EEOC Seal

U.S. Equal Employment Opportunity Commission



 Digest Seal The DIGEST Of Equal Employment Opportunity Law


Volume XXV, No. 2

Office of Federal Operations

Spring 2014


Inside

Selected EEOC Decisions on:


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

Carlton M. Hadden, Director, OFO
Robert Barnhart, Acting Director, OFO's Special Services Staff
Digest Staff
Editor: Robyn Dupont
Writers: Michael Campbell, Kiara Carty, Robyn Dupont, Alieen Hwang, Joseph M. Kirchgessner, Jacob B. Workman

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. There will be no change with regard to the way in which the Commission communicates its decisions to the parties. This change was made to address privacy concerns and to ensure consistency with the Commission's approach in the rest of its enforcement work and the investigations of complaints.- Ed)

SELECTED EEOC DECISIONS

Attorney's Fees

Attorney's Fees Discussed. In a prior decision, the Commission found that the Agency discriminated against Complainant when it did not select her for a position, and ordered the Agency to, among other things, pay reasonable attorney's fees. In the underlying appeal, the Commission addressed the issue of attorney's fees. The Commission used the Laffey Matrix to determine the prevailing market rate for the attorney. The Commission rejected Complainant's argument that it should use a higher hourly rate found in the "Adjusted Laffey Matrix," finding nothing in the record to warrant an adjustment above the rates found in the standard Matrix. The Commission also declined to award fees at the current market rate, stating that it was appropriate to apply the Laffey Matrix hourly rate for the year the work was performed. The Commission did find that the Agency erred in awarding only 33 percent of the requested fees for much of the work performed, noting that the fact that Complainant did not prevail on every aspect of her complaint did not, by itself, justify a reduction in the hours expended where the claims were intertwined. The majority of the work on the initial appeal concerned whether or not the Agency was liable for discrimination, an issue on which Complainant was a prevailing party. The fact that Complainant was not successful in her request to increase the compensatory damages award did not warrant her receiving only 33 percent of most of the requested fees, and some of the work performed on damages was intertwined with work performed on successful claims. Therefore, the Agency should have denied fees only where it was clear that the work was solely related to the issue of damages. The Commission did find that it was appropriate to deny claims for services by one attorney that were clearly only supervisory in nature and that much of the work performed by another attorney was duplicative. Therefore, the Commission denied the duplicative requests, and modified the award of attorney's fees. Complainant v. Hous. & Urban Dev., EEOC Appeal No. 0120113288 (March 14, 2014).

Attorney's Fees for Out-Of-Town Counsel Proper. Complainant and the Agency entered into a settlement agreement which, among other things, provided that the Agency was to pay reasonable attorney's fees. Prior to filing a claim, Complainant had a difficult time finding local counsel to represent her. After searching for attorneys in her own state of South Dakota who practice federal employment law, Complainant was unable to locate competent representation. As a result she found and hired an attorney in Washington, D.C. The Agency paid a reduced amount alleging that the rate by which the amount was calculated should be based on the prevailing South Dakota market rate and not that of Washington D.C. because it was unreasonable for Complainant to have hired out-of-town counsel. On appeal, the Commission modified the amount the Agency paid to reflect the prevailing rate in Washington D.C. The Commission has found that if a party does not find counsel readily available in his or her locality with whatever degree of skill that may reasonably be required, it is reasonable that the party go elsewhere to find an attorney even if it results in the payment of a higher hourly rate than the prevailing market rate in the location where the action arose. The burden is on the Agency to show the decision to use out-of-town counsel was unreasonable. None of the information the Agency provided indicated that there were lawyers in the local area who specialized in representing federal employees in EEO matters. The Commission found that Complainant's use of out-of-town counsel was reasonable given that she searched a large number of local firms and contacted several local attorneys before deciding to use a more competent out-of-town attorney. Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120133329 (February 28, 2014).

Compensatory Damages

(The decisions below are a selected sampling of recent awards of compensatory damages. See, also, "Findings on the Merits," and "Remedies" this issue. - Ed.)

$210,000 Awarded for Discriminatory Harassment and Reprisal. Following a hearing, an administrative judge (AJ) found that Complainant was subjected to discriminatory harassment and reprisal which included offensive comments and numerous incidents of touching by her Supervisor. The AJ awarded Complainant, among other things, $210,000 in non-pecuniary compensatory damages. The Agency concurred with the AJ's findings of discrimination and harassment, but filed an appeal with regard to the issue of damages. On appeal, the Commission found substantial evidence regarding the mental and physical harm that Complainant endured as a result of the harassment. The record included testimony from Complainant, her husband and her psychologist showing that Complainant became deeply troubled, anxious, depressed, lonely, suspicious, mentally unfocused, and highly emotional. She experienced weight loss, hair loss, difficulty sleeping, suicidal thoughts and chest pain. This harm continued for at least two years. Complainant, who had anticipated being an Olympic runner, became dispassionate about competing. The Commission noted that management's behavior and actions were particularly egregious. It was well known by management that Complainant's Supervisor was harassing and assaulting her, yet no action was taken for some time, and management reported Complainant's allegations of harassment to other employees. The AJ's award was consistent with amounts awarded in similar cases, and was a reasonable amount to compensate Complainant for the harm caused by the Agency's actions. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720120027 (April 2, 2014).

$145,000 Awarded for Disability Discrimination and Reprisal. Following a hearing, an AJ found that the Agency discriminated against and harassed Complainant on the basis of disability and prior EEO activity, and ordered the Agency to, among other things pay Complainant $145,000 in proven non-pecuniary compensatory damages. The Agency appealed to the Commission, arguing that the damage award was excessive. The Commission, however, found substantial evidence in the record to support the AJ's award on non-pecuniary damages, including testimony from Complainant and his treating psychiatrist. Complainant credibly testified that after the Agency denied him reasonable accommodation, his mental state and depression worsened, he felt isolated, and experienced increased stress and mental anguish. Complainant's psychiatrist testified that these conditions affected Complainant's chemical balance, and, as a result, Complainant went out on stress leave and then retired. At the time of the hearing, Complainant was still unable to perform certain activities that he performed before the harassment commenced at his workplace. The Commission concurred with the AJ that the Agency did not make a good faith effort to accommodate Complainant. The Commission found that Complainant was not entitled to additional pecuniary damages. Complainant v. Dep't of the Navy, EEOC Appeal No. 0720120013 (March 12, 2014).

$100,000 Awarded for Disability Discrimination. In a prior decision, the Commission found that the Agency discriminated against Complainant when it failed to provide her with reasonable accommodation, and ordered the Agency, among other things, to investigate Complainant's claim for damages. The Agency conducted a supplemental investigation and awarded Complainant $50,000 in non-pecuniary damages. On appeal, the Commission found that the Agency's award was not sufficient in light of the length of time that the unlawful failure to accommodate continued and the extent of the harm caused. Complainant was denied reasonable accommodation for more than four years, and stated that the denial exacerbated her depression causing her to start taking antidepressants. The discrimination also resulted in anxiety, increased hair loss, sleep disturbances, and headaches. Complainant indicated that the symptoms required more frequent visits to her physician and therapist, and provided a letter from her physician to corroborate her assertions. The physician noted that Complainant had to be placed on additional medication due to the worsening of her medical conditions. Complainant did experience additional stress from other events which impacted her medical condition. The Commission stated, however, that the additional stress occurred only in the last six months of the period at issue, and both Complainant and her physician cited the Agency's failure to provide accommodation as the reason for the deterioration of Complainant's medical condition. Thus, the Commission concluded that the Agency's failure to accommodate Complainant caused greater harm to Complainant's well-being, and awarded her $100,000 in non-pecuniary compensatory damages. The Commission agreed with the Agency that Complainant failed to provide documentation to establish a nexus between her purported pecuniary losses and the discrimination. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120132400 (February 19, 2014).

$65,000 Awarded for Retaliation. The Agency found that Complainant was subjected to retaliation when her reassignment was canceled, and awarded her $40,000 in non-pecuniary compensatory damages. On appeal, the Commission found that the award was inadequate. While Complainant acknowledged that she experienced health problems prior to the discrimination, she provided documentation indicating that her health worsened after the cancellation of her reassignment. Complainant experienced anxiousness, depression, crying, headaches, insomnia, and high blood pressure. Complainant sought medical treatment and took medication. Complainant's psychiatrist noted that stressors at work negatively affected her blood pressure, and another physician treated Complainant on 25 occasions for job-related stress. Complainant's sister stated that Complainant suffered from severe depression due to the discrimination, and she stopped attending family functions and caring for her home. The Commission noted that a portion of Complainant's emotional harm related to her removal and other claims for which no discrimination was found. The Commission concluded that an award of $65,000 was warranted based upon the severity of the harm suffered and was consistent with awards made in similar cases. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113346 (March 21, 2014).

$5,000 Awarded for Sex Discrimination and Retaliation. An AJ found that the Agency discriminated against Complainant on the bases of sex and prior EEO activity when it gave him a "fully successful" performance rating and did not give him a time off award, but found no discrimination with regard to a work assignment or hostile work environment. As relief, the AJ awarded Complainant, among other things, $5,000 in non-pecuniary compensatory damages. On appeal, Complainant challenged only the award of damages. The Commission noted that Complainant was only entitled to damages resulting from the discriminatory performance appraisal and denial of an award. Complainant stated that he was upset about his appraisal because he felt that he performed as well as his co-workers and was the only employee who did not receive an award. Complainant also noted that he stopped working on weekends because he felt he was not appreciated. The Commission concluded that the Agency's award of $5,000 was adequate considering the severity of the harm suffered. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121222 (March 20, 2014).

$3,500 Awarded for Discriminatory Termination. An AJ granted Complainant's motion for sanctions and found that the Agency discriminated against Complainant when it terminated her from her position. The AJ awarded Complainant $3,500 in nonpecuniary, compensatory damages. On appeal, the Commission found that the AJ sufficiently considered the circumstances of the claim in comparison to similar claims and awarded a fair amount. The AJ took into account that: the termination caused Complainant stress, anxiety and depression; her finances were unstable; she was taking care of two special needs children; she gained weight, felt humiliated, and embarrassed; and she began to isolate herself. Although Complainant submitted affidavits from her husband, daughter, sister, and friend indicating her stress and anxiety, much of the stress described related to an alleged hostile work environment for which there was no finding of discrimination. Complainant was terminated from a temporary appointment and she did not document any financial difficulties or medical treatment for stress or depression. Upon appeal, no new or additional evidence was submitted that would have indicated a greater emotional harm than the AJ originally considered. Complainant v. Dep't of Commerce, EEOC Appeal No. 0120122955 (January 29, 2014).

Dismissals

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

Complaint Improperly Dismissed on Grounds Complainant Filed an Appeal with MSPB. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it terminated her from her probationary position. The Agency dismissed the complaint on the grounds that Complainant previously appealed the matter to the Merit Systems Protection Board (MSPB). On appeal, the Commission noted that while Complainant filed an appeal with the MSPB, it was subsequently dismissed for lack of jurisdiction. The Commission has held that when the MSPB has denied jurisdiction in such matters, the case is considered "non-mixed" and processed accordingly. Thus, the Agency should have held Complainant's EEO complaint in abeyance, and recommenced processing when the MSPB determined it did not have jurisdiction over the matter. The complaint was remanded for processing in accordance with the EEOC's regulations. Complainant v. Dep't of the Army, EEOC Appeal No. 0120140328 (March 5, 2014).

Complaint Improperly Dismissed. Complainant worked for the Agency as an Aviator Safety Inspector. After Complainant's death, his spouse, representing his estate, filed a formal EEO complaint alleging discriminatory harassment. It was undisputed that Complainant telephoned the Commission prior to his death, and documentary evidence showed that he discussed the alleged discriminatory harassment. Complainant also allegedly told his Manager that he was filing an EEO complaint. The Agency dismissed the complaint for failure to timely contact an EEO Counselor and failure to state a claim. On appeal, the Commission found that the dismissal was improper. While the Agency asserted that Complainant did not contact an EEO Counselor prior to his death, it was undisputed that Complainant contacted the Commission and took steps with the intention of filing an EEO complaint including advising his Manager that he was filing a complaint. Thus, the Commission found that Complainant contacted an official logically connected with the EEO process with the requisite intent to file a complaint. The Commission further stated that the Agency did not show that Complainant was aware of the EEO process, including the requirement to contact a Counselor. Although the Agency provided a statement that posters were displayed in Complainant's workplace containing a telephone number for initiating EEO counseling, Complainant had a vision impairment and the Commission could not find that he had constructive notice of how to initiate the EEO process. Complainant's estate promptly sought information on how to continue to pursue the claim. Thus, the Commission concluded that the 45-day limitation period was subject to equitable tolling in this case. In addition, Complainant's claim that the Agency harassed him when it denied him use of his computer, and subjected him to harsher terms and conditions stated a viable claim of age and disability discrimination. Complainant v. Dep't of Transp., EEOC Appeal No. 0120133394 (February 27, 2014).

Complaint Improperly Dismissed for Failure to Cooperate. Complainant contacted the Agency's EEO Office alleging that the Agency discriminated against him and subjected him to harassment. Complainant included a 16-page account describing the alleged hostile environment. The record contains various electronic mail messages between Complainant and the EEO Director regarding the identity of Complainant's representative. Complainant provided the EEO Director with additional information about his allegations, and submitted an EEO Counselor Contact Form. The record included a Notice of Final Interview and Right to File a Discrimination Complaint dated November 16, 2012. Complainant filed his formal complaint on November 28, 2012. The Agency sent Complainant a letter in January 2013, stating that he had not received counseling, and it would dismiss the complaint if it did not receive a response. Complainant sent an electronic mail message to the Agency declining counseling and indicating he had already filed his formal complaint. The Agency, nevertheless, dismissed the complaint for failure to participate in the administrative process. On appeal, the Commission found that the Agency's dismissal of the complaint was improper. It was undisputed that Complainant initiated the EEO process in September 2012, and the record showed that the 30-day period for providing counseling had expired by the time Complainant filed his formal complaint. Complainant provided a detailed account of his claim, and, therefore, the Commission found that further EEO counseling was not necessary. The matter was remanded for processing. Complainant v. Dep't of Def., EEOC Appeal No. 0120131538 (February 21, 2014).

Agency Improperly Fragmented Complaint. Complainant filed a formal EEO complaint alleging that the Agency subjected him to a discriminatory hostile work environment. In support of his allegation, Complainant stated that he was required to take a drug test; his second-level Supervisor threatened to write him up, verbally counseled him and issued him a proposed admonishment; his first-level Supervisor issued him a written counseling; and a co-worker made intimidating comments to him. The Agency dismissed the allegation concerning the drug test for failure to timely contact an EEO Counselor, and the remaining allegations for failure to state a claim. On appeal, the Commission found that the Agency improperly fragmented Complainant's claim of hostile work environment when it dismissed the issue concerning the drug test. A fair reading of Complainant's claim reflected that the issue was part of Complainant's overall claim that he was subjected to a hostile work environment. Since the issue of the drug test occurred in the 45 days prior to Complainant's EEO Counselor contact, the entire claim was timely. Further, the alleged incidents, when considered together and assumed to be true, were sufficient to state a claim of hostile or abusive work environment. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112181 (February 20, 2014).

Complaint Improperly Dismissed. Complainant contacted an EEO Counselor alleging that the Agency subjected her to discriminatory harassment. Complainant was issued a Notice of Right to File a Formal Complaint, and stated that she provided her non-attorney representative with the authority to sign her formal complaint believing that time was of the essence. The representative filed Complainant's formal complaint on August 5, 2013. Both the Notice and complaint were signed by the representative. The Agency dismissed the complaint for failure to state a claim, stating that as the signatures on the documents were those of the representative, Complainant played no part in filing the formal complaint. On appeal, the Commission noted that the Agency received the complaint in a timely manner and failed to provide Complainant the opportunity to sign her complaint. While the EEOC's regulations provide that a complaint must contain a signed statement from the person claiming to be aggrieved or that person's attorney, equitable considerations require that the Agency allow Complainant the opportunity to cure the defect in her complaint. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140234 (February 20, 2014); see also, Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140125 (February 27, 2014) (while Complainant's complaint was not signed by Complainant but by his representative, equitable considerations require that the Agency allow Complainant the opportunity to cure the defect in his formal complaint).

Complaint Improperly Dismissed. Complainant filed a formal complaint alleging that the Agency subjected her to harassment on the basis of sex. Complainant listed a series of ten events and also included a 17 page document listing more incidents. The Agency dismissed the complaint in its entirety. It dismissed five of the 10 listed events for untimely EEO Counselor contact, as well as seven events for failure to state a claim. On appeal, the Commission stated that Complainant alleged a single claim of harassment, and the most recent event occurred well within 45 days of her contact with the Counselor. Therefore, the Commission found that the Complainant raised her claim in a timely manner. The Commission also noted that the Agency was incorrect in treating each of the Complainant's events individually instead of treating them as a claim of harassment. It found when the Complainant's claims were viewed in the context of the Complainant's complaint of harassment, they stated a claim, and the Agency's dismissal of those claims was improper. Complainant v. Dep't of the Army, EEOC Appeal No. 0120132221 (February 11, 2014).

Dismissal of Complaint Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it terminated his employment. At the time of the events giving rise to the complaint, Complainant worked for a contracting company serving the Agency as a Senior Site Supervisor (Captain) performing security work. The Agency dismissed the Complainant for failure to initiate timely EEO counseling and failure to state a claim. The Agency stated that the Complainant did not initiate EEO counseling until a date beyond the 45 day time limit, and that he was not an employee of the Agency. On appeal, the Commission found that the Agency had not met its burden of obtaining sufficient information to support a reasoned determination pertaining to timeliness. Complainant stated that he initially attempted to file a claim with an EEOC field office just days after his termination, but was told that he could not file against the Agency. This suggested that Complainant attempted to file a private sector charge against the contractor. The Commission noted that it was unlikely that Complainant knew of the potential availability of the federal EEO process given his formal employment by the contracting company. The Commission also addressed the Agency's dismissal of Complainant's complaint for failure to state a claim. The Commission noted that there may be circumstances where a "joint employment" relationship may exist, where both the agency and the staffing firm would be joint employers. This determination is premised on the comparative amount and type of control that the staffing firm and Agency respectively maintain over the complainant's work. The Commission found no evidence that the Agency examined the pertinent factors pertaining to potential joint employment, and held that the Agency had impermissibly dismissed the idea that the Agency could be Complainant's employer because it did not provide him with pay and benefits. The Commission found insufficient information in the record to determine whether the Agency jointly employed Complainant. Thus, the Commission ordered the Agency to conduct an inquiry into whether the Agency had sufficient control over Complainant's position to be considered his joint employer. Complainant v. Dep't of Transp., EEOC Appeal No. 0120133049 (January 28, 2014).

Dismissal of Complaint Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of sex, age and reprisal. The reprisal basis stemmed from allegations that he was subjected to harassment for whisteblower activities pertaining to government waste and mismanagement. Complainant formally alleged harassment and denial of telework opportunities. The Agency dismissed the complaint for untimely EEO contact and failure to state a claim. On appeal, the Commission found that the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment by dismissing his formal complaint for failure to state a claim. The Commission noted that a fair reading of the complaint demonstrated a continuing series of related incidents of harassment over many months culminating in the denial of telework opportunities. The Commission found that these claims, when taken together, constituted a cognizable claim under EEOC regulations. The Commission also found that the Agency improperly dismissed the formal complaint on the basis of untimely EEO Counselor contact. Various incidents connected with Complainant's harassment claim occurred in the 45 days before his contact with the EEO Counselor. The Commission found that the entire harassment claim, collectively constituting all of the incidents of harassment, was actionable and timely filed. The Commission did, however, dismiss reprisal as a basis for an actionable claim since Complainant alleged only to have engaged in whistleblower activity. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120132856 (January 27, 2014).

Dismissal of Complaint on Grounds of Being Moot Improper. Complainant filed a formal EEO complaint alleging she was subjected to harassment and a hostile work environment on the bases of race, color, age, and reprisal for prior protected activity when multiple events occurred such as when: Complainant was spoken to in a hostile and confrontational manner by her first-line supervisor; Complainant was refused the opportunity to earn more than one credit hour; and Complainant was issued a Letter of Reprimand for Unacceptable Performance. Complainant requested the Letter be rescinded and her Supervisor reprimanded. The Agency dismissed the complaint on the grounds of mootness because Complainant's Supervisor was no longer in a position to supervise or discipline Complainant and the Letter of Reprimand was rescinded. On appeal, Complainant stated that her former Supervisor still continued to harass her causing her to suffer from health complications that were triggered by her stress. The Commission found that the harassment claim was not moot because the harassment still persisted. The Commission also noted that Complainant's statements that the stress affected her medical conditions and caused her suffering could reasonably be construed as a request for compensatory damages. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120133173 (January 27, 2014); see also, Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133005 (February 6, 2014) (Complainant's complaint alleging disability discrimination was improperly dismissed as being moot. In light of his statements regarding the ongoing nature of the alleged discrimination it could not be said with assurance that there was no reasonable expectation that the alleged violation would recur, and Complainant's assertions that the action caused him stress could, in essence, be considered as a request for compensatory damages).

Dismissal of Complaint Improper. Complainant filed a formal EEO complaint alleging that she was subjected to sexual harassment and a hostile work environment and subjected to retaliation for previous EEO activity. Complainant alleged numerous incidents of sexual harassment and hostile conduct carried out by her Acting Supervisor over several months, including inappropriate touching, invasions of her personal space, blocking of her movements and unwanted, unsolicited money and gifts. She also alleged that a co-worker made inappropriate inquiries regarding her personal life, inappropriately touched her and obstructed her viewing of a televised sporting event. The alleged inappropriate actions of the co-worker also continued for several months. The Agency dismissed her claims against the Acting Supervisor for failure to state a claim, stating that unless the conduct is severe, a single incident or a series of isolated inappropriate incidents will not state a claim of discriminatory harassment. The Agency also dismissed her claims against the co-worker for failure to timely contact an EEO Counselor. On appeal, the Commission found that the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment. The Commission found that the alleged actions of the Acting Supervisor, taken together, constituted the basis of an actionable claim by representing a continuing pattern of harassment. The Commission stated that the actions of the Acting Supervisor, taken together and occurring over the course of several months, rose to a level of severity that was commensurate with an actionable claim. Thus, the Commission held that the claims against the Acting Supervisor were improperly dismissed. In addition, the Commission found that the claims against the co-worker had been improperly dismissed for untimely EEO contact. The Commission noted that the actions of the co-worker represented a part of a single pattern of harassment/hostile work environment that had continued into the 45 day period before the filing of her complaint. Accordingly, the Commission reversed all components of the Agency's final decision and remanded the case to the Agency for further processing. Complainant v. Dep't of the Army, EEOC Appeal No. 0120130250 (January 24, 2014).

Dismissal of Complaint Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when he was terminated after a female co-worker accused him of harassment. The Agency dismissed the complaint for failure to state a claim reasoning that Complainant was not an employee of the Agency. The Agency also dismissed the complaint for failure to timely initiate EEO counseling. On appeal, the Commission applied the common law of agency test to determine whether Complainant was an agency employee versus a contractor. The Commission found that the Agency was the Complainant's joint employer because it, along with Complainant's subcontracting company, had control over Complainant's position. Factors such as Complainant working on Agency premises and using Agency equipment, Complainant receiving his assignments from Agency personnel, and the Agency controlling the details of Complainant's performance, all contributed to the finding that there was an employer-employee relationship between the Agency and the Complainant. The Commission also found that the Agency did not meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness. Complainant asserted that he contacted the EEO Counselor within 45 days of learning of the EEO process from the Agency's Office of Civil Rights. The Commission noted that, as a common law employee of the Agency, it was unlikely Complainant was aware that the federal EEO process was available to him or the time limits for initiating EEO contact. Complainant v. Dep't of State, EEOC Appeal No. 0120132731 (January 24, 2014).

Dismissal of Complaint for Filing a Grievance Improper. Complainant filed a formal complaint alleging that the Agency subjected her to discrimination when a supervisor created a hostile work environment by banging his head on a table, yelling at Complainant, hitting himself in the face, and threatening to take Complainant to court. Complainant noted in her formal complaint that she filed a negotiated grievance, and the Agency dismissed the complaint for that reason. The Commission found, however, that there was no indication that Complainant was able to specifically file a complaint of discrimination through the negotiated grievance procedure since the collective bargaining agreement was not in the record. The Agency's decision was therefore reversed and remanded. Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120130666 (January 23, 2014).

Complaint Properly Dismissed in Part. Complainant filed an appeal of the Agency's final decision concerning the dismissal of his claim of employment discrimination based on race, national origin, and sex. On May 30, 2013, Complainant contacted an EEO Counselor concerning three events of alleged discrimination: (1) a "Notification of Proposed Removal" on or around May 13, 2013; (2) a suspension from work, in lieu of removal, on or about January 18, 2013 through February 1, 2013; and (3) a "Notice of Proposed Removal" on or about October 1, 2012. The Agency dismissed claim (1) because the claim was based on a non-retaliatory proposed Agency action. Claims (2) and (3) were dismissed for failing to initiate contact with an EEO Counselor within 45 days of each event. Upon review the Commission found that claim (1) was incorrectly dismissed. Complainant asserted in his complaint that he was subjected to ongoing harassment. When a proposed agency action is combined with other actions to show a pattern of discrimination, the Agency may not dismiss a claim based on that proposed action. The Commission conversely found that claims (2) and (3) were properly dismissed for being untimely because the alleged discriminatory acts were separate, distinct, and not part of a larger pattern of discrimination. Though acts that are not raised within the 45-day limitation period may be included in a larger allegation of hostile work environment, individual "discrete discriminatory acts" are not included in this exception. Acts that can lead to separate claims of unlawful employment practices are to be analyzed individually. Untimely discrete acts, such as claims (2) and (3), can be used as background information, however, for adjudicating properly raised claims. Complainant v. Dep't of Def., EEOC Appeal No. 0120133093 (January 16, 2014).

Dismissal of Complaint for Failure to Cooperate Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when she was not selected for an Administrative Contracting Officer position or referred for a Contract Administrator position. The Agency asserted that, although Complainant had listed her race, sex, age and previous EEO complaints during the informal processing of her complaint, she failed to provide this information in her formal complaint. The Agency subsequently sent a letter of clarification requesting that Complainant send this information within 15 days. Noting that it had been 34 days since Complainant had received the letter of clarification and the requested material had not been received by the Agency, the Agency issued a final decision dismissing the complaint for failure to cooperate. The Commission found that the Agency erred in dismissing the complaint. The Commission noted that, while Complainant failed to respond to the clarification letter, she had already provided the requested information pertaining to her race, sex, age and prior EEO activity during the informal EEO counseling process. Therefore, the Agency was already in possession of the information it was seeking when the complaint was dismissed. Complainant v. Dep't of Def., EEOC Appeal No. 0120122269 (January 15, 2014).

Dismissal of Complaint for Filing a Grievance Proper. Complainant, an Aviation Safety Engineer covered under a collective bargaining agreement, claimed he had been subjected to discrimination when he was not selected for a promotion within the Agency. On February 13, 2013, Complainant first raised the matter under the grievance procedures of his collective bargaining agreement which allowed for discrimination claims to be addressed through a negotiated grievance process. He subsequently raised the same matter as an EEO complaint on April 22, 2013. The Agency dismissed his EEO complaint because Complainant had previously filed a grievance on the same matter. On appeal, the Commission found that the claims involved the same matter and affirmed the dismissal. Employees covered under a collective bargaining agreement who can address discrimination claims through a negotiated process may only seek relief through one of the two options, even if they do not know that choosing one option precludes them from utilizing the other. Claims raised through a grievance process do not need to be discrimination claims to preclude the complainant from later filing an EEO claim as long as it stems from the same matter. Simply raising the matter in either forum eliminates the use of the other. Complainant v. Dep't of Transp., EEOC Appeal No. 0120133004 (January 15, 2014).

Complaint Improperly Dismissed for Untimely Filing and Failure to State a Claim. Complainant filed a formal EEO complaint alleging that the Agency fired her husband in retaliation for her prior, successful EEO complaint against Agency management. Complainant's husband was issued a notice of removal dated June 12, 2012, and his employment was terminated effective April 12, 2013. The Agency dismissed the complaint for failure to state a claim and for untimely filing of the formal complaint. With regard to the matter of timeliness, the Agency sent Complainant a notice of right to file a formal complaint by mail with signature confirmation to her home address of record. The notice was signed for on June 12, 2013. The Agency also sent the notice to Complainant's attorney by first class mail without signature confirmation. As a result, there is no evidence to establish when the attorney received the notice. Complainant filed her formal complaint by letter postmarked June 28, 2013, or one day beyond the 15-day limitation period. The Commission stated that, when a Complainant has designated an attorney as representative, time frames for receipt of materials shall be computed from the time of receipt by the attorney. Since the Agency did not provide adequate evidence of receipt of the notice by Complainant's attorney, the complaint could not be dismissed on timeliness grounds. The Commission further found that the Agency incorrectly reasoned that Complainant did not have a viable retaliation claim since she did not suffer an adverse action, only her husband. The Commission has stated that it would be unlawful for an employer to retaliate against an employee because his or her spouse, who is also an employee, filed an EEO charge. Both spouses, in such circumstances, could bring retaliation claims. The Commission concluded that Complainant's allegation stated a viable retaliation claim, and remanded the matter to the Agency for further processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133058 (January 15, 2014).

Dismissal for Stating the Same Claim Was Proper. Complainant sought EEO counseling on May 6, 2012, when the Agency did not upgrade his position in March 2011, after his facility went through the Delivery Unit Optimization (DUO) process. He did not file a formal EEO complaint at that time. In February 2013, Complainant again sought EEO counseling. At this time, Complainant had been upgraded to EAS-20 level effective February 23, 2013. Complainant, however, alleged that he was subjected to age discrimination when management refused to retroactively apply the upgrade to March 2011. Complainant discovered evidence on February 27, 2013 that employees at two other facilities that went through the DUO process in March 2011 were automatically upgraded. Complainant filed the instant complaint on June 4, 2013. The Agency dismissed the complaint on the grounds that it addressed the same claim as that raised previously. The Commission stated that, to be dismissed as the "same claim," the present formal complaint and prior compliant must have involved identical matters. The Commission found that in both instances Complainant was asserting that he was entitled to an immediate upgrade following the March 2011 DUO process, and that the decision not to upgrade his position to an EAS-20 at that time was discriminatory. Although Complainant received evidence in 2013 that he may have been treated differently than employees at other facilities, the information did not fundamentally change the nature of the claim he was raising in both complaints. Complainant cannot reassert his prior EEO complaint simply because he now has collected further evidence in support of his claim, and the Agency's dismissal was proper. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132933 (January 14, 2014).

Findings on the Merits and Related Decisions

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

Under the Age Discrimination in Employment Act

Discriminatory Non-selection Found. Complainant (59), an Industrial Property Management Specialist alleged discrimination when he was not selected for one of two advertised Contract Price/Analyst positions. Following an investigation and in response to Complainant's request, the Agency issued a final decision in which it found no discrimination. On appeal, the Commission noted that Complainant was ineligible for one position because of its funding source. Complainant was qualified for the other position however, and appeared on the best-qualified list. He was not selected in favor of a substantially younger selectee (41). The Commission found that, although the selecting official (SO) stated that he did not know Complainant's age when making his selection, SO had reviewed Complainant's resume, from which it could be discerned that Complainant was above age 40. The Commission found that the Agency met its burden of production to articulate legitimate, nondiscriminatory reasons for its selection, that is that the Selectee had a strong resume in contract/pricing, proposal, and subcontractor experience; had Bachelor of Arts and Masters degrees; and had strong reference checks. Nevertheless, the Commission found that Complainant's qualifications and experience as related to the position at issue were plainly superior to those of the Selectee. The Commission noted that Complainant had more experience than the Selectee as a Contract Price/Cost Analyst for DCMA. Complainant also possessed an MBA, while the selectee had only a BA in business administration, and Complainant had a BA in accounting while the Selectee's Masters Degree was in Education. Complainant, unlike the selectee, had received many awards from the Agency, and Complainant had significantly more overall experience relevant to the position at issue, as an Auditor, Accountant, Financial Examiner, Contract Price/Analyst, and Industrial Property Management Specialist. The Selectee's experience was largely in the education field. Therefore, the Commission found that the Agency's assertions about Complainant's qualifications and non-selection were "suspiciously thin" and unworthy of belief. The Commission concluded that Complainant proved that the Agency discriminated against him on the basis of age when it did not select him for a Contract Price/Cost Analyst position. The Agency was ordered, among other things, to offer Complainant the position or a substantially equivalent position with appropriate back pay and benefits, and provide appropriate training for the responsible management official. Complainant v. Dep't of Def., EEOC Appeal No. 0120140428 (April 3, 2014).

Under the Rehabilitation Act

Discriminatory Harassment and Denial of Reasonable Accommodation Found. Complainant, a Claims Representative, was diagnosed with anxiety and attention deficit disorder (ADD), which substantially limited his ability to concentrate and think. In July 2007, Complainant informed the Agency that co-workers and supervisors had been harassing him since he began work in April 2007. Complainant claimed that the harassment aggravated his anxiety and ADD which affected his ability to learn and perform his job. Complainant also began to have issues with his assigned mentor. The Agency took no action to resolve the harassment or provide him with a more effective mentor, and, as a result, Complainant's job performance suffered. In February 2008, Complainant sent the Agency a request for reasonable accommodation to transfer to another office location. The Agency denied Complainant's reasonable accommodation request on the grounds that he was not an individual with a disability. Complainant was terminated effective July 22, 2008. Complainant filed a formal EEO complaint alleging that the Agency subjected him to disability discrimination and discriminatory hostile work environment. Following a hearing, the AJ found that Complainant was a qualified individual with a disability under the Rehabilitation Act, and that the Agency failed to provide him with a reasonable accommodation. The AJ further found that Complainant was subject to harassment based on his disability.

On appeal, the Commission rejected the Agency's argument that Complainant was not a qualified individual with a disability. The record showed that Complainant was substantially limited in his ability to think and concentrate due to his anxiety and ADD. The AJ stated that, "When Complainant has an anxiety attack…he forgets things he said, the names of people he knows, tasks he knows how to do…" The Commission also determined that Complainant was a qualified individual with a disability and would have been able to perform the essential functions of his position if the Agency granted his requests for more effective mentoring and stopped the harassing environment. Complainant's request for a transfer to another office location would have had the effect of removing him from the harassing environment and aided with managing his stress. The Agency did not provide a reasonable accommodation to Complainant that was effective, or which 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. The Commission stated that the AJ properly concluded that Complainant's VA disability rating did not preclude a finding that Complainant was qualified for the purposes of the Rehabilitation Act.

The Commission further found that Complainant was subjected to hostile work environment by his co-workers and Supervisor. Witnesses testified that Complainant was treated badly in general by the employees and supervisors. In addition, one employee was so uncomfortable with the way Complainant was treated that she complained to the Agency about it. The Commission determined that the atmosphere interfered with Complainant's ability to perform his functions, and ultimately resulted in his inability to work for the Agency. Thus, the Commission determined that Complainant was entitled to an award of $40,000 in nonpecuniary compensatory damages. In addition, the Agency was ordered, among other things, to offer Complainant reinstatement to his position at the Agency, or to a substantially equivalent position, and, upon acceptance, the Agency was to engage in the interactive process to determine what accommodations may be necessary and effective. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0720110030 (November 4, 2013).

Under Multiple Bases

Disability Discrimination and Retaliation Found. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability and in reprisal for prior protected EEO activity when she was subjected to a hostile work environment, and denied reasonable accommodation. Complainant initially requested a hearing but subsequently withdrew the request, after which time the Agency issued a final decision finding that while Complainant was an individual with a disability, she failed to establish that the Agency's actions constituted discrimination. On appeal, the Commission found that the Agency violated the Rehabilitation Act when it took over five months to provide Complainant's requested reasonable accommodation which was merely to allow her to write things down, let her walk around her car to check doors and windows, and let her call in if she is running late. The Commission stated that the requested accommodations were not complicated, required no extra equipment or expenditure, and involved actions Complainant had previously been allowed to do. Thus, the delay in providing Complainant with accommodation was unnecessary. The Commission also stated that there was no evidence that allowing Complainant to complete forms during office time would have caused an undue hardship for the Agency. The Commission did find that Complainant's Supervisor's request for medical documentation in support of her claim for accommodation, and the inclusion of the Supervisor at a meeting to discuss the accommodation did not violate the Rehabilitation Act.

With regard to the issue of harassment, Complainant established that the majority of the alleged incidents were connected to her disability because they involved the Supervisor prohibiting actions that were necessary to reduce Complainant's symptoms and the Supervisor's unwillingness to accommodate her condition. The Supervisor singled out Complainant; micromanaged her route and changed her patterns; and made up rules that only applied to Complainant. The Supervisor's actions caused heightened anxiety further exacerbating Complainant's condition. The Supervisor provided inconsistent statements in his affidavits about the incidents. The Commission concluded that the totality of the circumstances and evidence in the case showed that the Supervisor's actions were sufficient to constitute a hostile work environment based on Complainant's disability and prior EEO activity, and the Agency was liable for the harassment. Finally, the Commission held that Complainant was subjected to disparate treatment when it placed a GPS device on her vehicle without explanation. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training for the responsible management officials. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140129 (March 25, 2014).

Retaliation

Retaliation Found. Complainant filed a formal EEO complaint alleging, among other things that the Agency retaliated against him for prior EEO activity. Following the investigation, Complainant requested a final decision by the Agency. The Agency concluded that Complainant failed to establish that the Agency's actions constituted discrimination. On appeal, the Commission noted that management held a meeting with all members of Complainant's squad. During the meeting, the Special Agent in Charge (SAC) began with a profanity laced discussion of the problems within the squad and threatened that if the problems continued, he would shut down the squad. The SAC mentioned, among other things, that EEO complaints had been filed and that he wanted to work out issues within the squad before going outside. The Commission determined that the comments at the meeting constituted per se retaliation because they were likely to have a chilling effect and deter employees from exercising their rights. The Commission then determined that Complainant established that unlawful retaliation was the motivation for Complainant's Agency vehicle being taken from him. The Assistant Special Agent in Charge (ASAC) provided reasons for his actions which were inconsistent with other evidence in the record, and the incident occurred only one month after Complainant discussed the alleged harassment. Further, others testified that the action was purely "vindictive." Therefore, the Commission concluded that Complainant was subjected to unlawful retaliation. The Commission found no discrimination with regard to issues concerning a performance appraisal, quality step increase, and reassignment. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and conduct training for the responsible management officials. Complainant v. Dep't of Justice, EEOC Appeal No. 0120123111 (March 27, 2014).

Retaliation Found. Complainant filed a formal EEO complaint alleging, among other things, that the Agency subjected her to retaliatory harassment. At the time of the events giving rise to the formal complaint, Complainant worked as a Business Solutions Specialist. Complainant asserted that her Supervisor accused her of throwing a co-worker under the bus, engaging in fraud concerning a work project, holding up a customer connection, and carrying on an inappropriate relationship. Complainant alleged that these remarks were made in a sales meeting in front of the entire sales team one day following her Supervisor's meeting with the Union President concerning Complainant's pending EEO complaint. At the conclusion of the investigation, Complainant requested an administrative hearing. The request was denied on the grounds that Complainant failed to comply with the AJ's orders and failed to prosecute her case. The AJ remanded the matter to the Agency, and the Agency subsequently issued a final decision finding that the Complainant had failed to prove the alleged discrimination.

On appeal, the Commission noted that a Complainant may establish a prima facie case of reprisal by demonstrating that she engaged in a protected activity, the agency was aware of this protected activity, Complainant was subsequently subjected to adverse treatment by the agency and a sufficient nexus existed between the protected activity and the subsequent adverse treatment. The Commission found the close temporal proximity between the Supervisor's meeting with the Union President to discuss Complainant's protected activity and the subsequent alleged harassment compelling evidence of a nexus. Some of the Supervisor's comments to the sales team were related to Complainant's previous EEO complaint, and the Commission found that the Supervisor's actions seemed designed to discredit and embarrass Complainant. The Commission also found that the Supervisor's actions were likely designed to interfere with Complainant's EEO case, or to coerce her to withdraw the complaint. Thus, the Commission found, by a preponderance of the evidence, that Complainant was subjected to unlawful retaliation. The Commission affirmed the Agency's decision regarding a letter of warning as the issue had not been raised on appeal. The Agency was ordered, among other things, to conduct a supplemental investigation to determine if Complainant is entitled to compensatory damages, and to provide training to management regarding non-retaliation policies. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133008 (January 27, 2014).

Remedies

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

Front Pay Discussed. Complainant worked for an Agency contractor as an Electrician at an Agency facility. He filed a formal EEO complaint, and, following a hearing, an AJ found that the Agency retaliated against Complainant when it removed him from employment for participating in protected EEO activity. As relief, the AJ, among other things, ordered the Agency to pay Complainant front pay if the contractor refused its request to rehire Complainant. The Agency implemented the AJ's decision with the exception of the front pay award. On appeal, the Commission noted that while the Agency's contract with the contractor was set to expire at the end of the fiscal year in which Complainant was terminated, the Agency extended the contract with the same contractor for an additional 3 years. There was no evidence that the other Electricians did not continue to work beyond the end of the fiscal year. Thus, the Commission found that had Complainant not been terminated, her employment would have continued and she was entitled to front pay since she was available for work during that time. The Commission found, however, that an award of three years' front pay was appropriate given the extension of the contract for that period of time. The Commission also affirmed the AJ's award of $55,000 in compensatory damages. Complainant v. Dep't of the Navy, EEOC Appeal No. 0720100043 (April 4, 2014).

Agency Complied with Order to Reinstate Petitioner. Petitioner alleged that the Agency failed to fully comply with the Commission's previous order to offer Complainant reinstatement to a position that provided a reasonable accommodation, and which was at the level she would have occupied but for the discrimination and constructive discharge. A Petition for Enforcement was then filed after Petitioner declined the Agency's offer of reinstatement into a GS-5 position. Petitioner argued that the Order required her to be placed into a GS-7 position. According to the record, Complainant was offered reinstatement to the position of Program Support Assistant, GS-5 formerly Program Support Assistant GS-7. The record contained documentation that the change in classification of the position resulted from a "mandated classification consistency review" by the Office of Personnel Management. Thus, the Agency presented sufficient evidence to establish that Petitioner's previous position no longer existed at the time reinstatement was offered. The Commission found that the concession of grade and pay retention offered to Petitioner was the same concession offered to others affected by a change in the position's grade but who were not involved in the EEO process. Since the Commission's regulations require that the aggrieved individual be awarded a substantially equivalent position that is similar to the position the Petitioner originally applied for, such as the GS-5 position the Agency provided to petitioner, the Commission found that the Agency complied with this portion of the previous order. Complainant v. Dep't of Veterans Affairs, EEOC Petition No. 0420110006 (January 31, 2004).

Sanctions

Commission Sanctions Agency for Failing to Provide Complete Record. Complainant filed an appeal with the Commission from the Agency's final order implementing an AJ's decision finding that she was not denied reasonable accommodation. Upon receipt of the appeal, the Commission sent the Agency a letter requesting the complete record within 30 days. When the Agency failed to comply, the Commission issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed which requested all of the documents obtained prior of the referral of the matter to the AJ, including Complainant's deposition and all discovery. The Agency was notified that the failure to submit the requested documents or show good cause why it could not do so could result in sanctions. The Agency responded to the Notice, but did not submit Complainant's entire deposition. The Commission found that the Agency's repeated failure to submit the complete record made it impossible to determine whether the AJ appropriately issued a decision without a hearing, and warranted sanctions in the form of a remand for an administrative hearing. Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120123107 (March 18, 2014).

Dismissal of Hearing Request as a Sanction Proper. Complainant filed a formal complaint alleging that the Agency discriminated against her when it reassigned her to another unit and did not select her for the position of Administrative Services Specialist. Following an investigation, Complainant requested an administrative hearing. The AJ, however, dismissed the hearing request as a sanction for Complainant's failure to comply with her discovery orders. The Agency ultimately found that Complainant failed to prove discrimination. On appeal, the Commission found that the AJ's dismissal of the hearing request and remand of the claim was not an abuse of discretion and should be upheld. The Commission noted that AJs generally have broad authority over hearings, including the power to dismiss the hearing request based on a party's failure to comply with an order. In this case Complainant failed to adequately respond to a discovery order, despite being given ample opportunity, notice, and warning about the order and the consequences of not responding. While the Agency provided Complainant with an opportunity to supplement her answers and informed her of what information needed to be provided, Complainant's responses still failed to properly address the issues in question. Thus, the Commission found that the AJ did not abuse her discretion when she dismissed Complainant's hearing request. The Commission also affirmed the Agency's finding of no discrimination with regard to the underlying merits of the complaint. Complainant v. Dep't of Justice, EEOC Appeal No. 0120131086 (February 26, 2014).

AJ's Award of Attorney's Fees as Sanction Proper. Complainant filed a formal EEO complaint alleging discrimination when he was not selected for a position. After the investigation of the complaint had been completed, Complainant requested a hearing. The AJ issued an Acknowledgement and Order on May 17, 2010, informing the parties that noncompliance with her orders could result in sanctions. On July 27, the AJ issued a discovery order informing the parties that discovery must be complete by October 7. Complainant's attorney subsequently served the Agency with a Notice of Deposition to depose certain Agency witnesses, including the selectee (E1) and one of the panelists (E2) for the position at issue. The Agency's representative requested that the depositions be rescheduled and Complainant's attorney agreed. When Complainant's attorney appeared for the depositions, however, he was informed that E1 no longer worked for the Agency and would not appear. E1's temporary appointment at the Agency had expired three days before. In addition, Complainant's attorney was informed that E2 would be unable to appear in person on the day scheduled, as E2 was caring for a sick child. Complainant's attorney submitted a motion to compel discovery, for an extension of the discovery deadline and for sanctions due to the Agency's discovery abuses. The AJ subsequently issued an order sanctioning the Agency. The AJ ordered Complainant's attorney to submit a fee petition for the costs and fees incurred in resolving the dispute pertaining to the depositions, and ultimately awarded attorney's fees of $3,995. The Agency subsequently appealed from this order.

On appeal, the Commission noted that AJ's have the authority to issue sanctions during the administrative hearing process. The parties are required to abide by the orders and requests of the AJ to provide for, among other things, the attendance of witnesses. Noncompliance without good cause shown can result in sanctions. The Agency admitted that the AJ notified the parties that the failure to follow her orders could result in sanctions. Further, Complainant's attorney indicated that the Agency's representative did not inform him that E1's temporary employment was going to expire at the time the representative requested that the depositions be postponed. Based on the Agency's failure to properly provide witnesses for the scheduled depositions on multiple occasions, the Commission found the imposition of sanctions and the award of attorney's fees and costs to Complainant proper. The Commission agreed with the AJ that the attorney's request for 9.4 hours spent researching, preparing and filing the discovery motion, and preparing for and traveling to the depositions was reasonable. Therefore, the Commission ordered the Agency to pay Complainant the full $3,995 in attorney's fees. Complainant v. Dep't of Commerce, EEOC Appeal No. 0720140016 (February 7, 2014).

Dismissal of Hearing as a Sanction Was Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his physical disability. Following an investigation, Complainant requested an administrative hearing. On August 3, 2009, the AJ acknowledged Complainant's hearing request and informed both parties they were entitled to representation. The notice informed Complainant that if he was represented during the EEO counseling and investigation phases he must renew that designation for the Commission. The notice instructed the parties to complete and return the Designation of Representative form. Complainant was also required to certify within fifteen days, that he and his representative had read certain information. Complainant failed to certify that he and his representative read the information and complete the Designation of Representative within the specified time frame. On January 5, 2010, in a prehearing teleconference, the AJ asked that Complainant and his representative submit this information by January 12, 2010. Complainant did not submit the information by the requested deadline. The AJ found Complaint's explanation for non-compliance to be insufficient for good cause and remanded the case to the Agency for a decision on the record. The Agency issued a final decision finding no discrimination.

On appeal, the Commission found that Complainant's actions did not warrant the sanction imposed by the AJ in this case. The Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. The record showed that all interested parties had notice of the identity of Complainant's representative and his contact information by January 5, 2010, a week before the January 12, 2010 deadline. In addition, Complainant's representative participated in the prehearing teleconference and had been identified by name, address, and telephone number on the formal complaint filed by Complainant. Furthermore, although Complainant failed to certify that he and his representative had read the information posted on the Commission's website, it did not impede the taking of testimonial or documentary evidence relevant to or necessary for an adequate adjudication of the claim at hand. Thus, the Commission was not persuaded that Complainant's noncompliance impacted the integrity of the EEO process as neither the AJ nor Agency was denied information they did not already possess or otherwise needed. The Commission remanded the complaint for an administrative hearing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120101994 (January 14, 2014).

Settlement Agreements

Settlement Agreement Lacked Consideration. Complainant appealed an Agency finding that it was in compliance with the terms of a settlement agreement between the two parties. The agreement provided that Management would review the issue of health benefits premiums, Complainant and Management would treat each other professionally and have an open line of communication, Complainant would arrange an appointment with the Injury Compensation Office when necessary, and any routine paperwork would be forwarded by Management to Complainant. Complainant claimed that the Agency failed to comply with the agreement when a Manager made inaccurate statements to the Office of Workers' Compensation Programs (OWCP). On appeal the Commission voided the Agreement and remanded the claim for further proceedings because the Agreement lacked consideration. While generally the adequacy or fairness of the consideration in a settlement agreement is not at issue, settlement agreements that lack consideration are unenforceable. A settlement agreement lacks consideration when one of the parties incurs no legal detriment based on the agreement's obligations. In this case the agreement did not obligate the Agency beyond its already existing obligations owed to all employees under the OWCP process. Thus with no additional obligations, the Agreement lacked consideration and was unenforceable. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140143 (February 20, 2014).

No Breach of Settlement Agreement Found. Complainant appealed an Agency finding that it was in compliance with a settlement agreement between the two parties. The Agency was to offer Complainant a CBP Officer position. The Agency offered Complainant the position for a period of one year, with possible extensions for an additional two years. Complainant claimed that this time limitation was not in line with the spirit and intent of the agreement and the Agency's offer should have been a permanent position. On appeal, the Commission found the limitation did not violate the settlement agreement. In this case, there was nothing in the agreement that indicated intent by the parties to only provide or accept a permanent position. A Human Resources Specialist indicated that promotion rules for the position require that employees must have previously held a second-line position in order to be promoted non-competitively, and Complainant could apply and compete for a permanent CBP Officer position. If the intent of the parties was to place Complainant in a permanent position, it should have been indicated as such. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120140165 (February 19, 2014).

Agency Engaged in Bad Faith in Settlement Negotiations. Complainant appealed the Agency's final decision that it was in compliance with a settlement agreement between the two parties. Complainant originally filed an EEO claim for harassment based on sex. The Agency and Complainant entered into a settlement agreement specifying, among other things, that (1) the alleged discriminating Manager was to participate in an anti-harassment educational course and (2) certification of the Manager's course completion was to be sent to Complainant. According to the record, Complainant was terminated two weeks after entering into the agreement. The Commission found that the Manager had likely acted in bad faith during the settlement negotiations. It was likely that the Manager knew at the time of the negotiations that Complainant was going to be terminated because of his work performance. Consequently, Complainant was persuaded to withdraw his pending EEO complaint in exchange for actions that the Manager knew would never come to pass. As such the Commission voided the settlement agreement and remanded the matter to be consolidated with Complainant's subsequent complaint regarding his termination. Complainant v. Nat'l Endowment for the Arts, EEOC Appeal No. 0120133264 (February 4, 2014).

Agency Not in Breach of Settlement Agreement. At the time of the pertinent events giving rise to this complaint, Complainant was a Rural Letter Carrier at the Agency's postal facility in Glendale, Arizona. Complainant alleged unlawful discrimination and subsequently entered into a settlement agreement with the Agency which provided that Complainant would be returned to work in the position of Rural Letter Carrier at the Glendale facility, retaining the same seniority, salary and benefits (including leave accrual). In order to return to work, Complainant needed to provide return to work clearance from a medical provider. The parties also agreed that Complainant would receive a reasonable accommodation. If the accommodation did not work after reasonable efforts by the Complainant, Complainant was to promptly notify management, and management was to assign a Registered Nurse/Occupational Specialist to perform an on-site review of the accommodation with Complainant. Pursuant to the settlement agreement, the parties were to work together with the assigned RN/Occupational Specialist, the Disability Reasonable Accommodation Committee (DRAC) and Complainant's physician as needed to achieve an effective accommodation as quickly as possible. At Complainant's request, the Agency assigned a Nurse and Complainant met with the DRAC, but there was continuing disagreement over the effectiveness of the accommodation.

On appeal, the Commission noted that the ordinary rules of contract construction apply to settlement agreements, and that the actual intent of the parties to the agreement controls, not an unexpressed idea not found in the agreement itself. The Commission stated that the Agency had expressed a willingness to work with the Complainant's physician to determine the appropriate accommodation, but that there was nothing in the agreement requiring payment of the physician's fees by the Agency as Complainant had requested. The Commission found that the Agency engaged in a good faith effort to work with the Complainant to find a reasonable accommodation, to no avail. Therefore, the Commission concluded that the Agency was not in breach of the settlement agreement. Based on the totality of the record, the Commission determined that Complainant was actually asserting a new claim of discrimination based on denial of reasonable accommodation that the Agency should process as a separate claim under the Rehabilitation Act. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133122 (January 24, 2014).

No Breach of Settlement Found. Complainant filed an appeal with the Commission challenging the Agency's finding that it was in compliance with a settlement agreement. The settlement agreement provision in question stated that the Agency agreed "[t]o facilitate complainant's reassignment to a vacant GS-14 position within the Joint IED Defeat Organization (JIEDDO)." Under the agreement's reassignment process, the Agency was to "meet with complainant to review his professional qualifications and provide an initial assessment of those qualifications relative to up to three (3) vacant GS-14 positions." The meeting took place and Complainant discussed the three positions he was interested in. After consideration of his qualification and available positions, the Agency offered Complainant four positions, which included the three positions specified. Upon turning the offer down, the Complainant alleged that the Agency was in breach for not selecting him to be the Deputy Congressional Affairs Chief as he desired, claiming that it was his understanding from the settlement that he would not be denied any open position for which he was qualified. The Commission found that the Agency was in compliance with the settlement agreement and that the job selection process in question had been adhered to. There was no provision in the agreement that would have allowed Complainant to transfer to a position of his choosing. The plain language of the contract did not show any intent of the parties to allow Complainant to choose his new position, despite his claim otherwise. If such intent existed between the parties at the time of the settlement, it should have been included in the contract. Complainant v. Dep't of the Army, EEOC Appeal No. 0120132669 (January 16, 2014).

Breach of Settlement Found. On August 26, 2010, Complainant entered into a settlement agreement with the Agency resolving her EEO complaint. Pursuant to the terms of the agreement, the Agency was to transfer Complainant back to the Agency's Trenton facility and retain her seniority date of February 25, 1989. Complainant alleged that the Agency breached the settlement agreement when it changed her seniority date to August 2010. In the Agency's final decision, it modified the settlement agreement because the provision regarding Complainant's seniority date violated the collective bargaining agreement (CBA). The CBA provision stated that "a full time employee begins a new period of seniority when the change is from one facility to another at the employee's request." On September 2012, the Agency and the union reached a separate settlement agreement which stated that Complainant's transfer was voluntary. As a result, the Agency set aside Complainant's prior seniority date. On appeal, the Commission stated that while an Agency cannot enter into a settlement agreement that would violate a pre-existing CBA, the Agency carries the burden of ensuring that settlement agreements are in compliance with its CBA. The record in this case showed that the Agency did not properly review the August 2010 settlement agreement prior to its execution. The Commission emphasized the importance of having the Agency's Labor Relations personnel review agreements prior to execution in order to avoid conflicts with relevant CBAs, noting that the proper time for the Agency to have raised its concerns about the CBA was before the settlement agreement was executed. The record showed that both the Agency and the union were involved in the negotiation of the instant agreement, and Complainant's union representative signed the agreement in his union capacity. The Commission noted that the Agency executed a separate settlement agreement to which Complainant was not a party indicating that her transfer was not involuntary. However, Complainant's transfer appeared to have directly resulted from her initial involuntary transfer. Therefore, without more, the Commission could not conclusively state that Complainant's transfer to Trenton was "voluntary" based on the record, and there was no longer any basis for the Agency's claim that its compliance with the settlement agreement would violate the CBA. The Agency was ordered to implement the terms of the settlement agreement. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133172 (January 29, 2014).

No Breach of Settlement Found. In August, 2011, Complainant and the Agency entered into a settlement agreement which stated, among other things, that the Agency would hold Complainant's fifteen-day suspension in abeyance for one year from the effective date of the agreement, provided that Complainant complied with each of the terms and conditions of the agreement. Upon Complainant's successful completion of the one-year period, the Agency would not issue the fifteen-day suspension, and remove all mention or reference to the proposed suspension from its records. The agreement did not specify that any other disciplinary action would be held in abeyance or removed from Complainant's records. In June 2013, Complainant contacted the Agency alleging that it was in breach of the agreement when, on August 25, 2010, she was suspended for three days for improper conduct. On appeal, the Commission found that Complainant failed to show that the Agency breached the terms of the settlement agreement. The Commission has held that the intent of the parties as expressed in the contract, and not some unexpressed intention, controls the contract. The settlement agreement between Complainant and the Agency expressly concerned only the proposed fifteen-day suspension. If the parties intended the Agency to have obligations concerning the three-day suspension, that should have been expressly stated in the agreement. The agreement clearly indicated that Complainant gave up her right to pursue her EEO complaint concerning the three-day suspension in exchange for the Agency holding the subsequent fifteen-day suspension in abeyance. Complainant v. Dep't of Commerce, EEOC Appeal No. 0120133159 (January 16, 2014).

Stating a Claim

(In the following cases, the Commission found complainants' claims to be cognizable. -Ed.)

Complainant v. U.S Postal Serv., EEOC Appeal No. 0120140491 (March 18, 2014) (Complainant's claim that a co-worker made an offensive racial comment, when considered with her allegation that Agency managers took no action despite being aware that the same co-worker had a history of making inappropriate comments, stated a viable claim of discriminatory hostile work environment. The Agency erred in stating that an employee cannot file an EEO complaint concerning the alleged harassing actions of a co-worker who was not acting in a supervisory capacity. The Commission stated that an Agency is responsible for acts of co-worker harassment in the workplace where the Agency knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action).

Complainant v. Dep't of State, EEOC Appeal No. 0120140314 (March 7, 2014) (the Agency improperly dismissed Complainant's claim that he was discriminated against on the basis of age when he was removed from the Young Diplomats' Network e-mail group and from a coordinator position within the group. While the Agency asserted that the group was not an Agency sponsored activity, the employees who organized the group initially sent e-mails from their work accounts signed with their official Agency titles; letters and documents from the group were reviewed by Agency Officials; and the purpose of the group was to help improve networking among employees so they could obtain better assignments. Therefore, the Commission found that the group was a privilege of employment which Complainant was denied, allegedly based on her age).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140447 (March 6, 2014) (Complainant's claim that the Agency brought back a co-worker who had previously been removed from her facility following allegations that he exposed himself and sent sexually explicit messages stated a viable claim of discriminatory harassment. Looking at the events as a whole, Complainant's allegations were sufficient to state a claim of hostile work environment, and the Commission was not persuaded by the Agency's argument that Complainant did not allege that she was harmed by the co-worker's return).

Complainant v. Dep't of the Navy, EEOC Appeal No. 0120133389 (March 6, 2014) (Complainant's claim that Agency officials maintained memoranda pertaining to her alleged performance issues stated a viable claim of retaliation. Complainant asserted that, because of the memoranda, she was treated differently than similarly situated employees when she did not receive an award. The Commission found that the matter was reasonably likely to deter Complainant or others from engaging in protected EEO activity).

Complainant v. Dep't of Justice, EEOC Appeal No. 0120132862 (February 24, 2014) (the Agency erred in characterizing Complainant's claim of retaliation as one comment made by a co-worker and dismissing the matter for failure to state a claim. Complainant alleged that the individual was not a co-worker but served, at least part of the time, as an Acting Supervisor and a fair reading of Complainant's complaint shows that he alleged that the individual played a part in blocking his receipt of a quality step increase and reassigning him to a less desirable division. Therefore, Complainant raised sufficient allegations to state a viable claim that the individual engaged in a series of unlawful retaliatory actions).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131372 (February 20, 2014) (Complainant's allegation that her Supervisor used his personal phone to photograph Complainant's medical records stated a viable claim of discrimination under the Rehabilitation Act and/or the Genetic Information Nondiscrimination Act. While it was unclear from the record what type of medical documentation was allegedly compromised, the EEOC's regulations specifically provide for the confidentiality of medical records, and Complainant stated a claim of breach of confidentiality under the Rehabilitation Act's confidentiality requirement. Furthermore, under GINA, the Agency must maintain genetic information in separate files and treat the information as confidential).

Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120121829 (February 7, 2014) (the Agency failed to consider Complainant's broader claim of harassment when it dismissed his claim that his Supervisor placed a memorandum in his mid-year evaluation outlining concerns about his performance. A fair reading of Complainant's complaint presented a claim of harassment by his Supervisor that included assigning him additional responsibilities without adjusting completion time, taking away significant work projects, and denying him the opportunity to speak at conferences).

Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120133242 (February 6, 2014) (the Agency improperly dismissed Complainant's claim of disability discrimination for failure to state a claim arguing that, as an intern, Complainant lacked standing to proceed in the federal EEO complaint process. A volunteer may be deemed a protected employee if the volunteer either receives benefits which constitute "significant remuneration," or holds the volunteer job because it regularly leads to employment with the Agency. In this case, Complainant would have been eligible, upon completion of his internship, to a monetary stipend which the Commission found constituted significant remuneration. In addition, the record showed that the internship program was part of the process to obtain certification as a licensed social worker).

Complainant v. Dep't of Def., EEOC Appeal No. 0120133147 (February 3, 2014) (Complainant, a former temporary Agency employee, stated a viable claim of retaliation when she alleged that the Agency informed her current employer that she was "no longer acceptable" and "would not be used" for any Agency contracts. Complainant stated that she contacted an EEO Counselor prior to resigning from the Agency and raised allegations of discrimination and harassment. The Agency's request that the contractor for whom Complainant then worked remove her from her position at an Agency facility was akin to refusing to provide post-employment letters or offering negative job references on behalf of a former employee, actions which violate the anti-retaliation provisions of Title VII).

Complainant v. Dep't of Justice, EEOC Appeal No. 0120133303 (January 30, 2014) (Complainant's claim that management allowed Agency Counsel to review her personnel files stated a viable claim of retaliation. Complainant claimed that the decision to allow Counsel to review her files resulted from discriminatory animus and was in retaliation for her prior protected activity. Complainant also stated that management had allowed others to review her personnel files several times in the past).

Complainant v. Dep't of the Army, EEOC Appeal No. 0120120460 (January 29, 2014) (Complainant's claim that she was subjected to discriminatory harassment over a 12 month period was improperly dismissed for failure to state a claim. While Complainant worked as a "dual status" military technician, the Commission requires a case-by-case analysis to determine whether the alleged discriminatory action impacted Complainant in the capacity of federal civilian employee or uniformed member of the military. Therefore, the application of a per se rule denying jurisdiction over dual status employees was in error and the matter was remanded so that each allegedly harassing incident could be examined to determine whether the challenged conduct was military in nature).

Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122837 (January 28, 2014) (Complainant's claim that he was not considered for a promotion stated a viable claim of age discrimination. The Agency's assertions concerning Complainant's qualification or eligibility for the position go to the merits of the complaint and were irrelevant to the procedural issue of whether Complainant stated a viable claim).

Complainant v. Dep't of the Army, EEOC Appeal No. 0120131103 (March 18, 2014) (the Agency improperly dismissed Complainant's claim of discrimination on the grounds that she was not an employee of the Agency. The Agency had partial or complete control over the decision to hire Complainant, Complainant received her assignments via an Agency ticketing system, Agency employees guided Complainant on how to do her work in accordance with Agency standards, and Agency customers had input into the work. Complainant's appraisals were completed with input from the Agency, Complainant worked on Agency premises using Agency equipment, she worked for the Agency for almost three years, the Agency controlled her schedule, and although the contractor provided Complainant leave, she had to get Agency approval to use it. The contractor ultimately terminated Complainant after receiving complaints from the Agency. While the contractor paid Complainant and provided her with benefits, the Commission found that the Agency exercised sufficient control over Complainant's position to qualify as a joint employer); see also, Complainant v. Dep't of Energy, EEOC Appeal No. 0120130998 (January 24, 2014) (the Agency improperly dismissed Complainant's claim of discrimination for failure to state a claim arguing that he was not an employee of the Agency. Complainant's work required a high level of skill and was not part of the Agency's main mission, and the Agency did not provide him with pay or benefits. Nevertheless, Complainant's first line Agency Supervisor assigned him work and assisted him in developing certification and accreditation packages, Complainant worked on Agency premises using Agency office equipment, and served the Agency for approximately four years. Therefore, the Agency exercised sufficient control over Complainant's position to qualify as his employer for purposes of the EEO complaint process. Further, there was some dispute as to whether the Agency played a role in Complainant's termination which could only be resolved through an investigation of the merits of Complainant's claims); but see Complainant v. Dep't of the Army, EEOC Appeal No. 0120123311 (January 30, 2014) (Complainant's claim that he was terminated from his position with a government contractor was properly dismissed for failure to state a claim. While the Agency provided a suitable work location and certain office and protective equipment, the contractor assigned duties to Complainant, completed his performance evaluation, approved his leave, established his work schedule and dictated the terms and conditions of his employment relationship. While the Agency Commander initiated the process to have Complainant reassigned from his facility the contractor ultimately made the decision to terminate Complainant. Therefore, the Agency was not a joint employer of Complainant).

Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120130682 (January 17, 2014) (Complainant's complaint that a Supervisor refused to sign his request for official duty time to represent another employee in an EEO complaint, and another Supervisor threatened to charge him with being absent without leave when he returned stated a viable claim of retaliation since these actions could deter an employee from engaging in protected EEO activity).

Complainant v. Dep't of Transp., EEOC Appeal No. 0120133042 (January 16, 2014) (Complainant's allegation that he was subjected to a hostile work environment when his Supervisor verbally assaulted him in front of co-workers, a co-worker and the Supervisor made comments that the Supervisor was going "to get" Complainant for filing an Unsatisfactory Condition Report, trash was left in Complainant's work area, and Complainant's co-workers and the Supervisor made repeated references to terminations stated a viable claim of retaliation. Viewing the allegations of harassment together in the light most favorable to Complainant, he may be able to prove events which are sufficiently severe or pervasive to alter the conditions of his employment and prove that the Supervisor's actions were reasonably likely to deter him or others from engaging in protected EEO activity).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132115 (January 15, 2014) (the Agency improperly dismissed Complainant's complaint that her Supervisor retaliated against her when he reported her to the Inspector General. Complainant was not challenging the actions of the Inspector General's office, but was instead claiming that the Supervisor's actions in reporting her to the Inspector General were retaliatory. Therefore, Complainant alleged a viable claim of unlawful retaliation).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132807 (January 15, 2014) (Complainant's claim that the Agency denied him reasonable accommodation when it limited the number of handicapped parking spaces stated a viable claim of disability discrimination. Complainant conceded that there was ample regular parking at the facility, but asserted that the Agency reduced and moved the parking for persons with disabilities making it difficult to reach the facility).

Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120132859 (January 14, 2014) (Complainant's claim that an Agency attorney threatened him and blocked him from leaving the room when he arrived for a deposition stated a viable claim of reprisal. The Commission rejected the Agency's argument that its attorneys are immune from suit while acting in their representational capacity, stating that physical intimidation cannot be said to constitute conduct within the attorney's representational capacity. Complainant was alleging that the attorney engaged in physical conduct that was reasonably calculated to intimidate him in reprisal for his prior EEO activity).

(In the following cases, the Commission affirmed the Agency's determination that the Complainant failed to state a claim. -Ed.)

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140262 (March 25, 2014) (Complainant's claim that the Office of Personnel Management informed him that his annuity estimate provided by the Agency was being reduced failed to state a claim and was properly dismissed. The Agency had no authority to remedy the alleged discrimination as the issue related to the amount of Complainant's retirement which was determined by OPM. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding, and the proper forum for Complainant to challenge his retirement benefits was within OPM's adjudicatory process).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140237 (March 13, 2014) (the Agency properly dismissed Complainant's claim that her starting time was changed by 30 minutes. The Commission concurred with the Agency's determination that such a change did not reflect a harm or loss with respect to a term, condition or privilege of employment).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140240 (February 21, 2014) (Complainant's claim that an Agency official delayed submitting paperwork for his workers' compensation failed to state a viable claim under the EEOC's regulations. The Commission has held that, without more, claims concerning delays in submitting paperwork to OWCP, or submitting incomplete or faulty paperwork constitute a collateral attack on the OWCP process).

Complainant v. Nat'l Sec. Agency, EEOC Appeal No. 0120130732 (February 11, 2014) (the Agency properly dismissed Complainant's complaint which raised allegations concerning the conduct of the Office of Inspector General during an investigation. Complainant's attorney addressed the claims in the appropriate forum with the OIG and Complainant did not allege any matters for which relief would be available in the EEO process. Further, the record did not show that Complainant had any prior EEO activity when the OIG investigation was initiated and there was no evidence that the actions were related to Complainant's subsequent EEO complaint regarding employment references).

Complainant v. Dep't of Transp., EEOC Appeal No. 0120133204 (January 29, 2014) (Complainant's claim that the Union President removed his duties and assignments as Vice President of the union was properly dismissed for failure to state a claim. The subject claim addressed a union matter and not a present loss or harm to a term, condition or privilege of employment for which the Commission could provide a remedy. The proper forum for Complainant to seek his remedy was through the grievance process or with the Federal Labor Relations Authority and not the EEO complaint process).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133216 (January 28, 2014) (Complainant's claim that management did an observation on her route and did not provide her with feedback did not state a viable claim of discrimination. Complainant did not explain how she was harmed by the observation and there was no adverse action taken against her or other adverse consequences as a result. Further, an alleged isolated incident involving a street observation was not likely to deter people from engaging in protected activity).

Complainant v. Dep't of the Army, EEOC Appeal No. 0120132654 (January 24, 2014) (the Agency properly dismissed Complainant's claim that he was notified he would not be retained in his military position based upon a decision by the Qualitative Retention Board for failure to state a claim. Complainant was challenging a decision by a military board that determines the status of uniformed members and the Commission has no jurisdiction over military matters).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123314 (January 24, 2014) (Complainant's claim that he received a letter of indebtedness and was not given an opportunity to participate in mediation was properly dismissed. Challenges to an agency's actions under the Debt Collection Act are not within the scope of the EEO complaint process. In addition, agencies have discretion to decide whether to offer alternative dispute resolution in any given EEO case and such a decision cannot be made the subject of an EEO complaint); see also, Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140117 (February 11, 2014) (the proper forum for Complainant to challenge the appropriateness of the collection process is through the administrative process of the Debt Collection Act, and, therefore, her complaint concerning deductions from her paycheck related to a Letter of Demand was properly dismissed for failure to state a claim).

Complainant v. Dep't of the Navy, EEOC Appeal No. 0120133094 (January 16, 2014) (the Agency properly dismissed Complainant's complaint alleging that his pay was deducted to correct an error related to his claim with OWCP. The error in processing Complainant's OWCP claim resulted in him receiving OWCP benefits while also being paid by the Agency and the deduction was made to correct that error. Thus, the complaint constituted a collateral attack on the OWCP process).

Summary Judgment

Summary Judgment Proper. Complainant claimed that the Agency discriminated against her on the basis of sex and color when, after an alleged altercation with a co-worker while there was no supervisor on duty, Complainant's reporting time was changed from 4 a.m. to 5 a.m. in order to have a manager on site for Complainant's entire shift. The Agency ultimately investigated the matter, and Complainant requested a hearing. The AJ granted the Agency's Motion for a Decision without a Hearing, and found that the Agency had not discriminated against Complainant. On appeal, the Commission affirmed both the granting of the Motion for a Decision without a Hearing and the finding of no discrimination. A Decision without a Hearing is patterned after summary judgment from the Federal Rules of Civil Procedure and is only permitted when there is no genuine issue of material fact. In this case the Commission found there were no material facts in dispute which would have required a hearing in order to make credibility findings. In addition, Complainant did not object to the Agency's Motion for a Decision without a Hearing despite having sufficient notice of the proposal. The Agency articulated a legitimate, nondiscriminatory reason for changing the schedule, namely to align Complainant's schedule with that of an onsite manager, and Complainant was unable to show the schedule change was pretextual. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140535 (February 21, 2014).

Summary Judgment Proper. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race, sex, and disability when she was repeatedly denied overtime, and was not permitted to work over a holiday weekend. Following an investigation, an AJ issued a decision without a hearing finding no discrimination. On appeal, the Commission found that there were no genuine issues of material fact in dispute, the record was adequately developed, and Complainant was given a comprehensive statement of the facts and had the opportunity to engage in discovery. Therefore, the Commission concluded that the AJ's issuance of a decision without a hearing was appropriate. With regard to the merits of the allegations, the Commission found that the Agency articulated a legitimate, non-discriminatory reason for the denial of overtime that is no overtime was available within the Complainant's medical restrictions. Complainant failed to prove that the Agency's stated reason was a pretext for discrimination. Also, on the specific holiday weekend identified, Complainant called in and requested not to work. The Commission therefore affirmed the Agency's final order finding that the Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120112781 (January 30, 2014).

Summary Judgment Improper. Complainant filed a formal EEO complaint alleging that she was subjected to sexual harassment by three supervisors. Complainant provided a statement outlining the alleged harassment which included inappropriate comments, an invitation to dinner, and being kissed and touched by her third-level Supervisor (S3). Complainant stated that she told S3 to stop his behavior, and informed her first-level Supervisor (S1) of the conduct, but stated she was afraid to report S3's actions because of his position in the Agency. The Agency ultimately investigated the matter, and Complainant requested an administrative hearing. The AJ, however, issued a decision without a hearing finding that the claim was untimely and did not state a claim. On appeal, the Commission determined that the AJ erred in issuing a summary judgment decision, and improperly framed the issue as one of procedure rather than merit. The Commission had previously found that one of the actions raised by Complainant fell within the 45-day filing period and rendered Complainant's claim of harassment timely. In addition, the incidents alleged were sufficiently severe and pervasive as to create an abusive work environment. Complainant stated that the Agency failed to take prompt, corrective action once informed of her allegations. The Agency asserted that it was not responsible for S3's actions once he retired and inferred that Complainant's communication with S3 was consensual after that time. The Commission found that there were genuine issues of material fact as to whether Complainant was subjected to unwelcome conduct, and whether there was a basis for imputing liability to the Agency, and the record was not adequately developed with regard to those matters. Further, Complainant's credibility, as well as the credibility of the responsible management officials needed to be evaluated through live testimony at a hearing. Complainant v. Gen. Serv. Admin., EEOC Appeal No. 0120102083 (March 20, 2014).

Summary Judgment Not Proper. Complainant filed an EEO complaint alleging Title VII discrimination against him by the Agency on four occasions that each resulted in disciplinary action. After the Agency investigation, an AJ granted the Agency's motion for a decision without a hearing. The AJ found that there were nondiscriminatory reasons for the disciplinary actions and that Complainant failed to show the reasons were pretextual. On appeal, the Commission vacated the AJ's decision and remanded the matter for further proceedings citing a failure on the part of the AJ to sufficiently develop the record before granting the motion for a decision without a hearing. The Commission found that there was a genuine dispute of a material fact, namely whether or not Complainant was instructed to be back to the work site and off the clock at a specific time. This fact was considered to be material because if affected the legitimacy of the disciplinary action taken by the Agency against Complainant. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132663 (January 24, 2014).

Timeliness

Complainant Timely Contacted Counselor upon Learning of Alleged Discrimination. Complainant contacted an EEO Counselor on September 25, 2013, and subsequently filed a formal complaint alleging that the Agency discriminated against him when it denied him a retroactive temporary promotion for having served as the Acting Division Administrator. The Agency dismissed the complaint for failure to timely contact the EEO Counselor, stating that the alleged discrimination occurred between July 1, 2012, and May 31, 2013. On appeal, the Commission found no evidence that Complainant should have suspected or did suspect discrimination prior to September 12, 2013, when he learned that a younger employee who was not eligible for retirement was awarded a temporary promotion. Complainant's non-selection for the Division Administrator position by itself did not establish that he had a reasonable suspicion of discrimination prior to September 2013. Therefore, Complainant timely contacted the EEO Counselor within 45 days from when he reasonably suspected discrimination. Complainant v. Dep't of Transp., EEOC Appeal No. 0120140430 (March 20, 2014).

EEO Counselor Contact Timely. Complainant contacted an EEO Counselor on May 1, 2013, and subsequently filed a formal complaint alleging that the Agency retaliated against her when it did not select her for a position. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant learned she was not selected for the position on March 5, 2013. On appeal, the Commission found that Complainant contacted the Counselor within 45 days of learning of the alleged discrimination. Complainant stated that at the time she learned of her non-selection, she was told she did not have one year of time in grade. Complainant did not reasonably suspect discrimination until learning the identity of the selectee, and sought counseling one week later. Complainant v. Envtl. Prot. Agency, EEOC Appeal No. 0120140005 (February 12, 2014).

Extension of Time to Contact EEO Counselor Warranted. Complainant contacted an EEO Counselor on August 9, 2013, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it terminated her effective February 15, 2013, and subjected her to harassment prior to that time. The Agency dismissed the complaint for failure to timely contact the EEO Counselor, stating that Complainant failed to raise the allegations within 45 days. On appeal, the Commission found sufficient justification to extend the time period for initiating a complaint. Complainant stated that she had no actual or constructive knowledge of the limitation period for contacting a Counselor and did not know her rights. Further, the Agency provided no documentation reflecting Complainant's actual or constructive knowledge of the 45-day limitation period. Complainant v. Dep't of Def., EEOC Appeal No. 0120140134 (February 11, 2014).

Complaint Properly Dismissed for Failure to Timely Contact EEO Counselor. Complainant contacted an EEO Counselor on January 8, 2013, and subsequently filed a formal complaint alleging that the Agency discriminated against him when, on November 16, 2012, it reassigned him, suspended his security clearance, and conducted an Internal Personnel Inquiry, and on November 19, 2012, he was unable to access his office and forced to take leave. The Agency dismissed the complaint for failure to timely contact the EEO Counselor. On appeal, the Commission affirmed the Agency's dismissal. The record showed that Complainant became aware of the alleged discrimination on the dates the events occurred. Further, personnel actions such as the suspension of Complainant's security clearance become effective on the date of the action, and Complainant should have been aware of the alleged discrimination on November 16, 2012, not when he gathered "supporting facts" from a management official. Therefore, Complainant's contact with the EEO Counselor was beyond the 45-day limitation period. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120133219 (February 3, 2014).

Extension of Time to Contact EEO Counselor Warranted. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when she was removed from her Information Assistant position on April 20, 2012. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that she did not do so until February 12, 2013. On appeal, the Commission noted that Complainant contended that she was mentally and emotionally incapacitated during the relevant period so as to prevent her from timely initiating EEO contact. Complainant provided information showing that she was in a residential treatment facility during the period leading up to her removal, and submitted statements from her pastor, counselor and family members that she was experiencing severe depression. Complainant also provided documentation that beginning in August 2012, and for the next six months, she was in and out of treatment facilities. The Commission found that the Complainant provided sufficient documentation and statements indicating that she was mentally unable to handle her own affairs and required assistance from family members during the period in question. The Commission reversed the Agency's dismissal and the matter was remanded back to the Agency for further processing. Complainant v. Dep't of Agric., EEOC Appeal No. 0120133092 (January 17, 2014).

Formal Complaint Untimely. In a previous decision, the Commission reversed the Agency's dismissal of Complainant's complaint as untimely. The previous decision found that the Agency did not provide sufficient evidence of receipt of the Notice of Right to File by Complainant's attorney. The Commission subsequently granted the Agency's request for reconsideration and found that the dismissal had been proper. The Agency submitted a copy of the Track and Confirm page which showed the signature of Complainant's attorney and the P.O. Box, city, state and zip code to which the Notice was delivered on September 6, 2011. The address was that of Complainant's attorney and the Tracking number matched that listed on the Notice. Therefore, since the time for filing was to be computed based upon receipt of the Notice by Complainant's attorney, the complaint filed on September 22, 2011, was untimely. Complainant v. U.S. Postal Serv., EEOC Request No. 0520120451 (March 20, 2014).

Formal Complaint Deemed Timely. Complainant filed a formal complaint on September 6, 2013. The Agency dismissed the complaint as untimely, stating that a Notice of Right to File a Discrimination Complaint was delivered to Complainant's address of record on August 20, 2013. On appeal, the Commission found that the dismissal was improper. The record contained a Track and Confirm print-out indicating a delivery to a particular city and state without further details regarding the address. There was no evidence, other than the generalized reference, indicating that Complainant received the Notice on the date claimed by the Agency. Therefore, the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140438 (March 6, 2014).

Formal Complaint Deemed Timely. Complainant filed a formal EEO complaint on May 30, 2013, alleging that the Agency subjected her to a discriminatory hostile work environment. The Agency dismissed the complaint as untimely, stating that Complainant received the Notice of Right to File a Discrimination Complaint containing the 15-day deadline on April 25, 2013. On appeal, the Commission found that the record did not contain adequate documentation reflecting when Complainant received the Notice. While a United Parcel Service Delivery Notification print-out indicated generally that the Notice was placed "at the front door" of Complainant's address, there was no additional information concerning Complainant's receipt. The Commission stated that where there is an issue of timeliness, the Agency always bears the burden of obtaining sufficient information to support a reasoned determination. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140083 (February 11, 2014).

Formal Complaint Timely Filed. Complainant contacted an EEO Counselor and subsequently filed a formal complaint on July 23, 2013, alleging that the Agency subjected him to a discriminatory hostile work environment. The Agency dismissed the complaint as untimely, stating that Complainant received the notice of right to file a formal complaint on June 6, 2012. The Commission reversed the Agency's decision on appeal. The record showed that the June 2012 notice was issued after 30 days passed from the date Complainant initiated contact with the Counselor. Complainant was, however, given the option to wait until the EEO counseling process was complete before filing his complaint. The Agency did not send Complainant a post EEO counseling right to file a complaint letter with the 15-day deadline for filing, until July 11, 2013. Therefore, Complainant's complaint was timely. Complainant v. Gen. Serv. Admin., EEOC Appeal No. 0120140072 (February 7, 2014).

Dismissal of Complaint as Untimely Improper. Complainant filed a formal EEO complaint in July 2012, raising several allegations of discrimination. An AJ ultimately granted the Agency's motion to dismiss the complaint as untimely, finding that Complainant received the notice of right to file on July 7, 2012, but did not file his complaint until July 30, 2012. On appeal, the Commission noted that while the Agency asserted that it received the formal complaint on July 20, 2012, through "interagency mail," the formal complaint contained a metered date stamp of "7-23-12." The complaint also carried another date stamp of "RECEIVED JUL 30 2012." The Agency did not offer any explanation for the July 23 date, and the Commission presumed that this could have been the date on which the complaint was first received at the Agency while the second date was when it was received by the EEO office. The Commission stated that the date the complaint is received in the appropriate office does not determine the filing date. In addition, given the earlier date stamp, the Agency failed to show that the formal complaint was filed on July 30. Thus, the Agency failed to meet its burden with regard to the issue of timeliness. Complainant v. Dep't of Agric., EEOC Appeal No. 0120133336 (February 6, 2014).

Dismissal of Complaint as Untimely Was Proper. Complainant appealed the dismissal of his claim of unlawful employment discrimination as being untimely. Complainant was terminated from his employment and filed an appeal with the Merit Systems Protection Board ("MSPB"). On May 30, 2013, the receptionist for Complainant's Attorney signed for a certified mail package containing a notice of the right to file a formal EEO complaint. The complaint needed to be filed within the following 15 days. Complainant's Attorney, however, did not learn of the right to file a complaint until June 18, 2013 when he was informed by Complainant of such. The formal EEO complaint was not filed until June 26, 2013. The Agency dismissed the claim for untimely filing. Upon appeal, the dismissal was upheld because the Commission was not persuaded to set aside the untimely filing as "excusable neglect" on the part of the Attorney. The Commission found it problematic that the attorney had learned of the right to file on June 18 and subsequently waited until June 26 to submit the claim. Complainant v. Dep't of the Army, EEOC Appeal No. 0120133139 (January 17, 2014).

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. -Ed)

Failure to State a Claim: An Overview of the Law and Three Issues of Concern

By Joseph M. Kirchgessner
Introduction

A review of recent Commission decisions has shown that a large percentage of reversals stem from the dismissal of a complaint for failure to state a claim under 29 C.F.R. §1614.107(a)(1). This article will discuss the issue of dismissals for failure to state a claim and the law that drives it, as well as recent decisions in an effort to show how the law is interpreted by the Commission. Three issues of particular concern are the fragmentation of claims, the dismissal of retaliation claims, and dismissals which address the merits of the underlying claim.

Background

In order to state a claim under the Commission's regulations set forth at 29 C.F.R. § 1614, a complaint must allege employment discrimination on a basis set forth in Title VII of the Civil Rights Act of 1964, as amended1; the Age Discrimination in Employment Act of 1967 (ADEA), as amended2,; § 501 of the Rehabilitation Act of 1973, as amended3; the Equal Pay Act of 1963 (EPA), as amended4; or Title II of the Genetic Information Nondisclosure Act of 2008 (GINA).5 EEOC Regulation 29 C.F.R. § 1614.103(a) provides that complaints alleging retaliation prohibited by the foregoing statutes are also considered to be complaints of discrimination. Allegations that fail to state a claim are subject to dismissal.6

A claim must concern an employment policy or practice that affects the individual in his or her capacity as an employee or applicant for employment.7 An Agency must accept and process a complaint from any aggrieved employee or applicant who believes that s/he has been discriminated against by that Agency.8 The Commission defines an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy.9 In simple terms, in order to state a viable claim, a Complainant needs to allege discrimination on a basis cognizable under the anti-discrimination statutes in connection with a set of facts that assert a harm or loss related to his/her employment or application for employment.

The crucial element in a complaint of discrimination is the set of facts alleged, and not the Complainant's conclusions concerning the Agency's motivation.10 The Commission has held that a Complainant may allege discrimination on all applicable bases and may amend his or her complaint at any time to add or delete bases without changing the identity of the claim.11 The evidence in support of this claim will be developed during the investigation and does not need to be referenced in the complaint or during pre-complaint counseling.

Fragmentation

The fragmentation, or breaking up, of a Complainant's legal claim during EEO complaint processing often results from a failure to distinguish between the claim being raised and the evidence or factual information offered in support of that claim.12 Often, when an Agency identifies each piece of factual evidence (usually comprising a single incident) offered by the Complainant as a separate and distinct legal claim, it ignores the Complainant's real underlying claim of a pattern of ongoing discrimination.13 For Complainants, fragmented processing can compromise their ability to present an integrated and coherent claim.14

In determining whether a complaint states a claim, the proper inquiry is whether the conduct as alleged by Complainant would constitute an unlawful employment practice under the EEO statutes.15 Recent Commission decisions have shown that agencies often fail to distinguish between the factual allegations made by a Complainant in support of a legal claim and the legal claim itself, which results in the fragmentation of claims that involve a number of different allegations. Harassment or hostile work environment claims are particularly susceptible to fragmentation because there are often numerous incidents reported.

Agencies fragment harassment and hostile work environment claims when they dismiss each factual incident separately, reasoning that the incident was insignificant and could not have affected Complainant's work environment. This, however, fails to consider a claim of a persistent pattern of alleged harassing conduct, where each instance by itself may seem relatively trivial or isolated, but considered together, may allow Complainant to prove a hostile work environment.16 The Commission frequently considers both the language in the complaint itself, as well as the information in the related EEO counseling report, when reviewing the dismissal of a harassment claim. This is true even if Complainant did not clearly characterize his or her claim as one of harassment.

Recent Commission Decision Addressing Fragmentation

In Complainant v. Dep't of Veterans Affairs,17 Complainant brought a claim against the Agency alleging he was subjected to a hostile work environment on the bases of race, sex, and age. Complainant brought up multiple allegations to substantiate his claim. The Agency dismissed the complaint finding that the first allegation was a discrete act and was untimely. The other allegations were dismissed for failure to state a claim. On appeal, the Commission noted that often, when an Agency identifies each piece of factual evidence offered by the Complainant as a separate and distinct legal claim, it ignores the Complainant's real underlying claim of a pattern of ongoing discrimination. The Commission found that the Agency fragmented the hostile work environment claim when it improperly dismissed the first allegation. From there, the Commission looked at all of the allegations together and found that Complainant had stated a claim for a hostile work environment. The Agency decision was reversed.

In Complainant v. Gen. Serv. Admin.,18 Complainant filed a formal complaint alleging discrimination on the bases of race, sex, and color. To prove her claim, Complainant brought forth a series of allegations. The Agency dismissed her first allegation for failure to state a claim and dismissed her other 5 allegations for failure to timely raise the matters before an EEO Counselor. On appeal, the Commission found that Complainant had sufficiently stated a claim. The Commission pointed out that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complaint cannot prove a set of facts in support of the claim which would entitle the Complainant to relief. Lastly, the Commission held that the Agency improperly fragmented the formal complaint into individual allegations. The allegations were viewed to reveal ongoing harassment. The Commission noted that a complaint alleging a hostile work environment will not be time barred if all acts constituting a claim are part of the same unlawful practice and at least one act falls within the filing period. Therefore, the Commission reversed the Agency decision.

Retaliation

The anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions.19 To state a viable claim of retaliation, a Complainant must allege that due to her protected activity ("opposition" to discrimination or "participation" in EEO activity) s/he or a close associate: 1) was subjected to an action that a reasonable employee would have found materially adverse, meaning that it could dissuade a reasonable employee from making or supporting a charge of discrimination,20 and 2) that there was a causal link between the protected activity and the adverse action. The Commission has long held that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation.21 Former employees have standing to bring a claim for actions that occurred post-employment and are alleged to be in retaliation for protected activity engaged in while an employee.22 While trivial harms may not satisfy the initial prong of this inquiry, the significance of the act of alleged retaliation will often depend upon the particular circumstances.23

Recent Retaliation Cases

In Complainant v. Dep't of the Navy,24 Complainant filed a formal complaint of discrimination on the bases of reprisal for prior EEO activity when she learned that her direct supervisor maintained memoranda for the record containing allegedly slanderous and defamatory information concerning Complainant's performance and conduct. The Agency dismissed the complaint for failure to state a claim, noting that Complainant failed to demonstrate that she was an aggrieved employee. On review, the Commission held that Complainant had established a viable claim of reprisal. The Commission noted that Complainant was treated differently than similarly situated employees because of the existence of the allegedly slanderous memoranda. The Commission noted that adverse actions need not qualify as ultimate employment actions or materially affect the terms and conditions of employment to constitute retaliation. The Commission held that the action taken by the Agency was reasonably likely to deter Complainant or others from engaging in protected activity. Therefore, the Commission reversed the Agency decision.

In Complainant v. U.S Postal Serv.,25 Complainant filed a formal complaint of discrimination on the bases of race and age when he was told he had to pass a 'scheme test' as a condition of employment; when he was issued a letter of warning for failure to follow instructions; and when he was a successful bidder on a position that included a requirement that he pass a scheme test. The Agency dismissed the complaint for failure to state a claim due to there being no adverse action because the warning was rescinded as a result of a grievance settlement. The Commission affirmed the ruling on the letter of warning being a moot issue, but reversed the first and third issue. Complainant asserted that scheme training was not normally required for the position, and the Commission found that Complainant was alleging that the Agency's actions were retaliatory because he had prior EEO complaints. It was noted that the Agency erred in focusing on whether Complainant was an "aggrieved" employee. Instead, the Agency should have addressed whether Complainant was subjected to an action which a reasonable employee would have found materially adverse and that it could dissuade a reasonable employee from making or supporting a charge of discrimination. The Commission found that the allegations were sufficient to state a viable claim of retaliatory harassment and should not have been dismissed.

Merits-Based Procedural Decisions

The Commission will commonly reverse a decision to dismiss a complaint for failure to state a claim when the decision addresses the merits of that claim.26 In determining whether an employee is aggrieved, the merits of the Complaint's allegations are irrelevant to whether Complainant has articulated a justiciable complaint.27 The Commission has reversed decisions which use information gathered from management witnesses during the EEO counselor's limited inquiry into Complainant's claim to support the dismissal for failure to state a claim.28

It is important to remember that the limited inquiry conducted by an EEO counselor is not the equivalent of an investigation under 29 C.F.R. §1614.108. Moreover, following an investigation, a Complainant has the right to request a hearing.29 These rights, designed to fully develop the evidence of record prior to adjudication on the merits, cannot be circumvented at the procedural dismissal stage. Complainants should be afforded the opportunity through the investigative process to develop their legal claim, including the elements necessary to establish a prima facie case of discrimination.

Recent Commission Decisions

In Complainant v. U.S. Postal Serv.,30 Complainant filed a formal complaint of discrimination on the basis of age when she was informed she was not promoted to a full time position when two other employees retired. Complainant stated that she was told a nearby facility shut down and the Agency wanted to let workers from that facility apply and keep their seniority in accordance with the collective bargaining agreement. The Agency dismissed the complaint for failure to state a claim. The Commission found that the Agency addressed the merits of the complaint without a proper investigation. The Agency's articulated reason for the action in dispute- that Complainant was not converted to a full time position because a nearby facility closed and those full time clerks were able to bid on the vacancies- went to the merits of the complaint and was irrelevant to the procedural issue of whether she has a justiciable claim under the ADEA. Therefore, the Commission reversed the Agency's decision.

In Complainant v. Dep't of Commerce,31 Complainant filed a formal complaint of discrimination on the bases of sexual harassment when, after having sexual relations with a coworker aboard a ship in which she spent a month at a time living with her coworkers, she was subjected to hazing and rumors about her and the coworker due to the coworker providing details to others about their encounter. When she contacted the EEO counselor, she alleged sexual harassment and sexual assault; emotional and physical abuse; and that she was sexually bullied. The Agency dismissed the complaint for failure to state a claim, reasoning that many of the events raised occurred off of the ship and during non-work hours, and that Complainant did not inform management about the alleged sexual harassment until the coworker rejected her invitation to a concert. The Commission found that the claim was improperly dismissed. The Commission reasoned that the Agency addressed the merits of the complaint without a proper investigation. The Agency's argument that Complainant cannot prove sexual harassment because she engaged in voluntary sexual relations and only filed a complaint after the coworker denied her further advances goes to the merits of the complaint, and the Commission found this was irrelevant to the procedural issue of whether the stated a justiciable claim under Title VII. Therefore, the Agency decision was reversed.

Conclusion

The key lessons that may be taken from this article to avoid a reversal from the Commission are threefold. First, all allegations in a claim should be closely examined to avoid fragmentation. In addition, to state a claim of reprisal, a Complainant needs only to show that a reasonable employee would find the action to be materially adverse and be dissuaded from making or supporting a charge of discrimination- an ultimate employment action is not required. Finally, the merits of a complaint should not be considered when dismissing the claim on procedural grounds. Following these guidelines will ensure that more claims are adjudicated in line with recent Commission decisions.


Footnotes

1 42 U.S.C. § 2000e et seq. (race, color, sex, religion, and national origin).

2 29 U.S.C. § 621 et seq. (aggrieved individual at least 40 years of age).

3 29 U.S.C. § 791 et seq. (disability).

4 29 U.S.C. § 206(d) (1978) (sex-based wage discrimination)

5 42 U.S.C. § 2000ff, et seq.

6 29 C.F.R. § 1614.107(a)(1).

7 VanFonda v. Dep't of the Navy, EEOC Doc 01982954 (March 8, 1999).

8 Guerra v. U.S. Postal Serv., EEOC Appeal No. 01873527 (May 16, 1988).

9 Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).

10 Mahmood v. Dep't of Def., EEOC Appeal No. 01941890 (May 2, 1994); Rawls v. U.S. Postal Serv., EEOC Appeal No. 0120130458 (April 5, 2013).

11 Dragos v. U.S. Postal Serv., EEOC Request No. 05940563 (January 19, 1995); accord, Sanchez v. Standard Brands, Inc., 431 F. 2d 455 (5th Cir. 1970).

12 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, § HI (Nov. 9, 1999).

13 Id.

14 Id.

15 Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

16 See, e.g., Chewning v. U.S. Postal Serv., EEOC Appeal No. 0120122428 (September 18, 2012); Smith v. Dep't of the Navy, EEOC Appeal No. 0120121807 (July 13, 2012); Voeller v. Dep't of the Army, EEOC Appeal No. 0120121472 (June 12, 2012), request for reconsideration denied, EEOC Request No. 0520120569 (November 7, 2013).

17 EEOC Appeal No. 0120112181 (February 20 2014).

18 EEOC Appeal No. 0120140107, (February 11, 2014).

19 Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006).

20 Id.

21 Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (November 4, 1999).

22 See Maclin v. U.S. Postal Serv., EEOC Appeal No. 0120070788 (March 29, 2007) (Complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the Agency); Doyle v. Dep't of Justice, EEOC Request No. 0520070207 (October 12, 2007) (Complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a post-retirement contract position with the Agency). See also, Johnson v. U.S. Postal Serv., EEOC Appeal No. 0120110529 (March 11, 2011); Doster v. Dep't of the Army, EEOC Appeal No. 0120103411 (December 14, 2010); Complainant v. Dep't of Def., EEOC Appeal No. 0120133147 (February 3, 2014).

23 See also EEOC Compliance Manual, Section 8, "Retaliation," No. 915.003 (May 20, 1998) at 8-15 (any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity states a claim); Terrell v. Dep't of Homeland Sec., EEOC Appeal No. 0120112370 (January 19, 2012); Taylor v. U.S. Postal Serv., EEOC Appeal No. 0120112489 (January 27, 2012); Simmons v. Dep't of the Army, EEOC Appeal No. 0120111275 (December 9, 2011).

24 EEOC Appeal No. 0120133389 (March 6 2014).

25 EEOC Appeal No. 0120133365 (February 21, 2014).

26 See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (August 12, 1993).

27 Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (August 15, 1991).

28 See, e.g., Ray v. U.S. Postal Serv., EEOC Appeal No. 0120083541 (July 26, 2012) (Agency erred in dismissing a complaint alleging a discriminatory shift change reasoning that the settlement of a union grievance required rotating assignments); Chioffe v. U.S. Postal Serv., EEOC Appeal No. 0120112012 (July 19, 2011) (Agency improperly based its dismissal of Complainant's constructive discharge claim on its determination that he voluntarily retired); Smyth v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121729 (July 25, 2012), request for reconsideration denied, EEOC Request No. 0520120564 (December 7, 2012) (Agency improperly dismissed Complainant's claim that she was paid less than younger employees based on its determination that her locality pay was set by OPM rules over which the Agency had no discretion).

29 29 C.F.R. 1614.108(h).

30 EEOC Appeal No. 0120133381 (February 21, 2014).

31 EEOC Appeal No. 0120131858 (September 25, 2013).