establish that Complainant's deficiency posed a direct threat to his safety or the safety of others. Two optometrists supported Complainant's assertion that his condition had no impact on his job performance, and the Agency failed to perform an individualized assessment, including having complainant take a "functional color test." The Agency was ordered, among other things, to offer Complainant reinstatement to his seasonal position, and pay him appropriate back pay and benefits, as well as any compensation for adverse tax consequences of receiving back pay as a lump sum. The Commission found no violation of the Genetic Information Nondiscrimination Act, because Complainant actually had a current impairment and was protected by the Rehabilitation Act. Dong F. v. Dep't of the Interior, EEOC Appeal No. 0120140109 (June 3, 2016).

Denial of Reasonable Accommodation Found. The Agency conceded that Complainant was an individual with a disability due to her ADHD. On appeal, the Commission found that the Agency failed to reasonably accommodate Complainant's disability when the Agency waited two years before meeting Complainant's request to move to a quiet work area. The Agency also failed to show that it would have been an undue hardship to modify the manner in which Complainant was expected to handle phone calls, change how work was assigned to Complainant, or grant other reasonable accommodations. The Commission also found that the Agency violated the Rehabilitation Act when it kept Complainant's confidential medical information in her non-medical personnel file. The Agency was ordered, among other things, to expunge the negative performance reviews from Complainant's file, expunge all medical information from non-medical files, ensure that Complainant's medical information is maintained in a separate and appropriate medical file, and investigate her claim for compensatory damages. Michelle G. v. Dep't of the Treasury, EEOC Appeal No. 0120132463 (May 13, 2016).

Denial of Reasonable Accommodation Found. Complainant alleged, among other things, that the Agency discriminated against her on the basis of disability (ADHD) when she was denied the accommodation of telecommuting. On appeal, the Commission affirmed the AJ's finding that the Agency failed to provide Complainant with reasonable accommodation. Complainant was substantially limited in her ability to concentrate as a result of her condition and other medical conditions. Complainant also experienced side effects from multiple medications which affected her ability to concentrate. While the Agency initially provided temporary accommodations, it subsequently denied Complainant's request for regular telework, a private office or cubicle, or a modified work schedule after finding that the request was unsupported. The Commission found that the Agency failed to present sufficient evidence that granting Complainant's request to regularly work from home and/or allowing Complainant to work from one of the empty offices would have been an undue hardship. The Commission found no basis to disturb the AJ's summary judgment decision finding that Complainant was not subjected to discrimination or reprisal when she was not selected for new positions. With regard to damages, the Commission found the AJ's award of $40,000 for non-pecuniary compensatory was insufficient and increased the award to $60,000. The Commission affirmed the AJ's award of pecuniary damages, attorney's fees and costs, and equitable relief. Selma D. v. Dep't of Educ., EEOC Appeal No. 0720150015 (April 22, 2016).

Denial of Reasonable Accommodation Found. Complainant worked as a Transportation Security Officer (TSO). After twice failing a required recertification test, Complainant asked for someone to read the questions to her. The Training Manager denied a request by Complainant's supervisor for a reader, and Complainant advised the supervisor that she had dyslexia. The Training Manager again denied the request, stating that reading English was a requirement of the TSO job, and Complainant must read the questions herself. After failing the exam a third time, Complainant filed an EEO complaint alleging that she was denied reasonable accommodation. Following a hearing, the AJ determined that the Agency violated the Rehabilitation Act when it denied Complainant a reader for the test, and the Commission affirmed the AJ's decision on appeal. The Commission initially determined that it had jurisdiction over the issue since Complainant did not challenge a statutorily-mandated standard and requested an accommodation in the administration of the exam. The Commission then found that Complainant was an individual with a disability based on her dyslexia and was qualified to perform the TSO position. The Agency failed to engage in the interactive process and did not request additional information from Complainant regarding her request for a reader. Therefore, the Commission held that the Agency failed to provide Complainant with a reasonable accommodation. As relief, the Agency was ordered, among other things, to pay attorney's fees and costs as well as $5,000 in proven non-pecuniary damages. Melani F. v. Dep't of Homeland Sec., EEOC Appeal No. 0720150027 (March 15, 2016).

Denial of Reasonable Accommodation Found. The Commission found that the Agency discriminated against Complainant when it denied her reasonable accommodation. Complainant was a qualified individual with a disability because she was substantially limited in walking, and successfully performed the essential functions of her position as reflected in her "fully successful" performance evaluations. Further, Complainant provided the Agency with medical documentation demonstrating her need to avoid fluorescent light because those lights induced headaches and seizure-like episodes; her need to use automatic doors because her considerable difficulty in walking and mobility impairments made it difficult for her to open the doors in her workplace; and a need to avoid loud sounds which could precipitate migraines and allergies.

The Commission found that the Agency did not provide Complainant with an effective accommodation when it required her to seek assistance in opening doors from security guards and co-workers because there were many times from 2010 until 2012, when she could not obtain such assistance. Further, requiring Complainant to be at the mercy of others to provide her with access to her workplace was unacceptable. The Agency did not install automatic doors at Complainant's work suite until almost two years after she notified the Agency of her difficulty in using non-automatic doors, and there was no evidence the Agency ever installed an automatic door at the garage entrance. The Commission also found that Complainant proved that she was denied a reasonable accommodation when the disabled access door near the lobby was blocked with equipment, and when the Agency failed to assist her with packing and moving her belongings to the new office; did not allow her to telework during a 10-week period of construction on her building; and did not replace the fluorescent bulbs in the room in which Complainant worked. The Commission reminded the Agency that it has a responsibility to make sure that its facilities are accessible, and ordered the Agency to, among other things, install automatic doors at Complainant's work facility, including the entrances/exits to the garage area and suites, as well as provide Complainant with other specified accommodations. The Commission found that the Agency did not discriminate against Complainant with regard to additional matters raised in her complaints. Latarsha A. v. Fed. Energy Regulatory Comm'n, EEOC Appeal Nos. 0120123215 & 0120131079 (March 15, 2016).

Agency Violated Rehabilitation Act by Releasing Confidential Medical Information. The Commission found a violation of the Agency's responsibilities under the Rehabilitation Act regarding the recordkeeping of confidential medical information. Specifically, the Agency disclosed Complainant's medical diagnosis to the Chief Union Steward who did not have a need to know during the Agency's handling of Complainant's Notice of Proposed Removal. The information was confidential and the Agency acknowledged that it was released without Complainant's consent. The Agency was ordered, among other things, to investigate Complainant's claim for damages. Buster D. v. Dep't of Agric., EEOC Appeal No. 0120141171 (March 11, 2016).

Denial of Reasonable Accommodation Found. Complainant filed an EEO complaint alleging that the Agency denied him a reasonable accommodation. Complainant indicated that while his supervisor initially allowed him to shift the computer on his desk from the "standard" position to a position that lessened his back pain, his manager subsequently ordered him to return his computer to the "standard" position. The Agency's District Reasonable Accommodation Committee (DRAC) closed the request because Complainant allegedly did not provide supporting documentation. On appeal, the Commission found that the Agency discriminated against Complainant when it failed to reasonably accommodate him. The Agency acknowledged that Complainant was an individual with a disability, and there was no indication that he could not perform his modified limited duty position. Further, the Commission found that the record did not support the manger's actions. Complainant had been provided with a reasonable accommodation as authorized by the supervisor. The accommodation was merely a shift of a monitor on the desk without a request for additional equipment and did not disrupt the workplace. While the manager alleged that it was a safety concern, she did not consider the fact that it was a safety issue for Complainant to have the computer in the "standard" position due to his back condition. The Commission found no support for the manager's requirement that Complainant obtain further authorization for his requested accommodation by going before the DRAC. The Agency was ordered, among other things, to investigate Complainant's claim for compensatory damages, allow Complainant to move the computer monitor on his desk such that it lessens his back pain, and provide training for the manager addressing her responsibilities with respect to reasonable accommodation. Faustino M. v. U.S. Postal Serv., EEOC Appeal No. 0120160319 (February 25, 2016).

Denial of Reasonable Accommodation Found. Complainant alleged that the Agency denied his request to telework as a reasonable accommodation and subsequently terminated his employment. At the time he was hired, Complainant informed the Agency that he had a medical condition that caused debilitating symptoms including double vision and periods of total incapacitation. The Agency acknowledged that Complainant was an individual with a disability. On appeal, the Commission found that Complainant was a qualified individual and that the Agency failed to satisfy its obligations under the Rehabilitation Act. The Agency failed to offer Complainant reassignments within his geographical location. In addition, by offering Complainant "take it or leave it" positions and then terminating him, the Agency improperly ended the interactive process after Complainant declined the reassignments. The Commission determined that the Agency's termination of the interactive process resulted in its failure to accommodate Complainant. Complainant's supervisor deemed Complainant qualified for the reassignment positions and, had the Agency not ended the interactive process, it could have provided him with telework in either of the offered positions. In so finding, the Commission stated that an agency should not deny a request to telework as a reasonable accommodation solely because a job involves some contact and coordination with other employees. Having found discrimination, the Commission stated that Complainant was entitled to compensatory damages since the Agency failed to demonstrate that it had acted in good faith in attempting to accommodate his disability. As part of the relief awarded, the Commission ordered the Agency to offer to reinstate Complainant to his position, with any necessary effective accommodation, including telework, retroactive to the effective date of his termination, and investigate Complainant's claim for damages. Harvey G. v. Dep't of the Interior, EEOC Appeal Nos. 0120132052 & 0120150844 (February 4, 2016).

Medical Confidentiality Violation Found. Complainant, a General Attorney, sent her first-level supervisor an email indicating that she would be taking leave to see an orthopedic surgeon to discuss knee surgery. Upon receiving the email, the supervisor forwarded the information contained therein to two Deputy Associate Chief Counsels because, according to the Agency, the supervisor believed Complainant's absence might affect the assignment or processing of work. The Commission found that the Agency violated the Rehabilitation Act when the supervisor revealed Complainant's medical information to unauthorized persons and failed to collect and maintain such information in separate and appropriate medical files. The Commission noted that the supervisor could have informed the two managers that Complainant would be unavailable without revealing information regarding her medical condition or surgical needs, especially since the record did not show that Complainant's condition restricted her work or duties. The Commission found that Complainant failed to prove that she was denied reasonable accommodation, and that the Agency properly dismissed a claim concerning a security clearance initiated by another agency. Haydee A. v. Dep't of Homeland Sec., EEOC Appeal No. 0120132668 (January 19, 2016).

Denial of Reasonable Accommodation Found. The Commission found that the Agency failed to provide reasonable accommodation for Complainant's disability when it denied him an accessible parking space. Complainant's condition substantially limited the major life activity of walking, and Complainant's request for a designated parking space went unresolved for more than seven months. Complainant pointed out an area to the supervisor that would have provided him with a short, easy walk to his facility. However, the supervisor responded that the location was "first come, first serve," and instead of designating the area as reserved for individuals with disabilities, the supervisor told Complainant to investigate how to obtain designated parking spaces. While the supervisor averred that his requests for disability parking were denied by the Security Office, there was no indication that Complainant would have been more successful in obtaining designated parking. As part of the relief awarded, the Commission ordered the Agency to conduct a supplemental investigation to determine whether Complainant was entitled to compensatory damages and provide training for the supervisor. The Commission affirmed the Agency's finding that Complainant was not subjected to discriminatory harassment or discriminated against with regard to his termination. Freddie M. v. Dep't of Def., EEOC Appeal No. 0120140976 (January 8, 2016).

Denial of Reasonable Accommodation and Breach of Medical Confidentiality Found. The Commission found that the Agency failed to reasonably accommodate Complainant's hearing impairment and failed to maintain his confidential medical information in a separate file. The Agency did not dispute that Complainant was a qualified individual with a disability. Further, the Agency failed to rebut Complainant's contention that it could have provided him with a low noise environment without undue hardship. The Commission rejected the Agency's argument that noise level readings were not considered unsafe by Occupational Health and Safety Administration (OSHA) standards, as essentially irrelevant to Complainant's disability. In addition, the evidence established that a supervisor left Complainant's confidential medical information on his desk for approximately one week. The Commission again rejected as irrelevant the Agency's argument that there was no proof that it disclosed the medical information to an unauthorized person. The Commission ruled that the Agency's failure to maintain Complainant's medical information in a separate medical file was unlawful. As part of the relief awarded, the Commission ordered the Agency to immediately accommodate Complainant, notify him of his entitlement to compensatory damages, and take steps to ensure that the confidential medical documentation of all employees is kept in separate, secure medical files. Arnoldo P. v. U.S. Postal Serv., EEOC Appeal No. 0120123216 (January 8, 2016) (A discussion of the sanctions imposed by the AJ is included below. - Ed.)

Disability Discrimination Found with Regard to Non-selection and Failure to Maintain Confidential Medical Records. Complainant filed a complaint after a supervisor rejected his application for a security detail position. The supervisor denied the request after reading a letter from Complainant's psychiatrist that was mistakenly placed in Complainant's personnel file. The letter, which urged special consideration for Complainant regarding a particularly tough performance review, led the hiring supervisor to believe that Complainant was unable to handle stress. Although the Commission noted that Complainant did not prove that he had a disability, it held that he was regarded as having a substantial impairment in the major life activity of working in a wide range of jobs. Further, the supervisor's admission that she did not interview Complainant because of the letter constituted direct evidence of discrimination, and the Commission noted that it was more likely than not that Complainant would have been selected for the job had the supervisor not read the letter. Therefore, the Commission found that the Agency subjected Complainant to disability discrimination when it did not select him for the position. The Commission further found that the Agency's failure to maintain Complainant's confidential medical information in a separate medical file constituted a per se violation of the Rehabilitation Act. The Agency was ordered, among other things, to ensure that all confidential medical information for all employees is kept in a separate medical file apart from the official personnel files, and investigate Complainant's claim for damages. Riley G. v. Dep't of Homeland Sec., EEOC Appeal No. 0120112139 (November 20, 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 teleworking two days per week, with the option to switch telework days for inclement weather conditions. On appeal, the Commission found that the Agency erred when it did not analyze whether Complainant was denied a reasonable accommodation. The Commission noted that, throughout the record, Complainant clearly contended that the Agency was aware of his conditions, and failed to provide him with an accommodation after he requested one. Further, there was no dispute that Complainant was a qualified individual with a disability. The Commission disagreed with the Agency's finding that Complainant's reasonable accommodation "expired," stating that there was no evidence that Complainant's need for an accommodation, which was obvious, was eliminated. The Commission found that the Agency failed in its duty to engage in the interactive process to determine if there was an effective accommodation for Complainant's disability and failed in its obligation to develop an adequate record through investigation. The Commission also found that the Agency failed to show that accommodating Complainant would have resulted in an undue hardship. In regards to Complainant's other complaints the Commission agreed with the Agency that Complainant failed to establish a prima facie case of retaliation and hostile work environment. The Agency was ordered, among other things, to investigate Complainant's claim for damages and provide training for the responsible management officials. Clayton C. v. Dep't of Transp., EEOC Appeal No. 0120120350 (November 17, 2015).

Disability Discrimination Found. The Agency requested that Complainant return to work and denied his further requests for sick leave, even though Complainant and his psychiatrist explained that he could not return to work at that time due to his major depression. Not believing Complainant or his psychiatrist, the Agency required Complainant to submit to a fitness for duty examination, which it used to deny him further use of sick leave for his disability. The Agency did not provide Complainant with any form of reasonable accommodation after it denied him sick leave. As a result, Complainant took annual leave for one month and then retired. During this time, the Agency presented Complainant with no accommodations. The Commission found that the Agency did not demonstrate that the fitness for duty examination was job-related or consistent with business necessity. Further, Complainant was substantially limited in the major life activity of concentrating due to his medical condition. Complainant identified two vacant positions to which he could have been reassigned, and the Agency did not dispute Complainant's assertion that he could have performed the essential functions of either position. The Agency also did not dispute that it failed to engage in the interactive process. The Commission found that due to the Agency's failure to engage in the interactive process, Complainant was left with no other choice but to retire, and that Complainant's retirement amounted to a constructive discharge. The Agency was ordered, among other things, to retroactively offer Complainant an Executive Service position or other mutually agreed upon position, with appropriate back pay and benefits, and investigate his claim for compensatory damages. Arnold C. v. U.S. Postal Serv., EEOC Appeal No. 0120093856 (November 3, 2015).

AJ's Finding of Disability Discrimination Affirmed. The Commission affirmed the AJ's finding that the Agency failed to reasonably accommodate Complainant's disability when it did not significantly reduce his typing requirement or assist him with the walking that was required of his position. The Agency did not dispute that Complainant was a qualified individual with a disability. Further, the record showed that Complainant repeatedly attempted to seek various accommodations and was largely ignored or provided with insufficient accommodation. The Commission stated that after subjecting Complainant to an independent medical examination, the Agency failed to comply with the recommendations of its own physician. The Commission concluded that the Agency was liable for its failure to accommodate Complainant, and the resulting hostile environment which led to Complainant's inability to work. The Agency was ordered, among other things, to pay Complainant back pay from the date of his retirement until the date he either accepted or rejected reinstatement, or the date on which it was determined that Complainant could not be accommodated in the position, as well as pay Complainant $250,000 in proven non-pecuniary compensatory damages. Augustine S. v. Dep't of Homeland Sec., EEOC Appeal No. 0720110018 (October 22, 2015).

Denial of Reasonable Accommodation Found.  The Commission found that the AJ's decision to issue a decision without a hearing was appropriate. The Commission found, however, that the AJ erred when she found in favor of the Agency rather than Complainant. The Commission found that, because of her medical conditions, Complainant was substantially limited in the major life activities of performing manual tasks and working. The Commission further determined that while Complainant failed to prove that she was denied a reasonable accommodation when the Agency moved her to a cold work area, Complainant did establish that the Agency denied her reasonable accommodation when management ordered her to work outside her restrictions. According to the record, the Agency was specifically on notice that Complainant was restricted from operating machinery when a supervisor directed her to do so, and, as such the Agency was liable for compensatory damages associated with that action. Mckenzie L. v. U.S. Postal Serv., EEOC Appeal No. 0120073428 (October 14, 2015).

Denial of Reasonable Accommodation Found. Complainant injured his knee and ankle, which prevented him from being able to stand for long periods of time or engage in physical activities such as twisting. The Commission found that the Agency failed to provide reasonable accommodation by placing Complainant in a position that required long periods of standing and walking. The Agency did not fail to provide reasonable accommodation by refusing to place Complainant in the position that Complainant desired but that was incompatible with Complainant's medical restrictions. The Agency satisfied its obligation to provide accommodation when it offered Complainant a position that complied with Complainant's medical restrictions even though Complainant accepted the position with qualifications. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide training for management officials at the facility. Harold M. v. Dep't of the Air Force, EEOC Appeal No. 0120081812 (October 14, 2015).

Denial of Reasonable Accommodation Found. Complainant filed a complaint alleging disability discrimination when he was not provided with a stool at his workstation. The Postmaster agreed that Complainant could use a stool, but required him to go to the register room and retrieve it himself. The Commission found that Complaint was an individual with a disability based upon a note from Complainant's doctor stating that Complainant's conditions left him unable to stand for more than a few minutes at a time. The doctor recommended that Complainant use a stool at his work station. The Commission found that requiring Complainant to retrieve and carry the stool himself was not an effective accommodation given Complainant's limitations in standing and walking, and Complainant was therefore entitled to present a claim for compensatory damages. The Commission found that Compliant failed to establish additional claims of disparate treatment and harassment. The Agency was ordered, among other things, to provide Complainant with a reasonable accommodation and investigate his claim for compensatory damages. Collin R. v. U.S. Postal Serv., EEOC Appeal No. 0120113831 (October 14, 2015).

Denial of Reasonable Accommodation Found. Complainant suffered from episodic migraines related to lighting and continuously asked for reasonable accommodations such as being placed in an office with natural light and installing non-fluorescent lighting. Following a hearing, the AJ issued a final decision finding disability discrimination. The Commission rejected the Agency's contention on appeal that Complainant was not an individual with a disability under the Rehabilitation Act. Complainant's testimony, as corroborated by her doctors, established that the nature and severity of her impairment was such that she was substantially limited in several major life activities, and the Agency did not offer any persuasive evidence to contradict Complainant's testimony. The Commission also rejected the Agency's assertion that it made a good faith effort to accommodate Complainant, stating that the Agency unduly delayed providing her with an effective accommodation, and failed to demonstrate that providing an effective accommodation would have been unduly burdensome. The Commission affirmed the AJ's award of $60,000 in proven non-pecuniary compensatory damages, as well as $3,544.80 in pecuniary damages. The Agency was also ordered, among other things, to provide an effective reasonable accommodation for Complainant's disability. Yessenia H. v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070027 (October 13, 2015).

Under Title VII

Sexual Harassment Found. The Commission found that Complainant was subjected to sexual harassment when an Agency manager grabbed her around the waist and kissed her. In reversing the AJ's decision, the Commission found that the AJ abused his discretion when he found the manager to be a credible witness despite the manager's absence from the hearing. There was no question that the AJ relied upon his determination that the manager was a credible witness in finding that Complainant failed to prove that the incident complained of had actually taken place. The AJ, however, could not observe the manager's tone and demeanor because the manager was not present at the hearing. Therefore, the Commission accorded no evidentiary weight to the AJ's determination regarding the credibility of the manager.

While there were no witnesses to the incident, Complainant did inform other individuals of the manager's actions both immediately and in the days and weeks that followed, and the record included statements and testimony from those individuals. The fact that Complainant told the same story to four different people, and had been under psychiatric care since shortly after the incident, was sufficient for the Commission to conclude that that the manager's version of event lacked credibility. Taken as a whole, the record presented sufficient evidence to support a finding that the incident did occur as Complainant described it. The record also included notes from Complainant's union representative regarding other incidents of harassment by the manager, including the manager buying gifts for Complainant, rubbing her shoulders, and calling her "baby doll," as well as reported incidents of harassment of other females by the manager. The Commission stated that, at one point the manager commented that he could "really be a mean person," which implied a threat to use the authority of his position to pressure Complainant. Therefore, the Commission found that the manager was acting in an Agency capacity at the time of the harassment and that the Agency failed to take corrective or preventative measures. As such, the Agency was liability for the manager's actions. The Agency was ordered, among other things, to determine the appropriate amount of back pay, interest, restoration of leave, and other benefits due Complainant as a result of the harassment, and investigate her claim for damages. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (September 13, 2016).

Sexual Harassment Found. Complainant alleged, among other things, that she was subjected to sexual harassment that included sexual comments and unwanted touching. On appeal, the Commission found that Complainant's version of the events was supported by a preponderance of the evidence, and her account was detailed and internally consistent. Complainant gave a detailed description of the incidents and dates, and the record showed that a co-worker also complained of being harassed by the same supervisor. Further, another supervisor corroborated that the harasser told her sexual jokes and said he loved her. The Agency conceded that the actions were unwanted, and were severe and pervasive. Further, the Agency acknowledged that a reasonable person would view the work environment as hostile, offensive or abusive. While the harassment did not result in a tangible employment action, the Commission stated that the Agency did not raise an affirmative defense and in fact found there was a basis for imputing liability because the harasser was an Agency supervisor. Therefore, the Commission concluded that Complainant was subjected to discriminatory sexual harassment. The Commission affirmed the Agency's finding of no discrimination with regard to other issues raised in the complaint. The Agency was ordered, among other things, to investigate Complainant's claim for damages, conduct appropriate training for management and staff at the facility, and consider taking disciplinary action against the harasser. Blanca B. v. Dep't of State, EEOC Appeal No. 0120151876 (July 7, 2016).

Denial of Religious Accommodation Found. Complainant alleged, among other things, that the Agency failed to provide him with religious accommodation so he could attend Easter services. The Commission has recognized several alternatives for accommodating conflicts between work schedules and religious practices, including voluntary substitutions and swaps, flexible scheduling, lateral transfers, and changes in job assignments. With regard to voluntary substitutions or swaps, the Commission has stated that the obligation to accommodate requires employers to facilitate the securing of a voluntary substitute. In this matter, the record did not show that the Agency took any action to facilitate voluntary swaps. Instead, management placed the burden solely on Complainant. Consequently, the Commission did not find that the Agency's suggestion that Complainant ask colleagues to swap schedules constituted a good faith effort to reasonably accommodate Complainant's religious beliefs. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide training to management officials at Complainant's facility. The Commission affirmed the Agency's findings that Complainant was not discriminated against when he was not selected for various positions and denied leave, as well as the Agency's finding that Complainant was not subjected to discriminatory harassment. Ronnie S. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120132198 (May 17, 2016).

Agency Liable for Sexual Harassment. Three female Complainants alleged sexual harassment when the Director at the location where the women worked installed a hidden video camera in the women's restroom. The underlying facts in all three complainants were the same, so the Commission consolidated them for joint appellate decision. The Agency argued that it should not be held liable for the Director's actions because it took "prompt and effective action to prevent further harassment and correct what had already occurred." In all three complaints, the Agency conceded there was clear evidence of unwelcome conduct of a sexual nature and the Director admitted that he videotaped only women. The Agency also acknowledged that the Director's actions created an offensive work environment for Complainants. The Commission rejected the Agency's assertion that it took corrective action once it was informed of the Director's actions, stating that Base Security was informed of the camera within hours of its placement in the women's bathroom. The Commission noted that the harm began as soon as the camera was set in place by the Director who was the highest ranking Agency official at the facility. The Commission noted that in cases when both parties exercise reasonable care, the Agency's affirmative defense will fail. Therefore, despite the Agency's best efforts when it learned of the harassment, the Commission could not find Complainants unreasonably failed to take advantage of any preventative or corrective opportunities. The Commission has recognized the "alter ego" theory of liability where the harasser is of sufficiently high rank to be treated as the Agency's proxy, resulting in his conduct being directly imputed to the Agency. The Agency was ordered, among other things, to investigate Complainants' claims for compensatory damages, and conduct training for management officials. Scarlet M., Maxima R., & Sharolyn S. v. Dep't of the Navy, EEOC Appeal Nos. 0120150940, 0120150941 & 0120151220 (April 13, 2016).

National Origin Discrimination Found. The Commission found that the Agency discriminated against Complainant on the basis of national origin when, after a contractor complained of a "language barrier," the Agency required Complainant to communicate with the contractor through a supervisor or senior employee. Complainant's supervisor acknowledged that she and a manager decided to impose the requirement because the contractor complained that she was unable to understand Complainant's data requests and that there was a "language barrier." Thus, the supervisor's statements established that the Agency took the actions complained of because of Complainant's linguistic characteristics. The Commission found that this constituted direct evidence that Complainant's national origin motivated the Agency's actions. The Commission found no evidence that the Agency investigated the contractor's complaints, and the supervisor specifically noted that the contractor's claim "may or may not have been true." Further, the evidence did not establish that a "language barrier" existed, and the Agency did not show that it would have taken the same action absent consideration of the discriminatory factor. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide EEO training for the management officials involved in the action. Genny L. v. Dep't of Def., EEOC Appeal No. 0120122795 (February 23, 2016).

Under Multiple Bases

Sex and Age Discrimination Found with Regard to Involuntary Reassignment. The Commission affirmed the AJ's finding that the Agency discriminated against Complainant when it compelled her, on penalty of termination, to accept a reassignment. The Commission rejected the Agency's argument that Complainant failed to show that she was subjected to adverse treatment or that she was treated differently from similarly situated employees outside her protected classes. According to the record, Complainant was involuntarily reassigned from a position in which she had worked nearly her entire career and had developed expertise to a position where she had very little experience. The Commission noted that an adverse action merely required a tangible change in the duties or working conditions constituting a material employment disadvantage. Further, the Commission determined that Complainant was the only person involuntarily reassigned to a less desirable position, which was sufficient to show others outside of her protected groups were treated more favorably. The AJ stated that it was "implausible" that the Agency could respect Complainant's leadership skills as greatly as it asserted and yet risk losing her services by threatening her with termination if she did not accept a reassignment it knew she did not want. The Commission affirmed the AJ's finding that the Agency's explanation for its action was unworthy of belief, and therefore, Complainant's reassignment was found to be discriminatory. The Commission affirmed the AJ's award of $15,000.00 in non-pecuniary damages, and ordered the Agency, among other things, to provide at least four hours of training to the responsible management official. Kristy D. v. Dep't of the Interior, EEOC Appeal No. 0720160003 (August 10, 2016).

AJ's Finding of Age and Race Discrimination Affirmed. Following a hearing, the AJ found that the Agency discriminated against Complainant on the basis of age and race when it did not select him for a Trainee program. Complainant received the fifth highest score from the ranking panel, but the Selecting Official, who did not conduct interviews, selected eight other applicants for the position. The AJ found that the Agency's reason for not selecting Complainant were a pretext for discrimination, and the Commission found that the AJ's analysis and conclusions were supported by substantial evidence in the record. Specifically, at least one of the selectees did not have the knowledge or experience that Complainant had. Further, the AJ found that the Agency failed to produce certain information during discovery and at the hearing, and made decisions during the selection process which were inconsistent with its policies. The Commission found that substantial evidence supported the AJ's conclusion that race and age were motivating factors given the fact the Selecting Official was aware of Complainant's race and age, and no African-Americans in Complainant's age bracket were selected for the program. The Commission agreed with the Agency that Complainant was not entitled to back pay because he earned more during the applicable period than he would have earned if chosen for the program. Further, the Commission reduced the AJ's award of compensatory damages to $5,000, stating that the amount was consistent with awards in similar cases, and found that the Agency failed to present sufficient evidence to justify any additional reduction in the attorney's fees award. Cletus W. v. Dep't of the Treasury, EEOC Appeal No. 0720160008 (August 3, 2016).

Pregnancy Discrimination and Retaliation Found. Complainant was selected for a position as a Defense Liaison, and prior to reporting to her assignment, needed to complete the requisite training. Complainant was scheduled to attend training from April 29 to July 29, 2011, but asserted that management did not want her to attend due to concerns that she could not safely complete the training because of her pregnancy, and that her condition would cause liability for the Agency. Complainant was ultimately removed from the course. An AJ issued a decision without a hearing finding no discrimination. The Commission affirmed the AJ's finding that Complainant was not discriminated against on the basis of disability, but found that Complainant was subjected to sex (pregnancy) discrimination and retaliation. Complainant did not experience any complications due to her pregnancy that would have prevented her from safely completing the training, and management's concerns were rooted in speculation that it was unsafe for Complainant to complete the course while pregnant. The Commission found that, without any supporting evidence, this kind of stereotyping was prohibited by the Pregnancy Discrimination Act, and that the circumstances in the case constituted direct evidence that Complainant was subjected to sex discrimination because of her pregnancy. The Commission also found that Complainant was subjected to reprisal discrimination when she was denied admission to the subsequent August training. The Agency was ordered, among other things, to offer Complainant a Defense Liaison position, or a substantially equivalent position with appropriate back pay, interest, and benefits. Roxane C. v. Dep't of Def., EEOC Appeal No. 0120142863 (July 19, 2016).

National Origin Discrimination and Retaliation Found. The Agency filed an appeal from an AJ's finding that it subjected Complainant to national origin (Hispanic) discrimination and retaliation when it did not promote him. On appeal, the Commission affirmed the AJ's decision. The AJ found the testimony of two managers that Complainant's position description should reflect the duties of his position rather than the duties he actually performed, and that Complainant was "non-communicative and uncooperative" was not credible and was contradictory. The Commission noted that substantial evidence supported the AJ's finding that an Agency supervisor failed to follow Agency protocol to conform Complainant's position description to his actual duties and responsibilities. Neither management official rebutted Complainant's description of his actual duties or explained why those duties did not support a promotion. Finally, one of the officials exhibited racially insensitive attitudes toward Hispanics. The Agency was ordered, among other things, to retroactively promote Complainant with appropriate back pay and benefits, and pay him $50,000 in proven compensatory damages. Tyrone D. v. Dep't of Def., EEOC Appeal No. 0720160005 (June 16, 2016) .

Denial of Reasonable Accommodation and Retaliation Found. Complainant was diagnosed with breast cancer and developed Carpal Tunnel Syndrome and pain in her legs from chemotherapy. On appeal, the Commission found that Complainant was an individual with a disability because she was limited in the major life activity of walking. The Commission held that the Agency denied Complainant reasonable accommodations when it did not allow her to use leave share for her Carpal Tunnel Syndrome and when it did not reassign her to an open position. Further, the Commission concluded that the Agency retaliated against Complainant when it issued a letter threatening her with adverse action for her leave usage soon after she sought leave in 2008. The Commission also found that the Agency violated the Rehabilitation Act when two managers improperly filed Complainant's medical information. Contrary to the Agency's assertion, such actions violate the Rehabilitation Act, even if the medical information was not disclosed to third parties. The Agency was ordered, among other things, to offer Complainant an Administrative Assistant or an equivalent position and to pay her appropriate back pay. Denese L. v. Dep't of the Interior, EEOC Appeal No. 0120130297 (May 13, 2016).

Age and National Origin Discrimination and Harassment Found. The Commission found that Complainant was subjected to harassment because of his age and national origin, and discriminated against when he was not selected for two positions. Specifically, a co-worker made derogatory comments about Complainant's age and national origin during public briefings, including referring to Complainant as "the old guy," asking Complainant if he could find his way to a meeting, and asking Complainant whether he remembered things. Several witnesses corroborated Complainant's claims of harassment, and indicated that the co-worker frequently made derogatory statements about Complainant's age and national origin. Complainant repeatedly contacted an EEO Counselor to complain about the harassment, and complained to an Agency manager, but the preponderance of the evidence revealed that instead of ceasing, the harassment increased in frequency. Therefore, the Commission determined that the Agency was liable for the co-worker's conduct because it failed to exercise reasonable care to prevent and correct the harassing behavior. The Commission further found that the Agency failed to articulate a legitimate, nondiscriminatory reason for not selecting Complainant for two positions. The Agency merely provided vague, subjective reasons for the non-selections which, when considered in light of the pervasive and offensive name calling which existed at the facility, were a pretext for discrimination. The Agency was ordered, among other things, to retroactively promote Complainant with back pay and appropriate benefits. Bryan T. v. Dep't of Homeland Sec., EEOC Appeal No. 0120122110 (March 18, 2016).

Sex Discrimination and Retaliation Found. The Agency filed an appeal from an AJ's decision finding that it discriminated against Complainant on the basis of sex and reprisal when it involuntarily detailed her for 120 days, permanently removed her from her Director position, and subsequently detailed her to another position. On appeal, the Commission affirmed the AJ's decision. The record showed that Complainant had 30 years of service as a manager. Following a single incident with a male co-worker, the Agency detailed Complainant out of her managerial position. Then after Complainant contacted an EEO counselor to challenge the reassignment, the Agency initiated an investigation of Complainant's "management style" and replaced her with a lower-level male employee who had worked under Complainant. The AJ found that Complainant was unlawfully forced to leave her managerial position, while the Agency took no action against the male coworker who instigated the conflict and exhibited inappropriate speech and conduct toward Complainant. Further, days before the incident, Complainant's supervisor acknowledged that Complainant was meeting the Agency's standards for managers, and it was undisputed that Complainant's supervisor initiated an investigation shortly after Complainant contacted an EEO Counselor. The Commission concluded that the record supported the AJ's finding that Complainant was discriminated against based on her sex and EEO activity. The Agency was ordered, among other things, to reinstate Complainant and pay Complainant $75,000 in proven non-pecuniary damages. Meghann M. v. Soc. Sec. Admin., EEOC Appeal No. 0720150028 (March 15, 2016).

Disability Discrimination and Retaliation Found. The Commission found that the Agency discriminated against Complainant when it denied him reasonable accommodation, and subjected him to reprisal when it deterred him from seeking reasonable accommodation. The Agency conceded that Complainant was an individual with a disability as a result of paralysis in his right leg and foot, and that he was qualified to perform the essential functions of his job. According to the record, Complainant, who had limited ambulation, requested accommodation for additional time during his breaks in order to move back and forth to his work station, and also a modification of his arrival and departure times. Complainant identified a number of available potential accommodations, and the Agency did not effectively respond to any of them or show that they would pose an undue hardship. Further, the Commission noted that a request for accommodation is a form of protected EEO activity. The record showed that after an EEO Official advised Complainant that reasonable accommodation was to "help employee[s] do their job and not change their [time on duty]," Complainant believed he could not request an accommodation and did not file a formal accommodation request. The Commission stated that the Agency's actions in deterring Complainant from filing a request for accommodation constituted reprisal. The Agency was ordered, among other things, to engage in the interactive process to determine an appropriate extension time for breaks and adjustment to Complainant's arrival and departure times, and calculate compensatory damages for the harm caused by the reprisal. Harland B. v. Dep't of the Treasury, EEOC Appeal No. 0120130672 (December 10, 2015).

Sex Discrimination and Retaliation Found. Complainant alleged sex discrimination and reprisal, claiming that she was denied a time-off award, that her request for a transfer was denied, and that a supervisor made disparaging comments regarding her protected EEO activity. Following a hearing, an AJ found that the Agency denied the Complainant a time off award because of her sex and prior EEO activity, noting that similarly situated male employees received time off awards under similar circumstances. The AJ also found that the denial of Complainant's transfer request and subsequent disparaging comments constituted reprisal. The Agency accepted the AJ's finding that the disparaging comments constituted reprisal, but rejected the other findings. On appeal, the Commission found that the AJ did not abuse her discretion when she struck evidence proffered by the Agency relating to its alleged legitimate, nondiscriminatory reason for denying the award. The Agency did not produce the documentation within the time required by the AJ, and the AJ found that the delay prejudiced Complainant. Additionally, the Commission held that substantial evidence supported the AJ's finding that the denial of a transfer request constituted reprisal because Complainant's first-line supervisor denied the request in order to preserve the appearance that he had done nothing wrong, while other supervisors and Agency investigators in fact recommended the transfer. The Agency was ordered, among other things, to pay Complainant $33,000 in proven compensatory damages, compensate her for any lost leave and the time off award, and pay appropriate attorney's fees and costs. Zoila P. v. Dep't of Justice, EEOC Appeal No. 0720130036 (November 24, 2015).

Disability Discrimination and Retaliation Found. The Commission reversed the Agency's finding that Complainant was not disabled, ruling that conditions which prevented Complainant from engaging in the major life activity of lifting constituted a disability. The Commission found that the Agency did not fail to provide reasonable accommodation by refusing to adjust Complainant's work schedule, because Complainant did not provide a sufficient nexus between her condition and her work schedule. The Commission did find that the Agency failed to provide reasonable accommodation when it denied Complainant's requests to perform light duty. While the Postmaster claimed that Complainant did not submit updated medical documentation and there was no work available within her restrictions, those contentions were contradicted by the documentary evidence and testimony of two Agency managers. The Commission also ruled that the denial of light duty was retaliatory despite facially reasonable explanations provided by the Postmaster because these reasons were disputed by conflicting testimony from other managers, the Postmaster had referred to Complainant's prior EEO activity when discussing her requests within the Agency, and the request was granted shortly after Complainant contacted a Congressman about the situation. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and restore any leave used as a result of the denial of accommodation. Kylee C. v. U.S. Postal Serv., EEOC Appeal No. 0120090617 (October 13, 2015).

Denial of Reasonable Accommodation, Disability-Based Harassment and Retaliation Found.  Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of disability when it denied her reasonable accommodation.  On appeal, the Commission rejected the Agency's position that Complainant was not a qualified individual with a disability entitled to reasonable accommodation.  The Commission found that Complainant's impairments substantially limited her ability to walk and stand, and evidence from Complainant's medical providers clearly established that she was an individual with a disability. The Agency did not argue that Complainant was unable to perform the essential functions of her position. The Commission also found that the Agency denied Complainant's request for reasonable accommodation when the Agency did not allow Complainant to use the elevator during a fire drill and when her supervisors required her to walk back and forth from their offices, instead of allowing her to communicate via e-mail. The Commission stated that one supervisor's testimony that he was not aware Complainant had trouble walking was not credible given the testimony in the record from other employees that they witnessed Complainant have difficulty walking and standing. The Commission also found that the supervisor's actions created a hostile work environment, and constituted disability-based harassment. Further, the Agency retaliated against Complainant when it denied her training.  The Commission remanded the matter to the Agency to take remedial action. Iliana S. v. Dep't of Justice, EEOC Appeal No. 0120081848 (October 13, 2015).

Retaliation

Per Se Reprisal Discrimination Found. The AJ found that the Agency subjected Complainant to per se reprisal when a manager made retaliatory statements during a staff meeting. The Commission affirmed the AJ's finding on appeal. Relying on witness testimony, the AJ determined that the manager's statements were intended to deter the employees from engaging in EEO activity. The AJ found that although the manager paid lip service to employees' rights to pursue an EEO complaint, the manager's statements regarding record-keeping, legal sufficiency, and the supposed futility of exercising statutorily protected rights were clearly designed to have a chilling effect on the use of the EEO process. The Commission rejected the Agency's assertion that the AJ failed to apply the "but for" causation standard articulated in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), stating that the Commission has repeatedly held that the "but for" standard discussed in Nassar does not apply to retaliation claims by federal sector applicants or employees. The AJ correctly concluded that the manager's statements constituted reprisal because they were reasonably likely, and in fact clearly intended, to deter a reasonable employee from engaging in protected EEO activity. The Commission affirmed the AJ's finding of no discrimination with regard to other incidents raised in Complainant's complaint. The Agency was ordered, among other things, to pay Complainant $8,000 in proven compensatory damages, and proven attorney's fees. Mindy O. v. Dep't of Homeland Sec., EEOC Appeal No. 0720150010 (September 2, 2016) .

Per Se Retaliation Found. The Commission found that two supervisors pulling Complainant into an office and asking if he said that he planned to "play the Latino card" in the context of investigating a complaint from another employee constituted per se retaliation because such behavior could have a chilling effect on the use of the EEO process. The Commission noted that comments which, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC's regulations and evidence a per se violation of the law. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and take steps to ensure that all retaliation at the facility ceases. The Commission found that Complainant failed to prove his allegations of harassment. Ivan V. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141416 (June 9, 2016).

Agency Failed to Articulate Non-Discriminatory Reasons for its Actions in Case of Retaliation. The Commission found evidence of retaliation when Complainant, who had previously filed and prevailed on a race discrimination complaint in connection with a former performance rating, was subsequently rated "Fully Successful" in a later rating. The rating was allegedly based on input from Complainant's former first-line supervisor who was also involved in the previous discriminatory rating. On appeal from the final agency decision finding no discrimination, the Commission found that the Agency failed to articulate legitimate, non-discriminatory reasons for its actions. The evidence largely addressed who authored the performance appraisal, and there was limited, if any, explanation for the rating itself. The Commission further found it suspect that management denied Complainant's claim that these same management officials had previously discriminated against him. Finally, the Commission found evidence of a retaliatory bias against Complainant in the record, including a manager's comments about Complainant's EEO activity. As part of the relief awarded, the Commission ordered the Agency to reissue Complainant's rating and change it to "Excellent" and provide him with a corresponding retroactive bonus. Mitchell H. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141025 (May 27, 2016).

Commission Affirms AJ's Finding of Reprisal Discrimination. The AJ found that Complainant's supervisor engaged in reprisal discrimination when she posted a bible scripture in her office. The Commission stated that substantial evidence supported the AJ's finding that Complainant's supervisor kept the sign in her office in order to antagonize and discourage those employees who had filed religious discrimination complaints. Therefore, the Commission found that the supervisor's actions were motivated by retaliatory animus and were reasonably likely to deter Complainant or others from engaging in protected EEO activity. The Agency was ordered, among other things, to pay Complainant $1,000 in proven non-pecuniary damages, and applicable attorney's fees. The Commission affirmed the AJ's finding of no discrimination with regard to other matters raised in the complaint. Nadene M. v. Dep't of Justice, EEOC Appeal No. 0720150018 (May 20, 2016).

Retaliation Found. The Agency concurred with the AJ's findings that it retaliated against Complainant when it issued her a proposed suspension and letter of reprimand. On appeal, the Commission affirmed the AJ's finding that Complainant was also subjected to retaliation when the Agency investigated her for having contraband in the form of her personal recording device at an Agency facility. The AJ determined that while the Agency articulated legitimate, nondiscriminatory reasons for its actions, specifically, that Complainant violated Agency policy prohibiting contraband at its facility the preponderant evidence established that the Agency's reasons were pretextual. Complainant provided credible evidence that other employees were treated differently than she was, and that management deviated from standard procedure in her case. The AJ did not credit Agency testimony regarding the reasons for conducting the investigation. The Commission found the AJ's award of $50,000 in proven compensatory damages and the award of attorney's fees to be reasonable. The Commission stated, however, that Complainant was not entitled to a promotion or back pay. Hannah C. v. Dep't of Justice, EEOC Appeal No. 0720150004 (March 10, 2016).

Improper Handling of Complainant's EEO Complaint Files Constituted Per Se Reprisal. The Commission found per se retaliation when the Agency's EEO Complaints Manager disclosed documents related to Complainant's prior EEO complaints to the Chief Executive Officer. There was no question that if the Agency believed that Complainant had violated a law or policy, she could be subjected to an investigation like any other employee. In this case, however, the Agency failed to provide a plausible explanation for why Complainant's EEO records needed to be reviewed, if the concern was with her e-mails. The only reasonable explanation was that the Agency was seeking to deter Complainant's protected EEO activity and that of others. The Commission specifically noted that in one of the e-mails cited by management as evidence that Complainant allegedly violated the chain of command, Complainant indicated that she might have been subjected to continued harassment. Thus, Complainant's complaints about harassment resulted in her being investigated. The Agency admitted that Complainant's EEO files were left unsecured in the Chief Executive Officer's office for a period of time, and the Commission found that there was a blatant mishandling of Complainant's EEO complaint files. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training for the named management officials. Zenia M. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120121845 (December 18, 2015).

Retaliation Found When Agency Investigated Complainant. Complainant filed a formal complaint alleging, among other things, that the Agency retaliated against him when it investigated him for alleged misconduct. Complainant stated that prior to the investigation he told a supervisor that he intended to file an EEO complaint regarding a selection decision because he thought he was being treated differently than other employees. On appeal, the Commission stated that although Complainant's manner of opposition was rather direct and bold, it was not unduly disruptive or insubordinate, or otherwise unreasonable. As such, the Commission found that Complainant engaged in protected EEO activity when he questioned the selection decision, told the supervisor that he had been treated differently than other Federal Air Marshalls, and asserted that he would file an EEO complaint about the matter. Further, the Agency acknowledged that it investigated Complainant because of his EEO activity. Although the investigation did not result in any further action against Complainant, the Commission determined that investigating Complainant was reasonably likely to deter employees from engaging in EEO activity. The Commission found that Complainant failed to prove his additional claims of discrimination and hostile work environment. Devon H. v. Dep't of Homeland Sec., EEOC Appeal Nos. 0120131649 & 0120131684 (December 18, 2015).

Retaliation Found When Agency Failed to Substantiate Reasons for Denying Promotion. Complainant alleged, among other things, discrimination on the basis of reprisal when he was not selected for a promotion. The Agency did not find discrimination. The Commission reversed the Agency and found discrimination on Complainant's claim regarding the denial of promotion, finding that the Agency failed to provide an adequate explanation for not selecting Complainant. The Commission stated that it was not sufficient for the Agency to provide a ranking of the candidates considered for the promotion in which Complainant was ranked last without disclosing how it determined those rankings. The Commission affirmed the Agency's findings of no discrimination regarding a reassignment, a pay increase and training as the Agency was able to provide explanations that were not proven to be pretextual. The Agency was ordered, among other things, to retroactively offer Complainant the promotion with appropriate back pay and benefits, and investigate Complainant's claim for damages. Devon H. v. Dep't of Homeland Sec., EEOC Appeal No. 0120131083 (December 3, 2015).

Unlawful Reprisal Found. Complainant claimed that he experienced reprisal from his supervisors after speaking to another person in management about the supervisors' discriminatory treatment of female employees in the Agency. The Agency claimed that Complainant did not engage in protected activity because his complaints about the supervisors were not specific to the treatment of women. The Commission found that Complainant's activity was protected and the Agency was aware of the protected activity because evidence and testimony indicated that the parties involved knew that his complaints pertained to the treatment of women in the office. The Commission also found that Complainant was subjected to adverse actions shortly after his complaints were made, to which multiple Agency employees attested, and for which the supervisors could offer no credible legitimate explanation. Specifically, the Commission concluded that assertions by two management officials regarding Complainant's work product were not credible and the comments made about Complainant went beyond his work product or personnel issues. Thus, the Commission found that Complainant demonstrated that he was subject to unlawful reprisal for reporting the mistreatment of women by his supervisors. The Agency was ordered, among other things, to offer Complainant a temporary detail. Jeramy R. v. Dept. of Justice, EEOC Appeal No. 0120132089 (November 19, 2015).

Commission Affirms AJ's Finding of Retaliation. When Complainant was removed from his position he filed an EEO complaint in which he claimed the Agency discriminated against him on the bases of race, sex, color, age, and reprisal for prior protected EEO activity. The AJ determined that Complainant failed to establish a prima facie case of discrimination based on race, sex, color, or age, but did successfully establish a prima facie case of reprisal. The Commission affirmed the AJ's findings on appeal. While the Agency asserted that Complainant had performance problems, Complainant was rated "fully successful" or better, and his appraisal did not reference any of the alleged problems. Further, the supervisor's testimony regarding Complainant's performance was contradicted by the testimony of a higher level management official who the AJ found to be credible. The Commission affirmed the AJ's award of $23,375 in non-pecuniary damages due to the emotional harm Complainant suffered from the reprisal. Elbert H. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140032 (November 13, 2015).

Retaliatory Harassment Found.  Complainant filed an EEO complaint alleging, among other things, that Agency managers harassed her when they issued a memorandum containing incorrect information about her. Following an investigation, the Agency found no discrimination. On appeal, the Commission found that the memorandum, which expressed concerns about Complainant's ethics and candor, questioned her compliance with Agency policies, and criticized her work, constituted retaliatory harassment. The Agency had previously found that Complainant was subjected to a retaliatory hostile work environment perpetrated by the same individual who drafted the memorandum. The Commission did not view the memorandum in isolation, but stated that it was another incident of harassment and retaliation for Complainant's prior EEO activity. The Commission affirmed the Agency's finding of no discrimination with regard to the denial of Complainant's request to serve as an instructor and evaluator because Complainant did not show that the explanation given for the supervisor's denial of Complainant's requests was pretext to mask discrimination. Anne C. v. Dep't of Justice, EEOC Appeal No. 0120132758 (November 10, 2015).

AJ's Finding of Retaliation Affirmed. The Commission found that the AJ applied the proper causation standard when finding that Complainant was subjected to retaliatory harassment. The Commission 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. In this case, Complainant participated in prior protected EEO activity by filing previous EEO complaints and alleging in his prior workers' compensation claims that he had been subjected to unlawful discrimination and harassment. He also opposed the harassment directly to two supervisors. The AJ correctly found that Complainant was subjected to adverse actions when his supervisor rejected his work reports, told him to bring in more thorough medical documentation, told the police that Complainant should be a suspect in a burglary at the facility, and tried to inform Complainant's future employer about his prior protected EEO activity. The Commission agreed that these actions were reasonably likely to deter an individual from engaging in the EEO process. The Commission further found that Complainant was able to show causation because the record established that retaliation for his prior protected activity more likely than not motivated the challenged actions. The Commission noted that it did not find anything in the record to contradict the AJ's credibility determinations. The Commission did find that a second AJ who issued a decision on damages erred when he limited the harassment timeframe to six months and the Commission clarified that the correct timeframe in which the harassment occurred. Therefore, the Commission increased the award of non-pecuniary compensatory damages to $125,000. Donny F. v. Dep't of Homeland Sec., EEOC Appeal No. 0720130035 (October 20, 2015).

Retaliation Found. Complainant injured herself and requested reasonable accommodation for her disability while simultaneously providing Agency management with medical documentation which outlined her restrictions. After the request, management accused Complainant of lying about her injury and potentially harming herself to support her claims. Agency officials also pressured Complainant to accept an assignment that violated her medial restrictions and charged her with AWOL when she had to undergo surgery. Eventually Complainant was terminated due to unsatisfactory work. Following a hearing, the AJ found, among other things, that Complainant failed to establish a prima facie case of reprisal and did not show that she was subjected to harassment. The Commission found that the AJ erred as a matter of law with regard to the basis of reprisal, noting that a request for reasonable accommodation constituted protected activity under the Rehabilitation Act, and management officials were aware of Complainant's request. Therefore, Complainant established a prima facie case of reprisal. The Commission also found the Agency liable for the hostile work environment based on retaliation since the actions were directly related to Complainant's request for accommodation, and the management officials' actions resulted in Complainant's termination, a tangible employment action. The Agency did not appeal the AJ's finding of disability discrimination when it failed to provide her with reasonable accommodation and terminated her. The Commission affirmed the AJ's order requiring the Agency, as part of its interactive process for reasonable accommodation, to provide Complainant with a list of all vacant positions in the geographic area specified by Complainant on an ongoing basis for a period of 90 days. Tammy S. v. Dep't of Justice, EEOC Appeal No. 0720130022 (October 2, 2015).

Remedies

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

Back Pay and Other Remedies Addressed. The Commission previously found that Petitioner was subjected to unlawful ongoing racial harassment that resulted in his constructive discharge. Petitioner subsequently claimed that the Agency failed to properly calculate back pay. The Commission concluded that the Agency incorrectly found Petitioner was not entitled to any back pay. According to the record, Petitioner was unemployed for approximately six months following his constructive discharge, after which he obtained a full-time job with a federal contractor. Therefore, Petitioner should have been awarded back pay from the date of his resignation (constructive discharge) until he started earning more than he would have had he still been employed with the Agency taking into account any step increases, promotions or other bonuses Petitioner would have received had he continued working at the Agency. The Commission also ordered the Agency to make Complainant whole in regard to benefits such as annual leave, sick leave, health insurance, overtime, and retirement contributions he would have earned but for the discrimination. Further, the Agency was ordered to cover any additional tax liability from a lump sum payment of back pay to Complainant. Finally, the Commission ordered the Agency to provide adequate evidence to support its claim that it deducted amounts from Complainant's subsequent paychecks for overpayment unrelated to this case. Vaughn C. v. Dep't of the Air Force, EEOC Petition No. 0420160004 (April 15, 2016).

Agency Failed to Comply with Order to Offer Petitioner an Appropriate Position. After the Agency found that it discriminated against Petitioner when it did not select him for a position, Petitioner challenged the Agency's award of remedies on appeal. The Commission ultimately ordered the Agency, among other things, to place Petitioner into a GS-13 level Center Director position or a substantially equivalent position similar in duties, responsibilities, and location, that is a reasonable commuting distance. The Commission subsequently granted Petitioner's petition for enforcement, noting that although the Agency offered Petitioner five Center Director positions, they were not within a location remotely close to the position that Petitioner was discriminatorily denied. The Agency asserted that it was unable to offer Petitioner the position which he was denied because it was currently occupied by the employee who was selected over Petitioner. The Commission, however, has previously held that bumping an incumbent is a permissible remedy when other relief would be unjustly inadequate. In this case, there were no apparently substantially equivalent positions in terms of commuting distance, and the Agency's offer of positions in completely different geographic locations throughout the country was plainly an unjustly inadequate remedy. Therefore, the Commission concluded that bumping the incumbent employee was the only remedy that would make Petitioner whole, and Petitioner was entitled to be placed into that position. Toney E. v. Dep't of Agric., EEOC Petition No. 0420150019 (March 18, 2016).

Agency Failed to Compensate Petitioner for Additional Tax Liability. The Commission found that the Agency was not in compliance of its previous order specifically directing the Agency to compensate Petitioner for the tax consequences of a lump-sum payment. The clear intent of this order was to ensure that Petitioner was not required to pay any additional taxes as a result of the remedies he received following the Commission's finding of discrimination. Petitioner submitted detailed information from the individual who prepared his taxes regarding the additional tax calculations, which the Agency did not challenge on appeal. Therefore, the Agency was ordered to pay Petitioner that amount. Stefan H. v. Dep't of Justice, EEOC Petition No. 0420150008 (February 18, 2016).

Remedies Discussed. The Agency found that it denied Complainant reasonable accommodation and constructively discharged him. The Agency provided back pay and compensatory damages. Complainant appealed the Agency's decision regarding relief, claiming that he should be provided with two-years of front pay, as well as increased amounts of back pay and damages. The Commission rejected Complainant's claim for increased back pay, finding that the Agency offered Complainant reinstatement in good faith, which he twice rejected along with the ordered back pay award. The Agency properly advised Complainant of his responsibility to report outside earnings, and Complainant's decision to reject the offer of reinstatement terminated the back pay period. The Commission also affirmed the Agency's award of nonpecuniary, compensatory damages of $85,000, taking into consideration prior Commission decisions upholding similar awards. Finally, the Commission found that the Agency rightly denied Complainant's request for front pay. Front pay is available only as an equitable remedy where reinstatement is impossible. Here, the Agency complied with its reinstatement order, but Complainant failed to provide the information necessary to provide effective accommodations. Billy B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120132680 (November 19, 2015).

Agency Failed to Comply with Order Regarding Back Pay. Petitioner petitioned for enforcement of an order for the Agency to provide him with back pay following an unlawful termination, alleging that the Agency improperly offset back pay owed to him based on outside earnings and improperly excluded a period of time from the back pay calculations. The Agency asserted that because Petitioner had secured employment for a period of time, it offset the back pay award based on Petitioner's hourly wage and number of hours worked per week while he was employed in that position. The Commission upheld the use of Petitioner's alternative employment to offset back pay, but found that the Agency's improperly excluded a period of time during which Petitioner was unemployed from back pay calculations. The Commission found that Petitioner had not failed to mitigate the damages of his unemployment and had been actively seeking work throughout that period. The Commission also stated that Petitioner's prolonged unemployment was at least in part attributable to depression resulting from his unlawful termination. The Commission rejected the Agency's argument that Petitioner was not entitled to additional back pay because he had received compensatory damages, stating that an award of compensatory damages has no bearing on back pay owed by Agency. Damon Q. v. U.S. Postal Serv., EEOC Appeal No. 0420130028 (November 19, 2015).

After-Acquired Evidence Does Not Bar Agency's Liability for Back Pay and Compensatory Damages. In a prior decision, the Commission held that the Agency discriminated against Complainant when it denied him a medical clearance without conducting an individualized assessment into whether his alleged disability constituted a direct threat. Subsequently, the Agency discovered that Complainant was ineligible for employment because he had not registered with the Selective Service System. The Agency withdrew its conditional offer of appointment and issued a decision denying compensatory damages. On appeal, the Commission rejected the Agency's assertion that the case involved a mixed motive, stating that instead the evidence of Complainant's unsuitability constituted after-acquired evidence which did not bar the Agency's liability for having engaged in unlawful discriminatory conduct. There was no dispute that the Agency discriminated against Complainant when it initially denied him a medical clearance. The Commission concluded that Complainant was not eligible for appointment in light of a determination that retroactive placement into the position was not an available remedy given the decision by the Office of Personnel Management. The Commission found, however, that Complainant was entitled to back pay from the date of his non-selection to the date on which the Agency discovered that Complainant was not suitable, i.e., the date on which it learned that Complainant had not registered for the Selective Service. Complainant was also entitled to compensatory damages, given that victims of discrimination may suffer injury regardless of whether a legitimate reason for an adverse action is subsequently discovered. Harvey D. v. Dep't of State, EEOC Appeal No. 0120122385 (October 22, 2015).

Commission Affirms AJ's Order Requiring Agency to Change its Policy on Reasonable Accommodation. After finding that the Agency discriminated against Complainant when it failed to reasonably accommodate her, the AJ ordered the Agency, among other things, to change its national policy to reflect its obligation to offer reassignment as a reasonable accommodation to Transportation Security Officers. The Agency challenged only that provision of the order on appeal. The Commission has previously held that the determination as to whether an individual is a qualified individual with a disability does not end at the position held by the employee. The Commission rejected the Agency's assertion that requiring it to change its current policy under the Aviation and Transportation Security Act exceeded the Commission's authority. The AJ's remedy merely required the Agency to create a policy that reflected the obligation that it already had, that is to offer a reasonable accommodation in the form of a reassignment when appropriate to Transportation Security Officers. Further, the Agency's Reasonable Accommodation Program Manager testified that it was the Agency's policy that Transportation Security Officers were not eligible for accommodation when they could not meet the statutory requirements of the position, and the Commission concluded that this supported the need for an agency-wide modification of the existing policy. Marielle L. v. Dep't of Homeland Sec., EEOC Appeal No. 0720140024 (October 22, 2015).

Sanctions

Commission Affirms AJ's Dismissal of Hearing Request as Sanction. The Commission found that the AJ did not abuse her discretion when she dismissed Complainant's request for a hearing as a sanction for not complying with the AJ's orders. The AJ's Scheduling Order set forth a deadline for filing pre-hearing reports and advised the parties that the failure to comply with the order could result in sanctions, including dismissal. Complainant failed to comply with the AJ's orders despite having over two months' notice that she needed to submit a pre-hearing report. The Commission concluded that, because the sanction was within the AJ's discretion, the AJ properly remanded the matter to the Agency to issue a decision on the record. The Commission affirmed the Agency's finding that Complainant failed to prove that she was subjected to discrimination and harassment. Marguerite W. v. Dep't of Agric., EEOC Appeal No. 0120141902 (September 16, 2016).

Commission Affirmed AJ's Issuance of Default Judgment as Sanction. The Commission affirmed the AJ's issuance of a default judgment against the Agency as a sanction for the Agency's failure to provide the complaint file in a timely manner. The Agency failed to demonstrate good cause or provide any reason or explanation for the delay, and the Commission found that a default judgment in Complainant's favor was not an abuse of the AJ's discretion. The Commission noted that the Agency should have raised an alleged mail room issue, which was resolved prior to the issuance of the AJ's decision, with the AJ rather than on appeal. Further, Complainant established a prima facie case of discrimination with respect to three matters raised in her complaint. The Commission stated that it was not an abuse of discretion for the AJ to draw an adverse inference that the information in the complaint file would have reflected unfavorably on the Agency. The Agency was ordered, among other things, to pay Complainant $25,000 in non-pecuniary damages, as well as proven back pay and attorney's fees. Candance C. v. Gen. Serv. Admin., EEOC Appeal No. 0720160013 (August 8, 2016).

Commission Affirms AJ's Order of Attorneys' Fees as Sanction. The Commission found that the AJ properly exercised her discretion and acted consistently with the Commission's regulations, guidance and precedent when she twice sanctioned the Agency and ordered the Agency to pay attorneys' fees. In the first instance, the Agency failed to follow the AJ's instructions when it served Complainant with a motion to reschedule a settlement conference solely by regular mail. The Agency was aware that Complainant and Complainant's counsel resided in Guam and served the motion only two days before the scheduled conference despite the AJ's order requiring service by facsimile as well. The Agency's counsel also did not attempt to e-mail or call Complainant's counsel, and Complainant incurred attorneys' fees when his counsel appeared at the originally scheduled time for the conference.

In the second instance, the AJ sanctioned the Agency for refusing to participate in settlement discussions at the settlement conference. While the Commission noted that an agency's decision whether to offer to settle a complaint is wholly within the agency's discretion, the Commission took issue with the Agency's claimed "long standing policy" of not voluntarily participating in a settlement conference with an AJ who is assigned to conduct the hearing. Complainant asserted that the Agency initially only refused to negotiate because it believed Complainant's offer was "unreasonably high." Further, the Commission's regulations expressly provide that an AJ may engage the parties in settlement discussions, and that settlement conferences may be conducted by the AJ of record. Although the Agency's decision whether to offer to settle the complaint was within its discretion, the AJ had the authority to conduct a settlement conference. The Commission concluded that the AJ carefully tailored the sanctions to the Agency's actions, and did not abuse her discretion in sanctioning the Agency by ordering it to pay appropriate attorneys' fees. Gilbert B. v. U.S. Postal Serv., EEOC Appeal No. 0720150008 (March 18, 2016).

Commission Issued Default Judgment as Sanction for Agency's Delay in Issuing Final Decision. Complainant filed an EEO complaint in which she alleged, among other things, that she was subjected to harassment on the basis of disability. Following an investigation, Complainant requested that the Agency issue a final decision, and the case was received by the Agency's adjudication office on December 5, 2012. After Complainant submitted a motion to the Commission for sanctions, the Agency issued a final decision on February 10, 2014, finding that Complainant did not prove that she was subjected to unlawful discrimination or harassment. On appeal, the Commission found that the Agency's conduct in this case warranted sanctions. The EEOC's regulations provide that an agency shall issue its final decision within 60 days of receiving notification that a complainant has requested an immediate decision. In this case, the Agency waited over one year after the regulatory time frame to issue its final decision. The Agency did not provide any explanation for its extraordinary delay in issuing the final decision, despite receiving notice of Complainant's motion for sanctions. In considering the appropriate sanction, the Commission noted that Complainant was stranded in a "procedural no man's land" wherein she had no recourse within the administrative process until the Agency issued a final decision. The Commission further noted that it previously warned the Agency that its lengthy delay in issuing final decisions was a serious matter. The Commission determined that default judgment in favor of Complainant was warranted as a sanction in this case. With regard to the appropriate remedy, the Commission found that posting a picture on Complainant's office door that singled her out for ridicule because of her medical condition was severe enough to create a hostile work environment, and Complainant established a prima facie case of harassment. The Agency was ordered, among other things, to investigate Complainant's claim for compensatory damages, and provide at least eight hours of in-person EEO training to all management and supervisory officials at Complainant's facility. Glynda S. v. Dep't of Justice, EEOC Appeal No. 0120133361 (February 23, 2016).

Canceling Hearing Request as Sanction Found Overly Harsh. The AJ dismissed Complainant's hearing request because Complainant, through her attorney at the time, failed to make required prehearing submissions within the established deadline. Complainant asserted, on appeal, that her prior attorney generally complied with the AJ's orders, and was required to file a motion to compel the Agency to comply with discovery. In addition, Complainant's prior attorney timely responded to the AJ's Show Cause Order. On appeal, the Commission found that given the specific circumstances of this case, the AJ erred by not properly tailoring the decision to impose sanctions against Complainant. The Commission further found that cancelling the hearing, particularly in light of what the AJ recognized as less than exemplary behavior of Agency counsel, was overly harsh in this case. Ada L. v. U.S. Postal Serv., EEOC Appeal No. 0120141610 (February 18, 2016).

Commission Affirmed AJ's Imposition of Sanctions for Complainant's Conduct During Discovery. The Commission found that the AJ properly sanctioned Complainant by cancelling his request for a hearing based upon Complainant's conduct during discovery. According to the record, video depositions of at least four Agency management officials were uploaded to a website using the Agency's name. The Agency moved for sanctions asserting that Complainant uploaded the videos, and Complainant's representative responded that Complainant neither admitted nor denied the allegations. Complainant was aware that the EEO proceedings were confidential and that information gathered during the investigation was restricted. The AJ found that rather than using discovery for the intended purpose of obtaining relevant evidence, the uploading of the video depositions was clearly meant to harass and intimidate witnesses which had a chilling effect on the EEO process. The AJ ordered Complainant, among other things, to remove the videos from the website and provide written confirmation that he had done so. When Complainant failed to abide by the AJ's order, the AJ dismissed Complainant's hearing request. The Commission found that Complainant's conduct showed a lack of respect for the EEO process, the discovery process, and the privacy rights of the management officials. Further, the videos had not been removed from the website at the time of the Commission's decision, which evidenced a continuing and ongoing disregard for the EEO process. The Commission stated that the AJ did not abuse her discretion when she issued the sanction order by email as Complainant consented to service in that manner. Arnoldo P. v. U.S. Postal Serv., EEOC Appeal No. 0120123216 (January 8, 2016) (The Commission's findings addressing the merits of the underlying complaint are discussed above. - Ed.)

Commission Issued Default Judgment for Complainant as Sanction. The Commission sanctioned the Agency for failing to provide the report of investigation in Complainant's complaint. The Commission stated that it notified the Agency of the appeal in 2012, and of the requirement to submit a copy of the entire complaint file. After receiving an incomplete file, and despite numerous informal attempts to obtain the missing information, the Commission issued a Show Cause Order. The Agency produced the hearing transcripts and many of the same documents previously submitted, but did not produce the report of investigation or pre-hearing motions and orders. Therefore, the Commission issued a decision partially in favor of Complainant. The complaint involved multiple non-selections, and the Commission found that the record contained the most available documentary evidence as to one specific Deputy Regional Administrator position. The Commission found that a complete report of investigation would show that Complainant established a prima facie case of reprisal as to that position, and that the Agency's articulated reasons for not selecting Complainant were pretextual. The documentation in the record showed that Complainant was deemed qualified and referred for hiring, and that the alleged responsible official was aware of Complainant's prior EEO activity. Therefore, the Commission concluded that the Agency subjected Complainant to reprisal when it did not select him for the position. The Agency was ordered to offer Complainant the position, and pay him appropriate back pay and benefits. The Commission affirmed the AJ's finding of no discrimination with regard to the other vacancies. Gerald L. v. Dep't of Transp., EEOC Appeal No. 0120123187 (December 17, 2015).

Commission Issued Default Judgment for Complainant as Sanction. After a hearing, an AJ determined that Complainant did not prove that the Agency subjected her to discrimination or harassment. Complainant filed an appeal and the Commission sent a letter to the Agency asking it to provide the complete record pertaining to the complaint. The Agency only partially complied with the request so the Commission issued a "Notice to Show Good Cause Why Sanctions Should Not Be Imposed." Specifically the Notice stressed that the hearing transcript was missing from the record. The Agency never responded to the Notice. Since the Agency failed to submit the hearing transcripts and provided no explanation for its failure to comply, the Commission found that the imposition of sanctions was warranted. The Commission determined that a default judgment was a proper sanction in this case because without a hearing record the Commission could not properly review whether the record supported the AJ's determination and Complainant was prejudiced by the Agency's failure to comply with the Notice. The Commission found that the appropriate remedy in this case was for the Agency to retroactively promote Complainant to a Management Analyst Position with back pay since she was able to establish prima facie cases of discrimination based on race, color, and reprisal. The Commission also ordered the Agency, among other things, to conduct a supplemental investigation on compensatory damages and provide a minimum of eight hours of in-person training to its EEO managers and staff. Amina W. v. Dep't of Energy, EEOC Appeal No. 0120113823 (November 17, 2015).

Settlement Agreements

Settlement Agreement Unenforceable. The parties entered into a settlement agreement which provided, among other things that the Agency would initiate a search for a vacant, funded position that Complainant was qualified to perform with or without accommodation upon receipt of documentation from Complainant's physician, and offer to place Complainant into the position. The Commission's regulations provide that reassignment to a vacant, funded position is a form of reasonable accommodation. Therefore, the Agency provided Complainant with nothing more than that to which she was already entitled as an employee, and Complainant received no consideration. The Commission found that the settlement agreement was unenforceable, and ordered the Agency to reinstate the underlying complaint. Gia M. v. Dep't of the Army, EEOC Appeal No. 0120142132 (September 26, 2016).

Breach of Settlement Found. The parties entered into a settlement agreement which provided, among other things that the Agency would "withdraw and remove" all previously filed and pending decisions to reprimand Complainant from her Official Personnel File (OPF). The Commission found that the Agency breached the agreement when it issued Complainant a Notice of Proposed Suspension that referenced past reprimands covered by the agreement. Despite the Agency's assertion to the contrary, the language of the agreement supported Complainant's view that the clear intent was that the reprimands be expunged from all Agency files. The Commission noted that since pending decisions would not have been in the OPF, viewing the matter otherwise would render the provision meaningless. Further, the purpose of the provision was to prevent the actions from being used against Complainant. The Agency was ordered to specifically comply with the agreement. Lovella S. v. Dep't of Def., EEOC Appeal No. 0120161966 (August 19, 2016).

Settlement Agreement Binding on Agency. Complainant and the Agency entered into a settlement agreement which provided, among other things, for a detail, a lump sum payment and a temporary promotion for Complainant. The Acting Director, Equal Opportunity, entered into the agreement on the Agency's behalf. Although the Agency complied with the lump sum payment, it refused to implement the other two provisions, stating the Acting Director lacked the authority to bind the agency. On appeal, the Commission held that the Agency failed to present evidence that the Acting Director lacked authority to bind the Agency to the terms of the settlement. Further, the Agency failed to submit internal regulations or procedures showing that parties representing the Agency in EEO matters, such as the Acting Director, were not authorized to enter into settlement agreements with complainants. Finally, the Acting Director did not agree to terms that exceeded the Agency's legal authority. Thus, the agreement was valid and binding on both parties, and the Commission ordered the Agency to enforce the terms of the agreement. Luanne L. v. Dep't of the Air Force, EEOC Appeal No. 0120161629 (June 23, 2016).

No Breach of Settlement Found. The parties entered into a settlement agreement in November 2011 which provided, among other things, that the Agency would transfer Complainant to another duty station doing the same work and paid at the same grade. The Commission affirmed the Agency's finding that it did not breach the agreement when it transferred Complainant to another position and office at another location one year later due to a general reorganization. The settlement agreement did not specify the length of time Complainant was to remain in that position and at the particular duty station. The Commission found that neither the Agency nor Complainant was aware of the details or timing of the reorganization. Aldo B. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120141053 (June 22, 2016).

Agency Failed to Cure Breach. Complainant and the Agency entered into a settlement agreement, which provided in relevant part that the Agency would remove a Performance Enhancement Plan (PEP) from the record and would not reference the PEP in any communications. Complainant alleged that the Agency breached the Agreement when it did not expunge the PEP from the record. On appeal, the Commission found that the PEP was not removed from all records, in particular those of Complainant's supervisor. The Commission noted that the PEP was communicated to Complainant's current supervisor who played a key role in the denial of Complainant's request for a promotion and a pay raise. The Commission granted Complainant's request to have her underlying complaint reinstated. Britney B. v. Dep't of the Navy, EEOC Appeal No. 0120161242 (May 24, 2016). Cf. Lewis Z. v. Dep't of Def., EEOC Appeal No. 0120161317 (June 14, 2016) (the Agency cured the breach by offering Complainant the option to receive the monetary equivalent of the TSP payment owed and by continuing to work toward providing the dental benefits and other terms).

Breach of Settlement Found. The parties entered into a settlement agreement that provided, in pertinent part, that the Human Resources Office, or a specific designee, would provide work references to Complainant's prospective employers stating only the dates of employment, job title, and, if asked, that it is the policy of the Agency to give only this information. On appeal, the Commission found that the Agency breached the settlement agreement by communicating information to a prospective employer beyond what was agreed upon in the settlement. The communication caused the prospective employer to rescind Complainant's employment offer. The Commission stated Complainant should be given the choice of requiring future Agency compliance with the agreement or reinstating the underlying complaint and voiding the entire agreement, including any benefits already received. The Agency was also ordered to compensate Complainant for any proved pecuniary losses incurred due to the rescission of the employment offer. Aurore C. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120150961 (April 14, 2016).

Breach of Settlement Found. The parties entered into a settlement agreement that provided, among other things, that Complainant would transfer to another location within the specified district once a replacement had been found and trained. On appeal, the Commission found that the Agency breached the agreement when it did not transfer Complainant after the conditions specified in the agreement were met. The agreement did not state that the replacement would have to pass a certain test or master any specific skills, or that Complainant was required to submit a written request and arrange approval for the transfer. Therefore, the Agency was ordered to comply with the terms of the agreement and transfer Complainant to an acceptable location. Hedy B. v. U.S. Postal Serv., EEOC Appeal No. 0120160323 (March 18, 2016).

Breach of Settlement Found. Complainant contacted an EEO Counselor alleging that her first and second-level supervisors subjected her to ongoing harassment, and, as relief, requested a lateral transfer outside of their chain of command. The parties subsequently entered into a settlement agreement which provided that Complainant would receive a lateral reassignment, and Complainant was in fact reassigned to a position outside the supervisors' chain of command. Complainant alleged that the Agency breached the agreement when, after working in the new position for approximately two and one-half months, Complainant learned that both supervisors would be transferred to her new office. On appeal, the Commission stated that the record supported a finding that the parties were aware that Complainant's only purpose in entering into the agreement was to leave the supervisors' chain of command. The Commission found that two and one-half months was not a reasonable amount of time to satisfy the agreement. Further, given the timing of the notification, the Agency likely knew or should have known that it was possible the supervisors would be transferred to Complainant's new office at the time of the settlement negotiations. Therefore, the Agency acted in bad faith when it failed to disclose the upcoming organizational changes. The Agency was ordered to specifically comply with the terms of the agreement by providing Complainant with the option of a lateral reassignment in the event that the supervisors assumed positions in her office. Verdell A. v. Dep't of Homeland Sec., EEOC Appeal No. 0120152922 (February 23, 2016).

Settlement Agreement Did Not Comply with Older Workers' Benefit Protection Act. Complainant and the Agency entered into a settlement agreement to resolve an EEO complaint which provided that the Agency would reduce a Notice of Removal to a suspension. The agreement also included eight provisions with which Complainant was expected to comply, and specified that Complainant's failure to comply would result in his removal. On appeal, the Commission noted that Complainant included age as one of the bases in his complaint. The Commission found that the settlement agreement did not comply with the provisions of the Older Workers' Benefit Protection Act, as it did not advise Complainant in writing to consult with an attorney, and did not provide a reasonable period of time for Complainant to consider the agreement. Therefore, Complainant's decision to enter into the agreement was neither knowing nor voluntary, and the agreement was void. The Agency was ordered to reinstate the underlying complaint for processing. Bret E. v. U.S. Postal Serv., EEOC Appeal No. 0120160286 (January 21, 2016).

Settlement Agreement Not Binding Where Not Signed By Both Parties. The Commission found that the draft settlement agreement was not binding because it was not signed by both parties. The record did not show that the Agency made an electronic signature with the intent to sign the draft agreement. While the Agency EEO attorney-advisor e-mailed the unexecuted draft settlement to Complainant's attorney with signature lines for the parties, she explained that she was scheduled to be on annual leave and that execution of the agreement might have to wait until she returned. This explanation showed that she did not intend the e-mail itself to constitute an electronic signature. Further, upon receiving the signed draft from Complainant's attorney, the Agency EEO attorney-advisor indicated that the agreement had to go through higher levels of Agency review. Branda M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120152563 (January 12, 2016).

No Breach of Settlement Found. The provision at issue in the settlement agreement stated that Complainant and her supervisor would meet on Friday to review Complainant's clock rings including higher level pay to be sure they were correct. If either party was absent, then they would meet the next workday when both were present. Complaint alleged the Agency breached the agreement when the supervisor only provided her with one printout of her clock rings and pay after the agreement was signed. The Agency found that it did not breach the agreement. The supervisor stated that he met with Complainant in his office to review her clock rings from the initial date specified in the agreement, and subsequently, Complainant refused to come to his office to review the accuracy of her clock rings. On appeal, the Commission affirmed the Agency's decision. The Commission rejected Complainant's contention that the intent of the parties was for the supervisor to provide Complainant with a print-out of her clock rings and review them for accuracy on Mondays as being beyond the four corners of the agreement. The Commission noted that if Complainant wanted the review to occur on Monday and to receive print outs of the clock rings she should have included that as part of the agreement. Randee D. v. U.S. Postal Serv., EEOC Appeal No. 0120151078 (January 5, 2016).

Settlement Agreement Void for Lack of Consideration. The agreement at issue provided solely that, in exchange for withdrawing Complainant's complaint, the Agency would "further explore the issues brought to mediation" within 30 days. On appeal, the Commission stated that Complainant incurred a legal detriment by withdrawing her formal EEO complaint but the Agency did nothing beyond what it otherwise would have done even absent an Agreement. Therefore, the Commission found that the settlement agreement was void for lack of consideration, and ordered the Agency to reinstate and process Complainant's original complaint. Yessenia H. v. Dep't of the Navy, EEOC Appeal No. 0120152719 (December 23, 2015).

Agency Acted in Bad Faith and Breached Settlement Agreement. The Agency entered into a settlement agreement with Complainant, but immediately after, tried to argue that no agreement was reached. Three weeks after the agreement was signed providing Complainant with a step increase, the Agency demoted Complainant to a lower grade level. This action was implemented even when the question of the validity of the agreement was pending before the Commission. Following the Commission's determination that the agreement was valid and its order to the Agency to specifically perform, the Agency continued to delay. Soon after providing the Commission with evidence of compliance, the Agency attempted to undo its action by seeking to have Complainant return the funds paid out to her under the promotion. The Commission found that the Agency acted in bad faith by trying to undo an agreement that the Commission had previously found to be valid, and by trying to avoid complying with the Commission's previous order. The Agency was ordered to correct its determination that Complainant was indebted for the amount paid her at the higher salary level in accordance with the settlement agreement. Thomasina K. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120143051 (December 18, 2015).

Breach Found. Complainant and the Agency entered into a settlement agreement, which provided in relevant part that the Agency would continue to accommodate Complainant by allowing him to use his 50 minutes of break/lunch periods as needed throughout the work day. Subsequently, Complainant alleged that the Agency breached the Agreement when it denied him comfort breaks and required him to take an additional 30 minutes for lunch. On appeal, the Commission found that the Agency breached the agreement. Both the Agency and Complainant stated that the 50 minutes had been divided into one 30 minute lunch break and two 10 minute comfort breaks. The Commission found nothing in the agreement that stated that the Agency had the ability to unilaterally alter the amount of time Complainant was required to take for his lunch break. The Commission ordered the Agency to comply with the relevant terms of the settlement agreement. Clayton S. v. U.S. Postal Serv., EEOC Appeal No. 0120152641 (December 9, 2015).

No Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement to resolve Complainant's claim of discrimination which provided for Complainant to be transferred to a new location when it was "completed." Complainant argued that Agency breached the agreement by not transferring her when the location opened. The Agency asserted that the location was partially open but still under development, and the department in which Complainant would be employed had not yet become operational. The Commission found that the Agency did not breach the agreement, stating that the plain meaning of the term "completed" was not ambiguous and could not be interpreted to mean "opened." Jonelle R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120152419 (November 12, 2015).

Breach of Settlement Found. Complainant alleged that the Agency breached a settlement agreement when it did not provide him with the monetary incentive of $20,000 that the Agency issues with its offers of Voluntary Early Retirement. The Commission agreed that the Agency breached the agreement. The agreement expressly stated that the Agency would offer Complainant the unrestricted benefits of a Verified Early Retirement plan and specifically referenced Complainant's entitlement to payments and benefits of the plan. The Commission rejected the Agency's arguments that Complainant did not meet any of the eligibility requirements required to receive the $20,000 monetary incentive and that the lump sum payment of $25,000 in compensatory damages was intended as a substitute to the incentive payment. The Agency failed to show that when it offered the Verified Early Retirement plan as consideration, it was actually offering a different Verified Early Retirement Plan without an incentive payment. The Agency was ordered to issue Complainant a payment in the amount of $20,000, plus interest. Darius C. v. U.S. Postal Serv., EEOC Appeal No. 0120142478 (October 14, 2015).

Stating a Claim

Complainant Stated Viable Claim of Age Discrimination. Complainant alleged that the Agency discriminated against him on the basis of his age when it canceled a job posting on which he bid. While the cancellation of a selection process generally does not render a complainant aggrieved, Complainant alleged that he was told the job would not be awarded, and it was subsequently reposted with additional responsibilities which precluded him from applying. Complainant stated that a younger employee with less seniority was eventually awarded the bid, and alleged that the decisions were motivated by age discrimination. The Commission has previously held that a complaint may state a claim where the complainant claims that an agency canceled a selection process under circumstances suggesting a deliberate intent to avoid selecting the complainant. Therefore, the Commission concluded that the Agency erred in dismissing the complaint. Florentino S. v. U.S. Postal Serv., EEOC Appeal No. 0120162274 (September 9, 2016).

Agency Mischaracterized Complaint. The Agency dismissed the complaint for failure to state a claim, characterizing the issue as concerning only a pre-disciplinary interview. The Commission reversed the dismissal, finding that the Agency mischaracterized the complaint. A fair reading of the complaint in conjunction with the related EEO counseling report showed that Complainant was alleging that the pre-disciplinary interview resulted in a Letter of Warning for allegedly unsatisfactory work performance and failure to follow instructions. Hulda W. v. U.S. Postal Serv., EEOC Appeal No. 0120161190 (May 26, 2016).

Disparate Impact Claim Stated. Complainant's assertions that it was the Agency's policy not to post certain positions and that the Agency's plan to close a facility by attrition constituted discrimination against its employees over the age of 40 stated a viable disparate impact claim. Reid J. v. Dep't of Transp., EEOC Appeal No. 0120160732 (May 19, 2016).

Complainant Stated Viable Claim of Disability-Related Harassment. Complainant alleged that after she used approved disability-related leave, her co-workers questioned her about why she was using leave and insinuated that she was not a team player. Complainant reported the comments to her supervisor, but asserted that no action was taken. In considering whether comments are sufficient to state a hostile work environment claim, the Commission has previously considered the nature of the comments in light of management's response or lack thereof. In this case, Complainant alleged that her co-workers accused her of failing to meet the requirements of her position and negatively impacting her co-workers by continuing to take disability-related leave. Such comments, when coupled with the Agency's failure to take corrective action could be interpreted as a threat to Complainant's continued employment and were sufficient to state a viable claim of harassment. Aurore C. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160934 (April 26, 2016).

Complainant Stated Viable Claim of Harassment. The Agency improperly distilled the matters raised in Complainant's complaint into a single allegation regarding an email and dismissed the complaint for failure to state a claim. A fair reading of the complaint reveals that Complainant alleged a pattern of harassment, including a variety of incidents preceding the actions mentioned in the email. Specifically, Complainant alleged that the responsible management official left him out of project communications, undermined him, discounted his ideas and suggestions, did not support him for promotional opportunities, and bypassed him for Chair of a committee. Complainant's pre-complaint and formal complaint forms stated one valid claim of harassment. Matt B. v. Dep't of the Army, EEOC Appeal No. 0120161243 (April 26, 2016); see also Jenna P. v. U.S. Postal Serv., EEOC Appeal No. 0120161336 (May 11, 2016) (the Agency improperly distilled the matters raised in Complainant's formal complaint into a single occurrence, when a fair reading of the pre-complaint and formal complaint documents showed that Complainant's complaint addressed a variety of incidents which were sufficient to state a viable claim of discriminatory harassment).

Complainant Alleged Per Se Violation of Rehabilitation Act. The Commission found that Complainant alleged a per se violation of the Rehabilitation Act when he asserted that the Agency improperly disclosed his medical information. Contrary to the Agency's assertion that the claim concerned a proceeding before the Office of Inspector General, the Commission found that the matter was not a collateral attack on another process, but addressed Complainant's belief that the Agency failed to keep his medical information confidential. Heath P. v. U.S. Postal Serv., EEOC Appeal No. 0120161146 (April 26, 2016); request for reconsideration denied EEOC Request No. 0520160342 (August 16, 2016).

Agency's Rationale Addressed Merits of Claim and Not Whether Matter Stated a Claim. The Commission found that the Agency's rationale for its dismissal, that Complainant's loss of seniority occurred pursuant to the terms of the collective bargaining agreement, addressed the merits of the claim and was irrelevant to the procedural issue of whether the matter stated a viable claim. Complainant stated that he lost seniority when he transferred to another office, and, therefore, alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. Chadwick S. v. U.S. Postal Serv., EEOC Appeal No. 0120161027 (April 22, 2016).

Complainant Stated a Viable Claim of Sex-based Harassment. Complainant, a transgender female, filed a formal complaint alleging that the Agency subjected her to harassment on the basis of sex when the President of the Christian Fundamentalist Internal Revenue Employees (CFIRE) refused to allow her to give a presentation at a Bible study meeting dressed as a woman.  The Agency dismissed the complaint for failure to state a claim, asserting that the CFIRE President, not Agency management, prevented Complainant from attending meetings and presenting as a woman. On appeal, the Commission determined a fair reading of the record revealed a claim of hostile work environment and that the Agency improperly framed Complainant's claim as one of disparate treatment. In a harassment claim, an Agency can be liable for the actions of co-workers if the Agency knew of the harassment and failed to take immediate and appropriate corrective action. Therefore, the Commission found the Complainant stated a viable claim of sex based harassment. Jacki A. v. Dep't of the Treasury, EEOC Appeal No. 0120150248 (April 21, 2016).

Complainant Stated a Viable Claim of Harassment. The Agency dismissed Complainant's claim of hostile work environment harassment in connection with Agency management's instruction that Complainant and other Spanish speaking employees speak "English only" while working at the Agency. The Agency reasoned that dismissal of the case was proper because the manager apologized for his remarks and Complainant failed to demonstrate that he suffered any harm for which there was a remedy. On appeal, the Commission found that Complainant alleged a personal loss or harm regarding a term, condition, or privilege of employment when he was instructed to speak "English only." Furthermore, other matters detailed in the formal complaint like the use of foul language by a supervisor and following Complainant around while he was doing his work supported a claim of harassment. The Agency's reliance on the manager's curative actions go to the merits of the complaint and are irrelevant to the procedural question of whether Complainant stated a justiciable claim under Title VII. Claud S. v. U.S. Postal Serv., EEOC Appeal No. 0120160988 (April 20, 2016).

Complainant Stated a Viable Claim of Sexual Harassment. The Agency dismissed Complainant's complaint on the grounds that she failed to allege a basis of discrimination by checking the appropriate box on the formal complaint form. The Commission reversed the Agency's decision and found that a fair reading of the complaint showed that Complainant communicated her concerns about sexual harassment to management. Complainant stated that co-workers inquired about her relationship with another individual, portrayed her relationship as inappropriate and discussed rumors about her. She also wrote to management about the sexual harassment she experienced. The Commission concluded that Complainant alleged a pattern of harassment. Cassey B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160920 (April 14, 2016).

Complaint Stated Viable Claim of Retaliation. Complainant's allegations that her supervisor yelled at her and removed her hand from her computer mouse stated a viable claim of retaliation. The Commission noted that the physical contact and the verbal intimidation could reasonably deter Complainant and others from engaging in protected activity. Complainant also stated a viable claim of retaliation when she claimed that her supervisor reprimanded her in a letter of coaching, because the letter would have long-term effects on her personnel record and could deter Complainant and other employees from participating in the EEO Process. Zonia C. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120161120 (April 14, 2016).

Complainant Stated a Viable Disparate Impact Claim. The Commission reversed the Agency's dismissal of Complainant's complaint finding that Complainant stated a viable claim of disparate impact discrimination based on race. Complainant asserted a claim of disparate impact discrimination against African Americans as a result of the Agency's hiring practices in regard to applicants with criminal records. The Commission found it appropriate to allow Complainant to clarify that the basis for his complaint was race. Complainant previously conceded he failed to identify race as the basis for the discrimination in his formal complaint because he was confused about how to indicate a disparate impact claim on the Agency's form. The Commission noted that it has issued guidance on arrest and conviction records recognizing that "national data supports a finding that criminal record exclusions in employment have disparate impact on African Americans and Hispanics." Trent M. v. U.S. Postal Serv., EEOC Appeal No. 0120160640 (April 12, 2016).

Complaint by Former Agency Employee Stated Viable Claim of Retaliation. The Commission found that a complaint by a former Agency employee that she was not provided with letters of reference and a neutral personnel form stated a viable claim of retaliation. Complainant alleged that the Agency retaliated against her for protected EEO activity she engaged in while employed by the Agency by not providing her with documentation it provides to other former employees to assist them in securing employment. The Commission has previously held that such an allegation states a viable claim, and the Agency improperly dismissed the complaint. Princess B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120143221 (March 29, 2016).

Per Se Reprisal Claim Stated. Alleging reprisal, among other bases, Complainant filed a formal complaint claiming that a printout of an e-mail between two of her managers, referencing her EEO activity had been left at her workstation, in plain view of her co-workers and customers. The Commission stated that comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC's regulations and would evidence a per se violation of the law. In reversing the Agency's decision, the Commission concluded that the e-mail message on its face, in the context of being placed in public view, could be reasonably likely to deter EEO activity, and, as such, Complainant stated a viable claim of retaliation. Alisa M. v. U.S. Postal Serv., EEOC Appeal No. 0120160750 (March 10, 2016).

Complaint Raising English-Only Rule States a Viable Claim. Complainant alleged that he was subjected to harassment and a hostile work environment when a Postmaster informed him and other Spanish speaking employees that they were to speak English only while working at the facility. Complainant further alleged that the Postmaster stated that the direction to speak-English-only was on the sign the employees read when they crossed the border into the United States. In finding that Complainant failed to state a claim, the Agency reasoned that the Postmaster later apologized for his remarks, and Complainant failed to demonstrate that he suffered any harm for which there was a remedy. The Commission reversed the Agency's decision, finding that the Agency improperly addressed the merits of this matter without a proper investigation. The Commission further noted that a rule requiring employees to speak only English may, under certain circumstances, be unlawful unless justified by business necessity. Irwin R. v. U.S. Postal Serv., EEOC Appeal No. 0120160726 (March 9, 2016).

Complaint of Retaliation Improperly Dismissed. The Commission found that the Agency improperly dismissed Complainant's complaint of retaliation as a collateral attack on the Office of Inspector General (OIG) investigative process. Complainant alleged that after she contacted three employees in an attempt to gather information to support a prior EEO complaint, her Branch Manager who was named in the prior complaint reported her conduct to OIG which resulted in an investigation. The Commission noted while it has generally held that an employee cannot use the EEO process to collaterally attack another proceeding, it considers reprisal claims with a broad view of coverage. Therefore, the Commission concluded that the matter stated a viable claim of retaliation. Hulda P. v. Dep't of Def., EEOC Appeal No. 0120160234 (February 9, 2016).

Agency Found to Be Joint Employer. The Commission found that the Agency improperly dismissed Complainant's claim of discrimination for failure to state a claim, stating that the Agency exercised sufficient control over Complainant's position to qualify as her joint employer. While Complainant's work as an Information Technology Specialist required a high level of expertise, and the contractor signed her timesheets, and paid her salary, the Agency had substantial control over the decision to hire Complainant, determined the terms of her employment, required her to be on the Agency's worksite four days per week and use Agency equipment. The Agency also authorized Complainant's use of a badge and security clearance, and approved her work assignments. Further, the Commission stated that Agency managers were actively involved in Complainant's termination, and addressed her request for reasonable accommodation. The Commission rejected the Agency's assertion that Complainant had previously filed a charge of discrimination, noting that the charge was solely against the contractor and was a separate claim. Nicki B. v. Dep't of Educ., EEOC Appeal No. 0120151697 (February 9, 2016); see also Britt S. v. Dep't of the Navy, EEOC Appeal No. 0120152847 (September 13, 2016) (while the staffing firm paid Complainant's wages and benefits and his duties required a high level of skill, an Agency manager constantly monitored his work, he received Agency training, and the manager gave and signed Complainant's performance assessment. Further, Complainant was required to inform the manager before taking leave and his job duties were part of the Agency's mission. The Commission also found it significant that the Agency had joint or de facto power to terminate Complainant); Kenneth M. v. Dep't of the Air Force, EEOC Appeal No. 0120161245 (May 11, 2016) (while Complainant was paid by the staffing firm and his job required a high degree of skill, Complainant was supervised by an Agency manager who interacted with him daily and provided him guidance, Complainant submitted his requests for time off to the Agency manager for initial approval, Complainant was required to attend Agency training, Complainant worked on Agency premises using Agency equipment, and he had very little contact with his staffing firm supervisor. The record also showed that the Agency had de facto power to terminate Complainant. Therefore, the Agency exercised sufficient control over Complainant's position to qualify as his joint employer); Beth G. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120143174 (May 6, 2016) (while the contractor provided Complainant with benefits and withholdings, Complainant was to work at an Agency facility using Agency equipment and materials, she was to be supervised by an Agency physician, and her work was part of the Agency's regular business. The Commission also noted that the Agency's allegedly discriminatory actions in requiring Complainant to submit to a pre-offer physical examination reflected a level of control held by a joint employer); Emma B. v. Dep't of the Navy, EEOC Appeal No. 0120160878 (May 3, 2016) (although Complainant was paid by the staffing firm and did not perform work connected with the Agency's mission, Agency employees assigned Complainant work, provided her with monthly awards, had final approval over Complainant's leave, and provided her with the equipment used to perform her job. The Commission found it especially significant that the Agency had joint or de facto power to terminate Complainant); Rina F. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160808 (April 21, 2016) (the Agency exhibited enough control over the means and manner of Complainant's employment to indicate an employer-employee relationship. The record showed that the Agency played a role in both Complainant's selection for the job and her termination. In addition, Complainant received daily assignments from the Agency and her work was reviewed by Agency personnel); Daisy W. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120160511 (April 5, 2016) (the Agency exercised sufficient control over Complainant's position to qualify as her employer for the purpose of the EEO complaint process. Agency officials were Complainant's first and second-level supervisors, and gave her instructions regarding her assignments. The record showed that the Agency wanted to hire Complainant but her education prevented her from meeting the requirements of a Research position. Finally, the Agency had the ability to terminate Complainant's employment. Thus, while the Agency brought Complainant onboard as a contractor, it intended for her to perform the duties of an employee); Breanna S. v. Dep't of Def., EEOC Appeal No. 0120142256 (March 23, 2016) (the Agency exercised sufficient control over Complainant's position to qualify as her joint employer for the purpose of the Commission's regulations. Complainant was on call 24 hours a day for emergencies; worked on Agency premises; and used Agency equipment. Complainant also stated that she performed her work under the close supervision of an Agency supervisor; was responsible for the operations and security of the visitor's entrance; and supervised personnel who processed visitors entering or exiting the facility, including ensuring the validity of security clearances presented by them and ensuring that visitors without security clearances were properly escorted); Clement D. v. Dep't of the Interior, EEOC Appeal No. 0120142894 (March 8, 2016) (the record reflected that the Agency entered into a personal service contract directly with Complainant under which the Agency set the terms, including Complainant's duties and responsibilities. The Agency monitored Complainant's performance and ensured that all interpreting specifications and technical portions of the work were met, and the balance of factors considered established that Complainant was a de facto employee of the Agency); Helen G. v. Dep't of the Army, EEOC Appeal No. 0120150262 (February 11, 2016) (while the Agency did not pay Complainant's salary, benefits, taxes or social security or provide leave, Agency officials had significant control over Complainant's work, she worked on Agency premises with Agency equipment, she regularly attended and actively participated in Agency staff meetings, and the record showed that the Agency had substantial input into the decision to terminate Complainant. Therefore, the Agency exercised sufficient control over Complainant's position to qualify as her joint employer); but see Shakia H. v. Cent. Intelligence Agency, EEOC Appeal No. 0120161007 (May 26, 2016) (the Agency did not exercise sufficient control over the complainant's Mail Courier position to qualify as her employer for the purposes of the EEOC's regulations. While the position did not require a high degree of skill, and Complainant worked on the Agency premises for nearly two years using Agency equipment, the contractor assigned Complainant's routes without input from the Agency, set Complainant's work hours, made leave determinations without input from the Agency, addressed her reasonable accommodation request, and handled Complainant's pay and compensation); Chrystal S. v. Dep't of the Navy, EEOC Appeal No. 0120160889 (May 11, 2016) (the Agency did not exercise sufficient control over Complainant's position to qualify as her employer where Complainant provided her own materials, the Agency did not supervise Complainant or assign her work, Complainant provided training on an "as needed" basis, Complainant was paid per training session, and her work was not part of the Agency's mission).

Complaint Alleged Per Se Violation of the Rehabilitation Act. Complainant alleged that the Agency discriminated against her on several bases when she learned that her personnel files had copies of her medical history and medical records in them. The Agency dismissed the complaint for failure to state a claim, noting that there was no evidence that Complainant was subjected to an adverse employment action. On appeal, the Commission stated that the Rehabilitation Act protects the confidentiality of medical records regardless of whether the individual is disabled or not, and there is no requirement of a showing of harm beyond the violation. The Commission found that Complainant was essentially alleging a per se violation of the Rehabilitation Act's confidentiality provisions when she requested her "office files" and received her files with various medical records contained therein. Celine D. v. U.S. Postal Serv., EEOC Appeal No. 0120152203 (February 5, 2016).

Complaint Stated Viable Hostile Environment Claim. The Agency dismissed Complainant's complaint that he was discriminated against based on race when he found an offensive photograph of a Native American in his work place. On appeal, the Commission stated that, under certain circumstances, a limited number of highly offensive slurs or comments about a federal employee's race may state a claim or support a finding of discrimination under Title VII. In this case, the photograph at issue explicitly displayed a Native American in an offensive matter. Further, Complainant stated in his formal complaint that this was his second EEO complaint regarding racist remarks, and listed numerous offensive comments made by co-workers. Taken as a whole, the Commission found, the alleged incidents stated a viable hostile environment claim. Mathew R. v. Dep't of the Army, EEOC Appeal No. 0120160416 (February 5, 2016).

Single Sexually Explicit Email Sufficient to State a Viable Claim of Harassment. The Agency improperly dismissed Complainant's claim that she was subjected to harassment when a co-worker sent a sexually explicit email from Complainant's government email account. Complainant asserted that the email, which was sent to another co-worker, was communicated to a large number of employees who worked with Complainant. The Agency's assertion that it took prompt and corrective action addressed the merits of the complaint and not the procedural issue of whether the matter stated an actionable claim. Twanna C. v. Dep't of Homeland Sec., EEOC Appeal No. 0120160030 (January 7, 2016).

Complainant Stated a Viable Claim of Retaliation. The Agency dismissed Complainant's claim that he was retaliated against when he was given an investigative interview. On appeal, Complainant asserted that he had previously been threatened not to participate in, or to file any, additional EEO claims. The Commission found that the complaint stated a viable retaliation claim. The Agency claimed that although Complainant might have felt he was treated differently, the incident did not render Complainant aggrieved. The Commission noted, however, that the anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to advance the statutes' basic guarantees, and claims of retaliation are not limited to actions affecting employment terms or conditions. Clement M. v. U.S. Postal Serv., EEOC Appeal No. 0120152790 (December 23, 2015).

Agency Improperly Dismissed Claim Alleging Requirement to Work at Alternate Location. The Commission found that Complainant's claim that the Agency required him to work at an alternate worksite stated a viable claim of discrimination. Complainant alleged that the Agency restricted his access to the worksite and required him to work at home in an attempt to remove him from employment. The record included a letter from Complainant's supervisor stating that Complainant was being assigned to an alternate worksite because of "behavior that has raised concern," and Complainant asserted that the supervisor was uncomfortable with his seizures. The Commission stated that the change to Complainant's work location constituted a viable allegation of harm to a term, condition, or privilege of employment and stated a claim. Levi S. v. Dep't of the Navy, EEOC Appeal No. 0120151301 (November 25, 2015).

Complainant Stated a Viable Claim of Retaliation. Complainant's allegation that his supervisor approached him in an aggressive manner, yelled at him and threw his belongings stated a viable claim of retaliation. Complainant indicated that he was working on high voltage machinery at the time, and the Commission found that the behavior could deter Complainant from engaging in protected EEO activity. Complainant also noted that the supervisor referred to a co-worker as a "money grubbing EEO employee," which could also reasonably deter Complainant or others from engaging in protected activity. The Commission stated that comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Terrell C. v. U.S. Postal Serv., EEOC Appeal No. 0120152271 (November 12, 2015).

Complainant Stated a Viable Hostile Work Environment Claim. The Agency failed to review the events alleged by Complainant as a claim of ongoing harassment and hostile work environment. A fair reading of Complainant's allegations indicated that she had been subjected to higher scrutiny regarding her whereabouts for over a two-year period, including being instructed to post notes on her office door when she was not there, and not being allowed to work at home while other similarly situated employees were allowed to do so. Considering Complainant's claims together and in the light most favorable to her, the Commission found that Complainant sufficiently alleged a viable claim of hostile work environment harassment. Darlene F. v. U.S. Postal Serv., EEOC Appeal No. 0120141894 (October 21, 2015); see also Kit R. v. Gen. Serv. Admin., EEOC Appeal No. 0120140870 (December 8, 2015) (Complainant's allegations that her second-line supervisor changed her work schedule, including suspending telework; changed her workload; and threatened her stated a cognizable claim of ongoing hostile work environment harassment); Pamela L. v. Dep't of the Army, EEOC Appeal No. 0120150664 (December 8, 2015) (the Agency improperly looked at the incidents in the complaint individually in a piecemeal manner instead of treating the actions as part of Complainant's allegation of hostile work environment harassment); Garry H. v. U.S. Postal Serv., EEOC Appeal No. 0120152560 (December 2, 2015) (the Agency improperly reduced the matters raised by Complainant to allegations relating only to investigative interviews when a fair reading of the complaint and pre-complaint documents showed that the formal complaint addressed a pattern of harassing incidents); Jeffrey G. v. Soc. Sec. Admin., EEOC Appeal No. 0120150645 (October 2, 2015) (Given the breadth of Complainant's claim, a fair reading of the complaint and EEO Counselor's report reflected a series of alleged incidents that included Complainant being harassed based on his race and sex such that the Agency's dismissal for failure to state a claim was improper).

Complaint Properly Dismissed as Collateral Attack on Grievance Process. Complainant filed a formal complaint alleging that the Acting Manager and Step A Representative failed to settle a grievance. The Commission noted that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. The proper forum for Complainant to have raised his challenges to actions which involve the settlement of grievances was within the collective bargaining process. Accordingly, the Commission determined that the Agency's dismissal of the complaint for failure to state a claim was proper. Wilfredo B. v. U.S. Postal Serv., EEOC Appeal No. 0120161724 (July 15, 2016).

Complaint Regarding Statements Made During ADR Fails to State a Claim. The Commission found that Complainant's allegation regarding statements made by an Agency attorney during an alternative dispute resolution (ADR) session for one of Complainant's clients failed to state a viable claim. The Commission's Management Directive 110 provides that statements made during ADR cannot be made the subject of an EEO complaint, and the attorney's statements fell squarely within this protection. Further, Complainant was not harmed by the comments which were not reasonably likely to deter EEO activity. Leif S. v. Dep't of the Navy, EEOC Appeal No. 0120161819 (July 7, 2016).

Complaint Regarding Dress Code Fails to State a Claim. The Commission reaffirmed its holding that a claim of sex discrimination based on different standards of dress for male and female employees failed to state a claim. Complainant in this case wanted to wear shorts to work, which the agency denied as inappropriate, even though it permitted women to wear dresses and skirts that allowed women to have their legs uncovered. Complainant did not suffer any economic loss or other harm. Further, the District Manager noted that female employees would also be sent home if they arrived at work wearing shorts. Isaiah R. v. Soc. Sec. Admin., EEOC Appeal No. 0120141758 (June 2, 2016).

Complaint by Uniformed Member of the Military Does Not State a Claim. Unlike civilian employees, uniformed military personnel of any branch of the armed forces are not covered by the federal sector EEO process, except as applicants for civilian employment. In this case, Complainant alleged that he was discharged from active duty from the military. Accordingly, the Commission affirmed the Agency's dismissal of Complainant's complaint for failure to state a claim. Bret B. v. Dep't of the Air Force, EEOC Appeal No. 0120140402 (May 18, 2016).

Complaint Properly Dismissed as a Collaterally Attack on Another Proceeding. Complainant alleged that the Department of Labor (DOL) would not pay Complainant's claim for compensation because the Agency had indicated that he had received paid annual leave. The Commission affirmed the Agency's dismissal, rejecting Complainant's argument that he was told by an OWCP Claims Examiner that he could not be paid until the Agency certified his CA-7. The Commission reiterated that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding, and the proper forum for Complainant's challenge was with OWCP. In previous cases, the Commission has held that claims concerning Agency delays in submitting paperwork to OWCP or submitting incomplete or faulty paperwork constitute a collateral attack on the OWCP process. Fernando K. v. U.S. Postal Serv., EEOC Appeal No. 0120161467 (May 26, 2016); see also Joana C. v. Dep't of the Army, EEOC Appeal No. 0120161224 (April 22, 2016) (Complainant's various allegations regarding the processing of her workers' compensation claim constituted a collateral attack on the OWCP process and should be raised within that process itself).

Complaint Regarding Comments on Blog Does Not State a Claim. The Commission affirmed the Agency's dismissal of Complainant's complaint alleging that disparaging comments were posted about him on an internet blog frequented by Agency employees who were members of a professional association. The blog contained a disclaimer that statements "do not reflect any official position" of the Agency, and there was no indication that the blog was sufficiently related to Complainant's employment. There was also no indication that the blog was sponsored by or affiliated with the Agency or that Agency resources or official time were used to author the article in question. Alfonzo H. v. Dep't of State, EEOC Appeal No. 0120160450 (April 22, 2016); request for reconsideration denied EEOC Request No. 0520160327 (July 20, 2016).

Complaint Regarding Union Steward Activity Properly Dismissed. The Commission found that the Agency properly dismissed Complainant's complaint regarding matters related to the documentation of time she spent acting as a union steward. The matter constituted a collateral attack on the negotiated grievance process, and Complainant should have raised those issues within the grievance process. Cassey B. v. U.S. Postal Serv., EEOC Appeal No. 0120152119 (March 17, 2016).

Complaint Properly Dismissed as Collateral Attack on Another Proceeding. The Agency dismissed Complainant's complaint alleging that she received a letter from the Department of Labor finding that the Agency violated the Family and Medical Leave Act (FMLA). The Commission affirmed the dismissal, stating that the denial of Complainant's FMLA leave was firmly enmeshed in the Department of Labor's adjudicatory process. The Department of Labor informed Complainant that she could file an action in court, and the proper forum for Complainant to continue to pursue her FMLA claim was within that process. Liza B. v. U.S. Postal Serv., EEOC Appeal No. 0120160373 (February 9, 2016).

Complaint Alleging Retaliation for Being Named as Responsible Official Properly Dismissed. The Agency dismissed Complainant's complaint of retaliation, stating that Complainant's prior EEO activity consisted only of being identified as the responsible official in a subordinate's EEO complaint. Complainant had no other history of participation in the EEO process or opposition to any alleged discrimination. The Commission affirmed the dismissal. Without more, being identified as a responsible management official in an EEO complaint is not enough to serve as a basis for a claim of retaliation. Herb E. v. Dep't of the Army, EEOC Appeal No. 0120143122 (January 29, 2016).

Complaint Concerning Processing of Disability Retirement Properly Dismissed. The Commission found that the Agency properly dismissed Complainant's claim relating to information provided to the Office of Personnel Management (OPM) regarding Complainant's application for disability retirement. It is undisputed that OPM is responsible for processing applications for retirement and the actions complained of occurred during OPM's consideration of Complainant's application. The proper forum for Complainant to have raised his concerns was with OPM and not in the EEO complaint process. Roy E. v. U.S. Postal Serv., EEOC Appeal No. 0120160353 (January 28, 2016).

Issues Concerning Debt Collection Act Do Not State a Claim. The Commission affirmed the Agency's dismissal of Complainant's claim that she received two letters regarding a debt allegedly owed under the Debt Collection Act (DCA). The Commission has previously held that an agency's actions under the DCA are not within the scope of the EEO complaint process, and not within the Commission's jurisdiction. The proper forum for Complainant to challenge the debt collection process is through the administrative process of the DCA itself. Hulda W. v. U.S. Postal Serv., EEOC Appeal No. 0120152930 (January 21, 2016); see also Hulda W. v. U.S. Postal Serv., EEOC Appeal No. 0120161077 (May 19, 2016); request for reconsideration denied EEOC Request No. 0520160389 (August 11, 2016) (the Agency properly dismissed the complaint alleging discrimination in regard to a Letter of Demand under the DCA for failure to state a claim. The Commission has previously held that challenges to an agency's actions under the DCA are not within the scope of the EEO complaint process and the Commission's jurisdiction. The proper forum for Complainant to have challenged the appropriateness of the Letters of Demand was under the DCA process); Alisia M. v. U.S. Postal Serv., EEOC Appeal No. 0120160715 (March 22, 2016) (the proper forum for Complainant to challenge the garnishment of her Social Security benefits was with the Department of the Treasury and the Social Security Administration as the Commission has no jurisdiction over a matter that appeared to concern the DCA); Janee S. v. Dep't of Agric., EEOC Appeal No. 0120151991 (January 28, 2016) (Complainant's claim that she was notified of a federal debt resulting from a negative sick leave balance did not state a viable claim within the EEO process. Monetary disputes involving a federal agency must be resolved through the administrative process of the DCA and are not within the scope of the EEO complaint process or the Commission's jurisdiction); Gaye A. v. Dep't of Def., EEOC Appeal No. 0120152225 (November 3, 2015) (Complainant alleged that the subject issue stemmed from the Agency's claim that she had a Sick Leave/Annual Leave overdraft in 2008, and the proper forum for Complainant to challenge the propriety of the collection process and validity of her debt was through the administrative process of the DCA).

Complaint Properly Dismissed Where No Documentation of Authority to Act on Behalf of Complainant's Estate. The Commission noted that where a Complainant has initiated the EEO process prior to his or her death by at least contacting an EEO Counselor, an estate may represent the deceased complainant. However, failure to provide documentation of authority to act on behalf of an estate can constitute a basis for dismissing the complaint. Here, Complainant's daughter and brother both failed to provide legal documentation establishing that either, or both, was official executor(s) of Complainant's estate, and therefore the Agency's dismissal was proper. Noah S. v. Dep't of Homeland Sec., EEOC Appeal No. 0120141200 (December 17, 2015).

Complaint of Retaliation Properly Dismissed Because Complainant Had Not Engaged in Protected Activity. The Commission affirmed the Agency's dismissal of Complainant's formal complaint for failure to state a claim. Complainant raised only reprisal as a basis for discrimination, but there was no evidence that Complainant engaged in protected EEO activity. Complainant has been named as a responsible management official in other EEO complaints. Being named as a responsible management official in an EEO complaint did not constitute protected activity. Cary J. v. Dep't of the Interior, EEOC Appeal No. 0120140604 (December 3, 2015).

Complaint Properly Dismissed Because Complainant Was Not an Employee or Applicant. Complainant, who admitted she was not an employee or applicant for employment with the Agency, filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability when she experienced problems with the Agency regarding her son's medical treatment, how she was billed, and what insurance coverage was applied. On appeal, the Commission noted that due to Complainant's status as a consumer of the Agency's services, her complaint could not be adjudicated within the EEO complaint process. Clarine L. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120143138 (November 3, 2015).

Summary Judgment

Decision on Summary Judgment Affirmed Because Agency Demonstrated a Bona Fide Occupational Qualification. The Commission affirmed the AJ's issuance of a decision without a hearing finding that the record supported a determination as a matter of law in favor of the Agency. Complainant, a Transportation Security Officer (TSO), alleged discrimination when she was not allowed to bid on a baggage inspection assignment. The Agency asserted that it needed to have an adequate number of certified Officers available to do same-sex pat downs which are necessary for security, and therefore Complainant was precluded from bidding on other positions. The Commission noted that the Agency's policy included a sex-based criterion and that sex was a factor in the Agency's decision. Therefore, the AJ erred in finding that Complainant was not subjected to sex-based disparate treatment. The Commission found, however, that the AJ's decision was proper with regard to the findings of law. Specifically, the evidence showed that the Agency's actions in providing an adequate number of TSO's for screening met the narrow definition of the bona fide occupational qualification standard. Zula T. v. Dep't of Homeland Sec., EEOC Appeal No. 0120142146 (August 16, 2016).

Decision on Summary Judgment Affirmed. The Commission affirmed the AJ's issuance of a decision without a hearing finding that Complainant failed to prove her claims of discrimination. The Commission concluded that it was appropriate for the AJ to have issued a decision without a hearing, because Complainant did not produce evidence which would create a genuine dispute of material fact. The AJ found that even assuming Complainant was subject to an adverse action, Complainant failed to dispute her supervisor's reasons for placing her on an Action Plan. Complainant's supervisor averred that the union approached her after receiving several complaints from Complainant's subordinates about Complainant's communication style. Other than Complainant's own subjective belief, she provided no evidence that she was treated differently than others under similar circumstances because of her race, or deserved a higher performance rating. The AJ also found evidence to support that individuals of other races were treated similarly. The Commission determined that Complainant failed to present evidence establishing that she was subjected to harassment based on her race. Susie K. v. Dep't of the Treasury, EEOC Appeal No. 0120141102 (April 28, 2016).

Summary Judgment Affirmed. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race and national origin when he was detailed to another location, and denied overtime. Over the Complainant's objections, the AJ issued a decision without a hearing finding that the record was adequately developed and there were no material facts in dispute regarding Complainant's discrimination claims. The Commission agreed with the AJ there were no issues of material fact in dispute and a decision without a hearing was appropriate. The Commission stated that, even assuming Complainant established a prima facie case, the Agency articulated legitimate, non-discriminatory reasons for its actions. Specifically, Complainant was not needed at the location where he had been working and was sent back there to gain experience and provide coverage. Further, the Agency asserted that employees who had called out sick or taken vacation shortly before an overtime event were not considered for overtime. Joel M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140304 (April 27, 2016).

Summary Judgment Affirmed. Complainant filed an EEO complainant alleging discrimination on several bases when the Agency removed her from her position. Over Complainant's objections, the AJ granted the Agency's motion for a decision without a hearing and found no discrimination. Specifically, the AJ noted the Agency's legitimate nondiscriminatory reason for Complainant's termination for unacceptable conduct, and an inability to get along with others, including "failure to follow instructions, confrontational demeanor and abrasive attitude towards management and staff." On appeal, the Commission affirmed the AJ's findings. The Commission found that Complainant failed to establish that there was a triable issue of fact that would lead a reasonable fact finder to find discrimination. Other than Complainant's beliefs and assertions, the Commission found she had failed to establish unlawful discrimination by meeting her burden of persuasion by a preponderance of the evidence that the Agency's action was based on prohibited reasons. Almeda B. v. Dep't of the Army, EEOC Appeal No. 0120142432 (December 11, 2015).

Commission Reversed Decision on Summary Judgment. The Commission reversed the AJ's decision, issued without a hearing, finding no discrimination. The Commission found that the AJ erred in only considering whether Complainant established evidence of pretext or a hostile work environment. Complainant alleged, in part, that the Agency discriminated against her based on her national origin, and the Commission stated that the AJ failed to conduct the appropriate linguistic analysis. Under Commission guidelines, national origin discrimination includes the denial of an employment opportunity because of linguistic characteristics, and a fluency requirement is generally permissible only if required for the effective performance of the position. It was undisputed that Complainant, a native Vietnamese speaker, had some issues speaking and comprehending English. The Commission found that the issue of whether Complainant's difficulty with English materially interfered with her job performance was an issue that must be developed at a hearing, especially given that the Agency cited Complainant's lack of communication skills in her Notice of Termination. Further, the record contained affidavits from two employees that raised doubts as to the credibility of the evidence provided by the Agency to support Complainant's unacceptable performance ratings. Therefore, the Commission found that there was a genuine issue of fact in dispute as to whether Complainant's difficulties communicating were a cover for unlawful discrimination, and the matter was remanded for an administrative hearing. Jenna P. v. Dep't of the Navy, EEOC Appeal No. 0120140010 (August 5, 2016).

Summary Judgment Reversed. The Commission found the grant of summary judgment improper because there were genuine issues of material fact concerning whether Complainant suffered race and sex discrimination and was denied reasonable accommodation because of her pregnancy. The Agency proffered as a legitimate, nondiscriminatory, reason that it did not have an obligation to accommodate Complainant with light duty because she did not sustain an on-the-job injury. Further, the Agency stated that there were no light-duty positions in which to safely accommodate Complainant's request for 15-minute breaks each hour and her 15-pound lifting restriction. The Commission determined that the Agency would need to further articulate a justification for its stated policy of not having to accommodate pregnant workers while accommodating other categories of workers. The Commission remanded the matter for a hearing. Roxane C. v. U.S. Postal Serv., EEOC Appeal No. 0120131635 (July 19, 2016).

Commission Reversed Decision on Summary Judgment. Complainant alleged that the Agency discriminated against her when she received notice that her two-step rate adjustment was rescinded. The Commission determined that the AJ erred in issuing a decision without a hearing in favor of the Agency. The Commission found that there was an issue of genuine fact in dispute as to whether the alleged comparators were similarly situated to Complainant when viewed in the light most favorable to Complainant. The Commission noted that comparators one and two were similarly situated, but not comparator three because comparator three received a promotion, not a two-step increase. Therefore, the matter was remanded for an administrative hearing. Tania O. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142224 (April 14, 2016).

Summary Judgment Reversed. Complainant filed a formal EEO complaint claiming disability discrimination, including being issued a Letter of Warning, having to change his medical restrictions when his supervisor threatened that he could no longer accommodate his restrictions, being subjected to derogatory comments by his supervisor, and being denied work on several occasions. Over Complainant's objections, the AJ summarily decided in favor of the Agency. On appeal, the Commission found that summary judgment was not appropriate in this matter due to an inadequately-developed record. The Commission found that the AJ had only considered the disability-based harassment claim and not the reasonable accommodation claim. Further, there was no evidence in the record that the Agency had engaged in the interactive process with Complainant to explore ways he could be accommodated. In addition, while Complainant's manager stated that there was no work available for Complainant within 50 miles, the record was silent as to whether the Agency had actually conducted a 50-mile job search. It was also unclear what happened to the work Complainant had been doing at his own work location as an accommodation, and there was a dispute as to whether work was in fact available. Accordingly, the Commission remanded the matter for a hearing. Bruce P. v. U.S. Postal Serv., EEOC Appeal No. 0120130142 (December 11, 2015).

Summary Judgment Reversed. Complainant filed an EEO complaint alleging that she was sexually harassed by her supervisor, including being subjected to inappropriate comments and touching. Over Complainant's objections, the AJ granted the Agency's motion for a decision without a hearing and issued a finding of no discrimination. On appeal, the Commission reversed the decision and ordered the complaint remanded for a hearing. The Commission noted that other evidence in the record brought into question whether the Agency took the prompt remedial action it was credited with taking. For example, there was evidence that the supervisor was seen at the facility at least twice after the Agency claimed to have removed him from the facility. In addition to factual questions, the Commission noted legal ones. Complainant asserted, for example, that she suffered a tangible employment action in that her pay was withheld due to leave being incorrectly reported by the supervisor. The Commission stated that the Agency would not be able to assert an affirmative defense if the supervisor's conduct resulted in a tangible employment action. Therefore, the Commission found that a hearing was necessary because there were genuine issues of material fact. Celine B. v. U.S. Postal Serv., EEOC Appeal No. 0120120537 (December 9, 2015).

Summary Judgment Reversed. Complainant appealed from an AJ's grant of summary judgment and findings of no discrimination with regard to her disparate treatment, hostile work environment, and reprisal claims. Complainant alleged that her Nurse Manager made racial slurs, and, when she complained about these slurs, the Nurse Manager lowered her proficiency grade and took other retaliatory actions. The Commission reversed the AJ's grant of summary judgment, holding that the AJ improperly made credibility determinations by rejecting Complainant's version of events and substituting the Nurse Manager's version. The Commission also noted that the investigative record was incomplete, especially with regard to additional incidents of harassment, and remanded the matter for hearing. Tamara G. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112387 (December 3, 2015).

Summary Judgment Reversed. Complainant filed a claim of discrimination based on age, alleging that he was subject to a hostile work environment. The Agency motioned for a decision without a hearing, and the AJ granted this motion and found Complainant failed to prove discrimination. The Commission found it improper not to hold a hearing for three reasons. First, Complainant and the Agency offered differing accounts of events that were material to Complainant's claim, which indicated a genuine issue of material fact. Second, the Agency failed to provide documents requested by Complainant that may have substantiated Complainant's allegations, indicating an inadequate investigation into the complaint. Third, the AJ weighed conflicting evidence in favor of the Agency which was improper as the AJ is required to weigh evidence in favor of the non-moving party, and it was inappropriate to deny a hearing when conflicting evidence needed to be resolved. Rusty C. v. Dep't of Def., EEOC Appeal No. 0120114237 (November 12, 2015).

Summary Judgment Reversed in Case Involving Issue of Criminal Background Check. Complainant filed an EEO complaint alleging that the Agency subjected her to disparate treatment and disparate impact discrimination on the basis of race (African-American) when the Agency failed to hire her because of her arrest/conviction record. On appeal, the Commission noted that the Agency did not articulate how Complainant's conviction related to the duties of the Contact Representative position, and how Complainant's conviction rendered her unqualified for the duties of that position. The Commission also noted that the record was not sufficiently developed for it to determine whether there was a disparate impact on African-Americans by the Agency's background check policies or practices. Further development of the record and a hearing were ordered. Taryn S. v. Selective Serv. Sys., EEOC Appeal No. 0120113421 (November 3, 2015).

Timeliness

Complaint Improperly Dismissed for Failure to Timely Contact EEO Counselor. The Commission found that the Agency improperly dismissed Complainant's complaint for failure to timely contact an EEO Counselor. Complainant initially appealed her termination to the MSPB, but her appeal was later dismissed for lack of jurisdiction. The Commission's regulations provide that if the MSPB dismisses an appeal for jurisdictional reasons, the Agency must promptly notify the individual in writing of their right to contact an EEO Counselor within 45 days of receipt of the notice. In this case, the Agency did not promptly notify Complainant of her right, and the Commission deemed Complainant's contact with the MSPB to be the date of her initial EEO contact. Further, Complainant raised a hostile work environment claim, and at least one incident occurred within the 45-day time period preceding her EEO Counselor contact. Joelle L. v. Dep't of Def., EEOC Appeal No. 0120162275 (September 14, 2016).

Time Period for Seeking Counseling Begins to Run on the Effective Date of Action. The Commission found that Complainant timely contacted the EEO Counselor within 45 days of the effective date of his non-selection. The Commission stated that while Complainant had some unofficial advanced notice that he might not be selected, the time period for seeking EEO counseling began to run at the time of the effective date of Complainant's non-selection. The record contained a copy of the official "disposition" letter to Complainant dated November 19, 2012, and, therefore, his December 14, 2012 EEO Counselor contact was timely. Further, Complainant had previously contacted the Counselor regarding his non-selection on November 6, 2012, which the Commission noted was timely even using the earlier date of Complainant's unofficial notice. Arnoldo P. v. Dep't of the Army, EEOC Appeal No. 0120161967 (September 14, 2016).

Complainant Timely Contacted EEO Counselor with Regard to Reasonable Accommodation Claim. The Agency dismissed Complainant's complaint, stating that Complainant's request for pre-complaint counseling was made approximately two years after Complainant first became aware of the reasonable accommodation denials. On appeal, the Commission found that the Agency improperly dismissed Complainant's claim. Complainant alleged that he had been continuously denied accommodation for two years, and the Commission determined that Complainant's claim addressed an allegation of ongoing denial of reasonable accommodation. The Commission has stated that because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it. Therefore, the complaint was timely raised. Devon H. v. U.S. Postal Serv., EEOC Appeal No. 0120162030 (September 1, 2016).

Complaint Improperly Dismissed for Failure to Timely Contact EEO Counselor. The Agency dismissed Complainant's formal complaint on the grounds of untimely EEO Counselor contact. Complainant asserted that he was not aware of the limitation period for contacting a Counselor. On appeal, the Commission found that the Agency provided no documentation reflecting Complainant's actual or constructive knowledge of the 45-day limitation period. Therefore, the Agency improperly dismissed the formal complaint for untimely EEO Counselor contact. Clay W. v. Dep't of the Interior, EEOC Appeal No. 0120161461 (June 7, 2016); see also Jimmie S. v. Dep't of the Navy, EEOC Appeal No. 0120150822 (September 20, 2016) (Complainant stated that, as a new employee, he did not suspect discrimination and was not familiar with the policies and procedures. The Agency provided no documentation showing that Complainant had actual or constructive knowledge of the applicable limitation period, and, therefore, the dismissal of the complaint was improper).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. The Commission stated that the Agency improperly defined Complainant's claim as relating only to the May 2015 denial of a salary increase. Instead, a fair reading of the complaint and related EEO counseling report showed that Complainant was alleging age-based discrimination when she was paid less than younger, less experienced employees for several years. The Agency did not analyze the timeliness of Complainant's EEO Counselor contact under the Lilly Ledbetter Fair Pay Act, and Complainant's contact was timely since it was made within 45 days of the time she received her most recent pay check. Lynne E. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160881 (April 14, 2016).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. Complainant contacted an EEO counselor on June 24, 2015, alleging discrimination when she was not promoted between November 2013 and July 2014. The Agency dismissed Complainant's complaint for untimely EEO Counselor contact. Complainant asserted that she was not aware of the time limits for contacting an EEO Counselor, and advised several management officials, including in Human Resources of the action but was not advised to contact a Counselor. The Commission found sufficient justification to excuse Complainant's untimeliness when the Agency did not show that it trained employees on EEO procedures or that it had the time limitations for EEO counseling posted during the relevant time period. Faustina L. v. Dep't of Def., EEOC Appeal No. 0120160921 (April 6, 2016).

Complainant Timely Raised Claim Alleging Denial of Reasonable Accommodation. The Commission found that the Agency improperly dismissed Complainant's claim that she was denied an eight hour work day for failure to timely contact an EEO Counselor. Complainant indicated that she cannot work for more than eight hours per day due to her medical restrictions, but the Agency denied her a full eight hour day and required her to take leave for the additional time. The Commission found that Complainant was in essence alleging that she was denied reasonable accommodation which constitutes a recurring violation each time accommodation is needed. Larissa E. v. U.S. Postal Serv., EEOC Appeal No. 0120160683 (February 23, 2016); see also Major D. v. U.S. Postal Serv., EEOC Appeal No. 0120152351 (March 22, 2016) (Complainant timely raised a claim that the Agency denied him reasonable accommodation. An employer has an ongoing obligation to provide reasonable accommodation, and, therefore, the failure to provide that accommodation constitutes a violation each time the employee needs it).

Commission Applies Equitable Estoppel to Toll Time Period for Initiating EEO Contact. The Commission reversed the Agency's dismissal of the complaint and applied the principle of equitable estoppel to toll the time limitation for contacting an EEO Counselor. According to the record, Complainant retired from the Agency on November 29, 2012, after being notified that he would be terminated effective November 30. The Commission initially noted that the alleged discrimination occurred on November 29, which was the date that should have been used to calculate the timeliness of EEO Counselor contact. Further, Complainant asserted that he attempted to contact an EEO Counselor several times, and ultimately contacted an EEOC AJ on December 8. The record contained a letter from the AJ confirming Complainant's claim that he was unable to reach a Counselor, and that Complainant expressed his intent to pursue the EEO process. Complainant then contacted an EEO Counselor five days after receiving the AJ's letter. The Commission noted that there was no indication that the Counselor inquired into Complainant's claims concerning the reason for the delayed contact. Further, the Agency did not provide any evidence that an EEO poster containing appropriate contact information was on display at the time of the alleged discrimination. The Commission found the unsupported statement of the Counselor as to the existence of a poster months after Complainant's contact was not sufficient to satisfy the Agency's burden on the issue of timeliness. Lee R. v. U.S. Postal Serv., EEOC Request No. 0520140162 (January 28, 2016); see also August V. v. Dep't of Transp., EEOC Appeal No. 0120142165 (January 6, 2016) (the Agency failed to produce sufficient evidence that Complainant had actual or constructive knowledge of time limit for initiating EEO counseling. The EEO poster provided was mostly illegible and the part that was legible did not include the 45-day time limit. Further, there was no evidence that any of the training Complainant received outlined the limitation period).

Complainant Timely Raised Ongoing Sexual Harassment Claim. The Commission found that the Agency improperly dismissed Complainant's claim of ongoing harassment for failure to timely contact an EEO Counselor. The Commission noted that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. Here, Complainant brought forth sexual harassment claims continually spanning from September 2012 through at least March 2015, and the latest alleged incident fell within 45 days of when Complainant contacted an EEO Counselor. The Commission also rejected the Agency's assertion that one allegation constituted a collateral attack on another forum, finding that the matter was part of the overall claim of harassment. Eileen S. v. U.S. Postal Serv., EEOC Appeal No. 0120160195 (January 19, 2016).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. Complainant initiated EEO counselor contact on August 12, 2014, alleging unlawful retaliation when, on April 11, 2014, she was rated as "not qualified" for a position. The Agency dismissed Complainant's complaint for untimely EEO Counselor contact, and the Commission reversed the agency's dismissal on appeal. The Commission found persuasive Complainant's assertions that she did not reasonably suspect unlawful discrimination until July 2014, when a colleague informed her that the Human Resources Officer stated in a staff meeting that Complainant was "a trouble maker" who "likes to file EEO complaints." The Commission ordered the Agency to resume processing Complainant's complaint. Martine L. v. Fed. Deposit Ins. Corp., EEOC Appeal No. 0120152142 (October 29, 2015).

Complaint Properly Dismissed for Untimely EEO Contact. The alleged discriminatory event occurred on October 13, 2015. Complainant, however, did not initiate contact with an EEO Counselor until December 9, 2015, beyond the 45-day limitation period. On appeal, Complainant asserted that he was unaware that he had to file an EEO complaint when the discipline was issued, and believed he could file after the adjudication of a grievance. The Commission did not find this argument persuasive, noting that because EEO posters with timeframes were on display in Complainant's workplace and Complainant had engaged in prior EEO activity, he was or should have been familiar with the 45-day limitation period. Additionally, the Commission has consistently held that use of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. Porter P. v. U.S. Postal Serv., EEOC Appeal No. 0120161799 (July 12, 2016).

Complaint Properly Dismissed for Failure to Timely Contact EEO Counselor. Complainant contacted an EEO Counselor in December 2015, alleging that she was discriminated against when she was removed from her position on February 6, 2015. The Commission found that the Agency properly dismissed the complainant for failure to timely contact an EEO Counselor. Complainant, a Postmaster, worked for the Agency for over 20 years, and the record contained a sworn statement that an EEO poster containing the applicable time limits was posted at Complainant's facility. Therefore, Complainant had constructive notice of the EEO time limits. Further, while Complainant asserted that she did not develop a reasonable suspicion of discrimination until December 2015, Complainant's formal complaint showed that she knew as early as December 2014 that Postmasters at certain facilities would be displaced due to a reduction in force. Chere S. v. U.S. Postal Serv., EEOC Appeal No. 0120161723 (July 8, 2016); request for reconsideration denied, EEOC Request No. 0520160472 (September 16, 2016).

Complainant Did Not Provide Justification for Extending Time Limit for Contacting EEO Counselor. Complainant contacted an EEO Counselor in January 2016, and subsequently filed a formal complaint alleging discrimination when the Agency would not move his supervisor to a different location in January 2015, and removed Complainant from his position in July and August 2015. The Commission found that Complainant's contact with the EEO Counselor was clearly beyond the 45-day limitation period. Further, while Complainant asserted that he became aware of a new comparator in January 2016, the Commission has held that such a discovery does not give rise to a new complaint of discrimination. Therefore, the Commission found that Complainant failed to provide sufficient justification for extending the time limit for contacting an EEO Counselor, and his complaint was properly dismissed. Edmund L. v. U.S. Postal Serv., EEOC Appeal No. 0120161621 (June 29, 2016).

Complaint Properly Dismissed for Untimely EEO Contact. Complainant argued that his untimely EEO counselor contact should be excused because he had significant medical problems during the relevant period. He provided a medical document stating he was "totally incapacitated for months and could not function independently." However, the Commission found that nothing in the statements provided by Complainant supported a finding that he was so incapacitated throughout the applicable period as to prevent him from timely contacting an EEO Counselor. Complainant therefore failed to present adequate justification for extending the filing period. Ira P. v. U.S. Postal Serv., EEOC Appeal No. 0120161373 (May 20, 2016).

Complaint Properly Dismissed for Untimely EEO Counselor Contact. Complainant contacted an EEO Counselor on August 7, 2015, alleging that he experienced harassment from November 2014 to June 1, 2015. The Commission affirmed the Agency's dismissal of Complainant's complaint for untimely EEO Counselor contact. On appeal, Complainant argued that he had no actual or constructive knowledge of the limitation period and that he was working with management and union officials to solve his concerns during the limitation period. The Agency provided declarations from management officials stating that the Agency emailed Complainant an annual policy on harassment which specified the time limitation, and that posters noting the time limitation were located in the area near Complainant's workspace. The Commission found that Complainant had at least constructive notice of the time limit. Further, Complainant's work with union officials did not toll the limitation period. Soloman B. v. Soc. Sec. Admin., EEOC Appeal No. 0120161131 (May 3, 2016).

Complaint Properly Dismissed for Untimely EEO Counselor Contact. The Commission found that Complainant failed to timely contact an EEO Counselor. While Complainant indicated that she was not aware of the time limitation for seeking EEO counseling, the record contained a sworn statement that an EEO poster containing the time limits and information on initiating the EEO process was posted at Complainant's facility. Further, although Complainant submitted a doctor's statement showing that she was diagnosed with PTSD and depression, Complainant was working at the time of the alleged discrimination and pursued a grievance on the matter. The Commission found nothing in the record to show that Complainant was so incapacitated throughout the applicable period that she was prevented from timely contacting an EEO Counselor. Mahalia P. v. U.S. Postal Serv., EEOC Appeal No. 0120161137 (April 29, 2016).

Complaint Properly Dismissed for Untimely EEO Counselor Contact. The record showed that Complainant learned he had not been nominated for an award in April 2014, but did not initiate contact with an EEO Counselor within the 45-day limitation period. The Commission affirmed the Agency's dismissal of the complaint, rejecting Complainant's argument that he had been engaged in ongoing discussions with management to resolve the issue. The Commission has consistently held that internal appeals or informal efforts to challenge an agency's actions do not toll the time limit for contacting an EEO Counselor. Mike G. v. Dep't of the Army, EEOC Appeal No. 0120151129 (March 30, 2016).

Negotiated Grievance Process Does Not Toll Time Limit for Contacting EEO Counselor. The Agency dismissed Complainant's complaint for untimely EEO Counselor contact. Complainant did not assert that she was unaware of the EEO process. Rather, she explained to the EEO Counselor that she first contacted the union to address her concern, but without a successful resolution. The Commission affirmed the Agency's dismissal noting that the use of the negotiated grievance procedure does not toll the time limit for contacting an EEO Counselor. Aida E. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160389 (February 18, 2016); see also Genaro G. v. Dep't of Hous. & Urban Dev., EEOC Appeal No. 0120161928 (August 19, 2016) (Complainant's assertion that he delayed contacting an EEO Counselor because his union representative advised him to use the grievance process was not sufficient to toll the time limit for contacting an EEO Counselor, and, therefore, his complaint was properly dismissed); Margeret M. v. U.S. Postal Serv., EEOC Appeal No. 0120160629 (February 25, 2016) (the use of the negotiated grievance process does not toll the time limit for contacting an EEO Counselor regardless of whether Complainant alleged disparate treatment or disparate impact discrimination).

Complaint Properly Dismissed for Untimely EEO Counselor Contact. The Agency dismissed Complainant's complaint for untimely EEO Counselor contact. On appeal, Complainant argued that he was unaware of the time limits and that a former co-worker misinformed him about how to initiate a complaint. The Agency provided an affidavit from a management official attesting to the fact that an EEO poster notifying Agency employees of the relevant time periods for contacting an EEO Counselor was posted on the employee bulletin board in the break room. The Commission therefore found that Complainant had constructive, if not actual knowledge of the relevant time periods and the location of the appropriate place to initiate his EEO contact. Further, Complainant's attempts to resolve the matter through his Congressman were not sufficient justification to toll the limitation period. Complainant also failed to provide evidence showing that he was so medically incapacitated during the relevant period that he was unable to contact a Counselor. Therefore, the Agency's dismissal was proper. Christopher U. v. U.S. Postal Serv., EEOC Appeal No. 0120142253 (January 12, 2016).

Untimely EEO Counselor Contact Affirmed Where Complainant Abandoned Complaint. On December 24, 2014, Complainant initiated contact with an EEO Counselor alleging denial of leave based on age and disability. He did not file a formal complaint at the time, pursuing alternative processes. When these processes proved unsuccessful, Complainant again contacted an EEO Counselor concerning the matter and filed a formal EEO complaint. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission affirmed the dismissal, finding that Complainant abandoned his claim when he chose not to pursue the EEO process following his initial contact with the Counselor. The Commission has consistently held that the use of internal agency procedures, union grievances, and other remedial processes does not toll the time limits for contacting an EEO Counselor. August V. v. Dep't of the Treasury, EEOC Appeal No. 0120152782 (December 23, 2015).

Formal Complaint Timely Filed. The Commission found that the Agency improperly dismissed Complainant's complaint as untimely where the record showed that Complainant received conflicting information from the Agency as to where she should file her complaint. Complainant submitted an email from the EEO Counselor informing her that the notice of her right to file a formal complaint contained the wrong address and fax number. The EEO Counselor provided Complainant with a different address and fax number, but Complainant subsequently received additional emails concerning the address and fax number for submitting her complaint. Complainant immediately attempted to obtain the correct information from the Agency, and it was unclear when she received the correct address and fax number. Therefore, the Commission declined to find that Complainant failed to timely file her formal complaint. Annice N. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120143168 (August 8, 2016).

Commission Found Adequate Justification for Extending Filing Period. The Commission reversed the Agency's dismissal of Complainant's complaint for failing to timely file her formal complaint within 15 days after receiving the notice of the right to file. Complainant was issued a notice of right to file in January 2016, but it did not contain a complaint form. The Agency issued a second notice with the form in March 2016. The Agency acknowledged its failure to send the complaint form initially, and the Commission found that the Agency's conduct caused confusion for Complainant. Therefore, since the Agency contributed to the delay, the Commission found sufficient justification to warrant an extension of the time limit for filing the complaint. Hortencia R. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120161496 (June 24, 2016).

Formal Complaint Improperly Dismissed as Untimely. The Commission reversed the Agency's dismissal of Complainant's complaint as untimely. Complainant initially hand delivered an unsigned formal complaint to the EEO Office within the applicable time period, and there was no indication that Complainant was told that her formal complaint was incomplete at that time. After the Agency notified Complainant that she needed to sign the complaint she resubmitted it. The Commission determined that Complainant's actions were sufficient to cure the defect. Yessenia H. v. U.S. Postal Serv., EEOC Appeal No. 0120161354 (June 3, 2016).

Formal Complaint Timely. After reviewing the UPS internet tracking information, the Commission found that the Notice of Right to File was delivered to the "Front Door" in a specific city. The Commission has previously held that the generalized reference to a city and zip code in a USPS "Track and Confirm" inquiry is insufficient to demonstrate that an agency has effectively established a date of delivery for purposes of computing time. Noting that the UPS delivery notice in the instant case was similar to the USPS "Track and Confirm," the Commission found that the Agency did not demonstrate the actual delivery date of the Notice informing Complainant of her right to file a formal complaint. Thus, her complaint was timely. Ciera B. v. Soc. Sec. Admin., EEOC Appeal No. 0120161197 (May 19, 2016).

Improper Dismissal for Failure to Timely File a Formal Complaint. On August 11, 2015, the EEO Counselor issued Complainant a Notice of Right to File a Formal Complaint. At that time Complainant indicated to the EEO Counselor that the informal matter was still with the Agency's Alternative Dispute Resolution (ADR) program. After the mediation proved unsuccessful, Complainant filed a formal complaint within 15 days. The Agency dismissed the complaint for being untimely. The Commission has stated that if the dispute has not been resolved during mediation to the satisfaction of the aggrieved person, the EEO Counselor must tell the aggrieved person that he has the right to pursue the claim further through the formal complaint procedure. The Commission held that under these circumstances, the time limit should be extended for Complainant and therefore the Agency's dismissal of the complaint for being untimely was not appropriate. Tommy R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120161097 (April 26, 2016).

Agency Failed to Meet Burden of Establishing Complaint Untimely Filed. The Commission reversed the Agency's final decision dismissing Complainant's EEO complaint for untimely filing. The Agency merely asserted that Complainant received the notice of the right to file a formal EEO complaint on a specified date. The delivery receipt in the record, however, merely showed that a package was received in a specific city and did not contain an actual delivery address or a signature. Kiara R. v. Soc. Sec. Admin., EEOC Appeal No. 0120151216 (February 2, 2016).

Commission Found Sufficient Justification to Excuse Delay in Filing Formal Complaint. Complainant acknowledged that she filed her formal complaint beyond the limitation period, but stated that she did not learn she had been issued a notice of her right to file a complaint until a later date. Complainant noted that while she authorized the Agency to send notices and documents to a home e-mail address, the EEO Specialist sent the notice to Complainant's work address instead. The record showed that Complainant submitted her formal complaint within 4 days of discovering the notice, and the Commission found sufficient justification to excuse the short delay. Starr R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142090 (November 17, 2015).

Complaint Improperly Dismissed as Untimely. The Commission reversed the Agency's dismissal of Complainant's complaint for failure to file within the 15-day limitation period. Complainant argued that his complaint was timely since another person signed for the Notice of Right to File a Discrimination Complaint and he filed his formal complaint within 15 days of when he became aware of the Notice. The Agency did not advise Complainant that it was relying on the doctrine of constructive receipt, or provide Complainant with the opportunity to demonstrate that the individual who signed the Notice at his address was not a family member or member of his household of suitable age and discretion. Therefore, the Commission remanded the complaint for further processing. Felix R., v. Dep't of Def. , EEOC Appeal No. 0120152035 (October 13, 2015); see also Gena C. v. U.S. Postal Serv., EEOC Appeal No. 0120152816 (December 23, 2015) (the Agency failed to inform Complainant that it was relying on the constructive receipt doctrine, which is a rebuttable presumption, to dismiss the complaint where the record contained a certified return receipt for the Notice of Right to File that had been signed for by an individual other than Complainant).

Complaint Properly Dismissed as Untimely. The Commission affirmed the Agency's dismissal of Complainant's complaint for being untimely filed. The record showed that the notice of right to file a formal complaint was delivered to Complainant's address of record on May 19, 2014, and signed for by Complainant's husband. Complainant did not file her complaint until June 17, 2014, which was beyond the 15-day limitation period. While Complainant stated that her husband did not tell her about the notice, the Commission has held that receipt of a document at a complainant's correct address by a member of the complainant's family of suitable age and discretion constitutes constructive receipt by the complainant. Stella B. v. U.S. Postal Serv., EEOC Appeal No. 0120142802 (January 7, 2016).