Carlton M. Hadden, Director, OFO
Donald Names, Director, OFO Special Services Staff
Digest Staff
Editor: Arnold Rubin
Writers: Robyn Dupont, Arnold Rubin, Gerard Thomson, James Meiburge

Available in accessible formats for persons with disabilities. The Digest is now available online through EEOC's homepage at www.eeoc.gov. If you wish to receive a copy in print, you must send a request, in writing, to Arnold Rubin, EEOC, Office of Federal Operations, 1801 L Street, N.W. Washington, D.C. 20507.

SELECTED EEOC DECISIONS

Adverse Inferences

(See also, "Sanctions," this issue—Ed.)

Adverse Inference Properly Drawn.Although the Commission concluded, in this nonselection case, that the EEOC Administrative Judge's (AJ's) finding of discrimination was not supported by substantial evidence in the record, the Commission agreed that the AJ properly drew an adverse inference against the agency. The AJ found that the record lacked the selecting official's notes, including a matrix prepared by the selecting official based on applicant qualifications and quality ranking factors, as well as the interview notes, because the agency had failed to maintain this evidence. The Commission noted that agencies have a duty to maintain pertinent evidence upon receiving notice that a complainant has initiated the EEO process.

Although the Commission found the destruction of the documents at issue to be inadvertent, and there was no evidence that the agency acted in bad faith, the Commission stated that its regulations do not require a finding of willfulness or bad faith. Thus, the AJ acted within her discretion in drawing an adverse inference against the agency regarding the lack of the selecting official's notes, including the matrix. The appropriate adverse inference for the AJ to have drawn was that the missing information would have reflected unfavorably on the agency. The balance of the record, however, did not establish that complainant's qualifications were plainly superior to the qualifications of the selectee so as to establish that the agency's reasons for choosing the selectee were a pretext for discrimination. Cosentine v. Department of Homeland Security, EEOC Appeal No. 07A40114 (August 9, 2006), request to reconsider denied, EEOC Request No. 05A61066 (September 28, 2006).

Attorney's Fees

Fee Award Reduced.Following a finding of discrimination by an Administrative Judge (AJ), the agency appealed the matter to the Commission, which upheld the AJ's decision (AJD). Subsequently, complainant submitted a fee petition to the agency claiming that two attorneys and a paralegal spent 155 hours replying to the agency's appeal. The agency denied 42 hours for work done in relation to an unsuccessful Motion to Dismiss, and reduced by 20 percent the claimed number of hours worked on a reply brief. The agency also reduced the hours claimed for work on the fee petition by 30 percent.

The Commission affirmed the agency's decision on appeal. The Commission noted that complainant was not entitled to attorney's fees for preparing the unsuccessful Motion to Dismiss, because she was not a prevailing party in that matter. Further, the Commission agreed with the agency that the number of hours claimed was unreasonable and appeared greatly inflated. The documents submitted by complainant's attorneys in connection with her appeal consisted only of a reply brief that relied heavily on arguments already found in the AJD, and documents submitted prior to the appeal. Further, in light of the experience claimed by complainant's attorneys, the Commission found it puzzling that they required the amount of preparation, consultation, and research time claimed. Thus, the Commission concluded that the agency's modest reduction was clearly warranted. Alston v. Department of Health and Human Services, EEOC Appeal No. 01A54981 (February 3, 2006).

Civil Actions

Dismissal Without Prejudice.In the appellate decision, the Commission found that two issues in the underlying complaint were encompassed in a previously filed civil action. Accordingly, the Commission dismissed those issues and remanded the remaining issue for further processing. In a request for reconsideration, complainant asserted that her civil action had been dismissed without prejudice prior to the issuance of the Commission's decision. Complainant also averred that she forwarded the information to the Commission, but the notice regarding the dismissal of her civil action was misdirected.

The Commission found that it did not err in affirming the agency's dismissal of two issues based on the appellate record then before it. However, in light of the subsequent notice of the dismissal of the civil action, and in the interest of the efficient administration of justice, the Commission decided to reconsider the previous decision on its own motion. The Commission found that complainant's civil action was dismissed without prejudice prior to the Commission's decision. Therefore, the Commission reversed its previous decision as to the two stated issues, and remanded those to the agency for further processing. Wright v. United States Postal Service, EEOC Request No. 05A50739 (August 3, 2006).

Class Actions

(See also "Timeliness," in this issue. Ed. Note.)

Denial of Class Certification Affirmed.Complainant, as putative class agent, filed a formal EEO complaint on behalf of himself and other employees over 40 years old, alleging age discrimination regarding a claim of unfair advantage given to graduates of the agency's Leadership Development Program (LDP).

An AJ denied class certification. The AJ found that complainant was not challenging denial of participation in the LDP program, but was challenging the agency's use of the program as a criterion resulting in unfair and illegal advantage to those under 40 in selections for promotions. The AJ found that complainant failed to meet the prerequisites of typicality and adequacy of representation. Regarding typicality, complainant failed to provide any specific example of how the alleged discrimination against him affected any other class members. The AJ found instead that complainant offered examples of two identified employees from his District, who were allegedly barred from the LDP because of their age (i.e., 40 or above). The AJ found that complainant failed to claim that either of these employees were denied a specific promotion because of their non-participation in the LDP, which the AJ determined was what complainant's claim involved.

As to the requirement of adequacy of representation, the AJ found no evidence that complainant was sufficiently skilled to protect the interests of the putative class members. Also, the AJ found that complainant indicated that he did not intend to retain counsel to represent the interests of the putative class. The agency issued a final decision fully implementing the AJ's decision, and, on appeal, the Commission affirmed the agency. Crosby, et al., v. Department of the Army, EEOC Appeal No. 01A46181 (August 16, 2006). Cf. Jones, et al., v. General Services Administration, EEOC Appeal No. 01A50310 (June 1, 2006) (class complaint certification denial affirmed; agency silence on individual complaint of class agent deemed dismissal and reversed and remanded).

Provisional Certification Granted. The Commission granted provisional certification to a class composed of all African-American females employed at the agency's Baltimore, Maryland, headquarters in General Schedule grades 7 through 11, who had not been promoted during the period of time beginning on December 9, 2000. The Commission found that the complaint met the requirements of typicality and commonality, noting the complainants alleged that a practice of failing to promote African-American females existed throughout the facility. Complainants provided the results of a statistical analysis to support their allegation, as well as affidavits and surveys from African-American females who were denied promotions. Further, complainants identified over 3,000 employees who could be potential class members, thus meeting the numerosity requirement. Finally, complainants retained counsel who, they represented, was experienced with Title VII actions, and class complaints. Taylor, Harley, et al., v. Social Security Administration, EEOC Appeal No. 07A50060 (May 8, 2006), request to reconsider denied, EEOC Request No. 05A60801 (July 18, 2006).

Compensatory Damages

(See "Findings of Discrimination," this issue. –Ed.)

Dismissals—Multiple Grounds

(See also, "Stating a Claim," this issue.—Ed.)

Complainant was issued a notice of removal ("the Notice") on September 29, 2004, for unacceptable conduct. The Notice indicated that the effective date of the removal would be determined at such time as a timely grievance on the removal was heard and adjudicated at the Step B Dispute Resolution Team Level. A Step B decision upholding the removal was issued on November 4, 2004, and, on that same date, the Postmaster issued a letter setting the effective date of removal as close of business on November 5, 2004. Complainant initiated EEO contact on December 3, 2004, regarding the removal.

The agency dismissed the complaint for failure to state a claim, asserting that the matter was a collateral attack on the Step B grievance decision. In its appellate decision, the Commission upheld the dismissal, albeit on different grounds, i.e., that complainant's EEO Counselor contact was beyond the 45-day time limitation.

The Commission granted complainant's request for reconsideration. While the Notice was issued on September 24, 2004, the effective date of the removal action was November 5, 2004. Therefore, complainant's EEO contact was timely.

The Commission rejected the agency's contention that the instant case was a collateral attack on a grievance decision. The Commission found that the issue decided involved alleged discriminatory treatment and was not solely of a contract nature. Further, postal employees have a statutory right to file both a grievance alleging discrimination, and an EEO complaint. Jordan v. United States Postal Service, EEOC Request No. 05A51226 (August 3, 2006).

EEO Process – Hearings

Commission Upholds Video Conferencing.In this case of first impression, an AJ appeared from a video-conferencing facility in Baltimore, Maryland, while the parties, together with their representatives and witnesses, convened in a facility in Detroit Michigan, near to where the events at issue in this matter arose. Following the hearing, the AJ found no discrimination regarding complainant's claims. The agency issued a final order fully implementing the AJ's decision.

Preliminarily, the Commission noted that it had recently promulgated its policy regarding the taking of testimony by telephone, in Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006), request to reconsider denied, EEOC Request No. 05A60806 (July 19, 2006). In that case, the Commission expressed its strong preference for in-person hearings, given the deference afforded an AJ's post-hearing factual findings in general, and the AJ's demeanor-based credibility determinations in particular. Nonetheless, the Commission did not forbid the use of telephonic testimony, provided certain standards were met. The failure to meet those standards constitutes an abuse of the AJ's discretion.

In the present case, without setting a "bright line" standard, the Commission noted that, with appropriate safeguards, videoconferencing may provide an acceptable alternative to an in-person hearing, which remains the Commission's preference. Videoconferencing offers a level of observation and direct communication unavailable in a telephonic hearing, and provides a sense of presence and judicial decorum that cannot be conveyed by telephone. The Commission noted that at other federal agencies, including the Merit Systems Protection Board (MSPB), hearings held by videoconferencing are an established fact. The Commission expects the AJ to provide the parties advance notice of his/her intention to videoconference, allowing the parties to object on the record. The Commission will review such objections on a case-by-case basis, under the abuse of discretion standard. While the AJ need not routinely justify videoconferencing, the AJ should consider a number of factors before proceeding. These include any cost to the respondent agency balanced against the savings in travel time for all parties; the number of expected participants; and the availability and proximity to the participants of the video-conferencing facilities, so that, where all participants and the AJ are located within commuting distance of an appropriate location for an in-person hearing, considerations of proximity will generally exclude use of videoconferencing. Further, because hearings are part of the investigative process and are closed to the public, the Commission declared that the AJ will ensure the privacy of video transmission.

The present case involved a single complainant, limiting the number of persons who would be present in the hearing room at any given time to a small, and therefore manageable, number. In addition, the AJ provided the parties with advance notice of his intention to proceed by videoconference. The hearing record reflected no objections, which, although not dispositive, are relevant to whether there was an abuse of AJ discretion. In this case, the Commission found that the AJ did not abuse his discretion. Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006).

(Louthen, supra, and its companion cases, are discussed in greater detail in the Spring 2006 Digest of EEO Law. – Ed.)

EEO Process -- Investigations

Agency Required to Investigate Complaint.Complainant filed a formal complaint alleging that she was subjected to discrimination when she was not selected for a promotion. After 180 days had passed, she requested a hearing before an AJ. Two days later, an EEO Investigator initiated an investigation and requested that complainant provide certain information. The Investigator, after another two days had passed, advised complainant that failure to provide the requested information within 15 days would result in dismissal of her complaint. Subsequently, complainant withdrew her request for a hearing and asked for a final agency decision. The agency dismissed the complaint for failure to cooperate.

On appeal, the Commission found that complainant was not required to cooperate with the agency's belated attempt to investigate after she requested a hearing. Further, after complainant withdrew her request for a hearing, the agency was obligated to develop a complete and impartial factual record and was not excused from obtaining whatever information was available. In this case, the agency failed to develop any record and the matter was remanded for a supplemental investigation. Jones-Sims v. United States Postal Service, EEOC Appeal No. 01A50251 (March 15, 2006), request to reconsider denied, EEOC Request No. 05A60554 (April 26, 2006).

Findings of Discrimination

--Under the ADEA--

Age Discrimination Found in Nonselection.Complainant alleged that the agency discriminated against him based on age, 52, when, on March 5, 2004, he was not selected for a GS-13 Interdisciplinary Position, a position that combined the elements from two other position descriptions: Supervisory Environmental Protection Specialist, and Supervisory Environmental Engineer. An AJ granted summary judgment in favor of complainant. The AJ found that complainant applied and was qualified for the position. However, the agency chose a candidate who was 31 years old. The AJ found that the agency's reasons for choosing the selectee were pretextual and that complainant's qualifications were observably superior to those possessed by the selectee. The AJ also noted conflicts between the sworn statements of several agency witnesses.

On appeal, the Commission affirmed the AJ's decision and reversed the agency. The Commission agreed with the AJ that complainant's qualifications for the subject position were superior to those of the selectee. Further, the Commission noted, as did the AJ, that agency personnel provided shifting responses concerning the selection process. As part of the remedies awarded, the Commission ordered the agency to retroactively appoint complainant to the position at issue with back pay and interest, as well as other benefits due complainant. Crosby v. Department of the Army (Army Corps of Engineers), EEOC Appeal No. 07A60038 (July 12, 2006).

Age Discrimination Found in Constructive Discharge. Complainant, a staff nurse, alleged that she was discriminated against on the basis of age (67) when she was denied performance improvement opportunities and forced to retire. After receiving a critical performance appraisal, complainant was placed on a Performance Improvement Plan (PIP) for 60 days, during which time her work with the agency's computerized record keeping and medication tracking systems was observed. While the observing officials recommended additional training opportunities for complainant, she was not offered such training, and was ultimately notified that she would be discharged. Complainant elected to retire from the agency.

An AJ found that a younger nurse experiencing similar work challenges was provided additional training opportunities, while complainant was not. Further, there was overwhelming evidence that the agency exaggerated the depth of complainant's performance issues and kept critical information from her. The AJ also noted evidence that complainant had a good work record. The AJ additionally found that complainant was constructively discharged, in that her retirement was involuntary. The AJ found that the agency pressured complainant into a position where she could either retire or face certain termination with loss of her health insurance and benefits.

On appeal, the Commission found substantial evidence in the record to support the AJ's determination that age discrimination had occurred. The Commission noted the testimony and statements of complainant's former supervisors, as well as her prior performance evaluations, suggested that complainant's performance, prior to the PIP, was acceptable and consistent with agency standards. The Commission also agreed with the AJ that it was unlikely that complainant's performance changed as soon as a named official became her supervisor; and the official's conclusion that complainant would not benefit from additional training with the agency's computer systems, while younger employees would, indicated that the agency's reasons for discharging complainant were pretextual. The Commission further agreed with the AJ that a reasonable person under the circumstances would have retired rather be terminated. Kruecke v. Department of Veterans Affairs, EEOC Appeal No. 07A60028 (June 7, 2006), request to reconsider denied, EEOC Request No. 05A60878 (August 10, 2006).

--Under the Rehabilitation Act--

Denial of Reasonable Accommodation; Reassignment; Undue Delay; and Retaliatory Harassment. Complainant was working as a Customs Inspector when he sustained a back injury while on the job. He was placed on light duty at work, and subsequently requested reassignment to an administrative position. Complainant also applied for both an Import Specialist position and a Paralegal Specialist position, making the best qualified list (BQL) for both vacancies.

The agency's Assistant Port Director (APD), in response to complainant's request for accommodation, asked for additional information from complainant and his doctor, who concluded that complainant could no longer effectively perform the described duties of a Customs Inspector, which included lifting and carrying objects weighing 10 to 20 pounds. APD denied complainant's request for reasonable accommodation, stating that the medical documentation provided did not establish that complainant was a disabled individual. About this time, complainant complained that his co-workers and management made offensive comments to him asserting that he did not have any impairment.

Complainant initiated EEO counseling and, subsequently, the agency issued a proposed removal action based on his inability to meet the conditions of his employment, which included carrying a 9mm handgun. Complainant asserted that the weight of the weapon and accompanying gear put too much pressure on his back.

Complainant filed a formal EEO complaint and requested a hearing. An AJ found no disability discrimination, stating that complainant was not disabled in that his medical restrictions did not substantially limit a major life activity. The AJ found that complainant was, therefore, not entitled to reasonable accommodation and that he had not established that he was subjected to harassment.

On appeal, the Commission found that the AJ erred in finding complainant was not disabled. The Commission found a 15 to 20 pound lifting restriction to be substantially limiting and found complainant to be disabled. The Commission then noted that it was undisputed that complainant was not qualified to be a Customs Inspector, because he could not perform the essential functions of the position with or without reasonable accommodation. However, the Commission stated that the agency should have considered reassignment and applied its prior regulation at 29 C.F.R. Section 1614.203(g) because this case arose prior to June 20, 2002, when this regulation was superseded by the standards of the Americans With Disabilities Act, emphasizing, among other things, a broader search for a vacancy.

The Commission noted that complainant had the burden of establishing by a preponderance of the evidence that there were vacancies, during the relevant time period, into which complainant could have been reassigned. The Commission found that complainant was a qualified individual with a disability, having provided evidence that he had applied for two vacant administrative positions and made the BQL for both. The Commission held that the agency violated the Rehabilitation Act when it failed to provide complainant with a reasonable accommodation and unduly delayed in responding to complainant's request for reasonable accommodation.

The Commission also found that comments by complainant's co-workers were pervasive enough to constitute a hostile work environment, in that they were retaliatory harassment based on complainant's protected activity (requesting reasonable accommodation). However, the Commission did not impute liability to the agency because of lack of evidence that management knew or should have known of the co-workers' comments. (For more on the subject of co-worker harassment, see the article at the end of this issue. –Ed.) Villanueva v. Department of Homeland Security (Bureau of Customs and Border Protection), EEOC Appeal No. 01A34968 (August 10, 2006), request to reconsider denied, EEOC Request No. 05A61069 (September 27, 2006).

Failure to Hire; No Direct Threat Found. Complainant, who had been diagnosed with chronic paranoid schizophrenia, had been hospitalized on several occasions because of his mental condition. He was referred to a mental health center, and assigned to Dr. "H," a staff psychiatrist. In May 1999, complainant accepted an Aircraft Worker position with Raytheon Aerospace Corporation (Raytheon), a government contractor located at the Naval Aviation Depot (NADEP). In December 1999, the agency announced a vacancy for the position of Equipment Cleaner (Sandblaster). Complainant applied for the Sandblaster position, which, he stated involved the same duties he had been performing for Raytheon. He included a claim for a 10-point veteran's preference and a VA certificate of disability. Complainant was found to be the most qualified and selected for the position, contingent on his passing a physical examination and drug test. On March 9, 2000, during his pre-employment physical examination, complainant informed the doctor about his history of schizophrenia and his VA disability rating.

Subsequently, an agency doctor recommended that the agency separate or not hire complainant. The agency then notified complainant that he was not eligible for hire. In addition, the Commanding Officer of NADEP, informed Raytheon that complainant was not qualified for employment with the activity and asked the company to remove complainant from NADEP as soon as possible. On September 7, 2000, the agency notified complainant of its final decision not to hire him because his health status was not compatible with the position at issue.

Subsequently, complainant filed an EEO complaint based on disability (Paranoid Schizophrenia with features of depression) and reprisal in connection with his termination and nonselection. The AJ found that the agency did not discriminate against complainant. The AJ found that there was no accommodation that would eliminate or reduce the risk of harm to complainant or other employees. The agency issued a final order fully implementing the AJ's finding of no discrimination.

On appeal, the Commission reversed the agency's final order. The Commission agreed that it was undisputed that complainant had, at the very least, a record of having a mental impairment that substantially limited him in the major life activity of working. Specifically, complainant had a record of being, for a number of years, substantially limited in his ability to perform either a class of jobs or broad range of jobs in various classes.

The Commission also found that complainant was a qualified individual with a disability in that he was found most qualified for the Sandblaster position and was initially selected therefor. In addition, according to his work leader, site supervisor, and two co-workers, complainant performed his duties in a satisfactory manner. The only bar to his eventual employment was the agency's concern that he might have "a relapse."

The Commission further found that the essential functions of the Aircraft Worker position that complainant held were equivalent to those of the Sandblaster. The Commission then examined in detail the medical evidence of record. The Commission found that the agency took into account the concerns raised in the letter from complainant's physician, but failed to apply those concerns to the actual circumstances surrounding complainant's employment situation when it found him not qualified for the Sandblaster position.

The Commission also found that the agency failed to meet its burden of demonstrating that complainant was a direct threat to himself or others in the sense that he posed a significant risk of substantial harm that could not be eliminated or reduced by reasonable accommodation. The Commission found that the agency failed to establish that the re-emergence of complainant's symptoms would have been likely or imminent had he been hired. The Commission further found that complainant's successful performance of his duties and responsibilities over a period of time was probative on the issue of whether a re-emergence of his symptoms would have been likely or imminent had he been hired. The Commission stated that the agency had to do more than just speculate about the "potential" for complainant's relapsing. Thus, the Commission found that the agency had violated the Rehabilitation Act when it denied employment to complainant. Smith v. Department of the Navy, EEOC Appeal No. 01A40794 (June 8, 2006), request to reconsider denied, EEOC Request No. 05A60898 (October 12, 2006).

Denial of Assignment Violates Rehabilitation Act; No Direct Threat Found. Complainant, a Mail Handler, claimed that her Acting Supervisor ("A-1"), ordered her to stop operating a tractor on the workroom floor based on orders from the Senior Manager, Distribution Operations ("A-2"). Complainant was told by A-1 that A-2 did not feel comfortable with complainant driving because of her hearing impairment.

On appeal, the Commission found that the agency erred in finding that complainant was not substantially limited in a major life activity. The Commission found that complainant could hear at times because she used an implant, but that, for the most part, she had to read lips in order to understand what was being said to her. Thus, the Commission found that complainant was restricted in hearing compared to the average person in the general population.

The Commission also found that complainant was a qualified individual with a disability in that there was no evidence that she was not performing her regular duties as a Mail Handler before she was assigned to operate a tractor. In addition, she held a license indicating that she was qualified to operate motorized equipment and was performing that task until A-1 told her to stop.

The Commission noted that the agency admitted denying complainant the opportunity to drive a tractor because of A-2's belief that complainant was a safety concern to herself and others due to complainant's hearing condition. Thus, the Commission deemed it unnecessary to apply the indirect evidence standard of proof used in circumstantial evidence cases. Instead, the Commission examined whether the agency had satisfied its burden of proof to show that the disparate treatment of complainant, based on her disability, was justified by a direct threat defense: that is, whether complainant's disability posed a significant risk of substantial harm that could not be eliminated or reduced by reasonable accommodation.

The Commission found that A-2 did not make the requisite individualized assessment of whether complainant posed a direct threat to herself or others. Instead, the Commission found that A-2 refused to permit complainant, a licensed driver, to carry out her assignment based solely on her fear of a future risk of harm to complainant and others, which, at the time, cost complainant 8 hours of higher level pay. The Commission found no evidence that allowing complainant to complete her assignment posed a significant risk of substantial harm to either complainant or others. Padron v. United States Postal Service, EEOC Appeal No. 01A53132 (June 15, 2006).

Denial of Reasonable Accommodation; Failure to Reassign. In January 1988, complainant, a Letter Carrier, fell at work and was given a limited duty position. From her original injury in 1988, until 1995, complainant was assigned to limited duty, most often casing mail, and provided with 8 hours of work daily. In February 1995, the Acting Postmaster ("AP") informed complainant that her OWCP case was closed and that she would be placed on light duty status (as with other agency employees with non-work-related restrictions), instead of limited duty, thereby not guaranteeing her full-time work. When there was not enough work within complainant's medical restrictions, she was sent home and either used leave or took leave without pay. During 1995, complainant was on Sick Leave Without Pay (SWOP) for hypertension or Leave Without Pay (LWOP) when the agency sent her home because there was no work for her. After December 1996, complainant began continuously receiving 8 hours of work again.

Complainant filed an EEO complaint based, in relevant part, on disability (back injury residuals, hypertension, cancer) when she was sent home and denied 8 hours of work more than once; and when she was charged with AWOL and issued a Letter of Warning for not working on December 23, 2005. A hearing was held on her complaint, and an AJ found that the agency had failed to provide complainant with a reasonable accommodation. The agency filed an appeal, which was dismissed for lack of timeliness. The agency then filed a request for reconsideration, which the Commission granted. While the Commission agreed that the agency's appeal had been erroneously found to be untimely, it affirmed the AJ's finding of disability discrimination. (For a fuller discussion of the procedural aspects of this case, see "Timeliness" in this issue.—Ed.)

The Commission found that complainant was substantially limited in the major life activity of lifting, based on the continuous medical restriction limiting her to lifting not more than 20 pounds. The Commission noted that an agency is obligated to provide reasonable accommodation for limitations resulting from a disability. The limitation that is the basis for the accommodation request need not itself be substantially limiting. As long as the limitation is a consequence of a disability covered under the Rehabilitation Act, the request must be granted absent undue hardship. In this case, the Commission found that complainant's lifting restriction, as well as her restrictions on walking and prolonged standing and sitting, were a consequence of her disability.

The Commission also found that complainant was a qualified individual with a disability. The Commission found that, from 1988, the agency was successfully accommodating complainant's disability with 8 hours of work per day when she was on limited duty status pursuant to her OWCP claim. In 1995, when the agency learned that her OWCP status had ended, it placed her in light duty status, which did not always provide complainant with 8 hours of work on her scheduled days. While affecting her hours, the change from limited to light duty had no impact on the actual work complainant was performing.

The Commission found that if, as the agency asserted, it was not able to provide complainant with 8 hours of light carrier duties, it was obligated to consider the availability of reassignment, especially in light of complainant's requests for one. In the present case, the Commission found complainant to be qualified for vacant clerk positions. The Commission also found substantial evidence in the record to support the AJ's determination that there were vacant full-time positions within the commuting area to which complainant could have been reassigned in order to accommodate her medical restrictions. Specifically, the Officer-in-Charge (OIC) testified that the facility had several hundred employees and that there were probably vacancies in every craft. The Commission also agreed with the AJ's determination that complainant performed duties in a variety of different positions and functions within the agency, specifically, numerous clerk duties. The Commission concluded that complainant had shown that it was more likely than not that there were positions available, for which she was qualified, during the relevant time period; and that the agency had failed to provide evidence that reassigning complainant would have been an undue hardship.

Having found that the agency discriminated against complainant on the basis of disability, the Commission sustained the AJ's award of $70,000.00 in compensatory damages as consistent with the amounts awarded in similar cases. Miller v. United States Postal Service, EEOC Request No. 05A40871 (June 29, 2006).

Failure to Provide Interpreter is Denial of Reasonable Accommodation. Complainant, who was deaf, claimed that, on several occasions, he was denied an American Sign Language (ASL) interpreter, and filed an appeal from the agency's decision finding no discrimination. On appeal, the Commission found that complainant was denied reasonable accommodation when the agency failed to provide him with an interpreter at several meetings and/or closed-captioning for the mandatory films that the agency required employees to view. The Commission rejected the agency's contention that complainant did not need an interpreter at any of these meetings because he was able to read lips and frequently did not need an interpreter in meetings with supervisors. The Commission noted that an agency's obligation to accommodate a deaf employee is not diminished where the employee has the ability to read lips. The Commission also stated that an employer must ensure that employees with disabilities have access to information that is provided to other similarly-situated employees without disabilities, regardless of whether they need the information to perform their jobs.

The Commission was also not persuaded that providing interpreter services for all stand-up meetings would be an undue hardship. The Commission found no evidence that providing interpreter services would be unduly costly, extensive, substantial or disruptive, or that it would fundamentally alter the nature of the agency's operation. In fact, the Commission found that agency officials were not clear as to what kinds of accommodations for the hearing impaired would or would not constitute an undue hardship. The Commission stated that claims of undue hardship must be based on an individualized assessment of current circumstances that show providing an interpreter, or any other reasonable accommodation, would cause a significant difficulty or expense to the agency.

With regard to remedies, the Commission found that the agency failed to show that it made a good faith effort to provide complainant with a reasonable accommodation. Therefore, the Commission ordered the agency to investigate complainant's entitlement to compensatory damages. Yost v. United States Postal Service, EEOC Appeal No. 01A51457 (June 13, 2006).

Reasonable Accommodation: Failure to Reinstate and Retaliation. Complainant was a Supervisor of Customer Services when he began to experience episodes of Bipolar Disorder resulting in his being sent home in June 2000. He did not return to work until September 2000. In the interim, complainant submitted a note from his psychiatrist ("P1") indicating that reducing unnecessary stressors would help complainant's treatment. Complainant indicated that agency management intermittently accommodated him in September 2000, permitting him to work light duty that included supervising 20 letter carriers, and working a full week plus overtime.

In January 2002, complainant was transferred to a different zone where he was required to supervise 47 letter carriers and his overtime increased. In March 2002, complainant filed a formal complaint alleging that he was discriminated against on the basis of disability and reprisal when, in February 2002, he was sent home and told to use sick leave because there was no work available within his restrictions.

The agency dismissed complainant's claim of retaliation, finding no prior EEO activity. The agency also found that complainant was not disabled and stated that there was no work for complainant within his medical restriction to supervise not more than 10 employees.

On appeal, the Commission initially found that the agency erred when it concluded that complainant had not engaged in any EEO activity. The Commission noted that complainant's request for a change at work due to a medical condition was a request for reasonable accommodation. Requesting reasonable accommodation, the Commission declared, is a form of protected activity and, in the present case, preceded the filing of complainant's complaint. However, since complainant did not challenge the agency's dismissal of his retaliation claim on appeal, the Commission declined to address it further.

With regard to complainant's reasonable accommodation disability claim, the Commission found that complainant was substantially limited in the major life activity of interacting with others. The Commission found that complainant had Major Depression and Generalized Anxiety Disorder and that he experienced rapid mood swings; irritability; inability to concentrate; short-term memory loss; sadness and outbursts with peers. In addition, complainant was absent from work for 2 months, in 2000, due to his condition.

As for whether complainant was a qualified individual with a disability, the Commission rejected the agency's contention that, as of February 2002, there was no work for complainant because he could not supervise an adequate number of letter carriers or work overtime. The Commission found that complainant could, and did, supervise an adequate number of letter carriers and that he did work overtime. Therefore, the Commission found that complainant met his burden of showing that he was a qualified individual with a disability.

The Commission further found that the agency failed to meet its burden of showing that providing complainant with reasonable accommodation would cause an undue hardship. The Commission was not persuaded by the agency's assertion that complainant could only supervise 10 or fewer employees because it failed to take into account the context within which complainant's January 2002 reasonable accommodation request was made, namely, that the number of employees he was supervising had more than doubled. The Commission also found no evidence that reducing the number of carriers complainant supervised and not requiring him to work overtime would have been an undue hardship given that the agency failed to explain why complainant was moved between zones.

The Commission concluded that the agency had failed to make a good faith effort to reasonably accommodate complainant in his position and, accordingly, complainant had raised a cognizable claim for compensatory damages. In so finding, the Commission stated that, by merely informing complainant that there was no work for him to do and sending him home, the agency failed to follow any of the Commission's extensive enforcement guidance on the agency's responsibility to engage in the interactive process with an employee who requests reasonable accommodation for a disability. Black v. United States Postal Service, EEOC Appeal No. 01A42589 (June 9, 2006).

Disability Discrimination: Harassment. Complainant filed a complaint alleging that she was subjected to a hostile work environment when she learned that the Store Director (SD) had referred to her as a cripple. Subsequently, the Commission found that the SD regarded complainant as substantially limited in the major life activity of walking. In so finding, the Commission noted that, notwithstanding the SD's denials, there was corroborated evidence that the SD used the term "crip" or "cripple" and stated that there was "no place in the commissary for disabled or crippled people." The Commission also found affidavit testimony that the SD referred to complainant as such and made a "physical gesture mimicking a cripple." The Commission also found that the agency regarded complainant as a qualified individual with a disability, noting the SD's comments that complainant had recently been rated as "Excellent."

The Commission noted that the fact that the comments may have been related to complainant secondhand, did not render those comments irrelevant to her hostile work environment claim. Accordingly, the Commission found that the SD's statements were sufficiently severe to alter the conditions of her work environment.

The Commission also found that the agency failed to put forth any evidence to establish an affirmative defense in that it exercised reasonable care to prevent and promptly correct any harassing behavior. Given that the SD was complainant's second-line supervisor, the agency was vicariously liable for the harassment. Cullors v. Department of Defense (Defense Commissary Agency), EEOC Request No. 01A41560 (June 29, 2006).

Denial of Reasonable Accommodation: Placement in Leave Without Pay (LWOP) Status. Complainant, a Mail Clerk, was diagnosed with bi-lateral carpal tunnel syndrome. From 1998 through 2002, complainant was assigned light duty as an accommodation for her condition. In 2002, complainant was assigned new supervisors who no longer allowed her to rotate between duties that required repetitive motion and those that did not. As a result, complainant began to again experience severe pain and subsequently filed a claim with OWCP. When complainant sought restoration of her prior accommodations on two occasions, her requests were denied, and complainant subsequently filed a formal EEO complaint.

On appeal, the Commission noted that complainant's new supervisors failed to explain the need for changing complainant's practice of successfully accomplishing her job, and failed to provide any explanation for denying complainant's request to return to rotating between her duties. Instead, management looked to reassign complainant to another position.

The Commission noted that once an agency has determined that an individual cannot be accommodated in his or her current position or that such accommodation would impose an undue hardship on the agency, only then can reassignment, the accommodation of "last resort," be considered. In the present case, the Commission found that management attempted, unsuccessfully, to reassign complainant rather than provide her with an accommodation within her Mail Clerk function. The Commission found unsupported the agency's assertion that complainant was not performing the essential functions of her position. Instead, the Commission found that complainant was able to perform all the essential functions of her position and received satisfactory performance ratings, even from her current supervisor. The agency did not argue that it would be an undue hardship for it to offer complainant the reasonable accommodations that she had received under prior management. Therefore, the Commission concluded that the agency violated the Rehabilitation Act when it failed to allow complainant to rotate between her repetitive motion duties and those that did not require repetitive motion as a reasonable accommodation to her disability. Duncan v. Social Security Administration, EEOC Appeal No. 01A53965 (August 24, 2006).

Reasonable Accommodation: Failure to Remove Workplace Barriers. Complainant had a severe allergy to corn in any form. The Postmaster was aware of the allergy and had given a "stand-up" talk informing complainant's co-workers that complainant could not be exposed to corn fumes; however, he also stated that he did not think it fair to the other employees to institute a ban on popping corn. As a result, complainant would have to leave the facility, often for over an hour, whenever co-workers prepared popcorn on the premises, and she would suffer from chest pain and an asthmatic reaction requiring the use of a rescue inhaler. Further, although complainant was to be advised whenever popcorn was being made, this did not always occur.

The Commission found that any mitigating measure, including those identified by the agency, would have been ineffective in light of management's failure to enforce any procedure whereby complainant would have advance notice of potential exposure, or to issue a specific order prohibiting the popping of corn. In this regard, the Commission noted that mitigating measures that complainant attempted to use, such as masks, did not help her. Further, the Commission noted that complainant could perform the essential functions of her position with a reasonable accommodation and did not pose a direct threat in the absence of medication, treatment or an assistive device. Habluetzel v. United States Postal Service, EEOC Appeal No. 07A40025 (July 28, 2006).

Disability Discrimination: Withdrawal of Job Offer. Complainant, who had monocular vision, filed a formal complaint alleging disability discrimination when the agency withdrew a conditional offer of employment for the position of Special Agent. Complainant had passed the initial pre-employment testing and interview and had received a conditional offer of employment. He subsequently passed a polygraph examination, a drug test, and the agency's physical-readiness test. He was then sent for a physical examination, which included an eye examination and visual acuity testing. The report of complainant's medical examination noted that complainant had visual acuity of 20/20 in his left eye, and an artificial right eye with well-compensated depth perception, and minimal hesitancy on a finger-to-nose test. Upon review, the agency's Medical Officer concluded that complainant was not medically qualified for the position due to an absence of vision in his right eye, and resulting lack of depth perception and peripheral vision. As a result, the agency withdrew its offer of employment.

On appeal, the Commission found that complainant had been subjected to disability discrimination. Initially, the Commission found that complainant was an individual with a disability. The Commission stated that, because complainant has no vision in his right eye, he has a 50-percent loss of peripheral vision and a loss of depth perception. The Commission noted that complainant's use of sensory cues may compensate for, but does not mitigate either his diminished depth perception or his diminished field of vision. Thus, complainant was substantially limited in the major life activity of seeing. Aside from complainant's monocular vision, he met all the qualifications for the position.

The Commission found that the agency's withdrawal of its offer was due to complainant's disability. While the agency asserted that complainant's disability could result in harm to himself or others, the agency failed to make an individualized assessment of the alleged risk, and, instead, applied a blanket medical qualification without examining the specific application to complainant. Complainant's skills, abilities, and experience demonstrated that he was a suitable candidate for employment. Lovell v. Department of Justice, EEOC Appeal No. 01A41462 (May 26, 2006), request to reconsider denied, EEOC Request No. 05A60874 (August 23, 2006).

--Multiple Bases--

Gender-based and Retaliatory Harassment. The Commission affirmed the AJ's finding that complainant was subjected to retaliatory and gender-based harassment when two co-workers discussed sexual issues next to complainant's work station. The Commission noted that the co-workers then retaliated against complainant when she complained, and subjected her to a constant barrage of insults, some of which were gender based. Further, while complainant repeatedly complained to management about the problems, the response was not reasonable or effective. Specifically, one management official simply forwarded complainant's emails to another person, and one of the co-workers was told only to return to his desk. The agency was ordered to pay complainant $30,000.00 in compensatory damages and provide EEO training to the responsible individuals. Joiner v. Social Security Administration, EEOC Appeal NO. 07A50049 (February 3, 2006).

--Retaliation--

Retaliation: Assignment. The Commission found that complainant was subjected to retaliation when she was reassigned to a GS-7 Secretary position. Complainant had been working as a GS-7 Equal Employment Opportunity Assistant, when she initiated EEO contact regarding a harassment claim. She was then detailed and subsequently reassigned to the Secretary position, allegedly due to a conflict of interest. The reassignment letter noted that complainant's attorney was the representative in the vast majority of complaints pending before the EEO Office and complainant's job required her to interact with the representative who, in this case, was her attorney. The letter noted that complainant's job required her to continuously handle sensitive information in the EEO cases filed against the agency, which was a conflict of interest.

On appeal, the Commission found that the agency failed to articulate a legitimate, nondiscriminatory reason for the reassignment. The Commission noted that simply bringing an EEO action does not, by itself, create of conflict of interest making complainant ineffective in her job. Further, the fact that complainant's attorney was the representative for complainants in most cases handled by the EEO Office would not prevent complainant from maintaining a professional relationship in those cases. Winters v. Department of Agriculture, EEOC Appeal No. 01A40571 (May 16, 2006).

Retaliation: Travel Processing Delay. The Commission found that complainant was subjected to reprisal discrimination when the agency delayed processing her travel orders and vouchers for several weeks. Complainant submitted vouchers for repayment of $5,000.00. The Commission found that complainant established a prima facie case, since all parties involved were aware of her prior EEO activity, and there was a four to five month delay in processing complainant's paperwork, even after she repeatedly inquired about its status. Further, the Commission stated that the agency failed to set forth with sufficient clarity a legitimate, nondiscriminatory reason for its action. The record was devoid of testimony from any agency official involved in processing complainant's travel voucher. The Commission noted that, to the extent the agency was attempting to argue that the vouchers were misdirected, they should have been promptly redirected upon notification to the appropriate official. Instead, the delay continued. The agency also attempted to argue that the delay was due to union animus, but it relied upon the statement of an official who had nothing to do with the processing of the voucher. Finally, the record does not show that other employees experienced similar delays in obtaining reimbursement for travel vouchers. Pleasant v. Department of Housing and Urban Development, EEOC Appeal No. 01A43215 (April 13, 2006).

Jurisdiction

(See also, "Stating a Claim." –Ed.)

Joint Employer. Complainant was not selected for the position of Licensed Practical Nurse (LPN) offered through Dyncorp Technical Services LLC. The agency dismissed the complaint for failure to state a claim on the grounds that complainant was not an employee of the agency or applicant for employment with the agency.

Relying on the common law of agency test, as well as its enforcement guidance pertaining to contingent workers, the Commission found that the agency exercised sufficient control over the position to qualify as a joint employer, and that complainant was deemed to be an applicant for employment with the agency. In so finding, the Commission noted that the agency controlled the selection process for the position. Dyncorp forwarded the resumes or applications of prospective candidates to the agency and the agency approved or disapproved the candidates identified by Dyncorp. In response to correspondence from Dyncorp identifying complainant as a viable candidate, an agency representative expressed disapproval of her candidacy and stated that the Regimental Surgeon did not believe that a female should fill the position over a male.

In addition, the Commission found that the agency retained supervisory control over the position, and all work was performed on agency premises using agency equipment and supplies. The Commission also noted that, while Dyncorp may have had ultimate responsibility for terminating the LPN's employment for unsatisfactory performance, the agency retained authority to influence the contractor's decision via the feedback given regarding that performance.

Given the working relationship between the agency and Dyncorp, the Commission did not find controlling language in the contract identifying the LPN as "contract personnel" or specifically providing that contract personnel are employees of the contractor and under its administrative supervision and control. Further, notwithstanding the fact that the company provided wages, benefits, and leave for the position, the Commission found that the agency retained sufficient control to qualify as a joint employer. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).

Medical Confidentiality

Rehabilitation Act Not Violated By Generic Disclosure. The Commission found that the agency did not violate the confidentiality provisions of the Rehabilitation Act when it disclosed to a prospective employer that complainant had been on extended sick leave and had resigned for "health reasons." The Commission noted that not all information falls within the proscription of a confidential medical record and there was no disclosure of complainant's diagnosis or symptoms. Myrah v. Department of Agriculture, EEOC Appeal No. 01A52157 (April 26, 2006).

Sanctions

Sanctions Upheld. In a case of first impression, the Commission upheld sanctions against complainant's non-attorney representative for $312.50 in court reporter costs caused by respondent's bad faith non-appearance at a scheduled hearing; and a 60-day suspension from serving as a representative in any case not presently pending before the Commission's New York District Office. There was no right of administrative appeal from this decision. In the Matter of Debbie Szeredy v. United States Postal Service, Appeal No. 11A60001 (June 22, 2006).

Settlement Agreements

Agreement Unenforceable. Complainant and the agency entered into a settlement agreement whereby the agency agreed to "continue to look for opportunities for details to higher level positions" for complainant. The Commission found the agreement to be unenforceable, because the language contained no substantive agency obligation and provided, at best, an illusory benefit to complainant. The Commission noted that the agency did not promise to place complainant into any details or positions when found or even inform him of such opportunities. Luiz v. United States Postal Service, EEOC Appeal No. 01A61106 (May 11, 2006).

Stating a Claim

(In the following decisions, the Commission found that complainants' claims were cognizable. - Ed.)

Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006) (The underlying facts are discussed above under "Jurisdiction." --Ed.)

Barber, Eley, Powell, and Johnson, v. Department of the Navy, EEOC Request Nos. 05A50657; 05A50771; 05A50972; 05A50973 (March 16, 2006) (the Commission reaffirmed its position that the use of the racial slur "nigger" is actionable given the fact that it is a "highly charged epithet," that "dredge[s] up the entire history of racial discrimination in this country.")

Davis v. United States Postal Service, EEOC Appeal Nos. 01A60401 & 01A60399 (April 13, 2006) (claim that agency placed complainant on administrative leave for discriminatory reasons for about two months was cognizable, even though complainant had been paid during this period, given the nature of complainant's extended absence from the worksite, as well as the alleged disparate treatment with regard to a named comparative employee.)

Azakytu v. United States Postal Service, EEOC Appeal No. 01A62544 (July 6, 2006) (remand for investigation as to whether agency had a disparate application policy with regard to complainant's association with a person with a disability; the Commission made clear that while the association provision does not entitle a person associated with an individual with disability to a reasonable accommodation, the Rehabilitation Act sets forth an association claim as does the association provision of the Americans With Disabilities Act.)

Szymczak v. United States Postal Service, EEOC Appeal No. 01A62551 (July 21, 2006) (claim that the purpose of the cancellation of a vacancy announcement was to create a larger applicant pool so that complainant would not be selected is actionable.)

Vincent v. United States Postal Service, EEOC Appeal No. 01A61619 (August 3, 2006) (per se violation may occur when a supervisor's actions or remarks intimidate an employee and interfere with EEO activity in any manner, creating a chilling effect on participation in the EEO process.)

(In the decisions below, the EEOC found that complainant's claims were not cognizable. - Ed. Note.)

Randle v. Department of the Air Force, EEOC Appeal No. 01A61523 (July 19, 2006), request to reconsider denied, EEOC Request No. 05A61018 (September 14, 2006) (complainant not given information regarding job growth.)

Simons v. Department of Homeland Security, EEOC Appeal No. 01A53521 (July 28, 2006) (lack of opportunity for GS-11 Customs Inspector to volunteer for administrative duties full time.)

Dunn v. Department of Energy, EEOC Appeal No. 01A62654 (August 14, 2006) (complainant not agency employee within the meaning of Title VII at the time of the alleged discrimination.)

Summary Judgment

Summary Judgment Improperly Granted. In two companion decisions, the Commission found that summary judgment for the agency had been improperly granted. James Cooke and Cindy Nicholas worked in the same facility, where Nicholas was the only female. Nicholas alleged that she was subjected to gender based harassment. Cooke was subsequently suspended for five days based on an incident where he confronted several co-workers over rumors that he and Nicholas were having an affair.

In the case of Nicholas, an AJ issued a decision finding that complainant was not harassed based on her gender but based on her sexual orientation. On appeal, the Commission vacated the agency's final action and remanded the matter for further processing. The Commission found that, given the circumstances surrounding Nicholas' reassignment, there was a genuine issue of material fact regarding whether Nicholas was reassigned for reasons stated by the agency or because Nicholas was a victim of alleged sexual harassment and opposition thereto, and her gender. Moreover, the Commission found genuine issues of material fact regarding whether Nicholas was harassed in the laundry by monitoring and scrutiny of her work and whereabouts, and being followed.

The Commission noted that many of the alleged harassing incidents in both cases arose from the same incidents and/or were interrelated. In light of this fact, the Commission decided to also re-examine whether the AJ's decision was properly issued without a hearing in Cooke's case. The Commission found that if the harassment was simultaneously directed against the complainant both because of his association with Nicholas and because of her sexual orientation and gender, Title VII still protected the gender basis.

The Commission stated that the explicit alleged sexual talk that occurred outside Cooke's presence would likely contribute to a hostile work environment by poisoning the atmosphere with disrespect toward the complainant. The Commission stated that if the alleged incidents occurred and were based on Cooke's association with Nicholas because of her gender, and happened as frequently as Cooke claimed, a fact finder could reasonably find unlawful sexual harassment against Cooke. The Commission also found that there was a genuine issue of material fact with regard to the agency's claim that it took action to stop the gossiping and whether the agency's purported action was prompt and effective.

The Commission directed that the two cases be consolidated by the agency and in processing by the EEOC hearings unit. Nicholas v. Department of Veterans Affairs, EEOC Appeal No. 01A51368 (March 23, 2006); Cooke v. Department of Veterans Affairs, EEOC Request No. 05A60305 (March 23, 2006).

Timeliness

Agency Appeal Found to be Timely. (The underlying merits of this matter were addressed earlier in this issue under "Findings of Discrimination." – Ed.) The Commission found that the initial appellate decision erred in finding the agency's appeal untimely. The Commission found the AJ erred when she did not send the decision and hearing record to the agency's EEO Compliance and Appeals Office as requested. Miller v. United States Postal Service, EEOC Request No. 05A40871 (June 29, 2006).

Complaint Timely Filed. The Commission found that complainant timely filed her formal EEO complaint within 15 days of receiving a Notice of the Right to File by certified mail. The Commission noted that, although the EEO Director had previously sent complainant an e-mail transmitting the Notice as an attachment, complainant had specifically requested that all communication be sent to her by mail, and the EEO Director's e-mail clearly indicated that the Notice was being sent by certified mail. Thus, it was reasonable for complainant to assume that the certified mail transmittal constituted the "official" issuance of the Notice. Powell v. Federal Housing Finance Board, EEOC Appeal No. 01A60627 (April 19, 2006), request to reconsider denied, EEOC Request No. 05A60720 (June 5, 2006).

EEO Contact Timely. The Commission found that complainant timely contacted an EEO Counselor with regard to his allegation that he was denied reasonable accommodation since December 2003. The Commission noted that, despite the agency's contention that complainant received a telephone call in November 2004, and letters in March and June 2005 asking for additional information, complainant stated that the agency essentially ignored his requests for accommodation. Thus, the claim was a recurring violation, and complainant's contact with an EEO Counselor in July 2005 was timely. Hickey v. United States Postal Service, EEOC Appeal No. 01A61002 (April 28, 2006).

Reasonable Suspicion. In this case, the Commission consolidated seven appeals by complainants who worked in limited duty modified positions consistent with their medical restrictions. Each received a letter from the Postmaster stating that they would be placed in Leave Without Pay (LWOP) status effective May 29, 2004. Subsequently, on July 8, 2004, complainants allegedly received phone calls from a Vocational Rehabilitation Specialist ("VRS") with OWCP, who talked to them about employment possibilities outside of the agency. Complainants contended that this was the first time they realized that their employment with the agency might be terminated. Complainants contacted an EEO Counselor within 45 days of the conversation with VRS, asserting that they were denied reasonable accommodation.

The agency dismissed each of the seven complaints on timeliness grounds, asserting that their August 2004 EEO contact was beyond 45 days from the date of the Postmaster's letter informing complainants that they were being placed in LWOP status.

Upon reconsideration, the Commission was persuaded that complainants timely initiated EEO Counselor contact from the point at which they reasonably suspected discrimination. The Commission found, from a fair reading of the complaints, as amplified by the pre-complaint counseling forms, that the claim raised was more properly defined as an ongoing failure to provide reasonable accommodation for complainants' disabilities when the agency removed them from their limited duty/modified positions and did not consider them for reassignment to another position. The Commission stated that complainants were contesting the indefinite nature of their LWOP status.

The Commission found the complainants' EEO contacts to be timely based on their discussions with the VRS when, in essence, they realized for the first time that the agency was not considering reassigning them to other positions within the agency, but instead intended to force them, through indefinite placement on LWOP, to leave the agency for jobs in the private sector. The Commission remanded all seven complaints to the agency for further processing. Soroush, Kwok, Ren, Walker, Lang, Citarella, and Marcus v. United States Postal Service, EEOC Request Nos. 05A60449, 05A60445, 05A60450, 05A60448, 05A60446, 05A60447, 05A51103 (May 4, 2006).

CO-WORKER HARASSMENT

INTRODUCTION

Harassment in the workplace constitutes an actionable form of discrimination under Title VII. The harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion, or prior EEO activity is unlawful if it is sufficiently severe or pervasive.⁽¹⁾ An employee is subjected to harassment if he or she experiences unwelcome conduct that is sufficiently severe or pervasive to create a hostile or abusive work environment.⁽²⁾

LEGAL STANDARDS

All of the circumstances in the case must be examined when considering whether the harassment is sufficiently severe to constitute a violation of Title VII and the EEOC Regulations. This includes the frequency of the conduct, the severity of the conduct, whether the actions are physically threatening or humiliating, or merely an offensive utterance, and whether the conduct unreasonably interferes with the employee's performance.⁽³⁾ Federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious.⁽⁴⁾ A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe.⁽⁵⁾ Nevertheless, a limited number of highly offensive slurs or comments related to an employee's protected class can be sufficient to constitute a hostile work environment.⁽⁶⁾

To establish a prima facie case of hostile environment harassment, the complainant must show that: 1. he or she belongs to a statutorily protected class; 2. he or she was subjected to unwelcome verbal or physical conduct related to his or her protected class; 3. the harassment was based upon the protected class; 4. the harassment had the purpose or effect of unreasonably interfering with work performance or created an intimidating, hostile or offensive work environment; and 5. there is a basis for imputing liability to the employer.⁽⁷⁾ An agency is liable for harassment by a co-worker if it knew of the harassment and failed to take immediate and appropriate corrective action.⁽⁸⁾ Appropriate action will depend on the facts of the particular case, including the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.⁽⁹⁾ To avoid liability, an agency must show that the acts or conduct complained of did not occur or were not unwelcome; the alleged harassment was not sufficiently severe or pervasive to alter the conditions of the work environment; immediate and appropriate corrective action was taken as soon as the agency was put on notice; and/or there is no basis for imputing liability to the agency.⁽¹⁰⁾

COMMISSION DECISIONS FINDING CO-WORKER HARASSMENT

The Commission found that complainant was subjected to hostile environment harassment in Morrison v. USPS.⁽¹¹⁾ Complainant, a Distribution Clerk, filed a formal complaint alleging that she was subjected to sexual harassment by a co-worker for over one year, including being referred to using profane language, spreading rumors that complainant was "dating" a married co-worker, and leaving information concerning sexually transmitted diseases with complainant's belongings. According to the record, the named co-worker admitted to using profane language when referring to complainant. Complainant informed both current and former managers of the incidents. While the Manager of Distribution Operations told the co-worker not to speak that way and stay away from complainant, the conduct continued for many months.

The Commission found that complainant was the victim of sex-based harassment as a result of the incidents concerning the co-worker. Specifically, the co-worker demonstrated his sex-based animus toward complainant by addressing her in profane terms, and the harassment created a hostile work environment. Further, despite being notified of the harassment, neither the past nor current Manager took effective action to stop the harassment, and, in fact, the co-worker continued to harass complainant.

In Logsdon v. Department of Agriculture,⁽¹²⁾ the Commission also found discriminatory harassment. The complainant, a seasonal employee, alleged that she was subjected to gender-based harassment when a co-worker distributed sexually explicit letters about complainant. The agency asserted that it took immediate action upon being notified of the first letter, and should not be held liable for the second letter because it was distributed outside of the workplace while complainant and the co-worker were in a non-duty status. The Commission, however, rejected those arguments. While the first letter was sent anonymously, and the agency initiated an investigation of the matter, the investigation did not focus on ending the harassment. Instead, the investigation focused on whether complainant committed the allegations contained in the letter. The Commission noted that the mere fact that the agency took some remedial action by initiating an investigation does not absolve it of liability where, as in this case, the action was ineffective. The record showed that the agency had constructive knowledge of the harasser's identity two months after the letter was sent, but took no action, and the harassment continued. Thus, the Commission concluded that the agency failed to take appropriate corrective action.

In Tootle v. Department of the Navy,⁽¹³⁾ the complainant filed a formal complaint alleging that he was subjected to harassment on the basis of his race (African-American)when he found a "hangman's noose" in his work area. The rope did not have complainant's name or picture on it, and was not located in a place exclusive to complainant such as his locker or tool box. Nevertheless, complainant immediately reported the incident to his first level supervisor, and asked to meet with his third level supervisor about the matter. After he was unable to determine who placed the noose in the work area, the third level supervisor instructed the first level supervisor to remove it and to advise the employees that such behavior would not be tolerated.

The Commission found that complainant had been subjected to a racially hostile work environment. Although based on a single incident, the Commission stated that the appearance of a hangman's noose in the middle of the workspace of African-American employees, in and of itself, created a hostile work environment for complainant. In addition, the testimony of record showed that there was a pre-existing climate of racial intolerance at the agency. The Commission concluded that finding a noose hanging in one's workspace is cause to feel physically threatened, particularly if one is an African-American working in a racially charged environment. Further, the Commission found that the agency's actions upon notification of the harassment were insufficient, particularly in light of the racial tensions that existed at the facility. The Commission noted that the agency cannot avoid responsibility for investigating severe incidents simply by discarding the evidence. The agency should have done more to identify the person(s) responsible, and drive home the understanding among employees that offensive behavior will not be tolerated.

The complainant in Joiner v. Social Security Administration⁽¹⁴⁾alleged that two co-workers discussed sexual issues next to her work station, and then threatened her when she brought the concerns to management's attention. The Commission found that the incidents constituted a hostile work environment. Complainant repeatedly complained to management about the co-worker's conduct; however, the co-workers continued to use sex-based insults and hostile terms. The Commission noted that complainant worked at a teleservice center answering calls from the public, and, as such, the loud conversations interfered with her ability to do her work. Further, the Commission found that the agency failed to take appropriate corrective action. According to the record, one management official merely forwarded complainant's messages regarding the harassment to another individual. In addition, while one of the co-workers was repeatedly told to return to his desk, there was no progressive discipline despite the fact that the co-worker then came back to complainant's work station to carry on more offensive conversations. The Commission concluded that the agency's actions, including a proposal to move complainant to a different work station, were inadequate to constitute appropriate corrective action.

In Lopez v. USPS,⁽¹⁵⁾ complainant filed a formal complaint alleging that she was subjected to harassment by a co-worker on two occasions. Specifically, complainant stated that, on the first occasion, the co-worker, whom she did not know, grabbed her, and hugged her while "grinding" his body against her. In addition, after complainant pulled away, the co-worker followed complainant, while making suggestive comments to her, grabbed her hand and placed it on his crotch. Complainant did not notify a manager until the following day, who advised complainant that she would need to provide the co-worker's name before the matter could be fully investigated. The Manager informed another supervisor, and left a message for two other officials who were scheduled to return to work two days later. Subsequently, the co-worker confronted complainant again, and, after complainant identified the individual to a supervisor, the agency conducted an investigation.

The Commission found that the conduct cited by complainant, which was unwelcome and based upon her sex, created a hostile work environment. Further, the Commission found that management failed to respond in a reasonable or effective manner. The Commission noted that, given the nature and severity of the conduct, the Manager could have, at the very least, contacted agency inspectors or local law enforcement officers. By placing the responsibility on complainant to locate and identify the harasser, management failed to act in an effective and appropriate manner. As a result of the agency's failure to act, complainant was again subjected to harassing behavior a second time. Thus, the agency was found to be liable for the co-worker's harassing conduct.

COMMISSION DECISIONS FINDING NO HARASSMENT

In Irizarry-Rivera v. Department of Homeland Security,⁽¹⁶⁾ the Commission found that complainant was not subjected to gender-based harassment. Complainant, an Immigration Enforcement Officer, alleged that a co-worker screamed at her, called her "Marilyn Monroe," and "gave her a hard time" when she asked to be assigned another vehicle. Complainant also stated that the co-worker created a hostile environment for another co-worker, and that a supervisor also made reference to Marilyn Monroe when referring to complainant. The Commission noted that the testimony of record showed that complainant's co-workers commonly referred to each other by nicknames, and that complainant willingly participated in the banter. Further, the Commission found that, although complainant claimed that the name-calling offended her, the conduct was not sufficiently severe or pervasive to alter the conditions of complainant's work environment such as to constitute harassment. The Commission stated that while complainant had a contentious relationship with the named co-worker, the comments cited relating to a third individual were not directed at complainant or her protected class.

The Commission also found no harassment in Heckman v. USPS.⁽¹⁷⁾ Complainant alleged that co-workers made comments to her and remarks about her appearance, told her where she stood in the facility's hierarchy, gave her demeaning looks, called her "Cinnamon Stick," and excluded her from a holiday party. In addition, complainant stated that one co-worker struck her on the rear end, and that her time card was torn in half. Complainant stated that she met with two management officials, and complained that the incidents constituted sexual and age-based harassment. The Commission found that complainant failed to establish a prima facie case, in that the majority of the incidents did not appear to be based upon her sex. Further, there was no conclusive evidence that one co-worker touched complainant as she alleged. In addition, the Commission noted that management took prompt and effective action to address complainant's concerns once they were raised. Complainant informed one management official that another supervisor had adequately handled the matter, and that she did not wish to make a statement regarding the touching incident. Further, the official informed complainant that management would monitor the work area and notify him of any additional incidents of harassment. The record showed that management conducted internal and external investigations into complainant's allegations of harassment. Thus, the Commission concluded that liability could not be imputed to the agency for the alleged sexual harassment.

In Rhodes v. Department of Transportation,⁽¹⁸⁾ complainant alleged that she was subjected to sexual harassment when a co-worker forcefully took a remote control away from her in the break room, causing her to sustain bruises and scratches on her arm and injure her shoulder. Further, she claimed that management engaged in retaliatory harassment by intimidating anyone who spoke to her regarding the incident, refusing to process her workers' compensation claim without additional information from her physician, and asking her if she was "having fun." Complainant stated that while she immediately reported the incident and called the police, she decided not to prosecute the co-worker after he apologized to her. The Commission stated that while complainant was a member of a protected class, and subjected to unwelcome conduct by a co-worker which was severe enough to create a hostile work environment, there was no evidence from which to infer that the incident was related to her sex. Further, there was no evidence that the agency should have foreseen the co-worker's conduct. The Commission noted that complainant did not allege that the co-worker further harassed her after the agency was informed of the assault. With regard to complainant's allegation of retaliatory harassment, the Commission found that the incidents were not sufficiently severe or pervasive to create a hostile work environment.

Finally, the complainant in Small v. USPS⁽¹⁹⁾ filed a formal complainant alleging that a co-worker made sexual comments and advances to her, and that management failed to take any action in response. Specifically, complainant stated that, while discussing exercise and weight loss, the co-worker gave her a piece of paper with the letters "se" written on them, and told her to fill in the rest. According to complainant, the co-worker told her that he wanted to have sex with her, but then stated that he was joking. Complainant reported the matter to the Labor Relations Specialist. The co-worker denied asking complainant for sex, stating that the letters referred to a car he was considering purchasing.

The Commission found that there was no basis for imputing liability to the agency in this case. An Administrative Judge found that complainant's account of the events was not credible, or supported by the evidence. Further, the Commission noted that, even if the event occurred, it was an isolated incident that was not sufficiently severe or pervasive to alter the conditions of complainant's employment. Finally, when complainant reported the incident, management conducted a prompt investigation, and took action to minimize contact between complainant and the co-worker, as well as counseled the co-worker concerning the agency's zero tolerance policy for sexual harassment.

CONCLUSION

An agency is responsible for acts of harassment by co-workers in the workplace when it knows or should have known of the conduct, unless the agency can show that it took immediate and appropriate corrective action. As shown above, the appropriate remedial action depends on the particular facts of the case. When an agency becomes aware of alleged harassment, it has a duty to investigate such charges promptly and thoroughly, and should consider the severity and persistence of the harassment when initiating remedial steps to correct the conduct.

Footnotes

(1) See, McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985); Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000), request to reconsider denied, EEOC Request No. 05A10063 (July 11, 2002) (citing Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000)).

(2) Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

(3) Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). See also, EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).

(4) EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

(5) Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982).

(6) Brown v. USPS, EEOC Appeal No. 01A61098 (May 26, 2006).

(7) McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999), request to reconsider denied, EEOC Request No. 05991139 (December 22, 2000) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

(8) EEOC Policy Guidance of Current Issues of Sexual Harassment, No. 915.050 (March 19, 1990).

(9) Owens v. Department of Transportation, EEOC Request No. 05940824 (September 5, 1996).

(10) Quintero v. USPS, EEOC Appeal No. 01960836 (April 21, 1998); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

(11) EEOC Appeal No. 07A50003 (April 18, 2006).

(12) EEOC Appeal No. 07A40120 (February 28, 2006).

(13) EEOC Appeal No. 07A40127 (February 10, 2006).

(14) EEOC Appeal No. 07A50049 (February 3, 2006).

(15) EEOC Appeal No. 01A45212 (February 10, 2005).

(16) EEOC Appeal No. 01A55436 (April 20, 2006).

(17) EEOC Appeal No. 01A52701 (February 24, 2006), request to reconsider denied, EEOC Request No. 05A60573 (April 26, 2006).

(18) EEOC Appeal No. 01A50402 (February 24, 2006), request to reconsider denied, EEOC Request No. 05A60556 (April 11, 2006).

(19) EEOC Appeal No. 01A50092 (February 8, 2006).

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