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U.S. Equal Employment Opportunity Commission



 Digest Seal The DIGEST Of Equal Employment Opportunity Law


Fiscal Year 2016, Volume 4

Office of Federal Operations

September 2016


Inside

Selected EEOC Decisions on:

Article:
DISCRIMINATION ON THE BASIS OF MENTAL HEALTH CONDITIONS UNDER THE ADA AND REHABILITATION ACT


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

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

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

(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

Investigative Record Inadequate. The Agency issued a decision finding no discrimination on Complainant's failure to promote claim. On appeal, the Commission found that the Agency's decision, reached without a hearing, was not proper because the investigative record was inadequate. In addition to other missing information, the record was devoid of profiles or demographic information regarding prior selections by the Selecting Official, documentation or verification regarding the disciplinary history of candidates other than Complainant and an explanation as to why discipline was used as a criterion. The record also did not contain complete application packages of candidates or Complainant's full affidavit in this matter. Ordering a supplemental investigation, the Commission reminded the Agency that while its burden of production is not onerous, it must provide a specific, clear, and individualized explanation for a non-selection so that Complainant has an opportunity to prove that the Agency's explanation is a pretext for discriminatory animus. Byron E. v. Tenn. Valley Auth., EEOC Appeal No. 0120140939 (June 9, 2016).

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

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

Complainant Timely Requested Hearing Upon Return from Deployment. The Agency issued the report of investigation and Notice of the Right to Request a Hearing while Complainant was deployed with the National Guard. The Agency then issued a final decision on the merits of the claim when Complainant did not respond within 30 days. On appeal, the Commission vacated the Agency's final decision, noting that Complainant did not receive the Notice until he returned from deployment. Complainant then filed his request well within the 30-day window. The Agency failed to realize that Complainant had been deployed, and the Commission found that the Agency improperly issued a decision on the merits of the formal complainant. Archie G. v. U.S. Postal Serv., EEOC Appeal No. 0120160915 (April 14, 2016).

Attorney's Fees

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

Attorney's Fees Discussed. Complainants' counsel sought attorney's fees for his time defending an appeal by the Agency. Complainants' counsel requested 255.3 hours for work on the appeal and 39.1 hours for work on the fee petition. The Agency awarded him 51 hours for the appeal and eight hours for the fee petition. The Commission noted that the sole issue in the appeal involved the AJ's original award of attorney's fees. The Commission affirmed the Agency's decision and found that a number of the billable hours claimed were either excessive or duplicative for an attorney with the expertise possessed by Complainants' counsel. The Commission also noted that billing records and necessary documentation for preparation of the fee petition were already in counsel's possession before he started the petition and that Complainants already received attorney's fees for time spent on the matter prior to the appeal. Selene M. and Waneta F. v. Dep't of the Navy, EEOC Appeal Nos. 0120150370 & 0120150371 (May 20, 2016).

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

Class Complaints

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

Compensatory Damages

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

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

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

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

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

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

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

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

Dismissals

(See also by category, this issue.)

Agency Improperly Fragmented Claim. The Commission reversed the Agency's dismissal of the complaint, finding that the Agency improperly fragmented the claim. The Commission stated that the alleged incidents, taken together, constituted a claim of harassment. The Commission also found that a newly raised incident was like or related to the other incidents and that at least one of the incidents alleged in the complaint was raised within the 45-day period. Therefore, the entire complaint was timely and stated a claim. Felisha A. v. Dep't of Transp., EEOC Appeal No. 0120140625 (June 2, 2016).

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

Agency Properly Dismissed Spin-off Complaints. The Agency dismissed three of Complainant's claims as "spin-offs," finding that they alleged dissatisfaction with the processing of prior complaints. The Commission noted that dissatisfaction with the processing of a previous complaint must be raised in connection with the underlying complaint, not as a new complaint. Therefore, the Agency's dismissal of these claims was proper. Davina W. v. Soc. Sec. Admin., EEOC Appeal No. 0120161133 (May 17, 2016).

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

Complaint Improperly Dismissed for Stating the Same Claim Raised Previously and Raising the Matter in an Appeal to the MSPB. The Commission found that the Agency improperly dismissed the complaint for stating identical claims as those raised in a prior complaint. The record did not contain a copy of Complainant's previous complaint, and it is the Agency's burden to have evidence or proof in support of its final decision. The Commission also concluded the Agency improperly dismissed the complaint for having been previously raised with the MSPB, since the record did not contain a copy of the MSPB appeal or of any MSPB decision accepting jurisdiction. Gregory F. v. Dep't of Transp., EEOC Appeal No. 0120160909 (April 14, 2016).

Agency Improperly Fragmented Claim. Complainant filed a formal complaint alleging that the Agency subjected her to discrimination by not selecting her for the position of IT Project Manager, denying her request for reasonable accommodation to telework two days per week for 3 months, not nominating her for an award, and delaying the processing of her request to purchase an ergonomic chair to accommodate her back injury. The Agency dismissed two of the claims on the grounds of untimely EEO Counselor contact, and the remaining two claims for failure to state a claim. On appeal, the Commission determined the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment. A fair reading of the complaint revealed that Complainant was alleging that she had been subjected to a series of related incidents of harassment. Furthermore, the Agency improperly dismissed two claims on the grounds of untimely EEO Counselor contact, because the incidents comprised part of Complainant's hostile work environment claim and some incidents occurred within the filing period. Giselle W. v. Dep't of the Air Force, EEOC Appeal No. 0120150467 (April 7, 2016).

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

Findings on the Merits and Related Decisions

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

Under the Age Discrimination in Employment Act

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

Under the Equal Pay Act

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

Under the Rehabilitation Act

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

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

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

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

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

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

Under Title VII

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

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

Under Multiple Bases

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

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

Retaliation

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

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

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

Remedies

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

Remedies Discussed. The Commission previously issued a default judgment in favor of Complainant as a sanction for the Agency's repeated failure to submit the complete complaint records. In the underlying decision, the Commission consolidated a petition for enforcement and two appeals regarding interrelated matters concerning Complainant's entitlement to relief. The Commission rejected the Agency's assertion that Complainant was not entitled to compensatory damages, noting that it has previously determined that a complainant may be entitled to compensatory damages following the issuance of a default judgment. The Commission awarded Complainant $25,000 in non-pecuniary damages for the two years she was harassed based upon evidence that Complainant experienced aggravation of fibromyalgia, fatigue, and depression. With regard to attorney's fees, the Commission reduced the award using the Laffey Matrix to reflect the attorney's rates at the various periods of representing Complainant over a 10 year period, and further reduced the attorney's fee award by 10% to account for severable work on matters on which Complainant did not prevail. The Commission also found that Complainant's attorney was entitled to payment of costs associated with the underlying complaint. The Agency failed to show that it posted the notice regarding the finding of discrimination, removed negative comments from Complainant's personnel records and performance appraisals, removed a Leave and Counseling Memorandum from Complainant's personnel records, or conducted training for management officials, and ordered the agency to comply with its previous orders regarding those elements of relief. Margaret L. v. Dep't of Hous. & Urban Dev., EEOC Petition No. 0420150018 & EEOC Appeal Nos. 0120150433 & 0120160089 (June 2, 2016).

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

Agency Complied with Administrative Judge's Order of Remedies. Petitioner alleged that the Agency failed to provide her with all the data requested to verify the Agency's compliance with the Commission's orders and verify the accuracy of the Agency's calculations related to back pay, interest, and other attendant benefits. Petitioner also contended that the Agency used the incorrect cut-off date for its leave restoration calculations and did not compensate her for the increased tax liability she incurred because of her lump sum compensatory damages award. The Commission noted that after Petitioner petitioned for enforcement, the Agency submitted additional documentation addressing its compliance. Upon review the Commission determined that Petitioner's statements and documentation were insufficient to establish her entitlement to an earlier cut-off date for leave restoration. The Commission also determined the Agency appropriately restored LWOP hours, compensated for holidays, overtime, and interest, and properly deducted tax and contribution amounts from the back pay award. Furthermore, the Commission found Petitioner was not entitled to any additional compensation for the increased tax liability related to her compensatory damages award. Darlene F. v. Soc. Sec. Admin., EEOC Petition No. 0420140010 (April 8, 2016).

Settlement Agreements

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

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

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

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

Stating a Claim

Complaint Alleging Retaliation for Prior EEO Activity States a Claim. Complainant filed a claim alleging retaliation when he was not allowed to work in his bid assignment, his work hours were changed, and his access to Time and Attendance was revoked. The Agency dismissed the complaint for failure to state a claim on the grounds that Complainant was alleging reprisal for union activity. On appeal, the Commission acknowledged that Complainant's formal complaint form indicated that the disputed actions occurred after he filed a union grievance. However, on appeal Complainant asserted that he had filed an EEO complaint. The Commission recognized that there was an issue regarding whether Complainant had engaged in protected activity, but stated that issue went to the merits of the complaint and did not determine the procedural issue of whether Complainant had stated a justiciable claim under Title VII. Samuel R. v. U.S. Postal Serv., EEOC Appeal No. 0120161250 (May 27, 2016).

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

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

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

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

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

Ongoing Retaliatory Harassment Claim Stated. The Commission noted that, in order to clearly define the issues of a complaint the Agency should not only look at a formal complaint but also consider pre-complaint documents. Here, a fair reading of the EEO Counseling Report in conjunction with the formal complaint revealed that the essence of Complainant's claim was that she was being subjected to ongoing harassment in retaliation for her earlier complaint. Melissa H. v. Dep't of the Army, EEOC Appeal No. 0120161158 (May 18, 2016).

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

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

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

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

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

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

Complainant Stated Viable Claim of Harassment and Disability Discrimination. The Commission found that the Agency improperly dismissed Complainant's claim that she was subjected to harassment and discrimination when Agency Officials requested by phone, letter and email that she provide them with medical information. The Agency asserted that it was standard procedure to conduct a medical review and request medical records and documentation to complete the processing of an applicant's medical certification, but this argument went to the merits of the case, not whether the matter stated a viable claim. Tera B. v. Dep't of Transp., EEOC Appeal No. 0120161024 (April 7, 2016).

Agency Found to Be a Joint Employer. Complainant filed an EEO Complaint alleging discriminatory harassment, and the Agency dismissed the complaint for failure to state a claim reasoning that the Complainant was not an employee. On appeal, the Commission determined that the Agency exercised sufficient control over Complainant's position to qualify as her employer for the purpose of the EEO complaint process. Agency officials were Complainant's first and second-level supervisors, and gave her instructions regarding her assignments. The record showed that the Agency wanted to hire Complainant but her education prevented her from meeting the requirements of a Research position. Finally, the Agency had the ability to terminate Complainant's employment. Thus, while the Agency brought Complainant onboard as a contractor, it intended for her to perform the duties of an employee. Daisy W. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120160511 (April 5, 2016); see also Kenneth M. v. Dep't of the Air Force, EEOC Appeal No. 0120161245 (May 11, 2016) (while Complainant was paid by the staffing firm and his job required a high degree of skill, Complainant was supervised by an Agency manager who interacted with him daily and provided him guidance, Complainant submitted his requests for time off to the Agency manager for initial approval, Complainant was required to attend Agency training, Complainant worked on Agency premises using Agency equipment, and he had very little contact with his staffing firm supervisor. The record also showed that the Agency had de facto power to terminate Complainant. Therefore, the Agency exercised sufficient control over Complainant's position to qualify as his joint employer); Beth G. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120143174 (May 6, 2016) (while the contractor provided Complainant with benefits and withholdings, Complainant was to work at an Agency facility using Agency equipment and materials, she was to be supervised by an Agency physician, and her work was part of the Agency's regular business. The Commission also noted that the Agency's allegedly discriminatory actions in requiring Complainant to submit to a pre-offer physical examination reflected a level of control held by a joint employer); Emma B. v. Dep't of the Navy, EEOC Appeal No. 0120160878 (May 3, 2016) (although Complainant was paid by the staffing firm and did not perform work connected with the Agency's mission, Agency employees assigned Complainant work, provided her with monthly awards, had final approval over Complainant's leave, and provided her with the equipment used to perform her job. The Commission found it especially significant that the Agency had joint or de facto power to terminate Complainant); Rina F. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160808 (April 21, 2016) (the Agency exhibited enough control over the means and manner of Complainant's employment to indicate an employer-employee relationship. The record showed that the Agency played a role in both Complainant's selection for the job and her termination. In addition, Complainant received daily assignments from the Agency and her work was reviewed by Agency personnel); but see Shakia H. v. Cent. Intelligence Agency, EEOC Appeal No. 0120161007 (May 26, 2016) (the Agency did not exercise sufficient control over the complainant's Mail Courier position to qualify as her employer for the purposes of the EEOC's regulations. While the position did not require a high degree of skill, and Complainant worked on the Agency premises for nearly two years using Agency equipment, the contractor assigned Complainant's routes without input from the Agency, set Complainant's work hours, made leave determinations without input from the Agency, addressed her reasonable accommodation request, and handled Complainant's pay and compensation); Chrystal S. v. Dep't of the Navy, EEOC Appeal No. 0120160889 (May 11, 2016) (the Agency did not exercise sufficient control over Complainant's position to qualify as her employer where Complainant provided her own materials, the Agency did not supervise Complainant or assign her work, Complainant provided training on an "as needed" basis, Complainant was paid per training session, and her work was not part of the Agency's mission).

Complainant Failed to State a Claim of Religious or Sex Discrimination. The Commission concluded that, even assuming the four incidents regarding references to sexual orientation and LGBT content occurred as alleged and were considered together, Complainant was not able to establish a violation of Title VII because these incidents lacked the requisite pervasiveness or severity necessary to alter the conditions of his employment, and therefore, was not actionable harassment. Complainant cited four incidents in a two-and-a-half year period of minor consequence to his work environment. While Complainant alleged that he was offended by references to sexual preference in an e-mail, survey and training, he did not make any allegation that these events created any burden on the exercise of his religion. Therefore, the Commission found that Complainant failed to state a claim upon which relief can be granted. Ike D. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120160980 (June 10, 2016).

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

Complaint Regarding Debt Collection Act Fails to State a Claim. The Commission found that the Agency properly dismissed the formal complaint alleging discrimination in regard to a Letter of Demand under the Debt Collection Act (DCA) for failure to state a claim. The DCA mandates that monetary disputes involving an agency of the United States government and any claimed debtor must be resolved through the provisions of the Act. The Commission has previously held that challenges to an agency's actions under the DCA are not within the scope of the EEO complaint process and the Commission's jurisdiction. The proper forum for Complainant to have challenged the appropriateness of the Letters of Demand was under the DCA process. Hulda W. v. U.S. Postal Serv., EEOC Appeal No. 0120161077 (May 19, 2016); request for reconsideration denied EEOC Request No. 0520160389 (August 11, 2016).

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

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

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

Summary Judgment

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

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

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

Timeliness

Complaint Improperly Dismissed for Failure to Timely Contact EEO Counselor. The Agency dismissed Complainant's formal complaint on the grounds of untimely EEO Counselor contact. Complainant asserted that he was not aware of the limitation period for contacting a Counselor. On appeal, the Commission found that the Agency provided no documentation reflecting Complainant's actual or constructive knowledge of the 45-day limitation period. Therefore, the Agency improperly dismissed the formal complaint for untimely EEO Counselor contact. Clay W. v. Dep't of the Interior, EEOC Appeal No. 0120161461 (June 7, 2016).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. The Agency dismissed Complainant's complaint for failure to timely contact an EEO Counselor, noting that while she was issued an unfavorable performance review on June 4, 2014, she did not initiate EEO contact until June 15, 2015. On appeal, the Commission first found that the Agency misidentified Complainant's claim. The Commission held that, when considering the matters raised during counseling in conjunction with the formal complaint, Complainant was alleging that she experienced harassment which led to her separation from the Agency. Further, the Agency acknowledged in its brief on appeal that Complainant initiated EEO contact on February 25, 2015, and the record did not show that Complainant affirmatively withdrew or abandoned her informal complaint. Finally, the Commission stated that since some of the events raised occurred within 45 days of Complainant's EEO contact, the complaint of harassment and constructive discharge was timely. Allegra P. v. Dep't of the Army, EEOC Appeal No. 0120152911 (April 29, 2016).

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

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. Complainant initiated EEO counselor contact on September 14, 2015, alleging discrimination when management denied her request to be temporarily promoted after being placed in a higher level position in February 2015. The Agency dismissed Complainant's complaint for untimely EEO Counselor contact. On appeal the Commission reversed the agency's dismissal finding persuasive Complainant's assertion that management officials mislead Complainant into believing that they were attempting to obtain higher-level pay for her through September 2015. Floy S. v. Dep't of Commerce, EEOC Appeal No. 0120160559 (April 6, 2016).

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

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

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

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

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

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

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

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

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

Complaint Improperly Dismissed as Untimely. The Commission found that the Agency improperly dismissed Complainant's complaint as untimely because there was inadequate evidence of Complainant's receipt of the Notice of Right to File. The Agency claimed that it sent the Notice to Complainant's attorney by certified mail and a copy to the Complainant by regular mail, but there was no certified mail return receipt addressed to the attorney. It was undisputed that the formal complaint was filed on December 10, 2015. The Agency was unable to prove when Complainant's attorney received the Notice, and, as such, Complainant's formal complaint was timely. Dania S. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120161058 (April 20, 2016).

Commission Found Equitable Grounds for Excusing Delay in Filing Complaint. The Commission reversed the Agency's dismissal of Complainant's complaint for failure to file within the 15-day limitation period. The record did not show that Complainant notified his EEO office when he changed addresses, and the Commission agreed with the Agency that Complainant had constructive receipt of the notice of right to file when the Notice arrived at his old address. Complainant asserted, however, that the EEO Counselor informed him that the 15-day limitation period started the day Complainant physically received the Notice at his new address. Complainant filed his complaint within 15 days after he physically received the Notice. The Commission found that since Complainant relied on the Counselor's statement about the filing period, the Agency was precluded from dismissing the claim for untimely filing. Buck H. v. Dep't of Transp., EEOC Appeal No. 0120152830 (April 14, 2016), request for reconsideration denied, EEOC Request No. 0520160350 (July 27, 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.)

DISCRIMINATION ON THE BASIS OF MENTAL HEALTH CONDITIONS UNDER THE ADA AND
REHABILITATION ACT

By Robyn Dupont, Erin Perugini, Laura Revolinski, Margaret Ruckelshaus and Scott Schaefer

Introduction

The Rehabilitation Act of 19731 protects federal employees and job applicants from workplace discrimination on the basis of medical conditions, including mental health conditions which satisfy the ADA definition of disability. However, employees in the federal workplace with mental health conditions continue to experience discrimination, or are otherwise hindered from fully experiencing the equal opportunity guaranteed to them by statute. Despite the variety of approaches that the federal government has taken toward accommodation, greater flexibility is needed to provide for the unique needs and obstacles that employees with mental health conditions face in the modern workplace.

A Brief History

The Rehabilitation Act was created to promote the inclusion of individuals with disabilities in the federal workforce and to prevent discrimination against individuals with disabilities in federal employment.2 Enacted in 1990, the Americans with Disabilities Act (ADA) similarly prohibited private sector employers from discriminating on the basis of disability.3 The Rehabilitation Act was amended in 1992 to clarify that all legal standards applied under the ADA are applicable to complaints of disability discrimination brought by federal employees and applicants for federal employment.4

The ADA defines the term "disability" to mean (A) a physical or mental impairment that substantially limits one or more of an individual's major life activities; (B) a record of such impairment, or (C) being regarded as having such an impairment.5 Subsequently, the Supreme Court issued several decisions that narrowly interpreted the term "disability." In Sutton v. United Air Lines, Inc.,6 the Court concluded that impairments that do not substantially limit a major life activity when mitigated by medication, medical devices, or other measures do not fall within the statutory definition of "disability" and thus were not protected by the ADA.7 In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,8 the Court held that a claimant must be substantially limited in an activity that was "of central importance to most people's daily lives" in order the meet the definition.

Congress responded to these decisions by enacting the ADA Amendments Act of 2008 (ADAAA), which broadened the protection afforded by the ADA and the Rehabilitation Act.9 The ADAAA specifically noted that the Sutton and Toyota decisions narrowed the scope of protection contrary to Congress' intention.10 In response to the Sutton trilogy, the ADAAA stated that the effects of mitigating measures such as medication and other corrective devices should be ignored when considering whether a condition meets the definition of "disability."11 In response to the decision in Toyota, the ADAAA provided that an impairment need not substantially limit more than one major life activity to meet the definition, and that in order to be substantially limiting, an impairment need not prevent, or severely or significantly restrict, a major life activity.12 The ADAAA further provided that "[t]he definition of disability shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted…."13

The Commission issued regulations in 2011 to implement the ADAAA's broader definition of disability.14 The Commission noted that in amending the ADA and, by extension, the standards applicable under the Rehabilitation Act, Congress reaffirmed that the primary objective of the ADA should be "whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual's impairment substantially limits a major life activity."15 The ADAAA also provided a non-exclusive list of examples of major life activities, which included lifting, walking, hearing, communicating, and concentrating, among other activities.16

The ADAAA Today and its Application to Employers

The ADAAA defines a disability using a three-pronged approach. Specifically, the ADAAA provides that a "disability" includes (A) a physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an "actual disability"); (B) a record of a physical or mental impairment that substantially limited a major life activity ("record of"); or (C) when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor ("regarded as").17 Examples of major life activities that may be particularly relevant to individuals with mental health conditions include, but are not limited to, caring for ones' self, concentrating, thinking, sleeping, interacting with others, and the operation of major bodily functions including brain and neurological functions.18

An employee's mental health condition is often not apparent to the employer even if it satisfies the definition of "disability." A mental impairment is defined by statute as "[a]ny mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities."19 Employers are generally not liable for employment discrimination if they are unaware of an employee's disability. Thus, the invisibility of mental health conditions can often make it more difficult for employees in the workplace who can feel pressure to self-disclose at an early stage. For example, in Shealey v. Equal Employment Opportunity Commission,20 Complainant sent multiple requests to her District Director asking to be voluntarily reassigned. It was not until one month after these requests were denied that Complainant informed the Director that she was experiencing cumulative stress and was unable to maintain concentration, pace, and persistence sufficient for her challenging 40-plus-hour position thereby raising Rehabilitation Act concerns.21

Reasonable Accommodation

The ADA requires an employer to provide reasonable accommodation to qualified employees with disabilities, mental or physical, unless doing so would cause an undue hardship.22 A reasonable accommodation is a change in the way things are typically done at work that enables an individual with a disability to apply for a job, perform the essential functions of a job, or have equal access to the benefits and privileges of employment.23 Reasonable accommodations can include modifications or adjustments to the work environment or to the manner or circumstances under which the individual's position is performed which enable the individual with a disability to perform the essential functions of the position the individual holds or desires.24 Reasonable accommodation can also include modifications or adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment, such as access to training opportunities and employer-sponsored social events.25 A modification or adjustment must also be effective in meeting the needs of the individual.26 Some examples of reasonable accommodations include modifications to an employee's workstation or equipment; altered break or work schedules; telework, and reassignment to a vacant position.27

An employer does not have to provide a reasonable accommodation that would cause an "undue hardship" to the employer. "Undue hardship" means a significant difficulty or expense to the employer.28 Factors to be considered when determining whether an accommodation would impose an undue hardship on the employer include: (i) the nature and cost of the accommodation; (ii) the financial and personnel resources of the facility or facilities involved and the effect on expenses and resources; (iii) the employer's financial resources; (iv) the type of operation or operations of the employer; and (v) the impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business.29 Federal agencies will be unlikely to demonstrate undue hardship based on cost, and in fact most accommodations needed by individuals with mental health conditions will involve little or no cost to the agency. If a reasonable accommodation turns out to be ineffective and the employee with a disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship.30

Modified Work Environment

Although modifying an employee's work environment seems to apply primarily to individuals with physical disabilities, reasonable mental health accommodations can also include making changes to physical surroundings. For example, a reasonable accommodation for an employee who has difficulty adjusting to alterations in his daily routine due to a mental health condition may include a permanent assignment to one location, or allowing for a transition period to adjust to a change in location.31 The use of room dividers, partitions, and soundproofing or visual barriers can also accommodate individuals with limitations in their concentration, as can moving the individual away from machinery or reducing workplace noise.32 In addition, an employee with a severe learning disability who has difficulty reading written memoranda may be provided with accommodations such as computer software to read the material or taped oral versions of the memoranda.33

Modifications to the way employees interact with each other should also be considered as a possible accommodation. The EEOC has noted, for example, that modification of supervisory methods may be an effective accommodation for individuals with mental health conditions.34 For example, supervisors may be able to adjust the manner in which they communicate assignments, instructions, or training in a way that is most effective for the individual with a disability.35 This could include communicating electronically rather than face-to-face, or in person rather than by e-mail.36 Supervisors can also provide more day-to-day guidance, feedback, or structure, or break larger tasks down into smaller ones with discrete deadlines for each step.37

In Michelle G. v. Department of the Treasury,38 the Commission found that the Agency failed to reasonably accommodate Complainant's disability (attention deficit disorder) when the Agency waited two years before meeting Complainant's request to move to a quiet work area. Complainant submitted documentation supporting her need for a quiet work area, to have work focused on the task at hand, to avoid multi-tasking when possible, and to take time to formulate ideas and readjust when moving between tasks. Nevertheless, the Agency moved Complainant to a cubicle in a high-traffic area. The Agency also failed to show that it would experience undue hardship if it modified the manner in which Complainant was expected to handle phone calls, including eliminating the requirement that Complainant summarize phone discussions within an arbitrary time frame, allowed Complainant to complete cases before receiving new ones, or gave Complainant specific directions regarding performance expectations.

Use of Leave and Schedule Changes

The EEOC has stated that providing additional leave for treatment and recovery is a reasonable accommodation, absent an undue hardship on business operations.39 A change in scheduled working hours can also be a reasonable accommodation.40 For example, an individual with a mental health conditions may need to have a later schedule in order to perform essential job functions.41 The EEOC specifically noted that this may be true because some medications taken for mental health conditions cause extreme grogginess and lack of concentration in the morning.42

In Donovan O. v. U.S. Postal Service,43 the Commission found that the Agency failed to provide Complainant, who had Post Traumatic Stress Disorder, with reasonable accommodation. It was undisputed that Complainant could perform the duties of his clerk position, and the only medical limitation was the hours he could work. Complainant provided a 12 and one-half hour window during which he could work eight hours. The Commission rejected the Agency's assertion that since Complainant's medical restrictions did not prohibit him from performing his job, his request to adjust the time he worked was not a request for accommodation. The Agency merely closed Complainant's request for accommodation, and the Commission found no evidence that the Agency considered the merits of the accommodation request or offered alternatives. Instead, the Agency provided Complainant with four hours of work each shift and little evidence about the position or why it was limited to four hours. The Agency failed to show that accommodating Complainant's request to work within a specified window of time would have resulted in an undue hardship.

In Kathleen P. v. Social Security Administration,44 the Commission found that the Agency failed to provide Complainant with reasonable accommodation when it refused to allow Complainant to use one day of unscheduled sick leave every other month without providing additional medical documentation. Complainant's psychiatrist previously submitted documentation to the Agency which described Complainant's diagnosis, prognosis, the medication she was prescribed and her limitations. In addition, Complainant told the Agency that, at times, she was so incapacitated from her disabilities that she was unable to get out of bed in the morning. While the Commission noted that it would have been an undue hardship for the Agency to allow Complainant to take unscheduled leave in an unfettered manner, it found that allowing Complainant six days of unscheduled leave per year would not have been an undue hardship. The Commission further found that requiring Complainant to provide medical documentation every time she used sick leave was not an effective accommodation because it exacerbated her symptoms.

Reassignment

The ADA specifically lists reassignment to a vacant position as a form of reasonable accommodation.45 Reassignment must be provided to an employee who, because of a disability, can no longer perform the essential functions of his or her current position, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship.46 An employee must be qualified for the new position, that is, he or she must have the requisite skill, experience, education and job-related requirements.47 Reassignment is considered the reasonable accommodation of last resort.48 Reassignment is required only after it has been determined that there are no effective accommodations that will enable an employee to perform the essential functions of her current position or all other reasonable accommodations would impose an undue hardship.49

In Bart M. v. Social Security Administration,50 Complainant was diagnosed with anxiety and attention deficit disorder (ADD) which substantially limited his ability to concentrate and think. Complainant informed the Agency that co-workers and supervisors had been harassing him and that the harassment affected his ability to learn and perform his job, and requested a transfer to another location. The Commission stated that Complainant's request for a transfer to another office location would have removed him from the harassing environment and helped him to manage stress. The Agency did not provide a reasonable accommodation to Complainant that was effective, or that enabled him to perform the essential functions of his position, and did not show that Complainant's requested accommodations would have constituted an undue hardship.

Conclusion

Individuals with mental health conditions are entitled to reasonable accommodation under the Rehabilitation Act and the ADA. Such accommodations can include modifying an employee's work environment, granting leave or schedule changes, or reassignment. Agencies should exercise greater flexibility to provide for the unique needs and obstacles that employees with mental health conditions face in the workplace.


Footnotes

1 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

2 Pub. L. No. 93-112, 87 Stat. 355 (codified as amended at 29 U.S.C. §§ 701-791).

3 Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101-12213).

4 Rehabilitation Act Amendments of 1992, Pub. L. No. 102-569 § 503(b) (codified as amended at 29 U.S.C. § 791(g) (1994).

5 42 U.S.C. § 12102(1)(A).

6 527 U.S. 471 (1999).

7 See also Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) (addressing medication as a mitigating measure); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999) (addressing an individual's ability to compensate for an impairment).

8 534 U.S. 184 (2002).

9 Pub. L. No. 110-325, 122 Stat. 3553 (codified at 29 U.S.C. § 705, 42 U.S.C. § 12101 et seq.)

10 Id. at § 2, 122 Stat. at 3553-54.

11 Id., 122 Stat. at 3556 (codified at 42 U.S.C. § 12102(4)(E)), other than ordinary eyeglasses or contact lenses.

12 Id. at § 4, 122 Stat. at 3556 (codified at 42 U.S.C. § 12102(4)(C)).

13 Id. at § 4, 122 Stat. at 3555 (codified at 42 U.S.C. § 12102(4)(A)).

14 29 C.F.R. Part 1630 .

15 29 C.F.R. §1630.2(j)(1)(iii).

16 42 U.S.C. at § 12102(2)(A).

17 29 C.F.R. § 1630.2(g).

18 29 C.F.R. § 1630.2(i).

19 29 C.F.R. § 1630.2(h)(2).

20 EEOC Appeal No. 0120070356 (2011).

21 Id .

22 42 U.S.C. §§ 12101-12117, 12201-12213 (1994) (codified as amended).

23 EEOC's Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (October 17, 2002) (hereafter referred to as "Enforcement Guidance").

24 29 C.F.R. § 1630.2(o)(1)(ii).

25 29 C.F.R. § 1630.2(o)(1)(iii).

26 Enforcement Guidance.

27 The Mental Health Provider's Role in a Client's Request for a Reasonable Accommodation at Work, https://www.eeoc.gov/eeoc/publications/ada_mental_health_provider.cfm; Questions & Answers about Persons with Intellectual Disabilities in the Workplace & the Americans with Disabilities Act, https://www.eeoc.gov/laws/types/intellectual_disabilities.cfm.

28 29 C.F.R. § 1630.2(p).

29 Id.

30 Enforcement Guidance, at Question 32.

31 Enforcement Guidance.

32 EEOC Enforcement Guidance on Americans with Disabilities Act and Psychiatric Disabilities, EEOC Notice No. 915.002 (March 25, 1997).

33 Enforcement Guidance.

34 EEOC Enforcement Guidance on Americans with Disabilities Act and Psychiatric Disabilities, EEOC Notice No. 915.002 (March 25, 1997).

35 Id.

36 Id.

37 Id.

38 EEOC Appeal No. 0120132463 (May 13, 2016).

39 EEOC Enforcement Guidance on Americans with Disabilities Act and Psychiatric Disabilities, EEOC Notice No. 915.002 (March 25, 1997).

40 Id.

41 Id.

42 Id.

43 EEOC Appeal No. 0120132617 (August 11, 2015).

44 EEOC Appeal No. 0720120001 (January 18, 2013).

45 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630(o)(2)(ii).

46 29 C.F.R. pt. 1630 app. § 1630.2(o).

47 29 C.F.R. § 1630.2(m).

48 Enforcement Guidance; see also Melodee M. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142484, (April 8, 2016) (citing Zachary K. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130795 (November 19, 2015).

49 Enforcement Guidance.

50 EEOC Appeal No. 0720110030 (November 4, 2013).