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U.S. Equal Employment Opportunity Commission



 Digest Seal The DIGEST Of Equal Employment Opportunity Law


Fiscal Year 2017, Volume 2

Office of Federal Operations

March 2017


Inside

Selected EEOC Decisions on:

Article:
Age Discriminiation:
An Overview of the Law and Recent Commission Decisions


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:Robyn Dupont, Sarah Holler, Michele Jarrouj, Matthew Moosbrugger, Joseph Popiden, Navarro Pulley, Aaron Rubin

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

(The Commission will now redact Complainants' names when it publishes decisions. Beginning on October 1, 2015, all federal sector appellate decisions issued for publication will use a randomly generated name as a substitute for the name of the complainant, rather than the generic term "Complainant." This randomly generated name will consist of a first name and last initial, and will be assigned using a computer program that selects names from a list of pseudonyms bearing no relation to the complainant's actual name.)

SELECTED EEOC DECISIONS

Agency Processing

Agency Improperly Processed Mixed Case Complaint. Complainant filed a mixed case complaint raising several allegations of discrimination including his removal, disparate treatment regarding time and attendance, denial of reasonable accommodation, assignment of duties, and suggestions that he retire. At the conclusion of the investigation, the Agency issued a final decision with appeal rights to the Merit Systems Protection Board (MSPB). Complainant filed an appeal with the MSPB which ultimately issued a decision reversing Complainant's removal and finding that Complainant was improperly placed in absent without leave status and denied accommodation, actions which formed the basis for his removal. The Commission found that it did not have jurisdiction to consider Complainant's removal because the Agency correctly provided Complainant with appeal rights to the MSPB for that matter. The Commission stated, however, that Complainant's claims regarding assignment of duties and suggestions that he retire were not appealable to the MSPB and the Agency failed to separate these matters and process them under the EEO regulations. The Agency should have issued a final decision with MSPB appeal rights only on the mixed allegations. Therefore, the Commission remanded the other matters to the Agency for processing. Freddie M. v. Dep't of Interior, EEOC Appeal No. 0120141374 (Dec. 16, 2016).

Complainant's Request for Hearing Improperly Dismissed. The Agency, maintaining that Complainant did not request a timely hearing, notified the Administrative Judge (AJ) that it was "rescinding" Complainant's request for a hearing. The AJ then dismissed Complainant's hearing request for lack of jurisdiction. On appeal, the Commission noted that it was unclear whether Complainant's request for a hearing was in fact untimely given the "inadequacies and inconsistencies" in the record. The Commission stated that the regulations do not provide a mechanism by which the Agency can rescind a hearing request once a request is made, but instead give the AJ full jurisdiction over the underlying complaint. Accordingly, the Agency had no authority to "rescind" Complainant's hearing request, and the AJ's refusal to accept jurisdiction over Complainant's complaint constituted an error of law. The Commission found that none of the time frames in the administrative process can be treated as "jurisdictional" because the regulations state that the time frames are subject to waiver, estoppel and equitable tolling. The Commission remanded the matter back to the Commission's Hearings Unit for processing. Keri C. v. Dep't of Def., EEOC Appeal No. 0120131986 (Dec. 12, 2016).

Agency Failed to Properly Process Informal Complaint. Complainant's representative contacted the Agency stating that she had returned Complainant's pre-complaint counseling information approximately one month previously and neither she nor Complainant received any response. The Agency asserted that the Dispute Resolution Specialist mailed Complainant and her representative a Notice of Right to File a Formal Complaint approximately two months later. After being subsequently told by the Agency that the matter had been closed, Complainant filed an appeal with the Commission. The Commission noted that while the Agency did not issue a final decision, the Agency's correspondence to Complainant regarding the Notice was deemed a dismissal of the matter. The record demonstrated that Complainant never received the Notice as evidenced by a tracking system notification of a failed delivery at Complainant's address. Further, Complainant's representative denied receiving the Notice, and the record did not demonstrate that the representative unequivocally received it. Therefore, since it is the Agency's burden to provide proof in support of its final decision, the Commission remanded the matter to the Agency for processing. Livia C. v. U.S Postal Serv., EEOC Appeal No. 0120151502 (Nov. 23, 2016).

Agency Failed to Properly Process Complaint After MSPB Found No Jurisdiction. Complainant filed an EEO complaint alleging a discriminatorily hostile work environment which ultimately led to a constructive demotion. An EEOC AJ subsequently dismissed Complainant's request for a hearing, reasoning that the claim involved a demotion which was appealable to the MSPB, and the Agency issued a final decision agreeing with the AJ. According to the record, Complainant appealed the demotion to the MSPB and the MSPB dismissed the appeal for lack of jurisdiction. On appeal, the Commission stated that when the MSPB denies jurisdiction in a mixed case complaint, the Agency must recommence processing of the matter as a non-mixed EEO complaint. Therefore, the Agency was ordered to forward the complaint for an administrative hearing. Herb P. v. Dep't of Justice, EEOC Appeal No. 0120142584 (Nov. 22, 2016).

Agency Failed to Separate Mixed and Non-Mixed Claims. Complainant filed an EEO complaint, which she amended several times, raising numerous issues of discrimination, including an indefinite suspension. The Agency issued several acceptance letters, and notified Complainant that it considered the matter concerning the indefinite suspension to be a mixed-case complaint. Upon the completion of the investigation, Complainant requested a hearing before an EEOC AJ with regard to all of the issues raised. The Agency subsequently issued a final decision on all of the claims and notified Complainant that she had the right to appeal the decision to the Merit Systems Protection Board (MSPB). Complainant then filed an appeal with the MSPB. The MSPB AJ dismissed the appeal without prejudice, and the EEOC AJ granted the Agency's motion to dismiss Complainant's hearing request. Complainant subsequently filed an appeal with the Commission. On appeal, the Commission noted that the indefinite suspension was the only matter appealable to the MSPB. The Agency, therefore, should have bifurcated the claim, and notified Complainant of her right to request a hearing with an EEOC AJ on all of the non-mixed allegations. The Commission ordered the Agency to submit the non-mixed claims for a hearing before an EEOC AJ. Chasity C. v. Dep't of Homeland Sec., EEOC Appeal No. 0120140557 (Nov. 4, 2016).

Agency Improperly Fragmented Claim and Failed to Conduct Adequate Investigation. Complainant filed a complaint alleging ongoing harassment and included eight incidents in support of her claim. The Agency dismissed some claims for failure to state a claim and found no discrimination as to the remaining claims. On appeal, the Commission found that the Agency improperly fragmented Complainant's complaint and failed to investigate her allegation of harassment. A fair reading of Complainant's claim in its entirety showed that Complainant claimed she was subjected to a series of related incidents of harassment over a period of time, and the matters, taken together, stated an actionable claim. Further, the Commission rejected the Agency's attempt to address the claim of harassment on appeal, stating that the Agency must first investigate the full range of incidents raised by Complainant. Therefore, the entire complaint was remanded for investigation. Micki C. v. Dep't of the Navy, EEOC Appeal No. 0120152287 (Oct. 12, 2016).

Attorney's Fees

Commission Modified Award of Attorney's Fees. The Agency found that Complainant was subjected to unlawful discrimination with regard to a single claim that her medical records were improperly disclosed to others in her workplace. The Agency found no discrimination with regard to the remaining claims of disparate treatment and harassment. The Agency ultimately reduced the amount of claimed attorney's fees based upon the fact that Complainant prevailed on only one claim. On appeal, the Commission found that the Agency properly excluded payment for time expended by Complainant herself. The Commission further stated that the record supported the Agency's decision to reduce the amount of requested fees and costs in light of Complainant's limited success in prevailing on only one claim which involved simpler facts and a narrow issue. Many of the hours claimed were not connected to the issue on which Complainant prevailed and the Commission found that a reduction of 90 percent was appropriate. The Commission did find, however, that Complainant's attorney properly supported his hourly rate and the Agency did not present any specific evidence to support its decision to reduce the hourly rate for the attorney or his paralegal. Therefore, the Commission increased the award of attorney's fees to $7,940.00. The Commission concluded that the attorney failed to provide supporting documentation for the claimed costs. Wilda M. v. Dep't of Homeland Sec., EEOC Appeal No. 0120142660 (Dec. 2, 2016).

Commission Modified Award of Attorney's Fees. Following a finding that the Agency discriminated against Complainant with regard to his performance rating, the Agency awarded Complainant attorney's fees. In a prior decision, the Commission increased the award of fees, holding that the attorney's fees should be calculated based upon the current rate when the fee petition was filed and not the rate at the time the work was performed. Complainant's attorney then requested fees for work performed on that appeal. Complainant filed an appeal with the Commission when his attorney did not receive a response from the Agency. The Commission noted that it is well-settled that Complainant is entitled to attorney's fees and costs incurred during the successful prosecution of an, and the Agency erred in not awarding Complainant these fees. Therefore, the Agency was ordered to pay Complainant fees and costs associated with his prior appeal as well as fees and costs related to the instant appeal. Jamie K. v. Dep't of Agric., EEOC Appeal No. 0120140785 (Nov. 23, 2016).

Class Complaints

Class Certification Granted. The Commission reversed the AJ's finding that the Class Agent failed to satisfy the requirements for class certification. While the AJ found that the class complaint did not meet the numerosity requirement, the Class Agency submitted a list of 20 putative class members on appeal and stated that the potential class could be as large as 800. The Commission found that the Class Agent provisionally met the numerosity requirement. The Commission found that the Class Agent's allegations that the Agency failed to offer a job swap to employees at one facility or give these employees the opportunity to accept a separation payout were straightforward and clear such that the Class Agent met the commonality requirement. The Commission modified the class definition, however, to include only race and color as bases given that not all of the putative class members were of the same sex. Finally, since there was no information regarding whether the class was adequately represented by counsel, the Commission provisionally certified the class on the condition that the Class Agent obtain legal counsel who is experienced in representing class complainants in the federal sector. The complaint was remanded to allow the Class Agent an opportunity to provide evidence to satisfy the adequacy of representation requirement as well as provide evidence that the proposed class can meet the numerosity requirement. Valentin P., et al. v. Dep't of the Army, EEOC Appeal NO. 0120113722 (Dec. 6, 2016).

Compensatory Damages

(See, also, "Findings on the Merits," and "Remedies" this issue.)

Commission Increased Award of Non-Pecuniary Compensatory Damages to $60,000. In a previous decision, the Commission found that the Agency subjected Complainant to a hostile work environment on the basis of disability, and ordered the Agency to, among other things, investigate Complainant's claim for damages. The Agency ultimately awarded Complainant $15,000 in non-pecuniary compensatory damages. On appeal, the Commission found that the Agency's award was not sufficient, and increased the award to $60,000. Complainant claimed that the harassment exacerbated her pre-existing condition and caused her to be more anxious and stressed. She also noted that she had difficulty sleeping, gained weight, suffered embarrassment and humiliation, lost interest in outside activities, and feared losing her job. The evidence showed that Complainant increased her visits to her psychologist during the period in question, and the psychologist confirmed that Complainant experienced "significant anxiety symptoms" due to work-related events. Complainant also submitted statements from family members and co-workers to support her claim. While the Commission recognized that Complainant had a pre-existing condition, the evidence showed that the discriminatory harassment exacerbated her condition, and there was ample evidence attesting to the negative effects of the harassment. Therefore, the Commission found that an award of $60,000 more appropriately compensated Complainant. The Commission found that Complainant was also entitled to $7,007.21 in pecuniary damages to compensate her for medical co-pays, prescription medication, and milage to and from her doctor's office. Roxanna B. v. U.S. Postal Serv., EEOC Appeal No. 0120143067 (Nov. 7, 2016).

Commission Increased Award of Damages to $60,000. The Commission previously affirmed the Agency's finding that it failed to reasonably accommodate Complainant. Following an investigation of Complainant's claim for damages, the Agency awarded Complainant $10,500 in non-pecuniary damages. On appeal, the Commission affirmed the Agency's decision not to award pecuniary damages, finding insufficient documentary proof to support such an award. The Commission, however, increased the award of non-pecuniary damages to $60,000. The Agency conceded that Complainant established a nexus between the harm he sustained and the discrimination. The record evidence confirmed that over a three-year period, Complainant experienced an exacerbation of his pre-existing conditions caused by stress created by the Agency's discriminatory actions. Complainant stated that he experienced anxiety, irritability, insomnia and loss of consortium, and indicated that he did not go out socially. He also noted that he experienced headaches, and night sweats, and was forced to increase his medication when the Agency refused to accommodate him. The evidence supported Complainant's assertion that his condition had stabilized prior to the discrimination, and the Agency was liable for the worsening of Complainant's condition. Irvin W. v. Dep't of State, EEOC Appeal No. 0120141773 (Oct. 28, 2016).

Commission Increased Award of Damages to $30,000. The Commission previously found that the Agency did not make a good faith effort to reasonably accommodate Complainant and ordered the Agency to investigate Complainant's claim for damages. The Agency subsequently awarded Complainant $4,500 in non-pecuniary damages, and the Commission increased the award to $30,000 on appeal. Complainant stated that the failure to provide her with accommodation for three months caused her to suffer mental anguish, as well as eye strain, and pain in her hip and back for an extended period. Complainant provided a letter from her husband stating that Complainant experienced setbacks which required more trips to the doctors for evaluation and treatment. Given the Agency's failure to address a situation that was inherently degrading and humiliating, the Commission found that an award of $30,000 was reasonable to compensate Complainant. Marguerite W. v. Dep't of Labor, EEOC Appeal No. 0120142727 (Dec. 21, 2016).

Commission Increased Award of Damages to $12,000. The Commission increased the Agency's $8,500 compensatory damages award to $12,000, finding the Agency's award inadequate to compensate Complainant for the harassment he received. Complainant stated that he experienced a loss of self-esteem, and felt intimidated, sad and depressed. He also indicated that he did not feel safe using the restroom at work and the discrimination negatively impacted his relationship with his girlfriend and daughter. The Commission rejected the Agency's argument that Complainant's membership in a class action settlement should be considered when awarding damages, noting that there was no evidence in the record that Complainant received any payment as a result of the class action. Don S. v. U.S. Postal Serv., EEOC Appeal No. 0120142824 (Dec. 22, 2016).

Commission Increased Award of Damages to $10,000. In a prior decision, the Commission found that the Agency did not make a good faith effort to reasonably accommodate Complainant on three occasions. Following an investigation, the Agency awarded Complainant $6,000 in non-pecuniary damages, and the Commission increased the award to $10,000 on appeal. Complainant stated that he experienced anxiety and mental anguish due to the Agency's failure to provide him with an interpreter. Complainant also provided a letter from his wife attesting to his claim of emotional harm. Given the Agency's conduct in failing the address a situation that was inherently degrading and humiliating, the Commission found that an award of $10,000 was appropriate to compensate Complainant. The Commission affirmed the Agency's denial of Complainant's claim for pecuniary damages because Complainant did not provide adequate evidence to support his claim. Harry E. v. Dep't of Def., EEOC Appeal No. 0120141679 (Nov. 3, 2016).

Commission Affirmed AJ's Award of $5,000 in Compensatory Damages. An AJ awarded Complainant $5,000 in non-pecuniary compensatory damages after finding the Agency discriminated against Complainant on the bases of race and age. On appeal, the Agency argued, among other things, that the AJ erred to the extent he awarded compensatory damages for age discrimination because damages are not available under the ADEA. On appeal, the Commission found that although the Agency argued that the AJ did not delineate what type of discrimination he found, it was clear from the AJ's analysis that he found both race and age discrimination. Additionally, the Commission found the AJ properly awarded Complainant $5,000 in non-pecuniary damages, relying on hearing testimony from Complainant that he experienced mental anguish and frustration. Neil M. v. Dep't of Agric. EEOC Appeal No. 0720140005 (Dec. 9, 2016) (The Commission also discussed the AJ's finding of discrimination, as noted below. - Ed.).

Commission Increased Agency's Award of Compensatory Damages to $5,000. In a prior decision, the Commission found that the Agency discriminated against Complainant, a post-offer applicant, when it required him to undergo an Agency-mandated medical examination at his own expense. Following an investigation, the Agency awarded Complainant $1,500 in pecuniary damages, and the Commission increased the award to $5,000 on appeal. Complainant provided only his own statement in support of his claim, indicating that his depression was exacerbated by the discrimination, and that he "put his life on hold" to process his EEO complaint. The Commission noted that damages can only be awarded for losses incurred as a result of the discriminatory conduct itself, and found that an award of $5,000 was appropriate to compensate Complainant. The Commission affirmed the Agency's award of $109.76 in pecuniary damages, stating that Complainant failed to provide receipts or other evidence to support his claim for additional expenses. Levi P. v. Dep't of Homeland Sec., EEOC Appeal No. 0120142758 (Nov. 4, 2016) .

Commission Affirmed Agency's Award of $3,000 in Non-Pecuniary Damages. Following a finding that Complainant was discriminated against when he was not selected for a position, the Agency awarded Complainant $3,000 in non-pecuniary damages. The Commission affirmed the award on appeal. While Complainant and his wife and son testified that he experienced emotional distress due to the discrimination, the Commission found little to no evidence linking the emotional distress to the non-selection rather than other alleged acts. Complainant's evidence, instead, showed that most of his injuries could be attributed to other matters, including problems with the Internal Revenue Service, his removal, and drug use. The Agency's award adequately compensated Complainant for the physical and emotional harm he suffered as a result of the discriminatory non-selection. Archie G. v. Dep't of Justice, EEOC Appeal No. 0120141305 (Nov. 30, 2016).

Dismissals

(See also by category, this issue.)

Complaint Improperly Dismissed on Basis that Complainant Elected MSPB Appeal. The Commission reversed the AJ's dismissal of a complaint alleging disparate treatment as to two performance evaluations, a charge of AWOL, and hostile work environment harassment on the grounds that the matters were raised in an appeal with the MSPB. The Commission found that while Complainant pursued a claim of termination with the MSPB, a fair reading of the remaining allegations revealed that the harassment claim and allegations of disparate treatment were separate issues. These matters were not before the MSPB and should be processed as an EEO complaint over which the Commission has jurisdiction. King D. v. Dep't of the Army, EEOC Appeal No. 0120162282 (Dec. 29, 2016).

Complaint Improperly Dismissed as Stating the Same Claim Previously Raised. The Agency dismissed Complainant's complaint alleging that it failed to provide her with reasonable accommodation as identical to a previous complaint. The Commission reversed the decision, stating that while the present complaint concerned the same subject matter, it involved a different and subsequent time period. Hannah C. v. Dep't of Agric., EEOC Appeal No. 0120162350 (Dec. 22, 2016).

Dismissal of Claim for Failure to State a Claim and Being Moot Improper. The Agency dismissed Complainant's claim alleging denial of reasonable accommodation for failure to state a claim and mootness. The Commission found that the Agency erred in dismissing Complainant's complaint because he had a pending workers' compensation claim. The Commission noted that while Complainant cannot use the EEO process to collaterally attack another proceeding such as workers' compensation, having a pending workers' compensation claim has no bearing on whether he has stated a viable EEO claim, and in this case, the Agency denied Complainant's request for accommodation. Further, to the extent that Complainant alleged that the Agency placed him in a position that violated his medical restrictions pending the outcome of the workers' compensation process the Agency's dismissal on the grounds of mootness was also improper. Don S. v. Dep't of the Navy, EEOC Appeal No. 0120160875 (Dec. 22, 2016).

Complaint Improperly Dismissed for Failure to State a Claim and Being Moot. Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of age when it placed him in off-duty status and issued him a notice of proposed removal. The Commission found that the Agency improperly dismissed the complaint for failure to state a claim and being moot. The Agency's assertion that Complainant was actually placed in pay status and had his leave converted to "other paid leave" addressed the merits of Complainant's claim without a proper investigation and was irrelevant to whether Complainant stated a justiciable claim. Further, the Agency conceded that the proposed removal was finalized and changed to a seven-day suspension. Therefore, the removal notice subsequently merged into that disciplinary action, and Complainant stated a valid claim. Finally, the Agency did not show that interim relief or events completely and irrevocably eradicated the effects of the alleged discrimination because Complainant alleged that he was denied the opportunity to bid on a position, and suspended for seven days without pay. The Commission also noted that Complainant stated he was seeking compensation "for harm done," which the Commission considered a claim for compensatory damages. Jackie P. v. U.S Postal Serv., EEOC Appeal No. 0120162633 (Dec. 15, 2016).

Complaint of Harassment Improperly Dismissed for Untimely Contact with EEO Counselor and Failure to State a Claim. Complainant filed a formal complaint alleging the Agency subjected her to harassment, and listed 10 incidents in support of her claim. The Agency dismissed two claims for untimely contact with an EEO Counselor as they occurred outside of the requisite 45-day period. The Agency dismissed the remaining claims for failure to state a claim. On appeal, the Commission found that the Agency improperly dismissed the allegations because the incidents collectively made up a viable hostile work environment claim. Therefore, the entire claim was actionable. Further, at least one incident occurred within the filing period. The Commission noted that the Agency discussed resolution and settlement matters that occurred during informal counseling in its dismissal, and the Commission reminded the Agency about the need for confidentiality during such proceedings. Isabelle G. v. Nat'l Reconnaissance Office, EEOC Appeal No. 0120142354 (Dec. 2, 2016); see also Helen G. v. Dep't of Homeland Sec., EEOC Appeal No. 0120142819 (Dec. 21, 2016) (the AJ improperly fragmented Complainant's hostile work environment claim and dismissed some allegations for failure to state a claim and some for failure to timely contact an EEO Counselor. The Commission stated that this fragmentation compromised Complainant's ability to present an integrated and coherent claim. Complainant stated a cognizable claim of discriminatory harassment, and several of the incidents cited occurred within 45 days of the date she contacted the EEO Counselor. The Commission noted that while several incidents could be considered untimely discrete acts, those matters are should be considered as evidence in support of the overall harassment claim. The matter was remanded to an administrative hearing); Aleshia C. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120162727 (Nov. 16, 2016) (a fair reading of Complainant's formal complaint showed that Complainant claimed she was harassed through a variety of events that encompassed more than the single incident cited by the Agency. Therefore, Complainant stated a viable hostile work environment claim. In addition, at least one incident comprising Complainant's claim of hostile work environment harassment occurred within the 45 day limit, and, as such, Complainant's EEO contact was timely).

Complaint Improperly Dismissed for Failure to State a Claim and Untimely Contact with EEO Counselor. Complainant filed a formal complaint alleging the Agency subjected her to discrimination when she was incorrectly charged for health and life insurance premiums while she was out of work due to a work-related injury, and subsequently failed to reimburse her. The Agency dismissed the complaint for failure to timely contact an EEO Counselor and failure to state a claim. While the record showed that Complainant learned that comparative employees had been promptly reimbursed, she was not told how she should submit a refund request until February 2016, and the Agency did not provide any evidence that she had been told earlier that she was entitled to reimbursement. Therefore, the Commission found that Complainant timely contacted the EEO Counselor on February 22, 2016. Further, the Commission rejected the Agency's assertion that the complaint was a collateral attack on the OWCP process, noting that the letter informing Complainant how to apply for reimbursement was sent by the Agency and directed that the information be sent to an Agency office not OWCP. Therefore, Complainant sufficiently alleged that she suffered an injury or harm to a term, condition, or privilege of employment for which there is a remedy. Velda F. v. U.S. Postal Serv., EEOC Appeal No. 0120162360 (Nov. 15, 2016).

Complaint Improperly Dismissed in Part. The Agency dismissed Complainant's complaint regarding the denial of his grievance and a one-hour change to his start time for failure to state a claim. On appeal, Complainant asserted that the first claim was not related to the outcome of his grievance but to the failure to properly pay him. The Commission found, however, that the claim was inextricably tied to the outcome of his grievance and Complainant chose to file an EEO complaint only after he realized his grievance was being denied. Therefore, the matter was properly dismissed as a collateral attack on the grievance process. The Commission found that a fair reading of the second claim indicated that Complainant was alleging the Agency changed his start time in retaliation for his prior EEO activity. Therefore, the Agency improperly dismissed the second claim since claims of retaliation are not limited to actions affecting terms and conditions of employment, but include actions that could dissuade a reasonable person from pursuing the EEO process. Preston B. v. U.S Postal Serv., EEOC Appeal No. 0120162656 (Nov. 7, 2016).

Complaint Improperly Dismissed. The Agency dismissed Complainant's complaint for allegedly raising a matter that had not been brought to the attention of an EEO Counselor and was not like or related to a matter that had been raised with the Counselor. The Agency asserted that Complainant refused to identify the basis for his claims at the informal processing stage, and refused to participate in the informal counseling process. The Commission noted that while the record showed that Complainant chose not to reveal the specific underlying events giving rise to his complaint of discrimination, Complainant was never informed that his failure to do so would allow the Agency to dismiss his formal complaint. Additionally, the record failed to show that the Counselor gave Complainant notice in writing of the effect of his refusal to adequately participate in the informal process as required by the regulations. The EEO Counselor's report showed that Complainant did identify race discrimination as the basis of his complaint, as well as the issue of harassment during pre-complaint counseling. Jeffrey G. v. Dep't of the Treasury, EEOC Appeal No. 0120162440 (Oct. 28, 2016).

Spin-off Complaint Properly Dismissed. Complainant filed a formal EEO complaint alleging that the Agency retaliated against her when it forwarded an email from Complainant's representative to the AJ presiding over her prior EEO case. The Commission found that the Agency properly dismissed the complaint as a spin-off from an existing EEO complaint, noting that the allegations did not form the basis for an EEO complaint independent from the initial complaint. Complainant was instructed to raise these allegations with the AJ presiding over the underlying complaint. Dixie B. v. Dep't of the Navy, EEOC Appeal No. 0120161740 (Oct. 7, 2016).

Findings on the Merits and Related Decisions

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

Under the Rehabilitation Act

Denial of Reasonable Accommodation, Disability Discrimination, and Harassment Found. The Commission found that the Agency failed to reasonably accommodate Complainant's disability, discriminated against her when it issued her a counseling letter and admonished her, and subjected her to a hostile work environment. Complainant asked to be able to excuse herself as needed to adjust her insulin pump, check her blood sugar in a private area, and eat if necessary, and provided medical documentation to support her request. The Commission noted that these types of accommodation are often needed by employees with diabetes, and the Agency did not provide evidence that it would have been an undue burden to provide them to Complainant. The Commission rejected the Agency's assertion that it accommodated Complainant, stating that the Agency only offered Complainant accommodations available to the general workforce and did not address Complainant's specific needs. Complainant's supervisor also failed to respond to Complainant for two months despite the fact that her medical documentation indicated that a delay could result in severe medical consequences. The Commission noted that while the Agency approved Complainant's request for leave, its own inaction and delay on Complainant's request for accommodation drove Complainant out of the workplace for a significant period of time and resulted in the need for her to request the leave. The Agency then used Complainant's leave status as an excuse to halt the interactive process that could have provided her with reasonable accommodation. The Commission stated that forcing an employee to take leave when another accommodation would permit the employee to continue working is not an effective accommodation. Therefore, the Commission concluded that the Agency did not act in good faith and was liable for compensatory damages. The Commission also found that Complainant was subjected to disability discrimination and retaliation when her supervisor issued her a counseling letter and admonished her, and that these incidents, when considered with the denial of accommodation, constituted a hostile work environment. The Agency was ordered, among other things, to provide Complainant with reasonable accommodation, restore all leave taken because of the denial of accommodation, pay appropriate back pay, and investigate her claim for damages. Denese G. v. Dep't of the Treasury, EEOC Appeal No. 0120141118 (Dec. 29, 2016).

Agency Failed to Accommodate Complaint. The Commission found that the Agency failed to reasonably accommodate Complainant who was hearing impaired when it conducted an unscheduled service talk without providing a sign language interpreter. While the Agency stated that it attempted to accommodate Complainant the following day at another meeting, that meeting never occurred because no sign language interpreter appeared for the second service talk. The Agency failed to make a good faith effort to accommodate Complainant. The Agency was ordered, among other things, to ensure that Complainant is provided with a qualified interpreter when required, provide training to the involved managers and supervisors on the issue of reasonable accommodation, and investigate his claim for damages. Darius C. v. U.S. Postal Serv., EEOC Appeal No. 012016004 (Nov. 1, 2016).

Failure to Accommodate Found. The Commission found that the Agency violated the Rehabilitation Act when it denied Complainant's requests to return to the night shift and work with a 20 pound lifting restriction as a reasonable accommodation. The Commission noted that the Agency's claim of undue hardship was significantly undermined by the fact that other employees with similar lifting restrictions were permitted to work. Management witnesses attempted to justify this by stating that these employees were receiving worker's compensation. The Commission explained that while the purpose of the worker's compensation law is to provide a system for securing prompt and fair settlement of employees' claims for occupational injury and illness, the Rehabilitation Act is broader, prohibiting federal agencies from discriminating against all qualified individuals because of disability, whether work-related or not. If an agency reserves light duty positions for employees with occupational injuries, the Rehabilitation Act requires it to consider assigning an employee with a disability who is not occupationally injured to such positions as a reasonable accommodation. The Agency cannot establish undue hardship by asserting it needs to reserve light duty for employees approved by worker's compensation. The Agency was ordered, among other things, to permit Complainant to return to the night shift, restore any leave used as a result of the denial of accommodation, and pay Complainant any back pay he lost due to the denial of accommodation. The Commission affirmed the Agency's finding that Complainant failed to prove his claim of ongoing discriminatory harassment. Will K. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142904 (Oct. 18, 2016).

Under Multiple Bases

Commission Affirms AJ's Finding of Race and Age Discrimination. Following a hearing, the AJ found that the Agency discriminated against Complainant on the bases of race and age when it did not select him for a Contracting Officer position. The AJ determined that Complainant's qualifications were plainly superior to the Selectee's qualifications in that Complainant had more years of contracting experience, had contracting experience involving more complex matters and higher monetary amounts, and had more years of supervisory experience. The AJ also found that the Selecting Official's testimony about the Selectee's qualifications was not credible and was not supported by the documentation in the record. On appeal, the Commission concluded that the AJ's finding was supported by substantial evidence, and agreed with the AJ that the Agency's legitimate, nondiscriminatory reason for not selecting Complainant was a pretext for race and age discrimination. While the Agency asserted that the Selecting Official's selection history precluded a finding of discrimination, the Commission stated that selection history is not controlling, and the AJ reasonably relied upon Complainant's prior performance appraisal as an indicator of his performance. Further, the AJ was entitled to draw a reasonable inference from the fact that the Selecting Official did not contact Complainant's supervisor despite having contacted the Selectee's most recent supervisor. The Agency was ordered, among other things, to offer Complainant the position, pay him appropriate back pay and benefits, and pay him $5,000 in proven compensatory damages. Neil M. v. Dep't of Agric., EEOC Appeal No. 0720140005 (Dec. 9, 2016) (The Commission also discussed the award of compensatory damages, as noted above - Ed.).

Retaliation

Per Se Retaliation Found. Complainant filed a formal EEO complaint alleging that his supervisor told a co-worker that Complainant had filed a prior EEO complaint and left documents pertaining to the complaint on his desk in plain view of the co-worker. The Commission found the supervisor's actions constituted per se retaliation. While the Agency asserted that there was no evidence that the incident occurred, the record contained a sworn affidavit from the co-worker attesting to the incident. In addition, the co-worker reported the incident to Complainant shortly after it happened, and Complainant stated that the co-worker had no prior knowledge of his complaint. The Commission found the supervisor's general assertion that he "did not recall" speaking to the co-worker about any EEO complaints was not persuasive. The Commission acknowledged that there was no evidence Complainant suffered an adverse employment action as a result of the incident, but the Commission found that the supervisor's discussion of an EEO complaint and lack of discretion regarding documents pertaining to the complaint constituted per se retaliation. These actions would be reasonably likely to deter Complainant and others from engaging in protected EEO activity. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training to the supervisor. Renato K. v. Dep't of Homeland Sec., EEOC Appeal No. 0120141861 (Dec. 16, 2016).

Per Se Retaliation Found. Complainant filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when it issued her a proposed 30-day suspension. An AJ found that Complainant failed to prove a nexus between her prior EEO activity and the Agency's allegedly retaliatory actions. Upon review of the record, the Commission found that the supervisor created a chilling effect on the EEO process when he specifically mentioned allegations of discrimination made by Complainant in his proposal for her 30 day suspension. While the supervisor stated that he issued the proposed suspension because of the tone of Complainant's emails rather than the content, the Commission found that the supervisor's specifically citing Complainant's allegations of harassment and discrimination in a disciplinary proposal had a chilling effect on the EEO process. The Commission noted that the length of the proposed suspension appeared excessive given Complainant's alleged conduct. Therefore, the Commission found that the proposed suspension was per se retaliation. The Commission affirmed the AJ's finding that Complainant failed to prove her claims of discriminatory harassment and disparate treatment. Odilia M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120150311 (Nov. 3, 2016).

Hearings Issues

Ex Parte Communication. Complainant appealed to the Commission from a decision by an AJ finding that the Agency did not subject Complainant to sex discrimination or violate the Equal Pay Act. Complainant argued, among other things, that the AJ engaged in ex parte communications with the Agency concerning the scheduling of a video conference hearing. The AJ acknowledged at the hearing that he had spoken to an Agency IT Specialist regarding setting up and testing video conference equipment and did not realize the individual would be called as a witness. The Commission noted that as a general rule, ex parte communications between a party and an AJ are prohibited. However, in order for ex parte communication to be prohibited, it must relate to the substance of the case. The Commission found that the AJ's contact with the individual concerned logistics and there was no evidence that the AJ's contact affected his objectivity regarding the ultimate outcome of the matter. Further, the AJ notified the parties of his intent to conduct a video conference hearing and there was no evidence that Complainant objected to the hearing going forward. Therefore, the Commission concluded that the AJ did not abuse his discretion. The Commission also affirmed the underlying findings of no discrimination. Clement M. v. Dep't of the Navy, EEOC Appeal No. 0120140861 (Oct. 19, 2016).

Official Time

Commission Affirmed Agency's Decision on Official Time. The Commission found that the Agency properly addressed Complainant's allegations that she was denied official time as a separate claim. Complainant made a request for four hours of official time to complete pre-complaint intake forms, and two hours to meet with the EEO Counselor. The Agency granted Complainant 30 minutes for each request. Complainant's EEO Counselor confirmed that 30 minutes was the average amount of time it took to complete EEO paperwork, and the Commission's regulations provide that pre-complaint counseling should take less than 30 minutes. The Commission rejected Complainant's argument that 30 minutes was insufficient for her representative to assist her in identifying the issues and determining how to proceed with her claim. The Commission noted that Complainant was already familiar with the EEO process and did not explain why she needed longer to complete the paperwork. While Complainant stated that 30 minutes was not enough time for her representative to accompany her in person, the Commission's regulations provide that complainants may consult with their representatives by phone and Complainant acknowledged that she utilized that option. Therefore, the evidence in the record established that 30 minutes was a reasonable amount of official time for both of Complainant's requests. Mozelle G. v. U.S. Postal Serv., EEOC Appeal No. 0120161951 (Oct. 19, 2016).

Remedies

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

Back Pay Discussed. The Agency agreed to implement the AJ's decision finding that it discriminated against Complainant when it hired him at a lower grade level, and ordering the Agency to, among other things, pay Complainant appropriate back pay. Following Complainant's appeal of the Agency's determination regarding back pay, the Commission found that the AJ correctly determined that back pay should be calculated based on an initial Grade 6, step 1 salary level. There was no evidence that Complainant would have qualified to be hired at a higher step 4 level. The Commission determined, however, that the Agency erred in continuing its back pay calculations after the date on which Complainant had actually been promoted to the Grade 6, step 4 level. The Commission noted that while it appeared that the Agency, in implementing the AJ's order, cancelled this promotion, Complainant should retain the step 4 promotion and all subsequent step and other pay increases incurred after the end of the back pay period. Sang G. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140162 (Dec. 28, 2016).

Training for Management Officials Sufficient. An AJ found that the Agency subjected Complainant to a hostile work environment and race discrimination. The Commission found that the AJ's order directing the Agency to provide training to all employees at Complainant's facility was overly broad as there was no evidence of a facility-wide culture of discrimination. The Commission found, instead, that requiring the Agency to provide eight hours of training to the management officials in Complainant's chain of command and the Human Resources Specialist was sufficient. Joey B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0720160023 (Dec. 21, 2016).

Agency Failed to Comply with Order Regarding Back Pay. Petitioner petitioned for enforcement of an order instructing the Agency to provide her with back pay. The Agency awarded Petitioner back pay in the amount of $47,676. However, because Petitioner was a retiree receiving an annuity, the Agency collected $30,591 from this amount and submitted it to the OPM's Retirement Programs. As a result, after tax deductions the Agency calculated Petitioner's total net back pay amount to be $8,010.40. The Agency admitted that it mistakenly deducted the $30,591 from Petitioner's back pay and sent it to OPM. While the Agency stated it contacted OPM regarding the error it did not provide any explanation concerning its attempts to recover the amount. Therefore, the Agency was ordered to pay Petitioner the $30,591 it mistakenly sent to OPM's Retirement Programs and provide a detailed explanation of how it calculated back pay. Martina S. v. Dep't of Homeland Sec., EEOC Petition No. 0420160016 (Nov. 3, 2016).

Back Pay Discussed. In a previous decision, the Commission made a finding of discrimination and ordered the Agency to calculate back pay and pay Petitioner within 60 days of the order. Petitioner brought an enforcement action against the Agency, claiming that the Agency failed to properly calculate the back pay owed to her by not including per diem payments for her deployment periods. The Commission found that the Agency properly did not include per diem payments in the back pay award as per diem is not considered compensation under the Back Pay Act. The Commission did agree with Petitioner, however, that the Agency improperly calculated her back pay award by subtracting unemployment compensation benefits from the total. The Commission has previously stated that an agency may not deduct unemployment benefits from a back pay award, and the Commission ordered the Agency to pay Petitioner the amount that was deducted, as well as any other applicable benefits due Petitioner. Corazon P. v. Dep't of Homeland Sec., EEOC Appeal No. 0420150004 (Oct. 26, 2016).

Commission Modified Relief in Agency's Final Decision. The Agency found that Complainant was discriminated against on the basis of disability when she was denied a medical clearance and not provided with reasonable accommodation. The Agency ordered an individualized assessment of Complainant's condition and her ability to return to an overseas position. Complainant filed an appeal with the Commission, asserting that she was not provided with full relief. The Commission concluded that based upon the record and the Agency's own findings, the Agency did not meet its burden of establishing that Complainant's return to an overseas position would have posed a direct threat. The Agency failed to establish a defense to denying Complainant a medical clearance and was liable under the Rehabilitation Act. Complainant was therefore entitled to make-whole relief including an offer of the overseas assignment. Complainant was also entitled to an award of reasonable attorney's fees and costs, as well as the opportunity to support her claim for compensatory damages. The Commission also ordered the Agency to provide training for the responsible management officials covering their responsibilities under the Rehabilitation Act. Madelaine G. v. Dep't of State, EEOC Appeal No. 0120141877 (Oct. 25, 2016).

Settlement Agreements

Breach of Settlement Found. The Agency and Complainant reached a settlement agreement in 2014 which provided, in pertinent part, that Complainant would be able to check his blood sugar in the morning, combine his breaks and lunch, and take an additional break if needed. The agreement was to remain in effect for the duration of Complainant's employment with the Agency. In 2016, Complainant received a letter stating that going forward he would be allowed to use leave in combination with or in addition to his breaks and lunch period as a reasonable accommodation for the condition "for which [he] was previously allowed to combine [his] breaks." On appeal, the Commission found that the Agency breached the agreement during the two-month period in 2016. Even though the Agency correctly asserted that it had 35 days to cure a breach, the Commission stated that did not mean that it could unilaterally cancel the agreement that had been in effect for almost two years, and then reinstate it at a later date. Therefore, the Commission ordered the Agency to reimburse Complainant for any leave he used to accommodate his condition during the period in question, and pay Complainant attorney's fees incurred as a result of the breach. Colby S. v. U.S Postal Serv., EEOC Appeal No. 0120162345 (Dec. 2, 2016).

Settlement Agreement Void and Did Not Comply with OWBPA. Complainant initiated the EEO process regarding claims of age discrimination. Complainant then entered into a settlement agreement with the Agency to resolve the matter. After Complainant subsequently claimed breach of the agreement, the Agency found that the settlement agreement did not comply with the provisions with the Older Workers' Benefit Protection Act (OWBPA). The OWBPA, which amended the ADEA, provides the minimum waiver requirements for ADEA claims. To meet the standards of the OWBPA, a waiver of a complainant's rights to pursue relief for his claims of discrimination based on age, such as that contained in the settlement agreement at issue herein, would not be considered knowing and voluntary unless at a minimum: the waiver is clearly written, from the viewpoint of the employee; the waiver specifically refers to rights or claims under the ADEA; the employee does not waive rights or claims following execution of the waiver; valuable consideration is given in exchange for the waiver; the employee is advised in writing to consult with an attorney prior to executing the agreement; and the employee is given a "reasonable" period of time in which to consider the settlement agreement. On appeal, the Commission noted that the subject agreement did not state that Complainant was waving her rights under the ADEA, and Complainant was not advised in writing to consult with an attorney before executing the agreement. The record also did not reflect that Complainant was given a reasonable period of time in which to consider the settlement. Therefore, the Commission found that the entire agreement was void. Lelah T. v. U.S. Postal Serv., EEOC Appeal No. 0120151856 (Oct. 19, 2016).

Settlement Agreement Void for Lack of Consideration. Complainant and the Agency entered into a settlement agreement providing, in pertinent part, that the Agency would "consider" information provided by Complainant regarding how he believed he exceeded his performance objectives. Complainant alleged that the Agency breached the agreement when it did not change his rating after receiving his information. The Commission found that the settlement agreement was void for lack of consideration. On appeal, the Commission noted that generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. In this case, the agreement only required the Agency to consider the information provided by Complainant and did not require the Agency to change the rating in question. The Commission concluded that the Agency incurred no legal detriment and ordered the Agency to reinstate the underlying complaint. Cory C. v. Dep't of the Army, EEOC Appeal No. 0120162470 (Oct. 28, 2016).

Settlement Agreement Void for Lack of Consideration. The parties entered into a settlement agreement which provided, among other things, that Complainant's Manager and the Health and Resource Specialist "will review for potential revision" the Agency's challenge to Complainant's OWCP claim. On appeal, the Commission determined the Agency incurred no legal detriment from the settlement due to the lack of clarity in the agreement as to the definition of the phrase "will review for potential revision." The Commission stated that the Agency had the sole power to determine whether or not to revise its response to OWCP. Therefore, the agreement was void and unenforceable. Maitlda C. v. U.S. Postal Serv., EEOC Appeal No. 0120151717 (Oct. 14, 2016).

Commission Finds Settlement Agreement Was Binding. The Agency and Complainant reached a settlement agreement that provided, in pertinent part, that the Complainant had the right to reinstate her claim if the Agency found that she was not qualified for a particular position. According to the record, a Human Resources official found that Complainant was not qualified, and Complainant requested that the Agency reinstate her complaint. On appeal, the Commission found that the agreement was valid and binding. Further, the agreement expressly gave Complainant the option of reinstating her complaint if Human Resources determined that she was not qualified for the specific position. Therefore, the Commission found that the terms of the agreement should be enforced, and the Agency should reinstate Complainant's complaint. Violet F. v. U.S Postal Serv., EEOC Appeal No. 0120161711 (Oct. 7, 2016).

Breach of Settlement Found. Complainant alleged that the Agency was in breach of a settlement agreement between the parties when the Agency failed to reimburse him for leave and convert time originally counted as Leave Without Pay (LWOP) to paid time. The Agency found that it had partially performed in that it restored applicable amounts of annual and sick leave. The Agency asserted that there was a mutual mistake as to the amount of LWOP and Complainant actually used less LWOP than specified in the agreement. The Agency noted that the parties reformed the agreement to reflect the accurate amount but that changes in the payroll system caused "difficulties" in making the necessary corrections. On appeal, the Commission found that the Agency breached the agreement. The Commission noted that the Agency did not take actions to correct Complainant's records until after the 60-day period specified in the agreement, and six months later had still not converted the accurate amount of LWOP to paid time. Complainant did not express a preferred remedy, and the Commission ordered the Agency to offer Complainant the option of either specific performance or reinstatement of the underlying claim. Cyrus H. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120162157 (Oct. 3, 2016).

Breach of Settlement Found. Complainant entered into a settlement agreement with the Agency that provided, in relevant part, that the Agency would promote Complainant, and pay her $23,889.60 minus deductions such as both state and federal taxes. Complainant alleged that the Agency breached the agreement when it did not pay her the full amount specified, and the Commission agreed with Complainant on appeal. The Commission rejected the Agency's assertion that the amount identified in the agreement resulted from "an error in calculation" by the Agency official engaged in the settlement effort and that Complainant was only entitled to $3,132.20 in back pay. The agreement specifically provided that the Agency would pay Complainant the full amount stated, which was articulated in two provisions both by word and by number. Further, the Commission found it "curious" that none of the five Agency officials who signed the agreement detected the alleged error in the agreed upon amount. Therefore, the Agency was ordered to comply with the agreement and pay Complainant the specified amount. Jenee W. v. Dep't of State, EEOC Appeal No. 0120143015 (Oct. 3, 2016).

Stating a Claim

Complaint Stated Actionable Claim of Harassment & Retaliation. The Commission found that Complainant alleged a series of incidents, including among other things being denied the use of equipment, being monitored, and being denied assignments, in retaliation for prior EEO activity which stated a viable claim of retaliatory harassment. While the Agency stated that Complainant failed to show "a tangible personal loss," Complainant can challenge retaliatory actions which are reasonably likely to deter protected EEO activity. Further, the Commission need not decide the merits of Complainant's complaint when determining whether Complainant has stated a viable claim of retaliation. Carl Y. v. U.S. Postal Serv., EEOC Appeal No. 0120162557 (Dec. 29, 2016).

Complaint Improperly Dismissed as a Collateral Attack on the Grievance Process. Complainant filed a grievance with the Agency after being denied work. The grievance was settled, and Complainant was allowed to return to work and was made whole for any time he was denied work. Complainant subsequently filed a formal complaint alleging, among other things, the Agency discriminated against him when it denied his request for light duty. The Agency dismissed the complaint as a collateral attack on the grievance process, stating that Complainant should have raised the matters through the grievance process. On appeal the Commission found that Complainant's complaint concerned Agency management not allowing him to work and operate commercial vehicles, not the grievance process. Therefore the Agency erred in dismissing the complaint. Ian S. v. U.S. Postal Serv., EEOC Appeal No. 0120170063 (Dec. 12, 2016).

Complaint Improperly Dismissed for Failure to State a Claim. Complainant alleged the Agency subjected him to discrimination on the basis of religion when he was not added to the appropriate pay plan in order to work and train as a firefighter. Complainant objected to using a social security number (SSN), citing certain Bible passages. The Agency dismissed the complaint for failure to state a claim, stating that Complainant cannot be placed on the pay plan without a valid SSN. On appeal the Commission determined that Complainant stated a valid claim, specifically, that the Agency failed to provide him with a requested religious accommodation. The Agency's assertion regarding the reasons Complainant cannot be placed on the pay plan go to the merits of the complaint and are irrelevant to the procedural issue of whether he states a justiciable claim. Horacio M. v. Dept. of Agric., EEOC Appeal No. 0120162384 (Dec. 7, 2016).

Complaint Alleging Change in Start Time Stated Viable Claim. The Agency dismissed the complaint alleging race and disability discrimination based on the conclusion that Complainant failed to allege that he was aggrieved by a 15-minute change in his start time. On appeal, the Commission found that Complainant did sufficiently allege he was aggrieved by the change in his start time. Specifically, Complainant stated that as a result of his new start time, he was excluded from a number of early morning activities available to other mail carriers, including casing his mail, attending morning stand-up talks, and a morning break. Additionally, he noted that the relief carrier, who took over his route on his off days and was not of his race, was allowed to remain on the earlier start time. Wilburn M. v. U.S. Postal Serv., EEOC Appeal No. 0120162757 (Dec. 2, 2016).

Complainant Stated Viable Claim of Retaliation. The Commission found that Complainant's claim regarding a letter of warning (LOW) stated a viable claim of retaliation. The record revealed that the letter was later reduced to an official discussion as a result of a grievance. The Commission has held, however, that claims of retaliation are not limited to actions affecting a term, condition, or privilege of employment. Instead, a claim of retaliation can be made when Agency actions would cause a reasonable employee to be dissuaded from participating in the EEO process. In this case, the Commission found that a LOW, even when later reduced, could reasonably deter an employee from participating in the EEO process. Billy L. v. U.S. Postal Serv., EEOC Appeal No. 0120170009 (Nov. 23, 2016).

Complainant Stated a Viable Claim of Disability Discrimination. The Commission found that the Agency mischaracterized Complainant's claim, and a fair reading of the complaint in conjunction with the EEO counseling report showed that she was alleging that the Agency failed to accommodate and harassed her. Complainant asserted that the Agency received documentation concerning her medical condition and its effects and limitations, and rather than accommodating her, the Agency attempted to force her to go to her doctor every time she had an incident related to her condition. The Commission found that, taken as a whole, and given Complainant's condition, she stated a viable claim of disability discrimination and harassment. Alvera L. v. U.S. Postal Serv., EEOC Appeal No. 0120162802 (Nov. 22, 2016).

Complainant Stated Viable Claim. The Commission found that Complainant's allegation that she was given a new modified job offer assigning her to a different schedule stated a viable claim. Contrary to the Agency's assertions, the claim was not a collateral attack on the OWCP adjudicatory process. While OWCP "approved" the position, it appeared that this was only for the purpose of finding that the position met Complainant's work restrictions from her work-related injury. The Agency itself made the decision to change Complainant's tour of duty, and Complainant alleged an injury or harm to a term, condition or privilege of employment. Emelda F. v. U.S. Postal Serv., EEOC Appeal No. 0120162786 (Nov. 15, 2016).

Complainant Deemed Employee of Agency. The Commission found that the Agency exercised the requisite control over the means and manner of Complainant's work to qualify as a joint employer for purposes of the EEO process. While Complainant was placed at the Agency by a staffing firm, the Agency controlled how Complainant performed her job, assigned her work, set deadlines, advised her on her performance and demeanor, and assigned her additional projects. Complainant served the Agency for a significant period of time, worked on Agency premises using Agency equipment, and the Agency set her hours. Complainant alleged discrimination when she was terminated and the staffing firm expressed a belief that it was required to comply with the Agency's request to terminate Complainant. Therefore, the Agency improperly dismissed Complainant's complaint for failure to state a claim. Serita B. v. Dep't of the Army, EEOC Appeal No. 0120150846 (Nov. 10, 2016); see also, Spencer T. v. Dep't of the Army, EEOC Appeal No. 0120162010 (Nov. 18, 2016) (the Agency had sufficient control over how Complainant performed his job to qualify as a joint employer. Complainant worked on Agency premises using Agency equipment, and the Agency identified the hours and days Complainant worked. Complainant asserted that an Agency manager stated that he would fire contract instructors immediately, and the staffing firm supervisor implied that the Agency manager had some control over contractors' employment); but see, Tabetha M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120150813 (Dec. 19, 2016) (while Complainant performed her work at Agency facilities using Agency equipment and her work was part of the regular business of the Agency, the record showed that she was hired and paid by a university and was granted an unpaid appointment to the Agency in order to use its laboratories. Most significantly, Complainant was directly supervised by a university employee and not Agency personnel, and the university supervisor provided Complainant with performance plans, assignments, and evaluations and was ultimately responsible for disciplining and terminating Complainant. Therefore, the Agency did not exercise sufficient control over Complainant's position to qualify as a joint employer); Eve E. v. Dep't of Def., EEOC Appeal No. 0120162250 (Nov. 22, 2016) (the Agency was not a joint employer for purposes of the EEO complaint process. Agency staff gave Complainant assignments, reviewed and gave feedback on her performance, and had input into her performance appraisal, and Complainant worked on Agency premises using Agency equipment. A fair reading of Complainant's complaint, however, showed that it mostly concerned her termination which was initiated by the staffing firm. There was no indication that anyone from the Agency was involved in that decision, and the Commission concluded that the Agency did not have de facto power to terminate Complainant as evidenced by the staffing firm continuing to employer her and offering her alternative positions).

Complainant Stated Viable Claim of Harassment. The Commission found that while each of Complainant's allegations alone may have appeared relatively minor, the incidents considered together stated a viable claim of discriminatory harassment. Complainant asserted in his formal complaint that several supervisors made harassing comments to him, and the EEO Counselor's report includes additional incidents which were spread over a long period of time. Complainant asserted that the supervisors were aware of his EEO activity and harassed him in an attempt to either terminate him or force him to retire. Terrell C. v. Dep't of the Navy, EEOC Appeal No. 0120162622 (Nov. 10, 2016); see also Ebony M. v. Dep't of the Navy, EEOC Appeal No. 0120162650 (Oct. 24, 2016) (the EEO Counselor's report showed that Complainant alleged many more harassing incidents beyond those identified in her formal complaint which, while alone appeared to concern relatively minor matters, when considered together asserted sufficiently pervasive harassment to state a cognizable claim).

Complainant Stated Viable Claim of Disability Discrimination. Complainant filed a complaint alleging unlawful employment discrimination when the Agency failed to provide an interpreter during a pre-disciplinary interview. The Commission found that the Agency improperly dismissed the complaint for failure to state a claim. The Agency asserted that there was no interview and Complainant was not subjected to discipline. Complainant was clearly alleging that he was denied accommodation and not challenging the interview. Further, it was clear from the record that some discussion occurred on the date in question. Therefore, Complainant stated a viable claim of disability discrimination. Britt S. v. U.S Postal Serv., EEOC Appeal No. 0120170110 (Nov. 4, 2016).

Complainant Stated Viable Claim of Retaliation. Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of reprisal by threatening disciplinary action, issuing a letter of reprimand, and giving unwarranted criticism during a review. The Agency found that Complainant did not previously engage in protected EEO activity and dismissed the complaint for failure to state a claim. The Commission found that the questions of whether Complainant previously engaged in protected EEO activity and whether management was aware of that activity go to the merits of the claim and not to whether it states a claim. Therefore, the Agency should not have dismissed the complaint for failure to state a claim. Dudley H. v. Dep't of Commerce, EEOC Appeal No. 0120162548 (Nov. 2, 2016).

Former Employee Stated a Viable Claim. The Commission found that the Agency improperly dismissed a complaint of retaliation from a former employee. Complainant asserted that Agency management retaliated against him when it provided a negative reference to a potential employer. The Commission noted that a former employee may state a viable claim which arose from his employment with the Agency even if the disputed action occurred after the termination of the employment relationship. In this case, Complainant was not challenging his non-selection for the position, but the actions and motivation of the Agency managers in providing the negative reference. Arnoldo P. v. Dep't of Def., EEOC Appeal No. 0120152924 (Oct. 25, 2016); see also, Kristofer D. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120170140 (Nov. 29, 2016) (the Agency dismissed the complaint for failure to state a claim, reasoning that the Complainant, who was participating in a work study program, was not an Agency employee. The Commission noted, however, that Complainant previously worked for the Agency for approximately five years and as a former employee stated a viable claim of retaliation. The Commission ordered the Agency to also investigate whether Complainant qualified as a common law employee of the Agency).

Complaint Concerning Processing of EEO Claim Properly Dismissed. The Commission found that the Agency properly dismissed Complainant's complaint alleging discrimination regarding the processing of a prior EEO matter. The Commission's regulations provide that such complaints do not state an independent claim, and the Agency properly informed Complainant that he could raise the matter with an EEOC AJ or on appeal. Drew N. v. Dep't of Homeland Sec., EEOC Appeal No. 0120170029 (Nov. 23, 2016).

Complaint Properly Dismissed Where Matter Not Related to Complainant's Employment. Complainant filed a formal complaint alleging that the Agency denied him medical services and falsified an entry into his medical record. The Commission found that the Agency properly dismissed the complaint because the claim did not relate to a term, condition, or privilege of Complainant's employment. Sol W. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120162859 (Nov. 23, 2016); request for reconsideration denied EEOC Request No. 0520170159 (April 5, 2017).

Complaint Regarding Office of Internal Affairs Investigation Properly Dismissed. The Commission found that the Agency properly dismissed the complaint for failure to state a claim. Complainant alleged discrimination and retaliation when the Agency's Office of Internal Affairs (OIA) sustained a charge against him of misuse of government funds. Complainant conceded that the Agency did not impose any disciplinary action on him as a result of the investigation, and the Commission has previously held that, in most circumstances, merely conducting an internal investigation into purported misconduct does not, without more, render a complainant aggrieved. Elvis G. v. Dep't of Justice, EEOC Appeal No. 0120162717 (Nov. 15, 2016); requests for reconsideration denied EEOC Request No. 0520170111 (March 29. 2017).

Complaint Alleging Breach of a Grievance Settlement Properly Dismissed. Complainant filed a formal EEO complaint after the Agency failed to provide back-pay as stipulated by a grievance settlement reached between the parties. The Commission affirmed the Agency's dismissal of the complaint for failure to state a claim, finding that Complainant was attempting to use the EEO process to lodge a collateral attack against the grievance process. Complainant cannot use the EEO process to challenge a grievance settlement and must instead raise his claims in that process. Porter H. v. U.S. Postal Serv., EEOC Appeal No. 0120162638 (Oct. 28, 2016); request for reconsideration denied EEOC Request No. 0520170122 (April 5,2017).

Summary Judgment

Summary Judgment Affirmed. The Commission found that the AJ properly issued a decision without a hearing finding no discrimination. Although Complainant asserted generally that facts were in dispute, he failed to cite any particular evidence to support his assertion. The Commission found that the record was adequately developed, and supported the AJ's finding that Complainant failed to establish by a preponderance of the evidence that the Agency's articulate reason for his unacceptable performance rating was a pretext for discrimination. Complainant's supervisor documented Complainant's performance as failing in several areas, and Complainant did not establish that his rating was based on discriminatory animus. Jerrod K. v. Dep't of the Treasury, EEOC Appeal No. 0120142417 (Dec. 2, 2016).

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. Complainant argued that there were genuine issues of material fact as to whether the Agency engaged in the interactive process, and whether the Agency "enforced" the accommodation. The Commission determined that the evidence in the record clearly established the Agency engaged in the interactive process and accommodated the Complainant. The record showed that Complainant requested and was granted leave without pay for the two days specified, and there was no evidence that Complainant requested advanced leave. Further, while Complainant requested a totally fragrance free environment, the Commission has previously determined that such a request can pose an undue hardship to an agency. The Agency properly initiated the interactive process and provided a number of alternate accommodations including moving Complainant's work station, changing office cleaning supplies to those recommended by Complainant, and banning the use of cleaning supplies without management's approval. The Agency also granted Complainant paid and unpaid leave as requested. Therefore, the Commission concluded that it was appropriate for the AJ issue a decision without a hearing and affirmed the AJ's finding of no discrimination. Letty K. v. Soc. Sec. Admin., EEOC Appeal No. 0120142135 (Nov. 30, 2016).

Summary Judgment Reversed. The Commission reversed the AJ's finding of no discrimination by summary judgment, stating that a genuine issue of material fact existed as to whether complainant, a volunteer at the agency, could be considered an employee of the Agency. In addition, Complainant established that genuine issues of material fact remained as to why he was not selected for a position. Specifically, the Commission noted questions in the record regarding whether a non-management employee improperly accessed Complainant's medical records showing his disability; whether the employee's actions constituted an unlawful disability-related inquiry and breach of confidentiality; and whether the employee and selecting official's improper knowledge of complainant's disability unlawfully influenced the selection process. Therefore, the matter was remanded for an administrative hearing. Lenny W. v. Dep't of Veternas Affairs, EEOC Appeal No.0120140073 (Dec. 30, 2016).

Summary Judgment Reversed. The AJ issued a decision without a hearing finding that the Agency took immediate and appropriate corrective action with regard to a supervisor's racial harassment of Complainant. On appeal, the Commission remanded the matter for a hearing, finding that the record was not sufficiently developed to determine the sufficiency of the Agency's response to Complainant's allegations. The events that prompted Complainant to complain were not in dispute, and, therefore, the record supported a finding of hostile work environment. The Commission noted that the AJ accepted the Agency's assertions regarding the corrective actions taken, notwithstanding disputed issues of fact, including whether the remarks continued for at least a week following Complainant's reporting the matter to management. Further, the record required development regarding the period of time between Complainant reporting the harassment to management and the start of management's investigation. Leif S. v. Dep't of Def., EEOC Appeal No. 0120140516 (Dec. 23, 2016).

Summary Judgment Reversed. Complainant filed a formal EEO complaint alleging, among other things, that she had been subjected to a discriminatorily hostile work environment on the basis of sex when her female supervisor made allegedly sexual comments to her, inquired about her sexual preferences, and sought her company outside of work. The AJ granted a motion for a decision without a hearing in favor of the Agency. On appeal, the Commission found that the AJ's issuance of a decision without a hearing was not appropriate because the record was not sufficiently developed, and there were genuine issues of material fact and witness credibility. The Commission initially found that the AJ improperly dismissed three claims, stating that the matters were part of the underlying harassment claim. The Commission stated that if Complainant's allegations regarding comments made by her supervisor were proven true, the comments would clearly be evidence that Complainant was subjected to unwelcome sexual comments and advances. Complainant also alleged that once she refused the supervisor's advances, the supervisor took actions which, if true, would be sufficient to establish a discriminatory hostile work environment. Therefore, the Commission found that there was a genuine issue of material fact regarding the supervisor's denial, as well as the need for credibility determinations. The Commission also found that the record regarding a negative job reference by the supervisor needed to be further developed. The Commission concluded that a hearing was required in this case, and remanded the complaint. The Commission affirmed the finding that the Agency did not disclose confidential medical information. Cathy M. v. Dep't of Agric., EEOC Appeal No. 0120140008 (Nov. 16, 2016).

Summary Judgment Reversed. The Commission found that a judgment for the Agency should not have been granted because there was no investigation of Complainant's claim of discrimination based on sexual orientation. Complainant raised that claim with the EEO Counselor who then dissuaded Complainant from filing a complaint on that basis. The Commission has previously held that it has jurisdiction over claims of sexual orientation discrimination, as those claims are claims of sex discrimination under Title VII. Further, an EEO Counselor should not dissuade a complainant from raising a claim even when the Counselor believes that the claim should not be brought in the EEO process. Therefore, the Commission remanded the complaint for investigation. Joelle L. v. U.S. Postal Serv., EEOC Appeal No. 0120150121 (Oct. 28, 2016).

Summary Judgment Reversed. Complainant alleged that he was discriminated against when the Agency failed to comply with his physical restriction, and did not assign him to an area with overtime opportunities. The AJ granted the Agency's request for a decision without a hearing, and found no discrimination. On appeal the Commission agreed with Complainant that there was a genuine issue of material fact concerning whether the Agency treated Complainant less favorably than it treated similarly-situated employees outside of his protected groups. Specifically, Complainant identified five comparators who he claimed had similar medical restrictions and were accommodated in their original positions. The record contained no information regarding these individuals, and the AJ accepted management's assertions that the comparators had different restrictions. The Commission stated that the AJ essentially rendered credibility determinations in favor of the Agency which were inappropriate at the summary judgment stage. The Commission also found genuine issues of material fact regarding whether the Agency's reason for the actions, specifically that Complainant's position could not be modified to accommodate him, was a pretext for discrimination. Therefore, the matter was remanded for a hearing. Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016).

Timeliness

Complainant Contacted Individuals Logically Connected with EEO Process. The Commission found that Complainant timely initiated her EEO claim when she sent correspondence to an EEO Investigator and EEO Specialist regarding the matters. Those individuals were logically connected with the EEO process and by indicating that she was being subjected to retaliation for a prior complaint, Complainant exhibited the intent to begin the EEO process. Further, several incidents comprising Complainant's ongoing hostile work environment claim occurred within the 45-day period preceding her EEO contact. Tiffanie S. v. Dep't of Agric., EEOC Appeal No. 0120162471 (Dec. 29, 2016).

EEO Counselor Contact Timely. The Commission reversed the Agency's dismissal of Complainant's complaint for untimely EEO contact, finding that Complainant contacted the EEO Counselor within 45 days of when he became aware of the alleged discrimination. While Complainant had previously been told "unofficially" by his managers that he would not be selected for a position, the Commission found that this did not constitute official notification of his non-selection. The circumstances of the case supported Complainant's position that he did not reasonably suspect the discrimination until May 2016 when he was officially informed that the Selectee's transfer into the position had been approved. Therefore, Complainant's contact with the EEO Counselor on May 17, 2016 was timely. Emerson P. v. Dep't of Justice, EEOC Appeal No. 0120162817 (Dec. 22, 2016).

Complaint Regarding Denial of Reasonable Accommodation Improperly Dismissed for Untimely EEO Counselor Contact. Complainant requested a reasonable accommodation for her disability to work twelve-hour work days instead of sixteen. The only reasonable accommodation provided was a different position with less pay and the notice did not mention that Complainant could contact an EEO Counselor regarding the accommodation. The Agency ultimately issued a final decision which, among other things, dismissed two allegations concerning the denial of accommodation for failure to timely contact an EEO Counselor. The Commission reversed the dismissal of those two allegations, stating 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. At the time Complainant contacted the Counselor she was alleging that the Agency remained unwilling to provide her with the accommodations she needed. The Commission did not address the other matters raised in the complaint because Complainant did not challenge the Agency's final decision as it pertained to those claims. Devona V. v. Dep't of Homeland Sec., EEOC Appeal No. 0120141665 (Dec. 15, 2016).

Complaint Properly Dismissed for Untimely EEO Counselor Contact. Complainant was charged with being absent without official leave and her request for sick leave was denied. Complainant's formal complaint was dismissed for failing to timely initiate EEO Counselor contact. Complainant asserted that she was awaiting payment from the grievance process and the results of a congressional inquiry. The Commission stated that the use of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. Therefore, the Commission affirmed the dismissal. Donna W. v. U.S. Postal Serv., EEOC Appeal No. 0120162755 (Dec. 15, 2016).

Complaint Properly Dismissed for Untimely EEO Counselor Contact. The Agency dismissed Complainant's complaint for failure to timely contact an EEO Counselor because Complainant did not initiate contact with an EEO Counselor until April 12, 2016, more than 45 days after the allegedly discriminatory action occurred on February 12, 2016. The record showed that information about the deadlines for initiated EEO Counselor contact was properly posted at Complainant's workplace, and, therefore, the Commission found that Complainant was presumed to have knowledge of the time limits. Fernando D. v. U.S. Postal Serv., EEOC Appeal No. 0120170034 (Nov. 23, 2016).

Commission Found Adequate Justification for Tolling Limitation Period for Filing Complaint. Complainant filed a formal complaint alleging disability discrimination on June 15, 2016, which was 29 days after she received notice of her right to file a formal complaint. The Agency dismissed the complaint as untimely. On appeal, Complainant stated that her father passed away one day before the expiration of the 15-day limitation period. Complainant explained the delay to the Agency and provided the Agency with a copy of her father's death certificate. The Commission noted that it was unclear whether Complainant, who was represented by an attorney on appeal, had been represented by an attorney at the time she received the notice of right to file a complaint. If Complainant was represented by an attorney at that time, the notice should have been sent to the attorney rather than Complainant. Therefore, given the circumstances in the case and the relatively brief delay, the Commission found adequate justification to excuse the late filing. Camie B. v. Dep't of the Army, EEOC Appeal No. 0120162689 (Nov. 23, 2016); request for reconsideration denied EEOC Request No. 0520170133 (March 6, 2017).

Commission Found Adequate Justification for Delay in Filing Formal Complaint. The Commission found that the Agency improperly dismissed Complaint's claim for failure to file the complaint it in a timely manner. Complainant provided a copy of the addressed envelope with a postmark stamp within the 15-day filing period. She also provided a printout containing the tracking dates for her package which showed that despite having the correct mailing address Complainant's package was returned to her with the message "no such number." Complainant the contacted an EEO ADR employee who suggested she submit a copy of the returned envelope with a copy of the formal complaint. The Commission found that Complainant acted diligently and in good faith to ensure that the complaint was properly filed. Therefore, given that Complainant originally sent her complaint to the correct address and the short amount of time, the Commission found sufficient justification to excuse the delay. Janya A. v. U.S Postal Serv., EEOC Appeal No. 0120162563 (Oct. 25, 2016).

Complaint Properly Dismissed for Untimely Filing of the Formal Complaint. On October 14, 2015, the EEO Counselor issued the Notice of Right to File a Complaint, indicating that a formal complaint be filed within 15 calendar days of receipt of the Notice. Complainant did not file a formal complaint until November 15, 2015, and the Agency dismissed the complaint as untimely. The Commission affirmed the dismissal, stating that while Complainant asserted that she was using leave to care for her mother and was not "in a frame of mind" to make important decisions, she did not provide any supporting evidence such as medical documentation that she was so incapacitated during the applicable 15-day period as to prevent her from timely filing her complaint. Nicki B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120161138 (Dec. 15, 2016) .

ARTICLE

(The following article is not intended to be an exhaustive or definitive discussion of a complex area of law, nor is it intended as legal advice. The article is generally based on EEOC documents available to the public at the Commission's website at http://www.eeoc.gov/, as well as on Commission case law and court decisions. Some EEOC decisions cited may have appeared in previous editions of the Digest.)

Age Discrimination: An Overview of the Law and Recent Commission Decisions

An Overview of the Law

The Age Discrimination in Employment Act (ADEA)1 protects individuals who are 40 years of age or older from employment discrimination based on their older age. The law forbids such discrimination regarding any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment.2 Harassment because of older age or retaliation for raising a claim under the ADEA are also prohibited.3 In addition, discrimination can occur when the victim and the person who inflicted the discrimination are both over 40.4

The courts and the Commission have long held that the rules for proving a Title VII claim set forth by the U.S. Supreme Court in McDonnel Douglas Corp.5 are also applicable to ADEA claims.6 In general, claims of disparate treatment based on age are examined under a three-part analysis. A complainant must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination.7 That is, the complainant must show that older age was a factor in the adverse employment action.8 The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions.9 If the agency is successful, the burden reverts back to the complainant to demonstrate by a preponderance of the evidence that the agency's reasons were a pretext for discrimination. At all times, the complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the agency acted because of a prohibited reason.10

 

In Gross v. FBL Financial Services, Inc.,11 the Supreme Court examined the ADEA's private sector causation language that the employment discrimination be "because of" age. The Court concluded that a plaintiff must demonstrate that the alleged discriminatory employment action would not have occurred "but for" the plaintiff's age in order to prevail.

However, another section of the ADEA with different causation language applies to the the federal sector.12 With regard to federal employment, the ADEA §633a states that all personnel actions "shall be made free from any discrimination based on age."13 In Ford v. Mabus,14 the DC Circuit held that Gross does not apply to federal employees' ADEA claims. The Circuit Court reasoned that since "any" means "any," the lower court erred when it required proof that age was a substantial or determinative factor "[b]ecause any amount of discrimination tainting a personnel action, even if not substantial, means that the action was not 'free from any discrimination based on age.'"15 The D.C. Circuit held that federal employees must only demonstrate that age was "a factor" in the employer's decision.16 The Commission applies the rationale articulated in Ford.17

Recent Commission Decisions

Complainant in Enriqueta T. v. Dep't of the Army,18 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.

In Donna W. v. Dep't of Transp.,19 the AJ held a hearing, and 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. Pursuant to a Congressional funding directive, the position was subsequently abolished and replaced with a two-year term position. Complainant was initially 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.

In Geraldine G. v. U.S. Postal Serv.,20 the Commission affirmed the AJ's finding of age discrimination when Complainant was not selected for a Team Leader position. The Commission initially noted that in Fuller v. Gates, Secretary of Defense,21 the District Court concluded that the "but for" causation articulated in Gross does not control in the federal sector. The Court reasoned that, based on its plain meaning, the phrase "free from any" must be construed as being broader than "because of." Therefore, the Commission indicated that the "mixed motive analysis" continues to apply to federal sector age discrimination claims.

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.

In Kristy D. v. Dep't of the Interior,22 the Commission affirmed the AJ's finding that the Agency discriminated against Complainant on the basis of age 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.

In Cletus W. v. Dep't of the Treasury,23 the AJ found, after a hearing, that the Agency discriminated against Complainant on the basis of age 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 knowledge or experience comparable to that of Complainant. 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 age was a motivating factor given the fact the Selecting Official was aware of Complainant's age, and no applicant in Complainant's age bracket was selected for the program.

In Bryan T. v. Dep't of Homeland Sec.,24 the Commission found that Complainant was subjected to harassment because of his age, and discriminated against when he was not selected for two positions. Specifically, a co-worker made derogatory comments about Complainant's age 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. 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.

In Alton F. v. Dep't of Def.,25 Complainant alleged discrimination based on age (59) when he was not selected for a Contract Price/Analyst positions. On appeal, the Commission noted that Complainant was qualified for one of the positions, and appeared on the best-qualified list. He was not selected in favor of a substantially younger selectee (41). The Commission found that, although the Selecting Official stated that he did not know Complainant's age when making his selection, the Selecting Official had reviewed Complainant's resume, from which it could be discerned that Complainant was above age 40. The Commission found that the Agency met its burden of production to articulate legitimate, nondiscriminatory reasons for its selection, that the selectee had a strong resume in contract/pricing, proposal, and subcontractor experience; had Bachelor of Arts and Masters degrees; and had strong reference checks. Nevertheless, the Commission found that Complainant's qualifications and experience as related to the position at issue were plainly superior to those of the selectee. The Commission noted that Complainant had more experience than the selectee as a Contract Price/Cost Analyst for the Agency. Complainant also possessed an MBA, while the selectee had only a BA in business administration. Complainant, unlike the selectee, had received many awards from the Agency, and Complainant had significantly more overall experience relevant to the position at issue. Therefore, the Commission found that the Agency's assertions about Complainant's qualifications and non-selection were "suspiciously thin" and unworthy of belief. The Commission concluded that Complainant proved that the Agency discriminated against him on the basis of age when it did not select him for a Contract Price/Cost Analyst position.


Footnotes

1 29 U.S.C. § 621, et seq.

2 See Facts About Age Discrimination available on the Commission's website at https://www.eeoc.gov/eeoc/publications/age.cfm

3 Id.

4 Id.

5 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973)

6 Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); Cova v. Coca-Cola Bottling Co., 574 F.2d 958 (8th Cir. 1978); Geraldine G. v. U.S. Postal Serv., EEOC Appeal No. 0720140039 (June 3, 2016) (applying the analytical framework described in McDonnell Douglas to an ADEA disparate treatment claim).

7 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973); Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).

8 Id.

9 Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

10 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).

11 557 U.S. 167 (2009).

12 See 29 U.S.C. § 633a(a) (all personnel actions in federal employment "shall be made free from any discrimination based on age").

13 Id.

14 629 F.3d 198 (D.C. Cir. 2010) .

15 Id. at 206.

16 Id.

17 See, e.g., Geraldine G. v. U.S. Postal Serv., EEOC Appeal No. 0720140039 (June 3, 2016).

18 EEOC Appeal No. 0120143049 (Sept. 2, 2016).

19 EEOC Appeal No. 0720160002 (Aug. 17, 2016), request for reconsideration denied EEOC Request No. 0520160522 (Dec. 13, 2016).

20 EEOC Appeal No. 0720140039 (June 3, 2016).

21 See Fuller v. Gates, Secretary of Defense, 2010 WL 774965 (E.D. Tx. March 1, 2010).

22 EEOC Appeal No. 0720160003 (Aug. 10, 2016).

23 EEOC Appeal No. 0720160008 (Aug. 3, 2016).

24 EEOC Appeal No. 0120122110 (March 18, 2016).

25 EEOC Appeal No. 0120140428 (April 3, 2014).