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The DIGEST of Equal Employment Opportunity Law

Fiscal Year 2021, Volume 4

Office of Federal Operations

September 2021

Selected EEOC Decisions Regarding:

Attorney’s Fees

Class Certification

Compensatory Damages

Dismissals

Findings on the Merits

Under the Rehabilitation Act

Under Title VII

Retaliation

Remedies

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness

______________________________

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

Carlton M. Hadden, Director, OFO
Virginia Andreu, Assistant Director, OFO’s Special Operations Division

Digest Staff
Editor: Robyn Dupont

Writers: Mona Alsaidi, Craig Barkley, Abigail Coleman, Robyn Dupont, Harsha Mikkilineni,
Desmond Nichols, Joseph Popiden, Navarro Pulley,
Nina Rivera, Ellie Stitzer, Camella Woodham

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

 

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 its enforcement work and the investigations of complaints.

The summaries below are neither intended to be exhaustive or definitive as to the selected subject matter, nor are the summaries themselves 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.”

SELECTED EEOC DECISIONS

Attorney’s Fees

Commission Affirmed Award of Attorney’s Fees.  An EEOC Administrative Judge (AJ) found that Complainant failed to prove various claims regarding her working conditions, denial of overtime, and job assignments.  The AJ found, however, that the Agency retaliated against Complainant when management refused to provide her with information during the processing of her EEO complaint, referred to Complainant’s EEO activity in a derogatory manner, and shared information about Complainant with individuals who did not have a legitimate need to know.  The AJ awarded Complainant $41,231.58 in attorney’s fees, among other things.  The Agency did not dispute Complainant’s statement of costs but disputed the attorney’s fee award.  On appeal, the Commission rejected the Agency’s argument that its offer of resolution should limit the amount of attorney’s fees.  The Commission noted that, because the AJ’s decision resulted in relief more favorable than the offer of resolution, Complainant was not barred from further recovery of attorney’s fees.  Moreover, Complainant was the prevailing party and substantially received the relief she sought, including an award of compensatory damages which the Agency accepted.  The Commission also disagreed with the Agency’s contention that Complainant’s prevailing claims were separate from her unsuccessful claims such that the AJ’s 45-percent reduction in attorney’s fees was insufficient.  The Commission noted that the retaliation would not have been discovered but for Complainant’s efforts to pursue her initial EEO claims.  Therefore, the Commission affirmed the AJ’s award of attorney’s fees.  Barbara S. v. U.S. Postal Serv., EEOC Appeal No. 2020002285 (Apr. 14, 2021).

Class Certification

Commission Affirmed Denial of Class Certification.  The Commission affirmed the AJ’s denial of class certification, finding that Complainant failed to show adequacy of representation.  Specifically, Complainant was not an attorney; did not retain an attorney; and did not possess the necessary skills and experience to represent the class.  Complainant also did not show he had adequate funds, or could obtain the funds needed to adequately represent the class.  Finally, no attorney had been identified who would be willing to represent the class.  The Commission also found that the class complaint failed to meet the elements of commonality and typicality.  There was no evidence that other potential class members had the same interests and suffered the same harm as Complainant, and Complainant’s broad, conclusory allegations of class-wide harm alone did not establish commonality.  Johnson v. Envtl. Prot. Agency, EEOC Appeal No. 2019005355 (May 19, 2021).

Commission Affirmed Class Certification.  The Class Agent filed an individual and class complaint alleging discrimination based on race and/or national origin.  Specifically, he asserted that the Agency’s policies affirmatively discouraged or excluded employees with family ties to Puerto Rico from applying for opportunities to assist with disaster relief on the island.  An AJ issued a decision certifying the class.  In its final order, the Agency identified the class as those Border Patrol Agents discriminated against based on race/national origin (Hispanic/Puerto Rican), or association with others of Hispanic/Puerto Rican descent, who were excluded or discouraged from applying for or denied the opportunity to participate in certain temporary assignments to conduct law enforcement operations and assist with humanitarian efforts.  On appeal, the Commission affirmed the AJ’s decision, initially finding that while the AJ did not specify the definition of the class in her decision, the Agency’s final order recognized the criteria for class membership. The Commission also found that the allegations were based on the race and national origin of the class members and their associations with others of that race or national origin, not on residency.  The Commission concluded that the commonality requirement for class certification was met because members of the class were affected by the same Agency action or policy.  In addition, the Class Agent’s claim was typical of the class, and the record showed that over 40 additional employees filed similar claims of discrimination.  Finally, the Class Agent’s attorney was qualified to represent the class.  Felix Z. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020005328 (Apr. 29, 2021).

Compensatory Damages

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

Commission Increased Non-Pecuniary Damages Award to $35,000.  The Commission previously found that the Agency discriminated against Complainant when it failed to pursue reassignment as an accommodation for his disability.  The Agency subsequently awarded Complainant $2,000 in non-pecuniary compensatory damages.  The Commission increased the award to $35,000 on appeal.  The Commission rejected the Agency’s assertion that a previous decision encompassed non-pecuniary compensatory damages for harm Complainant suffered through the time of the date of the Commission’s original decision.  The amount of non-pecuniary damages awarded at that time was based on evidence previously submitted.  In the instant complaint, the Commission found discrimination with respect to multiple incidents ranging from May 2017 through December 2018, all stemming from the Agency’s continued failure to accommodate Complainant during that time period.  Thus, Complainant was entitled to non-pecuniary compensatory damages for these additional acts separate from his prior complaint.  Complainant and his wife submitted detailed affidavits confirming that Complainant continued to suffer severe gastrointestinal issues, suicidal thoughts, and a loss of consortium.  Complainant stated that his symptoms continued at least until March 2020.  Therefore, the Commission determined that $35,000 more appropriately compensated Complainant for the exacerbation and continuation of his medical condition and symptoms beyond the period encompassed in the Commission’s earlier decision.  The Commission affirmed the Agency’s award of pecuniary damages.  Bill A. v. U.S. Postal Serv., EEOC Appeal No. 2020003332 (June 3, 2021).

Commission Increased Award of Non-Pecuniary Damages to $30,000.  In a prior decision, the Commission found that the Agency discriminated against Complainant when it denied him a religious accommodation, and ordered the Agency, among other things, to investigate his claim for damages.  The Agency awarded Complainant $10,000, and the Commission increased the award on appeal.  In addition to his own statement, Complainant provided statements from his physician, stating that Complainant was under treatment and taking medication for anxiety and sleep difficulties caused by the financial stress from the denial of his religious accommodation. The Commission found that $30,000 in non-pecuniary compensatory damages adequately compensated Complainant for the harm he suffered as a result of the discrimination.  The Commission stated that non-pecuniary damages are designed to remedy the harm caused by the discrimination rather than punish the Agency for its actions, and the $30,000 award considers the nature of the Agency’s actions, and the degree of harm related to the discrimination.  Stanton S. v. U.S. Postal Serv., EEOC Appeal No. 2019004097 (Apr. 15, 2021).

Commission Affirmed Agency’s Award of $15,000.00 in Non-Pecuniary Damages.  The Commission previously found that the Agency discriminated against Complainant based on his disability when it rescinded a job offer.  The Agency subsequently awarded Complainant $15,000 in non-pecuniary damages, and the Commission affirmed the award on appeal.  The Commission stated that Complainant suffered some harm as a result of the Agency’s rescission of the job offer; however, he also had a number of preexisting physical and mental conditions.  Based on the evidence submitted, the Commission determined that Complainant failed to show his physical and mental conditions were directly related to or exacerbated by the Agency’s discrimination.  There was no evidence Complainant sought any medical assistance for the emotional distress or depression he claimed he suffered, or that he sought counseling as a result of the discrimination.  The Commission concluded that $15,000 was sufficient to compensate Complainant for the harm suffered as a result of the discrimination.  Mark D. v. Dep’t of Justice, EEOC Appeal No. 2020003543 (June 7, 2021).

Compensatory Damage Award of $9,500 Affirmed.  An AJ previously found that the Agency discriminated against Complainant on the basis of disability when it issued her a suspension and failed to provide her with reasonable accommodation.  The AJ subsequently awarded Complainant $9,500 in non-pecuniary damages.  Complainant provided conflicting statements in support of her claim for damages, initially stating she did not suffer any financial or medical issues due to the discrimination, but later testifying that she experienced long-term, on-going stress and headaches.  Thus, the AJ did not find Complainant to be credible, and her claim was not supported by evidence.  The Commission affirmed the award, finding it was supported by sufficient evidence in the record. Candice B. v. U.S. Postal Serv., EEOC Appeal No. 2020000411 (Mar. 16, 2021).

Commission Affirmed Agency’s Award of $7,500 in Non-Pecuniary Damages.  The Commission previously found that Complainant was subjected to sexual harassment and reprisal.  The Agency then awarded Complainant $7,500 in non-pecuniary compensatory damages, finding no evidence that Complainant was rendered unable to work or suffered significant disruption to familial relationships as a result of the harassment.  On appeal, the Commission initially affirmed the Agency’s denial of pecuniary damages, finding that Complainant did not persuasively establish that the Agency’s discriminatory actions were the cause of his expenses.  The Commission also found that the Agency’s award of $7,500 in non-pecuniary damages was supported by the evidence, and was consistent with prior Commission precedent.  While Complainant was treated on two occasions for headaches, anxiety, insomnia, and back pain, there was no evidence that he sought any additional treatment, and Complainant mentioned other incidents that contributed to his conditions.  Trey M. v. U.S. Postal Serv., EEOC Appeal No. 2020002804 (Apr. 26, 2021); request for reconsideration denied, EEOC Request No. 2021003583 (Sept. 16, 2021).

Commission Affirmed Agency’s Award of $3,500 in Non-Pecuniary Damages.  The Agency found that Complainant was subjected to reprisal when her supervisor called her into his office and told her not to discuss any issues in her complaint with others.  The Agency awarded Complainant $3,500 in non-pecuniary damages, and the Commission affirmed the award on appeal.  Complainant stated that the supervisor’s actions, including those for which no discrimination was found, negatively affected her self-esteem and caused her to lose the trust of her employees.  While Complainant provided some medical evidence, it proved only that Complainant experienced complications from certain medical conditions.  The medical records did not demonstrate that Complainant’s conditions were exacerbated by the supervisor’s conduct. Further, Complainant connected her loss, harm, and damage to several incidents on which she did not prevail.  A careful reading of Complainant’s affidavit failed to show that she suffered damages as a result of her supervisor’s comments.  Nevertheless, the Commission stated that the award of $3,500 was appropriate, as it was supported by the evidence, consistent with Commission precedent and was not “monstrously excessive.”  Marie M. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020001458 (June 7, 2021).

Commission Affirmed Agency’s Award of $1,500 in Compensatory Damages.  In a previous decision, the Commission found that the Agency violated the Rehabilitation Act when it denied Complainant reasonable accommodation and required her to submit updated medical documentation.  Following a supplemental investigation, the Agency then awarded Complainant $1,500 in non-pecuniary compensatory damages.  Complainant stated that the discrimination aggravated her Post Traumatic Stress Disorder (PTSD).  On appeal, the Commission noted that a complainant must demonstrate through appropriate evidence and documentation the harm suffered because of the Agency’s discriminatory action.  Based on Complainant’s statement, her ex-husband's affidavit, and medical statements, her physical and mental symptoms were largely caused by her service-related PTSD and other factors not directly related to the Agency’s discrimination.  Therefore, the Commission determined that $1,500 in non-pecuniary compensatory damages was reasonable and appropriate.  Natalie S. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021000139 (Apr. 27, 2021).

Dismissals

(See also by category, this issue.)

Agency Improperly Dismissed Complaint for Failure to Cooperate.  The Agency dismissed Complainant’s complaint for failure to cooperate on the grounds that Complainant did not timely respond to the Agency’s requests for information.  On appeal, the Commission held that the Agency’s dismissal was improper because the Agency issued its dismissal on the same day Complainant’s response was due, thereby cutting short Complainant’s opportunity to respond.  Further, it did not appear from the record that the Agency fully met its obligation to inform Complainant of her right to request official time and/or how to request it.  An email exchange between Complainant and her EEO Case Manager demonstrated a communication disconnect as to the steps Complainant could take to obtain official time, and the Agency did not offer any standard directions on the official time process.  Marcellus M. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021001757 (June 2, 2021).

Commission Affirmed Dismissal of Complaint for Stating a Claim Raised in Grievance Process.  The Commission affirmed the Agency’s dismissal of Complainant’s complaint on the grounds that the underlying factual issues were previously considered in the grievance process.  On March 28, 2019, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of disability and reprisal for prior protected EEO activity.  Following the Agency’s investigation, an AJ dismissed Complainant's complaint, finding that the claim was raised during a prior grievance procedure that allows claims of discrimination.  On appeal, the Commission found that the underlying factual issues relevant to the complaint were already considered in the grievance process.  The Commission has held that a complainant need not actually raise a claim of discrimination in a grievance to have elected that forum, and the adjudication of the case in another forum constitutes an election of remedies.  Therefore, the complaint was properly dismissed.  Delia R. v. Dep’t of Agric., EEOC Appeal No. 2021000829 (Apr. 22, 2021). 

Complaint Improperly Dismissed for Failure to Cooperate.  Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, color, and reprisal for prior protected EEO activity when it issued her a Notice of Removal and decreased her work hours.   The Agency began an investigation and requested that Complainant complete an affidavit.  The Agency ultimately dismissed the complaint for failure to cooperate, stating that Complainant failed to return the requested affidavit despite a written warning in the affidavit packet that failure to do so could result in dismissal of the complaint.  The Commission found that there was sufficient information in the record to have permitted the Agency to continue the investigation without Complainant’s affidavit and adjudicate the matter on the merits.  Moreover, Complainant provided information in the EEO counselor’s report and a lengthy written statement with her formal complaint.  Thus, there was sufficient information to identify the specific actions Complainant was concerned with, the relevant timeframes and the responsible management officials.  The Commission also found that there was insufficient evidence to support a conclusion that Complainant purposely engaged in delay or contumacious conduct.  Therefore, the Agency improperly dismissed the complaint.  Daisy B. v. U.S. Postal Serv., EEOC Appeal No. 2021001616 (Mar. 17, 2021).

Complaint Improperly Dismissed for Electing to Pursue Claim Through Grievance Process.  The Commission reversed the Agency’s decision to dismiss Complainant’s complaint on grounds that she elected to pursue the matter through the negotiated grievance process.  Complainant was covered by a collective bargaining agreement that permitted claims of discrimination.  Complainant asserted on appeal that she did not file a grievance under the negotiated grievance procedure because it was unclear if she was a member of the union, and by the time that matter was resolved it was too late for her to file a grievance.  Upon review, the Commission found that the Agency presented no evidence to the contrary, and thus the Commission reversed the Agency’s dismissal.  Hiroko V. v. Dep’t of the Army, EEOC Appeal No. 2021001288 (Mar. 17, 2021).

Findings on the Merits and Related Decisions

Under the Rehabilitation Act

Denial of Reasonable Accommodation Found.  The Commission found that the Agency failed to reasonably accommodate Complainant.  Complainant, who has a hearing impairment, alleged the denial of an effective reasonable accommodation when the Agency failed to provide effective interpreter services during a Combined Federal Campaign (CFC) event and an emergency meeting concerning COVID-19.  Agency managers acknowledged that they did not provide Complainant with a sign language interpreter during the CFC event.  Further, the Commission found that providing an interpreter during a second CFC event failed to qualify as an effective accommodation, because it lacked the charity representatives from the first event and did not make up for Complainant’s inability to engage in the discussions and interactions at the original event.  As to the emergency meeting, the Agency failed to avail itself of Video Remote Interpreting (VRI), or Video Relay Service (VRS), which were effective alternatives to live sign language interpreter services and were feasible and readily available for this facility.  The Commission also found the Agency did not act in good faith, as this facility had a record and history of denying hearing-impaired persons accommodation.  The Commission stated that the Agency’s guidelines for providing communication accommodations were defective because they failed to require the Agency to provide effective alternatives during emergency meetings or when cancellations of live sign language interpreters occur.  The Commission ordered the Agency, among other things, to update its guidelines, as well as immediately ensure that Complainant is provided with a qualified sign language interpreter when required.  Darius C. v. U.S. Postal Serv., EEOC Appeal Nos. 2020000613 & 2021001698 (May 24, 2021).

Agency Improperly Disclosed Medical Information.  Complainant filed a formal complaint alleging, among other things, disability discrimination.  On appeal, the Commission found that the Agency violated the Rehabilitation Act when it improperly disclosed Complainant’s confidential medical information.  It was undisputed that the Agency’s Attorney Advisor forwarded two documents to a management official that included references to Complainant’s medical history and diagnosis.  The Commission noted that supervisors and managers may be provided information regarding necessary restrictions and accommodations needed by an employee.  In this case, however, there was no dispute that the Attorney Advisor also informed the official of Complainant’s specific diagnosis, and the Agency did not show that the official needed to know that information.  The official in question stated that he did not participate in granting or processing requests for reasonable accommodation.  In addition, the union representative confirmed that the official mentioned Complainant’s diagnosis to him, and the official stated that he did not believe Complainant’s accommodation was medically necessary.  Therefore, the Commission found that the Attorney Advisor and the official improperly disclosed Complainant’s medical information.  The Agency was ordered, among other things, to pay Complainant $3,000 in proven non-pecuniary damages.  The Commission affirmed the Agency’s finding of no discrimination or harassment regarding the remaining claims.  Heidi E. v. Soc. Sec. Admin., EEOC Appeal No. 2020002437 (Mar. 2, 2021); request for reconsideration denied, EEOC Request No. 2021002730 (Sept. 21, 2021).

Under Title VII

Commission Found Complainant Subjected to Hostile Work Environment Based on Sex (Sexual Orientation).  Complainant, a Supervisory Health System Specialist, filed an EEO complaint alleging, among other things, that the Agency discriminated against and subjected him to a hostile work environment on the basis of sex (male, sexual orientation).  Specifically, Complainant asserted that management permitted and/or failed to address verbally abusive comments, insults, name calling (specifically referring to Complainant using a degrading sex-based epithet), ridicule, and insubordination from Complainant’s subordinate (E1) over a nearly two-year period.  On appeal, the Commission found that Complainant was subjected to a hostile work environment as alleged.  The Commission found that the Agency knew of the conduct at issue and management officials did not take prompt and effective action once they became aware of E1’s conduct.  Instead, management officials placed the onus on Complainant to discipline the employee or file an EEO complaint.  The record indicated that Complainant had reported his concerns to the Deputy Director verbally and in writing, who did nothing to address the conduct.  Additionally, the inadequate responses from Complainant’s managers likely emboldened E1 to continue harassing Complainant, diminishing his authority as her supervisor and heightening the severity of the alleged incidents.  Finally, the Commission found that the Agency’s Workplace Anti-Harassment Policy Statement failed to effectively communicate EEO policies and procedures because it did not clearly establish the complaint procedure or ensure confidentiality to the extent possible.  The Agency was ordered, among other things, to investigate Complainant’s claim for damages and provide appropriate training to the responsible management officials.  Foster B. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019005682 (Apr. 12, 2021).

Agency Found Liable for Hostile Work Environment Based on Sex.  Complainant alleged, among other things, that she was subjected to a harassment on the basis of sex (female, sexual orientation).  The Agency found that Complainant was subjected to a hostile work environment on the basis of sex when a named coworker harassed her because of her sexual orientation, but that management took appropriate action upon learning of the harassment.  According to the record, Complainant’s coworkers spread rumors that Complainant was involved in a relationship with a female coworker.  The rumors continued for over two years.  In addition, one specific coworker repeatedly made offensive comments regarding Complainant’s sexuality.  After Complainant’s supervisors learned of the harassment, they expressed concern about the time Complainant spent with the coworker, and began taking actions against Complainant based on perceptions of Complainant’s sexual orientation and relationship with her coworker.  Complainant’s supervisors reprimanded her and constantly moved her away from the coworker with whom she was alleged to be engaged in a relationship.  The Commission determined that the Agency was liable for the harassment by both the coworkers and Complainant’s supervisors, because Complainant told management about the coworkers’ harassment and they did not adequately address the situation.  Despite being aware of the harassment, the supervisors did not effectively act to address the situation when they learned of the named coworker’s comment or the rumors.  The supervisors did not separate Complainant from the alleged harassers, investigate the allegations, nor discipline the alleged harassers.  There was no indication that any supervisory official took action to stop the rumors once they were brought to their attention.  In fact, the evidence showed that the supervisors also spread the rumors and took tangible employment actions against Complainant.  As a result, the Commission found that the Agency was liable for the harassment by both the coworkers and supervisors.  The Agency was ordered, among other things, to immediately take steps to ensure that all sexual harassment cease in Complainant’s facility, expunge any reference to the reprimands Complainant received for socializing with the coworker from all of Complainant’s records, and investigate Complainant’s claim for damages.  Thomasina B. v. Dep’t of Def., EEOC Appeal No. 0120141298 (Feb. 9, 2021); request for reconsideration granted, EEOC Request No. 2021002395 (June 9, 2021) (granting request for reconsideration and modifying appellate decision to narrow the training requirement ordered in the appellate decision).

Retaliation

Retaliation Found.  The Commission found that the Agency retaliated against Complainant for prior EEO activity by removing his supervisory duties.  Complainant engaged in protected activity when he informed his manager that African-American employees were not provided the same opportunities as White employees, and warned the manager of perceived mistreatment of minorities.  As such, Complainant’s manager was aware of his protected activity.  The Commission concluded that removing Complainant’s supervisory duties was precisely the kind of action that would dissuade a reasonable employee from engaging in protected EEO activity.  Further, the manager removed Complainant’s supervisory duties less than six months after Complainant filed his EEO complaint.  The Commission found the manager’s articulated reason for the action, that another manager wanted Complainant out of his supervisory chain because Complainant was undermining his authority, was not credible and was pretextual.  Specifically, the second manager denied complaining about Complainant.  The Commission affirmed the Agency’s finding of no discrimination with regard to additional claims.  The Agency was ordered, among other things, to investigate Complainant’s claim for damages.  Markus C. v. Dep’t of Justice, EEOC Appeal No. 2019004183 (May 20, 2021).

Retaliation Found.  Complainant alleged, in relevant part, that the Agency subjected her to discrimination on the basis of reprisal when, during a meeting to discuss her union activities, her supervisor made references to Complainant’s prior EEO activity and accused her of “throw[ing] [him] under the bus” by filing an EEO complaint.  While the Agency admitted that the supervisor made the comments, the Agency argued that the comments were directed at Complainant’s union activities and grievance filings and not her protected EEO activity.  The Commission rejected the Agency’s contention and found that the comments referred to Complainant’s prior EEO activity.  Further, the comments were akin to accusing Complainant of betrayal or disloyalty.  As such, the accusations would dissuade a reasonable person from making or supporting a charge of discrimination.  The Agency was ordered, among other things, to investigate Complainant’s entitlement to compensatory damages and provide training to Complainant’s supervisor.  Jane H. v. Dep’t of the Air Force, EEOC Appeal No. 2020003198 (May 19, 2021).

Retaliation Found.  Complainant filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him for prior protected EEO activity when his first-level supervisor accused him of lying to the Agency’s Equal Employment Opportunity (EEO) Office.  On appeal, the Commission found that the Agency subjected Complainant to retaliation as alleged.  In reaching this conclusion, the Commission considered the supervisor’s contention that he did not accuse Complainant of lying and merely stated Complainant had dishonestly fabricated accusations.  The Commission concluded that there was no material difference between accusing someone of lying and accusing them of dishonestly fabricating accusations.  Further, such accusation would dissuade a reasonable employee from engaging in protected EEO activity.  The Commission affirmed the Agency’s finding of no discrimination regarding additional claims.  The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages and to provide appropriate training to the supervisor.  Michael L. v. Dep’t of the Treasury, EEOC Appeal No. 2020003199 (May 16, 2021).

Remedies

Agency Failed to Comply with AJ’s Order.  An AJ found discrimination when the Agency summarily suspended Petitioner’s surgical privileges while those of the attending Caucasian anesthesiologist who engaged in similar behavior were not.  The AJ ordered the Agency, among other things, to provide proctoring to Petitioner.  In response to Petitioner’s petition for enforcement, the Commission found that the Agency was not in compliance with the AJ’s order. The Commission declined to accept the Agency’s efforts to replace proctoring with enrollment in a private re-entry program as compliance.  The Commission stated that the Agency could not substitute the remedy awarded to Petitioner by the AJ with one of its own choosing and ordered the Agency to arrange proctoring for Petitioner.  Brendan D. v. Dep’t of Veterans Aff., EEOC Petition No. 2020001938 (June 2, 2021).

Remedies Discussed.  Following a hearing, an AJ concluded that the Agency discriminated and retaliated  against Complainant when it removed her job duties, failed to timely promote her, failed to renew her term appointment, and failed to convert her to a permanent position.  The AJ ordered the Agency, among other things, to pay Complainant back pay and benefits.  The Agency issued a final order fully implementing the AJ’s decision and relief order.  Complainant subsequently alleged that the Agency did not properly calculate back pay, and failed to include lost benefits, bonuses and promotions.  Complainant also stated that the Agency failed to calculate and pay prejudgment interest and increased tax liability caused by the lump sum payment.  On appeal, the Commission found that the Agency failed to promote Complainant as ordered by the AJ or award any step increases that Complainant would have received absent the discrimination.  Thus, the Agency was required to recalculate the back pay award to add all the step increases that Complainant would have earned.  Also, the Agency failed to retroactively issue cash awards to Complainant and inappropriately deducted healthcare premiums from the back pay award.  The Commission stated that Complainant should also be allowed to revise her Thrift Savings Plan elections because of the significant failure by the Agency to comply with the AJ’s back pay order.  The Commission noted that the Agency should clearly explain its back pay calculations, including to what extent Complainant was entitled to be paid the monetary value of benefits such as life insurance, dental insurance, and vacation pay.  Peggie T. v. Dep’t of the Interior, EEOC Appeal No. 2020001880 (Apr. 22, 2021).

Sanctions

Commission Affirmed AJ’s Dismissal of Hearing Request as Sanction.  The Commission affirmed the AJ’s dismissal of Complainant’s hearing request because she failed to attend a pre-hearing conference and did not respond to the AJ’s show cause order.  Complainant asserted that she was unaware that she would receive the Notice of Pre-Hearing Conference via email.  The AJ noted when dismissing Complainant’s hearing request that Complainant provided the email address to which the Notice was sent when she filed her EEO complaint, and when she filed her request for a hearing.  Complainant did not indicate that she would not be checking her email or preferred to receive documents by regular mail.  Complainant also did not assert that she failed to receive the emails regarding the Notice or the AJ’s Show Cause Order.  The Commission found that the AJ did not abuse her discretion in dismissing the hearing request.  Amie H. v. U.S. Postal Serv., EEOC Appeal No. 2020000350 (May 19, 2021).

AJ Did Not Abuse Discretion in Dismissing Hearing Request as Sanction.  The AJ dismissed Complainant’s hearing request and remanded the complaints to the Agency for the issuance of a final decision after warning Complainant several times regarding her displays of unprofessional behavior and disrespectful conduct.  The Agency then issued a final decision finding that Complainant failed to prove discrimination.  The Commission affirmed this decision on appeal, finding that Complainant did not deny engaging in the contumacious conduct outlined by the AJ.  Thus, the Commission determined that the AJ did not abuse his discretion in dismissing Complainant’s hearing request.  The Commission also found that the Agency articulated legitimate, nondiscriminatory reasons for the alleged actions and that Complainant did not contest or refute with any evidence the Agency’s explanations.  Lashawn C. v. Dep’t of Labor, EEOC Appeal No. 2019005949 (Apr. 29, 2021).

Commission Found AJ Erred in Sanctioning Agency.  Complainant alleged that the Agency discriminated against her when it issued her a “minimally successful” performance rating.  The AJ issued a decision by summary judgment, finding no discrimination.  Nevertheless, the AJ sanctioned the Agency for violating the requirement to keep its investigatory and defensive functions separate, and for exceeding the 180-day regulatory deadline to complete the EEO investigation.  On appeal, the Commission noted that there is no absolute rule that prohibits agency defense counsel from participating in the pre-hearing stages of EEO matters, including the investigation.  The Commission found that the Agency did not breach the minimum requirement that the Agency maintain a proper separation between the Agency’s defensive and EEO investigatory functions.  Further, the Agency’s failure to meet the 180-day deadline for completing the EEO investigation, without more, did not warrant a sanction.  The Commission found that the record fully supported the AJ’s conclusion that the Agency articulated legitimate, nondiscriminatory reasons for the performance rating, which Complainant failed to prove was a pretext for discrimination or retaliatory animus.  Kylee C. v. Dep’t of the Army, EEOC Appeal No. 2020001154 (Apr. 22, 2021).

Dismissal of Hearing Request as Sanction Improper.  Complainant filed an EEO complaint alleging discrimination when he was demoted from a supervisory position.  Complainant ultimately requested a hearing, and the AJ issued an acknowledgment order setting forth the procedures for, and consequences of failing to follow the procedures for the hearing process.  The AJ also explained the process and timeframes to Complainant in an order memorializing a telephone conference.  On June 24, 2019 the Agency filed a motion to compel discovery and to stay all deadlines, noting that it had not received any response to its many discovery requests. Complainant subsequently faxed a response to the requests on July 10.  That same day, the AJ granted the Agency’s motion to compel and directed Complainant to provide complete responses within five days.  After serving a request for a response due to insufficient answers, the Agency filed a motion for sanctions against Complainant on July 25 for failing to fully respond.  The next day, the AJ issued an order dismissing Complainant’s hearing request as a sanction.  On appeal, the Commission acknowledged several instances of Complainant’s alleged noncompliance, including his failure to appear at the initial pre-hearing conference and failure to timely respond to discovery requests.  The Commission stated, however, that the AJ dismissed the hearing request in the middle of the discovery period when there was ample time for Complainant to show cause and rectify the deficiencies.  Further, dismissal of a hearing request as a sanction is only appropriate in extreme circumstances, such as willful or obstinate behavior.  The record showed that Complainant believed he had responded to the request on time.  Therefore, the AJ deprived Complainant of his opportunity to show cause and dismissed the case prematurely.  Edward W. v. Soc. Sec. Admin., EEOC Appeal No. 2019005957 (Apr. 15, 2021).

Settlement Agreements

Settlement Agreement Void Where Not Signed by Appropriate Agency Official.  Complainant, Complainant’s attorney, and Agency counsel signed a document entitled “Negotiated Settlement Agreement” (NSA).  Thereafter, pursuant to the NSA, an EEOC AJ dismissed the matter and issued an award of attorney’s fees and costs.  Complainant’s attorney subsequently alleged breach of the NSA, and the Agency found that the NSA was void and unenforceable, because it had not been signed by a named Agency official or any other individual identified as a “settlement official.”  On appeal, the Commission concurred with the Agency that the parties did not enter into a binding settlement agreement, noting that the NSA required all parties, including the settlement official, to sign the agreement in order for it to be effective.  The Commission rejected Complainant’s argument that an email correspondence between the parties, and between the parties and the AJ, demonstrated that Agency counsel alone had the authority to bind the Agency.  Rather, the record evidence demonstrated that the AJ was expecting the parties to substitute the partially signed settlement agreement with a fully signed settlement agreement in order for the agreement to be final and binding.  The Commission also rejected Complainant’s assertion that no written agreement was necessary due to an oral agreement before the AJ, noting that the Commission has upheld an oral settlement only in narrow circumstances such as when it is part of a transcript prepared by a court reporter.  Therefore, the Commission remanded the matter to the Agency for reinstatement of Complainant’s underlying complaint.  Shalon C. v. Dep't of the Army, EEOC Appeal No. 2021001986 (June 9, 2021).

No Breach of Settlement Found.  Complainant and the Agency entered into a settlement agreement that provided, among other things, that the Agency would support and process Complainant’s retirement, including providing the necessary documents, and that Complainant would be eligible to apply for health insurance.  The agreement also stated that Complainant would be eligible for Agency positions if the Agency violates the agreement.  Complainant alleged that the Agency failed to notify him of the proper eligibility requirements for retirement and failed to exhaust reasonable accommodation processes which were necessary for the application.  On appeal, the Commission affirmed the Agency’s finding that it complied with the terms of a settlement agreement.  The Agency provided the necessary documents for Complainant’s retirement, including the application which contained the standards for disability retirement.  The settlement agreement did not provide for the Agency to review Complainant’s medical documents, or provide a reassignment, and these items were beyond the scope of the agreement.  Mike W. v. U.S. Agency for Int’l Dev., EEOC Appeal No. 2021000896 (Apr. 28, 2021).

No Breach of Settlement Found.  The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would convert 272 hours of Leave Without Pay to Advanced Sick Leave and pay Complainant a lump sum of $3,244.96 30 days after the execution of the agreement.  Complainant alleged breach, contending that she had stated to the Agency via email before the settlement agreement that she would agree to a settlement if she received paid leave for her days off with the Advanced Sick Leave hours.  The Commission found that the Agency did not breach the agreement, stating that paid leave was not included in the final settlement agreement.  Season H. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020000677 (Apr. 19, 2021).

Stating a Claim

Former Employee Stated Viable Claim Regarding Reference to Prospective Employer.  The Commission found the Agency erred in dismissing Complainant’s complaint for failure to state a claim on grounds she was not a current employee or applicant for employment.  Complainant alleged that, after she complained about sexual harassment while employed by the Agency, an Agency official contacted a private contractor that had offered Complainant a position and made negative comments about her, resulting in the private contractor withdrawing an employment offer.  The Commission’s regulations provide that a former employee may state a viable retaliation claim for protected activity that took place during the time of employment, even if the disputed action occurred after the termination of the employment relationship.  Further, to the extent the Agency based its dismissal on the notion that Complainant was not harmed, the Commission stated that providing negative information to a new employer would be reasonably likely to deter Complainant or others from engaging in protected activity.  Barbara S. v. Dep’t of the Navy, EEOC Appeal No. 2021001824 (June 8, 2021).

Complainant Stated Viable Claim of Disability Discrimination.  Complainant alleged that she was discriminated against based on disability when she was forced to walk down the stairs during a non-fire evacuation at her facility, in violation of the Agency’s Occupant Emergency Plan (OEP) regarding employees with disabilities.  The AJ dismissed the complaint for failure to state a claim on grounds that the circumstances did not concern Complainant’s performance of the essential functions of her job, but rather the Agency’s assistance for Complainant’s safe egress during an emergency evacuation.  On appeal, the Commission stated that a denial of reasonable accommodation claim does not solely involve the performance of essential functions, and may also relate to enjoyment of equal benefits and privileges of employment.  The Commission held that being able to exit the worksite in a safe manner during an emergency evacuation would be considered a benefit/privilege of employment, and thus reversed the dismissal.  Eve E. v. Soc. Sec. Admin., EEOC Appeal No. 2020004148 (June 2, 2021).

Agency Improperly Addressed Merits of Claim When It Dismissed Complaint for Failure to State a Claim.  Complainant applied for a General Engineer position with the Agency, and subsequently filed a formal EEO complaint when he was not selected.  The Agency dismissed the matter for failure to state a claim, asserting that Complainant was not eligible to apply for the position.  On appeal, the Commission found that the Agency improperly dismissed the complaint.  The Commission noted that the Agency addressed the merits of the claim without a proper investigation, and did not consider the procedural issue of whether the matter states an actionable claim under the EEO statutes.  Wiley W. v. Dep’t of the Navy, EEOC Appeal No. 2020005208 (Apr. 27, 2021).

Complainant Stated Viable Harassment Claim.  Complainant, an Asian American, filed an EEO complaint alleging that one of his subordinate employees harassed him on the bases of his race (Asian) and national origin (Chinese).  Complainant stated the subordinate, among other things, disparaged Chinese immigrants; mocked Complainant’s language and communication skills due to his perceived foreign accent; and engaged in efforts to undermine Complainant, such as skipping and walking out on meetings, not completing assignments, ignoring Complainant’s emails, and attempting to bypass Complainant’s authority by reporting directly to Complainant’s superiors.  Complainant also alleged that his own supervisors were aware of this subordinate’s conduct but failed to effectively stop it.  The Commission found that the Agency improperly dismissed Complainant’s complaint for failure to state a claim.  Citing its recent resolution Condemning Violence, Harassment, and Bias Against Asian Americans and Pacific Islanders in the United States, the Commission noted that the subordinate’s alleged behavior occurred in the context of a nation-wide increase in reports of harassment against Asian Americans.  The subordinate’s behavior fell squarely within the types of discrimination frequently experienced by Asian American workers, that is discrimination regarding language or accent, and perceived competence of Asian American workers.  The subordinate’s emails, taunts, and comments also insinuated that Complainant was “un-American,” “anti-American,” or had a “grudge against America.”  Management officials allegedly knew that the subordinate made disparaging references to Complainant’s national origin before the subordinate was assigned to Complainant’s supervision.  Therefore, considering Complainant’s allegations together and assuming them to be true, the Commission concluded that Complainant alleged a viable claim of ongoing harassment in violation of Title VII.  Norbert K. v. Dep’t of State, EEOC Appeal No. 2021001898 (Apr. 19, 2021).

Commission Found Sufficient Evidence to Consider Agency Complainant’s Joint Employer.  The Commission found sufficient evidence to conclude that the Agency qualified as Complainant’s joint employer for purposes of the EEO process.  Complainant’s position and job duties were similar to those associated with an Agency position, and his position was an integral part of Agency business.  The Agency acknowledged that Complainant’s work was performed in an Agency building at an Agency military base, and Complainant contended that he received his assignments from Agency personnel and was under the direct supervision of an Agency official.  Complainant also believed that Agency officials were responsible for his removal.  There was no evidence in the record to support the Agency’s assertion that the Contractor had exclusive human resources authority over Complainant, and the Agency did not provide a copy of a contract with the Contractor or documentation regarding the incident that led to Complainant’s removal.  Thus, the Commission found the Agency had sufficient control over Complainant’s position to be considered Complainant’s joint employer for EEO purposes.  Alfredo S. v. Dep’t of the Army, EEOC Appeal No. 2021001400 (June 7, 2021) Additional Decisions Addressing Joint Employment Include: Detra W. v. Dep’t of Commerce, EEOC Appeal No. 2020003147 (Apr. 14, 2021) (Complainant, an applicant for employment with the Agency through a staffing firm, was on dialysis due to renal failure.  She advised the staffing firm Director at the beginning of the hiring process that she would need to telework four days per week while receiving treatment.  The Commission found that the Agency was a joint employer, noting that the Agency had significant input into the denial of Complainant’s reasonable accommodation request, and also had significant control over the hiring process.  The Agency set detailed qualifications for the position, and while the staffing firm recruited Complainant and decided to present her as a candidate, Agency personnel reviewed her resume, interviewed her, approved her coming on board, and required her to pass a background check conducted by the Agency).

Complaint Improperly Dismissed for Failure to State a Claim.  The Commission found that the Agency improperly dismissed Complainant’s complaint that Agency officials discriminated against her on the basis of disability and in reprisal for prior EEO activity when they submitted a report containing false statements about her to the National Practitioner Data Bank (NPDB) and/or the Ohio State Medical Board.  The Agency asserted that the matter was a collateral attack on the NPDB and the Ohio State Medical Board proceedings.  The Commission found, however, that Complainant raised a claim involving a personal loss or harm to a term, condition or privilege of employment.  Specifically, Complainant alleged that Agency officials falsely claimed that Complainant involuntarily resigned and had clinical privileges suspended and revoked because of her alleged failure to provide medically necessary items or services and “patient neglect.”  Complainant stated that the officials made these false assertions in order to retaliate against her for her prior EEO activity.  Therefore, Complainant’s claim did not constitute a collateral attack, but rather alleged discrimination and/or retaliation on the part of the Agency officials in their report to the professional boards.  As such, Complainant alleged a justiciable claim of discrimination and/or retaliation.  Shena O. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021000241 (Apr. 8, 2021); request for reconsideration denied, EEOC Request No. 2021002891 (Sept. 20, 2021).

Complainant Stated Viable Claim of Retaliation.  The Commission found that the Agency improperly dismissed Complainant’s complaint for failure to state a claim.  The anti-retaliation provisions of the employment discrimination statutes are not limited to actions that directly affect terms and conditions of employment, and a complainant states a viable claim of retaliation if the alleged action could dissuade a reasonable person from making or supporting a claim of discrimination.  he record showed that an adverse action was taken against Complainant when his supervisor threatened to call the police if he did not clock out, a threat Complainant alleged was especially effective because he suffered from Post-Traumatic Stress Disorder.  Complainant indicated that the supervisor was aware of his condition, and asserted there was no legitimate reason for the supervisor’s alleged conduct.  The Commission noted that Complainant was actively pursuing another EEO complaint before an AJ during this period.  Thus, Complainant’s allegations are sufficient to state a viable claim of employment discrimination and reprisal. Norman V. v. U.S. Postal Serv., EEOC Appeal No. 2021002004 (Mar. 29, 2021).

Complainant Stated Viable Claim of Disability Discrimination.  Complainant alleged that the Agency subjected her to discrimination on the bases of age and disability when the air conditioning in her station was not working.  The Agency dismissed the complaint for failure to state a claim. The Commission affirmed the dismissal of Complainant’s age discrimination claim, finding that claim was a generalized grievance since all employees in Complainant’s area, regardless of age, experienced the same conditions.  The Commission found, however, that Complainant stated a viable claim of disability discrimination, because Complainant alleged that she was denied a reasonable accommodation in the form of a portable air conditioner when the station’s air conditioner was not working.  The Commission thus reversed the Agency’s dismissal of Complainant’s disability discrimination claim.  Jaleesa P. v. U.S. Postal Serv., EEOC Appeal No. 2021001489  (Mar. 17, 2021).

Complaint Alleging Violation of Debt Collection Act Failed to State a Claim.  Complainant filed a complaint alleging that the Agency subjected him to unlawful retaliation when it issued him a Letter of Demand.  The Commission affirmed the Agency’s dismissal of the complaint for failure to state a claim.  Commission precedent has held that challenges to an agency’s actions under the Debt Collection Act are outside of the scope of the EEO complaint process.  Stan H. v. U.S. Postal Serv.. EEOC Appeal No. 2021001651 (Mar. 18, 2021).

Complaint Properly Dismissed for Failure to State a Claim.  The Commission affirmed the Agency’s dismissal of Complainant’s complaint alleging retaliation when he was not allowed to apply for a position.  Specifically, Complainant, who lived in Mississippi, alleged he learned he was not eligible for a promotion to a position at the Agency’s Atlanta, Georgia location if he remained in Mississippi.  The Commission noted that being an “out-stationed” employee is not a protected basis, and Complainant failed to state a viable claim.  Clement D. v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 2021001254 (Mar. 17, 2021).

Summary Judgment

Summary Judgment Affirmed.  Complainant alleged the Agency discriminated against her on the bases of disability and in reprisal for prior protected EEO activity when supervisory officials denied her request for a reasonable accommodation, and she was retroactively placed in an absent without leave (AWOL) status.  Following the Agency’s investigation, the AJ granted the Agency’s motion for a decision without a hearing and issued a summary judgment decision in favor of the Agency.  The Commission affirmed the AJ’s decision, finding that the record was adequately developed.  The Commission found that the Agency provided Complainant with a reasonable accommodation when the Agency, based on recommendations in Complainant’s medical documentation, moved her to another supervisor and authorized telework twice a week. Complainant later changed her accommodation request, so the Agency requested new medical documentation, but Complainant resubmitted the same information.  As such, the Agency denied Complainant’s request for a reassignment.  The Commission noted that, while the Agency is required to provide reasonable accommodation, the Agency is not required to provide the accommodation of Complainant’s choice.  The Commission determined that there was no evidence that the Agency’s actions were unreasonable.  Therefore, the AJ properly issued a decision without a hearing.  Phoebe O. v. Dep’t of the Army, EEOC Appeal No. 2020000674 (Apr. 5, 2021).

Commission Affirmed AJ’s Summary Judgment in Favor of the Agency.  Complainant filed an EEO complaint alleging the Agency discriminated against her when it did not select her for a position.  Complainant alleged that a member of the interview panel “reacted viscerally” to comments Complainant made during the interview concerning Complainant’s country of birth.  Complainant stated that she inadvertently said “my country” when discussing her work experience in her country of birth, and she also indicated that the banking system in her birth country was more advanced than in the United States.  The AJ, on the Agency’s motion, issued a decision by summary judgment finding no discrimination.  The Commission found that that the interview panelist reacted to Complainant’s comments, not to Complainant’s national origin.  Although the interview panelist may have misunderstood Complainant’s comments, such a misunderstanding did not establish that the interview panelist harbored any animus towards Complainant’s protected bases.  Princess B. v. Dep’t of State, EEOC Appeal No. 2020001227 (Mar. 30, 2021).

Summary Judgment Reversed.  Complainant, a CT Technologist, filed an EEO complaint alleging that the Agency discriminated against and subjected him to harassment on the bases of sex (LGBT male) and reprisal for protected EEO activity.  Specifically, Complainant stated that his first-line supervisor (S1) suggested he change clothes in the bathroom instead of the men’s locker room because of coworker complaints; his on-call pay was denied; he received a “fully successful” performance rating; and he received an admonishment.  The AJ issued a decision by summary judgment in favor of the Agency, finding that Complainant failed to establish that the incidents complained of were severe or pervasive enough to rise to the level of harassment.  The AJ also stated that the incidents constituted separate acts of discrimination under the disparate treatment theory, and Complainant failed to show the actions would deter EEO activity.  On appeal, the Commission found that the record was inadequately developed.  Specifically, the investigator interviewed S1, but failed to obtain additional witness statements.  The Commission further determined that the testimony raised a genuine issue of material fact about whether there was a discriminatory motive.  The Commission explained that the AJ either failed to consider Complainant’s account of the facts, or failed to consider the events as a whole in addressing Complainant’s claim of harassment.  Further, the AJ failed to address Complainant’s reprisal claim.  Thus, there were simply too many unresolved issues which require an assessment as to the credibility of S1, Complainant's coworkers, and Complainant himself, and the Commission remanded the matter for a hearing.  Felton Z. v. Dep’t of Veterans Aff., EEOC Appeal No. 2019002311 (June 2, 2021).

Summary Judgment Reversed.  The Commission found Complainant was wrongfully denied discovery, and the AJ improperly issued a decision on summary judgment finding no discrimination.  Complainant was a civilian Mariner with shipboard duties.  After informing the Agency of her pregnancy, stating she was qualified, and physically fit for shipboard assignment, Complaint was declared Not Fit for Duty (NFFD).  A vacant shoreside position was identified for Complainant temporarily, but the manager refused, stating that since Complainant was not disabled, the position needed to be advertised for nationwide competition.  On appeal, the Commission found some confusion as to the language used in the AJ’s discovery order.  Complainant believed that, because she initiated discovery prior to the deadline, she properly complied with the terms of the AJ’s order to begin discovery.  The Commission found that the AJ abused her discretion by not allowing Complainant to complete discovery.  Further, there was no evidence that the Agency was unfairly prejudiced by Complainant’s failure to timely submit her discovery requests by a mere three hours.  The Commission stated that there were material facts at issue as to whether the Agency offered Complainant other positions at other locations, and whether the Agency’s policy of not providing the same accommodation to pregnant employees that it provided other employees needing accommodation violated the anti-discrimination laws.  Jennifer K. v. Dep’t of the Navy, EEOC Appeal No. 2020001035 (May 20, 2021).

Summary Judgment Reversed.  Complainant filed a complaint alleging discrimination when the Agency did not select him for a management position.  The AJ granted summary judgment in favor of the Agency, finding that Complainant’s incomplete application was a legitimate non-discriminatory reason for his nonselection.  On appeal, Complainant submitted evidence that he attempted to email his responses to discovery and the Notice of Proposed Summary Judgment to the AJ.  The Commission noted that Complainant misspelled the AJ’s email address, which was likely why the documents were never received.  The Commission determined that the record was not adequately developed.  Specifically, Complainant’s supervisor acknowledged, in an affidavit, that two of the three interviewees may not have completed the application and should not have reached an interview under the Agency’s standards.  Therefore, there were unresolved conflicting statements, and the AJ’s summary judgment decision was inappropriate.  Thomas P. v. U.S. Postal Serv., EEOC Appeal No. 2020000670 (Apr. 12, 2021).

Summary Judgment Reversed.  The Commission reversed the AJ’s summary judgment decision finding no discrimination.  The Commission concluded that the record was inadequate to resolve several pieces of conflicting evidence and genuine issues of material fact.  Specifically, the conflicting testimonies of Complainant, her coworkers, and her alleged harasser required a hearing to resolve issues of credibility.  Complainant indicated she experienced several instances of uncomfortable and unwanted conduct by a coworker, and Complainant and her immediate supervisor filed four incident reports between October 19, 2012 and November 1, 2012, including one involving a full-body “bear hug.”  After the fourth event, the Agency conducted a Threat Assessment but found no threat.  Complainant was reassigned to a different area pending an Office of Internal Affairs (OIA) investigation.  The OIA found Complainant’s coworker was unprofessional and suggested a five-day suspension.  The Coworker, however, only received a one-day suspension and other employees then observed her continuing to impose herself on Complainant.  The Commission disagreed with the AJ’s findings that the bear hug was not consistently described as sexual and the alleged harassment was not sufficiently pervasive, noting that one alleged incident included the coworker drawing hearts on Complainant’s window which indicated some amount of desire.  Further, the AJ erred in not finding pervasiveness when looking at evidence in light most favorable to Complainant.  Therefore, the Commission remanded the matter for a hearing.  Zora T. v. Dep’t of Justice, EEOC Appeal No. 0120171654 (Mar. 23, 2021).

Timeliness

Complainant Timely Contacted EEO Counselor upon Reasonably Suspecting Discrimination.  The Commission reversed the Agency’s dismissal of Complainant’s complaint raising eight nonselection claims for untimely EEO Counselor contact.  Complainant stated that he had no reason to suspect discrimination upon initially learning of his nonselections.  However, he developed a reasonable suspicion of discrimination after he later received information about the race, gender, age, and qualifications of the other candidates selected or referred for selection.  He then timely contacted an EEO Counselor.  The Commission found that nothing in the nonselection notifications would have prompted Complainant to believe these decisions were discriminatory.  Therefore, the Commission concluded that Complainant timely contacted the EEO Counselor, and the Agency improperly dismissed the complaint.  Alfonso T. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021001207 (June 8, 2021).   

Complaint Timely Contacted EEO Counselor Within 45 Days of Effective Date of Removal. The Commission reversed the Agency’s dismissal of Complainant’s complaint on grounds that Complainant did not contact the EEO Counselor within the 45-day window required by the Commission’s regulation.  The Commission stated that complaints of discrimination should be brought to the attention of the EEO Counselor within 45 days of the date of the matter alleged to be discriminatory, or within 45 days of the effective date of a personnel action.  In this case, while Complainant was notified of his removal on June 12, 2020, the removal was not effective until June 25, 2020.  Therefore, Complainant’s contact with the EEO Counselor on August 8, 2020, was within the 45-day limitation period.  Les B. v. U.S. Postal Serv., EEOC Appeal No. 2021001934 (Mar. 31, 2021).

Hostile Work Environment Complaint Improperly Dismissed for Failure to Timely Initiate EEO Contact.  The Commission reversed the Agency’s dismissal of Complainant’s hostile work environment claim for untimely EEO counselor contact.  Complainant raised a number of incidents that occurred between February 2020 and April 2020, which were part of the same alleged hostile work environment.  A hostile work environment claim will not be time barred if all acts constituting the claim are part of the same unlawful practice so long as an act contributing to the claim falls within the filing period.  Therefore, Complainant’s claim of hostile work environment was timely.  The Commission affirmed the Agency’s dismissal of one issue that Complainant elected to pursue through the grievance process.  Charles B. v. Dep’t of the Army, EEOC Appeal No. 2021000885 (Mar. 31, 2021).

Commission Affirmed Dismissal of Complaint for Untimely EEO Counseling. The Commission affirmed the dismissal of the complaint on the grounds that Complainant did not initiate EEO counseling within 45 days of when he should have reasonably suspected discrimination.  Complainant initiated EEO counseling on July 23, 2020 and filed a formal EEO complaint alleging the Agency discriminated against him based on his age because he was ineligible to participate in a certain retirement plan.  Complainant retired on October 31, 2017, and the Agency dismissed his complaint for failure to timely contact an EEO Counselor.  Specifically, the Agency asserted that Complainant should have reasonably suspected discrimination at the time of his retirement when he did not qualify for retirement benefits.  The Commission agreed with the Agency on appeal.  Complainant acknowledged signing the handbook that indicated he was ineligible for retirement benefits, and was advised of this at the time of his hire.  The Commission rejected Complainant’s assertion that he was not aware of the 45-day limitation period, stating that Complainant had at least constructive knowledge of the time limit because it was posted on the Agency’s intranet and internet websites.  Mitchell M. v. Dep’t of State, EEOC Appeal No. 2021001243 (Apr. 26, 2021).

Fear of Retaliation Insufficient to Toll Limitation for Initiating EEO Contact.  The Commission affirmed the Agency’s dismissal of Complainant’s complaint for untimely EEO Counselor contact.  Complainant alleged discrimination when he was not selected for a position in May 2019.  Complainant did not initiate contact with the EEO Counselor, however, until November 2019, well past the 45-day limitation period.  Complainant cited fear of reprisal as his reason for not timely pursuing a complaint.  However, the Commission has generally held that, without more, fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO counselor.  Matt B. v. Dep’t of Justice, EEOC Appeal No. 2021000390 (Mar. 16, 2021).

Agency Failed to Support Dismissal of Complaint as Untimely.  After initiating EEO contact for an issue of reprisal, Complainant retained a legal representative.  On August 6, 2020, the EEO Counselor emailed Complainant and her legal representative a Notice of Right to File a Discrimination Complaint.  The Agency ultimately dismissed the formal complaint as untimely, stating the complaint was not filed until August 25, 2020.  Complainant asserted that neither she nor her attorney received the Notice until August 13, 2020.  The Agency did not provide sufficient information to support its findings, and there was no evidence in the record showing that Complainant’s attorney received the Notice before August 13, 2020.  While the record indicated that the delivery of the email was complete, there was no delivery notification from the server.  Therefore, the Commission reversed the Agency’s dismissal, finding that the Agency did not substantiate its findings of untimeliness.  Catherina B. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021000819 (Apr. 27, 2021).

Complaint Timely Filed.  Complainant received a Notice of Right to File a Formal Complaint on June 24, 2020, and had 15 calendar days to file her complaint.  The Agency did not receive the formal complaint until August 3, 2020, and dismissed the complaint as untimely.  On appeal, Complainant established that she filed her complaint by U.S. mail on June 30, 2020, which was within the limitation period.  She provided U.S. Postal Service tracking information that confirmed the mailing date.  Therefore, the Agency’s dismissal was improper. Candi R. v. Soc. Sec. Admin., EEOC Appeal No. 2021001572 (Mar. 17, 2021).