EEOC Seal

U.S. Equal Employment Opportunity Commission



 Digest Seal The DIGEST Of Equal Employment Opportunity Law


Volume XXV, No. 4

Office of Federal Operations

April 2015


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

SELECTED NOTABLE EEOC DECISIONS FROM FY 2014


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: Jessica Brittany Bingham, Michael Campbell, Kiara Carty, Nichole Davis, Robyn Dupont, Alieen Hwang, Wanda L. Jones, Joseph M. Kirchgessner, Melissa Perry, Stephanie Ross, Alisa Silverman, Jacob B. Workman, Ebbie Yazdani

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


(The Fall 2014 edition of the Digest contains a sampling of summaries of decisions of note, some appearing in previous issues, selected by the staff of the Digest from among the volume of decisions the EEOC issues each fiscal year. The summaries are neither intended to be exhaustive or definitive as to the selected subject matter, nor are they to be given the legal weight of case law in citations. For summaries of decisions involving claims of harassment, see by statute as well as under multiple bases. The Commission will redact Complainants' names when it publishes decisions. There will be no change with regard to the way in which the Commission communicates its decisions to the parties. This change was made to address privacy concerns and to ensure consistency with the Commission's approach in the rest of its enforcement work and the investigations of complaints. - Ed.)

SELECTED EEOC DECISIONS

Attorney's Fees

Attorney's Fees Discussed. An Administrative Judge (AJ) found that the Agency discriminated against Complainant on the basis of her disability and ordered the Agency to pay $22,827 in attorney's fees. Complainant's attorney subsequently submitted a supplemental fee request for services in the amount of $2,136. The Agency denied the fee request as "excessive in nature" and stated that it would only reimburse the attorney for an additional $525. On appeal, the Commission noted that that there was no dispute as to the hourly rate, and assessed the reasonableness of the hours claimed. The Commission found that a portion of the claimed hours was excessive. Specifically, the Commission found that the Agency properly denied the hours for "client updates" while Complainant was awaiting the AJ's decision. In addition, the attorney could not be reimbursed for time spent to "Receive Transcript Client Update" because it was administrative in nature. Finally, the Commission found that the Agency properly reduced the time claimed for reading the AJ's decision on damages, and preparing the supplemental fee petition. Therefore, the Commission agreed with the Agency that Complainant was entitled to an additional award of $525 in attorney's fees. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140798 (September 19, 2014).

Complainant Entitled to Attorney's Fees for Work to Obtain Compliance with Commission's Final Order. In a prior decision, the Commission affirmed an AJ's finding of discrimination and ordered relief, including attorney's fees. The Agency paid attorney's fees in the amount ordered by the Commission, as well as fees claimed in a second fee petition for work related to Complainant's initial appeal. Complainant's counsel subsequently submitted a third request for $9,122.50 for additional services rendered, claiming that they were necessary to obtain compliance with the Commission's order. When the Agency declined to pay more than $2,000, Complainant appealed the matter to the Commission. The Agency contended that the request was wholly unreasonable and excessive because at the time legal services were rendered, the Agency was in compliance with the Commission's May 2012 Order. However, the record showed that a portion of the relief initially ordered by the Commission was not provided until December 2012 and January 2013, and the Agency did not report to the Commission that it was in compliance with the order until January 18, 2013. Therefore the Commission found that Counsel's efforts to bring the Agency into compliance from July 2012 until December 2012 constituted hours reasonably spent in processing Complainant's complaint and ordered the $9,122.50 in attorney's fees be paid in full by the Agency. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131744 (September 11, 2014).

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 AJ found that Complainant was not subjected to a hostile work environment, but concluded that the Agency subjected the Complainant to retaliation when it forced him to resign in lieu of termination. 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.

Complainant appealed the AJ's attorney fees calculation. 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 unreasonable. 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. The Commission noted that attorney's fees may not be recovered for work on unsuccessful claims, and should exclude time spent on "truly fractionable" claims or issues on which they did not prevail. In this case, however, Complainant's retaliatory harassment claim encompassed his disparate treatment claim and the facts of the two claims were intertwined. Therefore, the claims were not fractionable. 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 those fees should be excluded from the award. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120111028 (May 15, 2014).

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

Attorney's Fees for Out-Of-Town Counsel Proper. Complainant was unable to find a local South Dakota attorney who practices federal employment law. As a result she found and hired an attorney in Washington, D.C. Complainant and the Agency entered into a settlement agreement which provided that the Agency was to pay reasonable attorney's fees. The Agency paid attorneys fees based on a lower prevailing market rate in South Dakota, alleging that it was unreasonable for Complainant to have hired out-of-town counsel. On appeal, the Commission modified the attorney's fees to reflect the prevailing rate in Washington D.C. The Commission found that if a party does not find counsel readily available in his or her locality with the reasonably required degree of skill, it is reasonable for the party to go elsewhere to find an attorney, even at a higher rate than the prevailing market rate in the location where the action arose. The burden is on the Agency to show the decision to use out-of-town counsel was unreasonable. The Commission found that Complainant's use of out-of-town counsel was reasonable given that she tried but was unable to find a competent local attorney who specialized in representing federal employees in EEO matters. Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120133329 (February 28, 2014).

Class Complaints

Finding of Discrimination in Class Complaint Upheld. The Commission previously issued a decision certifying a class consisting of "female Special Agents [SAs] who were denied foreign assignments between 1990 and 1992." In April 2011, after a hearing, the AJ issued a "Class Action Interim Hearing Decision" which found liability against the Agency. In October 2011, the Agency filed a motion to decertify the class, in which it asserted that the AJ's decision was contrary to the new standards for class certification set forth in the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes. The AJ denied the Agency's motion and issued a report of findings and recommendations, which included the previously issued finding of liability and also included the recommended remedies. The Agency then issued a final decision rejecting the AJ's findings and recommendations. On appeal, the Commission affirmed the AJ's denial of the Agency's motion to decertify the class. In addition, the Commission found that there was substantial evidence in the record to support the AJ's findings of class-wide disparate impact and disparate treatment discrimination. The Commission ordered the Agency to create and implement a Gender Discrimination Remedy Plan; pay the Class Agent (CA) $150,000 in non-pecuniary compensatory damages; pay $1,060,354.50 in attorney's fees, which included a 20 percent fee enhancement; retroactively promote CA to a foreign position; and pay CA back pay, including benefits associated with overseas positions.

The Commission denied the Agency's request for reconsideration, but modified its previous order regarding remedies. The Commission noted that the Supreme Court has held that a class certification order may be amended before the decision is issued on the merits of the claim. In this case, the AJ issued a decision on the merits prior to the Supreme Court's decision in Wal-Mart. The Commission stated that it was clear the AJ's April 2011 decision, issued after a nine-day hearing, was a decision on the merits and it contained specific liability findings. Therefore, Wal-Mart was not applicable in this case as the issue of class certification had been previously decided. In addition, the Commission found that the AJ's determination of class-wide disparate impact and disparate treatment discrimination was supported by substantial statistical and testimonial evidence in the record. The Commission found that the orders regarding the Gender Discrimination Remedy Plan, and award of $150,000 in damages were not clearly erroneous. The Commission stated, however, that CA failed to carry her burden of producing specific evidence that the enhancement to the award of attorney's fees was necessary. The Commission modified the order to remove the enhancement. Finally, the Commission concluded that the retroactive promotion of CA to the foreign position with back pay and benefits associated with overseas positions was clearly erroneous because the foreign position was a lateral assignment and overseas differentials were not recoverable as part of back pay. The Commission modified the order to have the Agency retroactively assign CA to the foreign position. Complainant v. Dep't of Justice, EEOC Request No. 0520130561 (August 12, 2014).

Class Certification Denied. Complainant, an Aircraft Sheet Metal Worker, alleged discrimination on the basis of national origin on behalf of 23 putative class members. The AJ denied class certification, finding that Complainant did not meet the numerosity requirement. Complainant appealed to the Commission, which affirmed the AJ's decision. The Agency did not challenge the AJ's finding that Complainant met the requirements of commonality, typicality and adequacy of representation. With regard to the numerosity, requirement, the AJ found that four contractors included in the putative class were joint employees of the Agency, and the Agency specifically noted the AJ's finding of joint employment when it implemented the AJ's decision. Nevertheless, the Commission affirmed the AJ's finding that in this case, a putative class of 23 was still too small to satisfy the numerosity requirement. The Commission noted that the geographic proximity of the putative class members favored the consolidation of complaints and not class certification. In addition, Complainant alleged but failed to show that a fear of retaliation reduced the potential members of the class, or that putative class members would be unlikely to file individual claims due to fear of retaliation. The Commission remanded Complainant's complaint to be processed individually, and ordered the Agency to notify Vietnamese employees working for the Supervisor of the decision, and provide them with 30 days to file individual EEO complaints. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120131451 (July 16, 2014).

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), request for reconsideration denied, EEOC Request No. 0520140506 (February 19, 2015).

Denial of Class Certification: The Commission affirmed the Agency's final order denying class certification. Complainant, the class agent, 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 failed to 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 in fact 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, a Transitional Employee (TE) Carrier, 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.)

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

Commission Affirms $200,000 Damages Award for Sex Discrimination. The Commission affirmed the AJ's finding that Complainant was discriminated against on the basis of sex with regard to her working conditions and when she was terminated from her job. The Commission also found that the AJ's award of $200,000 in compensatory damages was proper. Witnesses described the deterioration of Complainant's physical appearance and the decline of her day-to-day happiness into a state of anxiety and desperation. Further, Complainant stated that she felt humiliated, angry, helpless, and hopeless, and her marriage ended. Complainant also experienced sleeplessness, weight loss, and damage to her skin and hair. The Commission also considered evidence regarding the emotional impact of Complainant's economic hardship caused by the discrimination. Complainant was the chief income earning parent for her children, and she faced difficulties locating work after she was terminated. Therefore, the Commission concluded that the AJ's award was reasonable. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720130039 (August 7, 2014).

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

Damages Award for National Origin Discrimination and Reprisal Reduced to $120,000. After 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. The AJ awarded Complainant, among other things, $210,000 in non-pecuniary compensatory damages. The Agency appealed the damages award. 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, however, reduced the award to $120,000. While the AJ awarded Complainant differing amounts for various periods of time, the AJ did not explain in any detail how he arrived at the amounts awarded. He did not explain the reasoning for dividing the compensable period into separate timeframes, nor did he cite to specific evidence that he felt warranted the awards. The record showed that Complainant filed two additional EEO complaints during two of the periods and no discrimination was found in those matters. In addition, Complainant attributed the emotional distress he experienced during a period of time to the stress of his EEO hearing for which he could not recover damages. The Commission also determined that the AJ's finding that Complainant would likely have been transferred to other management positions was speculative and not supported by the record. The Commission noted that Complainant asserted that he was entitled to an award of $120,000, and supported his claim for that specific amount through the evidence and testimony introduced at the hearing. However, there was no evidence in the record to explain the AJ increasing Complainant's requested damages amount. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720100036 (May 13, 2014).

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

Commission Affirms Award of $100,000 in Damages for Sexual Harassment. Following a hearing, an Administrative Judge (AJ) found that the Agency subjected Complainant to sexual harassment, and awarded Complainant, among other things, $100,000 in non-pecuniary compensatory damages. The Agency filed an appeal with regard to the award of damages. The Commission noted that the record included testimony from Complainant, two co-workers, and Complainant's doctor regarding the effects of the harassment. Complainant stated that the harassment adversely affected her health, her sleep, and her attitude, and caused her anxiety, stress, chest pain, shortness of breath, and heart palpitations. Although Complainant had previously been diagnosed with depression and heart disease, the record showed that the discrimination significantly worsened Complainant's symptoms. Complainant's doctor testified that he discussed stressors at work with Complainant and prescribed medication for anxiety and high blood pressure, and Complainant's co-workers confirmed the description of her symptoms. The Commission concluded that the AJ's award was not monstrously excessive and was consistent with awards in cases of involving similar duration and severity. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720130010 (October 31, 2013).

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

Commission Increases Award 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).

Commission Affirmed Award of $30,000 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), request for reconsideration denied, EEOC Request No. 0520140443 (February 6, 2015).

Commission Affirmed Award of $20,000 for Discriminatory Non-selection. Complainant brought a successful claim of race and sex discrimination when the Agency did not select him for the position of Prosthetic Representative. Complainant asserted that he was entitled to $76,600 in compensatory damages. The Agency ultimately awarded Complainant $20,000.00 in nonpecuniary damages, and $540.00 in pecuniary damages to cover the cost of future counseling expenses. On appeal, the Commission affirmed both amounts, stressing that all compensatory damages are for harm that was directly or proximately caused by the agency's discriminatory conduct. Complainant stated that he suffered stress, depression, anxiety, headaches, loss of appetite and sleep, loss of enjoyment of life, and marital strain. His evidence consisted of affidavits and testimony from coworkers, his wife, family, and psychologist. Complainant acknowledged that he was diagnosed with depression prior to the Agency's discriminatory act and received treatment for ongoing depression. In addition, Complainant attributed his elevated stress to many factors. The Commission concluded that, taking into account evidence of Complainant's ongoing and apparently worsening depression, $20,000.00 was "reasonable." The Commission also affirmed the $540.00 in pecuniary damages, even though it only partially covered Complainant's counseling costs, because Complainant's ongoing counseling treatment was only partially related to the harm caused by the Agency. Complainant would have received this treatment anyway due to his preexisting condition, and the Agency was only responsible for the harm it inflicted due to its discriminatory acts. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120123309 (July 30, 2014).

Commission Increased Award of Damages 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, Complainant requested that the Commission award her $150,000 in non-pecuniary damages. 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 on Complainant's removal which was not at issue. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112818 (May 14, 2014).

Commission Increased Damage Award 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. Complainant requested $350,000 in 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).

Commission Increased Award of Damages for Disability Discrimination and Reprisal. Complainant successfully brought discrimination claims on the bases of physical disability and reprisal when the Agency did not provide her with work within her medical restrictions or reasonable accommodations. For over one year, Complainant did not receive any work assignments, and the Agency's only requirement of her was to sit in a chair, except for breaks, in an enclosed area on the workroom floor, visible to fellow employees. The AJ awarded Complainant $2,500 in non-pecuniary damages for emotional harm based on Complainant's testimony regarding her humiliation. In determining this amount, the AJ noted that Complainant had a preexisting stress-related condition and had been regularly seeing a psychiatrist well before the Agency's discriminatory actions began. In addition, Complainant did not provide evidence of her emotional harm beyond her own testimony. Complainant appealed and the Commission increased the award to $7,500. Although Complainant submitted additional evidence, the Commission limited itself to the existing record because Complainant failed to show that the evidence was not reasonably available prior to or during the hearing. Complainant, however, testified that the Agency's actions caused her humiliation and distress on a daily basis, and the AJ found that the Agency's discriminatory conduct continued for 17 months. The Commission stated that it was reasonable to infer that Complainant would suffer humiliation and emotional distress based on the "inherently degrading and publicly humiliating nature" of being required to simply sit in a chair in an enclosed area on the workroom floor, visible to other employees, without being given any assignments. The Commission addressed Complainant's preexisting condition by pointing to her testimony that she suffered additional stress than she otherwise would have felt due to the Agency's actions. Thus, the Commission found that an award of $7,500 was appropriate. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111711 (July 30, 2014).

Commission Affirmed $6,000 Damage Award for Sexual Harassment. The Commission previously found that Complainant was subjected to sexual harassment by a co-worker for a period of five to six months, and ordered the Agency to investigate her claim for damages. The Agency awarded Complainant $6,000 in non-pecuniary damages and the Commission affirmed the award on appeal. The Commission noted that much of Complainant's claimed pain and suffering stemmed from other incidents such as a reassignment and matters related to her retirement which were not part of the discrimination finding. While Complainant did not allege that the co-worker threatened her, she did say that she was fearful of him, and the Commission found that the co-worker's actions could fairly be perceived as intimidating. Further, the Commission stated that painful memories of sexual harassment, no matter the trigger, are proximately related to the discrimination and compensable. The Commission credited Complainant's statement that she experienced anxiety attacks, felt humiliated and betrayed, was fearful, and experienced nausea, but noted that Complainant did not submit any medical documentation to corroborate her claim that she saw healthcare professionals as a result of the harassment. The Commission also agreed with the Agency that most of the claimed medical expenses were not adequately documented. The Commission did, however, award Complainant $382.64 for past medical expenses for visits to her physician during the time of the alleged harassment, as well as $312.15 in costs incurred in prosecuting her EEO complaint. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141347 (July 24, 2014).

Commission Affirmed $5,000 Damage Award for Retaliation. An AJ found that the Agency retaliated against Complainant, and awarded him $5,000 in compensatory damages. On appeal, the Commission found that the award was proper. Complainant presented evidence to show that following his receipt of the bill the symptoms of his rheumatoid arthritis became worse, causing him fatigue, stiffness and joint pain. In addition, the record showed that Complainant experienced depressed mood, anger, stress, difficulty sleeping and loss of interest in activities. While Complainant established that his arthritis was aggravated by the retaliation, the medical evidence showed that the events surrounding his termination, for which no discrimination was found, were contributing factors. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120536 (August 18, 2014).

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

Commission Affirmed $4,000 Damage Award 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).

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

Complainant Entitled to $3,000 Damage Award for Disability Discrimination. The Commission previously ordered the Agency to investigate Complainant's claim for compensatory damages resulting from the disclosure of her medical condition in violation of the Rehabilitation Act. The Agency subsequently issued a decision finding that Complainant was not entitled to damages. On appeal, the Commission found that Complainant did, in fact, present evidence to support her claim of non-pecuniary damages. Complainant stated that her pre-existing conditions were exacerbated, and she isolated herself from family and friends. She experienced sleeplessness, anxiety, stress, depression, humiliation, shame, loss of self esteem, and weight fluctuations. She noted that, after her diagnosis was revealed, she suffered nausea and stomach pain for several weeks, and tried to avoid contact with her co-workers. The Commission concluded that Complainant was entitled to an award of $3,000 in non-pecuniary damages. Complainant v. Gen. Serv. Admin., EEOC Appeal No. 0120110397 (July 8, 2014).

Commission Affirmed $250.00 Damage Award in Reprisal Claim. The Commission previously found that Complainant was discriminated against based on reprisal when an Acting Supervisor openly discussed with Co-workers that Complainant had filed an EEO complaint. Complainant requested $289,000 for non-pecuniary losses as well as damages for past pecuniary losses. Following a supplemental investigation, the Agency awarded Complainant $250.00 for non-pecuniary losses and declined to award pecuniary damages. On appeal, the Commission noted that an award of non-pecuniary compensatory damages should reflect the extent to which the Agency's discriminatory action directly or proximately caused the harm as well as the extent to which other factors also caused the harm. It is the complainant's burden to provide objective evidence in support of the claim and proof linking the damages to the alleged discrimination. Here, the Commission found that $250.00 was reasonable given the fact that there was limited evidence provided by Complainant to establish harm suffered by the Supervisor's comments. Complainant attributed the harm to incidents for which no discrimination was found or which occurred after the Supervisor's comment. Complainant did not present any documentary evidence to show that she suffered either short or long term medical problems as a result of the reprisal. The Commission also found that Complainant was not entitled to pecuniary damages for past therapy sessions, and her emergency room visit, as the therapy took place before the discriminatory act and there was no evidence that the emergency room visit was related to the discrimination. As a result, the Commission affirmed the Agency's final decision. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133316 (September 4, 2014).

Dismissals

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

Dismissal of Complaint for Failing to Raise Issue with the EEO Counselor and for Raising the Matter in a Grievance 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 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), request for reconsideration denied, EEOC Request No. 0520140466 (December 24, 2014).

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

Complaint Improperly Dismissed 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).

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

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

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

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

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

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

Dismissal of Complaint for Filing a Grievance Proper. Complainant, an Aviation Safety Engineer covered under a collective bargaining agreement, claimed he had been subjected to discrimination when he was not selected for a promotion within the Agency. On February 13, 2013, Complainant first raised the matter under the grievance procedures of his collective bargaining agreement which allowed for discrimination claims to be addressed through a negotiated grievance process. He subsequently raised the same matter as an EEO complaint on April 22, 2013. The Agency dismissed his EEO complaint because Complainant had previously filed a grievance on the same matter. On appeal, the Commission found that the claims involved the same matter and affirmed the dismissal. Employees covered under a collective bargaining agreement who can address discrimination claims through a negotiated process may only seek relief through one of the two options, even if they do not know that choosing one option precludes them from utilizing the other. Claims raised through a grievance process do not need to be discrimination claims to preclude the complainant from later filing an EEO claim as long as it stems from the same matter. Simply raising the matter in either forum eliminates the use of the other. Complainant v. Dep't of Transp., EEOC Appeal No. 0120133004 (January 15, 2014); see also, Complainant v. Dep't of Hous. & Urban Dev., EEOC Appeal No. 0120132534 (January 9, 2014) (the record included a copy of Complainant's grievance regarding his job description and appraisal which was filed almost three months prior to the EEO complaint. While Complainant asserted that he did not pursue his grievance under the portion of the collective bargaining agreement which deals with discrimination claims, the Commission noted that the requirement that an individual elect to raise claims of discrimination in either the grievance or EEO process exists irrespective of whether the individual actually raised an issue of discrimination. Therefore, the Agency properly concluded that Complainant elected to adjudicate the matter in the grievance process).

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

Dismissal of Complaint Improper. Petitioner filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him when it issued him a Letter of Warning in May 2012. In a prior decision, the Commission reversed the Agency's dismissal of the complaint finding that Petitioner timely contacted an EEO Counselor on June 21, 2012, with regard to the Letter of Warning. The Agency subsequently notified the Commission that it would not comply with the order to resume processing the complaint because the matter had been settled in the grievance process on March 14, 2013. Petitioner then filed a petition for enforcement of the Commission's order. The record showed that Petitioner filed a grievance on the Letter of Warning, and the grievance was settled on June 7, 2012. Petitioner, who was not represented by an attorney, stated that he told the Agency he intended to pursue his retaliation claim in the EEO process. The grievance settlement provided that Petitioner "withdraws any and all pending complaints, including EEO complaints, grievances, or other actions." The Commission found that the language of the settlement agreement applied to all "pending" EEO complaints, and Petitioner had no pending EEO complaints or requests for EEO counseling at the time he signed the agreement. The Commission noted that the agreement contained no language barring Petitioner from filing a future EEO complaint. Therefore, the Agency was ordered to process the underlying complaint. Petitioner v. U.S. Postal Serv., EEOC Petition No. 0420130014 (December 26, 2013).

Complaint Improperly Dismissed for Failure to Cooperate. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it placed him in off-duty status and issued him a suspension. The Agency notified Complainant of a procedural defect with the complaint and asked him to resubmit a copy of the formal complaint with his signature within 15 days. When Complainant failed to provide a signed copy of the complaint, the Agency dismissed the matter for failure to cooperate. On appeal, Complainant noted that he had limited language skills. The record showed that although the formal complaint form was not signed by Complainant, the information submitted with the complaint included a document bearing Complainant's signature. The Commission stated that it appeared Complainant was not clear as to how the complaint was incomplete and did not understand that it only required his signature. The Commission found no evidence of a clear delay or contumacious conduct by Complainant. Therefore, given Complainant's obvious confusion in the matter, the Commission concluded that justice was not served by dismissing the complaint. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122608 (December 20, 2013).

Complaint Improperly Dismissed as Being Moot. Complainant filed a formal EEO complaint alleging that the Agency retaliated against him for prior EEO activity. The Agency framed the complaint as including only an allegation regarding an offensive and racially motivated statement in Complainant's annual performance appraisal. The Agency dismissed the complaint as moot, stating that management issued a revised narrative to Complainant's performance appraisal which did not include the offensive statement, and assured that such statements would not be placed in future appraisals. On appeal, the Commission noted that Complainant asserted this was not the first time that the Manager in question made racist statements in front of him. In addition, during EEO counseling and in his formal complaint, Complainant indicated that an Agency Attorney had been contacting various Managers to let them know of Complainant's EEO activity. Complainant claimed that these individuals were not involved in his prior complaints, and the Attorney was trying to block him from future job opportunities. The Commission noted that the Agency did not address the matter relating to the Attorney's conduct. Therefore, the Commission could not find that there was no reasonable expectation that the alleged violation would recur. Complainant v. Nat'l Aeronautics & Space Admin., EEOC Appeal No. 0120130895 (December 5, 2013).

Dismissal of Complaint for Failure to Timely Contact an EEO Counselor and Failure to State a Claim Was Improper. Complainant contacted an EEO Counselor on March 21, 2012, and subsequently filed a formal complaint alleging that the Agency discriminated against her and subjected her to harassment. Complainant stated, among other things that, beginning in 2006, she was denied Light Duty and other accommodations, and was given an Official Discussion regarding sick leave use on March 9, 2012. The Agency determined that the complaint comprised six claims. The Agency then dismissed five claims for failure to timely contact an EEO Counselor, and two claims for failure to state a claim. On appeal, the Commission initially found that the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment. Complainant asserted that she was subjected to continuous harassing and intimidating conduct by her Supervisors due to her medical conditions and requests for accommodation, and the Commission concluded that the matters, taken together, stated an actionable harassment claim. Further, at least one alleged incident occurred within the 45-day period preceding Complainant's initial EEO contact. The Commission has previously held that because the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable as long as at least one incident occurred within the filing period. Therefore, the entire harassment claim was remanded for processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123511 (November 27, 2013).

Complaint Improperly Dismissed for Abuse of Process. Complainant filed a formal EEO complaint in May 2012 alleging that the Agency discriminated against her when it refused to investigate an incident with a co-worker, placed her in a non-duty status, denied her reasonable accommodation, and issued her a Letter of Warning. Following an investigation, Complainant requested an administrative hearing. The AJ, however, dismissed the complaint for abuse of process, stating that Complainant had filed 14 prior complaints and failed to establish discrimination in any of those matters. Further, the AJ noted that the matters at issue were part of a union grievance. On appeal, the Commission found that the AJ erred in dismissing the instant complaint. The Commission noted that filing numerous complaints alone is not a sufficient basis for dismissal. While Complainant filed 14 complaints, she did so over a 17-year period, and the Agency did not show that the complaints were frivolous, particularly since the Commission had found in Complainant's favor in the past. The Commission further noted that Agency employees may file both a union grievance and an EEO complaint on the same matter. Therefore, Complainant was merely exercising her legal rights by filing both a grievance and an EEO complaint. The Agency did not provide any evidence that Complainant's complaints were meant to retaliate against it or to overburden the EEO complaint system. Therefore, the matter was remanded for a hearing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132532 (November 19, 2013).

Findings on the Merits and Related Decisions

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

Under the Age Discrimination in Employment Act

Violation of ADEA Recordkeeping Requirements. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of age when it did not select her for a Revenue Officer position, and used her interview score for subsequent applications for up to one year. Following a hearing, the AJ found no discrimination with regard to the matters alleged. Specifically, the AJ noted that Complainant did not present sufficient evidence to show that her performance during the interview was superior to that of the Selectee and that Complainant was treated the same as other similarly situated applicants. The AJ, however, determined that the Agency violated the recordkeeping requirements when the Interviewers destroyed Complainant's interview notes.

On appeal, the Commission affirmed the AJ's decision. With regard to the recordkeeping violation, the Commission noted that the ADEA regulations provide that an employer must keep any "records pertaining to the failure or refusal to hire any individual." The Agency provided interviewees with paper and the means to contemporaneously record their thoughts and perceptions during the interview. The Agency exercised complete dominion over the notes during the interview process, and collected them after the interview. Therefore, it was clear that the notes were in the Agency's control. The Commission concluded that because the notes were written records of past events that were at issue in the non-selection case and were within the Agency's control, they constituted "records pertaining to the failure or refusal to hire" under the ADEA's recordkeeping requirements which should have been preserved. Therefore, the AJ correctly concluded that the Agency violated the recordkeeping requirements by destroying the interviewees' notes. The Commission found that the AJ did not abuse his discretion in declining to draw an adverse inference against the Agency for failing to preserve the notes, or in ordering the Agency to communicate with and train all of its managers and supervisors to retain interview notes. Complainant v. Dep't of the Treasury, EEOC Appeal Nos. 0720140033 & 0120111532 (July 30, 2014).

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

Under the Rehabilitation Act

Unlawful Disability Related Inquiry Found. Complainant applied for the position of Equal Employment Opportunity Specialist, but was not selected in favor of another applicant. Complainant filed a formal EEO complaint alleging that he was discriminated against when he was not selected for the position and was denied reasonable accommodation. Following a hearing, an AJ found no discrimination with regard to those claims. The AJ concluded, however, that the Agency engaged in a pre-job offer disability-related inquiry during the selection process that violated the Rehabilitation Act. On appeal, the Commission concurred with the AJ's findings regarding Complainant's non-selection and the alleged denial of reasonable accommodation. The Commission also found that the Agency was liable for the pre-employment disability-related inquiry. The Commission noted that while the claim was not included in Complainant's complaint, the AJ correctly stated that a determination on the issue was required by the facts in the case. The Agency acknowledged that applicants were asked whether they had a physical or mental impairment that limited one of more major life activities and had been found eligible for the Federal Employment Program for Persons with Disabilities. The Commission rejected the Agency's assertion that it should not be liable for the inquiry because the question appeared on the USAJOBS website which was operated by the Office of Personnel Management, stating that the Agency must be responsible for the questions it puts forth to Agency applicants. Further, the Commission found that the harm from the question was not undone by an additional statement in the vacancy announcement that applicants would receive consideration regardless of "non-disqualifying physical handicap." The Commission concluded that the AJ properly awarded Complainant $5,000 in compensatory damages for the headaches, anxiety, sleeplessness, irritability and restlessness Complainant experienced as a result of the discrimination. The Agency was ordered, among other things, to review its pre-employment process and revise any forms and procedures necessary to ensure that its inquiries comply with the Rehabilitation Act. Complainant v. Dep't of Educ., EEOC Appeal No. 0720130002 (August 27, 2014), request for reconsideration denied, EEOC Appeal No. 0520150011 (February 25, 2015).

Disability Discrimination Found. Petitioner, a Customs and Border Protection Officer, notified the Agency that he had sleep apnea and asked to modify his work schedule so that he could consistently work the day shift. The Agency initially accommodated him by placing him on light duty and not assigning him to the overnight or "graveyard" shift. After a new Director took over, however, the Agency advised Petitioner that he would have to return to full duty, apply for disability retirement, resign or request reasonable accommodation. Petitioner asked for a modified work schedule or reassignment to a division that did not have a graveyard shift. The Agency determined that Petitioner was an individual with a disability due to his sleep apnea, but found that he was not qualified for his position because he could not perform the essential functions of rotating his shifts and performing substantial amounts of overtime. Petitioner was removed from his position when the Agency could not find a vacant, funded position for reassignment. Petitioner filed a mixed case appeal to the MSPB, which ultimately concluded that the Agency did not discriminate against Petitioner.

Petitioner filed a petition for review with the Commission. The parties stipulated that Petitioner was an individual with a disability. The Commission further found that Petitioner was qualified and able to perform the essential functions of the Customs and Border Protection Officer position. The Commission noted that there is a strong temptation to frame attendance or other measures of the time at which functions must be performed as essential functions, but that represents a flawed understanding of the requirements and structure of the Rehabilitation Act. The fact that attendance can be a condition precedent to performing a function does not render it a job function in and of itself. Instead, attendance and timing are methods by which a person accomplishes the essential functions of a job. Commission precedent has recognized that the proper way to determine whether an individual is qualified for a job is to examine whether the individual can perform the essential functions of the job while at work. In this case, there was no question that Petitioner could perform the essential duties of his position when he was at work, and, as such, was qualified for the position. It was undisputed that the Agency allowed employees at Petitioner's facility to swap shifts with each other and exempted certain employees from working the graveyard shift. Therefore, the Commission found that the Agency failed to show that modifying Petitioner's work schedule would have caused an undue hardship, and the Commission differed with the MSPB's decision. Petitioner v. Dep't of Homeland Sec., EEOC Petition No. 0320110053 (July 10, 2014), see also Alvara v. Dep't of Homeland Sec., 121 M.S.P.R. 613 (September 29, 2014) (Special Panel deferred to the Commission after the case was remanded to the MSPB, stating that the Commission's interpretation of discrimination law and the Commission's decision were reasonable).

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 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. 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. 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. 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).

Discriminatory Qualification Standard. Complainant, a Mail Processing Clerk, filed an EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of disability when it did not provide her with a reasonable accommodation for a Sales, Services, and Distribution Associate (SSDA) position. Complainant was restricted to lifting no more than 10 pounds. The Agency awarded Complainant the position, but requested that she provide a medical certification that she was fully able to perform all the duties of the position. The Agency stated that, alternatively, Complainant could contact the Reasonable Accommodation Committee Coordinator if she felt she could perform the essential functions with accommodation. The Reasonable Accommodation Committee ultimately concluded that Complainant was not a qualified individual with a disability. In its final decision finding that Complainant failed to prove that she was discriminated against as alleged, the Agency found that Complainant was not an individual with a disability because she failed to provide examples of how her lifting restriction affected a major life activity outside of the Agency. In addition, the Agency found that Complainant was not a qualified individual with a disability because an essential function of the position was to be able to lift objects weighing up to 70 pounds.

On appeal, the Commission reversed the Agency's final decision with respect to the SSDA position. The Commission found that Complainant was an individual with a disability. Specifically, the Commission determined that Complainant was substantially limited in the major life activity of lifting because she was restricted to lifting no more than 10 pounds. The Commission also found that Complainant was a qualified individual with a disability. The Commission determined that the 70 pound lifting requirement imposed by the Agency was not an essential function of the position, but rather a qualification standard that the Agency established to ensure that employees could perform the essential function of collecting and distributing mail. In addition, the Commission found that there was no dispute about whether Complainant was able, in some form, to perform that essential function. The Commission stated that the Agency used a discriminatory qualification standard that was not job-related and consistent with business necessity. The evidence in the record did not support a finding that the Agency's 70 pound lifting requirement was carefully tailored to measure Complainant's actual ability to perform the essential function of collecting and distributing mail. The Commission concluded that Complainant was qualified to perform the SSDA position and that the Agency, by utilizing a qualification standard that was not job-related and consistent with business necessity which screened out Complainant, discriminated against Complainant in violation of the Rehabilitation Act. The Agency was ordered, among other things, to retroactively place Complainant in the position, pay Complainant front pay and back pay, and undertake a supplemental investigation to determine Complainant's entitlement to compensatory damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (December 23, 2013).

Denial of Reasonable Accommodation Found. Complainant, a hearing impaired Office Automation Assistant, filed a formal complaint alleging that the Agency discriminated against her on the basis of disability when she was not provided an interpreter for two last-minute meetings, one scheduled meeting, and two training classes, and when she was not provided the name or arrival time for an interpreter for a Command Training Day Event. The Agency issued a final decision in which it concluded that management attempted to accommodate Complainant by providing interpreters. The Agency noted, however, that due to administrative errors and/or problems locating Complainant's office, interpreters were sometimes late, or they did not show up at all. Although some of management's attempts to provide an interpreter were not successful, the Agency found that Complainant had not been denied reasonable accommodation or discriminated against as alleged.

On appeal, the Commission concluded that Complainant had been denied reasonable accommodation when the Agency failed to provide interpreting services on three occasions, including the scheduled meeting and two training classes. The Commission has held that for severely hearing impaired employees who can sign, reasonable accommodation, at a minimum, requires providing an interpreter for safety talks, discussions on work procedures, policies or assignments, and disciplinary actions. In this case, the Agency conceded that there were errors in obtaining an interpreter for Complainant on the three occasions. The Commission found that, as a result of the Agency's failure to secure interpreters, Complainant was unable to hear or fully participate in meetings and training related to her duties, which was a benefit and privilege of employment. There was no evidence that providing an interpreter would have been unduly costly or disruptive to the Agency. The Agency was ordered, among other things to provide Complainant with an interpreter for all future mandatory training and meetings, and investigate her claim for compensatory damages. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120114151 (November 7, 2013).

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

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

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

Disability Discrimination Found. Complainant accepted a position approximately 65 miles from his home. Complainant stated that his co-workers harassed him and the harassment aggravated his medical conditions and inhibited his ability to learn and perform his job. Complainant told his first-level Supervisor about the harassment but was told that nothing could be done. Complainant requested a transfer to an office closer to his home as a reasonable accommodation. The Agency denied Complainant's request for accommodation and ultimately terminated him. Complainant filed an EEO complaint in which he alleged that that he was discriminated against based on disability when he was subjected to a hostile work environment, denied reasonable accommodation, and terminated from his position as a Claims Representative.

Following a hearing, the AJ found that the Agency discriminated against Complainant as alleged, and the Commission affirmed the AJ's findings on appeal. The AJ found that Complainant was a qualified individual with a disability, as he was substantially limited in his abilities to concentrate and think, but had been able to perform the essential functions of the position prior to the commencement of the harassment. The Agency further failed to engage in the interactive process and instead blamed Complainant for the workplace problems. The Commission noted that disability determinations by the Department of Veterans Affairs and Social Security Administration were not determinative when deciding whether Complainant was a qualified individual with a disability. The Commission further affirmed the AJ's finding that Complainant was subjected to a hostile work environment based on his disability when his Supervisor and co-workers mocked his inability to quickly pick up aspects of the job and generally treated him poorly. She also found that the Agency failed to reasonably accommodate Complainant, and that the harassment and failure to accommodate resulted in his termination. The Commission stated that Complainant's Supervisors subjected him to harassment when they failed to provide him with an adequate mentor, placed derogatory observations in his personnel file, threatened to terminate his employment and ultimately terminated him. Therefore, the harassment culminated in a tangible employment action. The Agency was ordered, among other things, to reinstate Complainant to his position or a substantially equivalent position, and pay him $40,000 in proven compensatory damages. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0720110030 (November 4, 2013).

Per Se Violation of Rehabilitation Act Found. Complainants filed formal EEO complaints alleging that the Agency discriminated against them on the basis of disability when it included confidential medical information in an Agency database. The Agency ultimately investigated the matters and issued final decisions analyzing the issues under a disparate treatment theory of discrimination. The Agency concluded that Complainants failed to prove their allegations. On appeal, the Commission found that the Agency improperly analyzed Complainants' complaints. The Commission noted that the Agency's obligation to keep certain medical information of its employees confidential applies to all employees regardless of disability status, and documentation or information relating to an individual's diagnosis must be treated as confidential except in certain limited circumstances. Complainants stated that their medical information was improperly accessed and available in the database to any employee with access, including all supervisors and temporary supervisors, and could be openly displayed on computer screens where other non-management employees could see it. The Family Medical Leave Coordinator indicated that the database contained information such as "fatigue," "sleep disorder," "wrist surgery," and "back." Further, the Coordinator was unable to locate specific instructions for including or not including medical information in the database. Another Agency official stated that changes were subsequently made so that only certain employees had access to the database. The Commission found that these statements did not disprove that a violation of the Agency's responsibilities under the Rehabilitation Act occurred with regard to the recordkeeping of confidential medical information at the time alleged by Complainants. Thus, the Commission concluded that the Agency discriminated against Complainants. The Agency was ordered, among other things, to investigate Complainants' claims for compensatory damages, and provide appropriate training to those employees responsible for improperly releasing Complainants' confidential medical information. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123252 (October 24, 2013); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133064 (November 1, 2013); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132667 (November 1, 2013).

Under Title VII

Racial Harassment and Constructive Discharge Found. Complainant filed an EEO complaint, alleging that he was subjected to harassment based on race when a Co-worker (C1) used racially-charged and derogatory language against him. Complainant and several of his Co-workers stated that C1 regularly used racially-charged terms against the Complainant and other African Americans and that they complained to their supervisor (S1), but no action was taken. The Agency issued a "Non-Disciplinary Letter of Counseling" to C1 and Complainant then submitted his resignation under protest. Five employees informed the Director that they had previously complained to S1 about C1 and C1 later received a formal reprimand and was reassigned. An AJ issued a decision without a hearing in favor of the Agency finding that Complainant failed to prove the Agency was liable for the harassment because there were no further incidents after the Agency counseled C1.

On appeal, the Commission found that the issuance of a decision without a hearing was appropriate given the uncontested evidence in the record. The Commission disagreed with the AJ's finding of no discrimination, however, and concluded that Complainant was subjected to racially discriminatory harassment. The Agency issued a formal reprimand to C1 based on its conclusion that C1 used racially derogatory language when referring to Complainant and the reprimand specifically noted that several employees reported that C1 used racial and ethnic slurs. Therefore, the Agency acknowledged that C1 subjected Complainant to unwelcome conduct. The Commission found C1's conduct to be extremely insulting, threatening and dehumanizing, and was especially serious in light of the fact that she sometimes served as Complainant's supervisor. Thus, C1's conduct was sufficiently severe to create a hostile work environment. While S1 claimed that he did not know of the racial harassment until after Complainant initiated an EEO complaint, it was undisputed that C1 often used racial slurs and at least six employees stated that they witnessed the behavior for a significant period of time before Complainant initiated counseling. The Commission found that C1's conduct was so pervasive and widespread that the Agency had constructive knowledge of the harassment well before S1 claimed to have acquired actual knowledge. Further, the Agency did not actually discipline C1 until several months after Complainant initiated his EEO complaint, and there was no evidence that employees received any anti-harassment training during the relevant time period. Thus, the Commission concluded that the Agency's response to the harassment was "woefully inadequate." The Commission noted that Complainant raised a claim of constructive discharge while his case was pending before the AJ, and stated that a reasonable person in Complainant's position would have found the working conditions intolerable. Therefore, Complainant was constructively discharged by the Agency. The Agency was ordered, among other things, to offer Complainant retroactive reinstatement with appropriate back pay and benefits, and investigate his claim for damages. Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120123332 (September 10, 2014).

Race Discrimination Found Regarding Non-Selection. Complainants, GS-11 Nurse Case Managers, filed formal EEO complaints alleging, among other things, that the Agency discriminated against them on the basis of race when they were passed over for two vacant GS-12 Lead Nurse Case Manager positions. During the hiring process, the Lead Case Manager offered one of the vacant positions to an African American, who later declined the position. Afterword, the Facility Director at the recommendation of the Lead Case Manager, used a non-competitive direct hire to select Selectee 2 and Selectee 3 (both Caucasian). The Agency issued final decisions finding no discrimination, and Complainants' appeals were consolidated by the Commission. The Commission found that Agency put forward a legitimate non-discriminatory reason for using the direct hire process specifically that the Lead Nurse Case Manager wanted to fill the spots quickly with individuals who had experience. The Commission found, however, that the Agency's reasons were pretext, as both Selectees could not begin working until months later, the positions had previously been filed on a rotational basis, and there had been no Leads for some time. Additionally, Complainants were all eligible for the GS-12 position while Selectee 2 was not eligible at the time she was selected, and Complainants had more experience with nursing, working with soldiers, and supervising than both Selectees. The Commission noted that the remedy in this case was complicated by the fact that only two of the five Complainants would have been selected for the position. Therefore, the Commission ordered the Agency, among other things, to conduct a supplemental investigation to determine who would have been selected for the positions absent the discrimination. The Commission noted that the Complainants failed prove that they were retaliated against when they were relocated. Complainant, et al. v. Dep't of the Army, EEOC Appeal Nos. 0120123054 et al. (September 9, 2014).

Denial of Religious Accommodation Found. Complainant, a full-time City Letter Carrier, filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of religion (Christian) when it denied his request to have Saturdays off in order to observe the Sabbath and issued him a letter of warning for failure to maintain regular attendance. Complainant stated that he initially asked the former Station Manager to allow him to have Saturdays off as a religious accommodation but was told the accommodation was "not going to happen." Complainant then submitted a written request to the new Station Manager but was told he could not have every Saturday off and must submit his requests on a weekly basis. Complainant stated that he became a born-again Christian and began to observe the seventh-day Sabbath as a sincerely-held religious belief. The Agency issued a final decision finding no discrimination with regard to both matters.

On appeal, the Commission initially noted that Complainant alleged a single claim of denial of religious accommodation since the absences cited in the letter of warning were related to his religious observance. The Commission found that Complainant established a prima facie case of denial of religious accommodation. Complainant, a Christian who observes the Sabbath as defined from sunset on Friday until sunset on Saturday, requested a religious accommodation that was denied by the Agency. Further, the Commission concluded that the Agency failed to meet its burden to demonstrate that it made a good faith effort to reasonably accommodate Complainant's religious beliefs, or that to do so would have imposed an undue hardship upon the Agency's operations. Specifically, the Commission noted that the Agency did not attempt to obtain voluntary substitutes or swaps for the Saturdays, nor did the Agency consider Complainant's request for a reassignment to another position. The Agency failed to provide evidence to support its contention that granting Complainant's request for Saturdays off would have left the facility short staffed. Accordingly, the Commission determined that the Agency violated Title VII when it failed to provide Complainant with a religious accommodation and issued a related letter of warning. The Agency was ordered, among other things, to provide Complainant with a religious accommodation, rescind the letter of warning, investigate Complainant's claim for damages and provide training to the responsible official. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141486 (August 15, 2014).

Race Discrimination Found with Regard to Non-selection. Complainant, a Supervisory Immigration Enforcement Agent, alleged discrimination on the basis of race when the Agency did not select him for a Deportation Officer position. Reviewing the evidence de novo, the Commission found that based on a preponderance of the evidence, Complainant successfully established a prima facie case of race discrimination, and that the Agency's nondiscriminatory reasons for hiring other candidates were "not worthy of belief." Complainant was qualified for the position, and the Agency included him on its list of "Best Qualified" candidates. In addition, none of the three Selectees competing for the position belonged to his protected class. Complainant's suitability score for the position was 96, matching one and exceeding the other two selectees. Unlike the other applicants, however, Complainant's Supervisor was never contacted to discuss his suitability. Complainant's performance reviews contained the highest possible ratings, with comments echoing the types of qualities (e.g. "self-starter") that the Recommending Official said he was seeking. Further, Complainant held a higher level supervisory position. Thus, the Commission found that Complainant's qualifications were plainly superior to those of the Selectees, and the Agency's contention that its selections were based on experience, work history, and first-hand opinions of work performance was a pretext for discrimination. The Commission also considered the evidence of racial bias in the office's promotion record and affidavits describing racial bias in the promotion process, which when considered with Complainant's qualifications and the Selecting Official's lack of credibility regarding the selection criteria demonstrated that Complainant was subjected to unlawful discrimination. The Agency was ordered, among other things, to retroactively promote Complainant with back pay and appropriate benefits, and investigate his claim for damages. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120112237 (July 25, 2014), request for reconsideration denied, EEOC Request No. 0520140537 (March 13, 2015).

Harassment Found Based on National Origin. Complainant, a Geophysicist, filed a complainant alleging discrimination on the basis of national origin (Cuban) when he was subjected to harassment in the form of a hostile work environment. Complainant also asserted that he was treated differently regarding the terms, benefits and privileges of his employment, and denied a reasonable accommodation. The AJ issued a decision without a hearing in favor of the Agency on all accounts. On appeal, the Commission affirmed the AJ's decision to issue a decision without a hearing as well as his finding of no discrimination regarding Complainant's disparate treatment and denial of reasonable accommodation claims. The Commission found, however, that Complainant was subjected to a hostile work environment when his Supervisors and/or a Co-worker repeatedly referred to Complainant as "Fidel," because he wore a beard, made comments about Cuban babies eating chili peppers for breakfast, displayed a poster depicting an Hispanic hero as a monkey with the words, "Viva La Evolution!" and made statements about the ability of immigrants to speak English. The Commission determined that such statements and behavior in the workplace was sufficiently severe or pervasive to create a hostile environment, and were precisely the type of actions the anti-harassment laws seek to prevent. The Commission further found that the Agency could not escape liability for the harassment inflicted upon Complainant by his Supervisors and his Co-worker. The Director, who was Complainant's Supervisor, and the District Director who served as Complainant's Supervisor in the Director's absence, were both on record as taking some action which, in the aggregate, created the hostile environment and the Director knew of the Co-worker's comments but took no action to halt the harassment. The Agency was ordered, among other things, to conduct an investigation on the issue of compensatory damages, and to provide appropriate training to Complainant's Supervisors and the Co-worker. Complainant v. Dep't of Commerce, EEOC Appeal No. 0120120625 (July 11, 2014).

Sexual Harassment Found. Complainant, a summer intern at the Agency, filed a formal EEO complaint alleging that she was subjected to sexual harassment by her Supervisor which included incidents when the Supervisor hugged and kissed Complainant. Complainant stated that the conduct became increasingly inappropriate, and she reported the kissing incident to the Director. An Investigating Officer investigated the claim, and determined, based upon corroborating statements from two other interns, that the Supervisor made unwanted advances and kissed Complainant. After Complainant filed her formal EEO complaint, the Agency officially reprimanded the Supervisor for discourteous conduct and required him to attend "experiential leadership training." The Agency ultimately issued a final decision finding that Complainant failed to prove she was sexually harassed.

On appeal, the Commission found sufficient evidence to show that the Supervisor engaged in unwelcome verbal and physical conduct toward Complainant. Specifically, the Commission determined that Complainant's statements, which were supported by statements of other interns, were more plausible and believable than the Supervisor's denials. Further, corroborating testimony showed that Complainant appeared visibly upset about the Supervisor's conduct shortly after the incidents, which was persuasive evidence that the unwelcome conduct occurred. There was no evidence to support the Supervisor's assertion that Complainant was motivated to lie about the incidents because she was a poor performer. Complainant's testimony was found to be sufficiently detailed and internally consistent, while the Supervisor's accounts of the events were implausible and unsupported by the testimony of other witnesses. The Commission stated that it was reasonable for Complainant to attempt to ignore the initial unwelcome verbal comments without resorting to the complaint process. Once the incidents escalated to physical conduct, however, Complainant immediately reported the incidents to the relevant management official. Therefore, the evidence did not support the Agency's assertion that Complainant failed to take advantage of preventative or corrective opportunities, and, as such, the Agency was found liable for the harassment. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide training for the Supervisor. Complainant v. Dep't of the Army, EEOC Appeal No. 0120111865 (July 9, 2014).

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).

Sex Discrimination Found. Complainant alleged, among other things, that the Agency discriminated against her on the basis of sex when it placed her in an off-duty, non-payment status, and issued her a 14 day suspension. The Agency stated that there was a dispute between Complainant and a Supervisor (SDO 2), and the Agency charged Complainant with making a verbal threat against SDO 2. On appeal, the Commission found that the two issues were intertwined, and concluded that Complainant was discriminated against based on her sex when she was placed in non-duty status and issued a suspension. In reaching this conclusion, the Commission relied on evidence in the record showing that Comparator 1, a similarly situated male employee who had engaged in threatening behavior, was neither placed in off-duty status, nor suspended. Further, contrary to the statements of the management official responsible for the differing treatment, the record showed that Comparator 1 engaged in an incident where the supervisor actually felt threatened, whereas the record suggested that SD2 did not feel threatened by Complainant's behavior. Thus, the Commission concluded that the reasons articulated by the Agency for the actions were a pretext for sex discrimination. The Agency was ordered, among other things, to expunge the actions from Complainant's personnel file, pay Complainant appropriate back pay and benefits, and investigate her claim for compensatory damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132572 (December 11, 2013).

Agency Liable for Racial Harassment. Complainant, who is African-American, filed a formal EEO complaint alleging, among other things, that he was subjected to harassment based upon his race. Specifically, Complainant stated that two Caucasian employees in his work area repeatedly wore tee shirts featuring the Confederate flag several times per month over a nine month period, management took no action despite receiving complaints about the shirts, and management exacerbated the situation. Complainant stated that the Confederate flag has been widely used as a symbol of racism against African Americans. An AJ ultimately issued a decision without a hearing finding that the Agency was not liable for the harassment, and Complainant appealed the matter to the Commission.

On appeal, the Commission noted that the Agency adopted the AJ's finding that Complainant was subjected to racial harassment, so the only issue before the Commission was whether it was proper to grant summary judgment to the Agency on the issue of imputing liability. In the case of co-worker harassment, an Agency is responsible for acts of harassment in the workplace where the Agency (or its agents) knew or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. The Commission agreed with the AJ that neither party identified material facts in dispute, and the record was fully developed such that the matter was ripe for a decision by summary judgment. Here, the Union President informed the Postmaster that some employees found the shirts offensive and requested that management take action to prohibit the shirts in the workplace. While the Postmaster stated that he directed a subordinate employee to conduct a stand-up talk for all employees concerning workplace attire, there was no mention of Confederate flag symbols and employees were told only to refrain from wearing revealing clothing or clothing with "political" messages. Therefore, the undisputed evidence showed that management failed to take any action when it was first notified of the concern to prohibit the wearing or displaying of the Confederate flag when it was first notified of the concern. The Union President subsequently sent a letter to the Postmaster regarding the matter, and witness statements indicated that the Postmaster examined Clerk 1, who was wearing the shirt, and let him know, as well as another witness, that there was "nothing wrong" with wearing the shirt. The Commission found that the Postmaster's actions exacerbated the situation. Subsequently, the Postmaster did not take any action to address the issue for nearly two months, until Complainant filed a union grievance. Thus, the Agency failed to meet its burden of establishing its affirmative defense against liability and the Commission concluded that the Agency was liable for harassment. The Agency was ordered, among other things, to investigate Complainant's claim for damages, issue a written directive prohibiting employees from wearing or displaying Confederate symbols in the workplace, and conduct training for all employees at the facility. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132144 (November 1, 2013).

Under Multiple Bases

Commission Differs with MSPB and Finds Race, Sex, and Reprisal Discrimination. Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the bases of race, sex, and prior EEO activity when it terminated her from her Fiscal Officer position in July 2009. Prior to this claim, Petitioner filed a formal complaint of harassment for incidents that occurred in 2006 and 2007. Two of the disciplinary actions cited in Petitioner's harassment claim, a September 2006 letter of warning and an August 2007 suspension, were expressly listed as reasons for Petitioner's removal. During the period leading up to her removal, Petitioner's Supervisor received discovery requests for Petitioner's harassment claim which coincided with disciplinary actions taken against Petitioner, and the proposal to remove Petitioner from her position. While the appeal was pending with the MSPB, an EEOC AJ issued a decision on the harassment claim, finding that Petitioner's Supervisor lacked credibility and engaged in a pattern of escalating adverse treatment toward Petitioner that included the letter of warning and suspension cited as reasons for Petitioner's removal. The Agency did not appeal the EEOC AJ's decision. The MSPB AJ gave little weight to the EEOC AJ's credibility determinations, affirming the Agency's 2009 decision to remove Petitioner from employment.

On petition for review, the Commission differed from the MSPB. The Commission initially clarified its view about the "convincing mosaic" theory cited by the MSPB AJ in his retaliation analysis. The Commission stated that the "convincing mosaic" was a useful way to describe how several facts might add up to sufficient evidence to discredit an employer's explanation and demonstrate a causal connection between a Complainant's prior protected activity and the challenged adverse action. The Commission's discussion of the "convincing mosaic" in a prior case was meant to convey an additional, flexible way for Complainants to use different pieces of circumstantial evidence to prove a causal connection. It was not intended to promulgate a new standard whereby circumstantial evidence must have a mosaic-like character or require Complainants to meet a more demanding evidentiary standard. Therefore, the Commission concluded that the MSPB AJ erred in insisting that Petitioner must provide evidence showing a convincing mosaic of retaliation. Petitioner's only requirement was to provide sufficient evidence to discredit the Agency's proffered explanation for the actions or prove that the real reason was retaliation. In this case, the Supervisor discriminatorily harassed Petitioner in 2006 and 2007, and showed no signs of noticeably improving her behavior or shedding her preexisting discriminatory attitude toward Petitioner. Instead, the Supervisor continued to engage in similar types of discriminatory acts in 2008 and 2009, and did not undergo any corrective actions or remedial measures that would ensure that the harassment would not recur. The Supervisor also explicitly relied on her past discriminatory actions to justify removing Petitioner. Thus, the Commission found that the subsequent disciplinary actions and removal were related to the previous hostile work environment harassment and were discriminatorily motivated. Complainant v. Dep't of the Interior, EEOC Petition No. 0320110050 (July 16, 2014).

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 that 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).

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

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

Retaliation

Retaliation Found. Complainant filed a formal complaint alleging, among other things, that he was subjected to retaliation when the Agency issued him a Proposed Notice of Removal and placed him on administrative leave. Complainant received the Notice because of alleged misconduct, specifically not responding to a page from his Supervisor. The Agency ultimately issued a final decision finding that the Complainant had not proven retaliation. On appeal, the Commission disagreed with the Agency's finding that no retaliation could be found because Complainant failed to show a temporal nexus to his EEO activity. Complainant filed nine prior complaints involving his Supervisor and was actively engaged in disputing the Agency's compliance with a settlement agreement. These actions were sufficient to create an inference that the proposed removal was at least in part motivated by retaliatory animus. Though the Supervisor articulated a legitimate, non-discriminatory reason for the proposed removal, Complainant met his burden of proving pretext. The Commission found that the Agency failed to explain why Complainant was issued the proposed removal two months after the alleged misconduct when the record showed that Complainant had been sent on break by another supervisor and had informed management that his radio was defective. The record also provided no credible reason why Complainant was placed on administrative leave when the more common practice at the Agency was for employees to continue working during the time in which a proposed disciplinary action was pending a final action. Therefore, the Commission concluded that the Agency retaliated against Complainant with regard to the matters alleged. The Agency was ordered, among other things, to rescind the proposed removal and expunge it from Complainant's records, as well as pay Complainant appropriate back pay and benefits. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130456 (September 22, 2014).

Retaliatory Harassment Found. Complainant, a Federal Agent for the Agency's Nuclear Security Administration filed a complaint in October 2011 alleging that he was harassed by Co-workers and Supervisors in retaliation for filing a prior complaint. The Commission found, in the prior complaint that Complainant was harassed based on his sex (male, gender stereotyping, perceived sexual orientation) and in reprisal for prior protected EEO activity, including being subjected to derogatory comments, and Supervisors warning Agents to be careful around Complainant because of his EEO activity. In the underlying complaint, Complainant alleged that he was subjected to retaliatory harassment in more subtle forms, and the Agency issued a final decision finding no discrimination. On appeal, the Commission agreed with the Agency that some of the new incidents did not occur as alleged, or that there were non-retaliatory reasons for them, but found that this was not true of all the incidents raised by Complainant. The Commission found reprisal with regard to incidents such as a Supervisor pressing for severe discipline for Complainant breaching a security protocol; Complainant being pressured to speed and violate safety protocols on a truck convoy; Complainant being ridiculed in a prank; a Co-worker telling Complainant that nobody wanted to deal with him; Complainant undergoing an inventory conducted in an antagonizing and prolonged manner; and Complainant being actively ostracized by Co-workers when he used a computer room and was told to leave. The Commission found that retaliatory animus over Complainant's prior EEO complaint persisted in the workplace and these harassing incidents occurred because of this animus and created a hostile work environment particularly when viewed in light of the events of his prior complaint. Complainant continued to complain to management about the harassment and the Agency did not exercise reasonable care to prevent and promptly correct the harassing behavior that had been ongoing since May 2010, and which the Agency had known about for a long time. The Agency was ordered to consider taking disciplinary action against the individuals who perpetrated the reprisal against Complainant, and investigate Complainant's claim for damages. Complainant v. Dep't of Energy, EEOC Appeal No. 0120130468 (September 12, 2014).

Retaliation Found with Regard to Non-selection. Complainant, a retired Adjudication Officer, who had previously been employed by the Agency, filed a formal complaint alleging, among other things, that the Agency retaliated against her when it did not select her as an Adjudication Officer under its annuitant re-hiring program. Complainant had previously worked for the Agency for 32 years, including 10 years as an Adjudication Officer, and had 25 years of experience working in the area of adjudication. Complainant had also served as an Acting Supervisory Adjudication Officer for two years. After an investigation and a hearing, the AJ issued a decision finding no discrimination. On appeal, the Commission initially found that the AJ erred as a matter of law when she found that Complainant failed to establish a prima facie case of discrimination based on reprisal. The Commission noted that although Complainant's non-selection occurred more than three years after her EEO activity, temporal proximity was not the only way to establish that a nexus existed. In this case, the District Director was named as the responsible management official in Complainant's previous EEO complaint and was responsible for not recommending her for re-hire. Additionally, the Commission found that the AJ did not consider Complainant's evidence that was offered to establish that the Agency's articulated reasons were unworthy of belief. In particular, the Commission found it unworthy of belief that the Agency would not re-hire Complainant, a former employee with 25 years of adjudications experience, when she had knowledge of the procedures which the District Director stated were important qualifications for the position. The Commission also noted that while the District Director stated that Complainant could not be rehired because she had been retired in excess of three years, the record showed that one of the Selectees retired before Complainant. The District Director also made several assertions that were not supported by the record, including stating that Complainant had a reputation of being a bad writer, and lacked supervisory experience. Therefore, the Commission concluded that Complainant established that the Agency's reasons for not re-hiring her were a pretext for reprisal discrimination. The Agency was ordered, among other things, to pay Complainant appropriate back pay and benefits, and investigate her claim for damages. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120120772 (September 4, 2014).

Agency Failed to Rebut Prima Facie Case of Retaliation. Complainant filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him when it placed his name on a "Do Not Rehire" list making him ineligible for employment. The Agency issued a final decision finding no discrimination. On appeal, the Commission determined that Complainant established a prima facie case of reprisal. Complainant previously engaged in EEO activity on two occasions, and the management official involved in placing Complainant's name on the list was aware of the activity. The Acting Manager specifically stated that he believed he had been named as a responsible official in Complainant's most recent EEO complaint. The Commission rejected the Agency's assertion that Complainant could not establish a prima facie case of retaliation because his protected activity occurred approximately eight months before the incident at issue. The Commission found that the facts of the case, including the Acting Manager's significant personal involvement in Complainant's prior EEO activity, were sufficient to establish an adequate nexus between the prior protected activity and the placement of Complainant's name on the list. The Commission further determined that the Agency failed to set forth, with sufficient clarity, its reasons for placing Complainant on the "Do Not Rehire" list. The Acting Manager made only vague and generalized assessments of Complainant's performance stating that he "felt" Complainant was "not a very good worker." The Commission stated that even if it accepted the Acting Manager's rationale, Complainant proved, by a preponderance of the evidence, that the explanation was a pretext for retaliatory animus. The Agency produced no evidence to dispute Complainant's assertions that he was not subjected to any adverse actions regarding his work performance and in fact received satisfactory ratings on his evaluations. In fact, Complainant submitted a copy of a memorandum from the Supervisor, Distribution Operations stating that he "did an excellent job at whatever duties he was assigned." Therefore, the Commission concluded that Complainant proved that he was subjected to reprisal. The Agency was ordered, among other things, to remove Complainant from the "Do Not Rehire" list and investigate his claim for damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131754 (August 27, 2014).

Retaliation Found. Complainant filed a formal complaint alleging, among other things, that the Agency retaliated against him when it refused to accept his medical documentation and did not allow him to return to work. Following an investigation, the Agency issued a final decision finding no discrimination. On appeal, the Commission initially found that Complainant established a prima facie case of retaliation. Complainant had previously filed an EEO complaint, and the management officials involved in the decision not to allow Complainant to return to work were aware of his EEO activity. The Commission disagreed with the Agency's assertion that there was no nexus given that the prior complaint was closed eight months prior to the decision not to return Complainant to work, stating that the same management official was named in both complaints. The Commission further determined that the Agency failed to set forth its rationale for the actions with sufficient clarity to allow Complainant a fair opportunity to demonstrate pretext. The three management officials who provided affidavits in the case stated they did not specifically recall the reasons why Complainant's medical documentation was refused. The record contained a Duty Status Report signed by Complainant's physician which indicated that Complainant could resume work. Therefore, the Agency failed to carry its burden of to articulate a legitimate, non-discriminatory reason for denying Complainant's medical documentation to return to work. The Agency was ordered, among other things, to retroactively return Complainant to work, and pay him appropriate back pay and benefits. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121587 (August 12, 2014).

Retaliation Found. Complainant worked as a Full Time Rural Carrier and requested reasonable accommodation at various times for a job-related back injury and bilateral arthritis in her thumbs. Complainant filed a formal EEO complaint in April 2010 alleging that the Agency discriminated against her and harassed her on the basis of her disability. The Agency framed the complaint as alleging only disability discrimination, and ultimately issued a final decision finding no discrimination. On appeal, the Commission initially noted that a fair reading of Complainant's complaint reflected that she was also alleging discrimination in reprisal for requesting reasonable accommodation. The Commission found that Complainant engaged in protected activity when she requested reasonable accommodation in the form of leave due to her inability to work on one day, and she was subjected to adverse treatment when she was given leave without pay instead of the annual leave she requested. Complainant's supervisor was clearly aware that Complainant needed leave because of her medical restrictions. Thus, Complainant established a prima facie case of reprisal. The Agency articulated a legitimate, non-discriminatory reason for the actions that is Complainant did not submit a request for annual leave and was told to rent a vehicle pursuant to Agency policy.

The Commission concluded, however, that Complainant established that the Agency's reasons were pretext for discrimination. Specifically, the Agency was on notice that Complainant requested reasonable accommodation for her disability on the date in question but penalized her for doing so. The Agency was aware that Complainant would be without a vehicle that complied with her restrictions, but presented her with unreasonable alternatives and did not allow her to use her accrued leave. The Commission stated that the Agency clearly penalized Complainant for requesting reasonable accommodation and therefore subjected her to retaliation. The Commission also found that Complainant was subjected to retaliatory harassment. Complainant's supervisor forced Complainant to forgo a day's pay, needlessly asked for medical documentation, and threatened her with AWOL. The Commission stated that a reasonable person would have found that the cumulative effect of the supervisor's actions created a hostile work environment, and the supervisor's actions culminated in a tangible employment action, the denial of leave. Therefore, the Agency was liable for the retaliatory harassment, and was ordered, among other things, to adjust Complainant's time and attendance to reflect the use of leave and compensate Complainant for the hours originally charged as leave without pay. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120112858 (July 24, 2014).

Per Se Finding of Retaliation. The Commission affirmed the Agency's finding that Complainant, a probationary employee, failed to prove that he was subjected to sexual and non-sexual harassment or discriminatory disparate treatment. The Commission found, however, that the record showed an "unmistakable hostility" toward Complainant's protected activity. Specifically, Complainant's Group Supervisor described Complainant's allegations of discrimination as "unprofessional," and his direct Supervisor found them "highly offensive" and bad for morale. The EEO investigator's interviews with Complainant's Co-workers revealed an overall feeling of distrust and concern that Complainant would make "false allegations" about them. The Commission noted that Complainant's Supervisor knew of this tension but failed to ensure that Complainant's Co-workers understood and respected his EEO rights. Observing that "[t]his attitude on the part of the managers is reasonably likely to keep them from carrying out their obligations to insure… vigorous enforcement of the policy of equal employment opportunity," the Commission ordered the Agency, among other things, to provide EEO training to personnel in the office where Complainant worked. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120113331 (July 1, 2014).

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), request for reconsideration denied, EEOC Appeal No. 0520140369 (January 28, 2015).

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. The Agency issued a final decision finding no discrimination, asserting 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).

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

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

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

Per Se Retaliation Found. Complainant filed a formal complaint alleging, among other things, that the Agency discriminated against her in reprisal for prior protected EEO activity when the District Superintendent (DS) made certain comments. Specifically, the DS stated in a discussion regarding administrator responsibilities for supervisors, that: "EEOs are crap. Here's what happens. They won't win because there's nothing to support it. They'll drop it because they don't have evidence and don't want to spend money for a lawyer. Senior citizens are afraid to retire, economically afraid. EEO people are crazy people. Don't be afraid of EEO's. They'll go away." Following an investigation, an AJ issued a decision without a hearing in favor of the Agency. The AJ found that the DS's comments were broad statements made to assure managers that they could take disciplinary action, and her comments regarding the EEO process were made not to discourage potential complaints but to empower managers to take action without fear of an EEO complaint.

On appeal, the Commission found that the AJ erred in finding that Complainant failed to establish that she was subject to unlawful retaliation. The Commission stated that comments which, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of EEOC's regulations and evidence a per se violation of the law. The Commission further stated that Agencies have a continuing duty to promote the full realization of equal employment opportunity, and that this duty extends to every aspect of Agency personnel policy and practice. The Commission noted that the logical interpretation of DS's comments was that a manager should not be afraid of an EEO complaint filed by an employee, and could feel free to take whatever action they wanted because any allegation of discrimination would simply "go away" having not been proven because the complainant would not have the evidence or resources to proceed. The Commission found that DS's statements were reasonably likely to deter Complainant or any of the other managers from engaging in the EEO process. The Agency was ordered, among other things, to investigate Complainant's claim for damages and conduct training for DS. Complainant v. Dep't of Def., EEOC Appeal No. 0120132212 (November 8, 2013).

Retaliation Found with Regard to Nonselection. Complainant alleged, among other things, that the Agency discriminated against her in reprisal for prior EEO activity when it did not select her for a supervisory position. Complainant had previously been employed by the Agency and had named the selecting official in the instant complaint (SO) as a responsible management official in her prior EEO case. The SO changed the position description such that the vacancy announcement for the first time required that the successful candidate possess a Professional Engineer (PE) certificate. "Indian Preference" was also applicable to the vacancy announcement. The Agency was aware that Complainant was a Native American candidate who did not possess a PE certificate. Complainant was one of two candidates to apply for the position, but was rated as non-qualified because she did not meet the PE certificate requirement. The Agency selected the other candidate who had no prior EEO activity.

After a hearing, an AJ found that Complainant established that the Agency's non-discriminatory reasons for her non-selection were pretext to mask retaliatory animus. The AJ noted that the SO unilaterally changed the requirements for the position without following Agency policy, knowing that Complainant would apply for the position. The Commission affirmed the AJ's findings on appeal. The Commission found that the record clearly established that the SO changed the position in order to intentionally exclude Complainant from the position. Thus, the AJ's findings were supported by substantial evidence. The Agency was ordered, among other things, to offer Complainant the position with appropriate back pay and benefits, and pay her $25,000 in proven compensatory damages. Complainant v. Dep't of the Interior, EEOC Appeal No. 0720120037 (October 31, 2013).

Remedies

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

Complainant Entitled to Promotion and Reimbursement for Increased Tax Liability. 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).

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

Back Pay Discussed. Petitioner worked for the Agency as an Aviation Security Officer (ASO). All ASOs worked under a contract that stipulated payment per assignment without any minimum guarantee of work. In a prior decision, the Commission found that the Agency retaliated against Petitioner when it informed her that it no longer needed her services. The Agency was ordered to retroactively reinstate Petitioner, and pay her back pay. The Agency was ordered to calculate back pay based upon the average salary earned by ASOs during the applicable time period. Petitioner subsequently submitted a petition for enforcement indicating that the Agency failed to properly calculate back pay. The Commission granted the petition for enforcement, stating that in using the average ASO in this case, it intended for the Agency to calculate an hourly amount of back pay that accounted for some speculation given the uncertainty of the number of hours Petitioner would have worked. The Agency's consideration of all employees in its average calculation reduced Petitioner's award and was not in compliance with the Commission's order. The Commission found that the Agency should have used only similarly situated employees when calculating the average salary. The Commission stated that the Agency's calculation should include those individuals who, like Petitioner, sought out work consistently and accepted regular assignments, and the Agency should have included all benefits owed including any pay raises, overtime hours and per diem amounts Complainant would have received absent the discrimination. Petitioner v. Dep't of Justice, EEOC Petition No. 0420130021 (December 17, 2013).

Agency Improperly Calculated Back Pay. An AJ found that the Agency discriminated against Petitioner on the basis of his disability when it placed him off work without pay for an indefinite period of time. The Commission affirmed the AJ's finding of discrimination on appeal, and ordered the Agency, among other things, to pay Petitioner back pay from the time he stopped receiving pay from the Agency until he began receiving Social Security disability benefits in August 2007. Petitioner subsequently filed a petition for enforcement with regard to the issue of back pay, and the Commission found that the Agency failed to comply with its prior order. The order expressly adopted the AJ's award of back pay which obligated the Agency to calculate back pay for a finite period. The Agency did not previously contest the award, and, rather than comply with the order, calculated back pay from the time Petitioner stopped working, until May 4, 2006, the effective date of his retirement. The Agency had more than three years following Petitioner's effective date of retirement and receipt of Social Security disability benefits to determine and submit for the record precisely when Petitioner was and was not eligible for payment, but the Agency did not do so. Therefore, the Commission concluded that the Agency waived its right to challenge the period of back pay. The Commission also found that the case law cited by the Agency concerning back pay was not persuasive, because in those cases there was a lack of evidence concerning a constructive discharge. In the instant case, the essence of the AJ's finding of discrimination was that Petitioner was discriminatorily prohibited from working and being paid for an indefinite period, which forced him to retire. Petitioner v. Dep't of Homeland Sec., EEOC Appeal No. 0420130006 (October 30, 2013).

Sanctions

AJ's Award of Attorneys' Fees as Sanction Was Proper. Following a hearing, an AJ found that the Agency discriminated against Complainant when it removed her duties, gave her inaccurate performance appraisals, placed her on a PIP, and ultimately removed her from her position. The AJ ordered the Agency to provide relief for the discrimination, and pay $5,394.00 in attorneys' fees as a sanction for failing to respond to a discovery request and Motion to Compel. On appeal, the Commission found that there was substantial evidence in the record to support the AJ's decision on the merits of Complainant's allegations. Additionally the Commission affirmed the sanctions imposed because it was undisputed that the Agency failed to timely respond to the discovery requests and the Motion to Compel. The Commission found that the Agency's excuse for the delay, internal staffing issues, was not sufficient justification, as two attorneys were assigned to the case at the time. Lastly, the Commission found that the AJ did not abuse her discretion when she calculated the attorneys' fees using the Laffey matrix, not the lower amount contained in the retainer agreement with the Complainant. The Commission cited case law demonstrating that attorneys who give federal employees discounted rates are entitled to compensation at the higher prevailing market rate. Thus, the Commission reversed the Agency's final order. Complainant v. Dep't of Def., EEOC Appeal No. 0720120002 (September 19, 2014), request for reconsideration denied, EEOC Request No. 0520150063 (December 5, 2014).

Commission Sanctions Agency for Failing to Provide Complete Record. Complainant filed a formal complaint alleging he was subjected to discrimination when he was not selected for two positions. Following an investigation, an AJ issued a decision without a hearing in favor of the Agency, finding no discrimination. After Complainant appealed, the Agency did not submit the complete complaint file as required within 30 calendar days of the notification from the Commission. The Commission then issued a Notice to Show Cause requesting the missing items and explaining potential sanctions for failure to submit the information. The Agency sent what it purported to be the complete file and claimed it was not aware of the appeal or the request for the complaint file. Upon review of the submitted record, it was found to be incomplete and sanctions were warranted. The Commission noted that the Agency previously submitted a brief in response to Complainant's appeal. In addition, the Agency failed to include the complete hearing record. The Commission stated that it was unable to issue a decision, and found that the most appropriate sanction was to remand the matter for a hearing before an AJ. Complainant v. Dep't of Def., EEOC Appeal No. 0120113053 (September 17, 2014).

Commission Sanctions Agency for Failure to Provide the Complete Record. Following an investigation, an AJ granted the Agency's motion for a decision without a hearing, dismissing two allegations and finding no discrimination with regard to a third allegation. The Commission stated that when Complainant appealed, the Agency was asked to provide a complete record of the case within 30 calendar days of the appeal or show good cause why it could not do so. The Agency provided the Commission with what it said was the complete record. However a review of the record showed that in fact it was not complete. Specifically, the Commission noted that the Agency did not provide its own motion for summary judgment or Complainant's response. As a result, it was impossible for the Commission to determine whether the AJ appropriately issued a decision without a hearing in the Agency's favor. Thus, the Commission sanctioned the Agency by remanding the complaint for a hearing. Complainant v. Dep't of Def., EEOC Appeal No. 0120114192 (September 16, 2014).

Commission Issues Default Judgment as Sanction. Complainant filed two EEO complaints alleging that the Agency discriminated against her on the bases of reprisal, age and disability when it issued her a lower appraisal and when she was subjected to harassment. The matters were initially before an AJ who issued a decision without a hearing. In a previous decision, the Commission remanded the matter finding that there were material facts in dispute particularly regarding Complainant's claim of reprisal. The Agency then issued different final decisions regarding the two complaints, both of which were appealed by Complainant. Despite requests by the Commission for the complaint records for both EEO complaints, the Agency failed to provide them. A show cause order was issued, and again, the Agency failed to produce the records. Accordingly, the Commission found that, the most appropriate sanction was a default judgment for Complainant. The Commission noted that there had been an excessively long delay with no meritorious explanation provided by the Agency for its failure to produce the complaint records. The Commission further determined that there was sufficient evidence to establish Complainant's right to relief. In its previous decision, the Commission found sufficient evidence to establish an inference of retaliatory discrimination. In addition, the Agency conceded that Complainant had prior EEO activity that was known to the responsible management officials. Complainant asserted that nearly 20 events occurred because of her prior EEO activity including the delay or denial of leave requests, disciplinary actions, a schedule change, and a lower performance appraisal as well as comments by management officials which were reasonably likely to deter Complainant or others from engaging in protected activity. Based upon evidence from Complainant's co-workers showing that she was known for her EEO activity, and evidence establishing that Complainant was subjected to greater scrutiny by management, the Commission found that there was a nexus between Complainant's prior EEO activity and the alleged actions. The Commission concluded that Complainant established a prima facie case of retaliation. Therefore, a default judgment was proper because there was sufficient evidence to determine that Complainant was entitled to relief in this case. The Agency was ordered, among other things, to remove negative references in Complainant's appraisal, provide training to management, and investigate her claim for compensatory damages. Complainant v. Dep't of Hous. & Urban Dev., EEOC Appeal Nos. 0120111827 & 0120113765 (July 16, 2014).

AJ Did Not Abuse Discretion in Canceling Hearing. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to harassment. Complainant ultimately requested an administrative hearing, but the AJ denied the hearing request after Complainant and his representative failed to respond to several requests for information. The Agency then issued a decision finding no discrimination. On appeal, the Commission noted that the AJ made three requests for information which were ignored by Complainant and his representative over a period of more than 145 days. While Complainant ultimately submitted some documents, the AJ found that they were not responsive to the requests. Thus, the Commission concluded that the AJ's decision to cancel the hearing was not an abuse of discretion due to the length of time involved and the number of opportunities afforded Complainant to respond to the requests. The Commission also affirmed the AJ's finding of no discrimination as there was no evidence of harassment or discriminatory motive. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120708 (July 17, 2014).

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. 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).

Dismissal of Hearing Request as Sanction Was Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex and disability. Following an investigation, Complainant requested an administrative hearing, but the AJ ultimately denied the hearing request on the grounds that Complainant failed to prosecute her complaint. The Agency subsequently issued a final decision finding no discrimination. On appeal, the Commission found that the AJ did not abuse his discretion in dismissing Complainant's hearing request as a sanction for contumacious conduct and remanding the matter to the Agency. The AJ notified the parties that the failure to respond to discovery could result in a sanction, yet Complainant failed to provide any prehearing submissions. Complainant also failed to respond to the Agency's Order to Show Cause. The Commission found that Complainant's assertion that she did not receive the initial paperwork from the AJ was not supported by the record since Complainant did submit a designation of representative form which was part of the paperwork. Complainant also did not challenge the AJ's finding that she failed to respond to the Show Cause Order. Therefore, the Commission concluded that the dismissal of the hearing was an appropriate sanction. With regard to the merits of Complainant's allegation, the Commission noted that Complainant was not entitled to the accommodation of choice, and concluded that the Agency provided Complainant with a reasonable accommodation when it gave her a modified assignment within her limitations. The Commission found that Complainant also failed to prove her claim of disparate treatment because she did not show that the Agency's reasons for providing Complainant with the modified assignment were a pretext for discrimination. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130077 (December 6, 2013).

Settlement Agreements

Agency's Partial Performance Results in Finding of Breach of Settlement. The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would credit Complainant with 200 hours of sick leave. Complainant alleged that the Agency breached the agreement when it credited him with only 48 hours of the required sick leave. On appeal, the Commission found that the Agency only partially performed its obligations under the agreement. The Agency claimed that a "back pay" investigation undertaken after the signing of the agreement revealed that Complainant was unable to work during a portion of the period for which she claimed entitlement to sick leave. The Commission found, however, that this information was irrelevant to the Agency's contractual obligation to credit Complainant with 200 hours of leave. The settlement agreement did not provide for a back pay determination, and the consideration due to Complainant was fully liquidated and explicitly set forth in the agreement. The Agency did not claim that the agreed upon terms were illegal or ultra vires and did not raise any other plausible excuse for its nonperformance. Therefore, the Agency was ordered to credit Complainant with the full 200 hours of sick leave. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130560 (August 26, 2014).

Breach of Settlement Found. The parties entered into a settlement agreement in January 2012 which provided, in pertinent part that that the Agency would remove various documents from Complainant's personnel file. On the date the agreement was signed, the Agency placed Complainant's name on a "not-in-good standing" list. After being ordered to supplement the record, the Agency obtained affidavits from several management officials stating that Complainant's name was in fact placed on the list around the time of the execution of the settlement agreement. Complainant later learned that she was deemed ineligible to compete for positions and not selected due to her status on the list. On appeal, the Commission found that the Agency breached the agreement. While the Agency argued that there was nothing in the plain language of the agreement addressing Complainant's placement on the list, the Commission previously found that matter to be within the scope of the agreement. Further, the language of the agreement provided sufficient evidence to support Complainant's contention that the parties intended for her record to be purged of all adverse references so that the information would not be used against her. Management instead used the information to place Complainant's name on the list thereby rendering her ineligible for selection for a position. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120141263 (July 25, 2014).

Breach of Settlement Found When Agency Changes Complainant's Schedule Three Months After Agreement. Complainant and the Agency entered into a settlement agreement in February 2013 which provided, among other things, that Complainant would be offered the earliest possible scheduled reporting time. Complainant alleged that the Agency breached the agreement in May 2013 when it moved her to another facility with a later reporting time. On appeal, the Commission found that the Agency breached the agreement. While the Agency stated that Complainant was not promised the earlier shift "in perpetuity," the Commission found it clear that the parties anticipated that good faith compliance would last more than three months. The Commission noted that the Agency may have been justified in moving Complainant to a different facility due to a pending sexual harassment investigation, but stated that Complainant should still have been placed on the early shift and there was no evidence that the Agency could not have done so. There was no evidence that the investigation was ongoing or that the charges were found to be supported. The Agency was ordered to comply with the terms of the agreement. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140306 (July 24, 2014).

Breach of Settlement Found When Agency Failed to Act in Good Faith. Complainant and the Agency entered into a settlement agreement after Complainant brought a claim of discrimination when she was bypassed for promotion by a lesser qualified candidate. The agreement, in pertinent part, required management to meet with Complainant regarding the role of Lead Management Analyst, and provided for regular meetings between Complainant and her supervisors, and an Individual Development Plan (IDP) which included training. Complainant alleged that the Agency breached the agreement, stating that the agreement evidenced the parties' intent to appoint her to the position of Lead Management Analyst. The Agency issued a decision stating that it would reinstate the underlying complaint since it could not determine whether a breach occurred. On appeal, the Commission found that the Agency did not carry out its obligation under the agreement in good faith. The Agency conceded that it lacked evidence of its compliance, and there was no evidence that management met with Complainant as required or developed an IDP. Further, Complainant's Supervisor refused to abide by the terms of the agreement, asserting that he was not one of the signatories. The Commission stated that since the Agency conceded that the agreement was ambiguous as to whether Complainant would be placed into the Lead Management Analyst position, it must rely on extrinsic evidence to determine the intent of the parties. The record contained a form signed by Complainant's first and second level supervisors listing Complainant's title as Lead Management and Program Analyst. The Commission found this evidence sufficient to support Complainant's contention that the parties intended for her to be placed into the Lead Management Analyst position. The record showed that Complainant was not formally placed into the position until more than one year after the agreement was executed. The Agency was ordered to comply with the terms of the agreement, including retroactively placing Complainant into the Lead Management Analyst position. Complainant v. Dep't of the Interior, EEOC Appeal No. 0120140001 (July 22, 2014).

Breach of Settlement Found. The parties entered into a settlement agreement in 2013 that provided, in pertinent part, that a desk/position audit would be conducted for Complainant's position to determine the proper grade, series and title. Complainant alleged that the Agency breached the agreement when it failed to promote her after the desk audit showed that her position was classified at the GS-14 level. On appeal, the Commission stated that the agreement specified that there were no guarantees as to the desk audit determination, meaning that Complainant's position could have been rated either a grade lower or a grade higher than the GS-13 level which Complainant occupied at the time of the agreement. The agreement did not provide the Agency with the authority to take additional steps after the determination was made, and did not provide that Complainant's duties would be adjusted to achieve a specific grade level. A fair reading of the agreement was that both parties would abide by the results of the audit. Therefore, since the audit showed that Complainant was performing GS-14 level work, she was entitled to a promotion to that level. The Agency should have included explicit language in the agreement if it wanted to take other actions following the audit. Complainant v. Dep't of the Army, EEOC Appeal No. 0120141524 (July 15, 2014).

Lack of Consideration Rendered 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).

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).

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

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

Settlement Agreement Void for Lack of Consideration. Complainant was assigned to work at a joint command facility of U.S. military activities with support provided by the Agency. Complainant worked with the Department of the Air Force, but believed she had been discriminated against by members of the Department of the Army. She was instructed to file her complaint with the Agency. Complainant and the Agency ultimately entered into a settlement agreement which provided, in pertinent part, that the Agency would provide Complainant with a letter stating that a named individual was not her rater or reviewer during a specific period, and would destroy a Written Oral Admonishment. Complainant subsequently notified the Agency that it was in breach of the agreement when it failed to destroy the Admonishment, and the Agency stated that it was unable to resolve the matter. On appeal, the Commission found that the agreement was void for lack of consideration. To accomplish the terms of the settlement regarding the Admonishment would have required action on the part of the Department of the Air Force which was not a party to the agreement. Further, obtaining a copy of the letter regarding the named individual may have required action on the part of the Department of the Army which was also not a party to the settlement agreement. The Commission noted that it is not generally concerned with the adequacy or fairness of the consideration in a settlement agreement as long as some legal detriment is incurred. When, however, one party incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. The Agency was ordered to reinstate Complainant's complaint for processing. Complainant v. Dep't of Def., EEOC Appeal No. 0120130184 (December 24, 2013).

Settlement Agreement Did Not Constitute Valid Waiver Under OWBPA. The parties entered into a settlement agreement which provided, among other things, that the Agency would conduct a classification review of Complainant's position. The agreement also included a paragraph discussing the waiver of Complainant's allegations which stated that the agreement was a full and complete settlement of "any and all issues and claims arising from" the underlying EEO complaint, and Complainant agreed to waive her rights to pursue grievance, administrative, or judicial action concerning those matters. On appeal, the Commission stated that the underlying complaint contained an allegation of age discrimination. The Older Workers' Benefit Protection Act (OWBPA) provided certain minimum requirements for a waiver of age discrimination claims under the ADEA, and there was no evidence that the settlement agreement contained any of the seven elements discussed in the OWBPA. Therefore, the Commission concluded that Complainant did not knowingly and voluntarily waive her rights under the OWBPA. The Agency was ordered to reinstate the underlying complaint for processing. Complainant v. Dep't of the Army, EEOC Appeal No. 0120132842 (December 19, 2013).

Commission Held Ambiguities in Language of Agreement Against Agency and Found Breach of Settlement. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that the Agency would transfer Complainant to another division. At the time the agreement was executed, Complainant worked as a Supervisory Contract Specialist. Complainant ultimately alleged that the Agency breached the agreement when it failed to transfer her into a comparable supervisory position. On appeal, the Commission found that the Agency breached the agreement. The record included a personnel action form showing a change in status from Supervisory Contract Specialist to Contract Specialist. While the Agency construed the term "transfer" to mean simply moving Complainant to another division with no concomitant retention of her original supervisory position, Complainant believed the term "transfer" meant that she would retain her supervisory status. The Commission noted that ambiguities in the language of a contract are held against the drafter, in this case the Agency. Complainant asserted that the Agency was aware during negotiations that the transfer would not result in the loss of pay, title or supervisory duties since she had previously rejected an offer which would have resulted in the loss of her supervisory position, and the Agency did not dispute this contention. The Commission was not persuaded by the Agency's assertion that it complied with the agreement because the "unfortunate…imprecise" nature of the word "transfer" opened the agreement up to multiple interpretations. The Commission interpreted the term "transfer" to mean a transfer to a substantially equivalent position, including supervisory status, and found that the Agency breached the agreement. Complainant v. Dep't of the Army, EEOC Appeal No. 0120132537 (November 15, 2013).

Settlement Agreement Void- No Meeting of the Minds. The parties entered into a settlement agreement that provided, among other things, that the Agency would pay uninterrupted administrative leave "until a Job Search/Offer" was made for employment or retirement. Complainant alleged that the Agency breached the agreement when it did not make her a job offer. The Agency asserted that it conducted a job search, but found no jobs within Complainant's medical limitations. On appeal, the Commission found that the settlement agreement was void for vagueness. While Complainant asserted that the slash in "Job Search/Offer" required the Agency to conduct a job search and make her an offer, the Agency claimed that it could satisfy the agreement by either conducting a job search or making Complainant an offer. Thus, the Commission found that the terms of the agreement were too vague to have allowed for a meeting of the minds. The Commission noted that, because ambiguities in the language used in a contract are held against the drafter, in this case the Agency, Complainant was not obligated to account for administrative leave taken in anticipation that the agreement would be enforced. The Agency was ordered to resume processing of the underlying complaint. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132605 (November 8, 2013).

Stating a Claim

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

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141868 (September 17, 2014) (Complainant's claim that the Agency discriminated against him when it changed his schedule from a "3:30 begin tour" to a "5:30 begin tour" stated a viable claim of discrimination. A two-hour change in Complainant's work schedule addresses a personal loss or harm to a term, condition, or privilege of employment for which there is a remedy); but see, 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); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140237 (March 13, 2014) (the Agency properly dismissed Complainant's claim that her starting time was changed by 30 minutes. The Commission concurred with the Agency's determination that such a change did not reflect a harm or loss with respect to a term, condition or privilege of employment).

Complainant v. Dep't of Def., EEOC Appeal No. 0120142079 (September 12, 2014) (the Agency dismissed Complainant's complaint alleging denial of reasonable accommodation for failure to state a claim, stating that it provided Complainant with accommodation. The Agency's determination was not proper without a formal investigation on the merits of Complainant's complaint and the opportunity for an administrative hearing).

Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120141970 (August 29, 2014) (Complainant's claim that he was issued a Letter of Counseling stated a viable claim of race and color discrimination. While the Letter specifically noted that it was not a disciplinary action and would not be placed in Complainant's Official Personnel File, the Letter also stated that it "may be retained" in a local supervisory file for up to one year as documentation that Complainant was placed on notice regarding the "consequences of repeat behavior").

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141769 (August 28, 2014) (Complainant's claim that he was given an investigative interview after representing employees in EEO matters stated a viable claim of retaliation. While the interview did not result in any disciplinary action, Complainant stated that the interview was instigated by a Manager who was named in a sexual harassment complaint filed by an employee he represented. Complainant asserted that he felt threatened by the interview and that it was a way for management to let him know they were "watching him").

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123210 (August 14, 2014) (the Agency improperly dismissed Complainant's complaint alleging retaliation when his hours were reduced. When the Agency determined that Complainant was alleging reprisal for union activity, that rationale addressed the merits of the complaint without a proper investigation as required by the regulations. Complainant asserted that she was retaliated against for "filing union grievances, a hostile work environment, harassment, complaints about discrimination, threats to file grievances or EEOs," and even if Complainant merely complained about discrimination, harassment or a hostile environment she engaged in protected activity).

Complainant v. Dep't of Def., EEOC Appeal No. 0120141101 (August 13, 2014) (the Agency exercised sufficient control over Complainant's position to qualify as his joint employer because Agency employees were actively involved in the manner and means of Complainant's work performance including the circumstances surrounding his alleged hostile work environment. Complainant worked at an Agency facility with Agency equipment, his work was an integral part of the Agency's mission, and he was required to meet Agency personnel qualifications and security levels. While the contractor withheld taxes and provided leave, the record showed that the Agency initiated discipline and advised employees to report issues with Complainant's work to Agency managers); see also, Complainant v. Dep't of the Navy, EEOC Appeal No. 0120141480 (August 13, 2014) (the Agency improperly dismissed Complainant's complaint for failure to state a claim. While an Agency contractor provided Complainant with a laptop, equipment, and leave and withheld taxes from his pay, Complainant stated that Agency employees gave him assignments, conducted evaluations of his day to day work, and determined his work hours. Complainant worked for the Agency for a number of years, and the Agency played a role in Complainant's termination); Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141104 (August 13, 2014) (the Agency exercised sufficient control over Complainant's position to qualify as her employer for purposes of the EEO complaint process. Complainant, a Nursing Assistant, was supervised and evaluated by Agency employees, Agency employees instructed Complainant on how to do her work, Complainant worked on Agency premises using Agency equipment, Complainant worked in support of the Agency's mission, and the Agency had de facto authority to remove Complainant from her job); Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141059 (July 2, 2014) (the Agency improperly dismissed Complainant's claim of discriminatory harassment for failure to state a claim. Complainant worked as a Psychiatry Resident at an Agency medical facility, using Agency equipment, and the Agency conceded that she was supervised by Agency staff. The Agency removed significant functions from Complainant's residency when it perceived that her performance was deficient. Complainant served in a continuing relationship with the Agency and performed work that was part of the Agency's mission. While Complainant was not paid directly by the Agency, the Commission found sufficient evidence that the Agency had de facto authority over Complainant's work and qualified as her employer); Complainant v. Dep't of the Army, EEOC Appeal Nos. 0120132013 & 0120132339 (May 20, 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 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); 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) (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 Agency exercised sufficient control over Complainant's position to qualify as his joint employer for purposes of the EEO complaint process); Complainant v. Dep't of the Army, EEOC Appeal No. 0120131103 (March 18, 2014) (the Agency had partial or complete control over the decision to hire Complainant, Complainant received her assignments via an Agency ticketing system, Agency employees guided Complainant on how to do her work in accordance with Agency standards, and Agency customers had input into the work. Complainant's appraisals were completed with input from the Agency, Complainant worked on Agency premises using Agency equipment, she worked for the Agency for almost three years, the Agency controlled her schedule, and although the contractor provided Complainant leave, she had to get Agency approval to use it. The contractor ultimately terminated Complainant after receiving complaints from the Agency. While the contractor paid Complainant and provided her with benefits, the Agency exercised sufficient control over Complainant's position to qualify as a joint employer); Complainant v. Dep't of Energy, EEOC Appeal No. 0120130998 (January 24, 2014) (Complainant's work required a high level of skill and was not part of the Agency's main mission, and the Agency did not provide him with pay or benefits. Nevertheless, Complainant's first line Agency Supervisor assigned him work and assisted him in developing certification and accreditation packages, Complainant worked on Agency premises using Agency office equipment, and served the Agency for approximately four years. Therefore, the Agency exercised sufficient control over Complainant's position to qualify as his employer for purposes of the EEO complaint process. Further, there was some dispute as to whether the Agency played a role in Complainant's termination which could only be resolved through an investigation of the merits of Complainant's claims); but see, Complainant v. Dep't of Def., EEOC Appeal No. 0120141786 (August 27, 2014) (Complainant worked as a bagger at an Agency commissary and the record showed that she was not supervised by an Agency employee, provided no work or services to the Agency, was not paid by the Agency, and did not earn leave or benefits. The Agency did not control when Complainant performed her duties, and was not primarily responsible for Complainant's termination); Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120122980 (August 13, 2014) (the Agency did not control the manner and means of Complainant's daily custodial work or provide supervision, Complainant was assigned to an Agency facility as a "task managed" employee, the contractor retained the authority to discipline Complainant and provided training, the Agency did not pay Complainant or provide benefits, and Complainant's work could not be reasonably classified as an integral part of the Agency's mission); 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 the Army, EEOC Appeal No. 0120123311 (January 30, 2014) (while the Agency provided a suitable work location and certain office and protective equipment, the contractor assigned duties to Complainant, completed his performance evaluation, approved his leave, established his work schedule and dictated the terms and conditions of his employment relationship. While the Agency Commander initiated the process to have Complainant reassigned from his facility the contractor ultimately made the decision to terminate Complainant. Therefore, the Agency was not a joint employer of Complainant); Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120132580 (December 3, 2013) (the weight of the evidence showed that the Agency did not exercise sufficient control over Complainant's position to qualify as his employer or a joint employer. The Agency provided the necessary equipment and location for Complainant to perform his job; Complainant worked for the Agency for at least five years; and the Agency had the authority to initiate Complainant's termination. Complainant, however, set his own schedule, was not supervised by the Agency, worked autonomously, was paid on a per-job basis, and did not receive benefits from the Agency. In addition, the agreement under which Complainant worked indicated that Complainant was prohibited from entering any Agency space not available to the public and from using Agency computers and telephones, and required Complainant to submit monthly invoices for payment); Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120131991 (November 13, 2013) (the Agency properly dismissed Complainant's complaint because the evidence did not show that he was an employee or applicant for employment. Complainant worked for a contractor and served as a Laborer at an Agency facility. Complainant's supervisor was an employee of the contractor, and the contractor managed his daily assignments and work schedule. Complainant was also paid by the contractor. Complainant worked on Agency projects for nine years, and participated in Agency training, and the Agency conducted the fitness-for-duty examination which led to Complainant's termination, but the Agency did not have significant control over the means and manner of Complainant's performance such that it could be considered a joint employer); Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120113737 (November 13, 2013) (Complainant received training at an Agency facility under an agreement with a local community college. Complainant worked under the supervision of an Agency official, and used the Agency's supplies and computers. However, he worked at the Agency for only nine months and was paid by the college. The Agency did not provide him with leave or benefits, and the record showed that contractor terminated the contract with the Agency. The agreement between Complainant and the college provided that the Agency would permit the colleges clients to "train in an appropriate occupational area" within the Agency. Thus, the weight of the evidence supported the Agency's assertion that Complainant was a student in a vocational training program who was placed at an Agency facility to gain practical experience and was not an employee of the Agency).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141696 (July 28, 2014) (Complainant's allegations that the Agency offered her jobs outside of her medical restrictions and purposely delayed submitting paperwork to the Department of Labor stated a viable claim of disability discrimination and reprisal. Complainant was not challenging the workers' compensation process but was alleging the Agency failed to reasonably accommodate her); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141683 (July 28, 2014) (Complainant's claim that the Agency delayed submitting the paperwork necessary for him to receive continuation of pay stated a viable claim of disability discrimination and reprisal. Agency managers advised the EEO Counselor that they were aware Complainant was entitled to continuation of pay and the matter was not a challenge to a determination by OWCP); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141547 (July 10, 2014) (Complainant's claim that the Agency gave her a modified limited duty job offer with requirements falling outside of her medical restrictions stated a viable claim of disability discrimination. Even if the job offer was made in conjunction with a workers' compensation claim and approved by OWCP, the duty to reasonably accommodate an individual with a disability is independent from OWCP); but see, Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123019 (July 28, 2014) (Complainant's claim that the Agency provided false information to the Office of Workers' Compensation Programs involved a collateral attack on the workers' compensation process and was properly dismissed for failure to state a claim. The EEO complaint process was not the place to determine whether statements made to OWCP were true or not, and the matter directly impacted the OWCP adjudicatory process); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141208 (July 10, 2014) (the Agency properly dismissed Complainant's claim that the Agency did not forward requested medical documents to the Office of Workers' Compensation Programs for failure to state a claim. The matter addressed the Agency's processing of Complainant's workers' compensation claim, and such a concern should be addressed within the OWCP adjudicatory process); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140240 (February 21, 2014) (Complainant's claim that an Agency official delayed submitting paperwork for his workers' compensation failed to state a viable claim under the EEOC's regulations. The Commission has held that, without more, claims concerning delays in submitting paperwork to OWCP, or submitting incomplete or faulty paperwork constitute a collateral attack on the OWCP process).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141955 (July 28, 2014) (Complainant's claim that the Agency had him escorted from the facility where he worked and gave him a pre-disciplinary interview stated a viable claim of retaliation. While Complainant did not lose pay and was not ultimately disciplined, the anti-retaliation provisions of the employment statutes are not limited to actions affecting terms and conditions of employment).

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. 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); but see Complainant v. Dep't of the Navy, EEOC Appeal No. 0120141034 (July 11, 2014) (Complainant's claim that the Agency did not extend or recertify him as a Marine Instructor did not state a viable claim of discrimination. Complainant's job was to implement the curriculum for military instruction, and the Commission found that the claim arose in the context of Complainant's military-related duties rather than as part of some civilian employment by the Agency); Complainant v. Dep't of the Army, EEOC Appeal No. 0120132654 (January 24, 2014) (the Agency properly dismissed Complainant's claim that he was notified he would not be retained in his military position based upon a decision by the Qualitative Retention Board for failure to state a claim. Complainant was challenging a decision by a military board that determines the status of uniformed members and the Commission has no jurisdiction over military matters).

Complainant v. 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).

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

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

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

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

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

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

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

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

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

Complainant v. Dep't of Def., EEOC Appeal No. 0120132274 (December 13, 2013) (Complainant's allegation that his Supervisor threatened to transfer him, and stated he would not pay Complainant if he did not have leave scheduled when a mandatory meeting was planned stated a viable claim of disability discrimination. The comments could be construed as threats to deny Complainant tangible job benefits based on his disability, and were exacerbated by the fact that they were made by Complainant's immediate Supervisor. Further, the incidents were not isolated events since they occurred within one month of each other, and the Supervisor's alleged threat to transfer occurred directly after Complainant sent him an e-mail regarding his medical problems. A reasonable person in Complainant's situation could perceive the conduct as hostile or abusive, and Complainant was entitled to a fact specific inquiry into his allegations).

Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120123382 (November 27, 2013) (Complainant's claim that the Agency issued a "suspension proposal," when considered with her assertion that the District Manager made a false report to the police about where she was parked, stated a viable claim of retaliatory harassment. Complainant alleged that the actions were taken in reprisal for her prior EEO and union activity, and the Agency did not dispute that Complainant had engaged in prior EEO activity. Further, participation in the grievance process may constitute protected activity if claims of discrimination are raised therein. Finally, the Commission has interpreted the statutory retaliation clauses to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter protected activity, and Complainant raised the issue of the District Manager's conduct as part of her overall claim of retaliatory harassment).

Complainant v. Dep't of Justice, EEOC Appeal No. 0120132527 (November 27, 2013) (Complainant's claim that the Agency conducted an "EEO complaint background check" which resulted in an investigation by the Office of Internal Affairs and created a hostile work environment stated a viable claim of retaliation. While Complainant previously filed a grievance regarding her resulting termination, the Commission noted that it has a strong public policy interest in ensuring that Agencies do not conduct investigations to obtain derogatory information on a Complainant in response to her filing an EEO complaint. Thus, the Commission is inclined to treat claims about such alleged investigations as distinct matters which independently state a claim of discrimination).

Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120132362 (October 24, 2013) (Complainant's allegation that the Agency retaliated against him when it suspended his use of a government credit card stated a viable claim. Complainant cited written Agency policy concerning the use of government credit cards, and alleged that the suspension of his card use was disciplinary, exceeded actions taken against similarly situated employees, was not justified, and interfered with the performance of his duties. Thus, the allegations were sufficient to state a claim).

(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. 0120141934 (August 28, 2014), request for reconsideration denied, EEOC Request No. 0520150017 (March 9, 2015) (Complainant's claim that he received a letter of indebtedness was properly dismissed for failure to state a claim. The proper forum for Complainant to raise challenges to actions involving a letter of indebtedness is under the Debt Collection Act, and the Commission does not have jurisdiction to decide matters covered by that Act); see also, Complainant v. Dep't of Energy, EEOC Appeal No. 0120141185 (July 15, 2014) (the Agency properly dismissed Complainant's claim because the receipt of a letter of indebtedness under the Debt Collection Act is not within the Commission's jurisdiction and the proper forum to challenge the collection process and validity of the debt is through the administrative process of the Debt Collection Act); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140117 (February 11, 2014) (the proper forum for Complainant to challenge the appropriateness of the collection process is through the administrative process of the Debt Collection Act, and, therefore, her complaint concerning deductions from her paycheck related to a Letter of Demand was properly dismissed for failure to state a claim); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123314 (January 24, 2014) (Complainant's claim that he received a letter of indebtedness and was not given an opportunity to participate in mediation was properly dismissed. Challenges to an agency's actions under the Debt Collection Act are not within the scope of the EEO complaint process. In addition, agencies have discretion to decide whether to offer alternative dispute resolution in any given EEO case and such a decision cannot be made the subject of an EEO complaint); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131004 (October 29, 2013), request for reconsideration denied, EEOC Request No. 0520140088 (April 15, 2014) (Complainant's allegation that she received a notice from the Office of Personnel Management that it would be collecting a government debt on behalf of the Agency failed to state a viable claim of discrimination. The Commission's regulations do not provide it with jurisdiction to decide matters involving debts covered by the Debt Collection Act, and the proper forum for Complainant to have raised her challenges to the debt collection was under that statute).

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

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

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

Complainant v. Dep't of Justice, EEOC Appeal No. 0120132898 (January 9, 2014) (Complainant's allegation that the Agency subjected her to an investigation by the Office of Internal Affairs failed to state a viable claim of race discrimination. The investigation concluded that the charges were unfounded, no adverse action was taken against Complainant, and she conceded that it did not jeopardize her career. While Complainant asserted that the actions amounted to discriminatory harassment, the Commission found that the matter was not sufficient to raise a viable hostile environment claim).

Complainant v. Dep't of Def., EEOC Appeal No. 0120132938 (January 9, 2014) (the Agency properly dismissed Complainant's complaint alleging discrimination with regard to a "fully successful" rating on one critical job element of her performance appraisal. Complainant's overall rating was "Outstanding," and changing the score on the one element would not have any effect on her overall rating. Therefore, Complainant did not show how she was harmed. While Complainant stated that she suffered stress, the Commission has held that allegations that fail to state a claim cannot be converted into a viable claim because the complainant requests compensatory damages).

Complainant v. Dep't of Agric., EEOC Appeal No. 0120122597 (January 8, 2014) (the Agency properly dismissed Complainant's complaint alleging discrimination when two new mandatory fitness components were added to the annual fitness assessment. It was undisputed that the test is administered to all law enforcement officers, and, as part of his Fitness Instructor duties, Complainant was required to participate in the assessment. There was no claim that Complainant suffered a loss or harm because of the addition of the two elements, or that the Agency made any employment decision based upon the results. Complainant was alleging a concern about the potential for future harm, and such claims were insufficient to state a claim of harassment).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132549 (November 14, 2013) (the AJ properly dismissed Complainant's claim that the Agency released her medical benefit compensation records to the Department of Labor and a state agency responsible for processing claims for unemployment. The Commission has interpreted the ADA to allow employers to disclose medical information to state workers' compensation offices in accordance with state laws. Therefore, the disclosure of Complainant's medical benefit forms to the state was permissible).

Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120132327 (October 31, 2013) (the Agency properly dismissed Complainant's claim that it discriminated against her when it denied her computer and telephone access she needed to perform her duties as union president. Complainant had been retired from the Agency for approximately five years, and her claim was tied to her role as a union representative and not an employee. Further, Complainant's assertions that the Agency's denial of her request violated the collective bargaining agreement and Federal Labor Relations Act constituted a collateral attack on the arbitration/negotiated grievance process).

Summary Judgment

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

Summary Judgment Affirmed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his race when he did not receive an overall performance rating of "Outstanding." The AJ ultimately issued a decision without a hearing finding that Complainant failed to prove his allegation of discrimination. On appeal, the Commission initially found that the AJ's issuance of a decision on summary judgment was proper. While Complainant asserted that the AJ did not consider his response, the Commission noted that the AJ specifically acknowledged Complainant's response in the decision. In addition, the record was adequately developed, and Complainant was given notice of the AJ's intent to issue a decision without a hearing and a comprehensive statement of allegedly undisputed material facts, and had the opportunity to engage in discovery. The Commission found that there was no genuine issue of material fact in the case. The Commission further affirmed the AJ's finding of no discrimination. The Agency articulated legitimate, nondiscriminatory reasons for its action specifically that Complainant did not receive a rating of "Outstanding" on at least three performance elements. While Complainant disagreed with his Supervisor's assessment of his performance, he did not submit any evidence to show that the Supervisor's assessment was racially motivated. Complainant v. Dep't of Justice, EEOC Appeal No. 0120132206 (November 13, 2013); request for reconsideration denied, EEOC Request No. 0520140118 (June 10, 2014).

Commission Found Record Inadequately Developed and Reversed Summary Judgment. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of disability, age and prior EEO activity when it reassigned him to unclassified duties. Following an investigation, the AJ issued a decision without a hearing finding no discrimination. On appeal, the Commission concluded that the AJ erred when he found that there were no genuine issues of material fact and relied upon a record that had not been adequately developed. The record reflected that Complainant requested a reasonable accommodation, which constituted protected EEO activity. Complainant stated that on the day of his request, he was referred to the Civilian Employment Assistance Program and was reassigned to unclassified duties the following day. Therefore, the Commission found that Complainant established a prima facie case of retaliation. In addition, the Commission noted that Complainant alleged circumstances that would establish a prima facie case of disability discrimination including an assertion that his Supervisor commented there was "no place" at the facility for a disabled person. The Commission stated that the Agency was also alleging that maintaining Complainant in his original position would have posed a direct threat, and there was an issue of material fact concerning whether the Agency conducted an individualized assessment or actually established that Complainant was a direct threat when it reassigned him. The record contained scant information concerning the duration of the alleged risk, the nature and severity of the potential harm, the likelihood the harm would occur, and the imminence of the potential harm. Therefore, the matter was remanded for an administrative hearing. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120113118 (August 14, 2014).

Commission Found Genuine Issues of Material Fact and Reversed Summary Judgment. Complainant, a female teacher at an all male correctional facility, filed two complaints of discrimination on the bases of race and sex, including allegations of hostile work environment harassment and wrongful termination. Without holding a hearing, an AJ found that complainant failed to establish a prime facie case in both claims. On appeal, the Commission found that there were genuine issues of material fact which required a hearing. The Agency itself noted that there were questions which did not "appear to have been examined well," and which should be returned to the AJ for further proceedings. Co-workers provided statements in support of Complainant's claim of harassment, stating that they heard a number of both sexist and racist comments. In addition, Complainant explicitly denied engaging in the behavior cited as the reason for her termination, and she was ultimately exonerated of the charge by the Agency's Inspector General. Further, a witness provided evidence that the inmate involved in the matter had a motive to fabricate the accusation of improper conduct. Finally, the Commission found significant credibility issues regarding the possibility of retaliatory animus motivating the decision to terminate Complainant. Thus, the matter was remanded for a hearing. Complainant v. Dep't of Justice, EEOC Appeal No. 0120140715 (July 2, 2014).

Commission Found Unresolved Issues of Material Fact and Credibility, and Reversed Summary Judgment. Complainant, an Accountant, filed three complaints of discrimination and hostile work environment on the bases of race, sex, color, and reprisal, including a claim of non-selection. The AJ, over Complainant's objections, issued a decision without a hearing in favor of the Agency. On appeal, the Commission found that the AJ's issuance of a decision without a hearing was improper because there were unresolved issues of material fact and witness credibility. Specifically, the Commission found that genuine issues of material fact existed for both Complainant's claim of non-selection in favor of a white, female candidate and his claim of a hostile work environment. With regard to the non-selection, the Agency asserted that the Selectee had the necessary experience with judicial decisions concerning debt collections, which Complainant lacked. Complainant stated on his application, however, that he had such experience and that the Agency trained him regarding judicial decisions. Further, the record did not contain evidence of the Selectee's experience, so comparison of qualifications was not possible without further discovery and investigation. Complainant also provided statements from Co-workers corroborating his assertion that the hiring process was unfair.

The Commission also found material facts in dispute and credibility issues with regard to the hostile work environment claim. The record included documentation from the Agency indicating that employees had accused the Team Leader, one of Complainant's alleged harassers, of unprofessional behavior, including treating minority employees who filed EEO actions "more harshly." Complainant contended that he received an email that contradicted the Agency's version of events and showed that the Team Leader "set impossible and unethical work requirements." The Commission stated that, assuming the incidents cited by Complainant were true, the actions could rise to the level of a hostile work environment based at least on Complainant's protected EEO activity. Therefore, the credibility of Complainant, witnesses, and management officials needed to be assessed at a hearing. Complainant v. Pension Benefit Guar. Corp., EEOC Appeal No. 0120120244 (July 1, 2014).

Summary Judgment Reversed Because Complainant Was Denied Discovery. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of her race, sex, disability, and prior EEO activity. Following an investigation, Complainant requested an administrative hearing, and the AJ ordered the parties to complete discovery by July 30, 2012. The Agency requested that the AJ issue a decision without a hearing. Complainant obtained counsel, and requested an extension of time to complete discovery which was not opposed by the Agency. The AJ ultimately issued a decision without a hearing on July 28, 2012, finding no discrimination. On appeal, the Commission found that the issuance of a decision on summary judgment was improper. Complainant made an unopposed request for an extension a mere 15 days after the AJ set the schedule for discovery. The AJ denied this request and issued a decision on summary judgment 12 days before the end of the ordered 75-day discovery period. The Commission found it inappropriate for the AJ to conclude that there were no genuine issues of material fact because Complainant was denied the chance to discover evidence that could have helped her prove that there were facts in dispute. The Commission noted, for example, that Complainant asserted that a comparator existed, but that she needed to engage in discovery to learn the employee's name. Thus, the AJ erred when he concluded that Complainant failed to establish a prima facie case, when the lack of discovery prevented Complainant from doing so. The Commission remanded the complaint for a hearing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123355 (July 1, 2014).

Summary Judgment Reversed Because Complainant Raised Allegation of Denial of Reasonable Accommodation that Was Not Addressed by AJ. 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).

Commission Found Genuine Issues of Material Fact and Reversed Summary Judgment. Complainant, a recently naturalized citizen, worked as an Immigration Service Clerk. Complainant worked for the Agency for seven years until he was terminated in September 2010. Complainant filed a formal EEO complaint alleging that he was subjected to discriminatory harassment for approximately five years, and that the Agency discriminated against him when it terminated him and placed him in a non-duty status. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately granted the Agency's motion for summary judgment and issued a decision finding no discrimination. On appeal, the Commission concluded that the AJ erred when she found that there were no genuine issues of material fact in the case. Complainant detailed numerous incidents of harassment by his Supervisor including alleged hostile comments, and harsh discipline, and being locked in the Supervisor's office. The Commission found that, when viewed in the light most favorable to Complainant, a reasonable fact finder could conclude that they demonstrated animus toward Complainant's protected groups. In addition, the AJ failed to address incidents involving a Co-worker. Complainant stated that he complained to his second-line Supervisor and Field Office Director about the hostile treatment and they did nothing to stop the behavior. Complainant also alleged a pattern of disparate treatment in that he was denied at least 13 opportunities for conversion to a permanent position. Complainant's Supervisor did not deny many of the incidents described by Complainant, but stated only that Complainant misunderstood her comments and actions. The Commission found that a reasonable fact finder could find that the totality of the circumstances amounted to a hostile work environment, and that the Supervisor held discriminatory animus toward Complainant. The Commission also found apparent contradictions in the Agency's reasons for terminating Complainant which were sufficient to raise a genuine issue of material fact. Therefore, the matter was remanded for an administrative hearing. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120121312 (January 9, 2014).

Commission Found Genuine Issues of Material Fact and Reversed Summary Judgment. Complainant, a Grants Officer, filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of disability, age, and prior EEO activity when she was subjected to harassment and denied accommodation, and when the Agency requested certain medical information. Specifically, Complainant stated that her Supervisor constantly criticized her work and required her to assist others but did not provide her with similar support. Complainant also asserted that the Agency gave her a lower performance rating than in past years which resulted in no monetary award, and did not provide her with reasonable accommodation in the form of a revised telework agreement, and either a temporary reduction in workload or reassignment. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately found in favor of the Agency by summary judgment.

On appeal, the Commission concluded that the AJ erred in issuing a decision by summary judgment as there were significant issues of material fact that needed to be resolved through a hearing. The record in the case clearly established that Complainant was an otherwise qualified individual with a disability, and the Agency did not dispute this conclusion. In addition, Complainant submitted a series of requests for reasonable accommodation which the Agency either failed to act on or denied. The Agency did not consider any alternative effective accommodation and never considered whether allowing Complainant to work at home would create an undue hardship. While the AJ found that the Agency's actions were justified because Complainant failed to provide requested medical documentation, Complainant provided ample evidence that she did submit medical documentation to the Agency. The Commission found that whether the medical documentation was sufficient for the Agency to grant Complainant's accommodation requests was a critical issue that needed to be resolved. Complainant asserted that the Agency continued to make unwarranted requests for additional documentation in violation of the Rehabilitation Act, and management officials provided inconsistent reasons for requesting the documentation. Complainant also persuasively argued that the issue of her workload was inappropriate for summary judgment because her request was denied by her Supervisor without engaging in the interactive process. The Commission concluded that the AJ improperly resolved these issues by weighing conflicting evidence and making credibility determinations that were not suitable for summary judgment. The complaint was remanded for a hearing. Complainant v. Nat'l Sci. Found., EEOC Appeal No. 0120121886 (December 11, 2013).

Timeliness

Insufficient Evidence to Show Complainant Had Knowledge of Time Limit for Contacting EEO Counselor. Complainant initiated EEO counseling in February 2014 and filed a formal complaint of sexual harassment and hostile work environment for events that occurred between September 2010 and November 2013. The Agency dismissed the complaint on the grounds that Complainant did not contact the EEO Counselor in a timely manner and should have known about the 45-day time limitation. On appeal, the Commission found that the Agency did not produce sufficient evidence to establish that Complainant had actual or constructive knowledge notice of the 45-day time limit for contacting an EEO Counselor. Complainant asserted that she attempted to initiate the EEO process on September 6, 2013 and was told she could not do so by an EEO Manager. On November 21, 2013, Complainant returned to report incidents of retaliation and was told that the EEO complaint process had already been initiated and would be included in an investigation by the Agency's Administrative Investigative Board. Complainant's Supervisor also attempted to file an EEO Complaint on her behalf and was told to "hold off," and the EEO Manager told Complainant that she could not file a complaint because the harasser was not her supervisor. Lastly, Complainant expressed confusion about the EEO Complaint process because of a lack of training and information. The Commission reversed the Agency's final decision and remanded the claims to the Agency. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142245 (September 16, 2014).

Insufficient Evidence to Show Complainant Had Knowledge of Time Limit for Contacting EEO Counselor. The Agency dismissed Complainant's formal complaint of sexual harassment and hostile work environment for failure to timely contact an EEO Counselor, reasoning that the alleged acts occurred from September 2012 to November 2013, but Complainant did not initiate contact with a Counselor until March 2014. The Agency asserted that Complainant was familiar with the 45-day period because posters were hung around the workplace and Complainant attended mandatory EEO training. On appeal, the Commission found, however, that the Agency did not show that Complaint had active or constructive knowledge of the 45-day time limit and did not provide evidence of the EEO posters or notices on display at the facility or affidavits from management asserting that the EEO training included the limitation period. In addition, Complainant was given conflicting information because she was a postdoctoral candidate and unsure which procedure actually applied to her. Complainant stated that she initiated her complaint after being told in March 2014 that her EEO complaint must be addressed by both the Agency and her university. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142129 (September 16, 2014).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. Complainant contacted an EEO Counselor in October 2013 and subsequently filed a formal complaint alleging that the Agency discriminated against her when, since 2011, she was not paid the same rate as others in her position. The Agency's dismissal for untimely EEO Counselor contact was reversed on appeal. The Commission noted that the Lilly Ledbetter Fair Pay Act provides that an unlawful employment practice occurs with respect to discrimination in compensation when the individual is affected by the application of the practice, including each time wages are paid. Complainant contended that she was not paid the same wages as other similarly situated employees because of her race, and, as such, alleged a violation of Title VII with respect to compensation. Thus, she was entitled to pursue her claim of discrimination each time the allegedly discriminatory wages were paid, including when she sought counseling in October 2013. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141578 (July 15, 2014).

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 his 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); see also, Complainant v. Dep't of the Navy, EEOC Appeal No. 0120133219 (February 3, 2014) (Complainant became aware of the alleged discrimination on the dates the events occurred, and personnel actions such as the suspension of Complainant's security clearance become effective on the date of the action. Therefore, Complainant should have been aware of the alleged discrimination on November 16, 2012, not when he gathered "supporting facts" from a management official, and his contact with the EEO Counselor on January 8, 2013 was beyond the 45-day limitation period).

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).

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

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

Complainant Timely Contacted EEO Counselor After Effective Date of Challenged Action. Complainant contacted an EEO Counselor on February 21, 2013, and subsequently filed a formal complaint alleging that the Agency retaliated against him when it held his promotion in abeyance due to an ongoing internal investigation. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant was notified that his promotion would be held in abeyance on October 10, 2012. On appeal, the Commission found that the Agency's dismissal was improper. The record showed that although Complainant was notified that his promotion would be held in abeyance in October 2012, the effective date of the promotion was January 13, 2013. Arguably, Complainant could not challenge the Agency's failure to promote him until after he was entitled to receive the promotion. Therefore, Complainant's EEO Counselor contact was within the 45-day limitation period. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120132727 (January 8, 2014).

Time Limit for Contacting EEO Counselor Extended. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his disability when it failed to accommodate him from August 2011 through January 2012, and issued him a Notice of Proposed Removal on February 7, 2012. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant first contacted a Counselor on April 18, 2012. On appeal, the Commission found sufficient reason to extend the time limit for contacting an EEO Counselor. Complainant provided evidence that he first contacted the EEO Office concerning the Notice of Proposed Removal on February 21, 2012. While an EEO Assistant responded to Complainant, the EEO Office did not contact Complainant further to arrange for counseling until Complainant again contacted the EEO Office in April. The Commission further noted that there was ample evidence that Complainant experienced flare-ups of his mental disabilities during the period in question. Thus, the Commission reversed the Agency's dismissal of the complaint. Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120123305 (October 25, 2013).

Formal Complaint Timely Filed Within 15 Days of Receipt of Notice by Certified Mail. Complainant filed a formal EEO complaint on January 3, 2014, which the Agency dismissed as untimely. The Agency asserted that Complainant received the notice of right to file by e-mail on November 28, 2013. On appeal, the Commission found that Complainant did file his complaint in a timely manner. Complainant acknowledged that he received the e-mail notice of his right to file a complaint on November 28, 2013. The record showed, however, that the Agency also sent the notice to Complainant by certified mail. Both the e-mail and mailed notices specifically provided that a formal complaint must be filed within 15 days and both stated that the 15-day period began on the day after Complainant received the "certified/tracked letter." Once Complainant received the notice by certified mail on December 24, 2013, he timely filed his formal complaint within 15 days. Complainant v. Dep't of Agric., EEOC Appeal No. 0120141790 (August 29, 2014).

Agency Failed to Notify Complainant It Was Relying on Doctrine of Constructive Receipt. The Agency dismissed Complainant's formal complaint as untimely, stating that Complainant received notice of her right to file an individual complaint on January 30, 2014, but did not file her complaint until February 18, 2014, which was beyond the 15-day limitation period. On appeal, the Commission found that the dismissal was improper. While the record contained a copy of a certified return receipt for the notice showing that it was delivered to Complainant's address, the notice was not signed by Complainant. Instead, the receipt was signed by another individual and Complainant stated that she did not receive the notice until she returned from a trip on February 4, 2014. The Commission has previously stated that an agency shall notify a complainant that it is relying on the doctrine of constructive receipt when it dismisses a complaint as untimely based on a certified receipt signed by another individual. In this case, the Agency did not advise Complainant that it was relying on the doctrine of constructive receipt and only generally asserted that Complainant received the notice on January 30. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141724 (August 27, 2014).

Agency Cannot Rely on Five-Day Presumption of Receipt to Show When Complainant Received Notice of Right to File. The Agency dismissed Complainant's formal complaint as untimely, stating that it was not filed within 15 days of her receipt of the notice of right to file. The Commission reversed the dismissal on appeal. The Agency stated that it sent the notice to Complainant on September 16, 2013, but conceded that there was no proof as to when Complainant received the notice. Further, Complainant's formal complaint was postmarked October 8, 2013. The Commission noted that the Agency misunderstood the presumption that a document is deemed timely if, absent a legible postmark, it is received within five days of the expiration of the applicable time period. The five-day presumption was not available in this case to prove when Complainant received the notice of right to file. Thus, since the Agency was unable to prove when Complainant received the notice, the dismissal of her complaint as untimely was improper. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141364 (July 11, 2014).

Complainant Deemed Timely Filed. The Agency dismissed Complainant's formal complaint as untimely, finding that she did not file her complaint within 15 days of receiving the notice of the right to file. On appeal, the Commission noted that it was undisputed that Complainant first received a copy of the notice on January 9, 2014, by e-mail. There was a dispute as to when Complainant filed her formal complaint. Complainant claimed that she filed her complaint by regular mail on January 13, 2014, while the Agency asserted that the complaint was not received until February 5 and the postmark was illegible. The Agency sent Complainant a second notice by certified mail which was received by Complainant on January 23, 2014. Complainant then sent a second copy of her formal complaint on January 28. The Commission found that the Agency created confusion by sending Complainant two separate copies of the notice, and Complainant clearly filed her formal complaint within 15 days of receiving the second notice. The Commission concluded that any perceived delay should be excused and the matter was remanded for processing. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120141581 (July 10, 2014).

Agency Cannot Rely on Tracking Information Containing Only a Generalized Reference to City and Zip Code to Prove Receipt by Complainant. 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), request for reconsideration denied, EEOC Request No. 0520140487 (January 29, 2015); see also, Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140438 (March 6, 2014) (the record contained a Track and Confirm print-out indicating a delivery to a particular city and state without further details regarding the address. There was no evidence, other than the generalized reference, indicating that Complainant received the Notice on the date claimed by the Agency. Therefore, the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness); but see, Complainant v. U.S. Postal Serv., EEOC Request No. 0520120451 (March 20, 2014) (The Agency submitted a copy of the Track and Confirm page which showed the signature of Complainant's attorney and the P.O. Box, city, state and zip code to which the Notice was delivered on September 6, 2011. The address was that of Complainant's attorney and the Tracking number matched that listed on the Notice. Therefore, since the time for filing was to be computed based upon receipt of the Notice by Complainant's attorney, the complaint filed on September 22, 2011, was untimely and was properly dismissed).

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

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

Agency Estopped from Dismissing Complaint as Untimely. Complainant contacted an EEO Counselor and subsequently filed a formal complaint in December 2012 alleging, among other things, that the Agency discriminated against her when it prevented her from being nominated for an award by the April 30, 2010 deadline, and she was not promoted to a higher grade level in October 2011. The Agency dismissed the claims for failure to timely contact an EEO Counselor and failure to timely file a formal complaint. On appeal, the Commission found that the Agency's dismissal was improper. The record showed that Complainant initiated EEO contact on the first matter by June 3, 2010, and on the second matter on October 8, 2011, both of which were timely. The Commission noted that Complainant did not effectively withdraw her contact by sitting on her rights, but repeatedly asked the Agency to process her EEO complaint to no avail. Further, Complainant was not issued a notice of right to file a complaint until September 4, 2012, which the Commission characterized as a lengthy delay. The Commission noted that the Agency's Office of Civil Rights attempted to informally resolve Complainant's EEO issues, but found that the Agency's inaction and delay rose to the level of negligence and bordered on stonewalling or deliberate refusal to process the claims. Therefore, the Commission concluded that the Agency was stopped from dismissing Complainant's complaint as untimely. The Commission noted that Complainant's delay arose from confusion likely caused in part by the Agency's long delays. Complainant v. Dep't of State, EEOC Appeal No. 0120132662 (December 18, 2013).

Justification Found for Excusing Untimely Filing. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it did not select him for a position or for a training course. The Agency dismissed the complaint as untimely. The record showed that the notice of right to file a formal complaint was sent to the address of Complainant's attorney of record by certified mail and signed for on April 10, 2013. Complainant did not file his formal complaint, however, until May 1, 2013, which was beyond the applicable limitation period. Complainant's attorney contended that the signature on the certified mail receipt was that of an individual unknown to him and not an agent or employee of his office. In addition, Complainant's attorney provided an affidavit from the manager of the building where the office is located indicating that the individual was also not his agent or a tenant in the building. Complainant's attorney stated that the notice was not placed in his mailbox until April 30, 2013. The Commission found that the circumstances of the case provided adequate justification to excuse any untimely filing of the complaint, and the Agency did not provide sufficient evidence that the notice was received by Complainant's attorney. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120132751 (January 9, 2014).

Delivery of Notice of Apartment Complex Manager Insufficient to Commence Filing Period for Formal Complaint. Complainant filed a formal EEO complaint alleging that the Agency subjected her to harassment and denied her reasonable accommodation. The Agency dismissed the complaint as untimely. The Agency stated that the Notice of Right to File a Formal Complaint was delivered to and signed for at Complainant's address of record on February 10, 2012, but Complainant's complaint was not filed until February 28, 2012. On appeal, the Commission reversed the Agency's decision. The Notice was received and signed for by Complainant's apartment complex manager. Complainant stated that the Manager placed the Notice in her mailbox without informing her of its delivery, and she did not receive the notice until she checked her mailbox on February 13, 2012. The Commission stated that the delivery to the Manager was not sufficient to commence the filing period, and the appropriate date of receipt was February 13, the date Complainant received the Notice. Therefore, the formal complaint was timely. Complainant v. Small Bus. Admin., EEOC Appeal No. 0120122093 (November 26, 2013).

Formal Complaint Timely Filed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race, age and prior EEO activity. The Agency dismissed the complaint as untimely, stating that while Complainant received the notice of right to file a formal complaint on April 1, 2013, she did not file her complaint until May 1, which was beyond the 15-day limitation period. On appeal, the Commission noted that the formal complaint dated April 14, 2013, was mailed to the Agency in an envelope containing a mailing label dated April 16, 2013. Complainant asserted that she mailed the complaint on that day and the Agency delayed processing the item. The Commission stated that the Agency bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. While the Agency's "Track and Confirm" system indicated that the envelope was not "Enroute/Processed" until May 2, 2013, the Commission determined that was not adequate proof that Complainant did not mail the envelope on April 16, the date she purchased the mailing label. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132577 (November 20, 2013).

Extension of Time for Filing Formal Complaint Justified. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it failed to select him for a position. The Agency dismissed the complaint as untimely, stating that Complainant's attorney received the notice of right to file on March 27, 2013, but the complaint, which did not have a postmark, was not received until April 25, 2013. On appeal, Complainant's attorney provided a statement indicating that he mailed the complaint to the Agency on April 5, 2013, and the record included a copy of the original certificate of mailing. The Commission concluded that, given the lack of a postmark on the envelope, Complainant provided adequate justification to warrant an extension of the time limit for filing the complaint. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120132694 (November 22, 2013).

Extension of Time for Filing Formal Complaint Justified. Complainant contacted an EEO Counselor and subsequently filed a formal complaint alleging that the Agency discriminated against her on the bases of sex and prior EEO activity. The Agency dismissed the complaint as untimely, stating that Complainant received the Notice of Right to File a formal complaint on January 18, 2013, but failed to file her complaint until January 26, which was after the 15-day limitation period. On appeal, the Commission found that Complainant provided sufficient medical support to show that her medications and their side effects interfered with her ability to understand the deadline. The record included a note from Complainant's physician stating that, after surgery, he prescribed medication for Complainant with side effects that included "mental fogginess, lethargy and drowsiness," and that Complainant was taking other medication which had side effects such as intensified cognitive impairment. Thus, the Commission concluded that Complainant demonstrated that an extension of time was warranted in this case. Complainant v. Dep't of the Army, EEOC Appeal No. 0120132006 (October 23, 2013).