EEOC Seal

U.S. Equal Employment Opportunity Commission



 Digest Seal The DIGEST Of Equal Employment Opportunity Law


Fiscal Year 2016, Volume 3

Office of Federal Operations

June 2016


Inside

Selected EEOC Decisions on:

Article:
Compensatory Damages:
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, 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

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

Agency's Final Decision Vacated Because Complainant Timely Requested a Hearing. The Agency issued a final decision finding no discrimination after determining that Complainant failed to timely request a hearing. On appeal, the Commission vacated the Agency's decision, finding that Complainant's attorney did timely request a hearing. Complainant designated the attorney as her representative and included the attorney's mailing address in her formal complaint. The Agency, however, failed to provide the attorney with the investigative report or notice of Complainant's right to request a hearing. The attorney filed a request for a hearing in a timely manner after Complainant provided him with the notice. Thus, the Commission remanded the matter for a hearing. Lois G. v. U.S. Postal Serv., EEOC Appeal No. 0120142916 (January 6, 2016).

Attorney's Fees

Commission Affirmed AJ's Award of Attorney's Fees. Following a hearing, the AJ dismissed Complainant's claim of harassment, but found that the Agency retaliated against Complainant when it did not select her for several positions. The AJ instructed Complainant to submit a petition for attorney's fees and ultimately awarded her $189,785.00 in fees and $4,792.22 in costs. On appeal, the Commission affirmed the award. The Commission found that the AJ did not abuse her discretion when determining the amount of the award, stating that the dismissed retaliatory hostile work environment claim was not truly fractionable from the non-selection claim because both arose from a common set of facts. The Commission agreed with the AJ that it was impossible to apportion the percentage of time spent on each claim, and the Agency did not show that the hours billed were excessive, redundant or otherwise unnecessary. The Commission also found that the AJ did not err or abuse her discretion when awarding an hourly rate of $450 to one of the attorneys, or in determining that the costs awarded were compensable and reasonable. Bok T. v. Soc. Sec. Admin., EEOC Appeal No. 0720150014 (March 31, 2016).

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

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

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

Compensatory Damages

(Recent decisions addressing compensatory damages are discussed in the article below. See, also, "Findings on the Merits," and "Remedies" this issue.)

Dismissals

(See also by category, this issue.)

Agency Improperly Dismissed Complaint. Complainant filed a formal EEO complaint and listed 12 incidents in support of her claim including intimidation and bullying by management officials, a reassignment, the denial of a promotion, and other incidents of remarks and slurs by management. The Agency dismissed the majority of the incidents in the complaint for raising the same claim that was raised in a prior complaint, one incident for being raised in a grievance, and one incident for failure to state a claim. On appeal, the Commission affirmed the Agency's dismissal of three matters which were raised in a prior complaint. The remaining incidents, however, occurred or continued to occur after the prior complaint was filed and were improperly dismissed. Further, the Commission stated that while the union filed a grievance regarding a suspension Complainant received, there was no evidence that Complainant was involved in filing the grievance. Although Complainant may have participated in the union's grievance, her participation was not sufficient to qualify as an election to proceed in that forum as defined by the EEOC's regulations. Therefore, the Agency did not establish that Complainant made a valid election to pursue the grievance process. Finally, the Commission stated that the formal complaint and EEO Counselor's report reflected a series of incidents that included Complainant being harassed by Agency management. By alleging a pattern of harassment, Complainant stated a cognizable claim. Debbie V. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160173 (February 9, 2016).

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

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

Complaint Improperly Dismissed in Part. Complainant alleged discrimination when he was issued a Notice of Termination with an immediate effective date, on November 7, 2014, and when he subsequently received a Letter of Indebtedness. The Commission affirmed the dismissal of the second claim, finding that the proper forum for Complainant to challenge the propriety of the collection process and the validity of his debt was through the administrative process of the Debt Collection Act. The Commission, however, reversed the dismissal of the first claim, finding that the Agency failed to meet its burden of showing that Complainant had actual or constructive knowledge of the 45-day limitation period for contacting an EEO Counselor. Salvatore B. v. U.S. Postal Serv., EEOC Appeal No. 0120152826 (February 5, 2016).

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

Complaint Improperly Dismissed for Failure to State a Claim and Untimely EEO Contact. The Commission found that the Agency improperly dismissed Complainant's claim of discriminatory and retaliatory harassment for failure to state a claim and failure to timely initiate EEO counseling. Complainant alleged that she was subjected to a hostile work environment, including having her rating downgraded, being kicked by a co-worker, and being verbally harassed by a supervisor. The Commission found that a fair reading of the complaint showed that Complainant alleged that she was subjected to ongoing harassment which was sufficient to state a claim within the EEOC's regulations. Further, the harm was ongoing because the Agency did not finalize her evaluation until after Complainant filed her formal complaint, and Complainant's EEO Counselor contact was timely because some of the alleged incidents of harassment occurred within the applicable limitation period. Milissa H. v. Dep't of the Army, EEOC Appeal No. 0120151984 (January 29, 2016); see also Florentino S. v. U.S. Postal Serv., EEOC Appeal No. 0120160356 (March 17, 2016) (the Agency improperly defined Complainant's claim as a single allegation, when a fair reading of the complaint, EEO counseling report and pre-complaint documents revealed that Complainant was raising a viable claim of ongoing harassment that included incidents which occurred within 45 days of the initial EEO Counselor contact); Ardelia I. v. Dep't of the Army, EEOC Appeal No. 0120160491 (February 10, 2016) (the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment by dismissing four claims for failure to state a claim, and one claim for failure to timely contact an EEO Counselor. A fair reading of the formal complaint shows that Complainant was alleging that she was subjected to a series of related incidents of harassment, some of which occurred within the 45-day limitation period for initiating EEO contact, which together stated an actionable claim).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Under Title VII

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

Under Multiple Bases

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

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

Retaliation

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

Remedies

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

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

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

Sanctions

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

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

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

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

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

Settlement Agreements

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

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

Commission Found No Breach of Settlement. The parties entered into a settlement agreement in which the Agency agreed to reassign Complainant to work under the Chief Scientist in the Space Life Sciences Academy. On appeal, the Commission found that the Agency did not breach the settlement agreement. Complainant acknowledged that she was reassigned to the specified position. While Complainant asserted that the reassignment was for an indefinite period of time, the Commission has held that it would be improper to interpret the reasonable intention of the parties as binding the Agency to the terms of the agreement forever. The Commission found that Complainant's reassignment for approximately six years satisfied the terms of the agreement. Carmina E. v. Nat'l Aeronautics & Space Admin., EEOC Appeal No. 0120141495 (February 12, 2016) .

Breach of Settlement Cured. The parties entered into a settlement agreement which provided for the Agency to compensate Complainant for lost wages within two weeks of receiving a medical statement. The Commission found that, to the extent the Agency breached the agreement by not providing Complainant with his payment within two weeks, the Agency cured the breach. The record showed that the Agency explained to Complainant that the delay in processing his payment was due to the server being down for a few days and a holiday. Thus, the Agency cured the breach and substantially complied with the agreement. Herman F. v. U.S. Postal Serv., EEOC Appeal No. 0120152304 (January 28, 2016).

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

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

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

Stating a Claim

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

Complainant Stated Viable Claim of Retaliation. Complainant alleged retaliation discrimination when the Agency sent her home following an altercation in the workplace. On appeal, the Commission rejected the Agency's contention that Complainant suffered no harm because she was paid for the full day at issue, finding that sending Complainant home was reasonably likely to deter Complainant or others from engaging in protected activity. Lashawna C. v. U.S. Postal Serv., EEOC Appeal No. 0120160876 (March 23, 2016).

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

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

Complainant Alleged Viable Retaliation Claim. The Agency dismissed Complainant's complaint for failure to state a claim, finding that since the claim addressed a manager's interference in Complainant's role as a union representative it constituted a collateral attack on the grievance process. The Commission determined that a fair reading of the complaint showed that Complainant was alleging that she was personally being subjected to ongoing harassment by the manager in retaliation for her involvement in EEO complaints filed against him. Complainant was not, as the Agency claimed, challenging another forum such as the grievance process or claiming a violation of the collective bargaining agreement. Therefore, the Agency erred in dismissing the complaint. Greta F. v. U.S. Postal Serv., EEOC Appeal No. 0120160387 (February 19, 2016).

Reprisal Claim Stated. Complainant, a Maintenance Supervisor, filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity. Complainant claimed that a manager ordered him to take on a menial task, specifically cleaning an elevator on his hands and knees. The Commission concluded that Complainant claimed facts which could conceivably constitute discriminatory reprisal. Clinton R. v. U.S. Postal Serv., EEOC Appeal No. 0120160120 (February 18, 2016).

Complainant Alleged Cognizable Claim of Harassment. The Commission found that Complainant alleged a pattern of discriminatory harassment which the Agency improperly defined as a single incident. Complainant addressed a variety of incidents preceding that incident, and stated that she was addressed in an unprofessional manner by her manager, denied opportunities to do her job, publicly humiliated, and denied opportunities for upward mobility. Therefore, Complainant stated one cognizable claim of harassment. Geraldine G. v. U.S. Postal Serv., EEOC Appeal No. 0120160429 (February 12, 2016); see also Jone A. v. Dep't of the Navy, EEOC Appeal No. 0120152632 (January 6, 2016) (Complainant addressed more matters than the claim identified by the Agency, and raised a viable claim of discriminatory harassment).

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

Agency Found to Be Joint Employer. The Commission found that the Agency improperly dismissed Complainant's claim of discrimination for failure to state a claim, stating that the Agency exercised sufficient control over Complainant's position to qualify as her joint employer. While Complainant's work as an Information Technology Specialist required a high level of expertise, and the contractor signed her timesheets, and paid her salary, the Agency had substantial control over the decision to hire Complainant, determined the terms of her employment, required her to be on the Agency's worksite four days per week and use Agency equipment. The Agency also authorized Complainant's use of a badge and security clearance, and approved her work assignments. Further, the Commission stated that Agency managers were actively involved in Complainant's termination, and addressed her request for reasonable accommodation. The Commission rejected the Agency's assertion that Complainant had previously filed a charge of discrimination, noting that the charge was solely against the contractor and was a separate claim. Nicki B. v. Dep't of Educ., EEOC Appeal No. 0120151697 (February 9, 2016); see also Breanna S. v. Dep't of Def., EEOC Appeal No. 0120142256 (March 23, 2016) (the Agency exercised sufficient control over Complainant's position to qualify as her joint employer for the purpose of the Commission's regulations. Complainant was on call 24 hours a day for emergencies; worked on Agency premises; and used Agency equipment. Complainant also stated that she performed her work under the close supervision of an Agency supervisor; was responsible for the operations and security of the visitor's entrance; and supervised personnel who processed visitors entering or exiting the facility, including ensuring the validity of security clearances presented by them and ensuring that visitors without security clearances were properly escorted); Clement D. v. Dep't of the Interior, EEOC Appeal No. 0120142894 (March 8, 2016) (the record reflected that the Agency entered into a personal service contract directly with Complainant under which the Agency set the terms, including Complainant's duties and responsibilities. The Agency monitored Complainant's performance and ensured that all interpreting specifications and technical portions of the work were met, and the balance of factors considered established that Complainant was a de facto employee of the Agency); Helen G. v. Dep't of the Army, EEOC Appeal No. 0120150262 (February 11, 2016) (while the Agency did not pay Complainant's salary, benefits, taxes or social security or provide leave, Agency officials had significant control over Complainant's work, she worked on Agency premises with Agency equipment, she regularly attended and actively participated in Agency staff meetings, and the record showed that the Agency had substantial input into the decision to terminate Complainant. Therefore, the Agency exercised sufficient control over Complainant's position to qualify as her joint employer).

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

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

Complaint of Retaliation Improperly Dismissed. The Agency dismissed Complainant's claim that he was harassed, in part, in retaliation for prior EEO activity. On appeal, the Commission found that the complaint stated a viable claim of retaliation. Complainant stated that he was instructed to avoid contact with a co-worker against whom he had previously filed an EEO complaint, and that the Agency initiated an investigation of him. In addition, Complainant addressed a variety of matters during pre-complaint counseling and in his formal complaint beyond the incident identified by the Agency, including the denial of overtime and being threatened by other employees. Thus, Complainant alleged a pattern of harassment. Harold M. v. U.S. Postal Serv., EEOC Appeal No. 0120160071 (January 22, 2016).

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

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

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

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

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

Issues Concerning Debt Collection Act Do Not State a Claim. The Commission affirmed the Agency's dismissal of Complainant's claim that she received two letters regarding a debt allegedly owed under the Debt Collection Act. The Commission has previously held that an agency's actions under the Debt Collection Act are not within the scope of the EEO complaint process, and not within the Commission's jurisdiction. The proper forum for Complainant to challenge the debt collection process is through the administrative process of the Debt Collection Act itself. Hulda W. v. U.S. Postal Serv., EEOC Appeal No. 0120152930 (January 21, 2016); see also Alisia M. v. U.S. Postal Serv., EEOC Appeal No. 0120160715 (March 22, 2016) (the proper forum for Complainant to challenge the garnishment of her Social Security benefits was with the Department of the Treasury and the Social Security Administration as the Commission has no jurisdiction over a matter that appeared to concern the Debt Collection Act); Janee S. v. Dep't of Agric., EEOC Appeal No. 0120151991 (January 28, 2016) (Complainant's claim that she was notified of a federal debt resulting from a negative sick leave balance did not state a viable claim within the EEO process. Monetary disputes involving a federal agency must be resolved through the administrative process of the Debt Collection Act and are not within the scope of the EEO complaint process or the Commission's jurisdiction).

Complaint Fails to State a Claim of Retaliation. The Agency dismissed Complainant's complaint of retaliation, stating that Complainant's claim that her request for a 30-minute change to her start time on one day was not sufficient to state a claim. The Commission affirmed the Agency's dismissal on appeal. Complainant did not present any other allegations of retaliatory animus, and the single instance alleged was not reasonably likely to deter her or others from engaging in protected EEO activity. Latoya D. v. U.S. Postal Serv., EEOC Appeal No. 0120152796 (January 21, 2016).

Complaint Failed to Allege Covered Basis Within Commission's Jurisdiction. The Commission found that Complainant's allegation that he was discriminated against for his "failure to participate in an illegal activity" was properly dismissed for failure to state a claim. There was no indication that the alleged retaliation was for engaging in activity protected by one of the anti-discrimination statutes over which the Commission has responsibility. By failing to cite a covered basis for his discrimination, Complainant failed to state a claim within the Commission's jurisdiction. Ike D. v. Dep't of Def., EEOC Appeal No. 0120160035 (January 14, 2016).

Timeliness

Agency Improperly Framed Harassment Claim and Dismissed for Untimely EEO Counselor Contact. The Commission found that the Agency improperly analyzed Complainant's allegations as discrete acts, when a fair reading of the formal complaint as well as the EEO counseling report and pre-complaint information revealed that Complainant was raising a claim of ongoing harassment. Further, Complainant noted that she met with a management official in February 2015 to discuss her performance evaluation which was within 45 days of her contact with the EEO Counselor. Therefore, the Agency's dismissal of the complaint was not proper. Elda S. v. Dep't of the Army, EEOC Appeal No. 0120152217 (March 30, 2016).

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

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

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

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

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

Complaint Properly Dismissed for Untimely EEO Contact. Complainant alleged that the Agency discriminated against him with regard to personnel actions that occurred on May 9, 2014 and June 4, 2014. Complainant, however, did not initiate EEO contact until August 5, 2014, which was beyond the applicable 45-day time limitation. The Commission found that it was undisputed that Complainant had a reasonable suspicion of discrimination on the date of the incidents. Further, the record showed that Complainant participated in EEO training that referenced the 45-day limitation period, and filed two prior EEO complaints. Finally, the Agency noted that information regarding the time limitation was posted in common employee areas where Complainant had worked over 12 years. Thus, the Agency properly dismissed the complaint. Kyle S. v. Dep't of the Navy, EEOC Appeal No. 0120151549 (February 4, 2016).

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

Agency Properly Dismissed Complaint for Failure to Timely Contact EEO Counselor. The Commission affirmed the Agency's dismissal of Complainant's complaint for failure to timely contact an EEO Counselor, rejecting Complainant's argument that she was not aware of her right to file an EEO complaint. Complainant contacted an EEO Counselor over one year after her retirement. The Commission noted that Complainant worked for the Agency for many years and the record contained a sworn statement that an EEO poster was posted on a bulletin board at the facility where Complainant was employed. The poster had the time limits for contacting an EEO counselor and initiating the EEO process. Thus, Complainant failed to rebut the presumption of constructive notice of the EEO time limits. Marguerite W. v. U.S. Postal Serv., EEOC Appeal No. 0120152970 (January 7, 2016).

Complaint Timely Filed. The Commission reversed the Agency's determination that Complainant filed his EEO complaint beyond the applicable 15-day time period. The Commission found that the Agency failed to provide Complainant's attorney with the appropriate notice of the right to file a complaint. The Commission rejected the Agency's argument that Complainant did not provide the Agency with the attorney's contact information, stating that Complainant twice informed the EEO Counselor that he had retained an attorney before the Counselor sent the Notice of Right to File, and there was no evidence that the Counselor asked for the attorney's address. Wade K. v. Dep't of the Air Force, EEOC Appeal No. 0120160376 (February 3, 2016).

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

Complaint Improperly Dismissed as Untimely. The Commission found that the Agency improperly dismissed Complainant's complaint for being untimely filed. The record showed that the notice of right to file a formal complaint was sent to Complainant by certified mail. While the Agency asserted that Complainant also received the notice by email, the Agency provided no proof of when Complainant actually received the notice. Thus, the Agency failed to meet its burden of providing evidence or proof to support its dismissal. Wanita Z. v. Dep't of the Navy, EEOC Appeal No. 0120150931 (January 7, 2016).

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

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.)

Compensatory Damages: An Overview of the Law and Recent Commission Decisions

Types of Damages

Compensatory damages are awarded to compensate complainants for harm or suffering due to discriminatory acts or conduct. Federal employees may seek compensatory damages for discrimination, but cannot be awarded punitive damages. Compensatory damages consist of either pecuniary or non-pecuniary damages.

Pecuniary damages are awarded to compensate a complainant for out-of-pocket expenses resulting from an employer's unlawful conduct. Examples of pecuniary losses include moving expenses, employment search expenses, medical expenses, psychiatric expenses and physical therapy expenses, and other quantifiable out-of-pocket expenses. Pecuniary losses may include past expenses, which are out-of-pocket expenses that occurred prior to the date of the resolution of the damage claim, or future expenses, which are out-of-pocket expenses likely to occur in the future after resolution of the complaint. Receipts, records, bills, cancelled checks and confirmation by other individuals can be used to ascertain the amount to be awarded for past pecuniary losses. Without documentation, however, damages for past pecuniary losses typically will not be awarded to the complainant.1

Non-pecuniary damages are available for emotional harm, including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of health, and other such intangible losses that are incurred as a result of the discriminatory conduct. A finding of discrimination does not carry a presumption of emotional harm. There must be proof of the existence, nature and severity of the emotional harm. Emotional harm may include such things as sleeplessness, anxiety, stress, depression, marital strain, humiliation, and emotional distress. The harm may also manifest itself physically, for example the development of ulcers, hair loss and headaches.2 Non-pecuniary damages may also be awarded if an individual experiences damage to professional reputation or damage to interpersonal relationships.

Proof of Damages

The necessary elements of proof for a claim of compensatory damages are proof of actual harm or injury, and proof that the harm or injury was caused by the unlawful discrimination.3 The complainant must prove that there has been a compensable harm or loss and that the cause of such harm or loss is attributable to the unlawful conduct of the agency. The complainant bears the burden of proof and must sufficiently establish a causal connection between the respondent's illegal conduct and the complainant's injury.4

While pecuniary damages can be proven with evidence such as bills and receipts, evidence required to prove non-pecuniary damages (i.e. emotional harm) can be less tangible in nature. In Carle v. Dept. of Navy,5 the Commission described the types of evidence that would support a claim of emotional harm, including a statement from the complainant describing her emotional distress, and statements from witnesses. To properly explain the emotional distress, the Commission reasoned that the statements should include specific information regarding the physical or behavioral manifestations of the distress, duration of the stress and examples of the impact of the distress while at work and while not at work. The Commission also concluded that evidence linking the distress to the unlawful discrimination was necessary. The Commission has found, however, that evidence from a health care provider is a not a mandatory prerequisite for recovery of compensatory damages for emotional distress.6

Complainants with a pre-existing condition are not foreclosed from pursuing a claim for emotional harm. If the complainant had a pre-existing emotional condition and his or her mental health deteriorated as a result of the discriminatory conduct, the additional harm may be attributed to the employer.7 On the other hand, where the complainant's emotional harm is due in part to personal difficulties that were not caused or exacerbated by the discriminatory conduct, the employer is liable only for the harm caused by the discrimination.8

When determining the amount of a compensatory damage awards it is necessary to limit the amount to the sums necessary to compensate the individual for actual harm. An award of compensatory damages cannot be punitive in nature. Though different methods of computing damage awards may be appropriate in certain cases, generally, the method for computing non-pecuniary damages should be based on consideration of the severity of harm, length of time and nature of the harm.9 When deciding a case that involves compensatory damages, the Commission looks to other cases that involve similar harm. The Commission also strives to ensure that awards are not monstrously excessive standing alone, or the result of passion or prejudice.10

Recent Commission Decisions

Awards Exceeding $100,000

In Akiko L. v. U.S. Postal Serv.,11 the Commission affirmed an AJ's award of $210,000 in compensatory damages for discriminatory harassment and reprisal. The Commission found substantial evidence regarding the mental and physical harm that Complainant endured as a result of the harassment. The record included testimony from Complainant, her husband and her psychologist showing that Complainant became deeply troubled, anxious, depressed, lonely, suspicious, mentally unfocused, and highly emotional. She experienced weight loss, hair loss, difficulty sleeping, suicidal thoughts and chest pain. This harm continued for at least two years. Complainant, who had anticipated being an Olympic runner, became dispassionate about competing. The Commission noted that management's behavior and actions were particularly egregious. It was well known by management that Complainant's Supervisor was harassing and assaulting her, yet no action was taken for some time, and management reported Complainant's allegations of harassment to other employees.

In Valencia L. v. Dep't of Homeland Sec.,12 the Commission affirmed an AJ's award of $200,000 in damages for sex discrimination. Witnesses described the deterioration of Complainant's physical appearance and the decline of her day-to-day happiness into a state of anxiety and desperation. Further, Complainant stated that she felt humiliated, angry, helpless, and hopeless, and her marriage ended. Complainant also experienced sleeplessness, weight loss, and damage to her skin and hair. The Commission also considered evidence regarding the emotional impact of Complainant's economic hardship caused by the discrimination. Complainant was the chief income earning parent for her children, and she faced difficulties locating work after she was terminated.

In Ervin B v. U.S. Postal Serv.,13 the Commission affirmed the AJ's award of $192,500 in non-pecuniary damages for severe retaliatory harassment. The Commission found that the AJ did not abuse her discretion in admitting certain depositions when considering the issue of damages. The Commission acknowledged that the discrimination was only one factor causing Complainant's diabetes to be uncontrolled, and the evidence did not show that Complainant's later separation was caused by the discrimination. The Commission determined, however, that Complainant's pain and suffering and damage to his reputation supported the award of $192,500. Among other things, the harassment resulted in Complainant being arrested, invasively stripped searched and put in a holding cell. Complainant then had repeated hysterical crying spells and feared losing everything while waiting for his criminal hearing and the resulting finding that he was not guilty. Further, he was humiliated, his sense of himself was damaged, and he sustained extreme anxiety, despondency, sleeplessness, nightmares, depression, PTSD, and a lessening of control of his diabetes as a result of the discrimination.

In Brendon L. v. U.S. Postal Serv.,14 The Commission awarded Complainant $150,000 in damages after finding that the Agency subjected Complainant to a discriminatory hostile work environment and denied him reasonable accommodation. Complainant stated that the Agency's discriminatory actions led him to skip family dinners and become less communicative, and that he had difficulty sleeping, and became isolated at work and home. He had panic attacks which created problems with his blood pressure. The Commission determined that Complainant experienced embarrassment, humiliation, panic attacks, anxiety, and sleeping problems, and withdrew from his family and co-workers. The Commission previously found that Complainant was subjected to harassment nearly every day for almost two and one-half years, and the harassment was perpetrated not only by co-workers but also by management officials. Complainant's wife provided an affidavit supporting his claim, stating that Complainant described the situation as "torture."

In Tod P. v. Dep't of the Navy,15 the Commission affirmed an award of $145,000 in damages following an AJ's finding of disability discrimination and reprisal. The Commission found substantial evidence in the record to support the AJ's award on non-pecuniary damages, including testimony from Complainant and his treating psychiatrist. Complainant credibly testified that after the Agency denied him reasonable accommodation, his mental state and depression worsened, he felt isolated, and experienced increased stress and mental anguish. Complainant's psychiatrist testified that these conditions affected Complainant's chemical balance, and, as a result, Complainant went out on stress leave and then retired. At the time of the hearing, Complainant was still unable to perform certain activities that he performed before the harassment commenced at his workplace. The Commission concurred with the AJ that the Agency did not make a good faith effort to accommodate Complainant.

In Nicolle D. v. U.S. Postal Serv.,16 the Commission affirmed the AJ's award of $120,000 in damages for sexual harassment. Complainant credibly testified that over a three year period her previously alleviated depression returned, and she suffered from paranoia, anxiety, and insomnia. Complainant also had difficulty with marital relations, and sought medical help and counseling from the Agency's Employee Assistance Program.

In Kendrick B. v. U.S. Postal Serv.,17 the Commission reduced the AJ's award of damages for national origin discrimination and reprisal to $120,000. The Commission concurred with the AJ's finding that Complainant provided substantial evidence that the Agency's discriminatory conduct caused him physical and emotional harm. Complainant testified that he suffered anxiety attacks, difficulty sleeping, fatigue, loss of appetite and weight loss, and withdrew from personal interactions. Two former employees stated that Complainant's demeanor changed after the reassignment. The Commission, however, stated that while the AJ awarded Complainant differing amounts for various periods of time, the AJ did not explain in any detail how he arrived at the amounts awarded. He did not explain the reasoning for dividing the compensable period into separate timeframes, nor did he cite to specific evidence that he felt warranted the awards. The record showed that Complainant filed two additional EEO complaints during two of the periods and no discrimination was found in those matters. In addition, Complainant attributed the emotional distress he experienced during a period of time to the stress of his EEO hearing for which he could not recover damages. The Commission also determined that the AJ's finding that Complainant would likely have been transferred to other management positions was speculative and not supported by the record. The Commission noted that Complainant asserted that he was entitled to an award of $120,000, and supported his claim for that specific amount through the evidence and testimony introduced at the hearing. However, there was no evidence in the record to explain the AJ increasing Complainant's requested damages amount.

Mid-range Awards from $50,000 to $100,000

After previously finding that the Agency discriminated against Complainant when it failed to reasonably accommodate his disability, the Commission awarded Complainant $100,000 in compensatory damages in Samuel R. v. Dep't of Veterans Affairs. 18 Complainant stated that the failure to accommodate aggravated her asthma and depression. The Agency failed to search for a suitable reassignment for Complainant and kept him working for five months in a position that exposed him to toxic irritants resulting in both physical and psychological harm. Complainant felt humiliated, depressed, and anxious, and experienced sleep disturbances and severe mood changes. His wife corroborated these symptoms. The Commission agreed with the Agency that Complainant did not establish entitlement to pecuniary damages for medical expenses since the documentation presented did not establish a sufficient link between the services and the discrimination.

In Sana I. v. Soc. Sec. Admin.,19 the Commission increased the Agency's award of damages for disability discrimination from $50,000 to $100,000. The Commission found that the Agency's award was not sufficient in light of the length of time that the unlawful failure to accommodate continued and the extent of the harm caused. Complainant was denied reasonable accommodation for more than four years, and stated that the denial exacerbated her depression causing her to start taking antidepressants. The discrimination also resulted in anxiety, increased hair loss, sleep disturbances, and headaches. Complainant indicated that the symptoms required more frequent visits to her physician and therapist, and provided a letter from her physician to corroborate her assertions. The physician noted that Complainant had to be placed on additional medication due to the worsening of her medical conditions. Complainant did experience additional stress from other events which impacted her medical condition. The Commission stated, however, that the additional stress occurred only in the last six months of the period at issue, and both Complainant and her physician cited the Agency's failure to provide accommodation as the reason for the deterioration of Complainant's medical condition. The Commission agreed with the Agency that Complainant failed to provide documentation to establish a nexus between her purported pecuniary losses and the discrimination.

In Joannie V. v. Dep't of Homeland Sec.,20 the Commission affirmed the AJ's award of $100,000 in damages for sexual harassment. The record included testimony from Complainant, two co-workers, and Complainant's doctor regarding the effects of the harassment. Complainant stated that the harassment adversely affected her health, her sleep, and her attitude, and caused her anxiety, stress, chest pain, shortness of breath, and heart palpitations. Although Complainant had previously been diagnosed with depression and heart disease, the record showed that the discrimination significantly worsened Complainant's symptoms. Complainant's doctor testified that he discussed stressors at work with Complainant and prescribed medication for anxiety and high blood pressure, and Complainant's co-workers confirmed the description of her symptoms.

In Adah T. v. Dep't of the Interior,21 the Commission increased the Agency's award of damages for racial harassment from $25,000 to $75,000. The record included statements from individuals who knew Complainant supporting her claim that she suffered depression, anxiety, sleep issues and pain as a result of the harassment. In addition, Complainant was treated by a psychologist and psychiatrist for depression and anxiety due to workplace harassment for a period of five years.

In Mana H. v. Dep't of Justice,22 the Commission affirmed the AJ's award of $75,000 in damages for sex-based harassment. Complainant presented evidence that she had panic attacks, anxiety, and difficulty sleeping, and immediately sought medical help after incidents with her supervisor. She was treated for anxiety, depression and periods of disassociation. Complainant's doctor indicated that her symptoms were similar to post-traumatic stress syndrome, and treated her with psychotherapy and medication. The Commission noted that while Complainant's treating physician opined that the sexual harassment was the primary factor for Complainant's medical condition, the record showed that other events also caused the harm she experienced.

The Commission increased the Agency's award of damages for retaliation from $40,000 to $65,000 in Lula N. v. Dep't of Veterans Affairs.23 While Complainant acknowledged that she experienced health problems prior to the discrimination, she provided documentation indicating that her health worsened after the cancellation of her reassignment. Complainant experienced anxiousness, depression, crying, headaches, insomnia, and high blood pressure. Complainant sought medical treatment and took medication. Complainant's psychiatrist noted that stressors at work negatively affected her blood pressure, and another physician treated Complainant on 25 occasions for job-related stress. Complainant's sister stated that Complainant suffered from severe depression due to the discrimination, and she stopped attending family functions and caring for her home. The Commission noted that a portion of Complainant's emotional harm related to her removal and other claims for which no discrimination was found.

In Nia G. v. Dep't of Justice,24 the Commission affirmed the AJ's award of $50,000 in non-pecuniary damages for disability discrimination and retaliation, including the failure to provide reasonable accommodation. Complainant testified that she suffered extreme stress, shock and humiliation, much of which she attributed to the co-worker's behavior, and the stress manifested itself in frequent absences from work, headaches, rashes, weight fluctuations, depression, anxiety, insomnia, nightmares, and suicidal ideations. The AJ determined that although Complainant clearly suffered severe and numerous mental and physical effects during the relevant time period, as corroborated by extensive medical and counseling records, she did not prove that all of these effects were attributable to the discrimination and reprisal. The Commission also found that Complainant should be awarded 50 percent of the claimed past, pecuniary damages because only half of the claimed damages were attributable to the findings of discrimination. The Commission agreed with the AJ that Complainant failed to show a nexus between her request for future pecuniary damages for treatment and the discrimination.

In Tom S. v. Dep't of Justice,25 the Commission affirmed the AJ's award of $50,000 in non-pecuniary damages for race and national origin discrimination and retaliation. In a detailed analysis, the AJ considered Complainant's wife's credible testimony regarding his mood and temper, as well as their ensuing divorce. Complainant's wife noted that the family learned to "walk on eggshells," and would stay away from Complainant after the work week. Additionally, Complainant testified to feeling hopeless and "held hostage" by the repeated denial of transfers.

Awards Below $50,000

In Mervin D. v. Dep't of the Army,26 the Commission increased the Agency's award of damages for retaliation and discriminatory interference with the EEO process from $6,000 to $40,000. Complainant testified that the effects from the Supervisor's retaliatory behavior extended over a period of approximately three years, and he experienced embarrassment, humiliation, anguish, and the deterioration of his relationship with his co-workers. He also experienced physical symptoms including weight gain, exacerbation of previous hypertension, insomnia, loss of libido, and damage to his relationship with his wife and children. The Commission concluded that an award of $40,000 was appropriate given the nature and duration of the harm.

The Commission affirmed the AJ's award of $35,000 in damages for retaliation in Opal V. v. Dep't of Justice.27 Complainant and her spouse testified that she suffered sleeplessness, anxiety and an increase in migraine headaches, as well as a loss of enjoyment of life. Complainant sought help from the Agency's Employee Assistance Program, a therapist and a psychiatrist, and the AJ considered that Complainant and her husband requested transfers to a different location in order to remove themselves from the facility where the discrimination occurred. The Commission noted that while a portion of Complainant's suffering was attributable to incidents of harassment for which no discrimination was found a portion also resulted from Complainant's receipt of the unacceptable rating.

In Monroe C. v. Dep't of the Navy,28 the Commission increased the AJ's award of damages for retaliation from $15,000 to $35,000. Complainant stated that he suffered headaches, insomnia, humiliation and marital problems after the retaliation. Complainant's wife and pastor testified as to the humiliation, job stress and depression that Complainant experienced, and Complainant stated that the retaliation affected his relationship with his wife to such a degree that she suggested he quit his job.

The Commission affirmed the Agency's award of $20,000 for race and sex discrimination in Nathaniel S. v. Dep't of Veterans Affairs.29 The Commission stressed that compensatory damages are for harm that was directly or proximately caused by the Agency's discriminatory conduct. Complainant stated that he suffered stress, depression, anxiety, headaches, loss of appetite and sleep, loss of enjoyment of life, and marital strain. His evidence consisted of affidavits and testimony from coworkers, his wife, family, and psychologist. Complainant acknowledged that he was diagnosed with depression prior to the Agency's discriminatory act and received treatment for ongoing depression. In addition, Complainant attributed his elevated stress to many factors. The Commission concluded that, taking into account evidence of Complainant's ongoing and apparently worsening depression, $20,000 was reasonable. The Commission also affirmed the $540.00 in pecuniary damages, even though it only partially covered Complainant's counseling costs, because Complainant's ongoing counseling treatment was only partially related to the harm caused by the Agency. Complainant would have received this treatment anyway due to his preexisting condition, and the Agency was only responsible for the harm it inflicted due to its discriminatory acts.

In Elvera S. v. U.S. Postal Serv.,30 the Commission affirmed the AJ's award of $12,000 in damages for sexual harassment. The AJ provided detailed support for her decision, noting Complainant's testimony that following the harassment she was emotional and depressed, lacked interest in things she used to enjoy, was anxious and unable to sleep, and had panic attacks. In addition, Complainant stated that she experienced chest pain, and took medication for depression and anxiety. Complainant saw a therapist and attended a support group. Her son provided a statement in support of her testimony.

In Wilbert R. v. U.S. Postal Serv.,31 the Commission affirmed the Agency's award of $10,000 in damages for an impermissible medical inquiry. Complainant denied having any medical or psychological problems as a result of the non-selection. Further, Complainant's sick leave record did not suggest any adverse health effects associated with the action. Complainant's extended absence 18 months later was not due to the denial of a promotion but was related to a change in Complainant's work assignment. The Commission agreed with the Agency that more weight should be given to a psychiatrist's contemporaneous submission than to that of a social worker four years after the incident. Therefore, the Commission concluded that the award of $10,000 was sufficient to compensate Complainant for his feelings of depression, anger, sorrow and loss of self-esteem.

In Corrina M. v. Dep't of the Treasury,32 the Commission increased the Agency's award of damages for the denial of reasonable accommodation from $7,000 to $10,000. The Commission found that Complainant properly submitted evidence in the form of her statement as well as statements from a co-worker and two relatives showing that the Agency's denial of reasonable accommodation exacerbated her multiple sclerosis, which caused Complainant to experience pain, sleeplessness, crying spells, and muscle spasms. Complainant also experienced desperation, humiliation, depression, anguish, anxiety, and despair. The Commission denied Complainant's request for pecuniary damages because she was unable to submit evidence of actual loss or expense. Complainant offered bills for physical therapy, but was unable to connect the treatment to the Agency's failure to accommodate.

In Ivan V. v. Gen. Serv. Admin.,33 the Commission increased the Agency's award of damages for retaliation from $2,000 to $8,000. Complainant described the retaliation as "devastating." The Commission noted that the having a Performance Improvement Notification in his file for three years would likely haunt Complainant and would cause the symptoms he described including anxiety, depression, and marital strain. The Commission stated that while Complainant did not provide affidavits or medical records concerning the harm he incurred, evidence from a medical provider and expert testimony were not mandatory prerequisites for recovery of compensatory damages.

The Commission affirmed the Agency's award of $6,000 in damage for sexual harassment in Yael S. v. U.S. Postal Serv..34 The Commission noted that much of Complainant's claimed pain and suffering stemmed from other incidents such as a reassignment and matters related to her retirement which were not part of the discrimination finding. While Complainant did not allege that the co-worker threatened her, she did say that she was fearful of him, and the Commission found that the co-worker's actions could fairly be perceived as intimidating. Further, the Commission stated that painful memories of sexual harassment, no matter the trigger, are proximately related to the discrimination and compensable. The Commission credited Complainant's statement that she experienced anxiety attacks, felt humiliated and betrayed, was fearful, and experienced nausea, but noted that Complainant did not submit any medical documentation to corroborate her claim that she saw healthcare professionals as a result of the harassment. The Commission also agreed with the Agency that most of the claimed medical expenses were not adequately documented. The Commission did, however, award Complainant $382.64 for past medical expenses for visits to her physician during the time of the alleged harassment, as well as $312.15 in costs incurred in prosecuting her EEO complaint.

In Orville D. v. Dep't of Veterans Affairs,35 the Commission affirmed the AJ's $5,000 award of damages for sex discrimination and retaliation. An AJ found that the Agency discriminated against Complainant on the bases of sex and prior EEO activity when it gave him a "fully successful" performance rating and did not give him a time off award, but found no discrimination with regard to a work assignment or hostile work environment. The Commission noted that Complainant was only entitled to damages resulting from the discriminatory performance appraisal and denial of an award. Complainant stated that he was upset about his appraisal because he felt that he performed as well as his co-workers and was the only employee who did not receive an award. Complainant also noted that he stopped working on weekends because he felt he was not appreciated. The Commission concluded that the Agency's award of $5,000 was adequate considering the severity of the harm suffered.

The Commission affirmed the AJ's $4,000 award of damages for discriminatory harassment in Yun C. v. Dep't of Veterans Affairs.36 The AJ noted the stress Complainant was under during the hostile work environment, but pointed out that Complainant provided very little detail regarding the harm suffered due to the harassment during the hearing. Personal and witness testimony or medical records would all have been acceptable. The Commission found that the AJ's rationale was based on substantial evidence. Even though Complainant stated that she had medical evidence and documentation to support her assertions, she did not provide them on appeal. Finally, while Complainant stated that she was further harmed by the EEO complaint process, the Commission noted that compensatory damages are not available for stress from pursuing an EEO complaint.

In Loren M. v. Dep't of Agric.,37 the Commission reversed the Agency's finding that Complainant was not entitled to compensatory damages and awarded Complainant $2,000 based on the minimal evidence of Complainant's own statements that he was unhappy with the Agency's treatment of him and that it affected his health and welfare. Complainant failed to provide any supporting statements from family members, physicians or clergy to support his claim.

In Chara S. v. U.S. Postal Serv.,38 the Commission affirmed the Agency's award of $250.00 in damages in a reprisal claim. The Commission noted that an award of non-pecuniary compensatory damages should reflect the extent to which the Agency's discriminatory action directly or proximately caused the harm as well as the extent to which other factors also caused the harm. It is the complainant's burden to provide objective evidence in support of the claim and proof linking the damages to the alleged discrimination. Here, the Commission found that $250.00 was reasonable given the fact that there was limited evidence provided by Complainant to establish harm suffered by the Supervisor's comments. Complainant attributed the harm to incidents for which no discrimination was found or which occurred after the Supervisor's comment. Complainant did not present any documentary evidence to show that she suffered either short or long term medical problems as a result of the reprisal. The Commission also found that Complainant was not entitled to pecuniary damages for past therapy sessions, and her emergency room visit, as the therapy took place before the discriminatory act and there was no evidence that the emergency room visit was related to the discrimination.


Footnotes

1 EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N. 915.002 (July 14, 1992) (hereinafter referred to as Enforcement Guidance) available at https://www.eeoc.gov/policy/docs/damages.html.

2 Id. at 11.

3 Id. at 181.

4 Id. at 10.

5 EEOC Appeal No. 01922369 (January 5, 1993).

6 Economou v. Dep't of Army, EEOC Appeal No. 01983435 (August 5, 1999).

7 Enforcement Guidance at 10.

8 Id. at 12.

9 Id.

10 Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989).

11 EEOC Appeal No. 0720120027 (April 2, 2014).

12 EEOC Appeal No. 0720130039 (August 7, 2014).

13 EEOC Appeal No. 0720150029 (March 15, 2016).

14 EEOC Appeal No. 0120141161 (February 3, 2015).

15 EEOC Appeal No. 0720120013 (March 12, 2014).

16 EEOC Appeal No. 0720130028 (June 10, 2015).

17 EEOC Appeal No. 0720100036 (May 13, 2014).

18 EEOC Appeal No. 0120140216 (February 25, 2015).

19 EEOC Appeal No. 0120132400 (February 19, 2014).

20 EEOC Appeal No. 0720130010 (October 31, 2013).

21 EEOC Appeal No. 0120131110 (September 18, 2015).

22 EEOC Appeal No. 0120120012 (July 15, 2015).

23 EEOC Appeal No. 0120113346 (March 21, 2014).

24 EEOC Appeal No. 0120123467 (April 3, 2015).

25 EEOC Appeal No. 0720140012 (January 22, 2015).

26 EEOC Appeal No. 0120120446 (November 14, 2014).

27 EEOC Appeal No. 0720150006 (June 15, 2015).

28 EEOC Appeal No. 0720130020 (June 18, 2014).

29 EEOC Appeal No. 0120123309 (July 30, 2014).

30 EEOC Appeal No. 0120141452 (February 23, 2016).

31 EEOC Appeal No. 0120140548 (March 20, 2015).

32 EEOC Appeal No. 0120133266 (February 11, 2015); request for reconsideration denied, EEOC Request No. 0520150280 (July 30, 2015).

33 EEOC Appeal No. 0120120310 (May 15, 2014).

34 EEOC Appeal No. 0120141347 (July 24, 2014).

35 EEOC Appeal No. 0120121222 (March 20, 2014).

36 EEOC Appeal No. 0120140224 (May 30, 2014).

37 EEOC Appeal No. 0120131546 (June 10, 2015).

38 EEOC Appeal No. 0120133316 (September 4, 2014).