EEOC Seal

U.S. Equal Employment Opportunity Commission



 Digest Seal The DIGEST Of Equal Employment Opportunity Law


Volume XXV, No. 3

Office of Federal Operations

Summer 2014


Inside

Selected EEOC Decisions on:

Attorney's Fees

Class Complaints

Compensatory Damages

Dismissals

Findings on the Merits

Remedies

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness

Article:
The Law of Harassment: Assisting Agencies in Developing Effective Anti-Harassment Policies


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, Nicole Davis, Robyn Dupont, Alieen Hwang, Stephanie Ross, 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

Award of Attorney's Fees Modified. Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity. Complainant alleged that he was subjected to a hostile work environment after he participated in the Agency's internal investigation of a co-worker's sexual harassment allegations, and that management forced him to resign after he participated in the investigation. Following a hearing, the Administrative Judge (AJ) found that the Agency subjected the Complainant to retaliation when it forced him to resign in lieu of termination. The AJ also concluded that Complainant was not subjected to a hostile work environment. The AJ instructed Complainant to submit a petition for attorney's fees. Complainant requested $189,762.20 in attorney's fees and $12,811.66 in costs. The AJ ultimately awarded Complainant's attorneys $45,000.00 in combined fees and costs, which the Agency adopted in its final decision.

On appeal, the Commission found that the Complainant was entitled to $103,476.51 in fees and $12,811.66 in costs. The Commission found that the AJ erred in determining the market rate for Complainant's attorney and improperly placed the burden on the Complainant instead of the Agency to show that the decision to retain out-of-town counsel was unreasonable. In this case, the Agency did not assert that Complainant's attorneys' hourly rates were not reasonable. Further, although, only one of Complainant's claims was successful, the Commission concluded that there should be no reduction in fees for the failed claim because it was intertwined with the successful claim. In this case, Complainant's retaliatory harassment claim encompassed his claim of retaliation and the facts of the two claims were intertwined. The Commission did concur with the AJ's finding that Complainant's claim was separate and distinct from the claims of two other employees that were consolidated with Complainant's claim for hearing. Therefore, the Commission found that fees for work related to those employees' claims should be excluded from the award. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120111028 (May 15, 2014).

Class Complaints

Class Certification Granted. Complainant (Class Agent) was an applicant for the Foreign Service who underwent the Agency's medical examination to determine if she could receive a Class 1 "Worldwide Availability" determination. The Agency defined "Worldwide Availability" as being medically qualified to work at one of more than 200 posts around the world including those with limited medical facilities. If candidates did not receive Class 1 classification they were forced to seek a waiver from a Foreign Service hiring agency directly. Class Agent was initially disqualified for medical reasons, but later applied for and received a waiver from the Agency. She was ultimately selected for a position in July 2008. Class Agent filed an individual complaint in January 2007, and filed a Motion for Class Certification on August 21, 2008, to convert her original complaint to a class complaint.

Class Agent alleged that the Agency's Worldwide Availability policy, as administered, disparately treated and disparately impacted qualified individuals with disabilities. She also claimed that the policy disparately impacted individuals over 40. The AJ denied the class claim of age discrimination but certified a class of applicants for career Foreign Service employment with a disability who "have been or will be" denied employment from October 7, 2006 until the present because the Agency's Office of Medical Services denied them Class 1 Worldwide Availability clearance. The Agency issued a final order which rejected the AJ's finding that the class should be certified.

On appeal, the Commission reversed the Agency's final order and remanded the matter for further processing. The Commission found that the AJ's decision regarding class certification based on age was correct due to lack of anecdotal or statistical evidence that the policy discriminated against applicants on that basis. The Commission also agreed with the AJ that Class Agent satisfied the requirement for class certification, although the Commission modified the class definition for clarity. The Commission found that Class Agent was an individual with a disability. In addition, Class Agent met the requirements of commonality and typicality. She alleged that the Worldwide Availability policy denied benefits of employment to those with disabilities without regard to accommodation, and without any individualized assessment into the individual's specific condition. The Commission rejected the Agency's assertion that the waiver process defeated commonality, stating that many did not take advantage of the process and were actually advised that waivers were rarely granted. The Commission also rejected the Agency's argument that the class should not be certified if all members had different disabilities. The Commission noted that other applicants with disabilities would have the same interest and suffer the same injury as Class Agent. Class Agent identified approximately 50 individuals denied employment because they were not granted a Class 1 Worldwide Availability clearance during the specified period a number which the Commission noted could grow each year the Agency continues to employ the policy in question. Thus, Class Agent met the requirement of numerosity. Finally, the class was adequately represented by attorneys with sufficient legal training and experience. Complainant v. Dep't of State, EEOC Appeal No. 0720110007 (June 6, 2014).

Denial of Class Certification: The Commission affirmed the Agency's final order denying class certification for Complainant, the class agent, who brought an EEO claim alleging, among other things, that female African-American Program Support Assistants at a specific Agency facility were discriminated against when male employees were hired or promoted outside of the competitive hiring process. The Commission found that Complainant established the elements of commonality and typicality. The Commission noted, however, that Complainant must also meet the requirements to establish numerosity and adequacy of representation. With regard to numerosity, the Commission found that the proposed class of five was unlikely to grow based on facility size and had already decreased from the original filing of eight. Although there is no specific number requirement, the Commission cited past claims where numerosity was not met when the proposed class encompassed 20 or more employees working in the same facility. Complainant, as class agent, presented no evidence showing that it would be impractical to consolidate the individual complaints. With regard to adequacy of representation, the Commission stated that Complainant lacked the experience, time and resources to fairly and adequately represent herself and fellow proposed class members. Complainant filed her original complaint and her appeal pro se and she was not an attorney or adequately trained in the complexities of EEO class actions to fairly represent other individuals. The Agency was ordered to process Complainant's claim and any other claims associated with it as individual complaints of discrimination. Complainant v. Dep't of Housing & Urban Dev., EEOC Appeal No. 0120113119 (June 6, 2014).

Class Certification Denied. Complainant worked as a Transitional Employee (TE) Carrier, and filed a formal EEO complaint alleging that the Agency subjected him to a hostile work environment which included denying him an interview, refusing to hire him, denying him training, orientation and pay, and terminating him from employment. Complainant indicated that he wished to file a class action, and the matter was forwarded to an AJ who ultimately issued a decision denying class certification. The AJ determined that Complainant did not present any evidence of a policy or practice that affected the class members, nor did he allege that he was subjected to the same treatment as the class members. Further, the AJ found that a class of four individuals was not sufficiently large to constitute a class. On appeal, the Commission affirmed the AJ's decision. The Commission found that Complainant, by identifying only four members of the class, failed to meet the numerosity requirement. In addition, although Complainant provided a statement to the AJ, he failed to articulate any facts related to the selections, work locations, or supervisors in order to show that there was a common policy or practice of discrimination. Except for a general claim that the Agency's decisions, policies and practices were adverse to Hispanics and those who filed EEO complaints, Complainant did not identify any particular policies or practices that had the effect of discriminating against the class as a whole. The Commission has previously held that a claim of "across the board" discrimination without evidence of some common policy or practice does not support class certification. Therefore, Complainant failed to establish the criteria of commonality and typicality. Finally, Complainant was not an attorney and did not identify an attorney or law firm that would assist him, and, as such, did not show that the class was adequately represented. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120091759 (June 2, 2014); see also Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120091961 (June 2, 2014) (the AJ properly denied class certification where Complainant identified only four members of the class, and made only a general claim that the Agency's decisions, policies and practices were adverse to Hispanics and those who filed EEO complaints. Complainant did not identify any particular policies or practices that had the effect of discriminating against the class as a whole or identify any facts common to or typical of the four members of the class).

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.)

$120,000 Awarded for National Origin Discrimination and Reprisal. In a prior decision, the Commission found that the Agency discriminated against Complainant on the basis of national origin and retaliated against him when it involuntarily reassigned him and denied him higher-level pay. An AJ subsequently held a hearing on the issue of damages and awarded Complainant, among other things, $210,000 in non-pecuniary compensatory damages. On appeal, the Commission concurred with the AJ's finding that Complainant provided substantial evidence that the Agency's discriminatory conduct caused him physical and emotional harm. Complainant testified that he suffered anxiety attacks, difficulty sleeping, fatigue, loss of appetite and weight loss, and withdrew from personal interactions. Two former employees stated that Complainant's demeanor changed after the reassignment. The Commission found, however, that an award of $120,000 was more appropriate in this case. While the AJ awarded Complainant differing amounts for various periods of time, the AJ did not explain in any detail how he arrived at the amounts awarded. He did not explain the reasoning for dividing the compensable period into separate timeframes, nor did he cite to specific evidence that he felt warranted the awards. The record showed that Complainant filed additional EEO complaints during two of the periods for which the AJ awarded damages, but no discrimination was found in those matters. In addition, Complainant attributed the emotional distress he experienced during a period of time to the stress of his EEO hearing for which he could not recover damages. The Commission also determined that the AJ's finding that Complainant would likely have been transferred to other management positions was speculative and not supported by the record. The Commission noted that Complainant asserted that he was entitled to an award of $120,000, and supported his claim for that specific amount through the evidence and testimony introduced at the hearing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720100036 (May 13, 2014).

$35,000 Awarded for Retaliation. An AJ awarded Complainant $15,000 in non-pecuniary compensatory damages after finding that the Agency retaliated against him with regard to his performance appraisal. On appeal, the Commission increased the award to $35,000. Complainant stated that he suffered headaches, insomnia, humiliation and marital problems after the retaliation. Complainant's wife and pastor testified as to the humiliation, job stress and depression that Complainant experienced, and Complainant stated that the retaliation affected his relationship with his wife to such a degree that she suggested he quit his job. The Commission found that an award of $35,000 was consistent with prior Commission precedent. Complainant v. Dep't of the Navy, EEOC Appeal No. 0720130020 (June 18, 2014).

$30,000 Awarded for Discriminatory Non-selection. The Agency issued a final decision finding that Complainant proved that he was discriminated against when he was not selected for one of four Center Director positions, and subsequently awarded him $6,000 in non-pecuniary compensatory damages. On appeal, the Commission found that an award of $30,000 was appropriate given the nature and duration of the harm. Complainant adequately and sufficiently described his symptoms including weight gain, loss of enjoyment of life, and increased blood pressure. In addition, Complainant stated that the discrimination aggravated his existing medical conditions, and affected his relationship with his family. Complainant provided statements from his treating physician. The Commission noted that while Complainant attributed at least a portion of the exacerbation of his conditions to a long commute, it was speculative whether his commute would have been shorter if not for the discriminatory selection. Complainant v. Dep't of Argic., EEOC Appeal No. 0120131896 (May 22, 2014).

$15,000 Awarded for Sexual Harassment. An AJ found that Complainant was subjected to sexual harassment and awarded her $10,000 in non-pecuniary compensatory damages. On appeal, the Commission raised the award to $15,000. Complainant testified that she became fearful of encountering the co-worker who was involved in the underlying action, and experienced nightmares. Two family members testified that, following the altercation, Complainant was jittery, had more frequent headaches, and was teary eyed, tired and short tempered. The Commission found that an award of $15,000 was not monstrously excessive considering the AJ's finding that while Complainant experienced anxiety, depression and insomnia as a result of the altercation, a portion of the distress resulted from alleged incidents for which no discrimination was found and from Complainant's removal from employment which was not at issue. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112818 (May 14, 2014).

$8,000 Awarded for Reprisal. In a prior decision, the Commission affirmed the Agency's finding of reprisal discrimination with regard to a performance improvement notification (PIN), and ordered the Agency to investigate Complainant's claim for compensatory damages. The Agency ultimately awarded Complainant $2,000 in non-pecuniary damages as well as $1,756.82 for a bonus he would have received had he not been placed on the PIN. On appeal, the Commission affirmed the Agency's award of the bonus, noting that Complainant did not present any evidence to support his claim for a higher amount. The Commission concluded, however, that the amount of damages awarded by the Agency was insufficient. Complainant described the retaliation as "devastating." The Commission noted that having the PIN in his file for three years would likely haunt Complainant and would cause the symptoms he described including anxiety, depression, and marital strain. The Commission stated that while Complainant did not provide affidavits or medical records concerning the harm he incurred, evidence from a medical provider and expert testimony were not mandatory prerequisites for recovery of compensatory damages. The Commission concluded that an award of $8,000 was appropriate in this case. Complainant v. Gen. Serv. Admin., EEOC Appeal No. 0120120310 (May 15, 2014).

$4,000 Awarded for Hostile Work Environment. An AJ previously found that Complainant was subjected to a hostile work environment based on her race when her Supervisor regularly yelled at her and invaded her space, counseled her regarding allegedly unnecessary credit card use, and intimidated her. Complainant appealed the AJ's award of $4,000 in compensatory damages. The Commission denied Complainant's appeal based on the AJ's analysis of the facts and cited past claims with similar fact patterns and similar damages awards. The AJ noted the stress Complainant was under during the hostile work environment, but pointed out that Complainant provided very little detail regarding the harm suffered due to the harassment during the hearing. Personal and witness testimony or medical records would all have been acceptable. The Commission found that the AJ's rationale was based on substantial evidence. Even though Complainant stated that she had medical evidence and documentation to support her assertions, she did not provide them on appeal. Finally, while Complainant stated that she was further harmed by the EEO complaint process, the Commission noted that compensatory damages are not available for stress from pursuing an EEO complaint. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140224 (May 30, 2014).

Dismissals

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

Dismissal of Complaint Improper. Complainant, a Registered Nurse, brought a claim of discrimination and hostile work environment against the Agency, alleging that her supervisor passed her over by promoting a less experienced white nurse to a supervisory position, falsely accused her of violating policies, and routinely disciplined her for minor infractions. The Agency dismissed the complaint on two procedural grounds. First, the Agency found that Complainant raised the proposed removal with the EEO Counselor but did not receive counseling regarding her hostile work environment claim. The Agency also asserted that Complainant's union brought a formal grievance on her behalf on the same grounds. The Commission found that both bases for dismissal lacked merit. First, the Commission noted that the claim of hostile work environment was related to the proposed removal and concerned allegations of harassment. In addition, the Commission noted that it is the Agency's burden to show that the collective bargaining agreement includes discrimination claims within its grievance process, and that Complainant elected to pursue a grievance in order to issue a dismissal on this ground. The record shows that even though Complainant consulted her union representative, Complainant only sought a resolution through the Agency's EEO process. While the union independently initiated a grievance against the Agency based on Complainant's experience, the record indicated that the Agency was on notice that she did not authorize this action. Most notably, the union president and its attorney provided a memorandum stating that Complainant did not request the grievance and the union filed the grievance "for its own purposes." The Commission therefore reversed and remanded Complainant's claim. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141346 (June 27, 2014).

Complaint Improperly Dismissed as Stating the Same Claim as Prior Pending Complaint. Complainant filed two EEO complaints against the Agency. The first complaint alleging that the Agency discriminated against her on the basis of disability when it failed to provide her with reasonable accommodation was pending an administrative hearing when Complainant brought the second claim of retaliation for previous protected EEO activity. The second complaint concerned a Report to Work letter Complainant received a few weeks after she made her request for accommodation. Complainant requested that the Agency amend her first complaint to include additional claims of discrimination, however, the Agency did not include the Report to Work letter or the surrounding events.

The Agency dismissed the second complaint, reasoning that it arose from the same factual issues as the first complaint, which was still pending with the Commission. On appeal, the Commission noted that the Agency only allowed Complainant to narrowly amend her complaint, failed to include surrounding events, and did not specifically mention the Return to Work letter. Therefore, the Commission remanded the matter to the Agency. Complainant v. Dep't of Agric., EEOC Appeal No. 0120140113 (June 25, 2014).

Complaint Properly Dismissed for Failure to Cooperate. Complainant filed a formal EEO complaint in March 2013, alleging that the Agency discriminated against him when it issued him a notice of proposed removal and subjected him to a hostile work environment. The Agency initially accepted the complaint and began an investigation. After unsuccessfully attempting to get an affidavit from Complainant, however, the Agency notified Complainant that he risked dismissal of his complaint if he did not provide a date when he could be interviewed for his affidavit. Complainant replied that he was invoking his "Fifth Amendment right not to give a statement." The Agency then dismissed the complaint for failure to cooperate. On appeal, the Commission affirmed the dismissal, finding that Complainant was clearly refusing to be interviewed or to provide an affidavit. In addition, his response provided sufficient evidence to support a conclusion that he purposely engaged in contumacious conduct. Complainant did not provide specific dates of the incidents supporting his hostile work environment claim, and there was insufficient information in the record to have permitted the Agency to continue the investigation without Complainant's affidavit. Complainant v. Dep't of Energy, EEOC Appeal No. 0120140889 (June 10, 2014).

Complaint Improperly Dismissed. Complainant filed a formal EEO complaint alleging that the Agency subjected him to racial harassment. The Agency dismissed the complaint on the grounds that it was signed by Complainant's non-attorney representative rather than Complainant himself. On appeal, the Commission found that the dismissal was improper. A review of the record showed that Complainant signed an information for pre-complaint counseling form, and there were other documents with his signature. In addition, there was no indication that the Agency attempted to cure the defect by giving Complainant the opportunity to submit a signature. Therefore, the Commission concluded that justice would not be served by dismissing the complaint on a technicality, and remanded the matter for processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140093 (May 9, 2014).

Complaint Improperly Dismissed for Failure to State a Claim and Alleging a Proposed Action. Complainant filed a complaint, which alleged that the Agency subjected him to discrimination on the basis of disability. The Agency dismissed the complaint for failure to state a claim and on grounds that it alleged a proposed action which did not occur. Complainant received a letter notifying him that he would be fired, but the Agency never terminated Complainant's employment. On appeal, Complainant argued that he was also subjected to ongoing harassment. The Commission noted that the EEO Counselor's report reflected a series of alleged incidents of harassment by the Unit Chief, including a Performance Improvement Plan and being held to different standards based on a protected class. Complainant also indicated that, as a remedy, he was seeking reasonable accommodation and restoration of leave. The Commission determined that the complaint could not be dismissed as a proposed action, stating that it was part of the claim of alleged harassment. Moreover, the Commission concluded that the Complainant did state a valid claim under EEOC's regulations. Complainant v. Dep't of Justice, EEOC Appeal No. 0120140320 (April 17, 2014).

Complaint Improperly Dismissed. Complainant contacted an EEO Counselor on June 14, 2013, and subsequently filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discrimination. He cited 10 incidents in support of his claim including counseling, a detail assignment, remedial training, and his working conditions. The Agency dismissed the complaint for failure to cooperate, failure to timely contact the EEO Counselor, and failure to state a claim. On appeal, the Commission found that the dismissal was improper. The Commission found that Complainant timely contacted the Counselor three days after learning that another employee was disciplined more leniently by the Agency. Further, Complainant was alleging an ongoing hostile environment and at least some of the incidents occurred within the 45 days prior to the date he sought counseling. The Commission also noted that, while Complainant did not explain why he failed to respond to a request for additional information, there was sufficient information in the record to have permitted the Agency to conduct an investigation. Complainant had spoken with the Agency's Dispute Resolution Specialist and provided extensive information which was sufficient to identify the actions he was concerned with, relevant timeframes and responsible management officials, and permit management witnesses to respond to Complainant's allegations. Finally, the Commission stated that Complainant alleged that he suffered an injury or harm to a term, condition, or privilege of employment for which there was a remedy, and, as such, stated a viable claim. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140352 (April 16, 2014).

Complaint Properly Dismissed for Filing a Grievance. Complainant filed a formal EEO complaint alleging that the Agency subjected her to discriminatory harassment based on her sex, sexual orientation and/or retaliation for prior protected activity. The Agency dismissed the complaint, stating that the Complainant had previously raised the matter in a grievance that permitted allegations of discrimination. On appeal, Complainant argued that she should still be able to file an EEO complaint because she did not raise discrimination claims in her grievance. The Commission affirmed the Agency's final decision. The EEOC's regulations provide that when an agency has a collective bargaining agreement that allows discrimination claims to be raised in a grievance, an aggrieved employee can raise allegations of discrimination under the EEO complaint process or the grievance process, but not both. The Commission concluded that Complainant was precluded from subsequently filing her EEO complaint because she previously raised her allegations in the grievance process and could have raised her allegation of discrimination in that process even though she chose not to do so. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120132905 (April 16, 2014).

Complainant Improperly Dismissed. The Agency dismissed Complainant's complaint of discrimination and harassment on the basis of disability stating that Complainant received notice of her right to file her complaint on February 8, 2012, but did not file her complaint until February 25, 2012. This was two days past the expiration of the 15-day limitation period. Additionally, the Agency contended that Complainant's allegations were not sufficiently severe or pervasive to state a claim of harassment. On appeal, the Commission reversed the Agency's final decision on both grounds. Upon reviewing the record, the Commission concluded that there was sufficient justification to extend the 15-day limitation period due to Complainant's medical condition and surgery on her retina during that time frame. Furthermore, the Commission found that Complainant had alleged valid discrimination claims based on disability and the Agency failed to properly characterize the claims raised in the Complainant's complaint. Specifically, Complainant alleged that she was denied reasonable accommodation in the form of a change in workplace, and was subjected to a hostile work environment. Thus, the matter was remanded for further processing. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122840 (April 16, 2014).

Complaint Improperly Dismissed for Failure to Raise Matter with Counselor. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it denied him reasonable accommodation and placed him off the clock. The Agency dismissed the complaint for failure to raise the matter with an EEO Counselor. On appeal, the Commission stated that, when he alleged that he was not allowed to return to work until he was medically able to work an eight-hour shift, Complainant was essentially alleging that the Agency denied him reasonable accommodation. While Complainant did not specifically raise the denial of accommodation during counseling, the Commission found it clear that the claim was sufficiently related to the matter on which Complainant sought counseling, as the events arose from the same factual background, that is, his treatment after his injury. Thus, the Agency should have accepted Complainant's claim that he was denied reasonable accommodation, and that issue was remanded for processing. The Commission noted that Complainant should raise any concerns regarding the refusal to pay him continuation of pay benefits with the Department of Labor. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140614 (April 11, 2014).

Findings on the Merits and Related Decisions

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

Under the Rehabilitation Act

Denial of Reasonable Accommodation and Disability Based Harassment Found. Complainant, a Part-Time Flexible City Carrier, appealed the Agency's decision finding that he had not been subjected to discrimination or harassment on the basis of his disability (diabetes). Complainant stated that he could perform all of the duties of his position as long as his glucose readings were not fluctuating. Complainant explained his medical needs to his Supervisor, but she routinely called him back to work or disciplined him if he left early when he requested leave to get his glucose under control. Complainant's requests that he not be required to provide medical documentation for each incident were also denied. Complainant's supervisor constantly questioned him about his breaks, made comments about Complainant's disability to other employees, and made disparaging remarks about Complainant "slowing down" which directly related to his disability. Complainant's disability was exacerbated by the stress that came from fear of discipline and constant questioning and requests for additional documentation from his supervisor. The Commission, after reviewing the claim de novo because the Agency's decision was made without a hearing, found that Complainant failed to prove disparate treatment discrimination with regard to several alleged incidents. The Commission concluded, however, that the Agency failed to provide Complainant with reasonable accommodation, and subjected him to disability related harassment.

The Agency conceded, in its final decision, that Complainant was an individual with a disability. Further, the record showed that Complainant was an "otherwise qualified individual with a disability" and that the Agency was aware of his condition. The Commission found that the Agency failed to recognize and act on Complainant's requests for reasonable accommodation. To successfully request reasonable accommodation, an employee is not required to use the phrase "reasonable accommodation." A Complainant must, however, show a nexus between the disabling condition and the accommodation. The Commission found that Complainant's requests for an eight hour work limitation, leave to get his glucose under control, and to not have to provide medical documentation for each incident when he needed to leave due to his disability were sufficient to qualify as requests for reasonable accommodation. Complainant provided the necessary documentation and explanations to establish that his requests were related to his medical condition. By calling Complainant back to work, questioning Complainant about his breaks, and requiring an unreasonable amount of medical documentation, Complainant's Supervisor effectively denied Complainant reasonable accommodation. While the Supervisor stated that Complainant could have stopped working after eight hours, the Commission found that assertion was not supported by the record which showed that he was subjected to several investigative interviews and disciplinary actions. Thus, the Commission concluded that the Agency failed to provide Complainant with reasonable accommodation.

The Commission also found that the Agency subjected Complainant to a hostile work environment based on his disability. The Commission initially determined that the conduct cited by Complainant was unwelcome. In addition, the Supervisor's repeatedly assigning Complainant tasks outside of his medical restrictions, commenting on his speed, mentioning his disability around other co-workers, and questioning Complainant about his breaks and time off were related to his disability. The Commission stated that the Supervisor generally failed to provide any information to support her version of the events alleged, and the record supported Complainant's assertions regarding the incidents. Given that the Supervisor's actions culminated in a tangible employment action that is the denial of reasonable accommodation, the Commission concluded that the Agency was liable for the harassment. The Agency was ordered, among other things, to expunge any disciplinary actions found to have been in violation of the Rehabilitation Act, and investigate Complainant's claim for damages. Complainant v. US Postal Serv., EEOC Appeal No. 0120140761 (June 13, 2014)

Denial of Reasonable Accommodation and Disability Based Harassment Found. Complainant, a Part-Time Mail Handler, alleged, among other things, that he was discriminated against on the basis of disability (deaf), when he was harassed by management by being yelled at, followed to the bathroom, and picked on for using a pager; denied training; and denied interpreters at meetings and safety talks. After an investigation, Complainant did not request a hearing, and the Agency issued a decision finding no discrimination. On appeal, the Commission found that complainant was denied a reasonable accommodation when he was not provided an interpreter at various meetings. The Agency acknowledged that Complainant was a qualified individual with a disability. The Commission rejected the Agency's assertion that it reasonably accommodated Complainant on some occasions by having him attend talks and training with employees in another craft, stating that Complainant was denied the benefit of larger group discussion by other Mail Handlers concerning issues specific to his position. In addition, the Agency admitted that it provided one training session only to hearing employees, and the Commission found that having Complainant's union steward transcribe conversations with a supervisor during meetings did not afford Complainant full participation in those meetings. Given that the Agency did not claim that providing an interpreter would have constituted an undue hardship, the Commission concluded that the Agency discriminated against Complainant when it failed to provide him with reasonable accommodation. The Commission also found that Complainant was subjected to a hostile work environment and that he was denied training due to his disability. The record revealed that an Agency supervisor told other employees that Complainant would not be allowed to attend certain training because of his disability. With regard to the issue of harassment, Complainant stated that he used a pager to communicate with other employees, and the supervisor yelled at him regarding his use of the pager on multiple occasions. The Commission concluded that Complainant was subjected to unwelcome verbal conduct which rose to the level of unreasonably interfering with his work performance. Despite Complainant informing management of the harassment, the Agency failed to take any action to promptly correct the harassing behavior. Therefore, the Agency was liable for the harassment. The Agency was ordered, among other things, to provide Complainant with a sign language interpreter for all meetings and to investigate his claim for compensatory damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121221 (May 14, 2014).

Denial of Reasonable Accommodation Found. After undergoing breast cancer surgery, Complainant was prescribed Tamoxifen, a drug used to prevent the recurrence of breast cancer. Complainant had difficulty working a regular eight-hour day schedule because of side-effects from the Tamoxifen, including insomnia, hot flashes, nausea, dizziness, fatigue, depression, and inability to concentrate. Complainant requested that the Agency provide her with reasonable accommodation, and management approved Complainant's request for a Variable Work Week (variable) schedule. Complainant thereafter requested to have a "maxiflex" 5/4/9 schedule instead of the variable schedule, but management denied her request, later advising her that the collective bargaining agreement (CBA) disallowed both the maxiflex 5/4/9 schedule and her current variable schedule. Complainant thereafter was required to work a standard eight hour day, five days a week schedule. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of disability when her request to work a maxiflex schedule was denied, and the variable schedule previously given to her as a reasonable accommodation was rescinded. Following an investigation, the Agency issued a final decision finding that Complainant did not establish that she was an individual with a disability covered under the Rehabilitation Act.

On appeal, the Commission found that Complainant established that she was a qualified individual with a disability. Complainant's condition required ongoing treatment and future monitoring for a prolonged period of time. Further, Complainant was required to take Tamoxifen and experienced side effects from that medication. The Commission concluded that Complainant's condition was ongoing at the time she requested accommodation. In addition, the record clearly demonstrated that Complainant was able to perform the essential functions of her position. The Commission further found that the Agency violated the Rehabilitation Act when it rescinded Complainant's reasonable accommodation of a variable schedule, and failed to provide an effective alternative accommodation. The Commission noted that the Agency failed to present the relevant portions of the CBA or other evidence to establish that Complainant's variable schedule actually conflicted with the terms of the CBA. The Agency was ordered, among other things, to determine whether and what reasonable accommodation Complainant required, restore any leave used by Complainant due to the Agency's failure to provide accommodation, and investigate Complainant's claim for damages. Complainant v. Dep't of Transp., EEOC Appeal No. 0120081003 (May 9, 2014).

Disability Based Harassment Found. Complainant, an Integrated Supplier Team Lead, filed a formal EEO complaint alleging that he was subjected to a hostile work environment based on his disability. Specifically, Complainant stated that his Supervisor repeatedly made insensitive remarks about his disability, did not provide him with information, refused to help him, and, when Complainant transferred to another office, requested that Complainant be removed from an office event. After an investigation, Complainant did not request a hearing and the agency issued a decision finding no discrimination. On appeal, the Commission initially noted that the Agency found that Complainant was a qualified individual with a disability. The Commission then found that Complainant was subjected to repeated, unwelcome comments about his disability by his Supervisor such as "roll on in here" and "I have a reserved handicap parking space next to my desk". While the Supervisor denied making the offensive comments, an Agency Contractor indicated that he heard the Supervisor make the remarks. The Commission also found that the Supervisor's failure to assist Complainant in a class he was teaching constituted an act of harassment. Further, the individuals responsible for the office event indicated that the Supervisor informed them that Complainant was being "disruptive," and the record showed that Complainant was removed from participating in the office event as a result of the Supervisor's actions. The Commission found that the Agency was liable for the harassment because the acts were committed by Complainant's Supervisor, and the Agency acknowledged that Complainant was subjected to a tangible employment action when he was removed from participating in the office event. Therefore, the Commission found that the Agency harassed Complainant based on his disability and ordered the Agency, among other things, to investigate Complainant's claim for compensatory damages. Complainant v. Dep't of Def., EEOC Appeal No. 0120121062 (May 1, 2014).

Disability Discrimination Found. Complainant filed a formal complaint which alleged, among other things, that she was subjected to sexual harassment and a hostile work environment on the bases of sex and reprisal when she was ordered to submit to an alcohol and drug test, placed on administrative leave, and required to submit to a Fitness for Duty (FFD) evaluation. Following an investigation, the Agency issued a final decision finding that Complainant failed to demonstrate that she was subjected to discrimination, harassment, or reprisal. The Agency found that it had legitimate reasons for requesting the FFD as Complainant had acted irrationally, (yelling, and crying) during an investigation regarding an incident of alleged harassment. On appeal, the Commission found, however, that the Agency discriminated against Complainant when it ordered her to undergo the examinations. The Commission stated that although Complainant did not allege a violation of the Rehabilitation Act, a determination of whether such a violation occurred was required by the facts. The Commission was not persuaded by the Agency's argument that its medical inquiries were job-related and consistent with business necessity. The Agency's sole reason for sending Complainant for the FFD evaluation and placing her on administrative leave was the allegedly "extreme behavior" that she exhibited during the investigation of her complaints of sexual harassment and an interview with the Office of the Inspector General investigator. The Commission noted that prior to her interview with the OIG investigator, there was no evidence of any concerns about Complainant's job performance nor was there any indication that she posed a direct threat to herself or others. The Commission noted that while it did not condone Complainant's alleged behavior both before and during the meeting, the behavior did not justify the Agency's medical inquiry almost two weeks later. The Agency was ordered, among other things, to pay Complainant applicable back pay and other benefits, and investigate her entitlement to compensatory damages. Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120120140 (May 1, 2014).

Denial of Reasonable Accommodation Found. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (back) when it denied her a reasonable accommodation, within her medical limitations, for approximately six weeks. Consequently Complainant was unable to work from January 2013 to March 2013, after an involuntary reassignment. Following an investigation, the Agency issued a final decision finding no discrimination. The Agency stated that Complainant was not accommodated because there were no vacant positions which she qualified for and assigning her to a position outside the job bidding process would have been contrary to the collective bargaining agreement rights of other employees. The Agency also found that Complainant was not similarly situated to other injured employees who had asked for and received limited duty because she was originally injured outside the job.

On appeal, the Commission found that the Agency discriminated against Complainant by not providing her with a reasonable accommodation within her medical limitations. According to the record, Complainant was diagnosed with a back condition while stationed at one facility and was off of work for a number of months. After she returned to work, Complainant was able to successfully work at that facility for several years without accommodation. She was subsequently involuntarily reassigned to a different facility, and submitted requests for accommodation to both her prior and current facilities. The Commission found that had the Agency engaged in the interactive process, it would have learned that Complainant would have accepted a temporary light duty assignment or permanent reassignment until she was cleared to return to work. The Agency had a funded vacant position at the second facility to which it could have reassigned Complainant, and Complainant was able to perform the essential functions of that position without accommodation. The Commission found that the Agency had light duty assignments available at Complainant's new work location but the Acting Manager on site refused to assign Complainant to the position because she was afraid that she would get in trouble with her superiors. Thus, the Commission concluded that the Agency discriminated against Complainant when it failed to reasonably accommodate her. The Agency was ordered, among other things, to pay Complainant $2,000 in proven non-pecuniary damages, as well as appropriate back pay. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140221 (April 8, 2014).

Under Title VII

Sex Discrimination Found with Regard to Non-selection. Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of sex when it failed to select her for the position of Manager, In-Plant Support. According to the record, Complainant was selected for the position by her Supervisor (S1), but the Manager of Operations (S2) instructed S1 not to go forward with Complainant's promotion because of a hiring freeze. S1 indicated that S2's supervisor approved funding for the position and S2 ultimately approved the selection of a male employee for a Manager position at the same time. Following a hearing, an AJ found that the Complainant was subjected to discrimination when she was not selected for the position. The Agency appealed that decision to the Commission, noting that it would implement the AJ's findings of age discrimination with regard to other issues.

On appeal, the Commission concurred with the AJ's finding of sex discrimination. The evidence showed that S2 received the selection packages for Complainant and the male comparator at the same time, and both had been selected for a Manager position. S2 approved the comparator's selection but denied funding for Complainant's position due to an alleged hiring freeze. Further, despite Complainant having successfully served in the position for one year and S1 stating that she believed Complainant was the best candidate, S2 stated that Complainant did not have the skills needed for the position. The Commission noted that several witnesses testified that Complainant was perceived as intimidating to male employees, and the AJ found that S2 denied Complainant the position because of his stereotypical perceptions of how a female supervisor should behave. Thus, the Commission found that substantial evidence supported the AJ's finding of sex discrimination. The Commission further found that the AJ's award of $130,000 in compensatory damages was appropriate and consistent with amounts awarded in similar cases. The Commission modified the AJ's award of back pay, concluding that awarding Complainant back pay after the date of her retirement would be excessive, and found that front pay was not appropriate given Complainant's voluntary retirement. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720130009 (May 14, 2014), request for reconsideration denied, EEOC Request No. 0520140386 (December 11, 2014).

Under Multiple Bases

Sexual and Retaliatory Harassment Found and Agency Sanctioned. Complainant was the sole EEO Specialist at her facility and was the first person to serve in that role in a full-time capacity. In November 2000, she notified the Director of the facility that some items a co-worker had posted on the Agency's intranet were disparaging to Native Americans, and advocated that the Christmas Social be renamed the Holiday Social to be more inclusive. The co-worker then began harassing Complainant by posting hand-drawn cartoons containing a number of sexual references which pertained to Complainant. Complainant's subsequent EEO complaint was settled, the co-worker was disciplined, and the intranet writings were removed from the network. After a year-long sabbatical, Complainant returned to the Agency as an Intelligence Analyst, with no EEO-related duties. A few years later, during an EEO training class, the co-worker publicized his personal website to the attendees. When they, and other employees not in attendance, visited the website, they discovered the same offensive cartoon and other writings that previously had been removed from the Agency's intranet. Complainant notified management, but it took at least two months for the Agency to block access to the co-worker's website from the Agency's network. Complainant again filed an EEO complaint on this matter. Complainant initially requested an administrative hearing, but withdrew her request when the AJ indicated that he was going to issue a decision on summary judgment in favor of the Agency. The Agency then took 11 months to issue a final decision, finding that Complainant had not been subjected to sexual harassment, that the cartoons were not sexual in nature, nor did they depict Complainant, and that she had not established that the harassment was based on reprisal for her EEO activities.

On appeal, the Commission initially found that Complainant was subjected to a hostile work environment because of her sex and prior EEO activity. Complainant not only engaged in protected EEO activity on her own behalf, but served as the first full-time EEO specialist at her facility during which time she raised issues of alleged discrimination. The Commission rejected the Agency's assertion that the cartoons did not depict Complainant and were not of a sexual nature as unpersuasive. The Commission stated that there was no question that Complainant found the conduct to be unwelcome and the harassment unreasonably interfered with her work performance and created a hostile work environment. The Commission further found the Agency liable for harassment based on sex and reprisal, because it failed to take immediate and appropriate remedial measures when it took over two months to block the co-worker's website from work computers. The Commission also addressed Complainant's claim that she was denied a reasonable amount of official time, finding that she should have been granted more than 15 hours to process her complaint given the complexity of the case and extensive discovery. As relief, the Commission ordered the Agency, among other things, to investigate Complainant's claim for damages, and compensate Complainant for the reasonable amount of hours taken to work on her complaint.

Finally, the Commission found that the Agency's Office of General Counsel "acted with gross impropriety" in this case when it impermissibly interfered with the development of the record by interviewing witnesses before the EEO investigator, appeared to represent the employee responsible for harassing Complainant, and threatened to cancel Complainant's pre-approved annual leave in order to schedule her deposition. The Commission granted Complainant's motion for sanctions, noting that the Agency took 11 months to issue a final decision after the AJ remanded the case, failed to properly conduct EEO counseling, and did not comply with the "spirit or the letter" of the Commission's regulations. The Commission found that the Agency's EEO Office and Office of General Counsel's disregard for the basic principles of neutrality and fairness was clear from the record, and the actions of the Office of General Counsel in particular evidenced "contempt and disrespect for the EEO process." As a sanction, the EEO Office and OGC personnel were ordered to undergo four hours of training on their responsibilities concerning EEO processing and the appropriate role of an OGC in the EEO process. Complainant v. Dep't of Def., EEOC Appeal No. 0120084008 (June 6, 2014).

Disability Discrimination and Retaliation Found. Complainant, a Staff Physician, filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of disability and in retaliation for prior EEO activity when she was required to submit to a fitness for duty examination, her clinical privileges were renewed for only three months, she was subjected to a hostile work environment, and she was issued a letter of counseling. Following an investigation, the Agency issued a final decision finding no discrimination with regard to the stated issues. The Agency did find that Complainant was denied reasonable accommodation and subjected to discrimination when she was denied a training class.

On appeal, the Commission affirmed the Agency's findings of discrimination. The Commission also found that the Agency discriminated against Complainant based on her disability when it required her to submit to a fitness for duty examination and did not renew her clinical privileges for the regular two year period. Complainant stated that she had been successfully performing the duties of her position with reasonable accommodation and there was no change in her medical condition. The Agency specifically found that Complainant was disabled and denied a reasonable accommodation when her supervisors increased her workload to add patient examinations and/or signoffs which contradicted her work restrictions. The Commission found that both the fitness for duty examination and three month renewal of clinical privileges stemmed from the discriminatory denial of reasonable accommodation and assignment of additional duties. The Commission also found that the Agency retaliated against Complainant and subjected her to disability discrimination when it issued her a letter of counseling threatening her with disciplinary action one day after she notified Agency managers that she intended to file an EEO complaint and shortly after she requested reasonable accommodation. While the Agency claimed that the letter was never issued, Complainant provided a signed copy of the letter. Therefore, the Commission concluded that the Agency failed to articulate a legitimate, non-discriminatory reason for its action. Finally, the Commission found that the Agency's actions constituted a hostile environment based on disability discrimination. The denial of accommodation plus the subsequent actions taken, when considered together, created a hostile work environment. The Agency was ordered, among other things, to investigate Complainant's claim for damages, pay Complainant any lost pay attributable to the denial of accommodation and restore applicable sick leave to her, expunge the letter of counseling, and ensure that the renewal process for Complainant's clinical privileges did not refer to the fitness for duty examination. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121002 (April 10, 2014).

Retaliation

Retaliation Found. Complainant, a Tool Room Officer, alleged she was discriminated against on the basis of reprisal when a Human Resources employee and a co-worker left a voice message on Complainant's work voicemail in which they could be heard berating Complainant while discussing the settlement of a prior EEO complaint she filed. After an investigation, a hearing was held and the AJ found that Complainant established she was subjected to reprisal as alleged. On appeal, the Commission affirmed the AJ's findings and found that the telephone message would deter a reasonable person from engaging in the EEO process. The Commission noted that the Human Resources employee used extremely strong language, which was found by the AJ to be so offensive that it expressed utter disgust for the EEO process. Further, the Agency failed to take immediate and appropriate corrective action when notified of the telephone call. Agency managers knew that Complainant reported the call two weeks prior to the employee's retirement but did not contact the employee with regard to the matter for eight months. Therefore, the record supported the AJ's finding of reprisal. In addition, the Commission found that the AJ's award of $5,000 in compensatory damages was appropriate given Complainant's testimony that she suffered embarrassment and anger over the phone call and it caused her to withdraw from her co-workers. Complainant v. Dep't of Justice, EEOC Appeal No. 0720120032 (May 1, 2014).

Retaliation Found. Complainant filed a formal EEO complaint alleging, among other things that the Agency retaliated against her when it issued her a letter of counseling for inappropriately using business envelopes to mail EEO correspondence. Following an investigation, the Agency issued a final decision finding no discrimination. The Agency asserted that it was inappropriate to use business envelopes for a personal matter, even if Complainant paid for the postage and shipping herself. On appeal, the Commission concluded that the Agency erred in counseling Complainant for such EEO participation activity, and such counseling amounted to per se retaliation. First, the Commission emphasized that the anti-retaliation provisions' broad protections include the "freedom from discriminatory interference with the EEO process." Next, the Commission found Complainant's EEO participation activity to be reasonable, because it did not appear to explicitly violate the Agency's relevant mail management policy, and did not appear to unduly disrupt the Agency's operations or pose a financial burden on the Agency. Finally, the Commission stated that reprimanding Complainant for exercising a legitimate method of corresponding with her EEO representative was reasonably likely to deter EEO activity. The Commission affirmed the Agency's finding of no discrimination with regard to other matters raised in the complaint. The Agency was ordered, among other things, to remove the written counseling from Complainant's records, and provide applicable training for the responsible management officials. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112074 (April 18, 2014).

Remedies

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

Remedies Discussed. An AJ found that the Agency discriminated against Complainant when it denied her clinical privileges and then terminated her from her position during her probationary period. As part of the final order, the AJ included a remedial award requiring the Agency to post a notice of the finding of discrimination for 365 days, and provide training for all supervisors and managers at two facilities. The Agency appealed those elements of relief. On appeal, the Commission found no reason to disturb the AJ's order of training, stating that the official who ultimately decided to terminate Complainant was responsible for overseeing the two named facilities. The Commission modified the AJ's posting order to 60 days, agreeing with the Agency that the AJ exceeded his authority with the 365 day requirement. The Commission looked to past precedent, finding that generally Agencies are ordered to post a notice of discrimination for 60 to 90 consecutive days. The maximum posting requirement was 180 days, a length of time reserved only for "egregious" acts of discrimination. The Commission noted several findings of discrimination with Complainants who were also terminated from their positions during their probationary periods in which the Agency was only required to post an order for 60 days. In this case, the AJ did not note in his finding that the discrimination itself was particularly egregious such as would warrant the extra days. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0720140013 (June 13, 2014).

Complainant Entitled to Promotion and Reimbursement for Increased Tax Liability. Following an investigation of Complainant's EEO complaint, an AJ found that the Agency discriminated against Complainant based on his disability when it did not select him for an Engineering Technician position. As relief, the AJ ordered the Agency, among other things, to retroactively promote Complainant to the position with all applicable benefits, and pay him appropriate back pay. The Agency fully implemented the AJ's order. Complainant subsequently notified the Agency that it failed to fully comply with the AJ's order because it did not promote him to a higher level and did not clearly document the amount of back pay to which he was entitled. Complainant ultimately appealed the issue of his relief to the Commission. On appeal, Complainant asserted that the original selectee and two other individuals were promoted to a higher grade level due to an accretion of duties. The record contained a letter from an Agency attorney agreeing that Complainant's record needed to be corrected to reflect the promotion. The Commission stated that the AJ's award clearly ordered the Agency to include all benefits Complainant would have received had he been selected, which would have included the accretion of duties promotion. Therefore, the Commission concluded that the Agency must retroactively promote Complainant to the higher grade level beginning when the original selectee was promoted, and recalculate Complainant's back pay. The Commission also found that Complainant was entitled to reimbursement for increased tax liability. The Agency paid Complainant back pay in a lump sum payment, and the Commission has held that an Agency is responsible for any proven increased income tax burden resulting from such a payment. Thus, the Complainant is entitled to be reimbursed for the amount of his increased tax liability. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113877 (May 14, 2014).

Sanctions

AJ Appropriately Sanctioned Agency for Deficient Investigation. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on her race, age and prior EEO activity when it did not select her for a Customer Account Manager position, and declined to upgrade her to that position. Complainant ultimately requested an administrative hearing. The AJ granted the Agency's motion for summary judgment with regard to the second allegation, and found no discrimination with regard to that matter. The AJ found, however, that the investigation of the first issue was deficient, and ordered the Agency to produce all applications and interview notes for applicants who were granted second-round interviews. The AJ also ordered the Agency to provide a list of all individuals interviewed by the Human Resources Manager. The Agency was unable to provide the interview notes, and the Manager was unable to recall the details of Complainant's interview or the selection process. The AJ subsequently granted Complainant's motion for sanctions, and drew an adverse inference against the Agency finding that the notes would have reflected that Complainant did well in the interview, no other applicant gave a better interview, and the Manager referred individuals outside of Complainant's protected classes for second round interviews. Using the adverse inferences, as well as other evidence of record, the AJ found that the Agency discriminated against Complainant on the bases of race and age when it did not select her for the Customer Account Manager position. The AJ noted that Complainant's experience was similar to two of the Selectees, but Complainant had acted in the Customer Account Manager position while the Selectees had not.

On appeal, the Commission affirmed the AJ's decision. The Commission found that the AJ's sanctions were appropriately tailored to the Agency's destruction of interview notes. The AJ determined that the Agency's failure to preserve the notes prejudiced Complainant's case to a far greater extent that simply proving that she had a good interview. The Commission rejected the Agency's assertion that Complainant's interview performance was not disputed, finding that fact, if true, would make it all the more suspicious that Complainant was not given a second interview. The Commission concluded that the AJ's adverse inferences were not an abuse of discretion given the destruction of all interview notes and the Manager's inability to recall details of the selection process. The Agency failed to provide statistics regarding the demographics of the candidates at each level of interview. In addition, various Managers conducted the first round interviews and it was unclear whether the Selectees who were within Complainant's protected classes were initially interviewed and recommended by a different Manager. The Commission agreed with the AJ that the Agency failed to provide a legitimate, non-discriminatory reason for not referring Complainant for a second interview. The Commission agreed with the AJ that Complainant was entitled to retroactive placement into a Customer Account Manager position or a substantially equivalent position, with appropriate back pay and benefits. Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0720130003 (June 16, 2014).

Settlement Agreements

Settlement Agreement Void. Complainant entered into a settlement agreement with the Agency in 2011. The agreement stipulated that the Agency would modify Complainant's performance evaluations contingent on her providing supporting evidence to do so. Complainant subsequently filed a claim with the Agency for breach of settlement because her performance evaluation had not been changed. The Agency found no breach of settlement, relying on her Rater's assessment that Complainant had not submitted sufficient new information to warrant a higher rating. On appeal, the Commission noted that the language of the settlement was not specific as to what information would be sufficient to warrant a higher rating, and ultimately, without an objective standard, Complainant's evaluation remained in the Agency's control regardless of the settlement. The Commission further clarified that because the evaluation change was an illusory promise, Complainant was never provided with consideration in exchange for withdrawing her original EEO complaint. Therefore the Commission ordered the Agency to reinstate the underlying complaint for processing. Complainant v. Dep't of the Army, EEOC Appeal No. 0120122836 (June 12, 2014).

Settlement Agreement Void Due to Lack of Consideration. Complainant entered into a settlement agreement with the Agency over a prior complaint of retaliation and harassment. In part, the Settlement Agreement stated that his manager "shall provide the same help to [Complainant] that is provided to the other drivers to the extent possible." Complainant's breach of settlement claim arose from an incident that occurred approximately one week after the agreement was signed, when he asked for and was denied assistance unloading his truck, even though there were other workers nearby. The Agency found no breach of settlement, emphasizing the language of the agreement stated that it would provide help "to the extent possible." On appeal, the Commission found that the Settlement Agreement was invalid. The agreement was both too vague to be enforceable and void on its face because it did not offer Complainant consideration, only the same access to assistance to which he and all of the truck drivers were already entitled. The Commission remanded the complaint for further processing and instructed the Agency to process Complainant's new allegations of retaliation and harassment. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140809 (June 5, 2014).

Breach of Settlement Found. The parties entered into a settlement agreement on May 1, 2013, that provided, in pertinent part, that the Agency would place Complainant into a position in the area of Aviation Safety and/or policy on or before September 30, 2013. According to the record, Complainant exchanged e-mails with an Agency Attorney regarding a position from May through August 2013. In November 2013, Complainant alleged that the Agency breached the agreement. On appeal, the Commission found that the Agency did in fact breach the agreement when it delayed placing Complainant into an appropriate position until January 2014. Complainant identified the position she was offered as early as July 8, 2013, and the Agency failed to provide any reason for the delay. Further, Complainant lost pay and benefits and was therefore harmed by the delay. The Commission concluded that the Agency needed to place Complainant into the position retroactive to September 30, 2013, with an appropriate award of back pay and benefits. Complainant v. Dep't of Transp., EEOC Appeal No. 0120141003 (May 22, 2014).

No Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement in June 2010 which provided, in pertinent part, that the parties would work together to find an open detail assignment that fit Complainant's qualifications. Complainant alleged that the Agency breached the agreement in September 2013 when it did not place her into a detail that fit her training. On appeal, the Commission found that the Agency complied with the terms of the agreement. Complainant was given an acceptable detail in July 2010, and was on various detail assignments for almost three years. The agreement did not state that Complainant would be on detail indefinitely, and the Commission has previously held that where an individual bargains for a position without specific terms as to length of service, it is improper to interpret the reasonable intentions of the parties to include employment in the exact position ad infinitum. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141012 (May 8, 2014).

Mutual Mistake Found in Formation of Settlement Agreement. The parties entered into a settlement agreement which provided, in pertinent part, that management would request that the Office of Inspector General (OIG) monitor surveillance cameras on certain dates and times. The Agency asserted that officials asked OIG to review the surveillance footage for the dates in question, but were told the videos from those dates were no longer available. On appeal, the Commission found that the settlement agreement was void. The Commission found that the parties made a mutual mistake in the formation of the agreement when they assumed that the Agency's surveillance cameras would provide video from the dates in question. Unbeknownst to the parties the dates were recorded over and not available for viewing. Therefore, the Agency was unable to comply with the terms of the agreement, and the agreement was void. The Agency was ordered to reinstate the underlying complaint for processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122800 (April 11, 2014).

Breach of Settlement Agreement Found. The parties entered into a settlement agreement on May 11, 2011, which provided that the Postmaster would not have private conversations with Complainant in a closed office unless it was absolutely necessary. Discussions were to be conducted by the Supervisor and Complainant could have a steward present for serious conversations. Complainant alleged that the Agency breached the agreement when, on February 28, 2013, the Postmaster came to her office alone after hours. The Agency subsequently issued a final decision concluding there was no breach of the agreement because the Postmaster was reassigned to another facility on September 23, 2013. The Agency also indicated that the February 2013 incident was being processed as a separate complaint, and Complainant's breach claim was not received by the proper office in a timely manner. On appeal, the Commission found that Complainant timely raised her breach allegations when she contacted an EEO Counselor, and Complainant promptly sent her allegations to the correct office upon being notified that she needed to do so. Additionally the Commission found that the contact between the Postmaster and Complainant violated the terms of the settlement agreement. The Postmaster admitted that he confronted Complainant in an empty office after hours, and the Agency did not show that the discussion was personal or "unavoidable." The Commission found it especially troubling that the Postmaster indicated he was not aware of the terms of the settlement agreement and did not know he was to avoid this type of contact with Complainant. The Postmaster's reassignment had no bearing on the February 2013 incident. The Commission ordered the Agency to reinstate the original complaint for further processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140726 (April 8, 2014).

Stating a Claim

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

Complainant v. Dep't of Def., EEOC Appeal No. 0120140256 (June 27, 2014) (Complainant's claim that the Agency offered her a position working only 24 hours per week instead of 32 hours per week stated a viable claim of age discrimination. Complainant asserted that there were positions available with more hours, and whether Complainant voluntarily accepted the 24 hour position was irrelevant to her claim of age discrimination).

Complainant v. Dep't of Def., EEOC Appeal No. 0120141158 (June 20, 2014) (the Agency improperly dismissed Complainant's claim that her husband was denied administrative leave because of Complainant's prior protected EEO activity. The EEOC's Compliance Manual provides that retaliation is prohibited against someone closely related to or associated with the person exercising his or her statutory rights such that it would discourage or prevent the person from pursuing those rights. A spouse would qualify as such a person. Complainant's allegation regarding her son was properly dismissed, however, since her son was a student at an Agency school and not an Agency employee).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140342 (June 10, 2014) (Complainant's allegation that the Agency adjusted his route stated a viable claim of discrimination and retaliation. Complainant asserted that the Agency changed his route a mere two weeks after he settled an EEO complaint, and that the change significantly added to his already over-burdened route); see also, Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140210 (May 29, 2014) (Complainant's allegation that the Agency adjusted his route stated a viable claim of discrimination and retaliation. Complainant asserted that the Agency made a material change to his route when it adjusted it by approximately 70 percent and added 150 new deliveries including more taxing business deliveries, and as a result, he experienced problems with his health); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0520120403 (April 7, 2014) (Complainant's claim that the Agency adjusted his route stated a viable claim of discrimination and retaliation. Complainant alleged that the route adjustment changed the physical requirements of his job from a mounted delivery route to a 12 mile walking route, and it became physically difficult for him to perform his job. Complainant stated that he was forced to bid on another route and sustained physical injuries as a result of the change).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140194 (May 29, 2014) (Complainant's claim that he was given a job offer outside of his medical restrictions stated a viable claim of disability discrimination. Even if the job offer was made in conjunction with his OWCP claim and approved by OWCP, the duty to reasonably accommodate an employee is independent from OWCP. Complainant's claim that the Agency improperly submitted an independent medical examination to OWCP, however, constituted a collateral attack on the OWCP process and should be raised in that forum).

Complainant v. Dep't of Transp., EEOC Appeal No. 0120132333 (May 23, 2014) (Complainant's claim that management officials refused to discuss her EEO concerns and accommodation request stated a viable claim of retaliation. Complainant claimed that the officials stated that there was no need to discuss her working conditions if she "file[d] another complaint," and hung up on her union representative during a conversation about Complainant's concerns. These comments and conduct could have a chilling effect upon a reasonable employee's exercise of EEO rights).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141023 (May 22, 2014) (the Agency improperly dismissed Complainant's complaint that it retaliated against him when it would not allow him to transfer to another facility. Complainant asserted that an Agency Manager delayed posting positions until after Complainant was upgraded pursuant to a union settlement so that Complainant would not be eligible for reassignment. Complainant claimed that the Manager took the actions to block him from returning to the facility because Complainant provided a statement in support of another employee's EEO complaint, and the action would be reasonably likely to deter Complainant or others from engaging in protected activity).

Complainant v. Dep't of the Army, EEOC Appeal Nos. 0120132013 & 0120132339 (May 20, 2014), request for reconsideration denied, EEOC Request Nos. 0520140387 & 0520140388 (December 3, 2014) (the Agency was Complainant's joint employer and, therefore, improperly dismissed her complaint of discrimination. While Complainant's work involved a high level of skill and expertise, and her compensation and tax withholding arrangements were handled by an Agency contractor, the evidence showed that the Agency had the right to control when, where and how Complainant performed her job. Agency personnel also assigned her all tasks, the Agency provided her with office space at controlled sites, she was required to work Agency core hours, federal supervisors approved her leave, there was a long-standing relationship between Complainant and the Agency, the work she did was part of the Agency's mission, and the Agency's termination of Complainant resulted in her effective termination by the contractor); see also, Complainant v. Dep't of the Navy, EEOC Appeal No. 0120122698 (May 20, 2014) (while Complainant's work required a high level of expertise, and the contractor set Complainant's schedule and paid Complainant's wages and insurance, an Agency Department Head managed Complainant, Agency personnel provided day to day supervision, the Agency had the right to assign Complainant tasks and provide input regarding Complainant's appraisal, an Agency manager disciplined Complainant, and the Agency had de facto authority to remove Complainant. Therefore, the Agency qualified as Complainant's joint employer for purposes of the EEO complaint process); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120122912 (April 29, 2014) (the Agency improperly dismissed Complainant's complaint for failure to state a claim on the grounds that he was not an employee. While Complainant's position was highly technical and required a high level of skill, and Complainant was paid by a contractor, Agency staff provided him with on-the-job training and written feedback, instructed him on various aspects of his job, and participated in providing feedback for a Performance Improvement Plan. Complainant also worked on Agency premises. Therefore, the Commission concluded that the Agency exercised sufficient control over Complainant's position to qualify as his joint employer for purposes of the EEO complaint process); but see Complainant v. Dep't of the Army, EEOC Appeal No. 0120140002 (May 20, 2014) (while Complainant worked on Agency premises using Agency equipment, the contractor provided an onsite Program Manager who assigned work to Complainant and supervised his performance. In addition, Complainant's pay and benefits were provided by the contractor and there was no evidence that the Agency had control over the contractor's decision not to hire Complainant. Therefore, the Agency did not exercise sufficient control over Complainant's position to qualify as a joint employer); Complainant v. Dep't of State, EEOC Appeal No. 0120132131 (May 20, 2014) (Complainant worked on Agency premises using material and equipment which it provided. Complainant, however, received assignments from the contractor and the evidence showed that the Agency did not have the right to assign Complainant additional projects. In addition, Complainant's job involved a support function and not the mission of the Agency. Thus, the Agency did not exercise sufficient control over Complainant's position to qualify as a joint employer).

Complainant v. Dep't of Justice, EEOC Appeal No. 0120140568 (May 15, 2014) (Complainant's claim that Agency management ordered her to attend a meeting where she was questioned about an e-mail she sent raising EEO concerns and not allowed to have her Supervisor or a representative present stated a viable claim of discriminatory harassment. Complainant claimed that the encounter was hostile, she felt intimidated because she challenged perceived unlawful retaliation, and felt her career was in jeopardy. She also stated that she lost a travel assignment opportunity and was directed to relocate her office. Considering the allegations in the light most favorable to Complainant, the Commission found she clearly stated a claim of harassment and retaliation).

Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120122088 (April 25, 2014) (Complainant's claim that the Agency suspended him for two weeks without pay stated a viable claim of retaliation. Complainant worked as a dual status technician, and in his federal civilian capacity occupied the position of Powered Support Systems Mechanic. The Commission has previously held that dual status technicians are covered by Title VII when the alleged discrimination arises from the individual's capacity as a federal civilian employee. In this case, the memorandum informing Complainant of his proposed suspension specifically referenced his Powered Support Systems Mechanic position, and this was reiterated in the personnel form. Further, the action leading to the suspension occurred while Complainant was performing the duties of his civilian position).

Complainant v. Dep't of the Army, EEOC Appeal No. 0120122810 (April 24, 2014) (Complainant's claim that the Agency issued him a letter of counseling stated a viable claim of national origin and age discrimination. While the Agency asserted that the letter was not part of Complainant's official personnel folder and was not used against him, the letter was in writing, appeared to have been placed in a Supervisor's folder, and the letter indicated that Complainant had the right to file a grievance on the matter. In addition, the Supervisor refused to rescind the letter which suggested that it was being held in order to use as the basis for future discipline).

Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120133123 (April 16, 2014) (the Agency improperly defined the underlying complaint as consisting of two separate claims, and improperly dismissed Complainant's claim of discriminatory harassment. Complainant explained that he was undergoing treatment for gender identity disorder, and had legally changed his name. Complainant alleged that the Agency failed to act on his request to change his name in its computer system which created questions from clients and other employees. Complainant also stated that the Information Security Officer reacted to his request with hostility, and threatened to terminate Complainant's access to all Agency computer systems. The Commission found that Complainant alleged, in essence, that the Officer was hostile toward him because he changed his gender identity, and the situation continued for over a year impacting his ability to successfully meet the workload demands of his job. When viewing the cumulative effect of Complainant's allegations in the light most favorable to him, Complainant stated a viable claim of sex discrimination actionable under Title VII).

(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. 0120140458 (June 10, 2014) (Complainant's allegation that he was subjected to a pre-disciplinary interview failed to state a viable claim of discrimination and reprisal. Two days following the interview, Complainant and the union steward met with the supervisor to show him that the machine which was the subject of the interview was labeled properly, and there was no actual disciplinary action taken. Therefore, Complainant failed to allege that he suffered harm sufficient to render him aggrieved by the one-time incident).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140650 (May 30, 2014) (the Agency properly dismissed Complainant's claim that the Office of the Inspector General (OIG) removed medical records from her doctor's office for failure to state a claim. The complaint constituted a collateral attack on the OIG process, and the proper forum for Complainant to have raised her concerns regarding actions taken during an OIG investigation was within that process itself. The actions were taken pursuant to authorized search warrants and the Commission's regulations do not convey it with any authority over the execution or contents of search warrants).

Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120140924 (May 8, 2014) (Complainant's claim that he was subjected to unsafe working conditions in the baggage area and forced to work with personnel shortages was a generalized grievance and failed to state a claim within the meaning of the EEOC's regulations. Complainant conceded that his complaint concerned a general staffing issue and it was undisputed that the issue affected all employees on the relevant shifts).

Complainant v. Dep't of the Navy, EEOC Appeal No. 0120140864 (April 24, 2014) (the Agency properly dismissed Complainant's complaint alleging that a co-worker and van pool manager did not allow him to join a privately operated van pool. The Agency had no control over who rode in the van pool, and riders did not have to ride in a particular pool in order to qualify for the Agency's transportation incentive program).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140837 (April 17, 2014) (the Agency properly dismissed Complainant's claim that his starting time was changed from 8:00 am to 8:30 am. A 30 minute change in Complainant's schedule did not constitute a harm or loss with respect to a term, condition, or privilege of employment for which there was a remedy).

Summary Judgment

Summary Judgment Proper. Complainant, a Food Service Worker, filed a formal EEO complaint alleging that the Agency discriminated against him when it did not select him for a higher-grade position. Following an investigation, an AJ issued a decision without a hearing finding no discrimination. On appeal, the Commission affirmed the AJ's decision. The interview panel members explained that Complainant did not completely answer the questions required on the application and did not interview well. Thus, he received a lower rating than the two selectees. The Selecting Official stated that he chose the selectees because they received the highest overall scores from the panel. The Commission stated that while Complainant asserted that he had more seniority than the selectees, his seniority was not a material fact in dispute relevant to the disposition of the case because it did not address the reasons presented by Agency management for Complainant's non-selection. The Commission found that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies and laws. Complainant did not cite any specific work experience that made him the superior candidate for the position, and could not meet his burden of establishing pretext solely by focusing on his seniority. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120110886 (April 17, 2014).

Summary Judgment Not Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it delayed processing an injury form and denied his request for a swivel chair. Following an investigation, an AJ granted the Agency's motion for summary judgment and found no discrimination in the matter. On appeal, the Commission found that the issuance of a decision without a hearing was not proper. Complainant submitted a note from his doctor diagnosing chronic neck pain, and requested a swivel chair to reduce the strain on his neck. The Commission found that this was a request for reasonable accommodation, noting that employees do not need to specifically use the phrase "reasonable accommodation." It was undisputed that Agency managers merely advised Complainant to submit his request to the Department of Labor, and there was no evidence that the Agency requested more documentation from Complainant. Thus, the Commission found that the Agency failed to engage in the interactive process to determine whether it had an obligation to provide Complainant with the swivel chair. The Commission stated that, because the AJ failed to acknowledge that the complaint included a claim alleging denial of reasonable accommodation and made no findings as to whether Complainant was an individual with a disability or whether the requested accommodation would have been effective, the matter should be remanded for an administrative hearing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120113921 (May 13, 2014).

Summary Judgment Not Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated and retaliated against her when it did not select her for a management position. Following an investigation, an AJ issued a decision without a hearing finding no discrimination. On appeal, the Commission found that there were genuine issues of material fact surrounding the non-selection which were not appropriate for summary judgment. Specifically, there was some evidence in the record which indicated that at least one panel member was aware of Complainant's prior EEO activity before the selection interviews. In addition, the affidavits of the panel members showed that they were not in agreement as to the scoring results. The Commission found that a hearing was necessary to adequately address the issues of witness credibility and to adjudicate the issues of material fact that remained in dispute. Therefore, the matter was remanded for a hearing. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121641 (April 23, 2014).

Summary Judgment Not Proper. Complainant appealed the Agency's final order regarding her EEO complaint, which alleged age discrimination. Due to the Agency's reorganization in January 2008, Complainant was demoted and lost her supervisory position. When a Director's position became available in early 2008, Complainant applied and was one of three top candidates interviewed, but the position was ultimately given to another candidate. On June 3, 2008, Complainant, who was then sixty-two years old, filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of age, when it selected someone else for the Director's position. Complainant also alleged that she was subjected to harassment in reprisal for prior EEO activity.

Complainant requested an administrative hearing, and the AJ issued a decision finding no discrimination. The AJ concluded in summary judgment that Complainant failed to show that she was a superior candidate to the individual selected for the position and there was an insufficient link between Complainant's alleged harassment and the protected activity. The Agency implemented the AJ's decision as its final action. On appeal, the Commission concluded that the AJ erred in granting summary judgment to the Agency because there were numerous material facts regarding candidate selection that were in genuine dispute. Specifically, the Commission noted that the Selecting Official gave conflicting testimony regarding various aspects of an Operation Manual including whether Complainant brought the document to her interview. The Commission stated that since a great deal of emphasis was placed on the Manual and questions surrounding it, the matter was both material and in genuine dispute. The Commission also questioned why so little emphasis was placed on supervisory experience given the leadership nature of the position, and stated that no reasonable fact finder could find that the Selectee's supervisory experience, occurring during a three-month developmental detail, was anything but "negligible." The Commission concluded that the multiple material facts surrounding the selection which remained in dispute, as well as the credibility issues, required that the case be remanded for a hearing. Complainant v. Dep't of Commerce, EEOC Appeal No. 0120114244 (April 23, 2014).

Timeliness

Complaint Properly Dismissed for Untimely EEO Counselor Contact. The Commission affirmed the Agency 's dismissal of Complainant's wrongful termination claim due to untimely EEO Counselor contact because at the time of his termination, Complainant reasonably suspected discrimination, triggering the 45 day limitation period. Complainant was terminated from this position on March 6, 2013, but did not initiate contact with an EEO Counselor until August 25, 2013. From the date of the termination, Complainant believed it was based on discriminatory motives, and he was also aware of reports of sexual comments in his personnel file, which he claimed were false and also based on discrimination. The Commission rejected Complainant's argument that his complaint was timely because he contacted his EEO Counselor within 45 days of an internal Agency appeals board's decision regarding his termination. Commission precedent shows that the Commission will not allow a Complainant's internal efforts to challenge or appeal an Agency decision to substitute for contact with an EEO Counselor. The Commission also rejected Complainant's assertion that the 45 day limitation period should be waived because the Agency had "insufficient" and "inadequate" EEO Training and he was unaware of the process, noting that the express language about the 45 day limitation period on the EEO materials provided by the Agency was sufficient evidence of notice. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120141164 (May 29, 2014).

Complaint Improperly Dismissed for Untimely EEO Contact. Complainant contacted an EEO Counselor on January 20, 2012, and subsequently filed a formal complaint alleging that the Agency discriminated against her on the basis of disability when it did not provide her with reasonable accommodation. The Agency dismissed the complaint, stating that Complainant was notified of the denial of accommodation in November 2011, and, as such, her contact with the Counselor was not timely. On appeal, the Commission found that the Agency's dismissal was not appropriate. The record indicated that Complainant still required accommodation through May 2012. Therefore, her contact with the Counselor in January 2012 was timely. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122977 (May 6, 2014).

Complaint Improperly Dismissed for Untimely EEO Contact. Complainant filed a formal EEO complaint alleging that the Agency subjected him to a hostile work environment. In support of his claim, Complainant referenced incidents which occurred from July 2011 through June 2013. The Agency dismissed the complaint, stating that Complainant's contact with the EEO Counselor on June 28, 2013 was outside the applicable 45-day limitation period. On appeal, the Commission noted that Complainant contacted the EEO Program Manager in November 2012. While the Manager stated that he told Complainant that he had 45 days to initiate counseling by contacting the Office of Resolution Management (ORM), the Commission found that the EEO poster at Complainant's facility provided the telephone numbers for both ORM and the Manager. The poster also included the name of the Manager and his picture. Therefore, the Commission found that Complainant initiated EEO contact in November 2012. In addition, since several of the alleged incidents occurred within the 45 day limitation period, the entire claim of harassment was timely. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140863 (May 6, 2014).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. On June 3, 2013, Complainant initiated contact with an EEO Counselor. On Sept. 24, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and in reprisal for prior EEO activity. The Agency dismissed the complaint for untimely EEO counselor contact, stating that the alleged discriminatory event occurred on February 8, 2013, but the Complainant did not initiate EEO contact until June 3, 2013, which was beyond the 45-day limitation period. On appeal, the Commission found that Complainant contacted an EEO Counselor in a timely manner. The record showed that Complainant's harassment/hostile work environment claim was comprised of not one but various incidents, some of which occurred within 45 days of Complainant's June 3, 2013 EEO Counselor contact. Consequently the Commission found that Complainant's contact with the EEO Counselor was timely and remanded the matter to the Agency for further processing. Complainant v. Dept. of Transp., EEOC Appeal No. 0120140818 (April 10, 2014).

Dismissal of Complaint as Untimely Improper. Complainant, who was working at the Agency's medical facility in Germany, filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to harassment. The Agency dismissed the claim on procedural grounds stating that Complainant failed to file her formal complaint within 15 days of receiving notice of her right to do so. Instead, she filed her complaint 27 days after receiving notice. On Appeal, the Commission found the Agency's dismissal improper. The only evidence provided was a "Track & Confirm" printout from the United States Postal Service, which provided the date of delivery, the city and the zip code, but no specific address. Other than the generalized reference to a city and zip code, there was no evidence that Complainant actually received the notice. The Commission, noting that it is always the burden of the Agency to prove timeliness of notice, found Complainant's filing timely, and reversed the Agency's decision. Complainant v. Dep't of the Army, EEOC Appeal No. 0120140066 (May 29, 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)

The Law of Harassment: Assisting Agencies in Developing Effective Anti-Harassment Policies
By Jacob Workman, Alieen Hwang, Michael Campbell, Kiara Carty

Introduction

Although workplace harassment remains a persistent problem, the Commission is committed to continuing its focused efforts to help federal agencies fight workplace harassment. The Commission's goal is to assist agencies to become model employers by, among other things, facilitating agency anti-harassment policy consistent with current federal law. By examining the statutory language addressing harassment and significant case law, agencies should be better able to implement effective anti-harassment policies.

Defining Harassment

As articulated in the Commission's anti-harassment policy, unlawful harassment includes:

"[U]nwelcome intimidation, ridicule, insult, comments, or physical conduct based on race, color, religion, sex (whether or not of a sexual nature), national origin, age, disability, sexual orientation or retaliation where:

(1) an employee's acceptance or rejection of such conduct explicitly or implicitly forms the basis for an employment decision affecting the employee; or
(2) the conduct is sufficiently severe or pervasive as to alter the terms, conditions, or privileges of the employee's employment, or otherwise create an abusive work environment."1

Harassment is discrimination that specifically targets offensive, demeaning, or hateful conduct that either (1) is linked to a tangible employment action or (2) creates a sufficiently severe or pervasive effect on employment.2 Federal harassment claims can be brought by any federally recognized protected class including those created by Title VII of the Civil Rights Act of 19643, Section 501 of the Rehabilitation Act,4 the Age Discrimination in Employment Act5, and the Genetic Information Nondiscrimination Act.6

There are two legal structures under which a harassment claim may be brought, quid pro quo and hostile work environment.7 Quid pro quo applies to "cases involving a threat which is carried out."8 This type of harassment occurs when an employer or agent thereof conditions a tangible employment action upon on the acceptance of harassing demands.9 Quid pro quo harassment has historically been more connected to sexual harassment than other harassment bases. In defining quid pro quo harassment, the Supreme Court has specifically looked to the acceptance or refusal of "a supervisor's sexual demands."10 Courts in general have acknowledged the Commission's definition of quid pro quo harassment, namely that "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment."11

The second type of harassment, hostile work environment, includes offensive conduct that must be sufficiently severe or pervasive to "alter the conditions of [the victim's] employment and create an abusive working environment."12 In order to establish a claim of hostile environment harassment, a complainant must show that: 1. she belongs to a statutorily protected class; 2. she was subjected to unwelcome verbal or physical conduct related to her membership in the protected class; 3. the harassment affected a term or condition of employment and/or unreasonably interfered with her work performance or created an intimidating, hostile or offensive work environment; and 4. there is a basis for imputing liability to the employer.13 The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances.14

Federal Anti-Harassment Efforts

The Commission has provided a list of key elements necessary to include in an anti-harassment policy. Specifically, the Commission has stated that an anti-harassment policy at a minimum should "[c]learly explain the prohibited conduct" and address "all forms of harassment, including race, color, gender (both sexual and non-sexual), age, national origin, disability, religion, and genetic information."15 In addition, an anti-harassment policy and complaint procedure should contain, at a minimum, 1. a clear explanation of prohibited conduct; 2. assurance that employees who make claims of harassment or provide information related to such claims will be protected against retaliation; 3. a clearly described complaint process that provides accessible avenues for complainants; 4. assurance that employer will protect the confidentiality of the individuals bringing harassment claims to the extent possible; 5. a complaint process that provides a prompt, thorough, and impartial investigation; and 6. assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.16 Agencies should ensure that their supervisors and managers receive periodic training so that they understand their responsibilities under the agencies' anti-harassment policy and complaint procedure.17 Such training should explain the types of conduct that violate the agency's anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation. Agencies should also train employees about the anti-harassment policy and complaint procedures, and should educate employees about the types of conduct that constitute harassment under the anti-discrimination laws.18

Claims of non-sexual harassment have ranked first in claims filed under the federal sector EEO process since 1994.19 The percentage of federal sector complaints alleging non-sexual harassment has increased over the past 10 years. In addition, while the percentage of complaints alleging sexual harassment declined from 2009 through 2012, complaints of sexual harassment have recently been on the rise. In the private sector, race harassment was alleged most frequently in FY 2014 private sector harassment charges, followed by sexual harassment and disability harassment. 20

The Commission periodically reviews agencies' anti-harassment policies, and there is evidence of some progress. However, when the Commission reviewed the anti-harassment policies of 43 federal agencies in 2004, there were "significant deficiencies."21 Indeed, seven percent of the agencies surveyed did not have any anti-harassment policy, and 51 percent had policies that made no mention of non-sexual bases of harassment.22 In reference to this survey, the Commission stated "[e]ven though non-sexual harassment is the issue most frequently raised in EEO complaints, many agencies' policies fail to mention non-sexual harassment."23 Further, though agency policies generally have similar threads running through them, they vary in their harassment definitions, language, structure, and focus. It should be noted, however, that the legal definitions of harassment should always be the same.

More recently, the Commission reviewed over 70 anti-harassment policies submitted in 2013 to the Commission by agencies. Generally, agencies include all protected classes under federal law but it is common to see sexual harassment singled out. Overall, agencies now have policies that include all federally protected classes for harassment claims, both sexual and non-sexual. That said, any emphasis given to sexual harassment needs to be clear that harassment "because of sex" is not limited to sexual conduct.24

The Commission's review of the 2013 policies did reveal concerns about anti-harassment policies, including a lack of readability. When drafting policies, agencies should include the required legal information, but ensure that they do so in a way that is not convoluted or difficult to follow. Real implementation of anti-harassment polices requires agencies to use plain language. Universal readability is necessary to comply with the proactive requirement of Title VII. It could also preemptively limit litigation through clarity and broader understanding of the law.

In its 2012 Strategic Enforcement Plan, the Commission reiterated its strong commitment to help agencies fight harassment.25 Specifically, the Commission committed to continued policy reviews that will enable it to focus on agencies where harassment allegations are significantly above the government wide average and to provide training and outreach that is tailored to the particular agency's needs.

Development of the Law of Harassment
Sexual Harassment

The Civil Rights Act of 1964 was one of the first laws that provided legal recourse for employees facing sexual harassment at work.26 This landmark legislation prohibits discrimination based on sex, race, color, religion and national origin.27 Throughout the 1960's and 1970's there was still confusion as to whether Title VII's prohibition on sex discrimination applied to instances of sexual harassment. In 1976, the D.C. Circuit Court's decision in Williams v. Saxbe28 established sexual harassment as a form of sex discrimination. The case involved sexual advances by a male supervisor towards a female employee, and the Court found that the actions, if proven, would be deemed an artificial barrier to employment placed before one gender and not another.

In 1980, the Commission stated that sexual harassment is in fact a form of sex discrimination that is prohibited under Section 703 of Title VII.29 The Commission's regulations established detailed criteria for determining when unwelcome conduct of a sexual nature constituted sexual harassment.30 The Commission also defined the specific circumstances under which an employer may be held liable and suggested affirmative steps an employer should take to prevent sexual harassment in the workplace.31

In 1986, the United States Supreme Court addressed the issue of harassment in Meritor Savings Bank v. Vinson.32 The Court supported the Commission's position, holding that sexual harassment can in fact be a form of discrimination prohibited by Title VII. The Meritor Court also laid the foundation for the basic analysis to be used by lower courts in all harassment cases.33 The Court found that for an atmosphere of harassment or hostility to be actionable the offending behavior must be sufficiently severe or pervasive to alter the victim's employment conditions and create an abusive working environment.34 The Meritor standard requires an objectively hostile environment, an environment that a reasonable person would find hostile or abusive.35 In addition, the victim in the case must subjectively perceive that the environment is abusive.36 The Court also addressed the important question of whether "voluntary" but unwelcome sexual activity could constitute sexual harassment.37 The Court found that "voluntary" sexual activity or activity which the complainant was not actually forced to participate in against his or her will was not a defense to a sexual harassment suit brought pursuant to Title VII.38 The Court noted that the key factor was whether the sexual advances and subsequent sexual activity was "unwelcome" and not whether the victim had a choice not to participate.39

In Harris v. Forklift Systems,40 the Supreme Court ruled that in a sexual harassment case the plaintiff does not have to prove concrete psychological harm to establish a Title VII violation. At the same time, conduct that is not severe or pervasive enough to create "an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive," is beyond Title VII's reach.41 In evaluating a hostile work environment, all factors were to be weighed including: frequency of the discriminatory conduct; its severity; whether it is humiliating or physically threatening, or a merely offensive utterance; and whether the conduct unreasonably interferes with an employee's work performance.42 To be actionable, the alleged harassing behavior need not drive the victim from her job, but it must be of such severity or pervasiveness as to pollute the working environment and thereby alter the conditions of the plaintiff's employment.43

The Civil Rights Act of 1991 added key provisions to Title VII's existing protective umbrella.44 These included expanding the rights of employees to sue for compensatory and punitive damages for sexual harassment or other discrimination based on sex or another protected characteristic.45

In 1998, the Supreme Court concluded in Faragher v. City of Boca Raton, Florida,46 and Burlington v. Ellerth,47 that employers can be vicariously liable for harassment by their supervisory employees under certain circumstances, moving away from the traditional restriction on employer liability based upon activity within the scope of employment. Employers would now be subject to a strict liability standard when employees with supervisory control engage in harassment that results in tangible employment actions.48 In situations where supervisors engage in harassment that does not result in a tangible employment action, an employer can avoid vicarious liability by showing that (1) the organization exercised reasonable care to avoid, correct, and mitigate any harassing behavior and (2) that the plaintiff unreasonably declined to take advantage of preventive or corrective opportunities that the organization provided.49 The Faragher and Ellerth decisions greatly impacted how sexual harassment cases were litigated.

In Oncale v. Sundowner Offshore Services,50 the Supreme Court addressed the issue of same-sex harassment. The Court held that any discrimination based on sex is actionable so long as it places the victim in an objectively disadvantageous working condition, regardless of the gender of either the victim, or the harasser.51 A unanimous Supreme Court found that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.52 The standard for proving harassment, however, remained the same.53 The plaintiff must still prove that there was discrimination because of sex and that the harassment was severe or pervasive.54

Recently, the Commission held, in Macy v. Dep't of Justice,55 that claims of discrimination based on transgender status, also referred to as gender identity claims, are cognizable under Title VII's sex discrimination ban and may, therefore, be processed under EEOC's regulations. The Commission noted that the Supreme Court has held that sex discrimination under Title VII was not limited to discrimination because of biological sex.56 It also encompassed gender stereotyping, that is, when an employer treats an employee adversely for failing to conform to gender-based expectations or norms. The federal courts have widely recognized the availability of the "sex stereotyping" theory as a valid method of establishing sex discrimination in cases involving individuals who act or present in gender non-conforming ways. The Commission added that transgender individuals are not limited to proving sex discrimination under a sex stereotyping theory, but may establish sex discrimination in the same ways non transgendered individuals establish such discrimination. While the Commission made no findings with respect to the merits of the claim in Macy, the Commission made clear that complaints of discrimination on the basis of transgender status should be processed under Title VII as claims of sex discrimination.57

Despite the changes in the law over the years, fundamentally the Meritor "severe or pervasive" standard forms the heart of every legal analysis pertaining to sexual harassment.58 In some basic ways, the law of sexual harassment remains much the same as it was in the late 1980's. Complainants must generally establish that the conduct suffered was "severe or pervasive," in order to prevail.59

Racial Harassment

Title VII of the Civil Rights Act of 1964 protects individuals from discrimination based upon race.60 This law makes it illegal for an employer to discriminate against individuals because of their race in any terms and conditions of employment.61

In 1971, the Fifth Circuit's decision in Rogers v. EEOC62 began to pave the modern path of case law pertaining to racial harassment. The Fifth Circuit held that racially segregating patients in a doctor's office could negatively impact "the terms, conditions, or privileges" of employment, and thereby violate Title VII.63 The Rogers Court found that "the phrase 'terms, conditions, or privileges of employment' in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination."64 The Court went on to observe that "[o]ne can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers."65 The principal opinion in the case concluded that employment discrimination was not limited to the "isolated and distinguishable events" of "hiring, firing, and promoting."66 On the contrary, the protections of Title VII could also be violated by a work environment "heavily polluted with discrimination," because of the negative effects of such environment on an employee's well-being.67 Following the Rogers decision, a plaintiff claiming employment discrimination based upon race could assert a claim for a racially hostile work environment in addition to the traditional claim of "disparate treatment."68

In 1976, the Supreme Court further clarified the reach of Title VII in McDonald v. Sante Fe Trail Transp. Co.,69 by holding that its terms are "not limited to discrimination against members of any particular race" and are in fact intended to cover Caucasian men as well.70 The Court had previously held in Griggs v. Duke Power Co.71 that Title VII proscribed discriminatory activity directed toward any racial group. In McDonald the Court expanded upon the meaning of this language, finding that Title VII prohibits racial discrimination in employment against white persons under the same standards as discrimination against nonwhites.72

Several lower court decisions added another layer of relevant precedent in the 1980's. In Snell v. Suffolk Cty.,73 the Second Circuit held that a hostile environment claim required the plaintiff to show that his work environment was so pervaded by racial harassment as to alter the terms and conditions of his employment. Specifically, the plaintiff "must prove more than a few isolated incidents of racial enmity."74 In Johnson v. Bunny Bread Co.,75 the Eighth Circuit found no violation of Title VII from infrequent use of racial slurs. This closely resembles the standard now used when determining whether sexual harassment creates a hostile work environment.76

In a recent decision, the U.S. Court of Appeals for the D.C. Circuit stated that a plaintiff may bring a harassment claim against an employer for a single offensive slur, if the insult is egregious enough.77 The plaintiff, an African-American man, received a promotion, but not a pay raise unlike other employees who received pay raises when they were promoted. Plaintiff alleged that, when discussing the denial of his raise, one management official made a comment to him that specifically referenced his race, and on another occasion a different management official used a racial slur.78 The Court found that these statements were sufficient to preclude a decision on summary judgment since a reasonable juror could conclude that they created a hostile work environment. The D.C. Circuit applied the standard articulated in Meritor and Harris as to when harassment violates the law, which is when the harassing conduct creates a hostile work environment when considered from the perspective of a reasonable person. Court found, however, that the epithet in the case when considered with the circumstances in which it was used by a high-ranking manager was an example of the rare case in which a single incident could create a hostile work environment.

The Supreme Court recently addressed the scope of vicarious employer liability for harassment in Vance v. Ball State University.79 Although the Supreme Court had, in 1998, explained vicarious liability for harassment by supervisors, the Court did not define "supervisor" until its 2013 Vance decision. There, the Court held that employers are vicariously liable for an employee's harassment if that employee had authority to undertake tangible employment actions affecting the target of the harassment and is therefore his or her "supervisor." Although employees with less authority do not subject an employer to vicarious liability, the Court was clear that the nature and degree of authority wielded by the harasser are important factors in determining whether the employer is liable for failing to act reasonably to prevent or correct harassment by that individual. Significantly, the Court in Vance noted that, "[a]ssuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place."80 The decision in Vance limits the category of individuals who are considered supervisors and for which an employer may be held vicariously liable for harassment. Specifically, an individual is considered a supervisor only if he or she has the authority to take tangible employment actions.81 This decision makes it more difficult to pursue harassment claims against employees with the authority to control their subordinates' daily work but who simultaneously lack the authority to take tangible employment actions against those subordinates. Following the Vance decision, the courts will continue to address a range of issues including the scope of the term "tangible employment action" and whether it extends beyond actions with economic consequences, as well as the role of delegated decisionmaking in assessing whether individuals are, in fact, "supervisors" for liability purposes.

Emerging Issues: Conduct Outside the Workplace in a Hostile Work Environment Claim

Several Circuit Courts have addressed the issue of whether conduct outside the workplace can be raised in a claim of harassment. Specifically, the First,82 Second,83 Seventh,84 and Eighth85 Circuit Courts of Appeals have admitted evidence of off-duty conduct to support a hostile work environment claim. In Crowley v. L.L. Bean, Inc.,86 the U.S. Court of Appeals for the First Circuit upheld a District Court's consideration of conduct outside the workplace in a hostile work environment case. The plaintiff claimed that a co-worker stalked and harassed her. The harassment involved improper touching, including grabbing her foot and massaging it against her will at an employer-sponsored pool party, physically blocking her path and thereby forcing her to squeeze by him, continually following her at work, following her home, and even breaking into her house.87 In allowing the admission of evidence of the non-workplace conduct, the Court reasoned that "[c]ourts . . . do permit evidence of non-workplace conduct to help determine the severity and pervasiveness of the hostility in the workplace"88 Moreover, the Court determined that the co-worker's conduct outside the workplace explained why his presence around the plaintiff at work created a hostile work environment.89 The Court's decision acknowledged that focusing solely on conduct in the workplace would hinder the application of Title VII by excusing the workplace effects that the statute aims to eliminate.90

Similarly, the Second Circuit Court of Appeals focused on the issue of harassment outside the workplace in Ferris v. Delta Airplanes.91 In Ferris, a female flight attendant brought a hostile work environment suit claiming that a male flight attendant raped her during a flight layover.92 The Court determined that the hotel room was an extension of the plaintiff's workplace because the employer provided the room, and it was likely that crew members would socialize with one another.93 As a result, the Court admitted the plaintiff's evidence of rape to support her hostile work environment claim.94

The Seventh Circuit Court of Appeals followed the Second Circuit's approach in its analysis of Lapka v. Chertoff.95 In this case, the plaintiff alleged that she was raped by a Department of Homeland Security employee while attending a mandatory training course.96 The Agency argued that the rape should not be considered as workplace harassment because it occurred off-hours in a private hotel room.97 The Court rejected this argument, stating that "harassment does not have to take place within the physical confines of the workplace to be actionable; it need only have consequences in the workplace."98 The Court's analysis focused on the fact that the rape occurred at an employer-sponsored function where the employer provided the accommodation. Based on these circumstances, the Court determined that the sexual assault grew out of the workplace environment.99

In Dowd v. United Steelworkers of America,100 the Eighth Circuit Court of Appeals recognized that "offensive conduct does not necessarily have to transpire at the workplace…to conclude that it created a hostile work environment." The plaintiffs were African-American employees that were subjected to racial slurs and threats of physical violence after crossing a picket line. 101 The Court rejected the defendant's argument that since the conduct took place on public property in front of the plant, it could not have created "an abusive working environment."102 The Court noted that the defendant placed too much emphasis "on the time and place of the offensive conduct instead of the nature and manner of the offensive conduct."103 The harassment was "in physical proximity to the plant [where the plaintiffs worked], and arguably, perpetrated with the intention to intimidate and to affect the working atmosphere inside the plant."104

These decisions demonstrate that courts may apply a totality of the circumstances approach when determining employer liability for employees' conduct outside the workplace. The fact that harassment is carried out at a location other than the workplace may not be enough to protect employers from liability if there is a nexus between the alleged harassing activity and the workplace.

The Commission recently found that an allegation of harassment on social media could be part of a discriminatory hostile work environment and should not be dismissed for failure to state a claim. In Knowlton v. Dep't of Transp.,105 Complainant alleged that one of his co-workers posted a racist statement about him on Facebook. Complainant did not have a Facebook account but heard about the posting from another co-worker.106 Complainant alleged that he became uncomfortable after the posting and was subsequently reassigned to another supervisor who "hounded and mocked [him] on a continual basis."107 The Commission concluded that Complainant set forth an adequate claim of hostile work environment harassment.

Conclusion

Federal agencies must ensure that they implement effective anti-harassment policies. Ensuring that federal agencies maintain effective internal policies and put in place procedures to deal with harassment is critical in furthering the government's role as a model employer.


Footnotes

1 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Prevention and Elimination of Harassing Conduct in the Workplace, EEOC Order 560.005, available at http://www.eeoc.gov/eeoc/internal/harassment_order.cfm; see also EEOC Order No. 560.005 "Prevention and Elimination of Harassing Conduct in the Workplace," (August 9, 2006), http://www.eeoc.gov/eeoc/internal/harassment_order.cfm.

2 Id.; see also Meritor, 477 U.S. 57.

3 42 U.S.C. § 2000e-2(a)(1).

4 29 U.S.C. §§ 791, et seq.

5 29 U.S.C. §§ 621 et seq.

6 42 U.S.C.A. § 2000ff-1(a). GINA protects against discrimination "because of genetic information." While many of the federally protected classes have genetic components to them, GINA specifically focuses on whether or not an employer's knowledge of an employee's genetic information affected a term, condition, or privilege of employment. GINA was originally intended to stop employers from making "predictive assessment[s] concerning an individual's propensity to get an inheritable genetic disease or disorder." H.R.Rep. No. 110-28, pt. 3, at 70 (2007), 2008 U.S.C.C.A.N. 112, 141. How this intent might impact a claim of harassment has not yet been addressed by the courts. See Poore v. Peterbilt of Bristol, L.L.C., 852 F. Supp.2d 727, 731 (W.D. VA, 2012).

7 Hudson v. Dep't of Commerce, EEOC Appeal No. 05890146 (May 4, 1989) ("The Commission acknowledges that the line between the two types of harassment is not always clear, and 'environmental' harassment may lead to 'quid pro quo' harassment if the offending supervisor abuses his authority over employment decisions, thus making participation in the sexual conduct a component of the working environment").

8 Id.

9 Id.

10 Id.

11 29 C.F.R. § 1604.11(a); see also Drago v. Aetna Plywood, Inc., 968 F. Supp. 1251 (N.D.Ill. 1997) ("The Seventh Circuit has accepted the description of quid pro quo harassment contained in EEOC regulations").

12 Meritor, 477 U.S. at 67.

13 See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

14 Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994).

15 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Model EEO Programs Must Have An Effective Anti-Harassment Program, available at http://www1.eeoc.gov//federal/model_eeo_programs.cfm.

16 Id.; see also EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, Notice 915.002, June 18, 1999.

17 Id.

18 Id.; see also, Wise, Patricia A., Testimony to the Equal Employment Opportunity Commission, Workplace Harassment, Meeting January 14, 2015, available at http://www.eeoc.gov/eeoc/meetings/1-14-15/wise.cfm.

19 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Model EEO Programs Must Have An Effective Anti-Harassment Program, available at http://www.eeoc.gov/federal/model_eeo_programs.cfm; see also EEOC Order No. 560.005 "Prevention and Elimination of Harassing Conduct in the Workplace," (August 9, 2006), http://www.eeoc.gov/eeoc/internal/harassment_order.cfm.

20 See Miaskoff, Carol, Testimony to the Equal Employment Opportunity Commission, Workplace Harassment, Meeting January 14, 2015, available at http://www.eeoc.gov/eeoc/meetings/1-14-15/miaskoff.cfm.

21 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Model EEO Programs Must Have An Effective Anti-Harassment Program, available at http://www1.eeoc.gov//federal/model_eeo_programs.cfm.

22 Id.

23 Id.

24 42 U.S.C. § 2000e-2.

25 U.S. Equal Employment Opportunity Commission, Strategic Enforcement Plan, FY 2013-2016, available at http://www.eeoc.gov/eeoc/plan/sep.cfm

26 42 U.S.C. § 2000e-2(a)(1).

27 Id.

28 Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976).

29 See 29 C.F.R. § 1604.117 (2014).

30 Id.

31 See id..; see also U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Policy Guidance on Current Issues of Sexual Harassment, available at http://www.eeoc.gov/policy/docs/currentissues.html.

32 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).

33 Id. at 67.

34 Id.

35Id.

36Id.

37 Meritor, 477 U.S. at 68.

38 Id.

39 Id.

40 Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993).

41 Harris, 510 U.S., at 21 (citing Meritor, 477 U.S., at 67).

42 Harris, 510 U.S. 17.

43 Id. at 21-22.

44 42 U.S.C.A. § 1981 (2014).

45 Id.

46 Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

47 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

48 Id.

49 Id.

50 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).

51 Id.

52 Id.

53 Id.

54 Id.

55 EEOC Appeal No. 0120120821(April 20, 2012).

56 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

57 See also Jameson v. U.S. Postal Serv., EEOC Appeal No. 0120130992 (May 21, 2013) (intentional misuse of the employee's new name and pronoun may cause harm to the employee, and may constitute sex-based discrimination and/or harassment); Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120133123 (April 16, 2014) (a sex discrimination allegation involving the failure to revise agency records pursuant to changes in gender identity stated a valid Title VII claim).

58 Meritor, 477 U.S. 57.

59 Id.

60 Id.

61 Id.

62 Rogers v. EEOC, 454 F.2d 234 (1971), cert. denied, 406 U.S. 957 (1972).

63 Rogers, 454 F.2d, at 238 (quoting 42 U.S.C. § 2000e-2(a)(1)); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 767 (1998).

64 Rogers, 454 F.2d, at 238.

65 Id.

66 Rogers, 454 F.2d, at 238 (opinion of Goldberg, J.).

67 Id.

68 Rogers, 454 F.2d at 238.

69 McDonald v. Sante Fe Trail Transp. Co., 427 U.S. 273 (1976).

70 Id.

71 Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).

72 Id.

73 Snell v. Suffolk Cty., 782 F. 2d 1094, 1103 (CA2 1986).

74 Id.

75 Johnson v. Bunny Bread Co. , 646 F. 2d 1250, 1257 (CA8 1981).

76 See Harris, 510 U.S. at 21.

77 Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013).

78 Id.

79 133 S. Ct. 2434 (2013).

80 Id. at 2453.

81 Vance, 133 S. Ct. 2434; see also Faragher, 524 U.S. 775, Burlington, 524 U.S. 742.

82 Crowley v. L.L. Bean, Inc., 303 F.3d 387, 409-410 (1st Cir. 2002)

83 Ferris v. Delta Airlines, Inc., 277 F.3d 128, 135 (2d Cir. 2001).

84 Lapka v. Chertoff, 517 F.3d 974, 983 (7th Cir. 2008).

85 Dowd v. United Steelworkers of Am., 253 F.3d 1093, 1102 (8th Cir. 2001).

86 Crowley, at 392.

87 Id.

88 Crowley, at 409.

89 Crowley, at 410.

90 Crowley, at 409-10.

91 Ferris, at 128.

92 Id. at 131-32.

93 Id. at 134-35.

94 Ferris, at 134-35.

95 Lapka v. Chertoff, 517 F.3d. 974 (7th Cir. 2008).

96 Lapka, at 978.

97 Lapka, at 983.

98 Id.

99 Id.

100 Dowd v. United Steelworkers of America, 253 F.3d at 1102.

101 Id.

102 Dowd, at 1101.

103 Id.

104 Dowd, at 1102.

105 EEOC Appeal No. 0120121642 (2012).

106 Id.

107 Id. at 2.