The DIGEST Of Equal Employment Opportunity Law

Volume XXI, No. 3

Office of Federal Operations

Summer 2010

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Inside

Selected EEOC Decisions on:

Compliance: Regulatory Requirements and Case Law Update

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SELECTED EEOC DECISIONS

Agency Processing

Agency Improperly Closed Complainant's Informal Complaint. Complainant contacted an EEO Counselor (C1) in March 2005, alleging that the Agency subjected her to discrimination and a hostile work environment on the basis of her religion. Complainant stated that she chose to remain anonymous because her claims involved high-level officials in the Office of General Counsel. After C1 resigned as an EEO Counselor, Complainant's case was assigned to another individual (C2), who met with Complainant and indicated that the case would be assigned to a contract Counselor. Complainant stated that she contacted C2 weekly for approximately one month, but was told there were problems obtaining a contract Counselor. In June 2005, Complainant learned that C2 was being detailed, and that C2 had asked the Chief of Staff to assign the case to another Counselor (C3). In mid-fall 2005, C3 contacted Complainant, and Complainant indicated that she wished to continue with EEO counseling. Complainant indicated that she subsequently spoke with C3 in February and March 2006. Complainant was on detail to another agency from December 2006 until September 2007. After returning, Complainant contacted the EEO office in October 2007 and asked for her claim to be processed. Subsequently, the Agency issued her a letter in November 2007 stating that it was closing Complainant's informal complaint. The Agency noted that Complainant did not contact the EEO office for more than two years after her initial contact with the EEO Counselor. On appeal, the Commission found that the Agency improperly closed Complainant's informal complaint. The Commission rejected the Agency's argument that the doctrine of laches applies in this case, stating that it was undisputed that the Agency failed to issue Complainant a notice of the right to file a formal complaint after the termination of counseling. Thus, since the Agency failed to meet its own obligation, the Commission stated the Agency could not close Complainant's informal complaint based on Complainant's alleged failure to act with due diligence. The informal complaint was remanded to the Agency for further processing in accordance with the EEOC Regulations. Gunn v. Small Bus. Admin., EEOC Appeal No. 0120080844 (April 23, 2010); see also, Gunn v. Small Bus. Admin., EEOC Petition No. 0420100014 (September 21, 2010) (the Commission granted the Agency's petition for clarification, noting that because Complainant was never provided with a notice of final interview she was not able to file a formal complaint of discrimination outlining her specific claims. The Agency was instructed to schedule a final interview with Complainant within 15 days of its receipt of the Commission's decision.)

Attorney's Fees

(See also, "Findings on the Merits," this issue. – Ed.)

Attorney's Fee Award Modified. Following a finding that Complainant was discriminated against on the bases of disability and reprisal for prior EEO activity when the Agency did not grant her requests for a transfer, the EEOC Administrative Judge (AJ), among other things, awarded Complainant $63,548.50 in attorney's fees, and $323.65 in costs. In addressing the fee petition, the AJ determined that while the hourly rates for both the attorney and paralegal were reasonable, the hours claimed were excessive for a twelve-month litigation period. Thus, the AJ reduced the attorney's and paralegal's hours by 50 percent. On appeal, the Commission found that the majority of the hours listed in the fee petition were sufficiently documented. However, some entries such as five hours spent on telephone calls with both the client and the Agency's attorney scheduling depositions and discussing people who were hired by the Agency, as well as over nine hours for a four-page motion to amend the complaint to add a basis for discrimination were found to be excessive. The Commission found that the AJ abused his discretion in applying a 50-percent across-the-board reduction in fees to the total hours billed, noting that the fact that more than a certain number of hours were spent litigating a case over a 12 month period was not a sufficient reason to reduce the fee by one-half. Complainant's attorney achieved complete success in the case, and there were relatively few billing entries that appeared excessive. Thus, the Commission determined that an across-the-board reduction of hours by 10 percent was reasonable. The Commission also reduced the award of costs by 50 percent, because the attorney, whose law firm used meters and timers, submitted a verified statement of services rendered by date and time, but no detailed summary of the substance of the tasks. (The Commission also addressed the issue of compensatory damages as discussed below.) Gist v. U.S. Postal Serv., EEOC Appeal No. 0720070081 (April 22, 2010).

Compensatory Damages

(The decisions below are a selected sampling of recent awards of compensatory damages. See, also, "Findings on the Merits," this issue. – Ed.)

Future Pecuniary Damages Awarded. Complainant filed a formal complaint alleging that she was subjected to disability discrimination when the Agency canceled her modified Carrier status, removed her from her modified job, did not accommodate her, and harassed her such that her doctor removed her from work. An AJ found that Complainant had been discriminated against as alleged, and ordered the agency to, among other things, provide Complainant with full-time work that accommodates her disability for 10 years or pay her for any hours not worked. On appeal, the Commission concurred with the AJ's award. The AJ stated that the Agency's conduct caused Complainant's current inability to perform the duties and work the full-time schedule that she was working in 2005. Thus, the Agency must compensate complainant in the future for the difference between what she is currently earning and the wages she would have earned but for the Agency's discriminatory conduct. Further, there was no evidence that Complainant would not have been able to continue working in the position she held in 2005 for the indefinite future. The agency did not deny that complainant demonstrated her earning capacity was impaired, and the Commission found that the Agency did not show that 10 years is an unreasonable period of time for the award or that Complainant would likely retire. The Commission did note that Complainant would be subject to the same standards of performance and conduct as any other similarly situated employee. Liang v. U.S. Postal Serv., EEOC Appeal No. 0720090030 (April 23, 2010).

$62,000 Awarded for Disability Discrimination and Reprisal. Following a finding that the Agency discriminated against Complainant on the basis of her disability and in reprisal for prior EEO activity when it did not permit Complainant to transfer to another facility, the AJ awarded Complainant $62,000 in non-pecuniary compensatory damages. On appeal, the Commission concurred with the AJ's award. Complainant testified that she suffered emotional harm, including feeling depressed and helpless. She also withdrew from her normal activities, spent less time with her family, and separated from her husband. The Commission found that the hearing testimony showed that the emotional harm did not result merely from the stress of litigating her EEO complaint, but rather from the realization that management continued to erroneously view Complainant as a potentially dangerous or violent person. Thus, the AJ's award was based on the emotional and psychological harm experienced by Complainant as a result of the discrimination. (The Commission also addressed the issue of attorney's fees as noted above). Gist v. U.S. Postal Serv., EEOC Appeal No. 0720070081 (April 22, 2010).

$40,000 Awarded for Sex, Age, and Reprisal Discrimination. Following a finding of sex, age, and reprisal discrimination, an AJ awarded Complainant, among other things, $40,000 in non-pecuniary compensatory damages. On appeal, the Commission concurred with the AJ's award. Complainant was diagnosed with depression, anxiety, and high blood pressure related to the discrimination. Complainant was treated by a physician for these conditions and took medication. In addition, various witnesses testified regarding the change in Complainant's personality following the discrimination, noting that she became emotionally distraught. Clifford v. U.S. Postal Serv., EEOC Appeal No. 0720100010 (May 18, 2010).

$15,000 Awarded for Reprisal and Violation of the Rehabilitation Act. An AJ found that Complainant was subjected to reprisal when his supervisor delayed processing his request for leave. The AJ also found a per se violation of the Rehabilitation Act occurred when the supervisor accessed Complainant's medical records on two occasions without authorization. Among other things, the AJ awarded Complainant $15,000 in compensatory damages. The Commission affirmed the AJ's award on appeal, noting that Complainant suffered sleeplessness, stress, and headaches as a result of the discrimination. While Complainant stated that he also suffered from high blood pressure, the Commission noted that Complainant was treated for that condition several months prior to the discrimination. Philbert v. Dep't of Veterans Affairs, EEOC Appeal No. 0720090041 (May 5, 2010), request for reconsideration denied, EEOC Request No. 0520100362 (July 20, 2010).

Dismissals

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

EEO Complaint and Grievance Did Not Involve the Same Matter. Complainant filed a formal EEO complaint alleging that she was discriminated against on the bases of sex, disability, age, and reprisal when the Agency denied her October 2006 request for reasonable accommodation. The Agency dismissed the complaint, stating that Complainant had filed a grievance on the matter. On appeal, the Commission found that the Agency's dismissal was improper. According to the record, Complainant had previously requested that she work in a fragrance-free environment and wear a personal air supply as an accommodation in June 2006. When the agency denied that request and assigned her to administrative duties Complainant filed a grievance. The Commission noted that Complainant's EEO complaint concerned a different Manager's decision to deny the October request in which Complainant asked to use an air purifier or be transferred to another position. Moritz v. Dep't of Transp., EEOC Appeal No. 0120100162 (April 8, 2010).

Complaint Improperly Dismissed for Failure to Cooperate Where Attorney Was Incapacitated. The Agency dismissed Complainant's complaint for failure to cooperate because complainant failed to return a requested affidavit packet. On appeal, Complainant's attorney, a solo practitioner, stated that he had notified the Investigator that he was incapacitated due to surgery and had requested an extension. The attorney indicated that he understood that the extension had been granted. The Commission concluded that dismissal of the complaint was improper as there was no evidence that Complainant engaged in purposeful delay or contumacious conduct. The Commission found that Complainant's attorney had communicated with the Investigator concerning his incapacitation and requested an extension to provide the requested affidavit. Shover v. U.S. Postal Serv., EEOC Appeal No. 0120100694 (April 28, 2010).

Complaint Improperly Dismissed as Stating the Same Claim as in a Prior Complaint. Complainant filed a formal complaint alleging that the agency subjected her to disability (sleeping disorder, anxiety, depression) and reprisal discrimination when, following her request for reasonable accommodation, the agency required her to report for psychological testing, and a psychiatric interview. The Agency dismissed the matter on the grounds that complainant raised the same claim in a previous complaint. On appeal, the Commission found that the Agency improperly dismissed the instant complaint. The Commission noted that the previous complaint concerned the denial of reasonable accommodation and the Agency's refusal to allow Complainant to return to work because of her medical restrictions. The Commission stated that while the complaints are related, there are significant differences in the claims. Specifically, the incidents occurred several months apart, and the nature of the claims differs significantly. The first complaint involves an analysis of whether the Agency met its obligation to provide reasonable accommodation, while the instant complaint concerns whether Complainant was subjected to an unlawful medical examination, an issue that does not require Complainant to establish that she is a "qualified individual with a disability." Matthews v. U.S. Postal Serv., EEOC Appeal No. 0120083953 (April 30, 2010).

Complaint Improperly Dismissed as Spin-off. Complainant filed a formal complaint alleging that the agency subjected him to race (African-American) and reprisal discrimination when an Agency attorney obtained his personal medical files without his permission. The Agency dismissed the matter for alleging dissatisfaction with the processing of a previously filed complaint. The Agency asserted that Complainant should have raised the claim during the hearing in the previous complaint. On appeal, the Commission reversed the Agency's decision, stating that the Agency's purported impermissible disclosure of Complainant's medical files constitutes a possible violation of the Rehabilitation Act and does not concern the processing of his prior EEO complaint. Powell v. U.S. Postal Serv., EEOC Appeal No. 0120091402 (May 20, 2010).

Complaint Improperly Dismissed for Failure to State a Claim and Untimely EEO Counselor Contact. Complainant filed a formal EEO complaint in which she raised various issues of discrimination. In its final decision, the Agency indicated that the issues raised by Complainant had been "numbered 1-100." The Agency then dismissed all of the issues for failure to state a claim, and also asserted that the majority of the issues were untimely raised with the EEO Counselor. The Agency acknowledged that the record did not contain a report from the EEO Counselor, and that the claims raised with the Counselor were not specifically identified in the record. Nevertheless, the Agency noted that the Notice of Right to File a Discrimination Complaint indicated that Complainant raised claims regarding "promotions, job training, reassignments, duty hours, appraisals and harassment." On appeal, the Commission found that the Agency improperly dismissed Complainant's complaint. The Commission noted that a fair reading of the record showed that Complainant alleged ongoing harassment and a hostile work environment. The Commission further stated that there was no evidence the EEO Counselor engaged in a limited inquiry into the claim, or contacted Complainant to request clarification regarding her claim or for further information. Thus, the EEO Counselor failed to appropriately inquire as to the specific nature of Complainant's claim to help her better frame and define the claim in the formal complaint. The Commission remanded the matter to the Agency so that a meeting could be scheduled between Complainant and an EEO Counselor as to Complainant's specific allegations. Cahill v. Dep't of Def., EEOC Appeal No. 0120100689 (May 27, 2010).

Findings on the Merits and Related Decisions

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

Under the Rehabilitation Act

Discrimination Found with Regard to Fitness for Duty Examination. Complainant sought a transfer to a different office in order to join her husband. When it became apparent that she would not be able to readily obtain a reassignment within her craft, she requested a change of craft. The Agency's policy mandated that Complainant undergo a change of craft fitness for duty examination because she requested reassignment to a more strenuous position. She was subsequently required to undergo two fitness for duty examinations. The first examination was ordered by the Medical Officer at her current office. As a result, Complainant was cleared for duty. The Medical Officer at the office where Complainant was seeking assignment ordered a second examination solely because he believed there was an inconsistency in the initial examination. He did not conduct a physical examination of Complainant, and did not speak to or question Complainant or the physician who performed the first examination. Complainant subsequently filed a formal EEO complaint alleging that the Agency discriminated against her when it required her to undergo a second fitness for duty examination after she had already been cleared for duty.

The AJ found that the record evidence established that the Agency did not have a reasonable belief that Complainant's ability to perform essential job functions would be impaired by her alleged medical condition in that Complainant was found fit for duty by the Agency's own medical officer. The Commission noted that employers may require a medical examination or make disability related inquiries of an employee only if the examination is job-related and consistent with business necessity. The Commission stated that this requirement is met when the employer has a reasonable belief, based on objective evidence, that (1) an employee's ability to perform the essential job functions is impaired by a medical condition; or (2) that an employee poses a direct threat due to a medical condition. The Commission held that substantial evidence in the record supported the AJ's determination that the Medical Officer who ordered the second examination did not have a reasonable belief that Complainant's ability to perform the essential job functions was impaired by a medical condition, or that she posed a direct threat due to a medical condition. Thus, the Commission found that the Agency discriminated against Complainant. The Agency did not specifically object to the remedies ordered by the AJ, and, as such, the Commission ordered a back pay award of 450 hours, with interest, benefits, overtime, night pay differential, attorney's fees, training for responsible management and other relief. Morrow v. U.S. Postal Serv., EEOC Appeal No. 0720070058 (November 13, 2009), request for reconsideration denied, EEOC Request No. 0520100159 (May 28, 2010).

Disability Discrimination Found: Denial of Reasonable Accommodation. Complainant was hired as a temporary (one-year appointment) Store Worker, and was responsible for preparing and maintaining stock levels of grocery items. Nine months later, he suffered a heart attack and was required to undergo triple-bypass surgery. The Agency placed Complainant on approved leave during his three month absence. Complainant then returned to work with an indefinite 20 pound lifting restriction. The Agency extended Complainant's appointment for an additional year, and adjusted his duties to accommodate his lifting restriction. Approximately six months later, Complainant experienced chest pain, and was examined for a possible pulmonary embolism. Complainant's doctor advised him not to work for five weeks, and restricted him from heavy lifting, and pulling or pushing more than five pounds during that period. After exhausting his leave, Complainant requested Family and Medical Leave Act leave. The Agency, however, terminated Complainant's appointment, stating that he was unable to perform his duties because of his extended absences. Complainant then filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his disability.

Following a hearing in the matter, the AJ found that Complainant was discriminated against as alleged. The AJ initially determined that Complainant was an individual with a disability based upon the physical limitations he experienced as a result of his heart attack and subsequent complications. The AJ noted that while the Agency initially accommodated Complainant after his surgery by giving him time off, the Agency failed to do so after Complainant's later setback. On appeal, the Commission affirmed the AJ's findings. The Commission noted that the evidence showed that Complainant's request for leave for the pulmonary condition was not the sole consideration in terminating his appointment, and that Complainant's prior extended absence for his cardiac condition factored heavily into the decision. Complainant's supervisor testified that he was aware of Complainant's heart attack and three month absence at the time he proposed Complainant's removal. In addition, the Agency acknowledged that the decision to terminate Complainant's appointment was based upon Complainant's unavailability for work due to his medical conditions. The Commission stated that Complainant had a record of a disability that had previously been accommodated, and, thus, the decision to terminate Complainant was in large part due to his history of disability-related absences. The Commission noted that an employer may not penalize an employee for work missed during leave taken as a reasonable accommodation. In this case, the Commission found that the agency did just that when it terminated Complainant when he made an additional request for medical leave six months after being accommodated for his heart condition. The Commission rejected the Agency's assertion that it would have been an undue hardship to accommodate Complainant with additional weeks of leave. The record showed that the Commissary had a large staff, and Complainant's duties were covered by others after his termination. The Agency was ordered to, among other things, offer Complainant a permanent position as a Store Worker or a substantially equivalent position, with appropriate back pay and benefits, and pay Complainant $4,000 in proven compensatory damages. Ramos v. Dep't of Def., EEOC Appeal No. 0720090055 (April 12, 2010), request for reconsideration denied, EEOC Request No. 0520100358 (September 29, 2010).

Under Title VII

Religious Discrimination Found for Failure to Provide Accommodation. Complainant, a part-time Meat Cutter regularly scheduled to work Sundays, requested religious accommodation from her supervisor. According to Complainant, who is Baptist, she is required to attend church services and Sunday school every Sunday, and her church has meetings that last until 6:00 pm on Sundays. Complainant's supervisor denied her request and offered her alternative Sunday schedules so that she could attend church either before or after work. Complainant did not accept these alternative schedules, because they would not allow her to attend Sunday school and afternoon church meetings. Complainant subsequently filed a formal EEO complaint alleging that the Agency denied her request for religious accommodation. On appeal, the Commission initially found that Complainant established a prima facie case. As stated, Complainant, who is Baptist, was denied the opportunity to take Sundays off to attend church services and events as she requested. Further, the Commission found that the Agency failed to meet its burden to demonstrate that it made a good faith effort to reasonably accommodate Complainant's religious beliefs, or that to do so would have imposed an undue hardship upon the Agency's operations. As stated, the schedules which the Agency offered Complainant would not have allowed Complainant to attend Sunday school or afternoon church meetings. In addition, there was no evidence the Agency attempted to obtain voluntary substitutes or swaps for the Sundays Complainant was made to work. According to the record, there were six Meat Cutters who had Sundays off, and there was no evidence as to why Complainant could not have switched or rotated schedules with one of these employees. Further, Complainant's supervisor acknowledged that he was not aware of the Agency's policy regarding religious accommodation. Thus, the Commission concluded that the Agency's contention that the facility would have been short staffed causing an undue hardship was speculative. The Agency was ordered to, among other things, provide Complainant with reasonable accommodation of her religious beliefs, and investigate her claim for compensatory damages. White v. Dep't of Def., EEOC Appeal No. 0120080191 (May 7, 2010).

Religious Discrimination Found. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of her religion (Jewish) when her supervisor sought to have her security clearance suspended, and when she received an adverse performance appraisal. Following a hearing in the matter, the AJ found that Complainant was discriminated against with regard to those issues, and the Commission affirmed the AJ's findings on appeal. According to the record, Complainant, who worked at the Chaplain Center and School, was the only Jewish employee at her facility, and, prior to the complaint, Complainant had complained to two supervisors that prayers offered at the facility typically ended "in Jesus Christ's name." In addition, after Complainant's supervisor was notified by an Employee Assistance Program (EAP) Counselor that Complainant acknowledged having suicidal thoughts, the supervisor initiated the suspension of Complainant's security clearance. After returning from some time off of work, Complainant was detailed to a job performing duties unrelated to her regular position and denied access to the Agency's training database. In addition, she was given a special performance appraisal in which she was rated as "fair," and in which her supervisor noted that she accomplished her objectives "at the lowest possible level."

With regard to the issue of Complainant's security clearance, the Commission initially noted that it made no finding regarding whether the agency should have suspended Complainant's clearance. Instead, the Commission found that the supervisor acted differently with respect to Complainant and a co-worker who was not Jewish, both of whom held security clearances deemed necessary for their positions. Specifically, the co-worker on more than one occasion attempted to access an agency database using another employee's password, behavior that the supervisor knew could result in the suspension of the co-worker's security clearance. Nevertheless, the supervisor did not initiate the process to suspend the co-worker's clearance, and the Agency merely counseled her regarding her actions. Further, the supervisor did not initiate the process to suspend Complainant's clearance at the time he learned Complainant had suicidal thoughts, but only later took action after learning that Complainant had accused the Agency of creating a hostile work environment because she was Jewish. The Commission also found that the supervisor did not provide an adequate explanation for failing to act upon notice of the co-worker's conduct, as he did when informed about the substance of Complainant's visit to the EAP Counselor. With regard to the special appraisal, the Commission noted that Complainant received virtually all "top block" performance appraisal ratings during her more than eight years with the Agency. Further, the supervisor noted in his affidavit that Complainant's performance was successful or excellent with respect to all of her objectives, but that she had achieved only 25 percent of those objectives during the period in which the appraisal applied. While the supervisor later stated during the hearing that Complainant was not performing at her best, he did not identify any specific deficiencies and failed to adequately explain why he did not counsel Complainant regarding her performance. Thus, the Commission found that substantial evidence supported the AJ's finding of discrimination with regard to the supervisor's actions in connection with Complainant's security clearance, and the special appraisal. The Agency was ordered to, among other things, pay Complainant $32,000 in proven non-pecuniary compensatory damages, based upon evidence that Complainant suffered emotional distress as a result of the Agency's actions. Alexander v. Dep't of the Army, EEOC Appeal No. 0720060050 (April 15, 2010).

Under Multiple Bases

Race and Sex Discrimination Found. Complainant alleged that the Agency discriminated against her on the bases of her race and sex when it failed to hire her for the position of Accounts Payable Chief, demoted her from the position of Commercial Payables Branch Chief to the position of Commercial Payables Section Chief, and paid a male co-worker at a higher grade for performing the same duties. Following a hearing on the matters, the AJ found that Complainant was discriminated against with regard to all three issues raised. On appeal, the Agency challenged only the AJ's finding with regard to the selection for the Accounts Payable Chief position. The Commission initially found that Complainant established a prima facie case of discrimination, because she was a member of protected groups and was not chosen for the position in favor of someone outside those protected groups. Further, the Agency articulated a legitimate, non-discriminatory reason for not selecting Complainant, that is, that the Selectee was the best qualified candidate. Nevertheless, the Commission found that the Agency's stated reason was pretextual. The Selecting Official conducted no interviews for the position and did not convene a panel to make recommendations concerning the position, but instead completed ratings sheets for each of the three candidates that included vague categories such as "leadership" and "supervision." The Selecting Official had a difficult time explaining these vague categories. In addition, the Selecting Official did not consult the Command Staff Advisor with regard to the specific crediting plan for the position which was a departure from the merit promotion plan of the Agency. The Selecting Official said he was looking for someone who knew how to use the Lean Six Sigma System for removing waste from systems and increasing their speed, but ended up selecting a candidate who struggled with the process instead of Complainant who was a recognized leader in the process. Finally, the record showed that the Agency had a chart long before the selection process showing the Selectee as Branch Chief, and the Agency was unable to explain the existence of the chart. Thus, the Commission affirmed the AJ's finding of discrimination. The Agency was ordered to, among other things, appoint Complainant to the position with back pay and pay Complainant $25,000 in proven compensatory damages. Moresi v. Dep't of Homeland Sec., EEOC Appeal No. 0720090049 (March 29, 2010).

Retaliation

Retaliation Discrimination Found with Regard to Working Conditions. Complainant worked as the Head Nurse in the Extended Care Line. According to the record, Complainant had hoped to be appointed to a higher level Nurse position. Although the individual serving as Complainant's immediate Supervisor at the time (S1) recommended Complainant for the higher level position, the Chief Nurse did not concur. Complainant contacted an EEO counselor in November 2006, and the Counselor contacted the individual who regularly served as Complainant's immediate Supervisor (S2). Following EEO counseling, Complainant met with the Chief Nurse and S2, and during the meeting, Complainant was told she was being downgraded and relieved of three of the eight programs for which she was responsible. In a later town hall meeting, S2 announced to Complainant's staff that Complainant was no longer the Program Director, but was simply a Head Nurse. Complainant subsequently filed a formal EEO complaint alleging that the Agency subjected her to retaliation. Following a hearing in the matter, an AJ found that Complainant had been retaliated against when she was reassigned, her title was changed, and she was relieved from managing three programs.

On appeal, the Commission affirmed the AJ's findings. The Commission found that evidence in the record clearly established that S2 was aware of Complainant's prior EEO activity at the time of the actions in question. S2 confirmed at the hearing that she was aware of an EEO complaint, and also confirmed that she met with Complainant around November 28, 2006 to change her duties, title and responsibilities. This meeting date fell after any dates identified by the Agency as the earliest possible time supervisors would have known about Complainant's EEO activity. The record also disclosed that Complainant testified without objection that ten days after she filed a formal complaint, a new organizational chart was issued. The Commission found that this evidence was sufficient to support the AJ's finding that there was a nexus between the protected activity and the adverse treatment. Further, the Commission found that substantial evidence in the record showed that the Agency's actions, when viewed together, established evidence of animus and bias that S2 had against Complainant for having engaged in protected EEO activity. Thus, Complainant satisfied her burden of proving, by a preponderance of the evidence, that the Agency's stated explanation was a pretext for prohibited discrimination. The Agency was ordered to, among other things, restore Complainant to the position she occupied in November 2006 or a comparable position, and pay Complainant $45,000 in proven compensatory damages. McNeese-Ards v. Dep't of Veterans Affairs, EEOC Appeal No. 0720090027 (April 15, 2010).

Retaliation Found with Regard to a Performance Appraisal. Complainant worked as an EEO specialist and was tasked with reviewing the Agency's EEO program. In that capacity, Complainant recommended changes, including that the EEO Director report directly to the Agency Head to ensure compliance with Commission directives. The Agency did not enact these changes. Complainant filed a whistleblower report detailing his perception of the Agency's non-compliance with Commission regulations which he later withdrew after a Commission audit. Complainant was detailed to another department while on vacation in August 2004 and in May 2005 received a "successful" performance evaluation from his new Supervisor with regard to his policy work. Complainant filed an EEO complaint alleging reprisal for prior EEO activity with regard to his evaluation. On appeal, the Commission found that Complainant established a prima facie case of reprisal. The Commission found that, as a federal employee concerned with the administration and structure of EEO programs at the Agency, Complainant engaged in protected activity, and that the Agency knew of this activity. In addition, the Commission determined that while the Agency responded with legitimate reasons for the evaluation, that is Complainant's performance rating was justified by his job performance, Complainant proved, by a preponderance of the evidence, that the Agency's explanation was a pretext for discrimination. Complainant's co-worker noted that she overheard Supervisors talking about Complainant as a "troublemaker" that needed to be "dealt with." Further, this rating was the first one in several years in which Complainant was not rated as "highly successful." The Commission noted that although the Agency alleged that Complainant had difficulty meeting deadlines, Complainant received a rating of "highly successful" for customer service in this same review, and that category specifically evaluates whether an employee met essential deadlines and commitments. In addition, a member of the Agency's senior management indicated her belief that Complainant's narrative evaluation corresponded with a higher rating than "successful." Thus, the Commission found that Complainant proved that he was subjected to reprisal. The Agency was ordered to, among other things, raise the performance rating in question to "Highly Successful," and provide training to the Supervisors responsible for the discrimination. Hairston v. Dep't of Educ., EEOC Appeal No. 0120071308 (April 15, 2010).

Retaliation Found When Agency Failed to Respond to Threats in the Workplace. According to the record, Complainant, a Security Specialist, supported a co-worker (C1) when C1 filed an EEO complaint. Subsequently, another co-worker (C2) accused Complainant of having reported him to management regarding an alleged security violation. The discussion was heated, and C2 repeatedly used profanity. Complainant's supervisor was present, but did not attempt to stop C2, and also accused Complainant of reporting the alleged violation. Complainant reported the incident to her second level supervisor, who ordered that Complainant and C2 be separated, and that the matter be investigated. Thereafter, Complainant filed a formal EEO complaint alleging, among other things, that she was subjected to reprisal when management failed to take corrective action or respond to C2's actions. Following a hearing in the matter, an AJ found that Complainant was discriminated against, and the Commission affirmed the AJ's findings on appeal. The Commission noted that there was substantial evidence that management officials, including the official who directed the investigation, were aware of Complainant's EEO activity, and one management official included Complainant on a list of disgruntled employees who were considered troublemakers. Further, the AJ found that the investigation of the incident involving C2 was inadequate as there were no parameters for the investigation, and the method of interrogation made it difficult to understand what the investigation concerned. In addition, only C2's view of the incident was investigated, and there was no evidence that Complainant's concerns were addressed. Thus, the Commission concluded that management's failure to substantively respond to Complainant's concerns in any meaningful way was reasonably likely to deter Complainant's future EEO activity. The Agency was ordered to pay Complainant $6,000 in non-pecuniary compensatory damages for emotional distress resulting from the discrimination, as well as provide training to the named management officials. Cortez v. Dep't of the Treasury, EEOC Appeal No. 0720080039 (April 21, 2010).

Retaliation Found Based on Comments by Supervisor. Complainant filed a formal EEO complaint alleging, among other things, that her Supervisor retaliated against her for engaging in prior EEO activity when he threatened her and accused her of lying to an EEO Investigator. On appeal, the Commission found that the Supervisor's comments constituted reprisal. The Supervisor admitted that he accused Complainant of lying to the EEO Investigator, and stated that things would be different when he returned to the office. The Supervisor stated that he was upset when an EEO Investigator called him regarding Complainant's prior EEO complaint and told Complainant that he had spoken with the Investigator. The Commission found that the Supervisor's comments would be reasonably likely to deter Complainant or others from engaging in protected activity. The Commission noted that, even assuming the Supervisor was referring to the fact that his personal relationship with Complainant would change as he claimed, it was still reasonably likely that the statement caused Complainant to be concerned about how it might also affect her work relationship. Further, the Supervisor discussed work related matters during the same conversation. Thus, the Commission found that Complainant was subjected to unlawful retaliation. The Agency was ordered to, among other things, conduct a supplemental investigation with regard to the issue of compensatory damages, as well as provide training to the Supervisor. Montanez v. Dep't of the Interior, EEOC Appeal No. 0120080454 (April 23, 2010).

Retaliation Found Based on Referral to Employee Assistance Program. According to the record, Complainant and the Agency settled a sexual harassment claim concerning the Postmaster. One week later, the Postmaster refused to allow Complainant to work when the facility was short-handed. In addition, the Postmaster referred Complainant to the Employee Assistance Program (EAP) noting that she was unable to get along with co-workers and caused dissension by inciting co-workers and managers "into controversy." Complainant was also issued a letter of warning for leaving her post without providing sufficient medical documentation. Complainant subsequently filed an EEO complaint alleging that the Postmaster subjected her to retaliation. The Commission initially found that the temporal proximity between the mediation of Complainant's sexual harassment claim and the referral to the EAP was evidence of a nexus between complainant's prior EEO activity and the referral. While the Postmaster asserted that he referred Complainant to EAP because he was concerned about her behavior and work performance, the record showed that Complainant had recently been commended on her performance, and management officials had not previously addressed any concerns with her. In addition, the Agency issued Complainant the letter of warning and placed her in leave without pay status without acknowledging medical documentation Complainant had provided. The Agency was ordered to, among other things, pay Complainant $7,998 for lost overtime, restore sick leave used during the applicable period, and pay complainant $30,335.48 in proven compensatory damages. Holmes v. U.S. Postal Serv., EEOC Appeal No. 0720090025 (April 27, 2010).

Hearing Process

Hearing by Telephone Improper. Complainant, a Border Patrol Agent at the Agency's El Paso, Texas, facility, filed a formal complaint alleging that the Agency subjected him to age (44) discrimination when it did not select him for a Lead Border Patrol Agent position. Following an investigation, an AJ in the Commission's Dallas District Office conducted a hearing by teleconference with participants in El Paso. The AJ ultimately found no discrimination. On appeal, the Commission initially noted that it had previously held, in Louthen v. U.S. Postal Serv., EEOC Appeal No. 01A44521 (May 17, 2006), that a telephonic hearing is permissible when the AJ determines that it is required by exigent circumstances. In the instant case, however, the Commission found no such evidence of the exigent circumstances required by Louthen. There was no evidence that the AJ was unable to preside over the hearing in person, and the AJ did not document the exigent circumstances she believed warranted a telephonic hearing in this case. Further, the Commission questioned taking the testimony in this case by telephone given that the credibility of the officials involved in the selection process was at issue. The case was remanded for an in-person hearing. Moreno v. Dep't of Homeland Sec., EEOC Appeal No. 0120073140 (April 29, 2010).

Mixed Motive

Retaliation Found. Complainant filed a formal complaint alleging, in part, that the agency retaliated against him when it issued him a "fully successful" performance appraisal rating instead of a "superior" rating. The Agency acknowledged that certain criticisms made by Complainant's Supervisor in the evaluation suggested that Complainant was subjected to different standards than his co-workers. For example, the Supervisor criticized Complainant for not consulting the Supervisor's secretary when Complainant evaluated his own secretary. The Agency also found that other criticisms by the Supervisor, such as those regarding a specific audit, were not justified. The Commission stated that shortly before he issued Complainant's performance rating, the Supervisor learned of the outcome in a prior complainant filed by Complainant in which the Supervisor was named as a responsible official. Further, the Commission found evidence that the unjustified criticisms in Complainant's evaluation were based on animus for Complainant's protected activity. The record showed that the Supervisor referenced Complainant's EEO activity in a negative light in the evaluations of Complainant's co-workers. Specifically, the Supervisor stated that Complainant criticized one co-worker's performance in an EEO complaint, and noted that another co-worker was required to give a deposition in Complainant's case when Complainant asserted that the co-worker did not earn the rating he received. The Commission concluded that the case presented an issue of mixed motive, in that retaliation was, in part, a motivating factor for the performance rating. In addition, the Agency failed to show that it would have rated Complainant "fully successful" absent the unlawful discrimination. The Agency was ordered, in part, to change its records to reflect that Complainant received a "superior" rating and provide him with appropriate benefits, as well as investigate Complainant's claim for compensatory damages. Holmes v. Dep't of Agric., EEOC Appeal No. 0120091986 (April 23, 2010).

Settlement Agreements

Settlement Agreement Void for Lack of Consideration. The parties entered into a settlement agreement pursuant to which the Agency agreed to have a specified Manager meet with other managers and supervisors and advise them to give Complainant no more or less attention than other employees. In addition, the union President was to attend and report back to Complainant that the meeting took place. On appeal, the Commission found that the settlement agreement was unenforceable and void for lack of consideration. The Commission noted that the Agency was merely agreeing to treat Complainant in accordance with existing policies and procedures, and the agreement provided Complainant nothing more that that to which he was already entitled to as an employee. Finally, the provision concerning the union President did not place any obligation on the Agency to take action. The Commission ordered the Agency to reinstate the original complaint for processing. Little v. U.S. Postal Serv., EEOC Appeal No. 0120091498 (April 15, 2010).

Settlement Agreement Void on the Grounds of Mutual Mistake. The parties entered into a settlement agreement after Complainant contacted an EEO counselor concerning a privately employed truck driver's (D1) use of a sexually derogatory term. The parties agreed that D1 would not be permitted on any part of one of the Agency's premises. Less than one month later, the Agency purported to rescind the settlement agreement, claiming that it was inconsistent with a pre-existing Highway Contract Route and therefore void. On appeal, the Commission concluded that the settlement agreement was void as a matter of law, because the parties made a mutual mistake in the formation of the agreement. Specifically, the parties operated under the erroneous assumption that the Agency was free to bar D1 from the premises and that this would not violate any pre-existing contractual obligations of the Agency. Because compliance on the Agency's part was impossible, the Agency was ordered to reinstate the underlying complaint for processing. Britt v. U.S. Postal Serv., EEOC Appeal No. 0120090019 (April 30, 2010).

Settlement Agreement Invalid When Not Signed by Authorized Agency Representative. During mediation, Complainant and two named Agency officials signed a proposed settlement agreement. The Medical Center Director, the authorized representative of the Agency, ultimately disapproved the agreement. Following Complainant's claim of breach, the Agency determined that there was no fully executed settlement agreement. On appeal, the Commission affirmed the Agency's decision, stating that generally, in order to be valid and enforceable, a settlement agreement must be executed by an authorized representative of the Agency. In this case, the proposed agreement specifically provided that it would become effective "after legal review by Regional Counsel and signature of the Medical Center Director." The Commission noted that, since the proposed settlement agreement was invalid, the complaint must be reinstated for processing in accordance with the EEOC Regulations. Wuetcher v. Dep't of Veterans Affairs, EEOC Appeal No. 0120101198 (May 28, 2010).

Stating a Claim

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

Austin v. Dep't of Veterans Affairs, EEOC Appeal No. 0120081152 (March 29, 2010). (the Complainant stated a claim of reprisal when the Agency refused her numerous requests to meet with the Hospital Director. Complainant stated that the Director would not see her because she had a pending EEO complaint against a Program Support Assistant in the Director's Office. The Commission noted that these actions, if proven true, could be considered adverse and might dissuade a reasonable employee from making or supporting a charge of discrimination.)

Stateman v. U.S. Postal Serv., EEOC Appeal No. 0120100331 (April 6, 2010). (claim that Complainant was subjected to racial slurs and taunts for five to six years, and that a co-worker influenced management to change complainant's seniority status and work schedule states a viable claim of harassment.)

Scott v. Dep't of the Army, EEOC Appeal No. 0120093146 (April 6, 2010). (allegation that Complainant did not make the referral list for a position she applied for states a viable claim of discrimination. Agency's assertion that Complainant was not eligible for the position because she was not a competitive status employee goes to the merits of the claim and not to whether the allegation states a claim of discrimination.)

Pino v. U.S. Postal Serv., EEOC Appeal No. 0120083308 (April 20, 2010). (the Complainant's allegation that he was subjected to a drug test because of his age states a viable claim of discrimination. The Commission noted that an employer-mandated drug test is a type of fitness for duty examination, and being required to take a drug test affects a term, condition, or privilege of employment.)

Kelly v. Dep't of Educ. EEOC Appeal No. 0120083547 (April 22, 2010). (the Complainant's allegation that Agency officials disclosed her confidential personnel information, including information regarding her EEO activity, to a co-worker states a viable claim of retaliation since the actions, if true, might dissuade a reasonable employee from making or supporting a claim of discrimination.)

Holt v. U.S. Postal Serv., EEOC Appeal No. 0120083607 (April 22, 2010). (claim that a management official attempted to persuade Complainant's co-worker not to submit a witness statement on his behalf states a viable claim of retaliation since the action, if proven, might dissuade a reasonable employee from making or supporting a claim of discrimination.)

Deleon v. Dep't of Transp., EEOC Appeal No. 0120100632 (April 23, 2010). (the Complainant's allegations that, for approximately one and one-half years, she was bullied by male co-workers and treated in a hostile manner, and that management took no action to stop the behavior state a viable claim of harassment.)

Sanders v. U.S. Postal Serv., EEOC Appeal No. 0120090397 (May 4, 2010). (claim that Complainant's manager told him he would "lose [his] livelihood" if he did not finish his work on time, and his supervisor struck him in the face with a piece of mail states a viable claim of retaliatory harassment. The Commission found that, given that one incident involved a physical touching, the two alleged incidents were sufficient to state a claim.)

Krzywkowski v. U.S. Postal Serv., EEOC Appeal No. 0120090215 (May 7, 2010). (the Complainant's allegation that she was made to sit in a room and do nothing for eight hours a day after she engaged in EEO activity states a viable claim of reprisal. The Commission stated that such action, if true, would be reasonably likely to deter protected EEO activity.)

Trakul v. U.S. Postal Serv., EEOC Appeal No. 0120100790 (May 10, 2010). (the Complainant's claim that, two days after affidavits were requested from management in a prior EEO complaint, she was required to provide detailed medical information before being allowed to return to work states a viable claim of retaliation. The Commission noted that the action could produce a chilling effect on employees utilizing the EEO process.)

Carranza v. Dep't of the Army, EEOC Appeal No. 0120092727 (May 11, 2010). (the Agency's dismissal of the complaint for failure to state a claim on the grounds that Complainant was a contractor was improper. The Agency controlled the means and manner of Complainant's work, provided Complainant with her worksite, materials, equipment and supplies, and Complainant alleged that an Agency manager was directly responsible for her removal. Thus, the Agency exercised sufficient control over Complainant's position to qualify as a joint employer.)

Pearson v. Dep't of the Army, EEOC Appeal No. 0120100759 (May 25, 2010). (claim that Complainant was subjected to harassment when the Agency allowed a contract employee who had referred to her as "monkey" to return to the facility where she worked stated a viable claim. The Commission noted that the remarks contained historically offensive slurs toward those of Complainant's race.)

(In the following case, the Commission affirmed the Agency's determination that the Complainant failed to state a claim. –Ed.)

Paris v. Dep't of Commerce, EEOC Appeal No. 0120091942 (April 5, 2010) request for reconsideration denied, EEOC Request No. 0520100336 (July 27, 2010). (the Complainant's allegation that he was not promoted to a specific level position fails to state a claim. The Commission stated that an individual who is not eligible for a career ladder promotion, but claims harm without referring to a competitive promotion fails to state a claim.)

Campbell v. Dep't of Justice, EEOC Appeal No. 0120100729 (May 14, 2010). (the Complainant's claim that he was subjected to discrimination based on age when he was not selected for a Chaplain position was properly dismissed for failure to state a claim. The Agency notified Complainant that Chaplaincy positions are considered federal law enforcement positions, and Commission precedent and case law dealing with 5 U.S.C. § 3307 operates as an exception to the ADEA.)

Summary Judgment

Summary Judgment Proper. Complainant alleged that the Agency discriminated against her on the basis of disability when she was asked to perform duties outside of her position description. Specifically, Complainant stated that she became aware that some of the duties a Supervisor had asked her to perform to help him meet his goals, including delivering medical supplies and preparing a cash cart, were not within her job description. The AJ granted the Agency's motion for a decision without a hearing, and found no discrimination. Specifically, the AJ found that Complainant did not show she was an individual with a disability, the Supervisor involved was unaware of Complainant's condition, and other similarly-situated employees were not treated more favorably because others in Complainant's position had performed and continued to perform the same duties as were assigned to Complainant. On appeal, the Commission initially found that the AJ's issuance of a decision without a hearing was appropriate, because the record was adequately developed, complainant was given notice of the Agency's motion to issue such a decision and the opportunity to respond, Complainant was given a comprehensive statement of undisputed facts, and she had the opportunity to engage in discovery. Further, there were no genuine issues of material fact. Although, on appeal, Complainant presented evidence that she was classified as disabled by the Veterans Administration, the Commission noted that this does not necessarily mean she is disabled under the Rehabilitation Act. She did not present any evidence showing that the Agency should have offered her a reasonable accommodation because the Agency was not aware of her condition nor did it interfere with her ability to perform job duties. The Agency explained that the Supervisor gave Complainant additional duties because of a staff shortage. Singleton-Grant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120080332 (April 15, 2010).

Summary Judgment Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race, sex, age, and in reprisal for prior EEO activity when it did not select her for a Supervisor position. Following an investigation, Complainant requested an administrative hearing. The AJ subsequently issued a decision without a hearing finding no discrimination. On appeal, the Commission affirmed the AJ's findings. The Commission initially found that the AJ's decision to issue a decision without a hearing was proper. The Commission noted that the record had been adequately developed, Complainant was notified of the Agency's motion to issue a decision without a hearing and given an opportunity to respond, Complainant was given a comprehensive statement of undisputed facts, and Complainant had the opportunity to engage in discovery. Further, the Commission determined that the AJ properly found that Complainant had not been subjected to discrimination. The Selecting Official stated that he chose the selectee over Complainant because he felt the selectee's application, interview, and performance while on detail to the Unit where the position was located were stronger and showed greater ability to perform the duties of the supervisory position. In addition, the review board gave the selectee a higher rating score than Complainant, and the Selecting Official stated that he felt the selectee provided more detailed and comprehensive answers on many of the interview questions. The Commission further found that Complainant failed to prove that the Agency's articulated reasons for her nonselection were a pretext for discrimination. While Complainant asserted that she had been detailed to the position for a longer period of time than the Selectee, she failed to address the Selecting Official's statement that he evaluated each candidate's performance not the amount of time spent on the detail. Further, even if the Selectee was preselected as Complainant indicated, there was no evidence that discrimination occurred in the selection process. Frazier v. U.S. Postal Serv., EEOC Appeal No. 0120073787 (April 23, 2010).

Grant of Summary Judgment Reversed Where Genuine Issues of Material Fact Present and Need for Credibility Determination Existed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on his sex and age (57) when he was indefinitely suspended without pay pending a determination regarding his security clearance. Following an investigation, Complainant requested an administrative hearing. Over Complainant's objections, the AJ granted the Agency's motion for a decision without a hearing, and found no discrimination. On appeal, the Commission determined that the issuance of a decision without a hearing was improper. In this case, Complainant asserted that there were unclassified duties he could have performed while awaiting a determination on his security clearance, and that he had in fact been permitted to do those duties for a period of time. The Agency denied that such work was available. Complainant's Supervisor and Team Leader, however, indicated that Complainant's duties did not require him to have access to classified information, that he was performing his duties in a timely manner, and that there were no restrictions on his use of the unclassified network. Thus, the Commission concluded that there was clearly a genuine issue of material fact in dispute concerning why management decided that Complainant should be suspended without pay after being allowed to work for approximately two months following the withdrawal of his security clearance. Further, the Commission found the need for a credibility determination as to whether Complainant's case was, as management claimed, different from others whose security clearance came under review in the past. Finally, while the decision letter Complainant received indicated that he told co-workers he knew how to make bombs, Complainant denied making such a statement. The Commission remanded the matter for an administrative hearing. Campbell v. Dep't of the Army, EEOC Appeal No. 0120080478 (May 14, 2010).

Grant of Summary Judgment Reversed Where Need for Credibility Determination. Complainant filed a formal EEO complaint alleging that the Agency subjected him to harassment and discrimination on the basis of his disability and in reprisal for prior EEO activity. Specifically, Complainant stated that he was "chastised" about his clock rings, given a pre-disciplinary interview, notified that he was being scheduled for a psychological evaluation, and informed that he was unfit for duty. Following an investigation, Complainant requested an administrative hearing. The AJ granted the agency's motion for a decision without a hearing, and found no discrimination. On appeal, the Commission noted that while Complainant's Supervisor sent him for the fitness for duty examination following a meeting with Complaint, it was unclear from the record what exactly occurred during that time. The Commission stated that Complainant and two management officials gave conflicting statements as to what occurred during the meeting such that a credibility determination is required in order to establish what occurred. Further, the management officials gave only brief descriptions of what occurred during the meeting. Thus, the Commission remanded the matter for a hearing. Muckley v. U.S. Postal Serv., EEOC Appeal No. 0120073921 (May 6, 2010).

Grant of Summary Judgment Reversed Where Genuine Issues of Material Fact Present. Complainant had previously been an employee of the Agency. During that time, Complainant and four other employees filed an EEO complaint against the Agency, as well as a mixed case appeal with the Merit Systems Protection Board. The parties ultimately settled the case, and the Agency reinstated Complainant, but Complainant left shortly thereafter. Several years later, Complainant filed a formal EEO complaint alleging retaliation when she was not selected for a Medical Instrument Technician position. Following an investigation, complainant requested an administrative hearing. The AJ issued a decision without a hearing in favor of the agency. On appeal, the Commission found that there were in fact genuine issues of material fact in the case such that a hearing was required. The Commission noted that there was a dispute over the unsworn statements of the Selecting Official and the Approving Official. While the Selecting Official claimed that the Approving Official told him not to hire Complainant, the Approving Official denied making such a statement. Further, while the Agency asserted that the selectee was more qualified for the position than Complainant, the Selecting Official was not interviewed during the investigation and did not provide a sworn statement regarding the selection. The Commission stated that the Selecting Official's testimony would be crucial to determining whether Complainant was subjected to discrimination when she was not selected for the position in question. Thus, the Commission remanded the matter for an administrative hearing. Pickerel v. Dep't of the Army, EEOC Appeal No. 0120073012 (May 6, 2010).

Timeliness

Formal Complaint Timely Filed. Complainant filed a formal complaint alleging that she was discriminated against with regard to her working conditions. The Agency dismissed the complaint as being untimely filed. The Agency stated that it mailed the Notice of the Right to File a Formal Complaint to Complainant on September 8, 2009, and U.S. Postal Service tracking records reflect that Complainant signed for the documents on September 11, 2009. On appeal, however, the Commission found that the record contained insufficient evidence to show that Complainant actually received the Notice on September 11, 2009. The U.S. Postal Service "Track and Confirm" printout indicated only that delivery was made on that day in Chattanooga, Tennessee, without any further details as to the address. Further, the Notice indicates that it was signed for by someone other than Complainant. Complainant stated that she did not receive the Notice until September 15, 2009. The Commission concluded that there was inadequate evidence of Complainant's receipt of the Notice, and, therefore, her formal complaint was timely filed. Scott v. Dep't of Veterans Affairs, EEOC Appeal No. 0120100684 (May 18, 2010).

Agency's Dismissal for Failure to File a Timely Formal Complaint Improper. Complainant filed a formal EEO complaint on October 15, 2009, alleging that the Agency subjected her to harassment on the bases of her national origin and religion. The Agency subsequently dismissed the complaint as being untimely filed, stating that Complainant received her notice of right to file a complaint on September 29, 2009. On appeal, the Commission found that the Agency's dismissal was improper. According to the record, Complainant received two notices of the right to file a complaint. The first notice was received by Complainant on September 29. Complainant received a second notice, however, that was dated October 6, 2009, and specifically stated that it was a corrected version of the prior notice. Further, the second notice indicated that Complainant should file her formal complaint within 15 days of her receipt of that document. Thus, the Commission concluded that the record did not support the dismissal of Complainant's complaint. Liedecke v. Dep't of the Army, EEOC Appeal No. 0120100653 (May 14, 2010).

Formal Complaint Timely Filed. Complainant contacted an EEO Counselor, alleging that he was subjected to race discrimination. According to the record, Complainant received the notice of his right to file a formal complaint on July 24, 2009, and filed his formal complaint on August 10, 2009. The Agency ultimately dismissed the complaint as being untimely filed. On appeal, the Commission found that the Agency's dismissal was improper. The Commission noted that, in this case, the fifteenth day for filing a formal complaint fell of a Saturday. Pursuant to the EEOC Regulations, the period for filing a complaint shall be extended to include the next business day when the last day of the filing period falls on a Saturday, Sunday, or federal holiday. Thus, Complainant's formal complaint was timely filed. Downey v. Dep't of the Army, EEOC Appeal No. 0120100453 (April 6, 2010).

Counselor Contact Timely from Date Complainant Learned of Relevant Comparator. Complainant contacted an EEO Counselor and filed a formal complaint when the Agency issued him a seven day suspension. The Agency dismissed Complainant's claim for untimely EEO contact. On appeal, the Commission found that Complainant timely contacted the EEO Counselor within 45 days of the date he learned of the relevant comparator. It was not until April 26, 2009 that Complainant discovered that an otherwise similarly situated female employee was treated differently. Thus, Complainant contacted an EEO counselor on May 10, 2009 which was well within the 45 day period. Kirkpatrick v. U.S. Postal Serv., EEOC Appeal No. 0120100141 (March 31, 2010).

Dismissal for Untimely EEO Counselor Contact Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her disability and in reprisal for prior EEO activity when it demoted her on December 7, 2008. The Agency dismissed the complaint, stating that Complainant's contact with the EEO Counselor on February 9, 2009, was untimely. On appeal, the Commission found that the Agency's dismissal was improper. The record contained a January 15, 2009 electronic mail message from Complainant's representative to the Agency's EEO Multicultural Representative stating that Complainant would like to initiate the EEO process. That message was forwarded to the Acting EEO Program Manager as well as the Lead EEO Counselor on January 20, 2009. In addition, Complainant contacted the EEO Program Manager on January 22, 2009, stating that she wished to talk with him about filing a complaint. Thus, the Commission concluded that, while Complainant did not meet with an EEO Counselor until February 9, 2009, she exhibited her intent to begin the EEO process within 45 days of her demotion. Renbourne v. Dep't of Health & Human Servs., EEOC Appeal No. 0120092428 (April 28, 2010).

Adequate Justification for Extending Time Limit for Contacting EEO Counselor Found. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her disability and in reprisal for prior EEO activity when it terminated her on June 2, 2009, prior to the completion of a probationary period. The Agency dismissed the complaint, stating that her contact with the EEO Counselor on August 4, 2009, was untimely. On appeal, the Commission found the Agency's dismissal was improper. The Commission noted that the June 2 termination letter advised Complainant to contact the Human Resources (HR) Specialist if she had "questions regarding [her] appeal rights." The record showed that Complainant contacted the HR Specialist on June 4, 2009, and Complainant stated that that the HR Specialist told her she had no appeal rights because she had not completed her probationary period. The Commission found that Complainant initiated contact with the intent to pursue an EEO claim with a party logically connected to the EEO process in early June 2009, well within the 45 day limitation period. Chavers v. Dep't of Commerce, EEOC Appeal No. 0120100861 (April 30, 2010).

ARTICLE:

COMPLIANCE
THE REGULATORY REQUIREMENTS AND A CASE UPDATE

INTRODUCTION

At various stages in the EEO complaint process, the parties are required to comply with orders and decisions. For example, when an Agency issues a final decision, it is required to comply with the terms thereof. In addition, the parties are required to comply with orders issued by the AJ during the hearing stage, as well as final decisions of the Commission. This article addresses the regulatory requirements surrounding compliance with various orders and decisions, as well as recent case law.

COMPLIANCE WITH FINAL AGENCY DECISIONS

The EEOC Regulations require an Agency to issue a final decision in connection with a complaint of discrimination. Specifically, when an Agency dismisses an entire complaint, receives a request for an immediate final decision following an investigation of the merits of a complaint, or does not receive a reply from the Complainant in response to the notice of a right to request a hearing, the Agency shall take final action by issuing a final decision.¹ In addition, if the Agency decides to fully adopt the decision of an AJ, the Agency shall issue a final action advising the Complainant of its decision.² The EEOC Regulations provide that a final agency action that has not been the subject of an appeal or civil action shall be binding on the Agency.³ If the Complainant believes that the Agency has not complied with the terms of its final decision, the Complainant shall notify the Agency EEO Director, in writing, within 30 days of when the Complainant knew or should have known of the alleged noncompliance.⁴ If the Agency does not respond to the Complainant in writing, or the Complainant is not satisfied with the Agency's response, the Complainant may appeal to the Commission for a determination as to whether the Agency has complied with the terms of the decision.⁵

The Commission addressed an allegation that the Agency failed to comply with its final decision in Fitzgerald v. Dep't of Homeland Sec.⁶ Complainant filed several complaints regarding her non-selection for 10 promotional and detail opportunities. Following a hearing, the AJ issued a decision finding discrimination on the bases of age, sex, and reprisal when Complainant was not selected for a series of vacancies for which she was qualified. As relief, the AJ ordered, in pertinent part, payment of the difference between the compensation Complainant actually received and the full range of compensation, salary, bonuses, cost of living increases, retirement benefits, and other payments she would have received if she had been promoted in November 2002. In addition, the AJ awarded Complainant $20,000 in compensatory damages, $247,500 in attorney's fees, and $3,379.65 in costs, and equitable relief including posting and training. The Agency subsequently issued a final decision adopting the AJ's findings. On appeal, the Commission found that the record showed that the Agency complied with the provisions concerning posting notice of the discrimination and providing training for the responsible officials. The Commission determined, however, that the Agency failed to show that it provided Complainant with the appropriate back pay award. Specifically, the Commission stated that there was no information as to the rate of pay, step, or cost of living increases used in the Agency's calculation, and the Agency failed to provide details as to how the salary and overtime were calculated. The Agency also failed to provide detailed evidence as to how it calculated Complainant's retirement and thrift savings plan contributions. Thus, the Commission ordered the Agency to recalculate Complainant's back pay, and provide a detailed explanation as to how the award was reached.

In Fira v. Dep't of Agric.,⁷ the Agency issued a final decision finding discrimination based on national origin with regard to a five-day suspension. The final decision ordered corrective action, including, among other things, proven compensatory damages and attorney's fees. With regard to damages, the decision noted that Complainant was to submit his claim, and the Agency would be able to submit rebuttal evidence, after which the Agency would issue a separate decision addressing the issue of damages. Complainant filed an appeal with the Commission, stating that the Agency failed to take any action with regard to his statement in support of attorney's fees and compensatory damages. The Commission noted that the Agency's final decision awarded Complainant damages and attorney's fees, and the Agency failed to provide a rebuttal response to Complainant's remedy requests or issue a final decision in the matter. Thus, the Commission concluded that the Agency failed to comply with its final decision. The Commission ordered the Agency to consider Complainant's requests and evidence relating to compensatory damages and attorney's fees, and issue a final decision with regard to those issues.

COMPLIANCE WITH AJ ORDERS AND DECISIONS

During the Hearing Stage

Following an investigation, the Complainant has the opportunity to request an administrative hearing before an AJ. The AJ then assumes full responsibility for the adjudication of the complaint, including overseeing the development of the record.⁸ The parties must comply with any orders issued by the AJ. When the Complainant or the Agency fails, without showing good cause, to respond fully and in a timely fashion to an order of the AJ, the AJ may sanction the party as appropriate.⁹ For example, the AJ may draw an adverse inference that the information requested would have reflected unfavorably on the party who failed to respond to the order, or consider the matters to which the requested information pertains established in favor of the opposing party.¹⁰ The AJ may also exclude other evidence offered by the party in question, or issue a decision fully or partially in favor of the opposing party.¹¹

In Butler v. Dep't of Homeland Sec.,¹² the AJ drew an adverse inference when the Agency failed to comply with an order to produce documentation requested by Complainant. Complainant, a Transportation Security Screener, filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her sex, and age when she was treated less favorably than co-workers regarding assignments to baggage screening, and terminated from employment. After 180 days had passed from the filing of her formal complaint without the Agency completing the report of investigation, Complainant requested an administrative hearing. Nearly two months later, the Agency submitted the report of investigation to Complainant and the AJ (AJ1). While the Agency defined the claim as concerning only Complainant's termination, AJ1 found that the claim also included the Agency's conduct leading up to her termination, including requiring Complainant to lift more than the weight specified for the position, and assigning her to baggage screening more than her younger, male co-workers. AJ1 allowed the parties to conduct limited discovery, and Complainant requested a copy of the logbook containing the work assignments for each Screener during the applicable period. When the Agency indicated that such a logbook was no longer available, AJ1 ordered the Agency to produce it or provide evidence regarding its destruction. Following a hearing, AJ1 found that the logbook had existed and was improperly destroyed despite the Agency being on notice that it should have been maintained. AJ1 then made an adverse inference that the information in the logbook would have shown that Complainant was discriminatorily given more onerous and burdensome assignments than those outside her protected groups. AJ1 further stated that the Agency failed to comply with an order to produce its records retention policy, and AJ1 drew an adverse inference that the policy would have governed the forms in the logbook which would have been retained beyond the date of Complainant's EEO complaint. Thus, AJ1 barred the Agency from proffering evidence pertaining to the content of the logbook. The case was subsequently assigned to a second AJ (AJ2), who reaffirmed AJ1's rulings and sanctions regarding the logbook. AJ2 concluded that the Agency failed to articulate a legitimate, non-discriminatory reason for Complainant's work assignments, which ultimately led to her termination.

On appeal, the Commission initially rejected the Agency's argument that AJ1 improperly redefined the claim to encompass the discriminatory work assignments. The Commission noted that a clear reading of Complainant's complaint, combined with the EEO Counselor's report shows that the Agency should have been on notice that the claim concerning the work assignments was part of her complaint, and the record contained statements concerning that matter. With regard to the adverse inference concerning the logbook, the Commission stated that AJ1 ruled on the matter after holding an in-person hearing. The Commission found it "inexplicable" that an agency would destroy records of employee work assignments on a daily or monthly basis, given the EEOC Regulations give a complainant 45 days in which to contact an EEO Counselor. The Commission noted that AJ1 gave the Agency an opportunity to establish that it had lawfully destroyed the logbook in accordance with its records retention policies, but the Agency did not comply with AJ1's order to produce those policies. The Commission concluded that AJ1's issuance of a sanction in the form of an adverse inference was not an abuse of discretion, and was narrowly tailored to the Agency's action. The Agency was ordered to pay Complainant appropriate back pay, benefits and interest, as well as $45,000 in proven compensatory damages, and determine the appropriate amount of lost future earnings.

In Howard v. Dep't of Commerce,¹³ the Commission affirmed the AJ's dismissal of Complainant's hearing request due to her failure to comply with the AJ's order. Complainant filed two formal complaints alleging that the Agency discriminated against her on the bases of her race, color, disability, age, and in reprisal for prior EEO activity when it delayed processing her request to attend a conference, disapproved certain costs associated with the conference, and ultimately denied her request to attend the conference. After the two complaints were consolidated at the hearing stage, the AJ permitted the parties to conduct discovery, and granted the Agency's Motion to Compel after Complainant failed to adequately respond to discovery requests. When Complainant failed to comply with the AJ's order compelling her responses, the AJ dismissed Complainant's hearing request. On appeal, the Commission found that the AJ's dismissal of the hearing request was proper. Although Complainant responded that she provided the Agency with discovery, the AJ found that her responses were inadequate and did not provide relevant information related to her complaints. The Commission noted that a review of Complainant's responses to the vast majority of the Agency's interrogatories reveal that Complainant merely responded that the question "calls for previously disclosed information." Further, Complainant waived any objections to the Agency's discovery requests when she failed to respond to its Motion to Compel. The Commission noted that the AJ issued an Order to Show Cause requiring Complainant to explain her failure to comply with the discovery order and notifying her that her failure to respond could result in the dismissal of the hearing request.

Following the Hearing

Pursuant to the EEOC Regulations, the AJ shall issue a decision on a complaint of discrimination, and order appropriate remedies and relief where discrimination is found.¹⁴ If the Agency does not issue a final order within 40 days of receipt of the AJ's decision, then the AJ's decision becomes the final action of the Agency.¹⁵ In addition, if the Agency appeals an AJ's decision, it must provide interim relief in certain circumstances. Specifically, if the case involves a removal, separation, or suspension continuing beyond the date of the appeal, and the AJ has ordered retroactive restoration, the Agency shall comply with the AJ's decision by providing temporary or conditional restoration pending the outcome of the appeal.¹⁶ If the Agency decides not to fully implement an AJ's decision, it must issue a final order stating its intention, and simultaneously file an appeal with the Commission.¹⁷ If the Agency does not issue a final order within 40 days and file an appeal, the AJ's decision becomes final and the Agency must comply with the AJ's decision.

In Newkirk v. Office of Pers. Mgmt.,¹⁸ the AJ issued a decision finding that the Agency subjected Complainant to discriminatory harassment. According to the record, the AJ's decision was mailed to the Agency's Chief of the Center for Equal Employment Opportunity on October 31, 2008, and a representative for the Agency signed for delivery on November 3, 2008. Nevertheless, the Agency did not issue its notice of appeal and final order until December 19, 2008. Thus, the Commission found that the Agency's appeal was untimely. The Commission noted that its practice and policy is to send correspondence to the Agency headquarters office designated to handle EEO cases, in this case the Chief of the Center for Equal Employment Opportunity, and that office's receipt of relevant correspondence is the operative date for determining timeliness. Thus, because the Agency failed to timely file its appeal, it was not permitted to challenge any aspect of the AJ's decision, and the Agency was ordered to provide the relief specified in the AJ's decision, including paying compensatory damages and attorney's fees.

The Complainant in Talahongva-Adams v. Dep't of the Interior,¹⁹ filed a formal EEO complaint alleging that she was discriminated against with regard to the classification of her position. After 180 days from the filing of her formal complaint, Complainant requested an administrative hearing. The AJ subsequently ordered the Agency to produce the complaint file, and, when the Agency failed to do so, issued a default judgment against the Agency. The AJ awarded Complainant back pay, reclassification of her position, appropriate step and cost of living increases and benefits, and $17,000 in proven compensatory damages. The Agency failed to issue a final order within 40 days of receipt of the AJ's decision. On appeal, Complainant alleged that the Agency failed to implement any of the relief ordered by the AJ. The Commission noted that, since the Agency did not file an appeal within the 40-day time frame, the AJ's decision became the final action of the Agency. Further, the Commission found that the AJ's decision to issue a default judgment was proper, and the remedies awarded were supported by the evidence. Thus, the Agency was bound to implement the remedies awarded by the AJ, and the Commission ordered the Agency to do so.

COMPLIANCE WITH COMMISSION DECISIONS

A decision by the Commission on a request for reconsideration is final. Pursuant to the EEOC Regulations, the relief ordered in a final Commission decision is mandatory and binding on the agency.²⁰ A Complainant may petition the Commission for enforcement of a decision issued under the Commission's jurisdiction.²¹ If an Agency is subsequently found not to be in compliance with a decision by the Commission, the EEOC Regulations provide several avenues the Commission can take to ensure compliance, including, among other things, issuing a notice to the Agency head to show cause why there is noncompliance, and referring the matter to the Office of Special Counsel.²² In addition, if the Commission determines that the Agency is not complying with its decision, or the Agency has failed or refused to submit any required report of compliance, the Commission shall notify the Complainant of the right to file a civil action for enforcement of the Commission's decision.²³

In Gray v. Dep't of Def.,²⁴ the Commission addressed the issue of whether the Agency complied with the Commission's prior decision In its prior decision, the Commission found that the Agency discriminated against Petitioner in reprisal for prior EEO activity when it failed to reasonably accommodate her, restricted her telephone usage, monitored her, and ultimately terminated her for misconduct. The Commission ordered the Agency to, among other things, retroactively reinstate Petitioner to her former position as a Commissary Support Clerk or another position agreeable to the parties, and pay back pay with interest and other benefits. According to the record, Petitioner accepted the Agency's offer of the position of Store Associate at another facility. The Store Director signed a statement indicating that Petitioner's duties would be limited to the administrative sections of the store in order to accommodate her prior injury. Subsequently, another Store Director (Director 2) took over and advised Petitioner that her administrative duties were only temporary and he needed medical information on her limitations. Petitioner then filed a petition for enforcement.

The Commission initially determined that the Agency's placement of Petitioner in the position of Store Associate complied with the previous appellate order. Petitioner accepted the position and it was agreeable to the parties. In addition, Director 2's decision to place Petitioner into her former Commissary Support Clerk position also substantially complied with the Commission's order. Petitioner did not dispute the Agency's assertion that the duties of the positions are nearly identical, and Petitioner was not asked to do anything more than her former position required. With regard to Petitioner's assertions concerning back pay, benefits and leave, however, the Commission noted that Petitioner is entitled to a detailed calculation worksheet that explains how the Agency calculated these amounts. The Agency did not explain how it calculated a back pay offset, and the Commission was unable to determine how the Agency calculated interest on back pay. The Commission noted that the Agency incorrectly deducted life insurance premiums from Petitioner's back pay, and that Petitioner would be entitled to premium pay for holidays she would have worked but for the discrimination. The Commission also stated that Petitioner would be entitled to any difference between the amount of insurance reimbursements between the private and government-provided insurance policies. The Commission ordered the Agency to, among other things, reimburse Petitioner for life insurance premiums it deducted from her back pay, provide Petitioner with a detailed accounting of how it calculated the restoration of annual and sick leave, wage back pay, and all deductions on a pay period by pay period basis, as well as a detailed breakdown of the amount the Agency claimed for outside earnings and the formula it used to calculate interest on back pay.

In Lomax v. Dep't of Veterans Affairs,²⁵ the Commission addressed Petitioner's assertion that the Agency failed to comply with the Commission's prior order to promote him to a Supervisory Police Officer position and determine the appropriate amount of back pay and benefits. Specifically, Petitioner stated that he had not received any information regarding his promotion. The Agency countered that it accomplished the action. The Commission noted that the record contained documentation showing that the Agency initiated the process to promote Petitioner, and ultimately effected his promotion. Petitioner received his credentials on March 7, 2008. The Commission stated, however, that the documentation provided by the Agency concerning its calculations for the amount of back pay and interest was not readily comprehensible. Thus, the Commission ordered the Agency to provide Petitioner with an explanation and documentation that sets forth, in full, how the Agency calculated the amount of back pay.

Finally, in Carroll v. Dep't of the Air Force,²⁶ the Commission also addressed the issue of whether the Agency fully complied with its order to provide Petitioner with back pay. The Commission had previously held that the Agency discriminated against Petitioner on the bases of age and reprisal when it did not select him for a non-supervisory Air Traffic Control Specialist position, and the Commission ordered the Agency to offer Petitioner the position and pay back pay and interest. Petitioner initially asserted that the Agency failed to offer him the position and that the Agency failed to comply with the Commission's order regarding back pay. The Commission issued a decision granting the petition for enforcement, and finding that the Agency's offer of a position in another state was not substantially equivalent to the position which Petitioner was denied.²⁷ In addition, the Commission instructed the Agency to clarify its back pay calculations, detailing how it determined Petitioner's gross salary and outside earnings. Petitioner subsequently filed a second petition for enforcement, asserting that, although he had returned to work and received some back pay, the Agency had not paid him for leave, overtime, or bonuses. The Commission initially noted that the Agency ultimately offered Petitioner a non-supervisory Air Traffic Control Specialist position in his area, and Petitioner accepted the position. In addition, the Commission noted that Petitioner was not entitled to interest on the back pay award because the underlying claim raised an issue of age discrimination and reprisal for a claim of age discrimination. Nevertheless, the Commission stated that its prior order instructed the Agency to provide documentation indicating how it determined the amount of back pay, and specifically detailing how it determined Petitioner's gross salary and outside earnings. In addition, the Commission previously instructed the Agency to document all other leave and benefits due Petitioner. The Commission stated that the record contained no evidence reflecting any of these calculations. Thus, the Commission again ordered the Agency to provide its calculation for back pay, as well as documentation indicating its calculations for other leave and benefits, within 30 days.

CONCLUSION

Final orders of the Agency and the Commission, as well as orders of an AJ are binding on the Agency. If the Complainant believes that the Agency has not complied with a final order, the Complainant may appeal to the Commission as set forth above.

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Footnotes

¹ 29 C.F.R. § 1614,110(b).

² 29 C.F.R. § 1614.110(a). If the Agency chooses not to fully implement the AJ's decision, the Agency must appeal as provided for in this section. See Newkirk v. Office of Pers. Mgmt, EEOC Appeal No. 0720090022 (May 20, 2010).

³ 29 C.F.R. § 1614.504(a).

⁴ Id.

⁵ 29 C.F.R. § 1614.504(b).

⁶ EEOC Appeal No. 0120071675 (July 2, 2009).

⁷ EEOC Appeal No. 0120083453 (February 10, 2009).

⁸ 29 C.F.R. § 1614.109(a).

⁹ 29 C.F.R. § 1614.109(f).

¹⁰ 29 C.F.R. § 1614.109(f)(3)(i) and (ii).

¹¹ 29 C.F.R. § 1614.109(f)(3)(iii) and (iv). A more thorough discussion of a default judgment as a sanction for failure to comply with an AJ's order may be found in the Winter 2010 Edition of the Digest of Equal Employment Opportunity Law available on the EEOC's website at www.eeoc.gov.

¹² EEOC Appeal No. 0720090010 (May 27, 2009).

¹³ EEOC Appeal No. 0120072499 (August 9, 2007) request for reconsideration denied EEOC Request No. 0520070917 (October 25, 2007).

¹⁴ 29 C.F.R. § 1614.109(i).

¹⁵ Id.

¹⁶ 29 C.F.R. § 1614.505(a)(1).

¹⁷ 29 C.F.R. § 1614.110(a).

¹⁸ EEOC Appeal No. 0720090022 (May 20, 2010).

¹⁹ EEOC Appeal No. 0120081694 (May 28, 2010).

²⁰ 29 C.F.R. § 1614.502(a).

²¹ 29 C.F.R. § 1614.503(a).

²² 29 C.F.R. § 1614.503.

²³ 29 C.F.R. § 1614.503(g).

²⁴ EEOC Petition No. 0420100001 (July 23, 2010).

²⁵ EEOC Petition No. 0420080009 (February 4, 2010).

²⁶ EEOC Petition No. 0420090006 (November 4, 2009).

²⁷Carroll v. Dep't of the Air Force, EEOC Petition No. 0420070018 (February 29, 2008).