Digest Staff Editor: Robyn Dupont Writers: Craig Barkley, Abigail Coleman, Robyn Dupont, Steven Jessen-Howard, Navarro Pulley, Zipporah Ridley, Nina Rivera

The Digest is available online through the EEOC’s homepage at https://www.eeoc.gov/digest.

The EEOC redacts complainants’ names when it publishes decisions. All federal sector appellate decisions issued for publication use a randomly generated name as a substitute for the name of the complainant. A computer program randomly generates a first name and last initial from a list of pseudonyms that bear no relation to the complainant’s actual name. This ensures the privacy of complainants, and is consistent with the EEOC's approach in its enforcement work and the investigations of complaints. The summaries below are not intended to be exhaustive or definitive and should not 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

Compensatory Damages

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

EEOC Increased Award of Non-Pecuniary Damages to $140,000.00. The EEOC previously found that the Agency failed to provide Complainant with reasonable accommodation. The Agency subsequently awarded Complainant $35,000 in non-pecuniary damages, which the EEOC increased to $140,000 on appeal. In support of his request, Complainant submitted numerous letters from his family members, colleagues, and friends who all recounted the emotional toll of the discrimination. Complainant also provided a letter from his therapist stating that Complainant had met with him to discuss his concerns regarding the Agency’s refusal to allow him to return to work and the impact of the Agency’s actions on his family and lifestyle. The EEOC acknowledged Complainant’s assertion that the Agency’s failure to accommodate him for three years caused insomnia, confusion, anxiety, hopelessness, depression, isolation, and feeling insufficient as a man, effects that he maintained he continued to suffer. Complainant also asserted that his psychological symptoms physically manifested as back pain, and that his experience led him to question whether he should go on with life. Complainant maintained that the Agency’s discriminatory actions caused him severe financial strain, which rendered him so unable to meet his child support obligations that he had go to court to request a reduction. Complainant emphasized that his inability to support his non-custodial children affected not only his confidence and self-esteem, but also his relationship with his children and other family members. Complainant also emphasized that he had no psychiatric conditions prior to the Agency’s discriminatory actions. Taking the foregoing into account, the EEOC concluded that an award of $140,000 in non-pecuniary compensatory damages was appropriate given the nature, severity, and duration of the harm, and was consistent with prior EEOC precedent considering the present- day value of those awards. The EEOC also increased the pecuniary damages award to $5,151. Jeffry R. v. U.S. Postal Serv., EEOC Appeal No. 2020002824 (Sept. 13, 2021), request for reconsideration denied EEOC Request No. 2022000178 (Mar. 21, 2022).

EEOC Increased Agency’s Award of Non-Pecuniary Damages to $75,000. In a prior decision, the EEOC determined that the Agency denied Complainant reasonable accommodation and subjected Complainant to a hostile work environment and retaliation. The EEOC ordered the Agency, among other things, to investigate Complainant’s claim for damages, and the Agency subsequently awarded Complainant $15,000 in non-pecuniary compensatory damages. On appeal, the EEOC increased the award to $75,000. Complainant failed to establish to what extent the distress he suffered was due to the discrimination, as opposed to distress caused by other factors for which no discrimination was found. The EEOC found that the record supported an award of $15,000 for damages due to the retaliation and harassment, but that the Agency’s award was not sufficient to address the harm that resulted from the continued and prolonged denial of accommodation. Although the EEOC previously ordered the Agency to provide Complainant with reasonable accommodation, the Agency denied Complainant a reasonable accommodation for just over seven years. Thus, the EEOC provided an additional $10,000 for each year Complainant went without reasonable accommodation to compensate Complainant for the detrimental impact on Complainant’s quality of life and the emotional distress. The EEOC also ordered the Agency to restore annual and sick leave and to compensate Complainant for certain hours of leave-without-pay and pay Complainant’s attorney’s fees for both work associated with the appeal and for legal efforts to obtain the Agency compliance with the EEOC’s order to provide reasonable accommodation. Elise S. v. Dep’t of State, EEOC Appeal Nos. 2020004019 & 2020004020 (Nov. 22, 2021).

EEOC Increased Award of Damages to $70,000. The Agency found that Complainant was denied reasonable accommodation and ultimately awarded him $15,000 in non-pecuniary compensatory damages. On appeal, the EEOC increased the award to $70,000, finding that amount was more appropriate given the severity and duration of the harm Complainant experienced due to the discrimination. Complainant submitted statements from a friend and a family member, as well as his own statement, demonstrating that he experienced depression, stress, anger, anxiety, sleeplessness, a loss of self-worth, and alcohol dependence. Complainant also provided documentation from the VA Mental Health Clinic indicating that he was prescribed sleep medication. Complainant stated that after the Agency denied his accommodation, he could no longer use his oxygen tank, and the commute to his new location required more physical exertion than he could bear. The EEOC concluded that the evidence showed that the removal of Complainant’s accommodation clearly aggravated his physical and mental conditions, leaving him without an accommodation for 16 months. Further, no Agency officials conducted an individualized assessment to determine whether Complainant’s continued employment would pose a significant risk of substantial harm. Randolph T. v. Dep’t of the Army, EEOC Appeal No. 2020004200 (Dec. 13, 2021).

EEOC Increased Award of Damages to $70,000. The Agency found that Complainant was subjected to harassment based on race and national origin, and subsequently awarded him $10,000 in non-pecuniary compensatory damages. On appeal, the EEOC increased the award to $70,000 to reflect the severity and duration of the harm and awards in similar cases. Complainant stated that, as a result of the hostile environment, he experienced significant stress and anxiety, as well as several episodes of chest pain and elevated heart rate. A psychologist stated that the harassment triggered Complainant’s preexisting Post Traumatic Stress Disorder (PTSD), which had been under control. Complainant drank alcohol to cope with the stress, had trouble sleeping, was irritable with his family, and lost interest in activities he once enjoyed. Complainant, however, did not seek treatment during the time of the harassment, and only saw the psychologist for purposes of proving his claim for damages. While the Agency characterized the harassment as involving a single incident, the final Agency decision found that Complainant was subjected to harassment that included incidents that occurred over a one-month period. Therefore, the EEOC determined that an award of $70,000 was appropriate and consistent with awards in similar cases. Brenton W. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020002329 (Aug. 4, 2021), request for reconsideration denied, EEOC Request No. 2021004682 (Jan. 10, 2022).

EEOC Increased Award of Non-Pecuniary Damages to $50,000. Following a hearing, an AJ found that the Agency retaliated against Complainant when a supervisor gave him a negative reference. The Administrative Judge (AJ) awarded Complainant $15,000 in compensatory damages among other things. On appeal, the EEOC increased the award to $50,000, finding the amount more in line with awards in similar cases. In addition, Complainant noted that having the employment opportunity taken away as a result of the negative reference had a profoundly harsh impact on him, and the Agency’s rescission letter was worded to suggest that Complainant lacked the training, experience, and integrity necessary to continue his career as an Agency police officer. Complainant experienced stress. The EEOC noted that while the Agency Police Chief could have provided a neutral reference or consult Human Resources or the Agency’s Legal Counsel, he instead chose to retaliate against Complainant by disparaging him to a potential employer. After losing the position, Complainant was demoralized to the point that he no longer desired employment in law enforcement. Ryan O. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020003815 (Oct. 27, 2021).

EEOC Affirmed Award of $30,000 in Non-Pecuniary Damages. The EEOC previously found that the Agency discriminated against Complainant on the bases of national origin and religion when it did not select him for a position. The EEOC ordered the Agency, among other things, to investigate Complainant’s claim for damages. The Agency awarded Complainant $30,000 in non-pecuniary damages, and the EEOC affirmed the award on appeal. Complainant stated that the discrimination aggravated his preexisting depression, and he was diagnosed with anxiety, ADHD, and PTSD. Complainant experienced suicidal thoughts, sadness, irritability, sleep disturbances, and a lack of energy, and lost interest in spending time with his family. Complainant’s wife supported his claim. Complainant sought counseling and saw a psychiatrist, and was prescribed four medications. His psychiatrist attributed his worsening depression and PTSD to Complainant’s workplace, but the record indicated that retaliation also played a role. The EEOC concluded that the award of $30,000 adequately compensated Complainant for the harm causally related to the discriminatory nonselection. The EEOC affirmed the Agency’s denial of Complainant’s request for pecuniary damages. Erik S. v. Dep’t of Justice, EEOC Appeal No. 2020004617 (Dec. 13, 2021).

EEOC Increased Award of Non-Pecuniary Damages to $10,000. An AJ issued an Order of Default Judgment and Order of Relief against the Agency as a sanction. Complainant was awarded, among other things, $5,000 in nonpecuniary compensatory damages. The Agency did not challenge the default judgment on appeal. Complainant, however, appealed the award of damages, and the EEOC determined that an award of $10,000 in non-pecuniary damages was more appropriate. EEOC initially found that Complainant established a prima facie case of reprisal. The record showed that Complainant’s personality changed from jovial and social to depressed and withdrawn. In addition, Complainant experienced anxiety, insomnia, high blood pressure, paranoia, anger, and depression, and he started taking medication. Complainant also sought medical care for chest pain which was attributed to anxiety. Thus, the EEOC found that an award of $10,000 was consistent with EEOC precedent. With respect to attorney’s fees, the EEOC affirmed the AJ’s award, finding that the AJ appropriately applied an across-the-board reduction of one-third based on the relative complexity of the case and the multiple instances in which Complainant’s attorneys conferenced to address a matter that one attorney alone could have addressed. Ricardo K. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020003751 (Nov. 16, 2021).

Complaint Processing

EEOC Cautioned Agency About Submitting Complaint Files as Attachments to Other Documents. The EEOC affirmed the Agency’s dismissal of Complainant’s complaint as untimely filed. The EEOC noted, however, that crucial evidence of timeliness was not in the complaint file initially submitted by the Agency and had only been included as an attachment to the Agency’s brief entitled “Agency Record.” The attachment included documents that were inexplicably missing from the record, including an email from Complainant acknowledging receipt of the Notice of Right to File a Formal Complaint. The EEOC cautioned the Agency that submitting files as an attachment to another document does not comply with the EEOC’s digital submission requirements and, by doing so, the Agency risks the attachment being overlooked by the EEOC. Melania U. v. Dep’t of the Army, EEOC Appeal No. 2021004735 (Nov. 29, 2021).

Conflict of Interest

EEOC Remanded Complaint for Failure to Maintain Impartiality in Issuing Final Decision. Complainants alleged that the Agency continuously paid them less than similarly situated men performing jobs requiring substantially equal skill, effort, and responsibility under similar working conditions. The Agency issued a final decision in each case, finding that Complainants failed to prove that the Agency subjected them to discrimination as alleged. On appeal, the EEOC consolidated the matters, and remanded the complaints for new final decisions by a fair, impartial, and objective official with no interference from the Agency’s Office of General Counsel (GC). The EEOC has recognized that in the federal sector process, Agency heads must manage dual obligations of: (1.) carrying out fair and impartial investigations of EEO complaints that result in final agency decisions as to whether discrimination has occurred; and (2.) defending the Agency against claims of employment discrimination. The EEOC maintains that a clear separation between the Agency's EEO complaint program and the Agency's defensive function is the essential underpinning of a fair and impartial investigation. The EEOC has also held that an effective EEO program must be impartial, both in appearance and in existence. In this case, the EEOC found the Agency’s Office of Civil Rights and Diversity (ORCD) failed to maintain its impartiality in drafting the final decisions in Complainants’ cases. The OCRD acknowledged that, after the complaints were returned to the Agency for issuance of final decisions, it accepted the work product of the Agency’s GC which contained facts, legal citations, and a legal analysis. It was clear from the record that OCRD received the GC’s work product, reviewed it, and relied upon it in drafting the final decisions. The EEOC found these actions impinged on the integrity of the EEO decision-making process, \and were improper. Larraine D, Denese G, & Kerrie F. v. Agency for Int’l Dev., EEOC Appeal Nos. 2020003744, 2020003745 & 2020003746 (Nov. 9, 2021), request for reconsideration denied, EEOC Request Nos. 2022001084, 2022001085 & 2022001086 (Mar. 3, 2022).

Dismissals

(See also by category, this issue.)

Complaint Improperly Dismissed for Failure to Cooperate. The Agency dismissed Complainant’s complaint for failure to cooperate, stating that the complaint lacked the specificity necessary to frame the allegations. The Agency also noted that Complainant did not timely respond to its requests for relevant information regarding her complaint. On appeal, the EEOC found that the Agency should have framed the issues in the complaint and adjudicated the matter on its merits. Complainant provided at least three statements alleging discrimination and harassment on the bases of disability and reprisal. The statements all contained dates and sufficient information regarding the actions she was concerned with, such that the responsible management officials could respond to Complainant’s allegations. Therefore, the EEOC concluded that the Agency’s dismissal was improper. Scarlet S. v. Dep’t of the Army, EEOC Appeal No. 2021003985 (Dec. 21, 2021); Additional Decisions Addressing Dismissal for Failure to Cooperate Include: Helen G. v. U. S. Postal Serv., EEOC Appeal No. 2021005154 (Nov. 8, 2021) (Complainant’s lack of response was limited to a single request for an affidavit, and the Investigator obtained numerous documents as well as five affidavits related to the complaint. Thus, the Agency had sufficient information to adjudicate Complainant’s claim).

Complaint Dismissed Due to Lack of Jurisdiction Where Complainant Deemed Active Duty Military. Complainant, a Lieutenant Commander in the U.S. Public Health Service’s (USPHS) Commissioned Officer Corps on detail to the Agency, filed an EEO complaint alleging discriminatory and retaliatory harassment. In its initial appellate decision, the EEOC found that Complainant had been subjected to harassment. The Agency requested reconsideration, for the first time asserting that, as a USPHS Commissioned Officer, Complainant was deemed to be active-duty military, and thus was excluded from coverage under Title VII’s protection for federal employees. Since the EEOC had no jurisdiction over Complainant’s employment or to enforce the order in its previous decision, the EEOC vacated its prior appellate decision. The EEOC's jurisdiction in the federal sector complaint process extends to employees and applicants for federal employment and does not include “uniformed members of military departments.” Moreover, in this case, Complainant did not dispute the Agency’s assertion that she remained an active-duty commissioned officer in the USPHS throughout her detail to the Agency. Complainant argued that since the Agency first raised the jurisdictional defense on a request for reconsideration, it should be deemed waived. The EEOC, however, concluded that the Agency, through its agents, could not waive this jurisdictional defense. Thus, Complainant’s case was dismissed. Marleen G. v. Dep’t of Justice, EEOC Request No. 2021000825 (Nov. 15, 2021).

Complaint Improperly Dismissed for Contumacious Conduct. Complainant filed a formal complaint alleging that the Agency retaliated against him. The record indicated that Complainant retained counsel approximately two months after the investigation closed. Complainant requested that the Agency reopen the investigation. Complainant’s attorney explained that Complainant did not participate in the investigation “due to personal issues beyond his control.” The Agency denied Complainant’s request to reopen the investigation, and dismissed the matter for failure to cooperate. On appeal, the EEOC found that the dismissal was improper. Complainant’s attorney asserted that Complainant did not have legal representation during the investigative process, or a clear understanding of the EEO investigative process. In addition, Complainant had mitigating personal issues that prevented him from responding to the EEO Investigator. Complainant’s attorney noted Complainant informed the EEO Investigator that he thought the investigator was biased, and that he was experiencing stress from his pending eviction from his home. Complainant emailed the EEO Investigator on January 28, 2021, to inform the Investigator that he was living in a motel and did not have internet access. Under these circumstances, the EEOC determined the evidence did not support a finding that Complainant engaged in contumacious conduct which would merit dismissal of his complaint. Complainant, however, was advised to cooperate in the continued processing of the instant complaint or face possible future dismissal for failure to do so. Kristofer D. v. Fed. Retirement. Thrift Investment Board, EEOC Appeal No. 2021004213 (Oct. 26, 2021).

Agency Dismissal Reversed in Part. The Agency dismissed Complainant’s first three claims regarding a temporary detail, performance evaluation, and Letter of Expectation on the grounds that they had been raised in another pending case. The Agency dismissed three other claims concerning a fact-finding investigation for failure to state a claim and failure to contact an EEO counselor within the 45-day limitation period. On appeal, the EEOC affirmed the Agency’s finding that the first three complaints were duplicative of another pending complaint. However, the EEOC found that the remaining claims related to the formal fact-finding investigation constituted a materially adverse action and stated a viable claim of retaliation requiring additional investigation. While the Agency asserted that the 45-day limitation period began on February 12, 2021, when the fact-finding investigation concluded, Complainant argued that it should have begun on March 30, the date she became aware of the investigation’s results. The EEOC determined that March 30, 2021, was the date when Complainant reasonably suspected discrimination, and thus those claims were timely. Eryn O. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021004003 (Oct. 19, 2021).

Dismissal Affirmed in Part. Complainant filed a formal complaint alleging employment discrimination which included the Agency’s failure to reinstate her, not selecting her for four vacant positions, and convincing her to withdraw a complaint. The Agency dismissed the complaint for untimely EEO Counselor contact. The EEOC affirmed the dismissal of four claims for failure to timely contact an EEO Counselor because the claims involved separate, discrete acts, specifically the Agency’s repeated failure to reinstate Complainant ending in 2017, and nonselections in 2018 and 2019. These actions occurred well before Complainant contacted an EEO Counselor in 2020. In addition, the EEOC affirmed the dismissal of an allegation concerning a prior EEO claim as a spin-off complaint. However, the EEOC reversed the Agency’s dismissal of Complainant’s allegation that she was not selected for a position on September 28, 2020. Complainant requested to amend a prior complaint to add this claim in September 2020, and the record was inconsistent regarding the date on which Complainant raised the matter with an EEO Counselor. Thus, the EEOC found that the Agency’s dismissal of that claim was improper. Julie L. v. Dep’t of Veteran Aff., EEOC Appeal No. 2021003249 (Oct. 6, 2021), request for reconsideration denied, EEOC Request No. 2022000606 (Mar. 14, 2022).

Findings on the Merits and Related Decisions

Under the Rehabilitation Act

Denial of Reasonable Accommodation Found. Complainant claimed discrimination based on disability (Chronic Refractory Migraine and Asthma) when she was denied a reasonable accommodation. Previously, Complainant had an accommodation that allowed her to telework four out of five days per week. When her office moved to a different facility that exacerbated her symptoms, she sought to telework full-time. The Agency refused, arguing that Complainant failed to provide medical documentation explaining why she needed the fifth day. The Agency further argued that she was being accommodated by working in a darkened workspace (a former storage closet), she was provided a fan to keep her cool, and the air conditioning vents had been adjusted as per her request. On appeal, the EEOC found that the record clearly established that the accommodation was not effective and, contrary to the Agency’s assertions, the evidence clearly established that Complainant repeatedly and continuously told management officials over several months that the accommodation was not effective. The EEOC found that Complainant had provided medical documentation explaining her need to telework full-time. The medical evidence which the Agency found acceptable to grant Complainant four days of telework was no different than the evidence supporting her request for a fifth day. Management officials were unable to explain why allowing that fifth day was unreasonable or amounted to an undue hardship. The EEOC noted that while the Agency initially was responsive to Complainant’s medical needs, over time the Agency ceased to participate in the interactive process and unreasonably denied Complainant’s accommodation request to telework five days a week. The Agency was ordered, among other things, to allow Complainant to telework five days per week and to compensate her for any leave she was forced to use due to the Agency’s denial of her accommodation request. Fernanda H. v. Soc. Sec. Admin., EEOC Appeal No. 2020004066 (Dec. 21, 2021).

Agency Unnecessarily Delayed Responding to Request for Accommodation. Complainant alleged that the Agency denied him reasonable accommodation in the form of full-time telework. Complainant, who suffered from Chronic Inflammatory Bowel Disease (IBD), needed to constantly plan activities based on the closest restroom. After learning that the subway line he used to travel to and from work was scheduled to shut down for maintenance for approximately four months, Complainant informed his first-level supervisor that the closing of the subway would impede his normal commute by adding shuttle buses with no access to a restroom. On May 28, 2019, Complainant began working from home after the shutdown of the subway. The supervisor, however, informed Complainant that his request to telework had not been approved, and that he needed to take sick leave if he could not come into the office. Complainant then submitted a form requesting accommodation to the Agency’s Reasonable Accommodation Committee (RAC). Months later, he received a decision from his supervisor denying his request to telework as a reasonable accommodation. The following Monday, the subway line reopened and Complainant returned to the office. On appeal, the EEOC noted that Complainant first notified the supervisor of the subway closure and his need for a reasonable accommodation approximately seven months prior to its occurrence. Complainant did not receive a determination until almost one year later, by which time Complainant had already used hundreds of hours of sick leave. In addition, the subway line re-opened days later and Complainant no longer needed the accommodation. Therefore, the EEOC found that the Agency unnecessarily delayed providing Complainant with an effective reasonable accommodation, constituting a violation of the Rehabilitation Act. The Agency was ordered, among other things, to reimburse Complainant for any leave, paid or unpaid, taken during the period he was denied accommodation, and investigate his claim for damages. Orlando O. v. U.S. Postal Serv., EEOC Appeal No. 2020003910 (Dec. 17, 2021).

Improper Disclosure of Medical Information Found. Complainant filed a formal EEO complaint alleging, among other things, that a Supervisor disclosed her medical information to staff. Following a hearing, the AJ issued a decision finding that the Agency violated the Rehabilitation Act. On appeal, the EEOC determined that the substantial evidence of the record supported the AJ’s determination. There was no indication that the release of any medically related details regarding Complainant’s medical information was qualified under the limited exceptions to the confidentiality requirement. The EEOC did not address the AJ’s finding that Complainant failed to establish a hostile work environment or retaliation, as neither the Agency nor Complainant challenged those findings on appeal. The Agency was ordered, among other things, to pay Complainant $2,500 in proven non-pecuniary damage, and provide two hours of training to the supervisor and other managers and staff. Jeanie P. v. Dep’t of Justice, EEOC Appeal No. 2021004664 (Dec. 9, 2021).

Denial of Reasonable Accommodation Found. Complainant alleged, among other things, that the Agency denied her request for telework as an accommodation. Following a hearing, an AJ found that, while granting Complainant’s request for three-days of telework would have caused an undue hardship for the Agency, the Agency’s failure to grant two days of telework constituted a denial of reasonable accommodation in violation of the Rehabilitation Act. The EEOC affirmed the AJ’s finding on appeal. The record supported the AJ’s determination that Complainant’s supervisor and other Agency witnesses were not credible and contradicted prior affidavit statements about their understanding of whether the approved telework accommodation added an additional day of telework per week or merely kept Complainant at one day per week. Complainant requested three days of telework per week and provided medical documentation to support her request. The EEOC noted that, while the AJ correctly determined that providing three days of telework would result in an undue hardship, two days of telework per week would not result in undue hardship. The EEOC acknowledged that Complainant did not engage in the interactive process, but stated that the Agency had information from Complainant’s medical provider identifying what he believed was an effective accommodation, and the Agency did not seek additional information on whether one day of telework would also be effective. Thus, the Agency’s ability to provide effective accommodation was not hindered by Complainant’s failure to engage in the interactive process. The EEOC affirmed the AJ’s award of $10,000 in non-pecuniary compensatory damages. Gloria D. v. Dep’t of Agric., EEOC Appeal No. 2021002321 (Nov. 4, 2021).

Under Title VII

Agency Failed to Overcome Complainant’s Prima Facie Case of Sex Discrimination. Complainant alleged that the Agency discriminated against her on the basis of sex when it did not select her for the position of Chief of Primary Care. The EEOC found that Complainant established a prima facie case of discrimination. Specifically, the record showed she was qualified for the position, but was not selected in favor of a similarly situated male candidate. While the Agency provided a matrix of the scores given to the applicants who were not selected, the matrix did not include any information about the selectee. In addition, the record did not include affidavits or statements from any members of the selection panel, or interview notes for the selectee. Therefore, the EEOC concluded that the Agency did not meet its burden of production, as it failed to provide a specific, clear, and individualized explanation why Complainant was not selected for the position. The record contained only the bare numerical scores the panel gave Complainant and the other candidates who were not selected, without any testimony or documentary evidence explaining how the panel determined each score. The record contained no information regarding the selectee. The EEOC found, therefore, that Complainant was discriminated against on the basis of sex. The Agency was ordered, among other things, to offer Complainant the Chief of Primary Care position or a substantially equivalent position, with back pay and appropriate benefits, and investigate her claim for damages. Pamala L. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021001021 (Dec. 13, 2021).

EEOC Affirmed AJ’s Finding of Sex Discrimination in Performance Ratings. Complainant alleged that she was discriminated against on the basis of sex when she received ratings of “Satisfactory” for two quarterly progress reviews and her final evaluation. An AJ issued a decision without a hearing finding discrimination. On appeal, the EEOC determined that a preponderance of the evidence supported the AJ’s finding of discrimination. The Warden and a Lieutenant determined that Complainant should have received an “Excellent” rating. Further, the Agency’s stated reasons for the rating were not supported by the record. The narrative accompanying Complainant’s rating did not contain any specific information, but merely subjective, overbroad statements. Thus, the AJ correctly concluded that the Agency’s stated reasons for the rating were a pretext for discrimination. The EEOC noted that, in fact, the Agency admitted on appeal that Complainant deserved an “Excellent” rating. The EEOC rejected the Agency’s attempt to articulate a new nondiscriminatory reason on appeal. The EEOC affirmed the AJ’s award of $7,000 in compensatory damages. Maria D. v. Dep’t of Justice, EEOC Appeal No. 2021001182 (December 2, 2021).

Under Multiple Bases

Disability Discrimination and Reprisal Found Regarding Nonselection. Complainant filed EEO complaints on the bases of disability and reprisal when he was not referred by Agency Human Resources (HR) officials for further consideration for two positions. The Agency found unlawful retaliation with respect to the non-referral for both positions, as well as disability discrimination with respect to one of the positions. Complainant appealed to the EEOC to find disability discrimination and reprisal in both non-referrals. On appeal, the EEOC affirmed the Agency’s findings in their entirety. Preliminarily, the record indicated that Complainant had established a prima facie case of unlawful retaliation based on the successful prosecution of a prior EEO complaint shortly before the instant matter. In the first disputed non-referral, the EEOC found that the Agency had failed to articulate a legitimate, non-discriminatory reason for the personnel action, as the HR official could not recall why she failed to refer Complainant. The evidence of record, however, showed Complainant would not have been selected due to his qualifications. Thus, the EEOC found in Complainant’s favor with respect to reprisal, but not disability discrimination. In the second disputed non-referral, the HR official who failed to refer Complainant’s application had been named in a prior EEO complaint in which the EEOC found discrimination shortly before the HR official denied Complainant’s referral. Moreover, Complainant established the Agency’s proffered reason for not referring him (that his college-level courses were insufficient) was pretextual, as the evidence did not support this rationale. The EEOC noted that Agency officials denied knowledge of Complainant’s disabilities, even though Complainant’s application referred to his disabilities and need for an accommodation. Accordingly, the EEOC ordered the Agency, among other things, to offer Complainant retroactive placement into one of the positions with appropriate backpay, and investigate his claim for compensatory damages. James R. v. Dep’t of the Interior, EEOC Appeal No. 2020004036 (Nov. 22, 2021).

Retaliation

Retaliation Found During Pre-Complaint Process. In a final decision, the Agency determined that Complainant had been subjected to reprisal during his final EEO pre-complaint interview. Specifically, he learned that a management official interviewed by the EEO Counselor had expressed dislike of the EEO process and stated that he believed employees should have to pay to file a complaint. The EEO Counselor showed Complainant a draft counseling report referencing the management official’s statements. On appeal, the EEOC concurred with the Agency’s finding of reprisal. The Agency did not deny that the management official had made the statement documented by the EEO Counselor. In addition, the record supported that when Complainant received a hard copy of the final report, he informed the EEO Counselor that he noticed the comment at issue had been removed. Subsequently, the Agency confirmed that the EEO Counselor had been directed by the EEO Manager to remove the comment. In conclusion, the EEOC determined that the comment could, on its face, discourage an employee from participating in the EEO process. In addition, Complainant in this case testified that he believed the management official thought EEO complaints were frivolous, and that having employees pay a fee would deter people from making complaints. The EEOC held that the Agency properly determined that Complainant was subjected to an attempt to actively discourage his participation in the EEO complaint process in violation of the anti-retaliation provisions of Title VII. The EEOC affirmed the Agency’s finding of no discrimination with regard to two other claims. The Agency was ordered, among other things, to investigate Complainant’s claim for damages. Bert P. v. Dep’t of the Army, EEOC Appeal No. 2020003846 (Nov. 15, 2021).

Complainant Reprimanded in Retaliation for Engaging in EEO Activity. The EEOC affirmed the AJ’s decision finding that the Agency discriminated against Complainant based on retaliation when it issued her a reprimand. While the Agency asserted that Complainant did not engage in protected EEO activity, it was undisputed that she engaged in such activity when she initiated her EEO complaint. In addition, the responsible management officials confirmed that they learned of the complaint 17 days prior to issuing the reprimand. The EEOC determined that substantial evidence supported the AJ’s determination that the Agency’s reasons for the reprimand were pretextual, as Complainant’s supervisors did not issue the reprimand or follow up on Complainant’s alleged misconduct until after they learned that she had taken EEO action. Further, the supervisor did not place the reprimand in Complainant’s Official Personnel File or initiate the process to do so. Thus, the AJ properly determined that the reprimand was intended to chill Complainant’s EEO activity. The EEOC denied the Agency’s request to reduce Complainant’s award of attorney’s fees by two-thirds, finding that Complainant’s claims were not fractionable because they involved the same facts, and thus the AJ’s award of attorney’s fees was appropriate. However, the EEOC modified the awarded costs to exclude deposition costs for witnesses related to one of Complainant’s unsuccessful claims. Karolyn E. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2021003151 (Oct. 19, 2021).

Retaliation Found When Complainant Was Reassigned. Complainant filed an EEO complaint alleging, among other things, that the Agency subjected her to reprisal. Following a hearing, the AJ found that Complainant had persuasively shown that she had been subjected to reprisal when management told her that she was “the problem,” “the one causing all of the drama,” and “problems always surround her.” The AJ also found that Complainant was subjected to reprisal when management reassigned her after she complained about harassment. On appeal, the EEOC declined to review the AJ’s finding of discrimination based on Complainant’s reassignment, stating that the Agency’s failure to address that finding in its final order was tantamount to an acceptance of the AJ’s finding. As for the comments, the EEOC found that substantial evidence in the record supported the AJ’s finding, given that a reasonable person could view the statements as retaliatory. While the Agency asserted that the AJ misunderstood the context of the communication, the EEOC noted that the AJ carefully listened to Complainant’s hearing testimony and credited her version of the events. Thus, the EEOC affirmed the AJ’s finding of reprisal. The EEOC also affirmed the AJ’s award of $10,000 in proven compensatory damages. Gwendolyn G. v Dep’t of Justice, EEOC Appeal No. 2021001396 (Oct. 18, 2021).

Retaliation and Retaliatory Harassment Found. The EEOC found that Complainant was subjected to retaliatory harassment when he was warned that he “better be careful” because, if he continued to file complaints, “they will come after him.” A senior official remarked that he gets upset when Complainant files complaints because he must complete affidavits or “answer questions.” A management official confirmed that she informed Complainant about the comments and the Agency’s attempts to legally “stop” his EEO activity. Another management official stated in his affidavit that he believed Complainant’s complaints were “ridiculous.” The EEOC found that these actions would have a sufficiently chilling effect and deter a reasonable person from filing EEO complaints. In addition, the EEOC found that Complainant was subjected to retaliation when his supervisors failed to timely approve, respond to, or follow through with processing Complainant’s leave requests; denied his request to telework; removed his ability to telework one day per week; and issued him a Counseling Memorandum. The record showed that there was a short period of time between the responsible management officials’ learning of Complainant’s protected EEO activity and the adverse actions. Although the Agency proffered legitimate nondiscriminatory reasons for its actions, the evidence showed that they were pretexts for discrimination. A supervisor stated that he did not have easy access to Complainant’s leave requests, and that he was unable to approve leave requests for most of the supervisors in the division. However, the record showed that this supervisor previously approved Complainant’s leave requests but left his subsequent leave requests as “pending.” Regarding Complainant’s telework request, a supervisor stated that he denied it because Complainant did not explain why he was requesting telework. The record showed, however, that Complainant’s prior telework requests, which did not include reasons, were repeatedly approved and that Complainant had, in fact, provided an explanation for the telework request at issue. In addition, Complainant’s telework agreement did not show a restriction on the number of telework days for Episodic/Situational Telework. With regard to the memorandum, it was undisputed that the supervisor did not contact Complainant prior to emailing the Counseling Memorandum as stipulated in the Agency’s discipline policy. The EEOC affirmed the Agency’s finding of no harassment or discrimination regarding other claims. The Agency was ordered, among other things, to rescind the Counseling Memorandum, and investigate Complainant’s entitlement to compensatory damages. Terrance A. v. Dep’t of the Treasury, EEOC Appeal No. 2020002047 (Sept. 13, 2021), request for reconsideration denied EEOC Request No. 2022000139 (Feb. 9, 2022).

Sanctions

AJ’s Dismissal of Hearing Request as Sanction Was Too Harsh. Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment. Following an investigation, Complainant requested a hearing before an AJ. After Complainant’s attorney became ill, she filed a motion for an extension of time to respond to the Agency’s discovery requests. Complainant’s second attorney also filed a motion for an extension. The AJ denied Complainant’s extension request, and instructed Complainant to show cause why her hearing request should not be dismissed as a sanction. Complainant responded, but the AJ dismissed the hearing request for non-compliance with his orders. The Agency subsequently issued a final decision finding no discrimination. On appeal, the EEOC found that the AJ’s sanction was too harsh to address the conduct at issue. Complainant’s stated reason for her noncompliance was that her first attorney could no longer represent her due to being away on extended medical leave. Complainant’s new attorney immediately contacted the AJ and the Agency in order to ascertain pending deadlines and was commended by the AJ for doing so. The EEOC stated that the prejudicial effects were minimal because the Agency agreed to an extension and Complainant’s second attorney responded to the Agency’s discovery requests on the same day she responded to the AJ’s show cause order. The EEOC concluded that there was no evidence that Complainant or her attorneys engaged in the kind of willful or obstinate refusal to comply with an AJ’s orders that typifies contumacious conduct. As a result, the EEOC determined that a lesser sanction would have been more appropriate to address Complainant’s noncompliance with the AJ’s order, and the EEOC remanded the matter for a hearing. Wilma B. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020003672 (Dec. 2, 2021).

EEOC Found AJ’s Issuance of Default Judgment as Sanction Was Too Harsh. An AJ sanctioned the Agency with a default judgment in favor of Complainant for failing to transmit the report of investigation (ROI) to Complainant within 180 days, as well as failing to issue the notice of an untimely investigation required by the EEOC’s regulations. On appeal, the EEOC found that the Agency did, in fact, violate the regulations requiring the completion of the investigation and issuance of associated notices. The EEOC concluded, however, that a more narrowly tailored sanction would be more appropriate. The EEOC has held that sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. In this case, even without the notice, Complainant requested a hearing and the Agency immediately provided Complainant with the ROI upon receiving notice of her hearing request. As such, there was no evidence that the Agency’s delay directly harmed Complainant. The EEOC concluded that an evidentiary sanction was more appropriate, and the Agency would not be allowed to use affidavits or exhibits contained in the ROI to support either a motion to dismiss or a motion for summary judgment. Moreover, during the hearing, the Agency cannot rely on affidavits contained in the ROI in lieu of witnesses who are unavailable to testify. Such a sanction should effectively emphasize to the Agency the need to comply with the EEOC’s regulations pertaining to the investigation of complaints. The EEOC remanded the complaint for a hearing, noting that its decision would leave no findings on the merits of the complaint. Melissa H. v. Dep’t of Homeland Sec., EEOC Appeal No. 2021000696 (Nov. 10, 2021).

Settlement Agreements

Settlement Agreement Void for Lack of Consideration. The parties entered into a settlement agreement that provided, in pertinent part, that they would participate in a joint meeting to discuss any work-related issues within 45 days and would speak to each other with dignity and respect. The meeting did not take place, despite Complainant’s numerous emails to the EEO Specialist who was supposed to facilitate the meeting. On appeal, the EEOC found that the agreement was void for lack of consideration. The agreement provided only that the parties would “discuss” work-related issues and did not specify a plan or obligation on the Agency to take any action or provide Complainant with anything to which he was not already entitled. The agreement provided no relief or benefit to Complainant. The Agency was ordered to resume processing of the underlying EEO complaint. Valentin P. v. U.S. Postal Serv., EEOC Appeal No. 2021001317 (Dec. 14, 2021).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that the Agency would provide Complainant with “priority consideration” for any specific Group Manager position for a period of two years. Complainant alleged that the Agency breached the agreement when it failed to hire him for such a position. On appeal, the EEOC found that the Agency failed to show that it offered Complainant bona fide priority consideration when it selected another candidate for the position in question. The Agency correctly noted that the agreement did not guarantee Complainant placement into a position. The Agency, however, did not explain how Complainant was given priority consideration. The EEOC has held that the commonly accepted meaning of the term “priority consideration” is that the selecting official reviews and makes a determination on the priority candidate’s application before considering other candidates. In this case, the record showed that interviews were conducted with non-priority candidates prior to Complainant’s interview. Thus, the EEOC concluded that, at the very least, Complainant’s application was reviewed either along with or after the other candidates. As such, Complainant did not receive priority consideration, and the Agency breached the settlement agreement. While Complainant indicated that he wished to reinstate his complaint, the EEOC noted that if a complaint is reinstated for further processing, the parties must be returned to the status quo at the time that the parties entered into the settlement agreement. This would require that Complainant return or forego any benefits received pursuant to the settlement agreement. Jesse R. v. Dep’t of Transp., EEOC Appeal No. 2021003413 (Nov.4, 2021).

No Breach of Settlement Found. The parties entered into a settlement agreement on August 31, 2020, that provided, in pertinent part, that Complainant would remain in a detail assignment until such time as he could be reassigned to one of three specified GS-7 level positions within the following 24 months. The parties agreed to extend the agreement if such a position did not become available during the specified period. In March 2021, Complainant alleged that the Agency breached the agreement when it placed another individual into one of the positions specified in the agreement at the GS-9 level. The EEOC found that the Agency did not breach the agreement. A fair reading of the language of the agreement, which specifically included the GS-7 level modifier prior to the named positions, indicates that the GS-7 level applied to each of the three positions. The Agency confirmed that there had been no such available positions during the relevant period. Michel H. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021003602 (Oct. 25, 2021).

Stating a Claim

Agency Improperly Dismissed Harassment Claim. The EEOC found that the Agency improperly defined Complainant’s formal complaint as alleging only a single incident involving his placement on Administrative Leave during an investigation, and dismissed the matter for failure to state a claim. A fair reading of the complaint and EEO Counselor’s report indicated that the claim was more expansive and alleged ongoing harassment. Complainant specifically alleged that he was confronted with multiple sexual rumors involving himself and several coworkers over a number of years. Therefore, Complainant stated a viable claim of harassment. Neville B. v. U.S. Postal Serv., EEOC Appeal No. 2021005028 (Dec. 14, 2021).

Allegation of Ongoing Denial of Reasonable Accommodation Stated a Claim. The Agency defined Complainant’s complaint as alleging discrimination when he was sent home from work on two occasions for not wearing a face mask, and when his reasonable accommodation request was denied on two subsequent occasions. The Agency dismissed the first claim for failure to timely contact an EEO Counselor, and the second claim for failure to state a claim. The Agency asserted that, after raising the denial of reasonable accommodation with the EEO Counselor, Complainant abandoned the matter when he did not raise it in his formal complaint. On appeal, the EEOC reversed the dismissal. The matters identified by the Agency both related to Complainant’s singular ongoing denial of a reasonable accommodation claim, and the EEOC found that Complainant raised the issue in his formal complaint. Thus, he had stated a viable claim. The EEOC further found that the Agency improperly dismissed Complainant’s complaint for untimely EEO Counselor contact. The EEOC noted that because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it. Wade K. v. U.S. Postal Serv., EEOC Appeal No. 2022000215 (Dec. 9, 2021).

Agency Improperly Dismissed Harassment Claim. The EEOC found that the Agency too narrowly defined Complainant’s complaint, and improperly dismissed the matter for failure to state a claim. A fair reading of the formal complaint and the related EEO counseling report indicated that a more accurate definition of the claim was alleging an ongoing pattern of harassment, and the Agency’s dismissal did not reflect the totality of Complainant’s claims. For example, Complainant alleged that a named Supervisor violated Agency rules by soliciting sensitive information about Complainant, her family, and her living situation. Complainant’s supervisor also insisted that Complainant drive a trailer without proper functioning lights. The EEOC found that, by alleging such a pattern of harassment and retaliation, Complainant stated a cognizable claim under the EEOC’s regulations. Ellen C. v. U.S. Postal Serv., EEOC Appeal No. 2021005045 (Dec. 6, 2021).

Complainant Stated Viable Claim of Retaliatory Harassment. The Agency defined Complainant’s complaint as alleging retaliation when he was intimidated on four occasions, co-workers were allowed longer breaks, and a supervisor instructed Complainant to provide a copy of his restrictions. The Agency dismissed the complaint for failure to state a claim. On appeal, the EEOC reversed the dismissal, noting that a review of the formal complaint and EEO Counselor’s report revealed that Complainant was alleging an ongoing pattern of retaliatory harassment that was not limited to the incidents described by the Agency. For example, Complainant also stated that he was subjected to ongoing heightened scrutiny by his supervisor. Blake H. v. U.S. Postal Serv., EEOC Appeal No. 2021003579 (Nov. 18, 2021), request for reconsideration denied, EEOC Request No. 2022001053 (Mar. 22, 2022).

Complainant Stated Viable Claim of Harassment. Complainant filed a formal complaint alleging that Agency subjected him to discrimination and reprisal for prior protected EEO activity. Specifically, Complainant stated that he was falsely accused of sexual harassment and terminated. Complainant included a narrative providing a series of events that followed his termination. The Agency dismissed the complaint for failure to state a claim. On appeal, the EEOC found that a fair reading of the formal complaint revealed that Complainant alleged that the Agency subjected him to harassment. While the Agency asserted that it was not aware of any termination action, and had to investigate allegations of sexual harassment, the EEOC noted that those arguments go to the merits of Complainant’s claim and were irrelevant to the procedural issue of whether the matter stated a claim. Thurman L. v. U.S. Postal Serv., EEOC Appeal No. 2021004392 (Nov. 8, 2021).

Complainant Stated Viable Harassment Claim. The Agency stated that Complainant did not claim any personal loss or harm related to a term, condition, or privilege of employment. Complainant had alleged that she was sexually harassed and had her life threatened by a co-worker. The co-worker was assigned to another location after Complainant reported the matter, but later returned to the facility. Complainant stated that the co-worker’s return caused her to relive the traumatic physical and verbal sexual harassment. The EEOC determined that Complainant was alleging she was subjected to ongoing harassment when Agency management failed to protect her from the co-worker, most recently when he was allowed to return to the facility in February 2021. As such, Complainant stated a viable claim of harassment in violation of Title VII that required investigation and further processing. Melodee M. v. U.S. Postal Serv., EEOC Appeal No. 2021004129 (Oct. 27, 2021).

Agency Improperly Addressed the Merits of the Claim When Dismissing the Complaint. The EEOC reversed the Agency’s dismissal of Complainant’s complaint for failure to state a claim. Complainant alleged a hostile work environment and harassment based on her former Postmaster improperly sharing her confidential health information with her current Postmaster. Complainant also cited a phone call that resulted from those records being shared. The EEOC found that the Agency’s reasons for dismissal addressed the merits of the claim without a proper investigation as required by the regulations. The EEOC determined that Complainant asserted a viable claim of harassment based on the alleged violation of medical confidentiality under the Rehabilitation Act. Complainant asserted that the actions of the current and former Postmasters in accessing and sharing her confidential medical records were not job-related and consistent with business necessity. Lelia D. v. U.S. Postal Serv., EEOC Appeal No. 2021003679 (Oct. 18, 2021).

Complaint Properly Dismissed as a Collateral Attack on Another Proceeding. Complainant alleged that the Agency subjected her to reprisal for prior EEO activity by failing to assist her with an Office of Workers’ Compensation Programs (OWCP) claim after an on-the-job injury. Additionally, she indicated that her OWCP claim was denied and she was required to return any Continuation of Pay she received. The Agency dismissed the complaint for failure to state a claim, finding that the matter was a collateral attack on the OWCP process. The EEOC affirmed the dismissal, stating that the proper forum for the claim was with the Department of Labor. Kit R. v U.S. Postal Serv., EEOC Appeal No. 2021004480 (Oct. 18, 2021).

EEOC Found Insufficient Evidence to Support Finding the Agency Was a Joint Employer. Complainant, a contractor working at the Agency, filed a formal complaint alleging discrimination when he was subjected to sexual harassment and terminated in November 2019. Following a supplemental investigation, the Agency dismissed the complaint for failure to state a claim because Complainant was a contractor and not an Agency employee or applicant. The EEOC determined that Complainant’s relationship with the Agency was not sufficient for the Agency to be considered as a joint employer for purposes of the EEO complaint process. While Complainant used Agency equipment and worked at an Agency facility, a Contractor Team Lead assigned and supervised Complainant’s work, and completed his performance reviews. Further, while the Agency ultimately requested that Complainant not return to the Agency, it did not remove Complainant from the contract. Instead, it was the Contractor that decided to terminate Complainant following the Contractor’s own internal investigation. Thus, the EEOC affirmed the dismissal. Bert G. v. Dep’t of Def., EEOC Appeal No. 2021003033 (Oct. 18, 2021); Additional Decisions Addressing the Issue of Joint Employment Include: Zenobia P. v U.S. Postal Serv., EEOC Appeal No. 2021003767 (Dec. 2, 2021) (there was sufficient evidence to establish that the Agency was Complainant’s joint employer where the Agency had the actual power to terminate Complainant and, in fact, made the termination decision. No evidence was shown that the staffing firm autonomously made the decision to end Complainant’s contract).

Summary Judgment

Summary Judgment Affirmed. Complainant alleged discrimination when, beginning in August 2015, she was charged with Absent-Without-Leave (AWOL) while conducting a change of command inventory with her military unit, and when she received a disciplinary action for leaving her Common Access Card unattended. In February 2016, Complainant was also required to submit an Army Reserve Drill schedule memorandum, and in April 2016 she was the only employee required to report when she arrived at and departed from work, and how many students she trained while the Supervisor was on leave. Complainant was terminated during her probationary period in May 2016. An AJ ultimately issued a decision without a hearing in favor of the Agency. On appeal, the EEOC was not persuaded by Complainant’s assertion that she did not have sufficient time to respond to the AJ’s notice of intent to issue a decision by summary judgment, noting that the AJ could have issued the decision on their own motion. Further, Complainant failed to show the AJ abused their discretion in issuing a decision without a hearing. The EEOC also determined that the Complainant failed to show there was a material factual dispute in the record, or that the Agency’s actions were motivated by race or retaliation. The EEOC, therefore, affirmed the AJ’s decision. Tara L. v. Dep’t of the Army, EEOC Appeal No. 2020003827 (Oct. 19, 2021).

Summary Judgment Affirmed. Complainant alleged the Agency subjected her to harassment, denied her accommodation request, and terminated her employment. An AJ issued a decision by summary judgment in favor of the Agency, which Complainant appealed. The EEOC upheld the AJ’s decision, finding that Complainant had not identified material facts of record that were in dispute or presented further material evidence establishing facts in dispute. The EEOC found that comments and disagreements between Complainant and her supervisor were not pervasive or abusive. Complainant’s accommodation request was based on her scheduling preferences rather than a disability, and Complainant’s employment was terminated during her probationary period for the legitimate reason of her failure to be sufficiently present at her duty station. Marissa T. v. Dep’t of Justice, EEOC Appeal No. 2020003606 (Oct. 18, 2021).

Summary Judgment Affirmed. Complainant alleged that the Agency subjected him to a hostile work environment and harassment resulting in his termination. An AJ granted the Agency’s request for summary judgment in the Agency’s favor, which Complainant appealed. The EEOC affirmed the AJ’s decision. The EEOC found that, even considering the evidence in a light most favorable to Complainant, his allegations of harassment and a hostile workplace environment involved routine work assignments, instructions, and admonishments and did not rise above the level of common workplace occurrences. Additionally, Complainant was a probationary employee when he was terminated. Thus, he was eligible for termination at the Agency’s discretion as long as the termination was not based on a protected category. The EEOC found ample evidence supporting the Agency’s non-discriminatory rationale for terminating Complainant, including making profane remarks to his supervisors, poor performance, and a lack of professionalism. The EEOC did not find evidence that the Agency’s actions were pretext for discrimination. Ken M. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020004868 (Oct. 18, 2021).

Summary Judgment Reversed. Complainant filed a formal EEO complaint alleging discrimination and denial of reasonable accommodation. An AJ issued a decision by summary judgment finding no discrimination. On appeal, the EEOC found that the matter warranted further development of the record and credibility determinations, and remanded the complaint for a hearing. During the investigation of Complainant’s claim concerning reassignment to a different work area, Complainant asserted that she was subjected to sexual comments by a patient. Complainant stated that she informed her supervisor about the comments and noted the comments in the patient’s chart. Complainant also raised the issue during her deposition at the administrative hearing stage, describing the comments as “harassment.” The EEOC noted that an agency must take reasonable care to protect employees from harassment and may be liable for harassment by non-employees if it knew or should have known of the actions. There was no evidence in the record showing that the EEO Investigator advised Complainant of the process to request an amendment to her complaint, and the AJ did not address the matter. Thus, the EEOC remanded the matter, noting that Complainant was entitled to have the claim adjudicated by an AJ. The EEOC declined to fragment the sexual harassment claim by addressing the remaining claims on the merits. While the EEOC found that the AJ properly dismissed two claims to the extent Complainant was alleging a violation of the Family and Medical Leave Act, the EEOC stated that Complainant was also requesting leave as a reasonable accommodation and those matters should be addressed on remand. Tess W. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020003516 (Dec. 22, 2021).

Timeliness

Complainant Timely Contacted EEO Counselor Within 45 Days of Reasonably Suspecting Discrimination. The EEOC reversed the Agency’s dismissal of Complainant’s complaint on the grounds that Complainant did not contact an EEO Counselor within 45 days of the allegedly discriminatory action. Complainant alleged racial discrimination in not being selected for job vacancies on four instances: February 28, 2020, August 8, 2020, September 10, 2020, and January 8, 2021. Complainant contacted an EEO Counselor on February 25, 2021. The Agency dismissed the complaint for timeliness because three of the alleged incidents happened outside of the 45-day time limit. The EEOC uses a “reasonable suspicion” standard to determine when the 45-day period begins. The Complainant asserted that he did not suspect discrimination until he learned the identity and race of the selectee for the most recent position for which he had applied on February 20, 2021. The EEOC found that the Complainant did not reasonably suspect race discrimination until that date, and thus his counselor contact was properly within the 45-day time limit. Sidney S. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021004173 (Oct. 20, 2021).

Agency Failed to Show Complainant’s EEO Contact Was Untimely. The EEOC reversed the Agency’s dismissal of the complaint on the grounds that Complainant did not contact an EEO Counselor within 45 days of the allegedly discriminatory action. Complainant contacted a counselor on January 19, 2021 regarding a denied transfer that he claims occurred on December 20, 2020. The Agency alleged that the transfer denial occurred on September 25, 2020. Per EEOC precedent, the Agency always bears the burden of presenting sufficient information to support a determination as to timeliness. In this case, the Agency did not provide a copy of the letter denying Complainant’s transfer or other evidence of the date sufficient to meet this burden. Thus, using Complainant’s date of December 20, 2020, his contact with the EEOC Counselor on January 19, 2021 was properly within the 45-day window. Mohammed H. v. U.S. Postal Serv., EEOC Appeal No. 2021004426 (Oct. 14, 2021).

Complainant Failed to Timely Contact an EEO Counselor. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when he was not selected for a supervisory position on April 26, 2021. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, and the EEOC affirmed the decision on appeal. The record showed that Complainant did not contact an EEO Counselor until June 16, 2021, which was beyond the 45-day limitation period. While Complainant stated that he was waiting on additional information prior to initiating his complaint, the EEOC has adopted a “reasonable suspicion” standard (as opposed to a “supporting facts” standard) to determine when the limitation period is triggered. In this case, the time limitation was triggered when Complainant was not selected for the position. While Complainant stated that he had engaged the union to participate in the process, utilization of other agency proceedings, including union grievances, does not toll the time limit for contacting an EEO Counselor. Therefore, Complainant failed to provide sufficient justification for extending the limitation period. Johnson P. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021004567 (Dec. 22, 2021).

Complaint Properly Dismissed for Untimely EEO Counselor Contact. The EEOC affirmed the Agency’s dismissal of the complaint for failure to timely contact an EEO Counselor. Complainant alleged discrimination when he was removed from a team on July 19, 2018. The EEO Counselor’s report indicated that Complainant did not seek counseling until September 18, 2018, which was beyond the 45-day limitation period. While Complainant stated that he contacted the EEO Office in August 2018, he acknowledged that he simply wanted to learn more about the EEO process. Therefore, the EEOC found that Complainant did not display an intent to pursue the EEO complaint process at that time. Therefore, the Agency’s dismissal was proper. Garrett M. v. Dep’t of the Army, EEOC Appeal No. 2019002331 (Dec. 14, 2021).

Complainant Failed to Timely Contact an EEO Counselor. The EEOC affirmed the Agency’s dismissal of Complainant’s complaint on the grounds that Complainant did not contact an EEO Counselor within 45 days of the allegedly discriminatory action. Complainant received a notice of removal on August 4, 2020 but did not contact an EEO Counselor until January 19, 2021. Complainant filed an administrative grievance immediately after being removed and contended that this should toll her time limit for contacting an EEO Counselor. The EEOC found, however, that she had been notified of her rights and the applicable timeline for initiating an EEO complaint. Further, the EEOC has consistently held that the use of internal agency procedures and other remedial processes do not toll the time limit for contacting an EEO counselor. Alene S. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021004389 (Oct. 19, 2021).

Complainant Failed to Provide Sufficient Justification for Extending Time Limitation Period for Initiating EEO Contact. The Agency defined the complaint as alleging discrimination in an April 2019 non-selection and dismissed the complaint for failure to timely contact an EEO Counselor. The EEOC affirmed the dismissal on appeal. The EEOC stated that Complainant raised various claims that were distinct from one another and occurred over a 12-year period, and that Complainant failed to articulate an ongoing pattern of harassment. Since the most recent event occurred no later than May 27, 2020, Complainant’s contact with the EEO Counselor in November 2020 was beyond the 45-day limitation period. The EEOC determined that Complainant failed to put forth needed evidence to justify extending the application time limit. Lenard H. v Dep’t of the Army, EEOC Appeal No. 2021004165 (Oct. 18, 2021).

Agency Failed to Meet Its Burden of Proving Untimeliness. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant received notice of his right to file on July 9, 2021, but did not file his complaint until July 28, 2021. The U.S. Postal Service tracking system indicated that the “item” was delivered to an agent for final delivery on July 9. There was no other evidence showing when Complainant received the notice, and Complainant denied receiving it or signing for it on July 9. The EEOC noted that an agency always bears the burden to prove untimeliness. In this case, the Agency failed to present sufficient evidence to support its determination. Thus, the dismissal was improper. Phillip M. v. U.S. Postal Serv., EEOC Appeal No. 2021005166 (Dec. 15, 2021). Additional Decisions Addressing Agency’s Failure to Prove Untimeliness Include: Joanna G. v. U.S. Postal Serv., EEOC Appeal No. 2021004450 (Nov. 22, 2021) (Agency failed to prove that Complainant received the notice of right to file a formal complaint on March 3, 2021, as it claimed. While the Postal Service Track and Confirm receipt included a notation of “COV 19” in the signature line, the notice did not contain any identifying signature or note Complainant’s name as the Agency stated. Thus, the record failed to establish when Complainant received the notice, and there was insufficient evidence to show the complaint was untimely filed.)

Complaint Was Timely Filed. Complainant filed a formal complaint alleging discrimination on the bases of race, sex, and reprisal, including allegations regarding the denial of several of her leave requests. The Agency dismissed her complaint on grounds that it was untimely filed. The Agency correctly noted that the 15-day filing period expired on a Saturday, but the Agency failed to consider that the next business day was Tuesday June 1, as Monday was a federal holiday. The EEOC determined that that the complaint was timely filed on June 1. Kathie N. v U.S. Postal Serv., EEOC Appeal No. 2021004340 (Oct. 18, 2021).

Complainant Failed to Provide Adequate Justification for Extending the Period for Filing a Complaint. It was undisputed that Complainant received a Notice of Right to File her formal EEO complaint on May 12, 2021, and the EEO Specialist stated that the Notice explained the 15-day limitation period. Nevertheless, Complainant did not file her complaint until May 30, 2021, after the 15-day limitation period. Complainant stated that she was under tremendous stress at that time. The EEOC has held, however, that a complainant must establish that they were so physically or emotionally incapacitated that they were unable to make a timely filing, and Complainant did not submit any medical documentation to support a finding that she was incapacitated. The EEOC also noted that Complainant’s fear of reprisal was insufficient to justify extending the filing period. Thus, the Agency’s dismissal of the complaint was proper. The EEOC advised Complainant to contact an EEO Counselor if she wished to pursue new additional claims. Hyo E. v. Dep’t of the Army, EEOC Appeal No. 2021004160 (Dec. 23, 2021).

The DIGEST of Equal Employment Opportunity Law

Selected EEOC Decisions Regarding:

SELECTED EEOC DECISIONS

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The DIGEST of Equal Employment Opportunity Law

Selected EEOC Decisions Regarding:

SELECTED EEOC DECISIONS

Compensatory Damages

Complaint Processing

Conflict of Interest

Dismissals

Findings on the Merits and Related Decisions