The DIGEST of Equal Employment Opportunity Law

Volume 1 of the Fiscal Year 2021 Digest contains EEOC’s Annual Compilation Issue - a sampling of federal sector decision summaries of note from the prior Fiscal Year (2020), as selected by Digest staff from among the decisions issued by EEOC during that fiscal year.  Some summaries that also appeared in previous issues of the Digest are reprinted here for the convenience of readers. 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 “Findings on the Merits” by statute, as well as “Under Multiple Bases.”

The Commission redacts Complainants' names when it publishes decisions, and all federal sector appellate decisions issued for publication use a randomly generated name as a substitute for the name of the complainant. This randomly generated first name and last initial is assigned using a computer program that selects names from a list of pseudonyms and bears no relation to the complainant's actual name.  This change was made to address privacy concerns and to ensure consistency with the Commission's approach in all of its enforcement work and the investigations of complaints.

SELECTED EEOC DECISIONS

Attorney’s Fees

Commission Affirmed Agency’s Award of Attorney’s Fees.  Complainant filed a complaint in which he alleged that the Agency discriminated against him on the bases of sex and reprisal.  An EEOC Administrative Judge (AJ) issued a default judgment against the Agency, and subsequently issued a decision awarding attorney’s fees.  The Agency fully implemented the AJ’s remedial relief, and the Commission affirmed the award of attorney’s fees.  The Commission initially noted that Complainant did not challenge the Agency’s $100 reduction for emails and calls to Complainant, or the Agency’s application of a $400 hourly rate.  The Commission also found that the Agency’s brief delay in processing the request for attorney’s fees did not prejudice Complainant.  Complainant’s primary contention on appeal concerned the reduction of his attorney’s claim for 23.05 hours to prepare and revise a 14-page appeal brief.  The Commission agreed with the Agency that the amount of time was excessive given the attorney’s level of experience.  The Commission also noted that Complainant was unsuccessful in many of the issues raised in his appeal brief.  Therefore, the Agency’s reduction was reasonable.  Clay W. v. Dep’t of the Army, EEOC Appeal No. 2019001846 (July 21, 2020).

Attorneys’ Fees Modified.  The Commission previously determined that the Agency subjected Complainant to unlawful discrimination.  Pursuant to the Commission’s Order, the Agency issued a final decision regarding Complainant’s entitlement to attorneys’ fees and costs.  The Commission modified the Agency’s award of attorneys’ fees on appeal.  The Agency did not dispute Complainant’s attorneys’ hourly rates.  The Commission noted the longstanding policy of encouraging parties to make reasonable efforts to voluntarily settle complaints of discrimination as early as possible, and therefore provided Complainant’s attorneys with $398.70 for time spent seeking mediation.  The Commission determined that the Agency’s across-the-board reductions of 30% based on the lack of specificity and billing errors, and 50% for unsuccessful claims were inappropriate.  The Commission had previously found that Complainant failed to prove her disparate treatment and non-sexual harassment claims.  Nevertheless, Complainant’s attorneys included work totaling $22,196.15 related, in part, to those unsuccessful claims.  The Commission reduced the amount in question by 75%, stating that some of the work was arguably related to Complainant’s successful sexual harassment claim.  While Complainant’s attorneys were not entitled to costs associated with maintaining an online legal research service, as such costs were properly considered overhead, they were entitled to costs associated with witness depositions.  Additionally, Complainant was entitled to an award of reasonable attorney’s fees incurred in the processing of the instant appeal.  The Commission also affirmed the Agency’s award of  $20,000 in nonpecuniary compensatory damages, noting that the award was consistent with awards in similar cases given that Complainant’s medical documentation did not show the extent of Complainant’s alleged pain and suffering.  Maxine C. v. U.S. Postal Serv., EEOC Appeal Nos. 2019001571 & 2019003019 (July 7, 2020) request for reconsideration denied, EEOC Request Nos. 2020004720 & 2020004721 (Nov. 9, 2020).

Commission Affirmed Award of Attorney’s Fees Based on Prevailing Rate in Attorney’s Locale.  The Administrative Judge (AJ) awarded Complainant’s attorney fees based on the customary hourly rate used by the attorney’s Grand Rapids, Michigan law firm.  The parties conceded that Complainant worked in Chicago, and the case was heard in the Commission’s Chicago District Office.  Nevertheless, the Commission found nothing in the record to warrant reversing the AJ’s decision to use the attorney’s customary hourly rate as the reasonable hourly rate in this case.  The Commission has held that complainants can go elsewhere to find an attorney to handle their specific case, even when it results in payment of a higher hourly rate than the prevailing market rate where the matter arose.  This, however, was not the situation here.  In this case, Complainant chose to hire an attorney with lower hourly rates from outside of the market where the allegations arose.  Nothing in the record supported the notion that Complainant’s attorney performed his duties any differently than he would have if the case arose, or was litigated in, Grand Rapids.  Tiffanie M. v. U.S. Postal Serv., EEOC Appeal No. 0120182054 (Dec. 18, 2019); request for reconsideration denied, EEOC Request No. 2020002389 (Sept. 16, 2020).

Commission Modified Award of Attorney’s Fees.  In a prior decision, the Commission found that the Agency failed to reasonably accommodate Complainant for approximately one month, and ordered the Agency, among other things, to pay Complainant reasonable attorney’s fees.  In the underlying decision, the Commission found that the one-page affidavit that Complainant’s attorney submitted to the Agency was insufficient to support the requested $450 hourly rate.  The referenced “Legal Representation Agreement” was not evidence of the attorney’s customary billing rate for clients in employment discrimination cases, and the attorney did not submit any additional evidence to corroborate the billing rate such as affidavits from attorneys in the same area who engaged in a similar practice.  The Commission noted that, for the first time on appeal, Complainant submitted evidence regarding the attorney’s hourly rate, but stated that it was inappropriate to submit such evidence at that stage.  Therefore, the Commission affirmed the Agency’s finding that Complainant’s attorney was entitled to a $300 hourly rate.  The Commission also found that the Agency correctly reduced the time claimed for pre-complaint work to two hours.  Nevertheless, the Commission modified the Agency’s overall reduction in fees to reflect work performed on unsuccessful claims from 50% to 25%, because the denial of reasonable accommodation accounted for the majority of the attorney’s time spent on the case.  The Commission agreed with the Agency that numerous hours claimed were redundant and excessive given the attorney’s experience and the fact that the issues were not novel or overly complex.  Therefore, the Commission found that a 20% across-the-board reduction in fees was also warranted.  The Commission also awarded Complainant $5,000 in compensatory damages based on information in the record showing that Complainant suffered some emotional harm as a result of the Agency’s failure to accommodate his condition.  Wayne C. v. Dep't of Transp. EEOC No. 0120182783 (Nov. 29, 2019).

Compensatory Damages

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

Commission Affirmed AJ’s Award of $150,000 in Compensatory Damages.  Following a hearing, the AJ determined that the Agency discriminated against Complainant when it failed to provide him a reasonable accommodation for his hearing impairment and did not select him for the position of Postmaster.  While the Agency’s Final Order adopted the AJ’s finding that Complainant was subjected to discrimination as alleged, the Agency appealed the AJ’s award of $150,000 in damages.  The Commission determined that the AJ’s past pecuniary damages award was proper because Complainant endured a significant financial burden in commuting 177 miles each way to work and renting an apartment during the workweek while he was reassigned to a temporary position as the result of his non-selection.  The Commission further concluded that the AJ’s nonpecuniary damages determination was supported by substantial evidence.  In this regard, the award was consistent with previous awards for emotional distress in cases lacking documentary evidence of medical treatment.  Complainant presented evidence of severe distress, and the near dissolution of his marriage.  The AJ emphasized the severity of the emotional distress, stating that Complainant took steps toward committing suicide shortly after learning of his non-selection. The AJ also noted the ongoing nature of the distress, based on the pain Complainant exhibited during his testimony, and Complainant’s wife’s testimony that the non-selection caused a permanent “crack” in their marriage.  Miguel G. v. U.S. Postal Serv., EEOC Appeal No. 2020000182 (Mar. 4, 2020).

Commission Increased Award of Nonpecuniary Damages to $110,000.  In a prior decision, the Commission found that the Agency discriminated against Complainant when it terminated him during his probationary period, and ordered the Agency, among other things, to investigate his claim for damages.  The Agency awarded Complainant $25,000, and the Commission increased the award on appeal.  In addition to his own statement, Complainant provided statements from his physicians, friends, colleagues, pastor, and family members supporting his claim for damages.  When Complainant was terminated, he was forced to move his family from South Korea to the United States, and Complainant stated that the termination caused him anxiety and depression which he continued to experience over a six-year period.  His friends and colleagues noted a drastic change in his demeanor and personality.  Complainant stated that he was diagnosed with anxiety, depression, and Post Traumatic Stress Disorder, for which he sought counseling.  The Commission concluded that Complainant was entitled to an award of $110,000.  The Commission found no reason to disturb the Agency’s award of $4,150 in pecuniary damages.  Hayden K. v. Dep’t of Def., EEOC Appeal No. 2018000020 (Feb. 11, 2020).

Commission Increased AJ’s Compensatory Damage Award to $100,000.  The AJ found that Complainant’s supervisor subjected her to sexual harassment, including instances of unwanted touching, inappropriate comments, and requests for dates and sex.  As relief, the AJ, among other things, awarded Complainant $80,000 in nonpecuniary compensatory damages.  The Commission increased the award to $100,000 on appeal, noting that amount was more consistent with amounts awarded in similar cases.  The record showed that Complainant was diagnosed with PTSD and Severe Depression as a result of her supervisor’s sexual harassment over a three-year period.  Complainant underwent treatment for these conditions including medication and counseling.  Complainant testified that she suffered humiliation, anger, panic attacks, withdrawal, weight fluctuation, migraines, erratic sleeping patterns, and frequent crying spells.   The Commission concurred with the  AJ that the weight of the evidence adequately tied the harm directly to the harassment.  The Commission affirmed the AJ’s award of $2,877 in past pecuniary damages, and $2,500 in future pecuniary damages.  Nancey D. v. Dep’t of Justice, EEOC Appeal 2019005600 (Sept. 14, 2020).

Commission Affirmed Agency’s Award of $100,000 in Damages.  The Commission previously affirmed an Administrative Judge’s (AJ) issuance of a default judgment against the Agency, and finding that the Agency retaliated against Complainant when it terminated her from employment.  In the underlying decision, the Commission affirmed the Agency’s award of $100,000 in non-pecuniary compensatory damages.  Complainant submitted several statements and medical records to support her claim, emphasizing that the Agency’s actions tarnished her reputation and left her in fear of what would come next.  A sworn statement from Complainant’s colleague indicated that Complainant was subjected to embarrassing and demeaning treatment, including having her home searched and being put in jail three times without any charges.  Complainant’s colleague stated that the Agency’s discriminatory actions caused Complainant to experience debilitating headaches, anxiety, mental anguish, stress, acne breakouts, stomach problems, weight loss, night sweats, and insomnia.  The medical documentation showed that Complainant visited a medical facility on several occasions during this time for headaches, weight gain, neck stiffness, nightmares about work, and insomnia.  The Commission found that the Agency properly disallowed Complainant’s claim for debt owed to a car dealership, because Complainant failed to provide adequate documentation to substantiate her claim.  Karry S. v. Dep’t of the Air Force, EEOC Appeal No. 0120182301 (Nov. 21, 2019).

Commission Affirmed AJ’s Award of $90,000 in Nonpecuniary Damages.  Following a hearing, an AJ found that the Agency retaliated against Complainant when it reassigned him to a “sub-office,” and the AJ awarded Complainant $90,000 in nonpecuniary compensatory damages.  The Commission affirmed the AJ’s award on appeal.  Complainant testified that the additional commuting time was mentally and physically exhausting, and left him less time to spend with his wife and children.  Complainant also noted that he needed to take leave to attend medical appointments, pick up his children, and attend special events.  Complainant’s wife confirmed that Complainant was no longer able to drop his children off at school, and the family had to “scramble” to make transportation arrangements.  Complainant’s wife described herself as a “single parent for all intents and purposes” as a result of Complainant’s reassignment.  Further, as a result of Complainant using leave to compensate for his commute, the family was unable to go on vacations, and Complainant was unable to spend time with his terminally ill mother-in-law.  The Agency disregarded the length of time, four and one-half years, that Complainant suffered as a result of the reassignment, and the information Complainant presented regarding the impact the increased commute had on his quality of life.  Therefore, the Commission concluded that the $90,000 awarded by the AJ was not monstrously excessive, and was consistent with Commission precedent.  The Commission also found that the AJ properly included training concerning reprisal under the Rehabilitation Act as a remedy, because Complainant’s prior protected EEO activity included allegations of disability discrimination.  Donte L. v. Dep’t of Justice, EEOC Appeal No. 2019005117 (Jan. 22, 2020).

Commission Increased Agency’s Award of Compensatory Damages to $85,000.  The Agency found that Complainant was discriminated against, and subjected to a hostile work environment, and awarded him $65,000 in nonpecuniary damages.  The Commission increased the award to $85,000 on appeal, finding that amount more appropriate given the harm Complainant suffered.  Complainant submitted a personal statement attesting that he experienced fear, anxiety, anger, shame, confusion, and depression.  Complainant stated that he felt suicidal when he received notice that he was terminated shortly after being released back to work.  As a result of the Agency’s discrimination, Complainant stated that he separated from his wife and children.  Complainant submitted a statement from his wife attesting to the damage done to their marriage and to his relationship with their children.  Complainant’s cousin also provided a statement in support of Complainant’s claim.  Complainant’s physician indicated that Complainant’s mental health status worsened as a result of his interactions with the responsible Agency official.  The Commission found that Complainant was subjected to a sustained hostile work environment that lasted nearly nine months, from the time he requested a reasonable accommodation to the time he was terminated, and, therefore, was entitled to the higher award.  Les B. v. Dep’t of Commerce, EEOC Appeal No. 2019003393 (Sept. 14, 2020).

Commission Affirmed Agency’s Award of $85,000 in Nonpecuniary Compensatory Damages.  The Commission previously found that Complainant was subjected to sexual harassment by her first-level supervisor for nine months, and ordered the Agency to investigate Complainant’s claim for damages.  The Agency subsequently awarded Complainant $85,000 in nonpecuniary damages.  Complainant stated that she experienced depression, thoughts of suicide, changes in her weight, trouble sleeping, and migraines.  Complainant also indicated that the harassment caused problems in her relationship, and triggered memories of childhood abuse.  Complainant submitted statements from family members, her pastor, and her friends in support of her claim.  Complainant did not provide any medical documentation.  The Commission found the Agency’s award of $85,000 appropriate and consistent with awards in similar cases. Jenna P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001896 (Aug. 11, 2020).

Commission Increased Award of Nonpecuniary Damages to $85,000.  The Commission previously found that the Agency discriminated against Complainant based on his disability when it denied him reasonable accommodation, and ordered the Agency, among other things, to investigate Complainant’s claim for damages.  The Agency then awarded Complainant $10,000 in nonpecuniary damages, and the Commission increased the award on appeal.  The Agency did not dispute Complainant’s assertion that, just after he was subjected to discrimination, he was diagnosed with Major Depressive Disorder due to the denial of accommodation.  Complainant and his witnesses provided detailed statements explaining the extent of distress he experienced, including mental anguish, headaches, stomach aches, mood changes, crying, irritability, insomnia, depression, and anxiety.  Based on the totality of the evidence, the Commission concluded that Complainant was entitled to $85,000 in nonpecuniary damages, which was consistent with awards in similar cases.  Scott K. v. U.S. Postal Serv., EEOC Appeal No. 0120182127 (Feb. 20, 2020).

Nonpecuniary Compensatory Damages Award Increased to $75,000.  The Agency found that Complainant was subjected to sexual harassment on a daily basis for nearly 18 months, and awarded her $60,000 in nonpecuniary compensatory damages.  On appeal, the Commission raised the amount to $75,000.  Complainant stated the harassment made her feel “miserable” while at work.  The manager’s action caused her to experience stress and humiliation, and she feared she would be discharged if she spoke up.  The incidents left her “a nervous mess, sick to my stomach, and shaking.”  Complainant’s doctor stated there was no other identifiable cause or trigger for Complainant’s anxiety other than the harassment.  While Complainant had “rare migraines” before the harassment, she experienced daily headaches and weekly migraines during and after the harassment.  Although Complainant’s symptoms improved with treatment, her physician stated they had not completely resolved.  Based on the sum total of the evidence, the Commission concluded the higher amount of compensatory damages was justified.  Sonia B. v. Tenn. Valley Auth., EEOC Appeal No. 2019004252 (Aug. 10, 2020).

Commission Increased Award of Nonpecuniary Damages to $75,000.  The Commission previously found that the Agency denied Complainant a reasonable accommodation.  Subsequently, the Agency issued a final decision awarding Complainant $25,000 in nonpecuniary damages, and the Commission increased the award to $75,000 on appeal.  The Commission noted the serious nature and duration of Complainant’s suffering, and considered damages awards reached in comparable cases.  Complainant stated that working the self-checkout caused swelling and tremendous pain in her knee, such that she was unable to climb the stairs at her house, or engage in family activities.  Complainant submitted medical documentation, as well as statements from coworkers and family members in support of her claim.  These statements indicated that Complainant stopped going out with her coworkers, cancelled family plans, became depressed, feared going to work, and was in great pain.  The Commission found that the amount was not monstrously excessive and took into account the nature and the duration of the harm Complainant experienced.  Shawnta A. v. Dep’t of Def., EEOC Appeal No. 2019001394 (Apr. 24, 2020).

Commission Modified Award of Non-Pecuniary Damages to $75,000.  The Agency did not contest the AJ’s finding of retaliatory harassment and that substantial evidence supported an award of damages.  However, the Agency appealed the AJ’s award of $125,000.00 in non-pecuniary damages.  On appeal, the Commission modified the award, finding that $75,000 was a more appropriate remedy.  While Complainant experienced anxiety, exhaustion, fear, insomnia, post-traumatic stress disorder, depression, elevated blood pressure, marital stress, and humiliation, the evidence of record only supported the nature of his harm and did not address the severity or duration of the harm caused by the Agency’s discriminatory actions.  For example, Complainant’s statement that he had been dealing with stress for three years showed that part of his stated harm occurred prior to the discriminatory events.  The Commission determined that the modified award was more consistent with Commission precedent.  Hayden R. v. U.S. Postal Serv., EEOC Appeal No. 2019003428 (Dec. 10, 2019).

Commission Increased Award of Damages to $50,000.  The Agency found that Complainant was denied reasonable accommodation, and awarded him $2,000 in nonpecuniary compensatory damages.   The Commission increased the award to $50,000 on appeal.  The Commission found that Complainant’s pre-existing knee injury was aggravated when the Agency denied Complainant access to a closer parking lot and required that he walk up a steep hill to and from his building even though his work restrictions on file limited his walking and restricted him from climbing steep hills.  The Commission considered statements from Complainant’s wife and two coworkers, who indicated that Complainant’s behavior changed following the denial of accommodation.  These individuals noted Complainant was no longer a “happy-go-lucky guy,” had sleepless nights, became disengaged from his family, and was a “different person” after the discrimination.  The Commission concluded that the evidence was sufficient to support an award of $50,000, which was consistent with awards in similar cases.  The Commission affirmed the Agency’s denial of past pecuniary damages finding that Complainant had not provided any documentation to support his purported personal costs associated with the discrimination.  Lowell H. v. Dep’t of State, EEOC Appeal 2019003637 (June 16, 2020).

Commission Increased Award of Nonpecuniary Compensatory Damages to $40,000.  After finding that Complainant was discriminated against when she was denied reasonable accommodation and temporarily detailed to another position, the Agency awarded Complainant $9,000.00 in nonpecuniary damages.  The Agency acknowledged that the discriminatory actions resulted in the aggravation of Complainant’s condition.  The Agency, however, pointed out that Complainant’s physicians noted that Complainant’s depressed mood and stress were possibly attributable not only to job-stress, but also to her recent divorce and medication for her Multiple Sclerosis (MS).  On appeal, Complainant contended that the stress from work caused her “added anxiety and great shame.” She was often so fatigued when she returned home from work that she would go straight to sleep, and she had no energy to care for her children.  Letters from family members described episodes when Complainant was distraught, crying, and unable to function at home, and noted that Complainant experienced an increase in MS flare-ups.  The Commission noted that Complainant was entitled to recover damages only for injury or additional injury caused by the discrimination.    While Complainant asserted that there was no showing that her MS would have inevitably worsened absent the discrimination, the record contained limited medical documentation.  In October 2017, Complainant’s physician noted, without citing a cause, that Complainant experienced a “definite escalation” of symptoms that resulted in a five-day hospital stay.  He later stated, in December 2017, that Complainant reported stressors “including work-related stressors.”  While Complainant submitted more recent correspondence from her physician on appeal, the doctor simply described a need for Complainant to make a transition to more sedentary employment activity, because the physical demands of nursing precluded her from continuing in the job.  The Commission found that, while the statements from Complainant and her relatives indicated a nexus between the discrimination and Complainant’s emotional and physical harm, the medical documentation she submitted did not confirm that connection.  Therefore, on appeal, the Commission concluded that an increase in the Agency’s award was necessary, and that an award of $40,000 for nonpecuniary compensatory damages was appropriate considering the nature and severity of the harm.  The Commission affirmed the Agency’s award of $1,000 in pecuniary damages.  Refugia S. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019004769 (Aug. 10, 2020).

Commission Affirmed AJ’s Award of $30,000 in Nonpecuniary Damages.  Following a hearing, the AJ determined that Complainant was subjected to unlawful discrimination on the basis of reprisal for prior EEO activity when the Agency scrutinized Complainant’s attendance and performance and placed Complainant on a Performance Improvement Plan.  The Agency adopted the AJ’s award of $30,000 in nonpecuniary compensatory damages.  The Commission affirmed the AJ’s award, finding that it appropriately reflected the nature and severity of the harm and duration or expected duration of the harm.  Complainant and his wife stated that as a result of the Agency’s conduct, he suffered anxiety, became obsessed about workplace discrimination, became withdrawn, and lost friendships and time with his child.  However, Complainant noted that his mental state significantly improved after he stopped working with the Agency.  The Commission found that the AJ’s award of damages was not motivated by passion or prejudice, not “monstrously excessive” standing alone, and consistent with the awards in similar cases.  Additionally, the Commission noted that the AJ properly found the record did not support Complainant’s entitlement to back pay.  Tyree L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001222 (Apr. 29, 2020).

Commission Affirmed Agency’s Award of $25,000 in Nonpecuniary Damages.   The Commission previously found that the Agency failed to engage in good faith efforts to provide Complainant with reasonable accommodation.  The Agency then awarded Complainant $25,000 in nonpecuniary compensatory damages, and the Commission affirmed the award on appeal.  Complainant stated that, as a result of being denied accommodation for over five years, he experienced anxiety and feared he would lose his job.  His fears were bolstered by four years of Medical Reviews deeming him “not medically qualified for the essential functions of his position.”  This resulted in financial stress.  Complainant stated that he experienced significant physical pain as a result of his anxiety, causing him to grind his teeth and have Temporomandibular Joint Syndrome (TMJ) as affirmed by his dentist and oral surgeon.  The resulting oral surgery entailed a six-week recovery during which he was unable to eat solid food.  Complainant experienced chronic heartburn, sleep disturbance, and ongoing headaches.  Complainant’s wife confirmed that the pain and anxiety he experienced impacted his personal relationships.  The Commission concluded that the Agency’s award of $25,000 in nonpecuniary damages was appropriate, given the nature and duration of the harm, and consistent with awards in similar cases.  The Commission found that Complainant was entitled to $13,535 in pecuniary damages for dental expenses, and $59.19 for medical expenses.  James R. v. Envtl. Prot. Agency, EEOC Appeal No. 2019003256 (Sept. 17, 2020).

Commission Increased Award of Nonpecuniary Damages to $25,000.  The Commission previously found that the Agency discriminated against Complainant when it did not select him for a position, and ordered the Agency to conduct a supplemental investigation on the issue of  compensatory damages.  The Agency subsequently issued a final decision, finding Complainant was not entitled to any pecuniary damages but was entitled to nonpecuniary damages in the amount of $10,000.  On appeal, the Commission agreed with the Agency’s finding that Complainant was not entitled to pecuniary compensatory damages, because Complainant did not submit sufficient evidence to support his claim, such as documentation showing his actual out-of-pocket costs, and documentation for his counseling.  However, the Commission concluded that Complainant was entitled to an award of $25,000 in nonpecuniary damages.  As a result of the Agency’s discriminatory non-selection, Complainant experienced emotional harm and other problems including insomnia, exhaustion, stress, mental anguish, family problems, depression, and loss of self-confidence. The award of $25,000 was consistent with amounts awarded in similar cases.  The Commission ordered the Agency, among other things,  to pay applicable attorney’s fees.  Bryan T. v. U.S. Postal Serv., EEOC Decision 2019006011 (Aug. 20, 2020).

Commission Increased Agency’s Compensatory Damages Award to $25,000.  The Commission previously found that the Agency discriminated against Complainant when it denied her a  Quality Step Increase and a promotion.  The Agency subsequently awarded Complainant $8,500 in nonpecuniary damages, and the Commission increased the award to $25,000 on appeal.  Complainant’s primary care physician stated that Complainant received both primary and behavioral health care for reported stressors stemming from a toxic administrative work environment during the relevant period. Complainant was also seen by a therapist.  The physician recommended that Complainant have a change in work environment, and indicated that Complainant was nervous and anxious.  The physician subsequently stated that Complainant’s work-related stressors were corrected, and she did not require ongoing treatment or counseling.  Another medical provider attributed Complainant’s work stress to a new position description that was different than expected, and communication challenges that contributed to anxiety and frustration in the workplace.  The Commission determined that the evidence of record supported an award of $25,000, which was consistent with awards in similar cases.  Danielle H. v. Dep’t of Def., EEOC Appeal No. 2019003299 (Aug. 18, 2020).

Commission Increased Agency’s Award of Damages to $25,000.  The Agency found that Complainant’s supervisor subjected Complainant to racial harassment and violated the Rehabilitation Act when she disclosed to Complainant’s coworker that Complainant had a medical procedure related to her reproductive health.  The Agency awarded Complainant $10,000 in nonpecuniary compensatory damages, and the Commission increased the award to $25,000 on appeal.  Complainant indicated that the hostile work environment caused her stress, depression, anxiety, paranoia, sleepless nights, fear, and a weight gain of 30 pounds.  Complainant sought help from a counselor to deal with her distress.  Complainant’s coworker testified in support of her claim.  The Commission found that while some of the emotional harm Complainant experienced was related to a medical procedure, Complainant’s supervisor exacerbated Complainant’s emotional harm by reminding her of the experience and disclosing it to a coworker.  The Commission concluded that an award of $25,000 was more consistent with amounts awarded in similar cases.  The Commission also found that Complainant was entitled to an award of $7,259.81 in pecuniary damages for relocation costs.  The evidence of record showed that management failed to adequately address the supervisor’s discriminatory conduct, and Complainant moved to another area to “get away” from the supervisor.  Complainant provided adequate documentation for costs she incurred from breaking her apartment lease, hiring a moving company, and taking a loan for the move.  The Commission also ordered the Agency to reinstate the leave without pay Complainant used to relocate.  Sharolyn S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002895 (July 30, 2020).

Commission Increased Award of Non-Pecuniary Damages to $20,000.  The Agency found that Complainant was subjected to reprisal when supervisors filed complaints against him with the Agency’s Office of Inspector General (OIG), and the Agency awarded Complainant $2,000 in non-pecuniary damages.  The Agency considered that the OIG investigation against Complainant lasted approximately nine to ten months and Complainant experienced damage to his professional reputation.  The Agency noted, however, that aside from Complainant’s affidavit and his attorney’s statement that he experienced physical and emotional ailments, Complainant did not submit any supporting documentation addressing his claim for compensatory damages. The Agency observed that Complainant did not submit any statements from his family or friends, medical bills, or any other documentation showing that there was damage to his reputation.  On appeal, the Commission noted that Complainant stated he broke down several times emotionally as a result of being subjected to the investigation, became physically ill, and experienced sleeping issues, and family problems, among other things, due to the stress of being subjected to the investigation. In considering the harm Complainant suffered, the Commission found that his request for $20,000 in non-pecuniary compensatory damages was in line with Complainant's harm and the Commission's case law. The Commission also found that $20,000 was not “monstrously excessive” standing alone and was not the product of passion or prejudice.  The Commission denied Complainant’s request for pecuniary damages.  Orlando O. v. Envtl. Prot. Agency, EEOC Appeal No. 0120182452 (Dec. 10, 2019).

Agency Award of $15,000 in Nonpecuniary Compensatory Damages Affirmed.  The Commission previously issued a default judgment in favor of Complainant as a sanction for the Agency’s failure to submit the entire record on appeal, and ordered the Agency, among other things, to investigate Complainant’s claim for damages.  The Commission subsequently affirmed the Agency’s award of $15,000 in nonpecuniary damages.  While the discriminatory events occurred in 1998, Complainant made several references to an unrelated accident which happened in 1996.  In addition, most of the medical documentation in the record, which dated back to 2000, referenced distress Complainant experienced due to the 1996 accident.  Therefore, Complainant had not shown that all of her depression and anxiety were connected to her two non-selections. Consequently, the Commission found that the $15,000 awarded by the Agency was sufficient to compensate Complainant for the anxiety, sleep problems, and sadness she experienced related to the discrimination.  The Commission also affirmed the Agency’s back pay award of $25,308.08 plus any interest. Amina W. v. Dep’t of Energy, EEOC Appeal No. 0120181366 (Feb. 25, 2020).

Commission Increased Agency’s Award of Damages to $10,000.  The Commission previously found that the Agency failed to provide Complainant with reasonable accommodation, and ordered the Agency, among other things, to investigate Complainant’s claim for damages.  The Agency awarded Complainant $5,000 in nonpecuniary damages, noting that Complainant did not present any medical evidence of long-term physical or mental problems caused by the failure to accommodate.  The Agency also stated that the information Complainant provided, that is his own statement and a statement from his wife, was conclusory and not limited to the discrimination.  Complainant stated that he suffered from migraine headaches and experienced constant anxiety from thinking about whether he was going to be accommodated and whether he was going to be able to hold on to his job.  He maintained that he had to cope with job-related stress on a daily basis for over one month, and suffered from mental anguish, frustration, loss of enjoyment of life and mental fatigue.  Complainant’s wife stated that her husband experienced stress, anxiety, depression, and insomnia.  Complainant’s psychiatrist reported that Complainant experienced anxiety, ruminating thoughts, sleeplessness, and migraine headaches that were overwhelming at times.  Complainant was diagnosed with adjustment disorder with mixed emotions, and post-traumatic stress disorder.  The psychiatrist recommended psychotherapy, but neither the report nor the progress notes included any information about prognosis or duration of Complainant’s symptoms.  The psychiatrist attributed Complainant’s symptoms mainly to the stress associated with his job and the lack of accommodations for his injury, but noted prior conditions that may have been a factor.  Complainant acknowledged having several pre-existing conditions, and attributed his stress and anxiety, in part, to accusations of fraud.  The Commission concluded that the record supported an award of $10,000 in nonpecuniary damages.  The Commission found that the Agency properly determined that Complainant was not entitled to pecuniary compensation.  Cleo S. v. U.S. Postal Serv., EEOC Appeal No. 2019003273 (Aug. 18, 2020).

Commission Increased Nonpecuniary Compensatory Damages Award to $10,000.  The Commission previously found that the Agency discriminated against Complainant when it denied her request for a sign language interpreter.  The Agency then awarded Complainant $5,000 in nonpecuniary damages. The Commission found, however, that an award of $10,000 was more consistent with amounts awarded in similar cases.  Complainant explained that the Agency was aware that she required an American Sign Language interpreter, given her prior EEO complaints and settlements on this very matter.  Complainant stated that the Agency’s continued denial of her reasonable accommodation request caused her to feel overwhelmed, irritable, and angry.  Complainant further explained that she experienced anxiety, depression, problems sleeping, fatigue, difficulty concentrating, muscle tension, headaches, stomach problems, and social withdrawal.  Complainant’s husband and coworker testified in support of her claim.  While Complainant stated she had experienced emotional distress since 2015, the Commission concurred with the Agency that the award of damages should only encompass the harm Complainant sustained from the discriminatory acts at issue, that is, the denial of interpreter services on June 28, 2016.  Thus, the Commission only considered testimony that related to the specific discriminatory act at issue.  Coralee H. v. U.S. Postal Serv., EEOC Appeal No. 2019004219 (Aug. 6, 2020).

Commission Affirmed AJ’s Award of $6,000 in Compensatory Damages.  The AJ found that the Agency violated the Rehabilitation Act when it delayed implementing Complainant’s reasonable accommodation request of part-time telework for three weeks.  During that delay, Complainant suffered an injury in the office.  The AJ found that Complainant failed to establish a causal connection between the exacerbation of her medical condition caused by the injury and the delay in implementing her accommodation.  The AJ determined that the record failed to establish that the three-week delay in the accommodation was the proximate cause of the gradual degenerative changes that Complainant’s physician found to be the cause of her post-event pain and medical problems.  Complainant did present evidence that she endured some degree of additional pain and discomfort from having to work in the office full-time, but the record was devoid of evidence establishing the extent Complainant’s specific symptoms and side effects were caused or otherwise exacerbated by the Agency’s delay.  The Commission found that while the evidence showed that Complainant’s injury was likely due to cervical degenerative changes, substantial record evidence supported the AJ’s finding that Complainant failed to establish that the three-week delay in granting part-time telework was the proximate cause of the degenerative changes or that such injury would not have occurred had the Agency granted the accommodation request three weeks earlier.  Further, while the record was clear that Complainant experienced severe emotional distress, anxiety, and panic attacks, her doctors attributed those conditions to either pre-existing conditions or other factors not related to discrimination such as divorce and family issues.  Therefore, the Commission affirmed the AJ’s award of $6,000 in nonpecuniary damages.  Chara S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001100 (July 16, 2020).

Agency’s Award of $5,000 in Damages Affirmed.  The Agency found that Complainant was subjected to retaliation, and provided Complainant an opportunity to submit documentation in support of her request for compensatory damages.  The Agency subsequently issued a final decision, awarding Complainant $5,000 in nonpecuniary, compensatory damages, and the Commission affirmed the award on appeal.  The Commission noted that although Complainant stated she had to seek treatment for depression, Complainant did not provide any type of documentation in support of that assertion, nor did she describe the nature of her depression or any details of her treatment, such as the number of visits, type of treatment, or diagnosis.  As such, the Commission found that the Agency’s award of $5,000 in nonpecuniary compensatory damages adequately compensated Complainant, and the award was consistent with precedent.  Gaye A. v. Dep’t of Def., EEOC Decision No. 2019005924 (May 21, 2020).

Commission Increased Award of Nonpecuniary Damages to $5,000.  The Commission previously found that Complainant was retaliated against when an Agency Director disclosed Complainant’s prior EEO activity to another employee.  Following a supplemental investigation, the Agency awarded Complainant $3,000 in nonpecuniary damages.  The Commission increased the award on appeal.  While the Commission acknowledged that Complainant presented minimal evidence of emotional distress caused by the discrimination, the Commission found that an award of $5,000 was more appropriate given that Complainant presented evidence that at least some of her emotional distress was caused by the retaliation.  The Commission found no reason to disturb the Agency’s denial of past pecuniary damages, and noted that Complainant was not entitled to an award of future pecuniary damages because there was no finding that she had been constructively discharged.  Karin C. v. Dep’t of Agric., EEOC Appeal No. 2019000821 (Feb. 21, 2020).

Commission Affirmed Agency’s Award of $2,000 in Compensatory Damages.   The Commission previously ordered the Agency to investigate Complainant’s claim for damages after finding it retaliated against Complainant by reducing her work hours and forcing her to relinquish her route.  Complainant offered little more than a general statement that she suffered emotional distress as a result of the discrimination.  Complainant conceded she did not have medical documentation to support her claim for damages, and she did not provide any statements from friends or family to support her claim. Therefore, the Commission affirmed the Agency’s award of $2,000 in nonpecuniary damages.  The Commission also affirmed the Agency’s denial of Complainant’s claim for pecuniary damages, because Complainant failed to establish that she suffered any pecuniary  loss related to the discrimination.  Charlotte H. v. U.S. Postal Serv., EEOC Appeal No. 2019003018 (Aug. 18, 2020).

Commission Awarded $2,000 in Non-Pecuniary Damages.  The Commission previously determined that the Agency violated the Rehabilitation Act when it failed to safeguard Complainant’s medical records, and instructed the Agency to investigate Complainant’s claim for damages.  The Agency subsequently issued a decision, finding that Complainant was not entitled to damages, because he did not establish a nexus between the harm he suffered and the Agency’s action.  On appeal, the Commission awarded Complainant $2,000 in non-pecuniary damages due to the worsening of his preexisting condition.  Specifically, while Complainant’s sleep apnea was a preexisting condition and there was more than one cause for Complainant’s other conditions, Complainant’s statement and medical records showed that the Agency’s violation of the Rehabilitation Act caused a worsening of Complainant’s sleep apnea and the onset of his anxiety, adjustment order, loss of professional reputation and interpersonal issues.  The Commission stated that an award of $2,000 was not “monstrously excessive,” and was consistent with awards in similar cases.  The Commission affirmed the Agency’s denial of pecuniary damages.  Foster M. v. Dep’t of Energy, EEOC Appeal No. 0120182008 (Dec. 13, 2019).

Complaint Processing

Agency Failed to Conduct Adequate Investigation.  Complainant alleged that the Agency discriminated against her on the bases of race, national origin, sex, and reprisal for prior protected EEO activity as evidenced by ten identifiable and separate incidents.  The Commission noted that Complainant raised very serious allegations indicating that she was subjected to severe and pervasive verbal conduct.  The Commission found, however, that the record had not been adequately developed because none of Complainant’s coworkers provided testimonies.  In fact, the record was devoid of any evidence that the coworkers were interviewed during the investigation, including the alleged harasser, who should have provided testimony under oath.  Therefore, the Commission remanded the complaint for further investigation.  Given the necessity of remanding Complainant’s claims of harassment for further investigation, the Commission posited that it would be premature to make a determination on Complainant’s reassignment and constructive discharge allegations.  Specifically, the examination of Complainant’s harassment claim would show whether Complainant felt forced to seek reassignment, and to subsequently resign, rather than continue working in an alleged discriminatory environment.  Cristen T. v. U.S. Postal Serv., EEOC Appeal No. 2019002523 (July 7, 2020).

Agency Failed to Properly Process Informal EEO Complaint After MSPB Dismissed Appeal. Complainant sought EEO counseling regarding the Agency’s denial of a job offer, but elected to file a mixed case appeal with the Merit Systems Protection Board (MSPB).  Thereafter, the Agency issued Complainant a notice of his right to file an EEO complaint (Notice).  When the MSPB dismissed Complainant’s appeal for lack of jurisdiction, Complainant filed his formal EEO complaint.  Complainant acknowledged that his formal complaint was filed more than 15 days after he received the Notice.  The Agency dismissed the Complaint as untimely, and the Commission reversed the decision on appeal.  It was clear that Complainant made a valid election to proceed before the MSPB prior to the issuance of the Notice, and the Commission stated that  engaging in EEO counseling did not constitute an election to proceed in the EEO complaint process.  The Commission determined that, once the MSPB determined it did not have jurisdiction over the matter, the Agency should have contacted Complainant and recommenced EEO counseling at a point prior to the issuance of the Notice.  Horace H. v. Dep’t of Army, EEOC Appeal No. 2020000050 (Dec. 10, 2019).

Dismissals

(See also by category, this issue.)

Complaint Improperly Dismissed for Filing Prior MSPB Appeal.  Complainant filed an appeal with the Merit Systems Protection Board (MSPB) alleging discrimination when he was denied step increases in three separate years.  The MSPB dismissed the appeal for lack of jurisdiction, because the Agency had not issued a reconsideration decision on the matters.  Meanwhile, Complainant filed a formal EEO complaint which the Agency dismissed because of the prior MSPB appeal.  On appeal, the Commission held that where the Agency or the MSPB questions the MSPB's jurisdiction over an appeal on the same matter as an EEO complaint, the Agency shall hold the mixed case complaint in abeyance until the MSPB rules on the jurisdictional issue.  During this time, all time limitations for processing or filing an EEO complaint are tolled. If the MSPB finds that it does not have jurisdiction over the matter, the Agency shall recommence processing of the mixed case complaint as a non-mixed case EEO complaint.  Therefore, the Commission ordered the Agency to recommence processing Complainant’s EEO complaint as a non-mixed complaint from the point processing ceased.  Garret W. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019004937 (Sept. 17, 2020).

Complaints Properly Dismissed for Abuse of Process.  The Commission affirmed the AJ’s dismissal of 35 claims of non-selection in 10 consolidated complaints for abuse of process.  The AJ determined that Complainant was attempting to relitigate four non-selections that he had previously settled.  The AJ also found Complainant’s claim of systemic discrimination on a variety of protected bases was “widely speculative.”  The AJ noted that Complainant did not provide any evidence to support his claims, and filed claims regarding non-selections for which he was not qualified.  Complainant’s claims lacked specificity, as Complainant did not know the identity of the selecting officials or the selectees.  The AJ found that after Complainant lost his security clearance the pace of his EEO complaints increased considerably, suggesting that he had “weaponized the EEO process” as a means of retaliating against the Agency and with the hope of overburdening its EEO office to achieve a default judgment sanction.  The Commission determined that the AJ properly dismissed Complainant’s ten consolidated complaints before him for abuse of process.  Specifically, Complainant attempted to deliberately relitigate claims already litigated, and overwhelm the Agency’s EEO office.  The Commission found, however, that the AJ’s dismissal of all of Complainant’s EEO “claims” pending with the Agency not before the AJ, and enjoining Complainant from filing future EEO complaints with any federal agency went beyond the AJ’s authority under the Commission’s regulations.  The Commission noted that the Agency could procedurally dismiss pending cases for any of the reasons specified in the Commission’s regulations.  Lyle P v. Dep’t of Homeland Sec., EEOC Appeal No. 2019005269 (Sept. 11, 2020).

Complaint Improperly Dismissed for Untimely EEO Contact & Failure to State a Claim.  The Commission reversed the Agency’s dismissal of Complainant’s EEO complaint for untimely EEO contact and failure to state a claim.  Complainant alleged the Agency discriminated against her on the basis of sex when, on April 30, 2019, a coworker blocked her from exiting a room and made lascivious remarks about her breasts, and later stared at her for an extended period on numerous occasions.  Complainant’s manager confronted the coworker and he resigned on May 1, 2019.  Complainant alleged, however, that the coworker remained present at the office as late as May 25, 2019, and continued to stare at her for extended periods.  Complainant contacted an EEO Counselor on June 21, 2019.  The Commission concluded the last incident occurred on May 25, not April 30, and therefore Complainant’s June 21 contact with the EEO Counselor was within the 45-day time limit.  The Commission also found Complainant alleged an injury or harm to a term, condition, or privilege of employment.  Zoila P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020000395 (Aug. 31, 2020).

Agency Improperly Dismissed Complaint as Moot.  Complainant filed a complaint, alleging that the Agency discriminated against her on the basis of color (light skin) when management classified her transfer request as a resignation. Complainant stated that the Postmaster would not accept her written transfer request, and instead,  provided her with a resignation form, which she did not complete.  Complainant then presumed her transfer request had been granted, and relocated.  When Complainant realized that her transfer request had not been processed, she filed a union grievance on the advice of the union representative. The parties settled the grievance, with management agreeing to immediately process Complainant’s transfer request. In addition to filing the grievance, Complainant also filed an EEO complaint.  On appeal, the Commission found that Complainant’s complaint was not moot.  While there was no expectation that the alleged discrimination would reoccur, the Agency had not shown that the interim relief completely and irrevocably eradicated the effects of the alleged discrimination. The Commission emphasized that the collective bargaining agreement between the parties did not preclude Complainant’s right to pursue relief through the EEO complaint process, and Complainant sought damages to recover medical expenses and to compensate for emotional pain and suffering. The Commission reversed the Agency’s dismissal as there was no resolution of the claim for compensatory damages.  Nida R. v. U.S. Postal Serv., EEOC Appeal No. 2020000864 (Aug. 27, 2020).

Complaint Properly Dismissed for Raising Same Claim as in Prior Grievance Procedure.  The Commission affirmed the AJ’s dismissal of Complainant’s EEO complaint because Complainant previously filed a grievance under the collective bargaining agreement on the same matter.  Complainant alleged the Agency discriminated against him when it reassigned him to another division and subsequently suspended his security access.  Employees of an agency whose collective bargaining agreement permits claims of discrimination to be raised in a negotiated grievance may not file a grievance and thereafter file an EEO complaint on the same matter even if the grievance fails to raise discrimination claims.  Complainant filed a formal grievance in August 2017, and then filed an EEO complaint on the same matter in November 2019.  Therefore, Complainant was not entitled to pursue his reassignment and suspension through the EEO process.  The Commission noted that the record contained evidence showing that claims of discrimination could be raised in the grievance process.  Brian M. v. Dep’t of the Army, EEOC Appeal No. 2019005321 (Mar. 13, 2020).

Harassment Complaint Improperly Dismissed for Failure to Timely Initiate EEO Contact & Failure to State a Claim.  Complainant filed a formal complaint alleging that the Agency discriminated against her when it involuntarily reassigned her, and subjected her to ongoing harassment, including threatening her with discipline and telling her she should retire.  The Commission concluded that based on a review of the complaint and related EEO counseling report, Complainant  alleged that her reassignment to a less desirable job assignment was done in order to push her into retirement and make room for the placement of a younger white male in her position.  The Commission found that the Agency’s focus in supporting its dismissal decision on management’s reasons for the disputed action improperly addressed the merits of Complainant’s claim without a proper investigation as required by the Commission’s regulations and was irrelevant to the procedural issue of whether Complainant stated a justiciable claim.  With regard to Complainant’s harassment claim, the Commission has long recognized that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period.  The Commission stated that all the allegations provided by Complainant were part of the same claim, and at least one of the allegations occurred the day before she first sought EEO counseling.  The Commission concluded that Complainant’s claim of ongoing discriminatory harassment was timely raised and should not have been dismissed.  Kasi J. v. Dep’t of the Army, EEOC Appeal No. 2020000915 (Mar. 12, 2020).  Additional Decisions Addressing the Improper Fragmentation and Dismissal of Harassment Claims Include:  Annalee D. v. U.S. Postal Serv., EEOC Appeal No. 2020001076 (Jan. 29, 2020) (the Agency improperly fragmented Complainant’s hostile work environment claim and dismissed some incidents for failure to timely contact an EEO Counselor and some incidents for failure to state a claim.  Complainant claimed that she was retained in leave-without-pay status up to the time she sought EEO counseling.  Further, contrary to the Agency’s assertion, Complainant was not challenging a determination by the Occupational Safety and Health Administration, but was alleging that Agency management failed to respond to her reports that she was working in an unsafe environment); Willie P. v. Dep’t of the Navy, EEOC Appeal No. 2020000309 (Dec. 17, 2019); (Complainant raised a number of incidents that occurred between February 2018 and March 2019, and the Commission found the Agency erred in narrowing the definition of Complainant’s claims.  A more accurate definition of the claim was one of an ongoing pattern of harassment of which the seven incidents addressed in the Agency’s dismissal were examples.  Further, the various incidents comprising Complainant’s hostile work environment claim occurred within the 45-day period preceding Complainant’s EEO Counselor contact.  Therefore, Complainant’s claim of harassment was timely).

Complaint Improperly Dismissed for Raising Matter Not Brought to Attention of EEO Counselor.  The Commission reversed the Agency’s dismissal of Complainant’s complaint on grounds that it raised a matter that was not brought to the attention of an EEO Counselor.  In dismissing the complaint, the Agency relied on Complainant’s failure to participate in the EEO counseling process, stating that the assigned Counselor attempted to engage Complainant multiple times by email and telephone, but was unable to do so.  Complainant stated, however, that he did not receive an initial or final interview or counseling to attempt to informally resolve the matter.  The assigned Counselor stated that she could not engage Complainant to conduct counseling, so she issued Complainant a notice of right to file a formal complaint, which he timely did.  The Commission found that, contrary to the Agency’s assertions, Complainant raised the instant issues with an EEO Counselor even though no actual counseling sessions occurred, and timely filed a formal complaint when given the opportunity to do so.  The Commission noted that it is the Agency’s burden to provide evidence to support its final decisions.  Ian G. v. Dep’t of State, EEOC Appeal No. 2019005132 (Jan. 8, 2020).

Complaint Improperly Dismissed for Abuse of Process.  Complainant filed two formal EEO complaints raising issues of discrimination and hostile work environment, specifically ongoing harassment, a non-selection and performance appraisal, and the denial of awards and a transfer.  The complaints were ultimately consolidated at the hearing stage, and the AJ granted the Agency’s motion to dismiss the matters for abuse of process.  On appeal, the Commission found that the dismissal was improper.  While the record showed that Complainant filed 20 complaints over 14 years, the Commission has stated that filing numerous complaints alone is not a sufficient basis for finding abuse of process, and the number of complaints filed by Complainant was not extraordinary.  Further, the Commission found that the AJ’s analysis regarding the quality of the evidence provided by Complainant, who was not represented by an attorney, was relevant only to the determination of whether Complainant had proven her allegations of discrimination, and did not address whether the filing of the complaints amounted to an abuse of process.  Further, Complainant’s claim that she was denied official time was not sufficient to be considered an abuse of process.  Finally, while the Commission stated that Complainant’s comment expressing desire to “ruin” the careers of management officials was intemperate, it was insufficient to overcome the Commission’s strong policy of preserving a complainant’s EEO rights.  A fair reading of the record showed that Complainant genuinely believed she was a victim of discrimination and could remedy her situation through the EEO process.  Kenyatta S. v. Envtl. Prot. Agency, EEOC Appeal No. 2019003653 (Nov. 8, 2019).

Complaint Alleging Compensation Discrimination Improperly Dismissed for Untimely EEO Contact & Failure to State a Claim.Complainant filed a formal EEO complaint alleging that he was discriminatorily denied overtime pay on days he worked more than eight hours, and incorrectly paid on holidays.  The Commission found that the Agency improperly dismissed Complainant’s claim for untimely EEO contact and failure to state a claim.  The Commission found that Complainant was essentially raising a discriminatory compensation claim pertaining to overtime and holiday pay, which set forth an actionable claim.  The Agency’s assertions that Complainant was paid in accordance with union agreements and the Fair Labor Standards Act addressed the merits of the complaint and were irrelevant to the procedural issue of whether Complainant stated such a claim.  Further, the Lilly Ledbetter Fair Pay Act provides that, with respect to discrimination in compensation, an unlawful employment practice occurs each time wages, benefits, or other compensation is paid.  Therefore, Complainant timely initiated EEO contact within 45 days of his discriminatory pay claim. Winford M. v. U.S. Postal Serv., EEOC Appeal No. 2019005757 (Nov. 5, 2019).

Complaint Improperly Dismissed for Raising Matters Previously Addressed in the Grievance Process. The Commission found that the Agency improperly dismissed Complainant's discrimination claims when it determined that Complainant had previously raised the claims in a negotiated grievance procedure.  Although the Commission’s regulations allow agencies to dismiss complaints where a complainant has first elected to pursue the allegations under a negotiated grievance procedure, there was no evidence in this case that Complainant’s claim was covered by a collective bargaining agreement that permitted the adjudication of allegations of discrimination.  Therefore, the Commission found that the Agency failed to support its dismissal decision and that Complainant’s initial pursuit of the administrative grievance process concerning his performance appraisal was not a bar to his EEO complaint.  Alfredo S. v. Dep’t of the Army, EEOC Appeal No. 2019000418 (Oct. 8, 2019);  Additional Decisions Addressing Dismissals for Raising Matters Addressed in the Grievance Process Include:  Bret E. v. Dep’t of Transp., EEOC Appeal No. 2019004190 (Oct. 25, 2019) (while the Agency provided a copy of the collective bargaining agreement showing that allegations of discrimination may be raised in the grievance process, the record did not contain a copy of the grievance, a decision on the grievance, or any other information regarding the grievance, and, as such, the Agency failed to support its assertion that Complainant raised the same claim in his EEO complaint as that raised in the grievance).

Complaint of Ongoing Harassment Improperly Dismissed for Failure to State a Claim and Untimely EEO Contact.  The Commission found that the Agency improperly dismissed Complainant’s complaint.  In addition to the 12 incidents identified by the Agency, the formal complaint and EEO Counselor’s report reflected a more detailed series of alleged incidents that comprised a claim of ongoing harassment.  Further, Complainant asserted that she was forced to retire due to the harassment.  Therefore, Complainant stated a viable claim.  Given that many of the alleged incidents occurred within the 45-day period preceding Complainant’s EEO Counselor contact, the Commission also found that Complainant’s entire harassment claim was timely.  Glenna O. v. Dep’t of the Army, EEOC Appeal No. 2019005222 (Oct. 25, 2019).

Findings on the Merits and Related Decisions

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

Under the ADEA

Age Discrimination Found in Non-selection.  The Commission reversed the Agency’s finding that it did not discriminate against Complainant on the basis of age when it selected another candidate for a position who was twenty years younger.  The selection panelists and selecting official explained that Complainant was not selected because the Selectee and one other applicant received higher interview scores.  The Agency relied upon a copy of Complainant's application, the interview scores (but not the notes) from Complainant's interview, and the list of other candidates with their scores to support Complainant's non-selection.  The Commission found that the evidence was not sufficient to provide a specific, clear, and individualized explanation as to why Complainant was not selected for the position for which he was deemed qualified.  While the Agency explained the general mechanics of the selection process, it failed to provide an individualized explanation for Complainant's specific situation.  The record simply did not indicate how the Agency determined which candidate was selected.  Therefore, the Commission found that the Agency failed to overcome Complainant's prima facie case of age discrimination.  The Agency was ordered, among other things, to  offer Complainant a retroactive promotion to the position in question within his geographical area, pay Complainant applicable back pay and benefits, and compensate Complainant for any adverse tax consequences.  Lenard H. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001566 (May 12, 2020).

Agency Failed to Rebut Prima Facie Case of Age Discrimination.  The Commission found that the Agency failed to meet its burden of production to rebut Complainant’s prima facie case of age discrimination in regard to Complainant’s nonselection for the position of Budget Analyst, GS- 12/13.  Specifically, the record did not support the Agency’s proffered reason for not selecting Complainant for the position, that is, because the Selectee (age 29 and 20 years younger than Complainant) was more qualified for the position.  While the selecting official testified that she based her decision on the candidates’ resumes, interview responses, and relevant experience, the selecting official also said she relied on her impressions of both Complainant’s and the Selectee’s “personal attributes” based on her experience as their supervisor.  However, the selecting official did not explain how the interview helped her conclude that the selectee was more qualified for the position.  The interviewers’ notes showed that although Complainant and the Selectee both conveyed enthusiasm for the opportunities the position provided, Complainant’s responses to each question were far more detailed than the Selectee’s, and appeared to demonstrate a depth of familiarity with the Budget Division’s role within the Agency, its processes, and the nature of the position, that was not evident in the Selectee’s responses.  The Commission also found the selecting official did not identify how the Selectee’s resume helped her conclude that the Selectee was more qualified for the position than Complainant, who had worked as a GS-12 Budget Analyst in the current office for 16 years, and had earned an accounting certification six years prior.  The selecting official acknowledged that Complainant was, as a GS-12 Budget Analyst, already performing the duties described in the vacancy announcement for the position.  The Commission found the selecting official’s statement that Complainant’s work product was “not as reliable, and her communication skills were not as developed for her grade” contradicted the selecting official’s own statements on Complainant’s most recent performance evaluation where Complainant received the highest ratings on the three elements reflecting reliability and communication skills.  Therefore, the Commission concluded that Complainant showed that her qualifications were demonstrably superior to those of the Selectee, and successfully established that the Agency’s articulated reasons for her non-selection were pretext for discrimination based on age.  Joannie V. v. Dep’t of Labor, EEOC Appeal No. 2019004947 (Feb. 19, 2020).

Under the Equal Pay Act

Complainant Failed to Establish Equal Pay Act Violation.  Complainant filed a formal complaint alleging, among other things, that she was discriminated against under the Equal Pay Act (EPA) when she was paid less than two male employees for performing the same work.  On appeal, the Commission affirmed the Agency’s finding that Complainant failed to prove her EPA claim.  Complainant, who was employed as a GS-11 Project Management Specialist, claimed she was performing work involving similar skill sets and job responsibilities as two male employee outside of her organization.  Specifically, Complainant focused on the fact that all three employees completed award Compact Discs (CDs).  The record showed, however, that while Complainant’s primary duty was to complete the CDs, the other two employees had other primary job functions.  In addition, the positions held by the other two employees required specialized degrees.  Therefore, while Complainant showed that she was paid less than the other two employees, she did not establish that she was being paid less for equal work, requiring equal skill, effort, and responsibility.  Complainant acknowledged as much in her affidavit, stating that her job was “totally different” than any other job in her organization.  The Commission also affirmed the Agency’s finding that Complainant failed to prove that she was subjected to disparate treatment discrimination.  Lidia B. v. Dep’t of the Army, EEOC Appeal No. 0120182047 (Jan. 28,  2020).

Under the Rehabilitation Act

Denial of Reasonable Accommodation Found.  Complainant worked as a Park Ranger providing interpretative programming for, and assisting visitors at, various visitor centers. Following her diagnosis of Sjogren’s Syndrome (an autoimmune disorder), the Agency provided Complainant with various requested accommodations.  However, the Agency denied Complainant’s request for situational telework.  On appeal, the Commission concurred with the Agency’s finding that Complainant was a qualified individual with a disability, as Complainant’s supervisors stated that she was able to perform the essential functions of her position.  Further, Complainant indicated that she performed only one and one-half to five hours of “front line face-to-face visitor interactions” per week, and, as such, the Agency found that public contact was not an essential function of Complainant’s position.  The Commission concluded that the Agency failed to reasonably accommodate Complainant when it denied her request for telework.  No Agency official disputed Complainant’s contention that she performed the bulk of her duties in an office setting.  The Commission found that Complainant’s request for six to eight hours of situational telework was minimal and well within the number of hours of her non-public work.  The Agency failed to demonstrate that granting Complainant’s request would have been an undue hardship.  The Commission was unpersuaded that Complainant’s need for six to eight hours of situational telework per month would regularly fall on days when she would be scheduled to work at the visitor centers or engaged in other interpretative programs.  Though the Commission found that the Agency had subjected Complainant to discrimination, the Commission concluded that the Agency did not fail to act in good faith, as the record clearly showed that management granted all of Complainant’s other requests.  The Agency was ordered, among other things, to immediately provide Complainant with reasonable accommodation, including situational telework, and train the managers involved on their obligations under the Rehabilitation Act.  Hae T. v. Dep’t of the Interior, EEOC Appeal No. 2019003385 (Sept. 23, 2020).

Agency Violated Rehabilitation Act by Mishandling Complainant’s Medical Information.  The Agency, by its own admission, kept at least one doctor’s note containing Complainant’s medical information in a non-medical work file.  The Commission considers documentation of an individual’s diagnosis or symptoms to be confidential medical information.  Thus, the Agency’s failure to maintain Complainant’s medical information in separate medical files constituted a violation of the Rehabilitation Act even in the absence of an unauthorized disclosure, and  Complainant was entitled to relief.  The Agency was ordered, among other things, to expunge all medical information concerning Complainant from its non-medical files, including personnel files, and ensure that Complainant’s medical information is maintained in a separate and appropriate medical file.  The Commission cautioned the Agency that, to the extent that it is the Agency’s practice to place doctor’s notes in non-medical files to document absences, the Agency should revise its practices to ensure compliance with the Rehabilitation Act.  The Commission affirmed the Agency’s finding that Complainant failed to prove additional allegations of disparate treatment discrimination and hostile work environment.  Lacy R. v. Dep’t of the Air Force, EEOC Appeal No. 2019004084 (Sept. 15, 2020).

Denial of Reasonable Accommodation Found.  The Commission found that the Agency discriminated against Complainant when it withdrew her previously provided reasonable accommodation of a reserved handicap parking space and directed her to park in one of four unreserved handicap parking spaces at a parking lot much further away.  The Agency did not dispute that Complainant was a qualified individual with a disability.  Further, the record revealed that the Agency had provided Complainant with a designated parking space close to her building for nearly four years.  After the Agency removed Complainant’s designated space, Complainant was required, on multiple occasions, to wait for someone to attend the front door, walk a long distance to the other entrance, or attempt to find a parking space in another undesignated handicap space.  The Commission rejected the Agency’s assertion that Complainant failed to engage in the interactive process, and found that the Agency violated the Rehabilitation Act by failing to accommodate Complainant’s disability or prove that doing so would cause an undue hardship.  The Agency was ordered, among other things, to provide Complainant with a reasonable accommodation, and investigate her claim for damages.  Malorie D. v. Dep’t of Justice, EEOC Appeal No. 2019003000 (Sep. 15, 2020).

Improper Medical Disclosure Found.  Complainant alleged, among other things, that her Supervisor disclosed Complainant’s disability to Complainant’s colleagues without her consent, and referred to Complainant as “functional.”  The Commission noted that while Complainant raised the Supervisor’s medical disclosure as a form of harassment, the disclosure itself constituted a violation of the Rehabilitation Act.  The Supervisor asserted that the disclosure was made with positive intentions, and that she only wanted the staff to know that Complainant was no different despite her disability.  The Commission determined that regardless of the Supervisor’s purported positive intentions, she nonetheless released confidential medical information.  Additionally, there was no indication that the release of Complainant’s medical condition fell under the limited exceptions to the confidentiality requirement.  The Commission affirmed the Agency’s finding that Complainant was not subjected to disparate treatment discrimination or discriminatory harassment.  The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide appropriate training to the supervisor.  Bertram K. v. Dep’t of Agric., EEOC Appeal No. 2019001793 (Aug. 19, 2020).

Commission Affirmed AJ’s Finding of Denial of Reasonable Accommodation.  The Commission affirmed the AJ’s finding of disability discrimination for failure to reasonably accommodate Complainant’s vision impairment.  The Agency did not challenge the AJ’s finding that Complainant was a qualified individual with a disability.  While the Agency asserted that Complainant did not engage in the interactive process, the record did not show that Complainant’s actions were responsible for the Agency’s failure to accommodate him.  The Agency was aware of Complainant’s limitations and need for an accommodation.  Complainant submitted medical documentation from his doctor detailing his vision impairment, and he previously asked for a larger computer monitor as an accommodation.  Management required Complainant to undergo a fitness-for-duty examination, after which, instead of assessing what reasonable accommodation was necessary or engaging in the interactive process, the Agency issued Complainant a proposed notice of removal.  Therefore, substantial evidence supported the AJ’s finding of discrimination.  The Commission also affirmed AJ’s finding that Complainant suffered mental anguish, loss of enjoyment of life, and a negative impact on his career as a result of the Agency’s discrimination, thereby entitling him to an award of $5,000 in compensatory damages.  Frederick A, v. Dep’t of Def., EEOC Appeal No. 2019002604 (Aug. 18, 2020).

Denial of Reasonable Accommodation Found.  Complainant filed an EEO complaint alleging that the Agency discriminated against her when it denied her request for reasonable accommodation beginning in July 2015.  Complainant had medical restrictions beginning in 2001 that included lifting more than 20 pounds, bending, twisting, and reaching above the shoulder.  Complainant stated that, despite her restrictions, she was able to successfully perform her job.   Complainant alleged that a new Postmaster informed her in 2011 that she needed to be able to run her entire route without the assistance that she had previously had for years.  Further, when Complainant returned to work after surgery in July 2015, she was told she could not resume her limited duty assignment because her worker’s compensation had terminated.  The Agency determined that Complainant was not qualified because she could not perform the essential functions of her job, and there were no vacant funded positions to which she could be reassigned.

On appeal, the Commission found that Complainant was an individual with a disability due to her limitations in lifting and reaching.  The Commission further stated that Complainant’s demonstrated performance from 2001 to 2010  clearly showed that she was capable of performing the essential functions of the Rural Carrier position with reasonable accommodation.  Therefore, Complainant was a qualified individual with a disability.  The Commission found that the Agency failed to demonstrate undue hardship with regard to Complainant’s requested accommodation of light duty.  The Agency’s assertion that providing Complainant with significant assistance would impact its production standards was speculative and inconsistent with the record given that Complainant was able to successfully perform her duties for nine years despite her medical restrictions.  The Commission found no evidence to support the Agency’s contention that Complainant would require assistance in the field, or that accommodating Complainant would have resulted in delayed mail or significant costs.  Therefore, the  Commission concluded that the Agency violated the Rehabilitation Act by failing to reasonably accommodate Complainant’s disabilities.  Furthermore, the Commission found that the Agency did not act in good faith, and, therefore, Complainant was entitled to compensatory damages.  Cecille W. v. U.S. Postal Serv., EEOC Appeal No. 0120181915 (Aug. 6, 2020).

Disability Discrimination Found Regarding Leave.  Complainant, a City Carrier, filed an EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of disability when her leave requests were changed to leave-without-pay (LWOP) on two occasions.    The Commission determined that Complainant was an individual with a disability, and that Complainant established a prima facie case of disability discrimination.  While Complainant’s supervisors asserted that the Postmaster changed Complainant’s leave requests, the Agency made no effort to obtain a statement from the Postmaster or explain its absence in the record.  The Commission  found that the Agency’s explanations were vague, and not accompanied by supporting documentation, and, therefore, the Agency failed to meet its burden of articulating legitimate, nondiscriminatory reasons for its actions.  The Commission concluded that Complainant met her burden of proving unlawful discrimination with regard to the LWOP charges.  The Agency was ordered, among other things, to retroactively provide Complainant with lost leave or pay and investigate Complainant’s claim for compensatory damages.  The Commission affirmed the Agency’s findings of no discrimination or harassment with regard to Complainant’s additional claims.  Sherrie M. v. U.S. Postal Serv., EEOC Appeal No. 0120182523 (July 7, 2020).

Agency Improperly Disclosed Complainant’s Medical Information.  Complainant alleged, among other things, that Agency managers disclosed her medical information to her coworkers in violation of the Rehabilitation Act.  The record contained a signed statement from Complainant’s coworker stating she overheard the supervisor say, “If I knew [Complainant] was in physical therapy for her foot I wouldn’t have hired her.”  The coworker further stated that the supervisor uttered this statement multiple times on the workroom floor when Complainant first started working at the facility.  Another coworker noted, in an unsigned statement, that he witnessed the supervisor mention Complainant’s foot injury on the workroom floor.  The supervisor averred that Complainant revealed information about her ankle to coworkers.  The supervisor denied making the statement referenced in the coworker’s signed statement but acknowledged that she responded when asked about Complainant’s ankle.  The Commission found sufficient evidence that the supervisor impermissibly disclosed information about Complainant’s medical condition to unauthorized persons, and, therefore, the Agency violated the Rehabilitation Act.  The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages.  The Commission found, as to all of the remaining allegations, that Complainant failed to establish her claim of harassment because the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment, but rather were more likely the result of routine supervision, personality conflicts, and general workplace disputes.  Ebony M. v. U.S. Postal Serv., EEOC Appeal No. 2019001771 ( Mar. 12, 2020).

Improper Medical Inquiry.  In support of her claim that she was subjected to unlawful harassment, Complainant provided credible evidence that her Postmaster asked if she was dyslexic in front of a customer.  While Complainant failed to show that she was discriminatorily harassed, the Commission concluded that the Postmaster’s statement constituted an improper medical inquiry in violation of the Rehabilitation Act.  An employer may only pose a disability-related inquiry or require a medical examination of an employee if it is job-related and consistent with business necessity.  In this case, the Agency failed to show that the Postmaster’s query was job-related and consistent with business necessity, because it did not show that the Postmaster believed that Complainant’s ability to perform the essential functions of her position was impaired.  The Agency also failed to show that Complainant posed a direct threat due to her condition.  The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide appropriate training to the responsible management officials.  Francine M. v. U.S. Postal Serv., EEOC Appeal No. 0120180519 (Mar. 5, 2020).

Denial of Effective Accommodation Found.  Complainant, who experienced paralysis in his hand, was provided with a special keyboard as an accommodation for his disability from the time he was hired in 2005 through 2012.  The keyboard allowed Complainant to conduct one-handed data entry.  In 2012, Complainant requested that the Agency provide Dragon Voice recognition software on his computer to accommodate his disability due to an increased workload.  Although the Agency granted Complainant’s request for the software, an AJ determined that the Agency failed to provide Complainant with an effective accommodation when his computer, over a two-year period, failed to work properly with the Dragon software.  As a result of this ineffective accommodation, Complainant sustained a work-related injury to his right hand when he returned to using the special keyboard.  On appeal, the Commission found that the efforts the Agency made to resolve Complainant’s computer issues with the Dragon software were either unduly delayed or only partially implemented, and as a result, the Dragon software was not an effective accommodation.  The Commission noted that the Department of Defense’s Computer/Electronic Accommodations Program (“CAP”) is available as a resource for agencies to use to help identify potential computer-related solutions to assist federal employees with disabilities.  The Commission ordered the Agency, among other things, to engage in a rigorous interactive process with Complainant for a period of 60 days to determine what effective accommodation(s) the Agency could provide Complainant.  Kristopher M. v. Dep’t of  the Treasury, EEOC Appeal No. 2019001911 (Feb. 28, 2020).

Denial of Reasonable Accommodation Found.  Complainant filed two EEO complaints alleging, among other things, that the Agency discriminated against him on the basis of disability when it failed to address his requests for reasonable accommodation, and when it issued him disciplinary actions for leave and attendance issues, and a letter notifying him that he would be separated from employment if he did not apply for a disability retirement.  On appeal, the Commission stated that most of the events alleged in the two complaints were a result of the Agency’s failure to provide Complainant with reasonable accommodation.  Complainant established that he was an individual with a disability, because he was substantially limited in the major life activity of lifting.  The record reflected that, because of his restrictions, Complainant was not qualified to perform his Mail Handler duties. The Commission found that there were no effective means available to accommodate Complainant in the position he held, which raised the issue of reassignment. The Agency, absent undue hardship, was obligated to offer to reassign him to a different position, consistent with the Commission’s regulations. The Agency did not do so.  The burden then shifted to the Agency to provide case-specific evidence proving that providing reasonable accommodation would cause an undue hardship in the particular circumstances. The Agency failed in its decision or on appeal to show that reassigning Complainant to a different position would have resulted in an undue hardship on its operations. Therefore, based on the record, the Commission found that Complainant established he was denied reasonable accommodation for his disability.  The Agency was ordered, among other things to immediately identify vacant, funded positions or assignments for Complainant, restore leave used by Complainant as a result of the Agency’s failure to provide him with an effective reasonable accommodation, calculate backpay, and conduct a supplemental investigation on compensatory damages.  The Commission affirmed the Agency’s final decision finding no discrimination as to Complainant’s additional claims of disparate treatment.  Bill A. v. U.S. Postal Serv., EEOC Appeal Nos. 0120182340, 2019005819 (Feb. 26, 2020).

Denial of Reasonable Accommodation Found.  The Commission found that the Agency discriminated against Complainant based on his disability when it failed to provide him with reasonable accommodation.  Complainant, who is blind, uses hearing aids in both ears, and periodically uses the assistance of a guide dog, asserted, among other things, that he was not provided with productive work assignments, and that the Agency did not make arrangements for his dog.  Complainant noted that while his computer was equipped with software to allow him to answer the telephone, he was never provided with the appropriate training on the software or other software used by the Agency.  The record showed that the Agency’s District Reasonable Accommodation Committee met with Complainant to identify appropriate accommodations.  However, there was no evidence regarding any accommodations that were recommended or instituted, or evidence demonstrating that management sought or provided training to assist Complainant with the software.  Further, while management identified a location for a relief station for Complainant’s dog, they were still waiting for the project to be installed at the time of the EEO investigation.  The Agency proffered no evidence that any of the accommodations would cause an undue hardship.  The Agency was ordered to immediately engage in the interactive process with Complainant to provide him with reasonable accommodation to the extent Complainant still required it, and investigate his claim for damages.  The Commission affirmed the Agency’s finding of no discrimination with regard to Complainant’s claim that he was charged with leave-without-pay.  Clifford L. v. U.S. Postal Serv., EEOC Appeal No. 0120181528 (Feb. 19, 2020).

AJ’s Finding that Agency Failed to Reasonably Accommodate Complainant Affirmed.  Complainant filed an EEO complaint alleging, among other things, that she was discriminated against based on disability when her Supervisor continuously refused to enter into the interactive process to discuss her disability limitations and multiple requests for reasonable accommodation, and failed to permit her to work a maxi-flex schedule.   Following a hearing on the claim, an AJ found Complainant was a qualified individual with a disability, and that the Agency discriminated against her when it unreasonably delayed providing her reasonable accommodation.  Further, the AJ found the Agency failed to provide Complainant telework as a form of reasonable accommodation.  On appeal, the Commission affirmed the AJ’s findings.  The Agency did not dispute that Complainant was a qualified individual with a disability.  The Commission found that Complainant demonstrated that she needed the reasonable accommodation of situational telework, because her medical condition sometimes caused her to experience frequent episodes of diarrhea, episodic bowel incontinence, and abdominal pain.  The Agency unreasonably delayed granting Complainant accommodations for a period of 75 days, and failed to justify the delay.  The Commission noted that Complainant had to submit multiple requests for accommodation, and, in one instance, her supervisor required Complainant to resubmit her request because the supervisor objected to Complainant’s use of capitalized letters and a particular font.  The Commission rejected the Agency’s assertion that Complainant was allowed to telework during the period in question, noting that Complainant was only granted telework for her disability one time despite requesting it as often as twice a week.  While the Agency indicated that Complainant could have used leave, the Commission stated that forcing an employee to use leave when another accommodation would permit the employee to continue to work was not an effective accommodation.  The Agency failed to prove it would have been an undue hardship to allow Complainant to telework as requested.  The Agency was ordered, among other things, to pay Complainant $100,000 in proven nonpecuniary compensatory damages, based on Complainant’s testimony that she experienced stress and embarrassment at work as a result of the Agency’s failure to accommodate her.  The Commission found that Complainant failed to establish discrimination on all remaining claims.  Elsa S. v. Nat’l Aeronautics & Space Admin., EEOC Appeal No. 0720180021 (Feb. 14, 2020).

Disability Discrimination Found Regarding Fitness for Duty Examination.  The Commission found that the Agency discriminated against Complainant when it referred her for a follow-up psychological examination.  According to the record, the Agency began requiring employees in Complainant’s position, which was covered under the “primary/rigorous” category for Law Enforcement Officer (LEO) retirement, to undergo annual physical examinations due to the position’s lifting requirement.  After completing the examination, and a Patient Health-Somatic Anxiety and Depressive Systems questionnaire, Complainant was examined by another physician (DR1) who recommended that she be separated from her position due to her lifting restriction.  DR1 noted that Complainant was very emotional, anxious, and  depressed during the exam.  After Complainant provided the Agency with medical documentation from her personal physicians indicating she was physically and mentally fit for her position, the Agency referred Complainant for a consultation with a contract psychologist, and ultimately issued her a Notice of Proposed Removal.  The Commission determined that the physical examination was job-related and consistent with business necessity because it was necessary for positions with LEO retirement coverage.  The Commission concluded, however, that the Agency failed to establish by a preponderance of the evidence that the psychological fitness-for-duty examination with the psychologist was job-related and consistent with business necessity.  While the Agency justified sending Complainant for the psychological examination based on the conflicting statements of DR1 and Complainant’s physicians, Complainant presented unrebutted evidence that the questionnaire she completed was incorrectly scored by the Agency.  Further, Complainant was allowed to remain on the job for more than two months after completing the questionnaire, suggesting that the Agency was not seriously concerned about her mental or emotional stability.  The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide appropriate training for the responsible officials.  The Commission affirmed the Agency’s findings that Complainant failed to prove her additional claims of harassment, disparate treatment, and disparate impact discrimination.  Linn A. v. Dep’t of the Army, EEOC Appeal No. 0120171148 (Feb. 14, 2020).

Denial of Reasonable Accommodation Found.  Complainant filed an EEO complaint alleging that she was discriminated against on the basis of disability when she was not provided with a reasonable accommodation of situational telework as her medical circumstances required.  Complainant had been teleworking for several years, but her telework agreement expired.  According to the record, Agency managers repeatedly asked Complainant to resubmit her request or provide additional information over a period of several months.  Approximately six months after Complainant requested accommodation, the Agency informed Complainant that she could telework on Mondays, Wednesdays, and Fridays and would have a one-hour window to report her duty station to her supervisor on those days.  The Commission found that the Agency discriminated against Complainant when it did not approve her request for situational telework.  The Agency acknowledged that Complainant was a qualified individual with a disability.  Complainant demonstrated that she needed to be able to telework when she experienced symptoms related to her condition, and these symptoms occurred without notice and were not limited to the three days specified.  Therefore, the Agency’s offer, which was essentially the same telework schedule Complainant had before she requested reasonable accommodation, was not an effective accommodation.  The Commission found that the Agency failed to prove it would have been an undue hardship to allow Complainant to telework when her medical conditions warranted.  The Agency was ordered, among other things, to provide Complainant with the ability to situationally telework, restore any lost leave or pay, and investigate her claim for compensatory damages.  Jona R. v. Dep’t of State, EEOC Appeal No. 0120182063 (Jan. 23, 2020).

Denial of Reasonable Accommodation Found.  Complainant was diagnosed with recurrent facial angioedema and asthma which causes itchy and runny eyes and difficulty in breathing when she walks into any carpeted room at her worksite, as well as when people come into her workspace from any carpeted area.  Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against her based on her disability when it denied her reasonable accommodation.  Specifically, Complainant asserted that her supervisor (S2) denied her request for full-time telework, and granted only one day of telework per week, which had not been implemented.  The Commission found that the Agency discriminated against Complainant when it failed to provide Complainant a reasonable accommodation.  The Agency acknowledged that Complainant was a qualified individual with a disability.  The record showed that Complainant requested full-time telework in or about July 2017.  The Agency engaged in the interactive process and requested medical documentation in support of Complainant’s request.  S2 notified Complainant in August 2017 that the Agency’s Medical Director determined that Complainant should not work in any carpeted workspace.  However, S2 seemingly ignored Complainant’s request for telework until October 16, 2017, when S2 advised Complainant that the Agency would agree to one day of telework per week.  Nevertheless, the record showed that the one day of telework was not implemented until February 2018.  The Commission concluded that the accommodations provided by the Agency, that is, moving Complainant to a workspace without carpet and permitting Complainant to attend meetings that take place in carpeted areas via teleconference from her office, were not effective.  Despite the accommodations provided by the Agency, Complainant continued to experience allergic reactions approximately three times per week.  Accordingly, the Commission found full-time telework to be the only appropriate accommodation in this case.  Thus, the Commission concluded that Complainant was denied a reasonable accommodation.  The Agency was ordered, among other things, to reimburse Complainant for any leave taken because of the Agency’s failure to accommodate her, and investigate her claim for damages.  The Commission affirmed the Agency’s finding that Complainant failed to show that she was subjected to a retaliatory hostile work environment.  Tricia B. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019000539 (Jan. 22, 2020).

Disability Discrimination Found When Agency Delayed Providing Reasonable Accommodation for Pregnant Employee.  Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the bases of sex and disability (pregnancy) when the Agency did not accommodate her medical restrictions for approximately two months, and she was not permitted to work.  The Agency asserted that Complainant had not presented evidence that there was work available within her restrictions during the period in question.  On appeal, the Commission noted the Agency’s position that pregnancy does not render one an individual with a disability under the Rehabilitation Act.  However, the Commission clarified that a pregnant employee may be entitled to reasonable accommodation for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment.  The Commission explained that Complainant’s request could be construed as a request for reasonable accommodation because she identified her exact medical restrictions, and requested an accommodation of a temporary light duty assignment.  The Commission noted that conditions, if severe, constitute disabilities if they are expected to last for more than several months.  Here, Complainant’s condition began in August 2017, and was expected to last until October 2018.  Accordingly, the Commission found that Complainant was a qualified, disabled individual who requested a reasonable accommodation.  The Commission found that the requested accommodation would have allowed Complainant to work within her restrictions, and Complainant stated that had she been granted the accommodation two months earlier, she would have been able to work.  The Commission concluded that Complainant did not contribute to the two-month delay, and that the Agency simply failed to act on her request until late October 2017.  Therefore, the Agency violated the Rehabilitation Act when it delayed responding to Complainant’s request for a reasonable accommodation.  Since the Agency failed to show that it made a good faith effort to timely respond to Complainant’s request for an accommodation, the Commission determined that she was entitled to present a claim for compensatory damages.  Ria T. v. U.S. Postal Serv., EEOC Appeal No. 0120182257 (Jan. 14, 2020).

Disability Discrimination Found.  Complainant, a Mail Handler, filed an EEO complaint alleging, among other things, that she was discriminated against on the basis of disability when she worked at a higher level but was denied the higher-level pay.  On appeal, the Commission found that the Agency discriminated against Complainant as alleged.  The Agency acknowledged that Complainant was an individual with a disability, and the Commission determined that Complainant was offered, and accepted a Clerk position within her restrictions.  The Agency did not dispute that Complainant was qualified for the Clerk position.  According to the record, Complainant’s manager stated that he was instructed by the Plant Manager to pay limited duty employees the same level as their base pay because if they were paid more “that would [be] encouraging others to get hurt on the job to get more pay.”  Therefore, the Commission found that the Agency paid Complainant only her base pay (and not the higher-level pay) because of her medical restrictions.  The Commission noted that the Agency did not identify which if any higher-level duties that Complainant was not performing.  The Agency was ordered, among other things, to pay Complainant any back pay and other benefits due, and investigate her claim for compensatory damages.  Annalee D. v. U.S. Postal Serv., EEOC Appeal No. 0120180911 (Oct. 30, 2019).

Under Title VII

Agency Failed to Provide Legitimate, Nondiscriminatory Reason for Not Promoting Complainant.  Complainant, a Consular Section Chief at a U.S. Embassy, alleged, among other things, that the Agency discriminated against her on the basis of sex when it failed to promote her.  The Commission found that Complainant established a prima facie case of sex discrimination, and the Agency failed to articulate a legitimate, nondiscriminatory reason for its action.  Complainant was qualified for a promotion, as evidenced by her Employee Assessment Reviews, and responding management officials acknowledged that Complainant was eligible for the promotion.  Moreover, Complainant asserted that the prior curtailments of her overseas assignments due to her high-risk pregnancy impacted the ranking she received in the promotion process.  Therefore, Complainant had raised an inference that her sex was a factor in her non-selection for promotion.  The Commission found that the Agency failed to overcome Complainant’s prima facie case because the evidence was not sufficient to provide a specific, clear, and individualized explanation as to why Complainant was not selected for promotion.  While the Agency explained the general mechanics of the promotion process, it failed to provide an individualized explanation for Complainant’s specific situation.  The Agency was ordered, among other things, to retroactively promote Complainant, with appropriate back pay and benefits, and investigate her claim for damages.  Terrie M. v. Dep’t of State,  EEOC Appeal No. 2019002167 (Sept. 22, 2020).

Sex Discrimination & Sexual Harassment Found.  Complainant, an Assistant Public Affairs Officer, filed a formal complaint alleging that the Agency discriminated against her on the basis of sex (pregnancy) when her work responsibilities were altered; she received written performance counseling; and she was subjected to a hostile work environment, including receiving inappropriate comments and being excluded from meetings and emails.  On appeal, the Commission found that Complainant was subjected to discrimination and harassment as alleged.  The record showed that Complainant’s work duties were altered due to her pregnancy, and the Agency incorrectly concluded otherwise.  Complainant’s supervisor specifically stated that she could not supervise Complainant if Complainant was pregnant, and Complainant then ceased performing tasks that were under the supervisor’s purview.  The Agency also excluded Complainant from certain weekly meetings at the supervisor’s request.  The Agency conceded that Complainant was subjected to harassment based on sex that affected a term or condition of her employment.  The Commission found that the Agency was liable for the harassment.  The Commission noted that the Agency could not use an affirmative defense because Complainant’s changed work duties constituted a tangible employment action.  Furthermore, even if there were no tangible employment actions, the Agency failed to take prompt and effective action when it failed to fully remove the responsible management official from supervisory authority over Complainant.  The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages, and reinstate Complainant’s assignments.  Cecille W. v. Dep’t of State, EEOC Appeal No. 2019001540 (Aug. 19, 2020).

Sex Discrimination Found Regarding Denial of Overtime.  Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of sex (female) when it denied her the opportunity to work overtime for a five-month period in 2017. Complainant’s supervisor informed her and her colleagues about overtime opportunities available at Complainant’s former facility, and Complainant expressed interest in overtime.  Complainant alleged that her supervisor initially denied her the opportunity to work overtime.  When he later allowed her to work overtime, he required her to use one hour of annual leave to drive to the facility.  On appeal, the Commission found that Complainant established a prima facie case of discrimination because the Agency permitted male employees to work overtime during the five-month period when it denied Complainant’s requests.  While the Commission found that the Agency articulated a legitimate, nondiscriminatory reason for the delay, that is management needed to obtain approval for Complainant to return to her former facility, the Commission concluded that the Agency’s rationale was a pretext for discrimination.  Specifically, the supervisor’s claim that permission was necessary was unsubstantiated.  The Director at Complainant’s former facility expressly denied that such approval was necessary, and the record contained affidavits from other witnesses who attributed the action to discrimination.  The Agency was ordered, among other things, to investigate whether Complainant was entitled to backpay and/or compensatory damages as a result of the denial of overtime.  The Commission affirmed the Agency’s finding of no discrimination as to Complainant’s annual leave claim.  Eleni M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120182429 (Aug. 6, 2020).

Denial of Religious Accommodation Found.  Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his religion (Jewish) when he was forced to use Leave Without Pay (LWOP) to observe the Sabbath.  On appeal, the Commission stated that it was undisputed that Complainant had a bona fide religious belief, and that he sought a schedule that would allow him to observe the Sabbath which he defined as from sunset Friday until sunset Saturday.   Complainant had a schedule that included Sundays off, as well as a rotating day off.  Complainant requested to work Monday through Friday or on Sundays, but was denied the schedule he sought.  Instead, the District Reasonable Accommodation Committee (DRAC) advised Complainant to submit requests for LWOP on a weekly basis, which they would attempt to accommodate based on Complainant’s seniority and operational needs.  The Commission found 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 doing so would have imposed an undue hardship upon the Agency’s operations.  There was no evidence in the record that the Agency attempted to obtain voluntary substitutes or swaps for the Saturdays that Complainant was scheduled to work.  Further, the Agency provided no evidence as to why Complainant could not have rotated schedules with other employees who had Saturday off.  Furthermore, the Agency failed to present evidence of the impact allowing Complainant to have Saturdays off without requiring him to utilize some form of leave would have had on its operations.  The Commission determined that the Agency improperly framed the complaint as including only the period beginning in November 2017.  The Commission reminded the Agency that its duty to accommodate was ongoing and the Agency’s denial of a religious accommodation was a continuing violation.  Therefore, the Commission concluded that the Agency violated Title VII when it failed to provide Complainant with the religious accommodation of having the Sabbath as a regular day off.  The Agency was ordered, among other things, to provide Complainant a religious accommodation, restore or compensate Complainant for any leave or LWOP he was forced to use to avoid working on the Sabbath, and investigate Complainant’s entitlement to compensatory damages.  Don T. v. U.S. Postal Serv., EEOC Appeal No. 2019001176 (Jan. 30, 2020).

Denial of Religious Accommodation Found.  Complainant advised her supervisors that she would not work Sundays due to her religious beliefs, and did not report to work on Sunday, December 3 and 10, 2017.  Management issued Complainant a seven-day suspension (reduced to Letter of Warning) for the December 3rd absence and a 14-day suspension (reduced to a seven-day suspension) for the December 10th absence.  Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against her on the bases of religion (Christian) when she was issued the suspensions.  On appeal, the Commission found that it was undisputed that Complainant had a bona fide religious belief and she repeatedly requested to have Sundays off to observe her religion, which management denied.  Complainant’s supervisor (S1) explained that three employees were generally scheduled to work on “Amazon Sunday,” and each employee was given the fourth Sunday off.   S1 stated, without explanation, that if Complainant was not required to conform to Sunday delivery, there would not be anyone available to carry items for the Amazon Sunday program.   The Commission found that the Agency did not show that it made a good faith effort to reasonably accommodate Complainant's request.  S1 testified that he did not explore any type of accommodation for Complainant that would address her inability to work on Sundays.  Furthermore, the Commission found that there was insufficient evidence to demonstrate that it would have been an undue hardship to grant Complainant’s religious accommodation request.  The record lacked any documentation indicating the actual staffing or scheduling needs of the Amazon Sunday program.  As a result, the Commission found that the Agency violated Title VII when Complainant was disciplined for her refusal to work on Amazon Sundays.   The Commission affirmed the Agency’s finding that Complainant failed to prove her claim regarding an additional 14-day suspension.  The Agency was ordered, among other things, to provide Complainant a religious accommodation; remove and expunge all disciplinary actions and records that were related to Complainant’s failure to work on Sundays; restore any leave Complainant was forced to use to avoid working Sundays; and conduct a supplemental investigation into Complainant’s entitlement to compensatory damages.  Heidi B. v. U.S. Postal Serv., EEOC Appeal No. 0120182601 (Nov. 8, 2019).

Under Multiple Bases

Discriminatory Harassment Found.  Complainant alleged, among other things, that she was subjected to discriminatory harassment on the bases of race (African-American), color (black/brown) and reprisal.  Complainant stated that she felt threatened by a subordinate employee, and when she reported her concerns to upper management, the Agency denied her requests to transfer to another station.  Following a hearing, the AJ found Complainant was subjected to a hostile work environment on the bases of race, color, and retaliation, and the Commission affirmed the AJ’s findings on appeal. The AJ found that the Agency failed to take appropriate action when informed of Complainant’s allegations that a subordinate employee exhibited violent behavior.  Complainant clearly expressed her fear to management, and the individual’s behavior was well-known.  Management, however, took no action when Complainant requested a transfer for her safety.  The Agency failed to conduct an appropriate investigation into Complainant’s allegations.  While both Complainant and the individual ultimately left the Agency, the Agency did not claim, and there was no evidence that either party refused to cooperate after being contacted for an investigation.  The Agency was ordered, among other things, to pay Complainant $60,000 in proven nonpecuniary compensatory damages as compensation for mental anguish, and pain and suffering.  The Commission concurred with the AJ that Complainant failed to prove she was discriminated against with regard to her detail assignment.  Colene M. v. U.S. Postal Serv., EEOC Appeal No. 2020002054 (Sept. 17, 2020).

Retaliation & Sexual Harassment Found.  Complainant alleged discrimination on the bases of sex and reprisal when she was issued a “Fully Successful” performance rating, and subjected to sexual harassment.  Regarding the harassment, Complainant indicated that her supervisor made sexual gestures toward her, kissed her face while in the workplace, continually uttered comments concerning the manner in which she dressed and her appearance, asked her to go out to eat on numerous occasions, and referred to her as his television “girlfriend” during a section meeting.  Complainant stated that senior management delayed responding to her allegations of sexual harassment.  On appeal, the Commission found the Agency’s reason for the downgrade of Complainant’s performance evaluation was pretextual.  There was no discernable difference in performance between the current year and previous year, when Complainant was rated “Exceeds Fully Successful.”  Further, the supervisor issued the evaluation two months after learning Complainant had reported his alleged discriminatory conduct.  Therefore, it was apparent that the supervisor intended to retaliate against Complainant.  The Commission also found the supervisor’s actions, including kissing Complainant on the cheek without consent, attempting to hug her, and persistently asking her out despite her rejections, constituted sexual harassment.  Such conduct was sufficiently severe and pervasive to alter the conditions of her employment and created an abusive work environment.  The Commission found the Agency liable for the supervisor’s conduct.  While the Agency took some action, allowing Complainant to telework upon receiving her complaint and initiating an investigation, Complainant was not contacted for over three months in regard to the investigation, during which time she remained under the supervisor’s supervision and was subjected to continued emails and other contact from him.  The record showed the Agency had received six or seven additional complaints regarding the supervisor’s behavior.  Therefore, the Commission concluded that the Agency failed to act in a sufficiently prompt manner when it waited over three months before contacting Complainant for the investigation and granting her request for a reassignment.  The Agency was ordered, among other things, to revise Complainant’s rating, restore any leave Complainant used due to the harassment, and investigate Complainant’s claim for damages.   Dollie T. v. Dep’t of Agric., EEOC Appeal No. 2019003298 (Sept. 16, 2020).

Agency Liable for Harassment Based on Disability and Sex.  Complainant alleged that the Agency subjected her to a hostile work environment based on disability (PTSD), and sex, including, among other things, preventing her from performing her duties; denying her opportunities to travel, and desirable assignments; and giving her a lower performance rating.  Complainant also stated that her supervisor and a coworker disrespected her, and her supervisor repeatedly made disparaging comments about her disability, and belittled, degraded, and intimidated her.  On appeal, the Commission found that Complainant has established that she is an individual with a disability, and the Agency clearly erred in finding otherwise.  Complainant was diagnosed with PTSD and a depressive disorder due to the death of her daughter.  She received medical treatment, and took medications for her conditions.  The record also showed that it was common knowledge among her supervisor and two coworkers that Complainant had medical conditions associated with her deployment, and her supervisor was in constant contact with her about her delay in returning to work.  Her supervisor admitted saying that Complainant was “milking the system,” and both coworkers attested that he would frequently make statements implying that Complainant was faking her illness or stretching out treatment to delay her return.  The Commission found that Complainant was substantially limited in the major life activity  of thinking and concentrating.  Further, based on the statements of multiple Agency employees and considering the supervisor’s actions towards Complainant in totality, the Commission found that the supervisor’s behavior unreasonably interfered with Complainant’s work performance and was severe and pervasive enough to amount to a hostile work environment.  The Agency did not raise any defense in either its final decision or on appeal, such that it could avoid liability for the supervisor’s harassment.  The Agency was ordered, among other things, to ensure that the supervisor no longer had any authority over Complainant, and investigate Complainant’s claim for damages.  Kristie D. v. Dep’t of Def., EEOC Appeal No. 2019002875 (Sept. 16, 2020).

Commission Affirmed AJ’s Finding of Sex, Age, & Reprisal Discrimination Regarding Non-selection.  The AJ found that the Agency discriminated against Complainant on the bases of sex (male), age (48), and reprisal when it did not select him a Senior Financial Economist position, and did not include him on the roster for a second position.  The Commission affirmed the AJ’s findings on appeal, noting that the Agency acknowledged that Complainant was qualified for both positions, but was not selected in favor of candidates outside of his protected groups.  The Agency’s assertion that Complainant lacked the requisite communication and collaboration skills, and deserved to be downgraded lacked credibility.  The AJ correctly found that Complainant’s qualifications were superior to one of the selectees.  Further, one of the Selecting Officials testified that he was told not to select Complainant, and an interviewer’s notes did not support the Agency’s conclusions regarding his interview responses.  The AJ noted significant irregularities in the interview process, and the evidence of record was sufficient to support a finding of discrimination.  The Agency was ordered, among other things, to pay Complainant $10,000 in proven compensatory  damages.  The Commission agreed. Emery S. v. Fed. Deposit Ins. Corp., EEOC Appeal No. 2020001130 (Sept. 11, 2020).

Commission Affirmed AJ’s Finding of Race, Color, & Sex Discrimination Regarding Complainant’s Performance Rating.  Complainant alleged discrimination with respect to his performance evaluation.  The record showed that Complainant initially received an “Achieved Excellence” rating.  His rating was subsequently reduced to “Exceeds Expectations,” which resulted in Complainant receiving a smaller bonus and pay increase.  Agency managers did not reduce the evaluations of other comparative employees.  Two Agency supervisors asserted that Complainant earned the top rating, and the documentation justified his rating of “Achieved Excellence.”  Another supervisor, however, lowered Complainant’s score.  That supervisor then denied any involvement in matter and could not recall if she even reviewed Complainant’s score and documentation.  Given the Agency’s failure to identify the specific deficiencies in Complainant’s performance, the Commission found the Agency failed to rebut the inference of discrimination created when Complainant established a prima facie case.  The Commission affirmed the AJ’s award of $5,000.00 in proven nonpecuniary, compensatory damages.  Tyrone D. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019002906 (Aug. 18, 2020).

Agency Violated Rehabilitation Act & Retaliated Against Complainant.  Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (Post Traumatic Stress Disorder or PTSD) and in reprisal for prior protected EEO activity when Complainant’s supervisor (Supervisor) informed the Union Steward of Complainant’s medical condition, and when Complainant was not permitted to enter the facility.  Complainant, who was attempting to enter the facility to represent someone in an EEO matter, contended that the Union Steward informed him that he was barred from the facility because he was on a “threat assessment list” due to his medical condition.  Complainant alleged that the Supervisor’s comments made the Union Steward aware of his medical condition.  On appeal, the Commission found that Complainant established that he was subjected to an unlawful medical disclosure.  During the investigation, the Union Steward was not questioned about the incident even though he would have been in the best position to address the matter.  In the absence of this evidence, the Commission relied on the statements provided by Complainant and the Supervisor, finding that the Supervisor’s affidavit was very limited in terms of providing information and not reliable.  Accordingly, the Commission found that Complainant established that the Supervisor released his medical information to the Union Steward in violation of the Rehabilitation Act.

As to the second claim, Complainant established a prima facie case of unlawful retaliation in that he was coming to the workplace to represent a coworker in an EEO matter.  While the Agency argued that Complainant was denied entry to the facility because he was on a “threat assessment list,” the Commission found that the record was filled with inconsistencies and lacked supporting evidence.  For example, although a manager stated that there was no such thing as a “threat assessment list,” the Supervisor averred that the manager informed her that was the reason Complainant could not enter the facility.  Therefore, based on the inconsistencies, the Commission concluded that the Agency did not substantiate its claim that Complainant was on a “threat assessment list,” and Complainant was subjected to unlawful retaliation when he was not permitted to enter the facility.  The Agency was ordered, among other things, to investigate Complainant’s entitlement to compensatory damages.  Felton A. v. U.S. Postal Serv., EEOC Appeal No. 0120182134 (Dec. 17, 2019).

National Origin & Age Discrimination Found When Agency Terminated Complainant’s Candidacy for a Position.  The Commission found that the Agency discriminated against Complainant when it terminated his candidacy for a Diplomatic Security Foreign Service Special Agent position because his score on an oral and written assessment was below the cut-off level. Agency officials averred that they asked all candidates the same questions and rated them according to pre-determined factors.  No one identified what the factors were, however, and Agency officials refused to provide information about the assessment questions and materials.  The EEO Investigator asked the Agency officials to provide the names of and pertinent information about the applicants who were found suitable to continue their candidacy for the position and information regarding the applicants whose candidacy was terminated, or not terminated, for the same reasons as Complainant’s candidacy.  The Agency stated only that it had assessed 726 candidates, that 272 passed the assessment, and that the candidates who passed as well as those who did not pass the assessment “ranged from all ages, races, and gender[s].”  Based on the Agency’s statement regarding the candidate pool, the Commission found that Complainant established prima facie cases of discrimination based on race/national origin and age.  The Commission further found that the Agency officials’ vague, conclusory statements about the assessment process did not explain why the Agency terminated Complainant’s candidacy.  The Agency provided no information about the pre-determined factors, the questions posed to the candidates, Complainant’s answers to the questions, how the reviewers scored Complainant’s answers, or the bases for the scores given to Complainant and the other candidates.  The Commission ordered the Agency to change Complainant’s assessment results to a passing score and to process his candidacy in the same manner that it processed the candidacies of other applicants who received passing scores.  Leon B. v. Dep’t of State, EEOC Appeal No. 0120182144 (Nov. 5, 2019).

Retaliation

Retaliation Found.  Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against him in reprisal for prior EEO activity when a supervisor stated that people who worked with Complainant ended up having EEO complaints filed against them.  Complainant stated that the supervisor also mentioned that if Complainant ever filed an EEO complaint against him, the Supervisor would take Complainant to court, get his house, and burn his house down.  Another manager recalled the incident as Complainant alleged.  Based on the record, the Commission determined that the supervisor’s comments, even if allegedly made in jest, constituted reprisal, because the statement could easily be interpreted as an attempt to intimidate an employee and/or interfere with his or her EEO activity.  Specifically, the supervisor’s comment about burning down Complainant’s house if he participated in the EEO process was reasonably likely to deter Complainant from engaging in protected activity, and creates a chilling effect on the EEO process.  Therefore, the Commission found that the Agency violated the anti-reprisal provision of Title VII with regards to the supervisor’s comments.  The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide eight hours of training to the responsible management officials.  The Commission affirmed the Agency’s finding of no discrimination with regard to an additional claim.  Jefferey K. v. U.S. Postal Service, EEOC Appeal No. 2019003406 (Sept. 22, 2020).

Retaliation and Harassment Found.  Complainant alleged that her manager subjected her to a hostile work environment when he denied her a retention incentive while approving one for a subordinate, and threatened her with disciplinary actions after she filed a prior EEO complaint.  Complainant also asserted that her manager subjected her to harassment, bullying and intimidation, causing her constructive discharge.  The Commission found these adverse actions followed Complainant’s protected EEO activity within such a period of time that retaliatory motivation may be inferred, and Complainant established a prima facie case of reprisal.  The Commission then determined that the Agency articulated a legitimate, nondiscriminatory reason for denying the retention incentive, specifically, a Fraud/Waste/Abuse complaint against Complainant and a claim that she failed to disclose a tenant in her Agency housing unit, which the supervisor stated was dishonest and against policy.  Nevertheless, Complainant established that the Agency’s reasons were pretext for retaliation.  Complainant’s supervisor stated Complainant was recommended for a retention incentive because she was in a hard to fill position, had several other job offers, and was performing beyond expectations.  Furthermore, the supervisor never saw the Fraud/Waste/Abuse complaint.  The Commission found that Complainant’s prior EEO activity was clearly a factor in the manager’s decision to deny her a retention incentive and that the manager became vindictive toward Complainant and subjected her to measures that included pursuing a Fraud/Waste/Abuse claim for which he lacked documentation.  The manager performed three pharmacy reviews even though only one was typically conducted each year, and sought Complainant’s demotion despite a clear consensus that Complainant was an excellent employee.  The Commission found that Complainant’s treatment was sufficiently severe and pervasive to create a hostile work environment and so intolerable as to constitute constructive discharge.  The Commission ordered the Agency, among other things, to reinstate complainant.  Jacquetta C. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019002196 (June 18, 2020).

Retaliation Found.  Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her race and in reprisal for prior EEO activity.  Specifically, Complainant stated that her Supervisor (S1) failed to inform her of the new assignments, duties, and details of several employees under her supervision; effectively stripped Complainant of her title and responsibilities as a Sustainability Officer; and  continually failed to inform Complainant, and other African-American staff members, of the day-to-day operations of the Field Office.  Complainant amended her complaint to include allegations that she was issued two letters of reprimand;  no longer allowed to telework ; and  placed on a Performance Improvement Plan (PIP).  Following a hearing, an AJ found that the Agency discriminated against Complainant as alleged.  On appeal, the Commission concluded that substantial evidence supported the AJ’s finding that the Agency subjected Complainant to discrimination based on her race and in reprisal for prior EEO activity.  The AJ provided specific reasons for not finding S1 credible, and the Agency failed to show why the Commission should not accept the AJ’s credibility determinations.  Furthermore, Complainant established that S1’s reasons were a pretext for discrimination.  While the Agency claimed it would have taken the same actions absent retaliation, the Agency did not provide objective evidence to support its assertion.  The Agency’s examples of Complainant’s alleged “poor work product and problematic conduct,” were subjective, and the record showed Complainant passed the PIP.  Therefore, the Agency failed to meet its burden of proving it would have taken the same actions absent the discrimination, and Complainant was entitled to an award of compensatory damages.  The Commission found no reason to disturb the AJ’s award of $75,000 in nonpecuniary damages given that the Agency did not challenge the award on appeal.  Aracely J. v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 2020000803 (Mar. 12, 2020).

Complainant Subjected to Retaliation When Supervisor Disclosed Her EEO Activity.  Complainant filed a formal EEO complaint alleging that she was subjected to harassment by a contract employee which was tolerated by her supervisor.  Complainant maintained that the contract employee made statements that were critical of her prior EEO activity.  Complainant opined that the contract employee may have learned about her prior EEO activity from her supervisor, who she had previously named as a responsible management official and/or witness in 18 EEO complaints.  Complainant further stated that management did not respond to her complaints, and the Agency’s harassment policies only address sexual harassment and not non-sexual harassment.  On appeal, the Commission affirmed the Agency’s finding that Complainant failed to establish that she was subjected to harassment as alleged.  However, the Commission found that the Agency fell short of its legal obligation to ensure the confidentiality of protected EEO activity.  Specifically, the Commission found that the Agency engaged in reprisal when Complainant’s supervisor revealed to Complainant’s colleague that Complainant had filed EEO complaints in the past.  The Commission concluded that this disclosure, on its face, discouraged participation in the EEO process.  The Commission found that Complainant was entitled to compensatory damages for the unlawful disclosure of her protected EEO activity.  In finding retaliation, the Commission noted that it had serious concerns regarding the Agency’s handling of harassment claims, especially in regard to the Agency’s obligation to ensure confidentiality, and reviewed the Agency’s anti-harassment policy in its entirety.  The Commission found that the Agency’s anti-harassment policy failed to clearly establish a complaint procedure, including the appropriate channels for filing a complaint, that was separate from the EEO process; and did not ensure confidentiality to the extent possible.  Because the Commission found that the Agency’s actions occurred under circumstances capable of being repeated, the Commission exercised its authority under its Regulations, and ordered the Agency to provide corrective, curative or preventive actions to ensure that violations of the law similar to those found will not recur. Specifically, the Commission ordered the Agency to request technical assistance from the Commission to revise its anti-harassment policy in accordance with Commission standards, and reissue a new anti-harassment policy statement.  Rosamaria F. v. Dep’t of the Navy, EEOC Appeal No. 0120181068 (Feb. 14, 2020); request for reconsideration denied, EEOC Request No. 2020003073 (Nov. 9, 2020).

Retaliatory Harassment Found. The Commission found that Complainant was subjected to retaliatory harassment.  Complainant’s supervisor was aware of Complainant’s prior EEO complaint, which was sufficiently close in time to the actions in the instant complaint to establish a nexus between his EEO activity and the complained of conduct.  Complainant was subjected to numerous investigative interviews; placed on a “deems desirable list;” instructed to submit documentation for every absence; and issued seven and 14-day suspensions, all within a two-month period.  The Commission found that, taken together, this conduct was sufficiently material to deter protected activity and constitute a hostile work environment.  The Commission noted that the two suspensions, issued approximately three weeks apart, were especially chilling because they were not substantiated.  The Commission further noted that an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee.  As such, the Commission found that Complainant was subjected to retaliatory harassment by his supervisor.  The Agency was ordered, among other things, to remove the suspensions and deems desirable list from Complainant’s personnel records, pay any back pay due, and investigate Complainant’s claim for damages.  The Commission affirmed the Agency’s finding that Complainant failed to prove his claim of race discrimination, or discrimination regarding a letter of warning.  Reggie D. v. U.S. Postal Serv., EEOC Appeal No. 0120182401 (Jan. 15, 2020).

Mixed Motive

Mixed Motive Discussed in Finding of Denial of Reasonable Accommodation & Termination.  Complainant, who was legally blind, alleged that the Agency denied his verbal request for reasonable accommodation, denied him training, and terminated him during his probationary period.  Neither party disputed that Complainant has a disability, that the Agency failed to provide Complainant with a reasonable accommodation, and that the Agency’s delay in providing accommodation was not in good faith.  The Commission found that Complainant established a prima facie case of disability discrimination, and Complainant showed that the Agency’s articulated reasons for its actions were a pretext for discrimination.  The Agency acknowledged in its final decision that Complainant had the requisite skills, expertise, education, and other requirements for his position, and that his performance was assessed in large part during the time when he was not provided with an effective reasonable accommodation.  Further, the Agency specifically stated that the testimony of the two responsible management officials concerning Complainant’s performance was not persuasive, and Complainant’s team met or exceeded its production quota and out-produced another team during the specified timeframe.  Complainant was only provided with the necessary laptop and software one month prior to his resignation.  Further, as of the date of his resignation, the Agency had still failed to provide Complainant with all of the accommodations requested which the Agency admitted were reasonable and necessary.  While a supervisor stated that Complainant was failing to meet the expectations of his position one week prior to his resignation, the supervisor failed to specify when the actions that constituted the grounds for termination occurred.  The Commission also found the supervisor did not provide substantive assistance to Complainant to improve his performance or even assist in the reasonable accommodation process.  The Commission concluded that the Agency failed to provide objective evidence that it would have taken the same actions absent its discrimination in failing to accommodate Complainant,  and ordered Complainant’s reinstatement.  William B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019003149 (Sept. 17, 2020).

Mixed Motive Discussed in Finding of Retaliation.  Complainant, a Civil Service Mariner working aboard a U.S. Navy ship, filed a complaint alleging that the Agency discriminated against her on the basis of reprisal.  Specifically, Complainant stated that her second-level (S2) and fourth-level (CPT) supervisors reduced her performance evaluation from “Excellent” to “Outstanding” after she complained that an enlisted Seaman stalked and harassed her, and  broke into her room several times while she was sleeping aboard the ship.  On appeal, the Commission found that Complainant engaged in EEO activity when she reported her allegations of harassment to her supervisors.  Moreover, the record revealed that S2 believed Complainant intended to file EEO complaints, and directly referenced this EEO activity in Complainant’s performance review.  The Commission found this was direct evidence of reprisal.  While the record also contained evidence of  legitimate, non-discriminatory reasons for Complainant’s performance review downgrade, the Agency did not meet its burden of producing objective evidence that it would have taken the same action even absent the retaliation.  The Agency must prove that, with the discriminatory factor removed, sufficient business reasons would have induced it to take the same action.  In this case, the record was devoid of evidence to support the Agency’s assertion regarding Complainant’s allegedly poor performance.  In fact, S2 stated that Complainant was never counseled regarding poor performance, and S2 revealed a deep disdain for Complainant’s participation in the protected EEO activity.  The Commission ordered the Agency, among other things, to investigate Complainant’s claim for damages, and provide appropriate training for S2.  Mitizie W. v. Dep’t of the Navy, EEOC Decision 2019001915 (Mar. 11, 2020).

Remedies

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

Agency Properly Excluded Interest from Back Pay Award.  Neither party challenged the AJ’s decision finding age discrimination.  The Agency, however, appealed the AJ’s inclusion of interest on the back pay award.  The Commission found that Complainant was not entitled to interest on the award of back pay.  Under the Commission’s regulations, interest is to be included in the back pay computation where sovereign immunity has been waived.  Congress has not enacted legislation to amend the ADEA to include interest on back pay. Accordingly, the Commission found that the Agency properly excluded interest from the back pay award.  Wes S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020002082 (Sept. 15, 2020).

Agency Improperly Deducted Unemployment Compensation from Back Pay Award.  The Commission found that the Agency appropriately provided a clear and concise calculation of its net back-pay award, except for the Agency’s deduction of $9,000 Complainant received as unemployment compensation in 2012.  The Commission noted that unemployment compensation must not be deducted from back pay. Unemployment compensation is an interim source of income, but it is a collateral source in that it comes from the state and not the involved federal employer.  An employer cannot offset its damages through a collateral source, such as state unemployment compensation.  Recoupment of unemployment compensation is generally a matter between Petitioner and the state.  Consequently, the Commission ordered the Agency to award Petitioner an additional $9,000, which it improperly deducted from Petitioner’s back pay award.  Concerning any additional tax liability, the Commission ordered the Agency to request that Petitioner submit his claim for compensation (with tax return support) for all additional federal and state income tax liability that he has incurred or will incur.  Clay W. v. Dep’t of the Army, EEOC Petition No. 2019005317 (Feb. 25, 2020).

Remedies Discussed.  The Commission previously found that the Agency discriminated against Petitioner based on his disability, and ordered the Agency to, among other things, offer Petitioner reinstatement with back pay and benefits, and investigate Complainant’s claim for damages.  Petitioner subsequently filed a petition for enforcement, asserting that the Agency failed to provide him with all the relief to which he was entitled.  The Commission noted that back pay should include all forms of compensation and must include privileges of employment to which Petitioner would have been entitled but for the discrimination.  In this case, Petitioner’s back pay award would include mileage to reimburse commuting costs if the individual who was hired to replace Petitioner received such a benefit as a monetary value, that is, the use of a car and/or reimbursement or direct payment for the cost of gas to drive to/from work.  The Commission also stated that, based on management’s statements, Petitioner would have been eligible for promotion to the GS-12 level in December 2018, assuming he had the requisite knowledge, skills, and abilities.  The Commission rejected the Agency’s assertion that Petitioner did not have the necessary prior experience or training, stating that if that were true, the Agency would not have placed Petitioner into a GS-11 position which also required prior experience and training.  The Commission also noted that, when determining the proper grade level for reinstatement, the Agency must consider the grade level obtained by similarly situated employees who were not subjected to discrimination.  Since it was unclear from the record when Petitioner was reinstated, the Commission ordered the Agency to determine whether Petitioner would have received a promotion to the GS-12 grade level if he had not been subject to discrimination, and place him at the appropriate level considering the grade level he would have achieved assuming he started the position on the date of the discrimination.   Petitioner would not be entitled to payment for annual or sick leave, because he remained a federal employee during the back pay period and there was no variation in leave accrual rates based upon a federal employee’s grade level.  Petitioner was also not entitled to a higher performance rating, as there was no evidence he would have received one absent the discrimination.  Finally, the record failed to show that the Agency adequately investigated Petitioner’s claim for damages, and ordered the Agency to conduct a supplemental investigation into that matter.  Mark D. v. Dep’t of Justice, EEOC Appeal No. 2019001549 (Oct. 24, 2019).

Sanctions

AJ Properly Dismissed Hearing Request as Sanction.  Complainant filed an EEO complaint alleging that the Agency discriminated against her when her first level supervisor (S1) allegedly spoke to her in a derogatory tone and later yelled at her; management informed her that she failed her Performance Improvement Plan (PIP); and the Agency terminated her employment.  The AJ dismissed Complainant’s request for a hearing as a sanction when she failed to follow the AJ’s orders.  The Commission  found the AJ acted within his discretion when he dismissed Complainant’s hearing request.  Complainant failed to respond to the AJ’s scheduled teleconference and subsequently failed to timely respond to a Show Cause Order to explain why she failed to attend.  Complainant included an allegedly timely response to the Show Cause Order in her appeal brief, but without proof of receipt by the AJ.  Conversely, the Agency provided evidence that Complainant submitted an untimely response.  While Complainant’s legal representative asserted that he had not received any of the AJ’s communications. nothing in the record indicated that Complainant properly designated a representative.  The Commission concluded that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s PIP results and her termination.  The record demonstrated that Complainant consistently performed below the minimum requirements of her position and failed to improve after PIP training, despite receiving an alternative training supervisor.  The Commission concluded that the two incidents in which S1 allegedly spoke in a derogatory tone and yelled were not so severe or pervasive to constitute viable discriminatory harassment claims.  Hui E. v. Dep’t of Justice, EEOC Appeal No. 2019005164 (Aug. 31, 2020).

AJ’s Dismissal of Hearing Request Was Too Severe.  The Commission reversed the AJ’s decision to dismiss the hearing request as a sanction for Complainant’s failure to submit an initial conference report, and remanded the case for a hearing.   Complainant’s attorney sought an extension of the initial conference due to a scheduling conflict, and was told by the AJ to consult with the Agency regarding alternate dates.  The attorney stated that he did not submit a conference report at that time, because he believed the submission dates would be revised based on the new conference date.  The Commission agreed with the AJ that she had not officially granted the extension for the Initial conference at the time the report was due, and, therefore, a sanction was in order.  The Commission stated, however, that the dismissal of a hearing request should be avoided absent the most egregious circumstances, and the AJ should have chosen from among several less severe sanctions such as excluding evidence offered by Complainant or drawing an adverse inference against Complainant based on his failure to submit an Initial conference report by the assigned deadline.  On remand, the Commission advised the AJ to consider imposing a lesser sanction to appropriately address the conduct at issue.  Vaughn L. v. U.S. Postal Serv., EEOC Appeal No. 2019005104 (Aug. 20, 2020).

Commission Affirmed AJ’s Dismissal of Hearing Request as Sanction.  Complainant requested an administrative hearing following an investigation of her claim of harassment.  Complainant denied having filed a grievance on the same matter when asked by the AJ.  The Agency produced evidence that Complainant had in fact filed a grievance.  The AJ concluded that Complainant was “less than candid” and had filed the grievance.  This, in addition to Complainant’s non-compliance with the AJ’s order restricting additional pleadings, and email policy, caused the AJ to dismiss Complainant’s requested hearing.  The AJ noted that Complainant’s conduct was not mere negligence but reflected a “total disregard” for orders issued, clear instructions, and multiple warnings.  The Commission affirmed the sanction, citing Complainant’s repeated disregard of the AJ’s orders and policies, as well as Complainant’s dishonesty which resulted in further inquiry by the AJ, additional production of documents and evidence by the Agency, and a delay of the hearing process.  The Commission affirmed the Agency’s finding that Complainant failed to prove her claim of hostile work environment, or claim of disparate treatment.  Kathlyn K. v. U.S. Postal Serv., EEOC Appeal No. 2020000357 (Aug. 20, 2020), request for reconsideration denied, EEOC Request No. 2020005400 (Nov. 18, 2020).

AJ’s Dismissal of Hearing Request as Sanction Was Improper.  The Commission concluded that the AJ improperly dismissed Complainant’s hearing request as a sanction.  The AJ stated that Complainant was notified that an Initial Conference Report was to be submitted at least five days before the initial conference, and that the failure to do so could result in sanctions, including the dismissal of the hearing request.  Complainant’s attorney, a solo practitioner, submitted his Initial Conference Report on the date of the initial conference, indicating the delay was caused by due dates in other cases.  The AJ noted that Complainant’s attorney did not file a request for an extension, and found that Complainant failed to show good cause for his deliberate disregard of the deadlines provided in the Scheduling Order.  The Commission found the AJ’s sanction was too harsh and a lesser sanction would have served the purpose of deterring similar conduct in the future.  The AJ should have tailored the sanction to the failure to submit the Initial Conference Report in a timely manner, rather than dismissing the hearing request in its entirety.  While the report was submitted late, five hours before the conference rather than five days, the prejudice and consequences to the Agency were negligible.  The Commission stated that a more tailored sanction, such as disallowing further discovery, would have sufficed to prevent Complainant or his representative from failing to adhere to the AJ’s orders in the future.  On remand, the Commission advised the AJ to consider imposing a lesser sanction to appropriately address the conduct at issue.  Ward B. v. U.S. Postal Serv., EEOC Appeal No. 2019001570 (May 12, 2020).

Commission Sanctioned Agency for Delay  in Issuing Final Decision.  Complainant filed a formal complaint alleging that the Agency discriminated against him when it reassigned him in 2014.  The Agency accepted the complaint, but informed Complainant there would be a delay in the investigation due to an unusually high backlog of cases. Throughout the hearing process, Complainant filed multiple motions to sanction the Agency due to the Agency’s failure to timely investigate his claim.  An AJ initially granted Complainant’s Motion for Sanctions and issued a default judgment against the Agency, noting it had not completed the investigation by the initial hearing conference, and the investigative file, when finally produced, did not include statements from the relevant management officials.  During the remedies phase, the Agency filed a Motion to Dismiss Complainant’s complaint, arguing that the claim of a constructive discharge fell within the jurisdiction of the Merit Systems Protection Board (MSPB).  A second AJ granted the Agency’s motion and dismissed the complaint.  Complainant filed the instant appeal, and the Agency then issued a final decision finding no discrimination.  On appeal, the Commission found that sanctions were warranted in this case because the Agency failed to timely issue a final decision within 60 days of receipt of the second AJ’s decision as required by the Commission’s regulations.  In fact, the Agency did not issue its final decision for more than 200 days.  The Commission must protect the integrity of the EEO process and ensure that the Agency abides by its regulations.  The Commission found that the most appropriate sanction to address the Agency's conduct was to order the Agency to provide training to its EEO personnel who failed to comply with the regulatory timeframes. The Commission also affirmed the first AJ’s finding of liability as a sanction.  The Commission noted that the Agency framed Complainant’s complaint as alleging discrimination with regard to a reassignment, and Complainant did not challenge that characterization or amend the complaint to include an allegation of constructive discharge.  Therefore, it was inappropriate for the second AJ to reframe the claim and dismiss the matter as a mixed case complaint.  The Commission remanded the matter for a hearing on Complainant’s damages and attorney’s fees pursuant to finding of discrimination by the first AJ.  Josiah M. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120181835. (Mar. 13, 2020).

AJ’s Dismissal of Hearing Request as Sanction Was Improper.  An AJ dismissed Complainant’s hearing request as a sanction for her failure to provide relevant information regarding the factual bases of her claim.  The Commission initially determined that the sanction was appropriate; however, after further review, found that the sanction was too harsh.  The Commission noted that dismissal of a hearing request by an AJ as a sanction is only appropriate in extreme circumstances, such as when the Complainant engages in contumacious conduct, not merely negligence.  In this case, the Agency failed to show that the three-year dormancy of the case was due to Complainant’s failure to provide an affidavit.  Further, the Agency was able to complete its investigation without Complainant’s affidavit, thereby demonstrating that the integrity of the EEO process was not seriously compromised.  On remand, the Commission advised the AJ to consider imposing a lesser sanction, including excluding evidence or drawing an adverse inference against Complainant, to appropriately address the conduct at issue.  Carolyn M. v. U.S. Postal Serv., EEOC Appeal No. 2019004843 (Mar. 10, 2020).

AJ’s Dismissal of Hearing Request as Sanction Was Proper.  The Commission affirmed the AJ’s dismissal of the hearing request as a sanction for Complainant’s contumacious conduct at the pre-hearing conference.  The AJ’s account in her Order of Dismissal asserted that Complainant was disruptive, disrespectful and threatening.  The AJ also noted that Complainant used profane language at the conference, including, but not limited to, stating: “F***ing felonies were committed. I am f***ing sick of it!”  Complainant also referred to the Agency representative as a “f***ing bitch.”  The AJ tried to “get Complainant on track” numerous times in order to facilitate a productive conference, identify his claims, and define the scope of discovery, but was not successful.  Complainant refused to stop swearing, yelling and interrupting, and his comments, as well as his tone were of a threatening nature.  According to the AJ, Complainant’s conduct was egregious, and he gave absolutely no indication that he would or wanted to behave in a professional, dignified manner.  As a result of Complainant’s obstructive behavior, the AJ was unable to conduct the conference.  The AJ afforded Complainant the opportunity to address the allegations made about his behavior, but he did not respond.  The Commission found that Complainant’s behavior at the pre-hearing conference constituted contumacious conduct, and the AJ did not abuse her discretion in dismissing his hearing request.  Josiah M. v, U.S. Postal Serv., EEOC Appeal No. 2019003865 (Feb. 14, 2020); request for reconsideration denied, EEOC Request No. 2020004028 (Oct. 6, 2020).

AJ Prematurely Imposed Sanction.  On its own motion, the Commission reconsidered a prior appellate decision to address whether the AJ erred when, in the absence of an order, he sanctioned the Agency for failing to timely complete the EEO investigation by issuing a default judgment in favor of Complainant.  The appellate decision concluded that the AJ did not abuse his discretion when he sanctioned the Agency.  On reconsideration, the Commission determined that an AJ’s ability to issue the sanctions set forth in the Commission’s Regulations, including default judgment, is limited to conduct by the parties involving a failure “to comply with the Administrative Judge’s order or request.”  Specifically, an AJ must issue an order to the Agency or request documents or records before the AJ may sanction the Agency for failing to develop an impartial and appropriate factual record.  In this case, the record reflected that the AJ imposed the default judgment sanction for the Agency’s failure to meet the regulatory timeframes for conducting the investigation without first issuing a show cause order.  Therefore, the Commission vacated the default judgment and remanded the matter to the AJ to either issue a show cause order or process the complaint on its merits.  Miguelina S. v. Dep’t of Justice, EEOC Request No. 2019002953 (Jan. 27, 2020).

AJ Did Not Abuse her Discretion in Dismissing Hearing Request as Sanction.  Following an investigation of Complainant’s claim of reprisal related to her seniority date, Complainant requested an administrative hearing.  The AJ subsequently dismissed Complainant’s hearing request as a sanction for her failure to appear at a scheduled conference without explanation.  According to the record, the AJ issued an Order acknowledging the hearing request, and a second Order setting a date and time for an initial conference.  Both Orders indicated that there was a risk of a sanction for failing to appear at a scheduled event, including the possible dismissal of the hearing request.  When Complainant failed to appear at the scheduled conference, the AJ unsuccessfully attempted to reach her twice by telephone.  Complainant never explained her failure to appear for the conference.  The Commission found no evidence that the AJ abused her discretion when she dismissed Complainant’s hearing request.  There was no dispute that Complainant received the Order setting the conference date, and that she was notified of the risk of a sanction if she failed to appear.  While Complainant asserted that she did not regularly look at her emails, the Commission found it reasonable to conclude that she would have examined them during the month following the issuance of the AJ’s Order.  Further, Complainant did not deny receiving the two calls from the AJ and one voice message the day of the conference.  The Commission found that the AJ appropriately tailored the sanction to ensure compliance with future AJ Orders.  The Commission affirmed the Agency’s finding of no discrimination.  Vickie T. v. U.S. Postal Serv., EEOC Appeal No. 0120181675 (Jan. 27, 2020).

AJ Erred in Dismissing Hearing Request.  Complainant requested an administrative hearing following the investigation of his discriminatory hostile work environment complaint.  Complainant subsequently informed the parties that his then-attorney was hospitalized, and the AJ agreed to keep the matter on hold until the attorney’s condition improved.  The following day, Complainant sent the AJ a lengthy email containing information about his pending complaint.  The AJ cautioned Complainant to “refrain from sending communications without [his] attorney’s knowledge or consent.”  Complainant retained a new attorney, and amended his complaint.  The AJ then resumed processing the amended complaint following a supplemental investigation.  After being notified that Complainant emailed the Commission’s Office of Federal Operations inquiring about the EEO process, the AJ cancelled the hearing, citing her earlier email in which she cautioned Complainant about sending communication without his counsel’s knowledge or consent.  On appeal, the Commission found that the AJ erred when she sanctioned Complainant by dismissing his hearing request.  The Commission stated that the AJ’s initial email was sufficiently vague to confuse Complainant and did not expressly prohibit Complainant from sending communication without his attorney’s knowledge or consent.  Further, the AJ did not use the term “order” in her email, and specifically mentioned only Agency staff.  There was no language in the email that would have reasonably led Complainant to understand that he should not contact the Office of Federal Operations.  Therefore, Complainant’s confusion over the email was justified, and the AJ’s decision to dismiss Complainant’s hearing request for failure to obey an order was not appropriate.  The Commission remanded the matter for an administrative hearing.  Lenard T. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120181937 (Jan. 24, 2020).

Settlement Agreements

Breach of Settlement Found.  The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would pay Complainant a specific amount of compensatory damages, which it would make reasonable attempts to “facilitate and expedite.”  The Agency also agreed to rescind and delete Complainant’s 2017 performance appraisal, and correct absent-without-leave (AWOL) charges to Leave Without Pay (LWOP).  On appeal, the Commission found that the Agency breached various provisions of the agreement.  The Commission noted that while the agreement did not guarantee a date for payment, the Agency had not shown it made sufficient efforts to execute its obligations, and the Agency could not rely on another agency that does its accounting to bypass a term of the agreement.  Further, there was no evidence that the Agency rescinded or deleted the 2017 appraisal, and the Agency conceded that not all hours originally charged as AWOL were corrected to LWOP.  The Agency claimed it was unaware when it executed the agreement that its system only allowed changes to leave going back one year.  The Commission noted that Complainant requested specific performance, and ordered the Agency to execute the terms of the agreement.  The Commission instructed the Agency that if it cannot correct all of the hours originally charged as AWOL to LWOP due to system rules, the Agency will provide Complainant with a written statement indicating that all the hours agreed to should be LWOP rather than AWOL and that any indication in the system to the contrary was in error.  A copy of this document was to be placed in any personnel records for Complainant which the Agency retained.  Stacie D. v. Dep’t of the Army, EEOC Appeal No. 2019005382 (Sept. 9, 2020).

Commission Affirmed Finding that Agency Did Not Breach Settlement Agreement.  Complainant and the Agency entered into a settlement agreement in 2009, resolving a discrimination complaint.  Complainant believed the Agency violated provisions of the agreement stipulating the Agency would keep Complainant on the graveyard shift as long as it was available, and a named supervisor would remain in his chain of command.  Complainant noted that he received a memorandum in October 2019, advising him of changes to his schedule.  On appeal, the Commission noted that if the language of a settlement agreement is plain and unambiguous, the meaning of that language must be determined from the four corners of the agreement.  Therefore, in order for the provision to be enforceable, two conditions must be met: Complainant’s supervisor must remain in his chain of command, and a graveyard shift must be available.  The Agency provided official personnel records showing that the named supervisor retired in August 2019, and, as such, the provision in question was rendered unenforceable at the time of Complainant’s schedule change.  Further, the Commission has long held that it is not proper to interpret a settlement agreement as providing indefinite employment in an exact position, and an Agency will not be in breach of agreement if it maintains Complainant in the agreed-upon position for a reasonable period of time.  Therefore, the Commission affirmed the Agency’s final decision that it was not in breach of the agreement.  Monroe C. v. Dep’t of the Air Force, EEOC Decision No. 2020000996 (Sept. 9, 2020).

Agency Timely Cured Breach.  Complainant and the Agency entered into a settlement agreement that stipulated, in relevant part, that the Agency had a certain amount of time to review a Letter of Reprimand (LOR) to determine whether the LOR had “served its purpose,” and consider whether to remove the letter from Complainant’s Official Personnel File (OPF).  When the time to review the LOR elapsed, Complainant notified the EEO Counselor that the LOR was still in his OPF, and despite the deadline, he had not been contacted by the Agency.  Complainant also notified Agency management officials of the alleged breach, and requested reinstatement of his underlying EEO complaint.  On appeal, the Commission stated that Complainant notified the Agency of the breach on October 9, 2019, and the Agency removed the LOR from Complainant’s OPF by October 21, 2019.  Therefore, the Agency timely cured any breach of the agreement.  Further, while Complainant also asserted that the Agency did not notify him of the status of the LOR until he raised the breach allegation, the agreement did not require the Agency to maintain documentary evidence or notify Complainant of its compliance with the agreement.  As such, the Agency’s failure to do so did not constitute a breach.  Valentine F. v. Dep’t of Justice, EEOC Decision No. 2020002169 (Sept. 9,  2020).

Settlement Agreement Void.  Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that the Agency would provide Complainant with clock rings for a specific period.  In addition, Agency management would update Complainant on job search progress after Complainant provided specific information on her medical restrictions and preferences.  The Agency concluded that management breached the Agreement, because it could not provide evidence of compliance.  However, rather than order specific performance, as requested by Complainant, the Agency voided the Agreement, finding the provision regarding job search progress too vague and ambiguous to be enforceable. The Agency reinstated Complainant’s underlying complaint for processing.  On appeal, the Commission found that the provision concerning clock rings did not appear to offer anything to which Complainant would not have already been entitled.  Further, the agreement provided no explanation as to what the “job search” entailed.   Therefore, that provision was too vague for the Commission to determine whether the Agency complied with its terms.  The Commission concluded the entire agreement was void and unenforceable, and the Agency properly reinstated Complainant’s initial complaint.  The Commission declined to consider statements made during mediation, stating that confidentiality is essential to ensure the success of all ADR proceedings.  The Commission noted that neither the Agency nor Complainant is obligated to take an action discussed during mediation unless the action is specifically written into the resulting settlement agreement.  Anne H. v. U.S. Postal Serv., EEOC Appeal No. 2020001174 (Aug. 24, 2020).

Breach of Settlement Found.  The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would convert 752 hours of “Home Leave” to sick leave within 55 days, and create a file to house and maintain past and future performance appraisals and ratings that Complainant received.  The agreement also stated that Complainant would waive and fully release the Agency from a previous EEO complaint and withdraw his grievances, and that the provisions of the Agreement were severable.  On appeal, Complainant alleged the Agency did not convert the 752 hours of Home Leave to sick leave.  In its response, the Agency contended that  provision of the agreement was unenforceable and should be dismissed because its Payroll Services Department refused to convert the hours.  The Commission concluded that the conversion provision was a material, unqualified offer that created a reasonable expectation of performance.  The Commission found the Agency should bear responsibility for its mistake because it, through its legal representatives, avowed to undertake the action without first determining whether there were possible conflicts with personnel regulations.  The Commission stated that, because the mistake was material and the settlement agreement contained other valuable consideration, the entire agreement was voidable at Complainant’s discretion.  The Commission ordered the Agency to notify Complainant that he could opt to accept the settlement agreement without the hours conversion provision, or void the entire agreement, in which case the Agency must promptly request a hearing on Complainant’s EEO complaint.  Deshawn S. v. U.S. Agency for Glob. Media, EEOC Appeal No. 2020001599 (May 26, 2020).

No Breach of Settlement Found.  The parties entered into a settlement agreement in October 2016, that provided, in pertinent part, that the Agency would create an office for Complainant within 90 days.  Complainant alleged the Agency later relocated her office in November 2019, as part of a “pattern of hostility and retaliation” against her for prior EEO activity. On appeal, the Commission concluded that the Agency did not breach the agreement.  The Commission found that the Agency was not obligated to keep Complainant in the same office in perpetuity.  The Commission accepted the Agency’s explanation that it moved Complainant to a comparable  office because her new duties did not require her to be near the laboratory, and Complainant’s office move was part of a larger “re-arrangement” of several offices.  The Commission noted that  Complainant may file a new complaint regarding the alleged retaliation and discrimination.  Becky N. v. Dep’t of Def., EEOC Appeal No. 2020001560 (Apr. 29, 2020).

Commission Affirmed Agency’s Finding of No Breach of Settlement.  Complainant and the Agency entered into a settlement agreement in 2012 that provided, among other things, that an Agency manager would meet with Complainant to outline duties, responsibilities, and expectations of the Lead Management Analyst position.  Complainant alleged that the Agency breached the agreement when it removed her Lead Management Analyst duties in 2018.  On appeal, the Commission affirmed the Agency’s decision finding that it did not breach the 2012 agreement.  The Commission  previously determined that sufficient evidence was provided by the Agency to establish that Complainant was placed in the position, was offered the opportunity to meet with another supervisor, and offered the requisite training.  The Commission has previously held that when an employee bargains for a specific position, but fails to request terms as to length of service, the Agency is not obligated to retain the employee in that position indefinitely.  The Commission noted that Complainant must initiate contact with an EEO Counselor to pursue a new claim if she believes the removal of her Lead Management Analyst duties was discriminatory.  Chrystal S. v. Dep’t of the Interior, EEOC Appeal No. 2019002579 (Mar. 10, 2020).

No Breach of Settlement Found.  The parties entered into a settlement agreement that provided, among other things, that Complainant would receive two specific types of training.  On appeal, the Commission found that the Agency did not breach the agreement.  Complainant did not dispute the Agency’s assertion that it provided her with the agreed upon training.  Complainant asserted, however, that she was not provided with full-time work.  The Commission stated that this expectation was not included in the terms of the agreement.  The Commission noted that, according to the Agency, Complainant’s assertions regarding full-time work were being processed as a new complaint.  Anglea R. v. U.S. Postal Serv., EEOC Appeal No. 2019002834 (Jan. 29, 2020).

Settlement Agreement Invalid Due to Mutual Mistake.  The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would offer Complainant a Criminal Investigator position, with an effective hiring date of July 12, 2015.  The Agency acknowledged that it did not comply with the terms of the agreement, maintaining it was unable to back-date Complainant’s date of entry into the position.  According to the record, Complainant was employed by another federal agency until April 16, 2016, and the Office of Personnel Management (OPM) advised the Agency that it could not back-date Complainant’s effective start date.  Therefore, the record showed that the agreement was the product of a mutual mistake.  It was clear that the parties intended that Complainant would have an earlier start date, but the parties erred as to the date on which this could be done.  Thus, Complainant could choose to either reinstate the underlying EEO complaint, or have the terms of the agreement specifically enforced using April 17, 2016, as his start date.  The Commission noted that if Complainant chose to reinstate his complaint, he would have to return the monetary payment and any other benefits he received.  Lupe M. v. Dep’t of the Treasury, EEOC Appeal No. 2019002273 (Jan. 28, 2020).

Settlement Agreement Void.  The parties entered into a settlement agreement that provided, among other things, that Complainant would receive “priority consideration” for any acting assignment for two specific positions that became available within 48 months.  The agreement further stated that Complainant would be considered for one such opportunity “in the normal course of business, consistent with workloads and schedules.”  Complainant alleged that the Agency breached the agreement when it failed to provide priority consideration for a number of acting positions.  The Agency conceded that the precise meaning of the two provisions in question was ambiguous, and the Commission agreed.  There was no explanation of what was meant by “priority consideration,” and much of the Agency’s justification for not choosing Complainant for the acting positions was that Complainant was treated the same as three similarly situated managers.  Complainant, on the other hand, appeared to believe he was entitled to more favorable treatment.  It was also unclear what was meant by “in the normal course of business.”  Therefore, the Commission found that the agreement was void due to the vagueness of the language.  In addition, given the numerous disputes between the parties regarding the type of details contemplated under the agreement, the Commission found there was no meeting of the minds.  The Agency was ordered to reinstate Complainant’s underlying EEO complaint.  Terrance A. v. Dep’t of the Treasury, EEOC Appeal No. 2019005518 (Jan. 24, 2020).

Settlement Agreement Void: No Meeting of the Minds.  Complainant and the Agency entered into a settlement agreement providing, in pertinent part, that the Agency’s detail rotation list would be adhered to “as written in the LMOU,” and Complainant would be afforded a minimum of nine weeks of detail prior to the use of the detail rotation list.  On appeal, the Commission found that the provisions were too vague and general to have allowed for a meeting of the minds between the parties.  The Commission noted that while “LMOU” may stand for “Local Memorandum of Understanding,” the settlement agreement did not expressly specify which union, date, or geographic region the LMOU adhered to with regard to the detail rotation list.  The Agency asserted that there was no agreement between the union and Complainant’s facility on this issue.  Complainant, however, stated that management told him at the time of the agreement that the LMOU addressed the matter.  Therefore, the Commission found that the agreement was void for vagueness.  Marvin D. v. U.S. Postal Serv., EEOC Appeal No. 2019004445 (Oct. 3, 2019).

Settlement Agreement Void.  Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that Complainant could ask for help and seek clarity regarding work assignments without being judged.  The agreement stated that, to the extent possible, Complainant should seek clarification within 24 hours of receipt of an assignment and should “be proactive and use all resources available” before reviewing documents with management.  Complainant alleged that the Agency breached the settlement agreement, citing several instances where she felt demeaned by her supervisor’s reactions when she asked a question.  On appeal, the Commission found the settlement agreement was void for vagueness.  Specifically, the agreement included preconditions for Complainant being allowed to ask questions, and did not specify what the cited provision meant.  The Commission also noted that the agreement did not provide Complainant with any monetary benefits or other benefits beyond what is already expected in the workplace.  Since the Agency did not incur any sort of legal detriment, the Commission set aside the settlement agreement for lack of consideration, and directed the Agency to reinstate Complainant’s complaint from the point processing ceased.  Natacha M. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019003184 (Oct. 1, 2019).

Stating a Claim

Complainant Stated Viable Claim of Sex Discrimination.  Complainant was terminated during her probationary period for being absent-without-leave (AWOL) when she took time off to take care of a sick child.  The Agency dismissed her EEO complaint, stating that her alleged basis, “parental status,” was not a protected basis.  On appeal, the Commission found that a fair reading of the complaint in conjunction with the EEO counseling record showed that Complainant was alleging that she was unlawfully terminated on the basis of her sex, as well as her association with her disabled infant child.  Complainant noted that the termination occurred after she requested sick leave to fulfill caregiving responsibilities linked to her child’s medical condition.  Complainant further asserted that her supervisor would not accept her medical documentation to justify the absence.  The Commission concluded that Complainant provided sufficient allegations to state a viable claim of sex discrimination and/or disability discrimination, requiring further investigation.  While the Agency claimed that Complainant failed to establish a nexus between her termination and her sex or disability association, the Commission found that the argument addressed the merits of the claim and was irrelevant to the procedural issue of whether Complainant stated a justiciable claim under Title VII or the Rehabilitation Act.  Chau O. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019005519 (Sept. 9, 2020).

Complainant Stated Viable Claim of Retaliation.  Complainant, who was president of a local union at the time of the events, filed a formal EEO complaint alleging that the Agency discriminated against him based on age and prior EEO activity when the Postmaster filed criminal charges against him for alleged assault after learning Complainant was returning to work pursuant to a settlement agreement.  On appeal, the Commission stated that Complainant essentially alleged that the Postmaster brought false criminal charges against him and then offered to withdraw them if Complainant retired in retaliation for a prior EEO complaint.  Therefore, Complainant stated a viable claim of unlawful retaliation.  While the Agency asserted that the State’s Attorney controlled the criminal charges, the allegation concerned the Postmaster’s actions in initiating and then offering to withdraw the charges in exchange for Complainant’s retirement based on retaliatory animus.  Therefore, the Agency improperly dismissed the complaint.  The Commission stated, however, that to the extent Complainant alleged that the Agency took action because of Complainant’s position as president of the local union, Complainant should have pursued that claim under the negotiated grievance process, not through the EEO complaint process.  Ralph B. v. U.S. Postal Serv., EEOC Appeal No. 2020002056 (Sept. 3,  2020).

Complainant Stated Viable Claim Under the Pregnancy Discrimination Act.  Complainant alleged she was discriminated against on the bases of sex (pregnancy), disability and retaliation when she was made to work beyond her pregnancy related limitations; her reasonable accommodation request was denied; and she experienced retaliation after reporting safety issues at the facility.  The Commission rejected the Agency’s assertion that the matters alleged were merely “routine employment-related interactions” that were insufficient to constitute an injury to a term, condition, or privilege of Complainant’s employment.  The Commission found that Complainant stated a viable claim of discrimination based on sex under the Pregnancy Discrimination Act, when her supervisor failed to accommodate her inability to carry a full workload in the same way the Agency would accommodate any other worker with a temporary disability.  The Commission also found that Complainant’s claim that she was made to work beyond the scope of her medical waiver appears to state a claim of disability discrimination.   Peggie T. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002979 (Aug. 18, 2020).

Agency Improperly Dismissed Allegation Regarding Unauthorized Disclosure of Medical Information.  Complainant alleged, among other things, that an individual in the Agency’s Office of Human Resources shared Complainant’s confidential medical information without his permission.  The Agency dismissed the claim as a possible violation of the Privacy Act that was under the exclusive jurisdiction of the United States District Court.  On appeal, the Commission noted that violations of the Privacy Act or HIPPA (Health Information Portability Accountability Act) were beyond the Commission’s jurisdiction.  However, the Americans with Disabilities Act, and by extension Section 501(g) of the Rehabilitation Act, also specifically prohibits the disclosure of medical information except in certain limited situations.  Therefore, the matter stated a viable claim.  The Commission affirmed the Agency’s dismissal of claims concerning the Office of Personnel Management’s processing of Complainant’s disability retirement claim.  Tyrone D. v. Smithsonian Institution, EEOC Appeal No. 2020003601 (Aug. 17, 2020).

Complainant Stated Viable Claim of Disability Discrimination.  Complainant filed an EEO complaint, alleging discrimination on the bases of race, sex, and disability when she was given a limited duty assignment at a different facility, and when the Agency failed to provide the results of the investigation regarding her injury.  The Agency dismissed the complaint for failure to state a claim. With regard to the limited duty assignment, the Commission rejected the Agency’s assertion that the matter was under the jurisdiction of the Office of Workers’ Compensation Program (OWCP) and was therefore a collateral attack on that adjudicatory process.  The Agency has a legal responsibility to accommodate its employees under the Rehabilitation Act, and such a duty is ongoing and not dependent on OWCP’s determination.  Here, Complainant alleged that there was no offer to accommodate her, and the Agency merely transferred her to another location. Thus, Complainant stated a viable claim of disability discrimination.  The Commission, however, concurred with the Agency that Complainant failed to allege sufficient facts to establish that she suffered harm or loss with respect to a term, condition, or privilege of employment with regard to the investigation.  The EEO Counselor’s report revealed that the investigation determined that the injury was the result of an accident, and Complainant’s allegation, without more, did not state a viable claim.  Damaris M. V. U.S. Postal Serv., EEOC Decision No. 2020002644 (Aug. 13, 2020).

Agency Improperly Addressed Merits of Claim in Dismissal.  Complainant filed a formal EEO complaint alleging that the Agency subjected her to unlawful retaliation, citing several actions related to a standard of care violation.  The Agency dismissed the complaint, noting that it is required to investigate standard of care violations.  The Agency stated that Complainant was temporarily suspended during the investigation, and her clinical privileges were held in abeyance.  The Commission found that the Agency improperly addressed the merits of the complaint, noting that the Agency’s explanation for its actions was irrelevant to the procedural issues of whether Complainant stated a claim.  In alleging that she was ordered to go home and told to use sick leave, her clinical privileges were held in abeyance, and she was required to engage in off-duty employment until the investigation was completed, Complainant stated viable claims of retaliation.  The Commission also rejected the Agency’s assertion that the claims were moot because the investigation exonerated Complainant, noting that Complainant sought compensatory damages.  Chanelle B. v. Dep’t of the Army, EEOC Appeal No. 2020000394 (May 26, 2020).

Complainant Stated Viable Claim of Harassment.  The Agency dismissed Complainant’s formal complaint for failure to state a claim, based on three incidents involving his Unit Chief.  The Commission concluded that an objective examination of the formal complaint and EEO counseling report showed that the allegations set forth were merely examples, and that Complainant was in fact alleging a pattern of ongoing harassment by the Unit Chief.  Accordingly, Complainant presented a cognizable harassment/hostile work environment claim. Stanton S. v. Dep’t of Justice, EEOC Appeal No. 2020001838 (May 12, 2020).  Additional Decisions Addressing Dismissals of Harassment Claims Include:  Tracey M. v. Small Bus. Admin., EEOC Appeal No. 2019003365 (Sept. 16, 2020) (the Agency improperly fragmented Complainant’s hostile work environment claim. When viewed together, the 22 incidents stated a viable claim of discriminatory and retaliatory hostile work environment. The Commission affirmed the dismissal of two claims concerning official time for union activity as constituting a collateral attack on another proceeding.); Eric A. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020001568 (Sept. 10, 2020) (the Agency improperly dismissed Complainant’s claim that he was subjected to a hostile work environment, including being downgraded, given different duties than a comparative employee, and being subjected to ridicule and insults.  Complainant described adverse actions occurring over a period of 10 months that were sufficient to state a claim of harassment.  In addition, the downgrade and assignment of duties alleged discrete actions in which Complainant was allegedly subjected to disparate treatment); Tristan W. v. Dep’t of the Army, EEOC Appeal No. 2019005780 (Aug. 27, 2020, 2020) (the Commission found that Complainant’s allegations that he was subjected to a series of incidents since he began working for the Agency, including a trainer raising her voice to him, accusing him of having a poor work ethic in front of other trainees, dismissing his questions, refusing to check his work, and telling another trainee that talking to Complainant was like “talking to an orangutan” that, taken together, stated a viable claim of harassment); Ricky S. v. Nat’l Reconnaissance Office, EEOC Appeal No. 2020001598 (Aug. 20, 2020) (when viewed collectively, the incidents cited by Complainant stated a viable claim of hostile work environment, which included proposed actions.  In an attachment to his formal complaint, Complainant asserted that he requested an extension to stay at a field office after being told his position would be moved to Agency headquarters.  Complainant stated that the Agency approved other requests for extensions, and an Agency official commented that she wanted to replace higher grade employees with lower grade ones, which Complainant believed meant the Agency intended to eliminate older employees); Tiffanie S. v. Pension Benefit Guaranty Corp., EEOC Appeal No. 2020002728 (Aug. 17, 2020) (the Agency improperly fragmented Complainant’s claim of harassment.  The EEO Counselor’s Report showed Complainant referred to various conversations she heard indicating the Agency intended to terminate her.  Complainant stated that her supervisor called Complainant into her office to discuss confidentiality protocols and confronted Complainant about going to human resources.  The EEO Counselor’s report also indicated that Complainant stated the Agency only partially granted her request for accommodation, and the EEO Counselor discussed Complainant’s reasonable accommodation request with her supervisor.  Complainant therefore raised the issue of being denied a reasonable accommodation during Counseling as part of her overall harassment claim);  Simonne J. v. Dep’t of Transp., EEOC Appeal No. 2019003194 (Nov. 5, 2019) (the Agency erred in defining Complainant’s claim as concerning only two incidents relating to a work assignment and training.  A fair reading of the formal complaint and the related EEO counseling report showed that Complainant alleged harassment, and the two incidents were cited as examples thereof.  Complainant also raised other incidents, including negative comments made by her supervisor, and, therefore, alleged a pattern of harassment):  Delphia F. v. U.S. Postal Serv., EEOC Appeal No. 2019004004 (Nov. 7, 2019) (a fair reading of Complainant’s formal complaint and the EEO counseling report indicated that Complainant alleged an ongoing pattern of harassment, and not merely the two incidents identified by the Agency.  Complainant alleged that she was subjected to harassment by two management officials “almost daily,” and treated differently than her male co-workers.  Therefore, Complainant stated a cognizable claim under the Commission’s regulations); Minh G. v. Dep’t of the Army, EEOC Appeal No. 2019005009 (Oct. 31, 2019) (the Agency erroneously defined Complainant’s claim as consisting solely of one incident, while the EEO counseling report made it clear that Complainant was alleging that the same co-worker had been making racist comments and gestures for years and management failed to take effective action to stop the incidents. A fair reading of the complaint, in conjunction with the EEO counseling report showed that Complainant raised a viable claim of harassment).

Complaint Improperly Dismissed in Part for Failure to State a Claim.  The Commission affirmed the Agency’s dismissal of Complainant’s claims concerning management’s refusal to complete a form, and the union’s failure to assist her following an on-the-job injury, finding that those matters directly related to Complainant’s application for workers’ compensation.  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 have raised her challenges to actions which involve the adjudication of her workers’ compensation claim was with the Department of Labor, not through the EEO complaint process.  Further, while Complainant stated that she was approached with a new modified job offer, she did not explain how she was harmed, and the Commission concurred with the Agency that Complainant did not appear to have been aggrieved by this matter.  The Commission also found that, even considered together, these matters did not rise to the level of a viable claim of harassment.  Nevertheless, the Commission concluded that Complainant’s claim that she was being forced to work outside of her limitations and not provided with reasonable accommodation stated a viable claim of disability discrimination.  The Agency’s duty to provide accommodation is irrespective of any determination made by the Department of Labor, and, therefore, the Agency's dismissal of that matter was improper.  Jennifer S. v. U.S. Postal Serv., EEOC Appeal No. 2020000653 (May 7, 2020).

Complaint Alleged Viable Claim of Unlawful Medical Disclosure.  The Commission found that the Agency improperly dismissed Complainant’s allegation that the Agency disseminated her private medical information for failure to state a claim.  While the Agency determined that the matter was a collateral attack on the Health Insurance Portability and Accountability Act (HIPAA), the Commission noted that its regulations implementing the Rehabilitation Act also provide for the confidentiality of medical records.  The Commission stated that the requirement to maintain confidential medical information applies to medical information obtained from “any employee,” and is not limited to individuals with disabilities.  Although not all medically-related information falls within this provision, documentation or information of an individual's diagnosis is without question medical information that must be treated as confidential except in those circumstances described in the Commission’s regulations.  Therefore, the Commission found that Complainant alleged a viable claim of unlawful medical disclosure which must be investigated before a decision could be made on the merits of that claim.  Shanti N. v. U.S. Postal Serv., EEOC Appeal No. 2019005987 (Feb. 21, 2020).

Complainant Stated Viable Claim of Disability Discrimination.  The Commission found that the Agency improperly dismissed Complainant’s claim of disability discrimination.  Complainant alleged that he was ridiculed by his supervisors and co-workers because of his disability and was the subject of jokes and sarcastic remarks.  Complainant also alleged that management failed to provide him with appropriate medical assistance on one occasion, and stated, on appeal, that he was denied reasonable accommodation.  By alleging a pattern of disability-based harassment, Complainant sufficiently asserted a viable claim of hostile work environment that required further investigation.  Dewitt L. v. Dep’t of the Army, EEOC Appeal No. 2019004922 (Nov. 6, 2019).

Complaint Stated Viable Claim of Retaliation.  Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity.  The Agency dismissed Complainant's complaint for failure to state a claim, reasoning that the alleged incidents were not reasonably likely to deter Complainant or others from engaging in protected activity.  On appeal, the Commission found that the Agency’s dismissal was improper.  Complainant alleged that his former supervisor (FS), who he named as a responsible management official in a prior EEO case, made disparaging comments about him at a training, and also commented to a supervisor at Complainant’s current facility that he heard Complainant was continuing to cause trouble.  Complainant alleges that FS was intentionally looking to damage his reputation at his new facility.  The Commission found that these alleged incidents were reasonably like to deter Complainant or others from engaging in protected activity.  Elroy K. v. U.S. Postal Serv., EEOC Appeal No. 2019005742 (Nov. 6, 2019).

Commission Affirmed Agency’s Dismissal of Complaint for Failure to State a Claim.  Complainant, who had retired from the Agency, filed a formal complaint alleging discrimination when a U.S. Court of Appeals denied her petition for a writ of certiorari, and the Agency failed to resolve her prior EEO complaints.  As for Complainant’s first claim, the Commission stated that the EEO process is not the proper forum for Complainant to have raised this challenge.  Any issues related to a court matter must be raised with the court itself and not through the EEO complaint process.  The Commission noted that the second claim was appropriately viewed as a “spin-off” complaint, and, therefore, did not state an independent claim of discrimination.  Complainant should raise any claims regarding the processing of a complaint with the Agency’s EEO Director or during the adjudication of that complaint, and not as a new complaint.  Earl F. v. Fed. Commc’n Comm’n., EEOC Appeal No. 2020002332 (Sept. 3, 2020).

Complaint Properly Dismissed as Attack on Another Proceeding.  Complainant filed a formal complaint, alleging discrimination with regard to a letter from the Office of Personnel Management (OPM)  disallowing her application for disability retirement.  The Agency dismissed  the complaint for failure to state a claim, and the Commission affirmed the decision on appeal.  The Commission  noted that an employee may not use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding.  The EEO complaint process was not the proper forum for Complainant to use in this case, and Complainant should have raised a complaint with OPM since she was challenging actions directly related to the adjudication of her disability retirement application.  The Commission noted that any claims of harassment would have been beyond the 45-day period for EEO Counselor contact.  Jocelyn R. v. U.S. Postal Serv., EEOC Decision No. 2020002543 (Sept. 9, 2020);  Additional Decisions Addressing Dismissals as an Attack on Another Proceeding Include:  Nicki B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020001389 (Sept. 9, 2020) (Complainant’s claims that the Agency discriminated against him with regard to a Freedom of Information Act (FOIA) request collaterally attacked the FOIA proceedings, and are outside the Commission’s jurisdiction.  The Department of Justice guidelines and agency FOIA implementing regulations weare the proper fora to address disputes to FOIA requests;  Hershel B. v. Dep’t of the Treasury, EEOC Appeal No. 2020001555 (Aug. 24, 2020) (Complainant alleged the Agency discriminated against him by denying his OWCP request. The Department of Labor, and not the EEO process is the appropriate forum for a challenge related to the adjudication of worker’s compensation claims); Aline A. v. U.S. Postal Serv., EEOC Appeal No. 2020001874 (Aug. 24, 2020) (Complainant alleged the Agency discriminated against him by signing a grievance settlement prohibiting Complainant from supervising a certain employee.  Complainant did not fully explain how the settlement harmed him, and the matter was best addressed within the Agency’s collective bargaining agreement under which the grievance occurred); Maximo S. v. Dep’t of the Navy, EEOC Appeal No. 2019005568 (Aug. 20, 2020) (The Commission affirmed the Agency’s dismissal of Complainant’s complaint alleging discrimination when, during a Step B grievance meeting, the District Manager questioned him about failing to follow instructions and upheld a  Letter of Warning.  The Commission found that Complainant improperly challenged the outcome of the Step 2 grievance adjudication through his EEO complaint, and, therefore, his complaint failed to state a claim.  The proper forum for Complainant to challenge the denial of his Step 2 grievance was within the grievance process itself);  Emelda F. v. Office of Special Counsel, EEOC Appeal No. 2019004447 (May 26, 2020), request for reconsideration denied, EEOC Request No. 2020004140 (Oct. 27, 2020) (Complainant was neither an applicant for employment nor an employee of the Agency.  Complainant was essentially alleging discrimination concerning the Agency’s adjudication of her prohibited personnel practice claim against the Department of Agriculture where she was employed.  The Commission has long held that an employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding);  Tasia C. v. U.S. Postal Serv., EEOC Appeal No. 2020000820 (Jan. 24, 2020) (Complainant’s allegation that he did not receive a workers’ compensation number from the Department of Labor, constituted an improper collateral attack on a matter squarely within the Department of Labor’s workers’ compensation process.  The Department of Labor was the proper forum to raise a challenge to matters related to the adjudication of a workers’ compensation claim);  Theresia B. v. U.S. Postal Serv., EEOC Appeal No. 2019003473 (Oct. 22, 2019) (Commission affirmed the Agency’s dismissal of Complainant’s complaint raising allegations concerning two Letters of Demand for failure to state a claim.  The Commission noted that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding, and Complainant’s allegations were related to a monetary dispute covered by the Debt Collection Act.  Therefore, Complainant should have raised her challenges under the Debt Collection Act process).

Complaint Properly Dismissed as Spin-Off.  Complainant filed a complaint, alleging the Agency discriminated against him when an Agency representative attempted to intimidate him and his witness by questioning and making statements during a hearing on Complainant’s prior EEO case.  The Commission determined that the Agency properly classified the complaint as a “spin-off,” and, as such, Complainant did not state a claim.  Such claims should be processed as part of the original complaint.  Therefore, the Commission affirmed the Agency’s decision to dismiss the complaint. Bart L. v. U.S. Postal Serv., EEOC Appeal No. 2020002912 (Aug. 13, 2020).

Dismissal of Complaint Filed by Applicant for Research Grant Was Proper. Complainant filed a complaint, alleging the Agency discriminated against him on the bases of disability and reprisal when it denied his request for a mentor prior to Complainant’s submission of a grant proposal.  The Agency dismissed the complaint for failure to state a claim, and the Commission affirmed the dismissal on appeal.  The Commission concurred with the Agency’s finding that Complainant was neither an employee, nor an applicant for employment with the Agency.  Rather, Complainant was an applicant for a research grant from the Agency, which did not give him standing to file an EEO complaint.  Kevin A. v. Dep’t of Veterans Affairs, EEOC Decision No. 2020002361 (Aug. 13, 2020).

Complaint Filed by Volunteer Properly Dismissed.  Complainant, a volunteer Veteran’s Assistant, filed a complaint alleging the Agency subjected him to discrimination and harassment based on his disabilities, including threatening to bar him from its facility, and removing him as a volunteer.  The Agency dismissed the complaint for failure to state a claim, asserting that Complainant was the beneficiary of the Vocational Rehabilitation Program, and not an employee.  On appeal, the Commission noted that its regulations apply to employees and applicants for employment.  The Commission has repeatedly held, however, that participants in the Agency’s  Vocational Rehabilitation Work Study Program are not employees.  The Commission agreed with the Agency that Complainant did not raise facts suggesting that he should be considered an employee, and affirmed the dismissal of the complaint.  Anton S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020002168 (July 22, 2020).

Commission Affirmed AJ’s Dismissal of Complaint Because Agency Was Not Joint Employer. Complainant worked as a Physician employed by a staffing firm as a contractor with the Agency, and filed a formal complaint alleging discrimination when he was passed over for training, and terminated from his contract with the Agency.  The Commission affirmed an AJ’s decision granting the Agency’s motion to dismiss the complaint, determining Complainant could not be considered an employee of the Agency. The Agency played no role in Complainant’s termination.  Further, Complainant’s daily schedule, assignments, training, and responsibilities all remained with the staffing firm, and the firm provided administrative and managerial support for Complainant’s position.  The firm supervisor had to ensure Complainant met the training requirements, kept track of the training requirements, and provided him with all training.  Complainant’s scheduling and availability were coordinated by the staffing firm, and Complainant also admitted having very little interaction with the Agency beyond conducting the physical exams with the employees or potential employees of the Agency.  Complainant also conceded he was terminated by the staffing firm, and Complainant failed to assert that the Agency or any Agency employee was involved with the decision to terminate his employment. The record showed that the firm had issues regarding Complainant’s availability generally and beyond the work he conducted with the Agency.  As such, the staffing firm alone decided not to use Complainant any further. The Commission found that the Agency did not have sufficient control over Complainant’s employment to be his common law joint employer.  Andrew L. v. Dep’t of Health & Human Serv., EEOC Appeal No. 0120182154 (Feb. 25, 2020); request for reconsideration denied, EEOC Request No. 2020003263 (Sept. 24, 2020);  Additional Decisions Addressing the Issue of Joint Employment Include: Felicidad S. v. Dep’t of Def., EEOC Appeal No. 2019003976 (Nov. 6, 2019) (while Complainant worked at the Agency’s facilities for nine years, and the Agency exerted some control over Complainant when it revoked her access to its worksite, the evidence of record indicated that the Agency did not exert sufficient control to be considered a joint employer.  Complainant identified herself as a contractor, and acknowledged that contract supervisors controlled the means and manner of her job.  The contractor also offered Complainant a severance package);  Joanna G. v. Dep’t of the Navy, EEOC Appeal No 2019003599 (Oct. 30, 2019) (while the Agency provided office space, equipment, and access to Agency networks, the contractor could change its staff, and set the work hours.  In addition, Complainant’s immediate supervisor was a contract employee and the contractor provided pay, benefits, and tax withholdings.  The Commission also noted the relatively short length of the work relationship and the intent of the parties in finding that the Agency did not exert sufficient control over Complainant to be considered a joint employer); Archie D. v. Tenn. Valley Auth., EEOC Appeal No. 2019003604 (Oct. 30, 2019) (the contractor decided where to assign Complainant, and Complainant alleged that a contract supervisor created a hostile work environment.  Complainant did not dispute that he was supervised by employees of the contractor, and the record showed that Complainant considered himself to be a contractor.  Thus, the Agency properly dismissed the complaint).

Allegation that a Co-worker Filed EEO Complaint Against Complainant Failed to State Viable Claim.  Complainant alleged that the Agency subjected him to reprisal when he was informed that a co-worker filed a hostile work environment claim against him, and he was not given the opportunity to defend himself. The Commission affirmed the Agency’s final decision dismissing the claim for failure to state a claim.  The Commission has previously held that a complainant fails to state a viable claim of retaliation when an agency is investigating allegations of discrimination that have been made by another employee who has named the complainant as the perpetrator.  Without more, this principle applied squarely to Complainant’s complaint.  Colby P. v. Dep’t of the Treasury, EEOC Appeal No. 2019001963 (Oct. 11, 2019).

Summary Judgment

Summary Judgment Affirmed.  The Commission affirmed the AJ’s decision on summary judgment finding that Complainant failed to offer sufficient evidence that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal (prior protected EEO activity) when it delayed issuing her a monetary achievement award.  Complainant and a coworker (“C1,” white, male) were both nominated for “on the spot” awards for successful contributions to an Agency project during the summer of 2016.  C1 received his award on June 1, 2017.  Complainant did not receive her award until September 22, 2017, and it was $750 less than C1’s award.  Complainant alleged that her supervisors and the supervisors in the office that distributed the awards encouraged the delay in reprisal for Complainant’s prior EEO activity.  Additionally, Complainant, and the Union Vice President alleged generally that Caucasian men were treated more favorably than Black women.  The Commission initially noted that while Complainant argued that the AJ erred in not providing her an opportunity to engage in discovery, she was unable to identify any questions of fact that warranted further development.  Specifically, Complainant did not offer sufficient evidence to establish or give rise to a question of fact to show that the delay in her award resulted from discriminatory or retaliatory intent.  Although Complainant’s award was processed later than C1’s, the individual who processed the award stated that the delay resulted from an oversight, apologized to Complainant in person, and processed the award at the next possible opportunity.  Additionally, Complainant’s and the Union Vice President’s characterization of the work environment, although serious, cannot overcome summary judgment without evidence specific to the issue at hand.   Louise S. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019005381 (Aug. 31, 2020).

Summary Judgment Affirmed.  Complainant, a Security Specialist, alleged that the Agency subjected him to a hostile work environment on bases of national origin and reprisal.  Specifically, Complainant pointed to the downgrades of his performance evaluations, a Memorandum of Counseling, and a Letter of Reprimand, as well as the requirement that he provide a signed authorization to attend training.  Following an investigation, an AJ issued a decision without a hearing finding no discrimination.  On appeal, the Commission affirmed the AJ’s issuance of a decision without a hearing.  The Commission concluded that the AJ correctly determined that there were no issues of material fact or credibility to merit a hearing, and the record had been adequately developed.  The Commission agreed with the AJ that the Agency articulated legitimate, non-discriminatory reasons for its actions against Complainant.  Complainant did not follow instructions on the authorization form for training, and refused to submit the signed form as required.  With regard to the performance evaluation, the record was devoid of specific reasons as to why Complainant should have maintained his higher rating, and, as the Agency stated, his performance ratings were directly correlated with the measure of his performance.  In short, Complainant did not show that the downgrade of his performance evaluations was motivated by discriminatory animus.  Last, the Commission concurred with the AJ’s findings that the work environment was not severe or pervasive enough to rise to the level of actionable harassment. Therefore, the Commission concluded that the AJ’s finding of no discrimination was supported by the record.  German D. v. Dep’t of the Army, EEOC Decision No. 2019000687 (Aug. 19, 2020).

Summary Judgment Affirmed.  The Commission affirmed the AJ’s decision on summary judgment finding that Complainant failed to prove the Agency discriminated against him when it relieved him of his Acting Supervisor detail.  Complainant asserted that he asked to be allowed to perform the Acting Supervisor position as a reasonable accommodation, and the record shows that Complainant served as an Acting Supervisor for approximately two years.  The Agency asserted that it terminated Complainant’s detail in order to allow other employees the opportunity to serve in the Acting position.  Complainant then bid on a City Carrier position.  The Commission found that the record was adequately developed, and Complainant failed to identify material facts in dispute.  Even construing any inferences raised by the undisputed facts in Complainant’s favor, a reasonable fact finder could not find discrimination, and, therefore, the AJ properly issued a decision without a hearing.  The Commission determined that, even assuming Complainant was a qualified individual with a disability, he did not establish that he was entitled to an Acting Supervisor position or a promotion as a reasonable accommodation.  Such positions were temporary developmental assignments used to train employees.  Even though Complainant was allowed to perform the duties associated with the position for a period of time, he was not occupying a vacant, funded position.  Complainant also failed to establish that the Agency’s articulated nondiscriminatory reason for its action, that is Complainant was removed from the detail position to provide developmental opportunities for other employees, was a pretext for discrimination.  Cyrus A. v. U.S. Postal Serv., EEOC Appeal No. 2019000685 (Jan. 22, 2020), request for reconsideration denied, EEOC Request No. 2020002551 (Sept. 11, 2020).

Summary Judgment Affirmed.  Complainant filed a complaint alleging that the Agency discriminated against her when she was not selected for a Labor Liaison position. The AJ issued a decision without a hearing finding that the Complainant failed to prove that she was discriminated against, and the Commission affirmed the decision on appeal.  Complainant argued that there was a genuine issue of material fact at issue, specifically, that she was better qualified than the selectee because she ranked higher on the best qualified list.  The Commission found, however, that the fact that Complainant was ranked higher on the best qualified list, by itself, did not create a dispute because the ultimate selection decision was not based solely on those rankings.  Management explained that the selectee was chosen because she interviewed well, and had extensive experience working with labor group representatives, which was directly related to the position.  Therefore, the Commission found that the issuance of a decision without a hearing was appropriate.  Lidia B. v. Dep’t of Labor, EEOC Appeal No. 0120182004 (Oct. 11, 2019).

Summary Judgment Reversed.  Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (46) when she was removed from her detail as an Acting Supervisor (204-B) and no longer allowed to act as in that capacity.  The AJ, over Complainant’s objections, issued a decision without a hearing finding no discrimination.  On appeal, the Commission found that the record was inadequately developed, and the AJ improperly determined there were no genuine issues of material fact or credibility that merited a hearing.  The Commission disagreed with the AJ’s determination that the Agency articulated a legitimate, non-discriminatory reason for removing Complainant from her detail.   Although the record indicated that the supervisor was required to reduce the number of supervisors on Tour 2, the record was devoid of any evidence as to why she selected Complainant as opposed to other employees.  The supervisor provided only vague generalities such as attendance, work performance, and “drive,” as factors for the decision, but she did not provide any information about Complainant’s specific attendance record, work performance, or “drive,” and she was not asked any questions about these matters.  Moreover, the record contained no information about these factors with respect to any of the comparators who were retained in their 204-B positions.  The Commission noted the absence of an affidavit from the official the supervisor stated was also involved in the decision to terminate Complainant’s detail.  Finally, there was no explanation why Complainant was not subsequently allowed to serve as a 204-B.  The Commission noted that truncation of the hearing process, while material facts are still in dispute and the credibility of witnesses is still at issue, improperly deprives Complainant of a full and fair investigation of her claims.  Therefore, the Commission concluded that there were simply too many unresolved issues which required an assessment as to the credibility of the various management officials, coworkers, and Complainant that judgment as a matter of law for the Agency should not have been granted.  Britany N. v. U.S. Postal Serv., EEOC Appeal No. 2019003505 (Aug. 24, 2020).

Summary Judgement Reversed.  Complainant filed an EEO complaint alleging discrimination on the basis of sex (female) and in reprisal for former EEO activity, when her supervisor (female) allegedly expressed romantic interest in Complainant, which she did not reciprocate.  Complainant alleged that as a result of the lack of romantic reciprocation, Complainant received a negative work review.  Complainant also stated that her supervisor influenced the denial of Complainant’s request for telework; denied Complainant’s re-submitted request for telework; interrogated her after she requested a detail; visited her detail location; and twice requested Complainant’s whereabouts on detail.  The AJ granted the Agency’s motion for summary judgment, and issued a decision without a hearing dismissing some allegations, and finding that Complainant failed to prove her claims of discrimination and harassment.  The Commission  found that the AJ improperly issued a decision on summary judgment, because the record was inadequately developed.  An AJ may dismiss a complaint without a hearing if there is no genuine issue of material fact.  However, an AJ may not issue a decision without a hearing in a matter that can only be resolved by weighing conflicting evidence.  Complainant attempted to obtain documents during discovery to no avail and made the AJ aware of the issue.  There were outstanding requests for documents by the Investigator, and Agency officials failed to respond to the Investigator’s requests.  Further, the AJ relied upon details from Complainant’s supervisor who had retired and did not provide an affidavit or any other evidence in the matter.  Therefore, the Commission remanded the claim for a hearing.  Celine B. v. Dep’t of Health & Human Serv., EEOC Appeal No. 0120181289 (May 5, 2020).

Summary Judgment Reversed.  Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment in reprisal for his prior EEO activity after he reported his supervisor was sexually harassing one of Complainant’s subordinates.  The AJ issued a decision without a hearing, finding that Complainant failed to establish that he was subjected to retaliatory harassment as alleged.  On appeal, the Commission concluded that summary judgment in favor of the Agency should not have been granted.  The AJ failed to view the evidence in a light most favorable to Complainant and improperly determined that there were no genuine issues of material fact that merited a hearing.  The AJ also made improper credibility determinations.  While the AJ determined that the supervisor did not issue a letter of caution based on retaliatory motives, Complainant noted that the supervisor contacted Human Resources the day after the supervisor was interviewed about the alleged sexual harassment, and then allegedly made disparaging remarks about Complainant, imposed unreasonable deadlines on Complainant’s assignments, and questioned Complainant in a hostile manner.  The Commission noted that when credibility is at issue, there is a need for “strident cross-examination,” and summary judgment is improper.  In this case, there were too many unresolved issues that required a hearing.  Mark D. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019002035 (Jan. 24, 2020).

Summary Judgment Reversed.  The Commission vacated the AJ’s decision on summary judgment finding no discrimination.  The Commission found that the record was inadequate to render a decision and that there were genuine issues of material fact in dispute.  Complainant alleged the Agency’s policy of using salary history to determine the starting salaries of external hires caused a disparate impact on females and African Americans.  As part of discovery, Complainant requested information on the pay policy for all external hires between 2013 and the present as well as information on their former salaries, starting salaries, and their race, color, and sex at the time of hire.  The Agency objected, and Complainant filed a Motion to Compel, which the AJ denied, having apparently mistaken one interrogatory requesting information on all external hires between 2013 and 2015 with a similar interrogatory requesting different information for external hires to a certain position.  The Commission found the information requested in the denied interrogatory was relevant to Complainant’s disparate impact claim and the AJ improperly denied this discovery request.  The Commission concluded that the record must be further developed through additional discovery and a hearing to determine exactly what the Agency's policies and practices were for using salary history in determining the starting salaries of external hires, and the impact those policies and practices had on female and African-American employees.  Nancy D. v. U.S. Postal Serv., EEOC Appeal No. 0120180441 (Dec. 13, 2019).

Timeliness

Complainant Timely Initiated Counseling within 45 Days of Effective Date of Action.  The Commission reversed the Agency’s dismissal of Complainant’s EEO complaint for untimely EEO counselor contact.  Complainant contacted an EEO Counselor alleging the Agency discriminated against him when it issued him a Notice of Removal.  While the Agency stated the alleged discriminatory event occurred on July 8, 2019, the Commission found that the effective date of removal was August 7, 2019.  The Commission measures the beginning of the limitation period from the effective date of the personnel action. Therefore, Complainant’s contact with the EEO counselor  on September 9, 2019, was timely, as it was within 45 days of the effective date of his removal.  Marlin B. v. U.S. Postal Serv., EEOC Appeal No. 2020002422 (Sept. 30, 2020).  Additional Decisions Finding Contact within 45 Days of Effective Date of Alleged Discrimination Was Timely Include:  Shaniqua S. v. U.S. Postal Serv., EEOC Appeal No. 2019005726 (Nov. 6, 2019) (Complainant timely initiated EEO contact on August 25, 2017, after her July 2017 termination.  While Complainant may have learned that the Agency intended to terminate her in December 2016, the record showed that Complainant’s separation from employment was effective on July 18, 2017).

Complainant Raised Timely Claim of Ongoing Compensation Discrimination.  The Commission reversed the Agency’s dismissal of Complainant’s claim of hostile work environment, that included an allegation of unequal pay, for untimely EEO counseling.  The Commission found that Complainant raised an ongoing claim of compensation discrimination under the Lily Ledbetter Fair Pay Act.  While Complainant’s appointment with the Agency had expired, Complainant likely received a paycheck for her services with the Agency at some point after the expiration of the appointment.  The record also showed that Complainant continued to be employed on a part-time basis with the Agency.  Therefore, since Complainant received a paycheck within the 45 days prior to her initial EEO contact, her compensation claim was timely raised.  The Commission reiterated that Complainant’s discriminatory pay claim was part of her hostile work environment claim, and, as such, that matter was also timely.  Earlie P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020000223 (Aug. 20, 2020).

Complainant Timely Contacted EEO Counselor.  The Agency dismissed Complainant’s complaint for failure to timely contact  the EEO Counselor, asserting that Complainant was notified of his proposed removal  on July 5, 2019.  On appeal, the Commission noted, however, that the removal was not effectuated on that date.  According to the EEO Counselor’s report, the Agency decided to suspend Complainant  effective on October 27, 2019, and issued him a Letter of Requirement.  Therefore, the complaint concerned the subsequent discipline that occurred as a result of the proposed removal, and Complainant’s contact with the EEO Counselor on October 24, 2019, was timely.  Leonard P. v. Dep’t of the Navy, EEOC Appeal No. 2020002490 (Aug. 13, 2020).

Complaint Improperly Dismissed for Failure to Timely Initiate EEO Contact.  The Commission found that the AJ improperly dismissed Complaint’s complaint for untimely EEO counselor contact.  The Commission has held that in order to establish EEO Counselor contact, an individual must contact an Agency official logically connected to the EEO process and exhibit an intent to begin the EEO process.  The Commission found that Complainant initiated EEO contact when he called the Agency’s Office of Resolution Management’s (ORM) automated service.  Complainant’s termination letter provided that he could contact ORM if he believed he had been subjected to discrimination, and Complainant contacted ORM at the phone number set forth in the letter.  In addition, the record contains documentation showing that Complainant attended training during which employees were informed that they should initiate EEO contact by contacting ORM at the specified number.  The Agency acknowledged that Complainant contacted ORM within the 45-day limitation period.  Therefore, the Commission concluded Complainant contacted someone logically connected to the EEO process and exhibited an intent to begin the EEO process when he contacted ORM’s automated service.  Ambrose M. v. Dep’t of Veterans Affairs., EEOC Appeal No. 2019000257 (Apr. 24, 2020).

Complainant Timely Contacted EEO Counselor.  Complainant filed a formal complaint, alleging the Agency discriminated against him on the bases of a disability and reprisal, including failing to accommodate his medical restrictions, forcing him to retire, and upholding  a decision of proposed removal.  The Agency dismissed the complaint for untimely EEO Counselor contact.  On appeal, Complainant emphasized that the Letter of Removal became effective on July 19, 2019, and that he made timely EEO contact on August 31, 2019.  The Commission noted that even if it accepted the Agency’s September 3, 2019 date of contact, such contact would still be timely given the effective date of removal, and the fact that September 3 was the Tuesday following the Labor Day holiday.  Further, while Complainant’s personnel form showed his last day in pay status was June 30, 2019, that alone did not necessarily establish that Complainant retired on that day. Therefore, the Commission reversed the Agency’s dismissal.  Silas T. v. U.S. Postal Serv., EEOC Appeal No. 2020002178 (Apr. 13, 2020).

Complainant Timely Contacted EEO Counselor Upon Reasonably Suspecting Discrimination.  The Commission reversed the Agency’s dismissal of Complainant’s complaint for failure to timely contact an EEO counselor.  Complainant contended that she reasonably suspected discrimination upon learning that the selectee was of a different sex than herself, and contacted the EEO Counselor within 45 days.  Complainant stated that she did not suspect discrimination at the time she was notified of her non-selection.  The Commission noted that the Agency did not point to specific facts to support its contention that Complainant should have developed a reasonable suspicion of discrimination prior to the time she learned of the selectee’s sex.  Complainant’s contact with the EEO counselor 41 days after that time was therefore timely.  Cleotilde G. v. Dep’t of Def., EEOC Appeal No. 2020000305 (Feb. 11, 2020).

Commission Waived Time Limitation for Contacting EEO Counselor.  Complainant filed a formal complaint alleging discrimination when the Agency did not grant her request to reinstate her exam score for a position in 2018.  The Agency dismissed the complaint for failure to timely contact an EEO Counselor, noting that Complainant’s contact in April 2019 was beyond the 45-day limitation period.  On appeal, the Commission found sufficient justification to waive the applicable limitation period.  Complainant was a temporary employee, and asserted that she was unaware of the time limit for seeking EEO counseling.  While an Agency manager stated that an EEO poster dated November 2018 was on display in lobbies and bulletin boards in facilities at the time of Complainant’s complaint, the Agency did not claim Complainant received any other notice of the relevant time frames.  Further, Complainant asserted that the poster was not conspicuously posted, and submitted a photo of the referenced EEO poster in an inaccessible location, and partially covered by a bookshelf.  The Commission found that Complainant also credibly stated that she had not seen the poster prior to the Agency’s final decision.  Therefore, the Commission found that waiver of the applicable time limit was justified, and the dismissal of Complainant’s claim was improper.  Bell S. v. U.S. Postal Serv., EEOC Appeal No. 2020000691 (Jan. 29, 2020).

Complainant Timely Initiated Claim of Harassment.  The Agency dismissed Complainant’s complaint for failure to timely contact an EEO Counselor, asserting that Complainant learned she was being investigated by the Office of Inspector General and reassigned more than 45 days prior to initiating EEO contact.  The Commission reversed the Agency’s decision on appeal, stating that Complainant was alleging an ongoing claim of harassment/hostile work environment.  Specifically, Complainant asserted that her duties continued to change, and she was not allowed to telework or attend monthly Executive Assistant award meetings.  The alleged incidents were ongoing and continued up until the 45 days preceding her EEO contact.  Therefore, Complainant’s entire hostile work environment claim was timely.  Queen L. v. Dep’t of Justice, EEOC Appeal No. 2019004002 (Oct. 3, 2019).

Complainant Failed to Timely Contact EEO Counselor within 45 Days of Reasonably Suspecting Alleged Discrimination.  Complainant filed a complaint, alleging numerous incidents that occurred from September 2017 to March 2018, including being attacked by a coworker, and having his performance standard lowered. Complainant contacted an EEO Counselor on May 5, 2019. The Agency dismissed the complaint for untimely contact with the EEO Counselor, stating that Complainant did not contact the EEO Counselor until more than a year after the most recent incident.  On appeal, Complainant argued that he did not reasonably suspect discrimination until he learned of incidents involving comparator employees in April 2019. The Commission rejected this argument. Although the time limitation is not triggered until a complainant reasonably suspects discrimination, the Commission found that Complainant should have reasonably suspected discrimination at or around the time of each incident.  With the exception of one incident, there was no logical connection to the discovery of the comparators, and Complainant did not initiate EEO Counseling on any matter until more than one year after the most recent event.  Therefore, the Commission affirmed the Agency’s decision. Ambrose M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020000192 (Sept. 9, 2020).

Agency Properly Dismissed Complaint for Untimely EEO Counselor Contact.  The Commission affirmed the Agency’s dismissal of Complainant’s 2019 complaint alleging discrimination regarding her 2014 reassignment for failure to timely contact an EEO Counselor.  Complainant  presented no persuasive arguments or evidence to warrant an extension of the time limit for initiating EEO Counselor contact.  The Commission rejected Complainant’s assertion that she was not aware of the discrimination until she saw information in her personnel file, noting that it was clear Complainant knew she had been reassigned and the resulting nature of her work duties five years before her EEO contact.  Complainant explained that she sought EEO counseling in 2019 because when she reviewed her personnel file, she learned for the first time that the reassignment may have violated the collective bargaining agreement.  The Commission held, however, that Complainant’s rationale was inadequate justification for excusing the delay in pursuing her Title VII retaliation claim.  Juli Z. v. Dep’t of the Treasury, EEOC Appeal No. 2020002420 (Sept. 3, 2020).

Complaint Properly Dismissed for Untimely EEO Counselor Contact.  The Commission affirmed the Agency’s dismissal of Complainant’s EEO complaint for untimely EEO Counselor contact.  Complainant filed a formal complaint alleging discrimination on the basis of disability after a Supervisory Human Resources Specialist told him in April 2019 that there were no affirmative action programs available for hiring, placement, or advancement of people with disabilities.  Complainant did not initiate contact with an EEO Counselor, however, until August 5, 2019.   While Complainant asserted that he initiated contact past the time limit in order to investigate the matter and consult with other people, utilization of agency procedures, union grievances, or other remedial processes does not toll the time limit for EEO Counselor contact.  Therefore, Complainant’s contact with the EEO Counselor outside the 45 days of the effective date of the discrimination was untimely.  Werner A. v. Dep’t of the Navy, EEOC Appeal No. 2020001338 (Aug. 24, 2020).

Complainant Failed to Timely Contact EEO Counselor.  Complainant initiated EEO contact in 2019, alleging that the Agency discriminated against him when he was forced to resign in 2015 due to a hostile work environment.  The Agency dismissed the complaint for failure to timely contact an EEO Counselor, and the Commission affirmed the Agency’s decision.  While Complainant contacted the Agency’s Resolution Support in July 2015, he did not exhibit an intent to begin the EEO process.  While Complainant did inquire about EEO counseling in April 2018, that contact was still outside of the 45-day timeframe.  The Agency noted that Complainant was aware of his rights as he attended EEO training.  The Commission has consistently held that a complainant must act with due diligence in the pursuit of his rights, and, in this case, Complainant presented no evidence warranting an extension of time for initiating the EEO process.  Mike G. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019004798 (Aug. 10, 2020).

Complaint Properly Dismissed for Untimely EEO Counselor Contact.  The Commission affirmed the Agency’s dismissal of Complainant’s EEO complaint for untimely EEO counselor contact.  Complainant alleged the Agency discriminated against her when it placed her on “Emergency Placement” in July 2018, and issued her a Notice of Removal in August 2018 for unacceptable conduct.  The Commission found Complainant waited until May 2019, before she contacted an EEO Counselor.  Complainants must raise discrimination claims with an EEO Counselor within 45 days of the latest alleged discriminatory event.  The Commission noted Complainant failed to sufficiently justify her untimeliness.  Vernia M. v. U.S. Postal Serv., EEOC Appeal No. 2020002265 (May 13, 2020).

Agency Properly Dismissed Complaint for Untimely EEO Counselor Contact.  The Commission found that the Agency properly dismissed Complainant’s formal complaint alleging discrimination regarding the failure to recommend Complainant for a performance award and quality step increase for failure to timely contact an EEO Counselor.  Both of the actions occurred on or about May 3, 2019.  Complainant, however, failed to contact an EEO Counselor until July 8, 2019, which was beyond the 45-day limitation period.  The Commission rejected Complainant’s assertion that she did not suspect discrimination until May 29 when management failed to respond to her request for an explanation.  Complainant acknowledged that she did not believe the decisions were correct when she was told, on May 3, that she would not receive an award or step increase.  In addition, Complainant was aware that her coworkers received an award the previous year, and filed a prior EEO complaint on that matter.  Therefore, the Commission concluded that Complainant reasonably suspected discrimination when she learned she was not being recommended for the award and step increase on or about May 3.  To the extent Complainant asserted that she was waiting for an explanation, the Commission noted that utilization of agency procedures, and other remedial processes does not toll the limit for contacting an EEO Counselor.  Tiffanie S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020000484 (Jan. 24, 2020).

Complainant’s Hospitalization Excused Delay in Filing Complaint.  The Commission reversed the Agency’s dismissal of Complainant’s complaint on grounds of untimeliness.  Complainant requested that the delay in filing his complaint be excused, explaining that he was hospitalized twice during the 15-day limitation period for filing his complaint.  The Commission noted that the UPS tracking data for the notice of right to file a complaint merely showed the notice was delivered to a particular city, and did not state to whom it was delivered.  There was no evidence that Complainant actually received the Notice.  Therefore, the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness.  While the Agency argued that Complainant failed to inform it of his new address, the Commission reiterated that Complainant was hospitalized, and was on numerous medications, for which he provided documentation.  Therefore, there was sufficient evidence to excuse the relatively  short delay in Complainant’s filing of his complaint.  The Commission noted that there was no indication the Agency was harmed by such a delay.  Walker S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020000434 (Aug. 27, 2020).

Agency’s Explicit Extension of Time Limit Precludes Subsequent Dismissal as Untimely. Complainant filed a formal complaint alleging unlawful discrimination and reprisal.  After the Agency requested clarification from Complainant’s attorney as to why the complaint was not timely filed, Complainant’s attorney responded that she was specifically retained for a prior complaint and had previously requested that the instant matter be consolidated with that prior complaint.  The Agency accepted the instant complaint, and, in its letter of acceptance, explicitly excused the delay in filing, applying the principle of equitable tolling.  On appeal, the Commission found that the Agency improperly dismissed the formal complaint as untimely.  The Commission stated that the Agency did not merely accept the instant complaint for investigation, but waived the limitation period.  Felton S. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020003087 (June 25, 2020).

Agency Failed to Establish Complaint Untimely Filed.  Complainant filed a formal complaint on January 3, 2020, alleging the Agency discriminated against her, citing incidents surrounding her termination during her trial period.  The Agency mailed Complainant a Notice of Right to File a Formal Complaint on December 13, 2019, but it was returned to the Agency as unclaimed.  The Agency stated that it then resent the Notice on December 18, 2019.  The Agency dismissed the complaint as untimely filed.  On appeal, the Commission  noted that a complaint must be filed within 15 days of Complainant receiving  notice of the right to do so.  The Commission stated, however, that the Agency has the burden of providing evidence to support its decision.  Here, the Agency failed to establish when Complainant received the Notice.  Complainant did not receive the first copy of the Notice, and the Agency could not assume that the second copy, which was sent by regular mail and did not contain a certificate of mailing, was actually mailed on the day it was dated.  As such, the Commission could not make any reasonable presumptions as to when Complainant received the Notice, and the Commission reversed the Agency’s dismissal.  Ayanna B. v. Dep’t of Health & Human Serv., EEOC Decision No. 2020002366 (May 21, 2020).  Additional Decisions Finding the Agency Failed to Establish Untimeliness Include:  Dewey R. v. Dep’t of Def., EEOC Appeal No. 2020003187 (Aug. 18, 2020) (the Agency did not have sufficient proof that Complainant actually received the Notice of Right to File a Formal Complaint on the specified date the Agency claimed, because the postal tracking number merely indicated that the Notice was delivered to Complainant’s zip code and city, but did not include a specific street address.  Further, there was no record of anyone actually signing for the document);  Scarlet M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019005240 (Oct. 31, 2019) (While Complainant’s non-attorney representative indicated that she opened and read the email on the date it was sent, Complainant did not open and read the email until three days later.  The record did not contain a “read receipt” or other evidence showing when Complainant actually opened the email.  Therefore, the Agency failed to meet the burden of obtaining sufficient information to support a determination as to timeliness.  Since Complainant’s representative was not an attorney, the applicable time limitation began to run from the date Complainant received the Notice).

Formal Complaint Timely Filed Based on Attorney’s Receipt of Notice of Right to File.  The Commission found that the Agency improperly dismissed Complainant’s complaint on grounds it was untimely.  While the Agency provided evidence that the Notice of Right to File was delivered to Complainant’s address of record on January 7, 2019, Complainant stated that he never received the Notice and the signature on the delivery receipt appeared different from Complainant’s signature on other documents of record.  Further, Complainant was represented by an attorney, and, as such, the timeframe for filing his complaint was based on the date of his attorney’s receipt of the Notice, not Complainant’s.  While the Agency asserted that Complainant did not provide notice of representation, the attorney met with Agency EEO officials when he represented Complainant during mediation.  Therefore, the Commission found that the Agency had sufficient notice that Complainant was represented by an attorney such that it was obligated to send the Notice to him.  The record showed that Complainant filed his complaint within 15 days of his attorney’s receipt of the Notice, and his complaint was therefore timely.  Orson R. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019005308 (Oct. 2, 2019).

Complainant Failed to Provide Adequate Justification for Untimely Complaint.  Complainant filed a complaint alleging discrimination when he was terminated during his probationary period.  The Agency dismissed the complaint, stating it was untimely filed.  Complainant received notice of his right to file a formal complaint on December 12, 2019, but did not file his complaint until January 7, 2020.  The Commission found that Complainant did not offer adequate justification to warrant an extension of the 15-day time limit.  While Complainant  noted that there were two holidays in between the time he received the notice and the time he filed his formal complaint, the time limit is only extended if the 15th day falls on a holiday.  Therefore, the Commission affirmed the Agency’s dismissal.  Carmen V. v. U.S. Postal Serv., EEOC Decision No. 2020002643 (Aug. 13, 2020).

Agency Failed to Meet Burden to Show When Complainant’s Attorney Received Notification of Complainant’s Right to File a Complaint.  The Commission reversed the Agency’s dismissal of Complainant’s complaint as untimely.  Complainant received the Notice of Right to File a Formal Complaint and forwarded it to her attorney by email that same day.  Complainant’s attorney received the official Notice five days later by certified mail and filed the complaint within fifteen days of receipt of the official Notice.  The Commission rejected the Agency’s contention that the attorney received the Notice on the date Complainant sent it by email.  The Commission held the Agency had the burden to obtain sufficient information to support a determination as to timeliness, which it failed to satisfy.  Kimberly H. v. Dep’t of the Navy, EEOC Appeal No. 2020000316 (Dec. 17, 2019).