Carlton M. Hadden, Director, OFO
Robert Barnhart, Acting Director, OFO's Special Services Staff
Digest Staff
Editor: Robyn Dupont
Writers: Jessica Brittany Bingham, Robyn Dupont, Sarah Jonas, Tanza Jones, Wanda L. Jones, Joseph M. Kirchgessner, Elizabeth LaForgia, Rosdaisy Rodriguez, Ebbie Yazdani

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

(The Fall 2013 edition of the Digest contains a sampling of summaries of decisions of note, some appearing in previous issues, selected by the staff of the Digest from among the volume of decisions the EEOC issues each fiscal year. The summaries are neither intended to be exhaustive or definitive as to the selected subject matter, nor are they to be given the legal weight of case law in citations. For summaries of decisions involving claims of harassment, see by statute as well as under multiple bases. - Ed.)

SELECTED EEOC DECISIONS

Attorney's Fees

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

Prevailing Rate Discussed. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him in reprisal for prior EEO activity when his proficiency review was sent off-site to be completed. An Administrative Judge (AJ) found that Complainant was discriminated against with regard to that issue, and ordered the Agency to pay attorney's fees. Complainant submitted a verified statement of attorney's fees calculated at a rate of $350 per hour for a total of 49.5 hours. The Agency did not contest the number of hours expended, but argued that the rate should be based on the market value in Beckley, West Virginia, where the Agency facility is located and Complainant resides, rather than the market rate in Tidewater, Virginia, where the attorney's practice is located. The AJ agreed, and awarded attorney's fees at a rate of $240 per hour. On appeal, the Commission found that the Agency presented insufficient evidence to prove that Complainant's decision to use an out-of-state attorney was unreasonable. Complainant's attorney had eighteen years of experience in labor and employment law with an emphasis on federal employees, and had appeared before other EEOC AJ's many times. The Agency failed to show that there were other attorneys available in Beckley, West Virginia with similar experience. Thus, the Commission found that Complainant's attorney was entitled to an upward adjustment in his rate and the Agency was ordered to tender Complainant's attorney's fees at a rate of $350 per hour. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120093849 (August 28, 2013).

Complainant Not Entitled to Attorney's Fees for Work After Rejection of Offer of Resolution. Prior to a hearing, the Agency made an offer of resolution to pay Complainant a lump sum of $48,000. The Agency stated that the lump sum would cover all reasonable attorney's fees and costs and must be accepted by Complainant within 30 days of receipt. If the subsequent relief awarded was not more favorable than the offer, Complainant would not receive attorney's fees or costs incurred after the expiration of the 30-day period pursuant to the EEOC's regulations. Complainant rejected the offer and the Agency refused Complainant's request for more money. Following a hearing, an Administrative Judge (AJ) determined, among other things, that Complainant was entitled to $16,224.50 in attorney's fees and costs. On appeal, the Commission determined that the award was proper. In this case, the Agency made an offer of resolution within the time frame provided in the EEOC's regulations. Further, the relief awarded by the AJ was less favorable than the relief contained in the Agency's offer. The Commission found that the AJ correctly determined that Complainant's request for additional attorney's fees did not meet the "interest of justice" exception found within the regulations, and Complainant made no arguments on appeal that additional fees should be paid due to an interest of justice. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120123334 (August 15, 2013), request for reconsideration denied, EEOC Request No. 0520130686 (March 7, 2014).

Prevailing Market Rates Discussed. The Commission previously found that the Agency discriminated against Complainant with regard to his performance appraisal rating. As part of the relief, the Agency was ordered to pay attorney's fees. The Agency subsequently issued a decision on the matter in which it determined that, at the time the attorney performed the work, he had less experience and should be reimbursed at a lower hourly rate. The Commission found that the Agency was required to apply the current prevailing market rate in effect at the time Complainant submitted his verified statement of fees. The Commission noted that, consistent with federal case law, the delay in payment is properly measured by compensating Complainant's attorney at the current, rather than the historical hourly rate. Complainant v. Dep't of Agric., EEOC Appeal No. 00120112135 (July 19, 2013).

Administrative Judge's Award of Attorney's Fees Affirmed. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex when it issued her a notice of removal which was later reduced to a suspension and then a letter of warning. The Agency ultimately adopted the AJ's finding that Complainant was discriminated against and fully implemented the AJ's Order for relief. Complainant filed an appeal which, among other things, challenged the hourly rate awarded her attorney, and the AJ's determination that the fee petition should be reduced by 4.9 hours. The Commission presumed that the number of hours reasonably expended multiplied by a reasonable hourly rate represents a reasonable fee. In limited cases, the fee may be adjusted. In this case, Complainant, who hired an attorney from Texas, failed to show that there was not competent counsel in Tennessee. Complainant's attorney supported his higher billing rate by declaring he has billed at that rate since 2007 and has been awarded similar fees in various specific locations by the Commission. However, there was no mention of the markets in which he has practiced. Additionally, a Tennessee attorney, who has comparable skills and experience, averred that he bills at the rate set by the Commission. The Commission also reduced the number of hours in the fee petition because the hours billed before Complainant submitted a designation of representative to the Agency exceeded the allowable 2.5 hours for initial review and intake. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121071 (July 17, 2013).

Attorney's Fees Discussed. The Agency issued final decisions in relation to two requests from Complainant's attorney for fees and costs associated with prior appeals and petitions for enforcement. Complainant appealed those decisions to the Commission. The Commission initially addressed the issue of whether Complainant was a prevailing party for purposes of awarding attorney's fees. The Commission found that Complainant prevailed in her prior appeal insofar as the Commission determined that the Agency breached a settlement agreement which the parties had entered into and must pay Complainant back pay. In addition, Complainant's attorney spent a significant amount of time attempting to get the Agency to comply with the Commission's prior order regarding back pay and ultimately filed a petition for enforcement. While the Commission denied the petition for enforcement because the Agency corrected its error, the Commission noted that Complainant would not have had to file the petition for enforcement had the Agency timely complied with its previous Orders. Therefore, Complainant was entitled to reasonable attorney's fees associated with the filing of the petition for enforcement. The Commission noted that Complainant was not entitled to attorney's fees for work performed in pursuit of her claim of age discrimination because attorney's fees are not available under the Age Discrimination in Employment Act (ADEA).

With regard to the amount of fees, the Commission found that, in connection with the first appeal, Complainant was not entitled to fees for work related to a request for reconsideration which dealt with her age discrimination claim. The Commission, however, disagreed with the Agency's assertion that the remaining hours claimed were unreasonable. Further, the Commission stated that the Agency erred in finding that Complainant was only entitled to the hourly rate set forth in a fee agreement. It was clear that Complainant's attorney entered into the fee agreement with Complainant at a reduced rate based upon public interest motives, and, therefore, Complainant was entitled to the prevailing market rate. With regard to the work associated with the Agency's non-compliance with the Commission's previous Order and the filing of the petition for enforcement, as well as the second appeal, the Commission noted that the Agency did not challenge the number of hours claimed. Finally, the Commission found that Complainant's attorney provided sufficient evidence to support the claim for reasonable costs. Thus, the Agency was ordered to pay Complainant a total of $28,950 in attorney's fees and $53.12 in costs. Complainant v. Nat'l Sec. Agency, EEOC Appeal Nos. 0120101664 & 0120102282 (January 17, 2013).

Attorney's Fees Discussed. In a prior decision, the Commission found that the Agency discriminated against Complainant and ordered remedial action, including back pay and other compensation. Thereafter, the Commission issued several decisions in response to petitions for enforcement filed by Complainant, the most recent of which ordered the Agency to pay Complainant for penalties and interest for taxes incurred as a result of the back pay award. The Commission declined to make a finding regarding attorney's fees at that time because the Agency had not issued a decision on that matter.

Subsequently, Complainant filed an appeal with the Commission on the issue of attorney's fees after the Agency declined to award fees on the grounds that Complainant's attorney did not represent her in the matters before the Commission. On appeal, the Commission noted that the fact that the attorney represented Complainant in both the district court matter and her EEOC proceedings did not change the fact that Complainant was entitled to fees for successful legal work performed on Complainant's behalf before the Commission. While Complainant's husband stated that he served as Complainant's representative in seeking enforcement of the original Order, the Commission stated that the attorney's intervention actually led to the docketing of the third petition for enforcement. In addition, the attorney submitted supplemental information as Complainant's attorney representative in an effort to secure Agency compliance in paying the tax penalties. Thus, the Commission found that the attorney successfully represented Complainant during the processing of one of the petitions for enforcement and was entitled to fees for his work. In addition, the attorney successfully represented Complainant in the most recent petition for enforcement and eventually secured enforcement of the decision requiring the Agency to pay the tax penalties. While Complainant's husband and the attorney made statements indicating that Complainant was not represented by the attorney before the Commission, those statements were made prior to the attorney's involvement in the later two petitions for enforcement. Thus, the Commission concluded that Complainant was entitled to payment of $7,132.50 in attorney's fees. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111564 (November 21, 2012).

Class Complaints

Class Certification Granted. Complainant, a Postal Police Officer, filed an EEO Complaint alleging that Postal Inspectors (Inspectors) were provided access to the Self-Referral Counseling Program (SRCP), a benefit paid for by the Agency, while Postal Police Officers (Officers) were not. Complainant sought certification of a class, arguing that failure to provide SRCP as a benefit to Officers, while providing it to Inspectors, had a discriminatory disparate impact because Officers are predominantly Black and Hispanic, while the majority of Inspectors were Caucasian. The AJ granted class certification, and defined the class as "all non-white Postal Police employed by the Agency at any time since March 24, 2008." The AJ found that the class met the numerosity requirement because it was composed of the hundreds of Officers who were non-White and not entitled to the benefit due to the terms of their benefit package. The AJ also stated that it was undisputed that all Officers were denied access to SRCP, and that Complainant, a non-White Officer, was typical of the class. The AJ noted that Complainant was not represented by counsel, but decided to conditionally certify the class and provide Complainant with the opportunity to retain adequate counsel. The Agency issued a final order rejecting the AJ's findings, and filed an appeal.

On appeal, the Commission found no reversible error in the AJ's conclusion that that the purported class met the prerequisites of commonality and typicality. Further, the Commission noted that the purported class of non-White Police Officers included several hundred employees. The Commission agreed with the AJ's determination that all non-White Officers could be considered part of the class because the record showed that the SRCP was not a benefit available to any Police Officer. The Commission noted the Class Agent did not respond to the Agency's appeal, and stated that the Class Agent must obtain adequate representation within a reasonable time. Complainant, et al. v. U.S. Postal Serv., EEOC Appeal No. 0720120022 (April 23, 2013), request for reconsideration denied, EEOC Request No. 0520130479 (February 21, 2014).

Compensatory Damages

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

Agency Liable for Compensatory Damages Resulting from Disability Discrimination. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his disability when it failed to provide him with a sign language interpreter during staff meetings on six occasions. In its final decision, the Agency acknowledged that it "did not always accommodate Complainant's requests for reasonable accommodation." Nevertheless, the Agency stated that it had reasons for not providing an interpreter on the dates in question, specifically, confusion over the date of a meeting, cancellation of a meeting, "management oversight," no "associated request," and traffic delays. The Agency found that it was not liable for compensatory damages because it made a good faith effort to accommodate Complainant's disability as evidenced by its implementation of an Interpreter Procedure to provide Complainant with accommodation.

On appeal, the Commission noted that, given the Agency's acknowledgment that it did not provide Complainant with accommodation on some occasions, the only issue on appeal was whether the Agency was liable for damages. An Agency is not liable for compensatory damages in cases of disability discrimination where it demonstrates that it made a good faith effort to accommodate the disability. The Commission found that the Agency made a good faith effort with regard to two of the meetings. Specifically, in one case, the Agency cancelled the meeting thereby ensuring that no information was communicated for which Complainant did not have equal access. With regard to the second meeting, the Commission noted that the Agency procured an interpreter, but the interpreter was delayed due to traffic. The Commission concluded, however, that the Agency did not make a good faith effort to accommodate Complainant with regard to the remaining four meetings. Complainant specifically requested an interpreter in accordance with the Agency's Interpreter Procedure on two occasions, but there was no evidence that the Agency took any action on those requests and Complainant was not provided with an interpreter. The other two meetings were recurring meetings and there was no evidence the Agency took any steps to obtain an interpreter on those occasions. When asked why it did not provide an interpreter, the Agency stated that "this may have been missed," and "it appears this one fell through the cracks." Thus, it was clear that on at least four occasions, the Agency did not make Complainant's request for accommodation a priority and did not even attempt to obtain an interpreter. The Commission found that the Agency's inaction did not qualify as an attempt to provide a reasonable accommodation. While the Agency did provide Complainant with an interpreter on 11 occasions, the Commission emphasized that the Agency's duty to provide reasonable accommodation was ongoing. Therefore, the Agency was liable for compensatory damages in connection with its failure to provide accommodation on four occasions, and the matter was remanded for a supplemental investigation on the issue of damages. Complainant v. Dep't of Def., EEOC Appeal No. 0120114330 (February 14, 2013), request for reconsideration denied, EEOC Request No. 0520130418 (August 30, 2013).

$175,000 Awarded for Sex Based Harassment. An AJ determined that the Agency harassed Complainants based upon their sex and age, and ordered the Agency to pay one Complainant (Complainant M) $200,000 in damages and the other Complainant (Complainant A) $175,000 in damages. On appeal, after concluding that the record supported the AJ's finding of harassment, the Commission addressed the issue of damages. The Commission rejected the Agency's argument that there was no finding of intentional discrimination, stating that the AJ specifically found that the Supervisor's reasons for the actions at issue were pretextual and both Complainants were harassed due to sex and age. The Commission noted that the nexus sufficiently established intent. The AJ conducted a hearing and found Complainants had proven emotional and physical changes resulting from the harassment. The AJ noted that Complainant M still experienced anxiety attacks at the time of the hearing. Complainant M's testimony was corroborated by her husband who testified that the harassment changed their marriage and Complainant M experienced anxiety attacks, difficulties sleeping, problems with her weight and depression. The Commission stated that Complainant M's award should be moderately reduced to $175,000 to account for evidence that she experienced stress due to her mother's illness. The AJ noted that while Complainant A may have suffered for a shorter period of time, she was more sensitive and suffered similar mistreatment until she retired. Complainant A described feeling intimidated, afraid and constantly fearful of being fired. She sought assistance from an EAP counselor as a result of her treatment, and the AJ found that she "re-experienced" some of the pain and humiliation when she testified at the hearing. Thus, the Commission found that an award of $175,000 was appropriate for each Complainant. Complainants v. Soc. Sec. Admin., EEOC Appeal No. 0720120003 (September 9, 2013).

$175,000 Awarded for Discriminatory Termination. In a prior decision, the Commission found that the Agency discriminated against Complainant when it terminated him from employment. The Agency subsequently conducted a supplemental investigation with regard to Complainant's claim for compensatory damages, and awarded Complainant $30,000 in non-pecuniary damages. On appeal, the Commission found that the Agency's award was inadequate. Complainant's psychiatrist stated that Complainant suffered severe depression as a result of the loss of his job, which subsequently contributed to Complainant losing his home and becoming homeless with his children for a period of time. Complainant experienced frustration, poor sleep, stress and suicidal thoughts. The psychiatrist stated that Complainant had severe difficulty dealing with the stress and concentration issues related to his depression which hampered his ability to work and attend college. The Commission noted that while Complainant suffered from depression prior to his termination, Complainant's psychiatrist and psychologist opined that the discrimination significantly worsened his depressive disorder. The Commission concluded that an award of $175,000 in non-pecuniary damages was appropriate in this case. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130887 (May 31, 2013).

$150,000 Awarded for Sex Discrimination. Following a hearing, an AJ found that the Agency discriminated against Complainant on the basis of her sex with regard to her light duty request and performance appraisal. The AJ awarded Complainant, among other things, $92,500 in compensatory damages. On appeal, the Commission increased the award to $150,000. The Commission stated that Complainant suffered physical harm in the form of a back injury as a result of being assigned to full duty, and suffered extreme long-term pain. The AJ found credible Complainant's testimony that she had been living with severe pain with little to no improvement since her injury. Complainant's doctor stated that she had reached maximum medical improvement and the AJ determined that Complainant would continue to experience significant pain and physical limitations for an indeterminate amount of time in the future. Complainant also suffered emotional harm as a result of the discrimination. Complainant stated that she experienced anxiety attacks, lost her confidence and independence, and felt she was a burden to others. Her relationships with family and friends deteriorated, and she felt hopeless. Complainant was ultimately diagnosed with depression, saw a psychiatrist, and began taking medication which made her sleepy and interfered with her ability to drive. The AJ found that Complainant experienced significant distress and great loss of enjoyment of life. Complainant's friend testified in support of her claim. Based upon the evidence of record, the Commission concluded that an award of $150,000 in non-pecuniary compensatory damages was appropriate. Complainant v. Dep't of the Air Force, EEOC Appeal No. 0720110023 (August 1, 2013).

$50,000 Awarded for Retaliatory Harassment and Termination. The Agency found that Complainant proved she was subjected to unlawful retaliation when she was harassed and terminated from her position, and subsequently awarded her $10,000 in non-pecuniary damages. On appeal, the Commission increased the award. Complainant provided a statement from her therapist and medical documentation establishing that she suffered from an adjustment disorder with mixed anxiety and depression which was caused by the retaliatory discharge. The documentation also showed that Complainant would continue to need treatment. Complainant consistently expressed a profound fear of the official who terminated her, and stated that she experienced headaches, fear of going out alone and difficulty sleeping. Thus, the Commission concluded that Complainant was entitled to an award of $50,000 in non-pecuniary damages. The Commission affirmed the Agency's award of $5,837.29 in future pecuniary damages, and $2,506.97 in past pecuniary damages, as well as $15,000 in attorney's fees and costs. Complainant v. Dep't of the Interior, EEOC Appeal No. 0120123231 (February 1, 2013).

$38,000 Awarded for Disability Discrimination. Following a hearing, an Administrative Judge (AJ) found that the Agency discriminated against Complainant on the basis of her disability when it denied her reasonable accommodation, and awarded Complainant $15,000 in non-pecuniary compensatory damages. On appeal, the Commission modified the award. Complainant stated that she had physical pain and was unable to participate in sports or tend to her family and home as she did in the past. Complainant provided a letter from her podiatrist stating that the Agency's failure to provide Complainant with accommodation exacerbated her condition, and Complainant became depressed due to the chronic pain. Complainant's cousin and co-worker stated that prior to the discrimination, Complainant was energetic and outgoing but can no longer clean her house, or attend her children's functions. Another co-worker indicated that Complainant no longer participates in church functions, has problems walking, and is usually depressed. Complainant provided documentation showing that she received psychological counseling related to her medical condition. The evidence showed that the Agency's denial of accommodation interfered with Complainant's healing following her two surgeries. The Commission noted, however, that the record indicated that Complainant's life was drastically affected by her medical condition prior to the discriminatory denial of accommodation. The Commission found that an award of $38,000 was consistent with awards made in similar cases. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120103507 (January 18, 2013).

$30,000 Awarded for Sexual Harassment. The Agency issued a final decision finding that Complainant was subjected to sexual harassment by a Supervisor, and subsequently awarded Complainant $500 in compensatory damages. On appeal, the Commission found that the award was not adequate. The Commission noted that Complainant's petition for damages was not in the record or submitted on appeal. Nevertheless, the Commission found that the record contained relevant evidence in the form of Complainant's affidavit that was sufficient to support an award for emotional harm. Complainant stated that she suffered emotional harm from being physically touched and sexually degraded by the Supervisor for a period of between one and two years. Complainant felt embarrassed and violated, and feared for her safety. She was scared to go to work and to leave the facility after work, and was one of several employees who sought a temporary protection order against the Supervisor. The Commission concluded that Complainant was entitled to an award of $30,000 in non-pecuniary damages. The Commission noted that the lack of medical testimony or documentation in the record reduced what could have been a higher award. Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120112249 (March 19, 2013).

$25,000 Awarded for Retaliatory Non-Selection. Following an administrative hearing, an AJ found that the Agency retaliated against Complainant when it did not select her for the position of Chief of Social Work. The AJ found that Complainant did not show that she was subjected to discrimination on any other basis and did not prove that she was harassed. On appeal, the Commission modified the AJ's award of $75,000 in compensatory damages. Complainant stated that she was humiliated, and experienced emotional distress, anger, helplessness, and apprehension as a result of the retaliation. The Commission concluded that the award should be modified to $25,000 which took into account the severity of the harm suffered, and was consistent with prior Commission precedent. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0720120033 (March 7, 2013).

$20,000 Award for Retaliatory Non-selection Affirmed. The Agency found that Complainant was subjected to retaliation when she was not selected for a temporary position, and awarded her $20,000 in non-pecuniary compensatory damages. On appeal, the Commission found that the award was proper. Complainant provided a written statement indicating that she suffered from emotional distress on a daily basis, irritable bowel syndrome, loss of enjoyment of life, a strained marital relationship, and low self esteem. Complainant also stated that she experienced emotional distress related to the financial hardship she endured as a result of her non-selection. Complainant provided statements from her sister and a reverend in support of her claim. The record established that Complainant experienced emotional distress and financial hardship as a result of the retaliation. Most of the evidence submitted, however, failed to substantiate Complainant's alleged injuries and failed to prove the injuries were caused by the Agency's actions. For example, Complainant provided notes from her physician dated prior to the retaliation, and the medical records regarding her irritable bowel syndrome failed to link the condition to the non-selection. The Commission agreed with the Agency that while Complainant may have experienced pain and suffering because of the retaliatory non-selection and for a period of time afterward, she did not establish the she suffered permanent or catastrophic long-term harm. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120120392 (March 14, 2013).

$20,000 Awarded for Denial of Accommodation. The Commission previously determined that the Agency discriminated against Complainant when it failed to provide her with an effective accommodation for her disability. The Agency subsequently awarded Complainant $20,000 in compensatory damages, and the Commission found that this award was proper. Complainant provided affidavits from herself, her mother, and a neighbor. Complainant asserted that, due to the Agency's failure to accommodate her, she was unable to sleep at night, dreaded going to work, gained weight, and experienced high blood pressure due to stress. In addition, she stated that the discrimination negatively affected her social and marital life. Complainant's mother and neighbor supported these assertions. Complainant also noted that she accepted a referral for an appointment with a psychiatrist due to depression and anxiety. The Commission found that the Agency's award of $20,000 was not monstrously excessive and was consistent with amounts awarded in similar cases. Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120121792 (March 1, 2013).

$18,000 Award for Discriminatory Termination Affirmed. The Commission previously found that the Agency discriminated against Complainant when it terminated him during his probationary period. The Agency conducted a supplemental investigation and awarded Complainant $18,000 in non-pecuniary compensatory damages. The Commission affirmed the award on appeal. While Complainant sought damages for expenses he incurred in connection with the purchase of a new home, the Commission found no evidence that the discrimination was the proximate cause of the expenses. Specifically, Complainant made the down payment on a house and paid taxes in 1998 approximately two years before he was hired by the Agency. In addition, the mortgage payments Complainant made were not incurred because of the Agency's actions but were day-to-day living expenses that he would have had regardless thereof. Complainant also sought an award of damages based on his inability to find a job following his termination. The Commission noted, however, that Complainant did not provide any evidence that his reputation was damaged or that the Agency's discriminatory actions were the cause of his inability to find a job. The Agency did not malign or defame Complainant in any way that would have allowed the Commission to presume that his reputation had been damaged. With regard to his claim for damages for depression, the Commission concluded that an award of $18,000 was appropriate. Complainant claimed that he suffered depression as a result of his termination but did not submit any evidence from a medical professional indicating the severity or duration thereof. Complainant also did not provide any testimony from friends or family members concerning the manifestations of depression he may have exhibited. There was evidence that Complainant received prescriptions for anti-depression medication for brief periods several years after his termination. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120120185 (March 14, 2013), request for reconsideration denied, EEOC Request No. 0520130382 (September 18, 2013).

$15,000 Awarded for Sexual Harassment. In a prior decision, the Commission found that Complainant's Supervisor subjected her to sexual harassment, and ordered the Agency to investigate Complainant's claim for compensatory damages. The Agency issued a decision awarding Complainant $5,000. On appeal, the Commission found that the record supported an increase in the award of damages for emotional distress to $15,000. Complainant stated that the harassment caused her significant stress and affected her health, requiring her to take extended sick leave for approximately eight weeks that included hospitalization. Complainant noted that she continued to have some interaction with the Supervisor as part of her work duties. She experienced difficulty sleeping, loss of appetite, and headaches and felt depressed for a period of about 14 months. She sought psychological counseling and provided notes from the Counselor to support her claim. Complainant also provided an affidavit from a friend who averred that there was a "stark change" in Complainant after the harassment, and that Complainant frequently sounded depressed and would "stay in bed all day." The Commission stated that the evidence presented showed that Complainant suffered from depression and stress for a period exceeding one year, and, therefore, it was reasonable to accept Complainant's testimony of emotional distress to support a higher award of damages. The Commission affirmed the Agency's finding that Complainant was not entitled to pecuniary damages, stating that Complainant did not provide any details or evidence to substantiate her claim. Complainant v. U.S. Postal Serv., EEOC Appeal Nos. 0120130923 & 0120130935 (May 15, 2013).

$15,000 Awarded for Retaliation. In a prior decision, the Commission found that the Agency retaliated against Complainant when it reassigned her from her Manager position and stripped her of her managerial duties. The Agency conducted a supplemental investigation and awarded Complainant $7,500 in non-pecuniary compensatory damages. On appeal, the Commission found that the award was inadequate, and raised the award to $15,000. The Commission agreed with the Agency that Complainant was not entitled to damages for events that occurred prior to the retaliatory reassignment. Complainant stated, however, that she was embarrassed and humiliated when she lost her office, her keys were taken away in front of her peers, her managerial computer access and Agency cell phone were removed, and management told her former staff not to talk to her, all events the Commission found to be inextricably intertwined with the retaliatory reassignment. Further, Complainant stated that she "shut down" and withdrew from other people. Complainant did not describe having physical symptoms of stress, but her daughter stated that Complainant had chest pain, indigestion, headaches, anxiety, and a loss of energy. Complainant acknowledged that some of her distress resulted from the strain and intense workload following her return to her manager position, a matter for which there had not been a finding of discrimination. The Commission concluded that an award of $15,000 was consistent with the amount awarded in similar cases. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120113519 (March 11, 2013).

$15,000 Awarded for Denial of Accommodation and Harassment. In a prior decision, the Commission found that the Agency discriminated against Complainant when it denied him reasonable accommodation and subjected him to harassment, and that the conduct was so severe that Complainant reasonably felt compelled to retire. Following a supplemental investigation, the Agency awarded Complainant $15,000 in non-pecuniary compensatory damages. On appeal, the Commission affirmed the Agency's award. Complainant asserted that he experienced anxiety, loss of sleep, and was diagnosed with clinical depression. Nevertheless, Complainant stated that he only saw his counselor once after his retirement and did not see the counselor at all during the following year. Further, Complainant identified additional causes of the harm, specifically additional alleged acts of discrimination, which were not part of the underlying complaint. The Commission found that the award of $15,000 was sufficient to remedy the harm the Agency's actions caused Complainant. The Commission also affirmed the Agency's award of $140 in pecuniary damages. Complainant v. Dep't of Transp., EEOC Appeal No. 0120113419 (November 21, 2012).

$10,000 Awarded for Pay Discrimination. In a previous decision, the Commission found that the Agency violated the Equal Pay Act and ordered it to investigate Complainant's claim for damages. The Agency subsequently awarded Complainant a total of $1,500. On appeal, the Commission found that the award was insufficient. The Commission noted that Complainant is only entitled to compensatory damages arising from the unequal pay. Thus, Complainant was not entitled to damages related to his disability retirement, because there had not been a finding of constructive discharge and Complainant failed to show that he retired because of unequal pay. Further, Complainant did not show that he incurred medical expenses due to the unequal pay. The Commission concluded that Complainant was entitled to an award of non-pecuniary damages in the amount of $10,000. Complainant had been previously diagnosed with anxiety, major depression, and various other conditions. Complainant stated that the harassment he experienced at work exacerbated virtually all of his symptoms. Complainant also mentioned that he did not receive equal pay which lowered his self esteem and made him feel embarrassed. Complainant received unequal pay for over three years. The Commission noted that while this was not the primary reason for the exacerbation of his pre-existing anxiety, depression, Post Traumatic Stress Disorder, and perception of physical pain, it did contribute to those conditions. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113591 (September 12, 2013).

$10,000 Awarded for Sex Discrimination. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex when it issued her a notice of removal which was later reduced to a suspension and then a letter of warning. The Agency ultimately adopted the AJ's finding that Complainant was discriminated against and fully implemented the AJ's Order for relief. Complainant filed an appeal which, among other things, challenged the award of non-pecuniary compensatory damages. Complainant's treating psychologist stated that the termination caused Complainant considerable anger and depression which caused her to mistrust her work environment. In addition, Complainant stated that she experienced other negative side effects from the termination, such as embarrassment, sleeplessness, weight gain, depression, and feelings of helplessness. The Commission concluded that the AJ's award was consistent with awards in cases where complainants have suffered emotional harm similar in severity and duration as Complainant. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121071 (July 17, 2013).

$10,000 Awarded for Denial of Reasonable Accommodation. In a previous decision, the Commission affirmed the Agency's final decision finding that Complainant was denied reasonable accommodation when he was not allowed to telework. Complainant was given the opportunity to provide information in support of his claim for damages, and sought pecuniary damages for medical expenses, as well as non-pecuniary damages. Complainant noted that he would supply documentation regarding the expenses. The Agency issued a final decision on the issue of damages, stating that Complainant did not submit any documentation regarding medical expenses, and that some of the claimed expenses were incurred prior to the request for accommodation. The Agency further stated that it made a good faith effort to engage in the interactive process, and, therefore, Complainant was not entitled to an award of compensatory damages.

On appeal, the Commission initially noted that Complainant informed the Agency of his attempts to obtain documentation regarding his medical expenses, and the Agency should have extended the investigation to allow Complainant time to obtain this information. Nevertheless, the Commission denied Complainant's claim for pecuniary damages, stating that Complainant failed to present sufficient evidence to show that the claimed expenses were proximately caused by the Agency's failure to accommodate his request for telework. With regard to the claim for non-pecuniary damages, the Commission found that the Agency did not engage in a good faith effort to accommodate Complainant and, instead, issued an outright rejection of his request to telework. Complainant's alleged inappropriate conduct on one occasion during the interactive process did not render the Agency's actions to be in good faith, as the discriminatory denial of accommodation occurred prior to Complainant's misconduct and Complainant submitted a second request for accommodation which was also rejected in its entirety. The Commission noted that Complainant did not provide medical documentation to support his claim for damages, but did provide his own statement and a statement from his wife showing that he experienced stress, humiliation, loss of enjoyment of life, sleeplessness, and loss of self esteem, and feared losing his job. Further, the denial of accommodation aggravated his epilepsy. Thus, the Commission concluded that Complainant was entitled to an award of $10,000 in non-pecuniary damages. Complainant v. Nat'l Aeronautics & Space Admin., EEOC Appeal No. 0120113282 (March 26, 2013).

$5,000 Awarded for Retaliation. In a prior decision, the Commission found that the Agency retaliated against Complainant when it issued him a "successful" performance rating. The Agency was ordered, among other things, to investigate Complainant's claim for damages. The Agency notified Complainant of his right to submit objective evidence to support his request for damages, and ultimately issued a decision awarding Complainant only $2,500 for the cash award he would have received absent the discrimination. On appeal, the Commission noted that Complainant described the emotional stress he experienced as a result of the reprisal. Complainant stated that the stress and anxiety aggravated his hypertension, affected his sleep, caused headaches, impacted his relationships with co-workers, friends and family, and compromised his professional growth. Nevertheless, the Commission found that Complainant presented few details to support his assertions. Thus, the Commission could not conclude that the harm Complainant suffered was severe or lasted very long. The Commission found that, based on the emotional harm described by Complainant, he was entitled to an award of $5,000 in non-pecuniary damages. The Commission noted that the award of damages was to be made in addition to the cash award which was equitable relief. Complainant v. Dep't of Educ., EEOC Appeal No. 0120103308 (January 4, 2013), request for reconsideration denied, EEOC Request No. 0520130245 (October 25, 2013).

$2,500 Awarded for Improper Disclosure of Medical Records. In a prior decision, the Commission found that the Agency violated the Rehabilitation Act when it improperly transmitted Complainant's confidential medical information, and ordered the Agency to complete a supplemental investigation to determine Complainant's entitlement to compensatory damages. At the conclusion of the investigation, the Agency found that Complainant failed to establish an entitlement to pecuniary damages. The Agency also noted that Complainant failed to submit testimony and medical documentation to support his claim for non-pecuniary damages. On Appeal, the Commission found that the Agency properly assessed the Complainant's pecuniary damages because Complainant did not present any evidence concerning an entitlement to pecuniary compensatory damages. The Commission stated, however, that the Agency's finding regarding non-pecuniary damages was improper. By testifying that he suffered emotional distress, Complainant sustained his burden to present evidence of an entitlement to non-pecuniary damages. Therefore, the Commission found that Complainant was entitled to $2,500 in non-pecuniary compensatory damages. The Commission noted that the award was consistent with amounts awarded for similar impermissible disclosures. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121982 (April 19, 2013).

$2,500 Awarded for Disability Discrimination. An AJ found that the Agency violated the Rehabilitation Act when a Supervisor informed Complainant's co-workers about her medical condition, and the Agency delayed in providing Complainant with reasonable accommodation. The AJ awarded Complainant $2,500 in compensatory damages. The Commission affirmed the award on appeal. While Complainant claimed that she had been denied accommodation since 1999, the AJ's finding of discrimination was limited to a six month period. Complainant did not challenge the limitation of the claim before the AJ or with the Agency when her complaint was initially accepted. Further, Complainant did not provide any additional evidence to support her claim for damages during that timeframe. Complainant stated that she was "devastated and hurt" by the events alleged in her complaint and had neck and back problems, but she did not provide any evidence to establish what portion of her distress was caused by the two events for which the AJ found discrimination. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123565 (February 28, 2013).

$2,000 Awarded for Violation of the Rehabilitation Act. In a prior decision, the Commission found that the Agency committed a per se violation of the Rehabilitation Act when Complainant's Supervisor took her personnel file containing confidential medical information to his house and left the file there unsecured for five years. The Agency conducted a supplemental investigation with regard to Complainant's claim for damages, and awarded her $500. On appeal, the Commission increased the award to $2,000. Complainant stated that the event aggravated her anxiety disorder, and Complainant sought treatment from a Counselor. By demonstrating a need for counseling soon after discovering that her confidential medical information was left unsecured, Complainant demonstrated tangible harm. Further, Complainant engaged in counseling for several months. Thus, the Agency's award of $500 was insufficient to remunerate Complainant for the harm she suffered. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131060 (June 5, 2013).

$1,500 Awarded for Retaliation. The Agency found that Complainant was retaliated against when she was accused of being absent without leave and forced to submit a leave without pay slip. The Agency awarded Complainant $250 in compensatory damages. On appeal, the Commission modified the award. Complainant characterized her request as "compensatory/punitive" damages, and the Commission noted that punitive damages are not available to federal employees. Complainant did state that she was embarrassed and humiliated in front of her co-workers and the discriminatory action damaged her reputation. In addition, she was not able to sleep well, her weight fluctuated, and she experienced stress. Complainant did not present any medical evidence to support her claim, but the record contained a statement from a co-worker supporting Complainant's assertions. The Commission concluded that Complainant should be awarded $1,500 in non-pecuniary damages. Complainant v. Dep't of Agric., EEOC Appeal No. 0120113303 (August 30, 2013).

$500 Awarded for Retaliation. An Administrative Judge (AJ) found that Complainant's Supervisor's comments constituted per se retaliation where, after Complainant reported finding a pornographic magazine, the Supervisor told Complainant she needed to watch when and where she said things. As relief, the AJ, among other things, awarded Complainant $500 in non-pecuniary compensatory damages. On appeal, the Commission found that the award of damages was proper. Complainant stated that she experienced stress, migraine headaches, hair loss, insomnia, and an extreme paranoia of her workplace. The Commission found that, considering the evidence submitted, the award of $500 was consistent with awards in similar cases and met the goals of not being motivated by passion or prejudice and not being "monstrously excessive." Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122266 (October 18, 2012).

Dismissals

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

Agency Improperly Dismissed Amendment to Complaint. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it did not select him for a position. During the processing of the complaint, Complainant filed amendments stating that his representative, who was also an employee of the Agency, was denied official time on two occasions. The Agency dismissed the amendments, stating that the matters were untimely raised, and did not state a claim. On appeal, the Commission found that the Agency's dismissal was improper. The Commission noted that if a Complainant is an employee of an Agency and designates another Agency employee as his representative, the representative shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and respond to requests for information. The Commission has consistently held that claims regarding the issue of denial of official time are properly raised by the Complainant and not the representative. Further, since the alleged events concerned a pending complaint, the Agency should not have treated them as a new and separate complaint. Since the underlying complaint was pending an administrative hearing, the Agency was ordered to forward the amendments to the AJ. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120131794 (August 13, 2013).

Dismissal of Complaint Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to harassment. Complainant cited 19 incidents, including being taunted by his Supervisor and co-workers, closely watched, accused of sleeping on the job, not permitted to telework, threatened with termination, and denied sick leave for medical appointments. The Agency dismissed the complaint for untimely EEO contact. On appeal, the Commission found that the dismissal was improper. The Commission noted that Complainant raised a viable claim of discriminatory hostile work environment, supported by numerous incidents several of which occurred within 45 days of his initial counselor contact. Further, the harassment was ongoing and continued even after Complainant initiated his complaint. While the Agency asserted that it denied Complainant leave based on the Manager's interpretation of the rules, and rescinded Complainant's telework agreement for business reasons, the Agency's articulated reasons for the actions were irrelevant to the procedural issue of whether Complainant stated a justiciable claim. The Commission stated that a fair reading of the complaint indicated that all of the incidents cited by Complainant were part of the same alleged pattern of disparate treatment and harassment based on race. Taken together, the incidents also supported Complainant's hostile environment claim and raised an inference of retaliation. Thus, the Commission remanded the complaint for processing. Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120130495 (May 2, 2013); see also, Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120120889 (May 8, 2013) (the Agency improperly dismissed claims by looking at them in a piece meal fashion when the record showed that Complainant alleged a single claim of hostile work environment harassment. The most recent event occurred well within 45 days of Complainant's contact with the EEO Counselor and, as such, the claim of harassment was timely. In addition, Complainant's assertions that management verbally counseled her in front of co-workers, treated her differently regarding leave requests, provided her with less time to complete her collateral duties, and communicated differently with her were sufficient to state a claim of hostile work environment).

Dismissal of Complaint as Moot Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him because of his disability and prior EEO activity when it issued him a letter of removal two weeks after his disability retirement began. The Agency dismissed the complaint as moot and for failure to state a claim, reasoning that since Complainant's retirement predated his removal he was not harmed by that action. On appeal, the Commission concluded that the Agency dismissed the claim in error. Complainant alleged that Agency management continued to pursue the removal action in retaliation for his prior EEO complaints, and the Commission stated that a removal action was of the type of adverse action that stated a viable retaliation claim. The Commission also reasoned that the Complainant's allegation was not made moot by his retirement because the effects of Complainant's removal did not permanently eliminate the consequence of the discrimination charged. Since the removal remained part of Complainant's employment history, and the removal was neither removed nor expunged from Complainant's record after retirement, the cumulative effect of the removal could adversely affect Complainant should he end his disability retirement and re-enter the workforce. Therefore, the Commission determined that Complainant's claim was not moot, and remanded the case for further processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130441 (April 9, 2013).

Dismissal for Filing Grievance Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it terminated her during her probationary period. The Agency dismissed the matter on the grounds that Complainant filed a grievance on her termination under the applicable collective bargaining agreement. On appeal, the Commission found that the dismissal was improper. The relevant portions of the agreement made it clear that probationary employees could not file a grievance on a removal. Complainant was in a probationary status at the time of her removal, and, as such, did not make a valid election of the grievance process. Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120123304 (January 4, 2013).

Dismissal for Filing a Grievance Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his age when it assigned him to perform certain duties. The Agency dismissed the complaint, stating that the matter was raised in a grievance. On appeal, the Commission noted that it appeared the union filed a grievance regarding the reassignment of duties. There was no indication, however, that Complainant filed a grievance on that matter, or that Complainant was involved with the grievance filed by the union. Thus, the Commission concluded that Complainant did not file a grievance concerning the assignment of duties, and the Agency's dismissal was improper. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122525 (October 15, 2012).

Dismissal of Complaint for Raising a Matter Not Brought to Attention of Counselor Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it forced her to attend a specific course on four occasions, she received e-mails from an unknown source on her Agency computer, and other employees continuously followed her to the restroom and lunchroom, and said unpleasant things to her. The Agency dismissed the complaint on the grounds that Complainant raised a matter that was not brought to the attention of the EEO Counselor. The Agency stated that the Counselor attempted to contact Complainant regarding her issues but did not receive a response. On appeal, the Commission found that there was documentation in the record which included the information as to the issues encompassed in the complaint. The EEO Counselor noted that Complainant claimed she was subjected to non-sexual harassment and a hostile work environment, and a memorandum indicated that Complainant's Supervisor was informed that Complainant believed employees were watching her and following her to the restroom. Complainant also claimed discrimination as to the assignment of duties. The Commission stated that Complainant referenced instances of harassment in her formal complaint, and those matters were closely related to the issues she raised with the EEO Counselor. The Commission found it reasonable to infer that the claim concerning assignments pertained to the requirement to attend a particular course. While the Commission did not condone Complainant's lack of responsiveness to the Counselor's initial inquiries, Complainant did contact the Counselor two months thereafter, and the Commission found sufficient information in the record to preclude dismissal on the grounds that these issues were not brought to the attention of the EEO Counselor. Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120113233 (December 19, 2012).

Dismissal for Failure to Cooperate Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated and retaliated against him when, among other things, it denied him reasonable accommodation and threatened him with removal from his bid assignment and separation. The Agency dismissed the complaint for failure to cooperate, stating that Complainant failed to return his affidavit to the Investigator. On appeal, the Commission found no persuasive evidence that Complainant engaged in delay or contumacious conduct in regard to the processing of his complaint. Further, Complainant provided extensive information to the EEO Counselor about his allegations, including information about the alleged discriminatory actions, the names of the alleged discriminatory officials and the corrective action sought. Thus, the Commission concluded that the Agency should have completed its investigation of the complaint rather than dismissing it for failure to cooperate. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121903 (October 11, 2012), request for reconsideration denied, EEOC Request No. 0520130126 (May 9, 2013).

Dismissal for Alleging Preliminary Step to an Employment Action Improper. Complainant applied for a position with the Agency, and filed a formal EEO complaint when he was not selected. The Agency dismissed the complaint on the grounds that Complainant alleged a preliminary step to taking an employment action. Specifically, the Agency stated that Complainant had not received official notification regarding his nonselection. On appeal, the Commission disagreed with the Agency's assertion. The record indicated that Complainant received an e-mail stating that "based on the results of [Complainant's] background investigation (which may have included a polygraph examination)…[he was] found unsuitable for employment." Thus, the Commission found that the record was clear that Complainant had been found unsuitable for employment in the position. Despite the fact that Complainant was advised he would receive a letter rescinding the tentative job offer, there was no ambiguity in the Agency's language that would cause Complainant to believe the decision was not final or that he was still being considered for the position. Thus, the Commission found that the Agency's dismissal was improper. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120122210 (October 16, 2012).

Findings on the Merits and Related Decisions

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

Under the Rehabilitation Act

Denial of Reasonable Accommodation Found. In a previous decision, the Commission found that the Agency retaliated against Complainant when it removed her from her position. The Agency's discriminatory actions caused Complainant work-related stress, and she was diagnosed with major depression. As a result, she could only work in a collegial environment, and the Agency provided her with a limited duty assignment at another facility. Complainant worked in this modified assignment for nearly three years. She continued to receive treatment and take medication for her condition. The Agency ultimately required Complainant and other employees in rehabilitation or modified assignments to return to their original positions. Complainant submitted documentation from her psychiatrist stating that she experienced a relapse of her depression, anxiety and Post Traumatic Stress Disorder when she was returned to her position at the original facility. Complainant requested accommodation and her doctor stated that she could work in a different facility. The Agency denied Complainant's request for accommodation, finding that Complainant's medications mitigated the effects of her impairments to the extent that she was not substantially limited in a major life activity. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her when it removed her from her rehabilitation assignment. Following a hearing, an AJ found that the Agency failed to provide Complainant with reasonable accommodation.

On appeal, the Commission initially sanctioned the Agency for failing to provide the complete hearing transcript, and drew an adverse inference against the Agency with regard to the missing testimony. The Commission found that the testimony would have shown that Complainant's impairments substantially limited her in a major life activity such as caring for herself and interacting with others, and would support the AJ's finding that Complainant was an individual with a disability. Further, the Commission noted that the Agency did not dispute that Complainant could perform the essential functions of either her original or modified position, with a reasonable accommodation. The Commission found substantial evidence indicating that it was not possible to accommodate Complainant at her original facility, and stated that the Agency should have considered reassignment to a different facility as an accommodation. The Agency argued that it could not accommodate Complainant because of downsizing and budget issues. The Agency suggested, however, that there were other vacant funded positions available at the time which Complainant could have proactively bid on through the collective bargaining process. The Commission concluded that the Agency's mere assertion did not satisfy its burden of proving undue hardship. Thus, the Commission affirmed the AJ's finding of disability discrimination. The Agency was ordered, among other things, to place Complainant in a vacant funded position at a facility other than that where she originally worked, restore Complainant's sick and annual leave, and pay her $120,000 in proven compensatory damages plus proven attorney's fees. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720090050 (September 17, 2013).

Disability Discrimination Found with Regard to Nonselection. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability when it did not select him for a Program Assistant position. Complainant submitted a letter from the Arizona Rehabilitation Services Administration with his application indicating that he had a "medically documented disability." Complainant was not interviewed for the position based upon a score given to him by three panelists that rated each applicant. Following a hearing an AJ found discrimination based on Complainant's disability. On appeal, the Commission found that substantial evidence in the record supported the AJ's finding of discrimination. The Agency acknowledged, in its motion for a decision without a hearing that Complainant was disabled, and the record showed that Complainant was found to be at least minimally qualified for the position. Further, while one of the panel members (P3) stated that Complainant was not interviewed because he lacked accounts receivable experience, Complainant's resume showed that he had such experience and accounts receivable experience was not listed as one of the factors on which the panel evaluated the applications. The Commission also found that the AJ's determination that P3's testimony that she was not aware of Complainant's disability was not credible was reasonable given that Complainant's application contained documents referencing his disability. Thus, the record supported the AJ's finding that the Agency's reasons for not hiring Complainant were a pretext for disability discrimination. The Agency was ordered, among other things, to provide training for and consider taking disciplinary action against P3. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0720130005 (September 11, 2013).

Discriminatory Harassment and Denial of Reasonable Accommodation Found. Complainant filed an appeal from the Agency's final decision concerning his EEO complaint alleging employment discrimination in violation of the Rehabilitation Act. Complainant experienced progressive hearing loss at a young age and used a hearing amplifier to increase his ability to hear. Management approached Complainant and requested that he take off the hearing amplifier because the device emitted a whistling sound that annoyed his coworkers. Complainant was also subjected to name-calling. After taking off the amplifier, Complainant began "sweating, feeling nervous and sick to his stomach, and having headaches." Management rejected Complainant's suggestion of moving to a new work area to not bother his coworkers. The Agency concluded that Complainant failed to prove that it subjected him to disability discrimination as alleged and failed to create a discriminatory hostile work environment.

On appeal, the Commission reversed the Agency's decision and ordered the Agency to take remedial action, including disciplinary action and an investigation on the claim for compensatory damages. The Agency conceded that Complainant was an individual with a disability. The Commission concluded that Complainant met his burden on the issue of disability discrimination because the Agency failed to provide a reasonable accommodation and failed to justify the denial under an undue hardship rationale. The Commission rejected the Agency's argument that Complainant's request to use the amplifying device at work was not an accommodation request, stating that Complainant was entitled to hear the sounds around him at work, participate in conversations, and hear the instructions of supervisors. While management never affirmatively ordered Complainant to stop wearing the hearing device, it was an issue of constant conflict between Complainant and management for over a one year period. The Commission stated that there was no credible evidence that the feedback from the device was causing more than a minor annoyance to some of Complainant's coworkers, and these concerns might have abated had the Agency been willing to consider Complainant's request to move his work area or discuss other possible options. Furthermore, the Commission found that Complainant was subjected to unwelcome conduct because of his disability. Complainant demonstrated that he was harassed on a daily basis by his coworkers and management with regard to the hearing amplifier. This occurred for more than two years. He notified management of the harassment and the Agency failed to exercise reasonable care to promptly correct any harassing behavior. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131553 (August 19, 2013).

Denial of Reasonable Accommodation Found. Complainant, who is hearing impaired, required an interpreter. On October 19, 2010, Complainant learned that all Tour 1 employees had been instructed to report to the Combined Federal Campaign (CFC) Kickoff Meeting. Both Complainant's supervisor and manager informed Complainant that he was not required to attend the meeting because there would not be an interpreter present. However, the announcement did not indicate that the meeting was voluntary. The Agency and the union had previously entered into a memorandum of understanding (MOU) addressing management's responsibilities to reasonably accommodate its hearing impaired employees. The MOU stated that management would provide accommodation for hearing impaired employees in such work-related situations as investigatory interviews, job performance discussions, training, and CFC Kickoff Meetings. Complainant stated that he always participated in the CFC Kickoff Meetings, but he was unable to hear or participate during the one at issue. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of disability when it did not provide an interpreter during the meeting. The Agency issued a final decision finding no discrimination.

On appeal, the Commission found that Complainant was discriminated against as alleged. The Commission stated that the Agency should have considered not only whether the CFC Kickoff Meeting involved an essential function of Complainant's position, but also whether providing an interpreter for the Meeting would have allowed Complainant to enjoy equal benefits and privileges of employment. The Commission found that, in this case, full participation during the CFC Kickoff Meeting is one of the benefits of employment for which a reasonable accommodation should have been provided. The Commission noted that the Agency and the union specifically included CFC Kickoff Meetings in its MOU. The Commission further stated that arranging for the speaker to return when an interpreter was available, as suggested by the supervisor, would not have been an effective accommodation because Complainant could not have actively participated in the meeting with his coworkers. In this situation, the Agency failed to show that providing an interpreter would have been unduly costly or disruptive, or would fundamentally alter the nature of the Agency's operation. The Agency was ordered, among other things, to provide Complainant with an interpreter for all future CFC Kickoff Meetings, and conduct a supplemental investigation with regard to damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120113618 (August 15, 2013).

Disability Discrimination Found. Complainant previously worked for the Agency as a Customer Services Supervisor, but became incapacitated due to a workplace incident and was unable to perform in his position for nearly four years. Complainant provided the Agency with documentation that he could return to work with certain medical restrictions, but the Agency placed him on enforced leave. Complainant appealed the matter to the MSPB. While the appeal was pending, Complainant applied for a Labor Relations Specialist position and was interviewed for the position. Complainant, however, was not selected, and filed a formal EEO complaint alleging disability discrimination and reprisal. Following a hearing in the matter, the AJ found that the Agency engaged in a per se violation of the Rehabilitation Act when it questioned Complainant regarding his restrictions and instructed him to provide clarifying documentation prior to extending him an offer of employment. The AJ concluded, however, that the impermissible inquiry did not taint the selection process and was not a determinative cause of Complainant's non-selection.

On appeal, the Commission disagreed with the AJ's finding. According to the record, the Selecting Official ultimately considered Complainant and the Selectee for the position. She contacted Complainant to clarify his medical restrictions and asked Complainant to send her medical documentation. The record showed that, during this conversation, the Selecting Official developed concerns regarding Complainant's integrity and credibility, and no longer considered Complainant a viable candidate after the conversation. The Commission found substantial evidence in the record to reflect that the crux of Complainant's non-selection was based on the Selecting Official's impermissible disability-related inquiry. The Commission stated that, even if the Selecting Official believed Complainant's responses regarding his medical restrictions to be less than truthful, she should not have used this perception to eliminate Complainant from further consideration, because such a perception stemmed from the impermissible medical inquiry. Thus, the Commission concluded that the Agency discriminated against Complainant when it did not select him for the position in question. The Agency was ordered, among other things, to offer Complainant the position or a substantially equivalent position with appropriate back pay and benefits, pay Complainant proven attorney's fees and costs, and investigate his claim for damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120120923 (May 3, 2013).

Denial of Reasonable Accommodation Found. Complainant, a Legal Assistant, was diagnosed with Multiple Sclerosis (MS), which severely limited her ability to walk and lift. Complainant filed an EEO complaint alleging, among other things, that the Agency subjected her to disability discrimination when it failed to provide a reasonable accommodation of her duties within her medical restrictions. Following an investigation, the Agency issued a final decision finding no discrimination. According to the record, Complainant's doctor informed the Agency and Complainant's Supervisor (S1), on several occasions, that Complainant needed permanent work restrictions, including a workload reduction and a handicapped parking space. In addition, the doctor indicated that Complainant could not lift more than 20 pounds. When Complainant asked to be excused from her mail-processing duties due to her lifting restrictions, S1 instructed her to request the assistance of other employees if she needed help lifting heavy boxes. Complainant informed S1 there were times when no one was available to assist her, but S1 advised Complainant that failure to complete her mail duties could result in disciplinary action. The Agency provided Complainant with a key card to access a temporary handicapped parking space. Nevertheless, management constantly asked Complainant to return the key card, and informed her that failure to return the card could also result in disciplinary action.

On appeal, the Commission initially noted that the Agency conceded Complainant was a qualified individual with a disability. The Commission concluded that the Agency failed to provide Complainant with an effective accommodation. The Commission found that providing a temporary handicapped parking space, which the Agency continuously threatened to take away, despite having Complainant's medical documentation and the EEO Manager's request for a permanent spot, was not an effective accommodation for a permanent condition. Further, the Commission noted that, given the Agency's resources, any claim that providing Complainant a permanent handicapped parking space would result in an undue hardship would be without merit. The Commission also found that S1's instruction to Complainant to find employees to help her lift heavy boxes did not constitute an effective accommodation. The record showed that there were times when no one was available to assist Complainant, and she continued to lift heavy boxes without assistance. Accordingly, the Commission held that the Agency engaged in discrimination based on disability when it failed to accommodate Complainant by providing her with a permanent handicapped parking space and work within her medical restrictions. The Commission found the Agency liable for compensatory damages for not acting in good faith when it continuously threatened to take away the temporary parking space and needlessly asked Complainant to provide medical documentation, which Complainant had already submitted. The Agency was ordered, among other things, to provide Complainant with a reasonable accommodation in the form of a permanent handicapped parking space, provide Complainant with job duties that were within her lifting restrictions, and conduct an investigation on the claim for compensatory damages. Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120110751 (April 19, 2013).

Denial of Reasonable Accommodation Found. Complainant, the Chief of Health Information Management Service, filed a formal EEO complaint alleging among other things that Agency discriminated against her on the basis of disability when it denied her request to telework and her formal request for reasonable accommodation. Complainant's requests for reasonable accommodation were made after her physician recommended hip replacement surgery which addressed her preexisting condition and its degenerative effect on her gait. After the surgery Complainant was unable to return to work due to complications. At the recommendation of, and with assistance from her Supervisor (S1), Complainant submitted a written telework request which would have allowed her to work remotely during recuperation. While S1 approved her request, Complainant's second-line Supervisor (S2) denied her request because of the nature of Complainant's position. Consequently, Complainant, through counsel, submitted her formal reasonable accommodation request to telework. This request was evaluated by the Agency's Reasonable Accommodation Committee (RAC) which, dissuaded by S2, denied Complainant's request. Following an investigation, the Agency issued a final decision finding no discrimination.

On appeal, the Commission initially noted that the Agency conceded that Complainant was an individual with a disability. The Commission rejected the Agency's assertion that Complainant was not a qualified individual with a disability, noting that an Agency's decision regarding a request for accommodation should not exclusively rely on whether an employee's essential job duties entail coordination and contact with other employees. Instead, since existing Commission guidance states that an employer may modify workplace policy when needed to accommodate limitations related to an employee's disability, the Commission reasoned that circumstances might allow an abbreviated telework schedule as an appropriate reasonable accommodation. Therefore, the Commission found that the Agency's automatic rejection of Complainant's request for reasonable accommodation based on the Agency's policy which prohibited telework by Chiefs, disabled and non-disabled alike, violated the Rehabilitation Act. The Commission also concluded that the Agency did not prove it would have experienced undue hardship if it granted Complainant's reasonable accommodation request. The Agency was ordered, among other things, to engage in the interactive process with Complainant to determine what accommodations may be necessary for her to perform the essential functions of her position, and investigate Complainant's claim for damages. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120111937 (April 17, 2013).

Disability Discrimination Found. Complainant experienced a brain injury that impaired his ability to process more than one thing at a time, resulted in below average free recall of new information, and caused poor verbal fluency on the most challenging tasks. Complainant applied for the position of Contact Representative and met the minimum qualifications for the position. The next step in the hiring process involved an interview and telephone assessment in which the interviewer role-played as a customer and the applicant's ability to problem solve was evaluated. Complainant requested that he be given the interview questions in writing as a reasonable accommodation, which was denied by the Agency as an unfair advantage. Complainant was instead given a fact sheet to refer to and was permitted to take notes during the interview. Complainant's performance during the interview was deemed "not acceptable" and he was not offered a position.

Complainant filed a formal EEO complaint alleging discrimination based on his disability when the Agency denied his request for written interview questions. Complainant requested a hearing before an AJ, who found that Complainant was a qualified individual with a disability who could perform the essential functions of the job. Further, the AJ found that once put on notice of the need for an accommodation, the Agency should have accommodated Complainant so that the assessment would accurately reflect his abilities. The AJ found that the Agency only evaluated whether Complainant was capable of doing the job without an accommodation, and there was ample evidence in the record to support Complainant's position that he could have passed the interview successfully with the accommodation he requested. On appeal, the Commission found that the Agency discriminated against Complainant on the basis of his disability because it utilized a test which unlawfully screened out a disabled individual, and failed to modify the test so that it could assess Complainant's ability to absorb and process information, which were the essential functions of the job. Further, the Commission found that the Agency failed to prove that the use of its assessment, without an accommodation, was job related and consistent with business necessity or that Complainant's requested accommodation would be an undue hardship on the Agency. The Commission further noted that there was substantial evidence to support the AJ's finding that using voice-to-text computer software was a plausible method of accommodating Complainant by allowing him to perform the essential functions of the job, particularly since the Agency admitted to using the technology in the past. The Commission ordered the Agency to redo Complainant's entire assessment while providing written and verbal questions, to engage in an interactive process to clarify and identify what Complainant needed as an accommodation, and to offer Complainant the position with back pay if he passed the assessment. Additionally, the Commission ordered that the Agency pay Complainant $5,000 compensatory damages plus attorney's fees and costs, even if Complainant is not able to pass the assessment. The Commission noted that the voice-to-text technology could be used when providing the written version of the questions.

The Commission denied the Agency's request for reconsideration. The Commission rejected the Agency's arguments that the ability to immediately process information was an essential function of the job and that providing Complainant with the written questions through the voice-to-text technology was an undue burden because it was incompatible with its current digital telephone system. The Commission stated that while the Agency was correct that receiving, processing and disseminating information in a prompt manner were essential functions of the position, those essential functions could be performed by providing employees with questions through both written and oral means. Further, the Commission noted that utilization of voice-to-text was only one option the Agency could use to accommodate Complainant. The Commission found that the Agency failed to provide persuasive evidence to support assertions that the technology could not be configured with the telephone system, and there was no evidence to support a finding that providing written questions would have been unduly costly, would significantly disrupt the operations of the agency, or would have fundamentally altered the nature of the Agency's operation. The Commission also noted that the Agency failed to argue that the telephone system was incompatible on appeal, and refused to consider new evidence as a basis to reverse the previous decision. The Commission rejected Complainant's request that the Agency be ordered to place him in the position, and declined to speculate about how Complainant would have performed if he had been provided with a reasonable accommodation. The Commission stated that his performance must be assessed with a reasonable accommodation. Thus the Commission ordered the Agency to implement the previous decision by providing Complainant with a new assessment in which he is given a reasonable accommodation, and to offer Complainant the position with back pay if he passes the assessment. Complainant v. Soc. Sec. Admin., EEOC Request No. 0520110682 (April 12, 2013).

Disability Discrimination Found. Complainant, a Transportation Assistant, applied for the position of Motor Vehicle Operator, and the Agency considered his application under the Disabled Veteran Appointing Authority. Complainant was offered the position, but the Agency subsequently rescinded the offer because Complainant did not successfully complete a medical examination. The physician (Dr. T) who conducted the examination based solely on Complainant's medical records determined that Complainant was not medically qualified for the position because he did not "possess emotional and mental stability." The Office of Personnel Management (OPM) ultimately sustained the Agency's decision to "pass over" Complainant for the position. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it withdrew the job offer, and the Agency issued a final decision finding no discrimination.

On appeal, the Commission initially noted that the Agency conceded, in its final decision, that Complainant had a record of or was regarded as having a mental or physical impairment that substantially limited his major life activities. The Agency attempted to argue that Complainant was not qualified because he did not pass the medical examination. The Commission found, however, that Complainant was a qualified individual with a disability since he was otherwise qualified for the position and hired conditionally pending his completion of the medical examination. The Commission noted that the Agency admitted that it denied Complainant employment because of his perceived inability to safely perform the functions of the position, which the Commission found was essentially asserting that Complainant posed a direct threat to himself or others. According to the record, Dr. T stated that she did not clear Complainant because she had previously examined Complainant and he expressed that he had difficulty being in crowds of people, had verbal aggression toward his wife and kids, and had been physically aggressive and abusive to animals. At that time, Dr. T restricted Complainant from working with live ammunition, and she noted that Complainant made a threatening comment to her. Later it was confirmed that Complainant had been diagnosed with PTSD.

The Commission found that while the Agency had a legitimate concern regarding complainant's ability to safely perform the duties of the position, it did not meet its burden under the direct threat standard as required by the Rehabilitation Act. There was nothing in the record indicating that the Agency evaluated the duration of any risk in hiring Complainant, the nature and severity of any potential harm or risk, the likelihood that potential harm would occur, or the imminence of any potential harm. Rather, the record simply contained Dr. T's statement that Complainant was aggressive and threatened her. Dr. T added, as a requirement of the position, that the incumbent "possess emotional [and] mental stability," and concluded that Complainant was not medically cleared due to his PTSD diagnosis. The Commission found it troubling that the Agency's doctor believed a diagnosis of PTSD excluded all individuals from sensitive jobs without a further individualized assessment, and stated that such a bright line rule, without evidence to support it, demonstrated that Dr. T was motivated by stereotypes of individuals with PTSD. The Commission also stated that the Agency failed to sufficiently show that Complainant could not perform the work in a safe manner, or that he posted a direct threat to himself or others. Therefore, the Commission found that the Agency violated the Rehabilitation Act when it withdrew the job offer. The Agency was ordered, among other things, to retroactively offer Complainant a Motor Vehicle Operator position, with appropriate back pay and benefits, and investigate his claim for damages. Complainant v. Dep't of Def., EEOC Appeal No. 0120091162 (March 15, 2013).

Denial of Reasonable Accommodation Found. Complainant worked as a Parcel Post Distribution Machine Operator. According to the record, she reported to work on October 26, 2011, to find that the restrooms could not be used due to a lack of running water at the facility. Complainant requested administrative leave, noting that she had a medical condition. Complainant stated that she has a chronic kidney condition. Complainant approached a Supervisor (S1) and explained that she needed to leave the facility. S1 believed that Complainant was looking for an excuse to leave work and refused to sign her request for administrative leave. A second Supervisor (S2) advised Complainant that she could use the restroom at a gas station one mile away or a store three miles away. Complainant was unable to work on October 27 because there was no portable restroom and no running water in the building, and submitted another request for administrative leave. She also submitted a Report of Hazard, stating that the lack of running water was a hazard due to her medical condition. Management indicated that a portable restroom would be put in place with water bottles and hand sanitizer. The Agency denied Complainant's requests for administrative leave on October 26, 27 and 28, and charged her with AWOL. Complainant subsequently filed a formal EEO complaint alleging that the Agency's actions were based on her disability and prior EEO activity, and the Agency issued a final decision finding no discrimination.

On appeal, the Commission noted that the Agency acknowledged that Complainant established that she was a qualified individual with a disability. Further, the Commission found that Complainant made the Agency aware that she required the use of a restroom due to her medical condition. Complainant indicated, on the request forms, that she was requesting administrative leave because of a medical condition. In addition, the Report of Hazard clearly stated that Complainant was unable to use the restroom due to a lack of running water and that this constituted a hazardous condition due to her medical condition. Complainant also stated that she made it known to management that she had a medical condition which had been documented in the past. The Commission found that Complainant's request for administrative leave constituted a request for reasonable accommodation, and, due to the Agency's failure to recognize it as such, management officials did not engage in the interactive process.

The Commission noted that the Agency's failure to engage in the interactive process does not, by itself, require a finding that Complainant was denied reasonable accommodation. In this case, however, the Commission concluded that the Agency's failure to engage in the interactive process resulted Complainant not receiving reasonable accommodation. Specifically, the Commission rejected the Agency's assertion that allowing Complainant to travel to another location to use the restroom was an effective accommodation. Complainant noted that she may not have been able to wait to leave the facility and travel to a location one to three miles away. In addition, while the Agency asserted that there was a portable restroom available on the dates Complainant requested administrative leave, Complainant stated that there was no portable restroom available on October 26 or 27. The Agency did not specify when the portable restroom was delivered or if Complainant was informed when it was installed. Therefore, Complainant showed that she should have been provided with administrative leave on the three dates in question. The Agency failed to argue or present any evidence that providing Complainant with administrative leave would have constituted an undue hardship, and, as such, the Commission found that the Agency violated the Rehabilitation Act. The Agency was ordered, among other things, to change Complainant's time and attendance record to show that she was on administrative leave on the dates in question, pay Complainant appropriate back pay and benefits, and investigate her claim for damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130039 (March 13, 2013).

Denial of Reasonable Accommodation Found. Complainant filed a formal EEO complaint alleging, among other things, that the Agency failed to provide her with reasonable accommodation. According to the record, Complainant entered into an Abeyance Agreement with the Agency which provided that she would submit medical documentation whenever she had an unscheduled absence. On May 31, 2008, Complainant's psychiatrist submitted documentation to the Agency which described Complainant's diagnosis, prognosis, the medication she was prescribed and her limitations. The psychiatrist stated that Complainant could have periods of sickness and would need to attend medical appointments, but would be able to perform her job as a Contract Representative. Complainant stated that, at times, she was so incapacitated from her disabilities that she was unable to get out of bed in the morning. In October 2008, Complainant requested reasonable accommodation in the form of unscheduled leave. The Agency notified Complainant that she must provide very detailed information, as outlined in a list it provided, from her psychiatrist regarding her prognosis, treatment, effects and limitations. Complainant's psychiatrist characterized the request as "absurd" and refused to comply, stating that she had already provided sufficient information regarding Complainant's disability. In addition, Complainant was unable to pay the fee required for a more detailed medical report. As a result, her request for accommodation was denied. Complainant submitted an additional medical report to the Agency in January 2009, but the Agency did not treat that information as a request to reassess her request for unscheduled leave. Following a hearing on the issue, an AJ found that the Agency discriminated against Complainant on the basis of her disability when it did not provide her with accommodation.

On appeal, the Commission affirmed the AJ's finding. The Commission rejected the Agency's assertion that it engaged in the interactive process, stating that there was no evidence in the record that the Agency addressed Complainant's request for a reassessment after she submitted the January 2009 medical report. The Commission agreed with the AJ that, if the Agency felt the documentation was insufficient to determine whether flexible leave would accommodate Complainant, it should have asked Complainant or her psychiatrist for additional information such as whether flexible leave would have alleviated her symptoms and how often she needed such leave. The Agency should not have ignored Complainant's request to reassess flexible leave as an accommodation. While the Agency contended that Complainant failed to provide the requested medical documentation to support her request, the Commission found that the Agency failed to show that the documentation submitted by Complainant's psychiatrist in May 2008 was insufficient. The AJ also determined that the Agency's request for additional information was problematic because it was "absurdly detailed and elevate[d] form over substance."

Finally, the Commission found that the Agency did not provide Complainant with reasonable accommodation when it entered into the Abeyance Agreement. That document appeared solely to address disciplinary issues. Further, Complainant described her condition as being so debilitating on occasion that she could not get out of bed. The Commission found that requiring Complainant to provide medical documentation every time she used sick leave exacerbated her symptoms due to her fear of getting in trouble for not providing the information, and was not an effective accommodation. The Commission noted that while it would have been an undue hardship for the Agency to allow Complainant to take unscheduled leave in an unfettered manner, Complainant testified that she would have benefited from an accommodation where she could take one day of unscheduled leave every other month without having to provide medical documentation. The Commission found that allowing Complainant to take six days of unscheduled leave per year would not have been an undue hardship to the Agency. Thus, had the Agency made a good faith effort to engage in the interactive process, it could have found a reasonable accommodation that would have allowed Complainant to perform the essential functions of her position without an undue hardship to the Agency. The Agency was ordered, among other things, to pay Complainant $10,000 in proven non-pecuniary damages, as well as attorney's fees and costs. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0720120001 (January 18, 2013).

Disability Discrimination Found with Regard to Delay in Providing Accommodation. Complainant, a temporary safety and health clerk, filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of her disability when it did not provide her with reasonable accommodation. Specifically, Complainant stated that she experienced problems with her computer monitor due to a vision impairment, and notified the Area Director of the issue by June 2009. Complainant contacted the Agency's Information Technology (IT) Help Desk after the Area Director's actions in adjusting the settings on the monitor failed to correct the problem. The Help Desk gave Complainant a flat panel monitor, but the Area Director gave that monitor to the Assistant Area Director because he believed Complainant improperly requested the monitor. Complainant again advised the Area Director that the monitor still bothered her eyes in July 2009. After Complainant contacted the Regional Director, the flat screen monitor was returned to her. In its final decision, the Agency found that it provided Complainant with reasonable accommodation.

On appeal, the Commission noted that the Area Director failed to recognize that Complainant's initial request for a new monitor constituted a request for reasonable accommodation. The Commission noted that an employee is not required to use "magic words" when making a request for accommodation. In this case, Complainant told the Director that she needed a new monitor due to her medical condition, and the Director should have treated the request for equipment as a reasonable accommodation request. As a result of the Director's failure to recognize that Complainant requested accommodation, Complainant had to contact other offices to assist with her request. Further, after the Help Desk provided Complainant with accommodation, the Director confiscated the flat screen monitor and provided it to someone else. Therefore, the Commission found that the Area Director caused an undue delay in Complainant's eventual provision of a flat screen monitor. The Commission further stated that the Agency failed to demonstrate that the Area Director made the requisite good faith effort to provide accommodation, and, as such, the Agency was ordered, among other things, to determine whether Complainant was entitled to compensatory damages. The Commission found that Complainant was not subjected to harassment or discriminatory disparate treatment with regard to the other issues in her complaint. Complainant v. Dep't of Labor, EEOC Appeal Nos. 0120110728 & 0120112988 (January 9, 2013), request for reconsideration denied, EEOC Request Nos. 0520130243 & 0520130244 (July 30, 2013).

Improper Disclosure of Medical Information Found. Complainant, a Senior Correctional Officer, filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him by failing to protect the confidentiality of his medical records. According to the record, Complainant met with the Agency's Human Resources Manager and discussed reasonable accommodation and disability retirement. He gave the Manager a note from his physician, and the physician provided additional information regarding Complainant's condition to the Agency. The Manager discussed the physician's report with Complainant's first-level Supervisor and the Warden. Complainant later sent an additional note from a second physician, and underwent a fitness for duty examination conducted by a third physician. When Complainant inquired about his medical documentation, the Human Resources Manager told him that it was in an adverse action file in the Human Resources Department.

Following a hearing, the AJ found that the Agency violated the Rehabilitation Act by placing Complainant's medical records in the Human Resources Department's adverse action files which, although restricted, were accessible to anyone who worked in the Human Resources Department. The Commission affirmed the AJ's finding on appeal. The Commission stated that the evidence of record established that the Agency did not maintain Complainant's confidential medical information in a separate medical file. Instead, the Agency placed the information, including documentation that identified Complainant's diagnosis and described his symptoms, in a non-medical adverse action file. Thus, the AJ correctly determined that the Agency violated the Rehabilitation Act. Contrary to the Agency's assertion, Complainant was not required to prove that it disclosed his confidential medical information to an unauthorized person. The plain language of the statute and regulations expressly stated that medical information must be maintained in separate medical files. The Commission cautioned the Agency that, to the extent it was the Agency's practice to place medical information in adverse action or other non-medical files, the Agency should revise its practices to ensure compliance with the Rehabilitation Act. The Agency was ordered, among other things, to pay Complainant $2,500 in proven non-pecuniary compensatory damages, and expunge all medical information concerning Complainant from non-medical files, including personnel and adverse action files. Complainant v. Dep't of Justice, EEOC Appeal No. 0720120004 (October 24, 2012), request for reconsideration denied, EEOC Request No. 0520130125 (April 25, 2014).

Disability Discrimination Found with Regard to Letter of Warning. Complainant, a Mail Handler, needed intermittent time off due to his medical conditions. Complainant filed for disability retirement in May 2011, and the Agency forwarded his application to the Office of Personnel Management (OPM). Subsequently, Complainant was sent home from work. Complainant provided documentation from his physician, but the Manager notified Complainant that he was on sick without pay (SWOP) and expected to return to work after September 2, 2011. Complainant requested reasonable accommodation in the form of excused absences from September 3, 2011 through October 3, 2011. The Agency instead placed Complainant in Absent Without Official Leave (AWOL) status during that time, and issued him a Letter of Warning (LOW). Complainant subsequently filed a formal EEO complaint alleging that the Agency retaliated against him when it issued the LOW. The Agency issued a final decision finding no discrimination.

On appeal, the Commission initially found that Complainant established a prima facie case of reprisal because he engaged in protected EEO activity when he requested reasonable accommodation in the form of excused leave and filed a prior complaint. Management officials were aware of the activity, and there was a temporal nexus between the LOW and Complainant's EEO activity. The Agency asserted that it issued the LOW because of Complainant's attendance issues. The Commission found, however, that the reason was pretextual. The record clearly showed that management was aware of Complainant's condition and its impact on his ability to perform his job. Further, Complainant had submitted an application for disability retirement, and provided medical documentation to the Agency showing that he could not work in August and September. Thus, management was clearly aware that Complainant was out due to his medical condition when it issued the LOW. The Commission found that it was more likely than not that the LOW was issued in retaliation for Complainant's request for accommodation rather than a willful failure to come to work that required disciplinary action. The Agency was ordered, among other things, to remove the LOW from Complainant's personnel record, and investigate his claim for damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122504 (October 24, 2012).

Under Title VII

National Origin Discrimination Found with Regard to English-Only Rule. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of his national origin when a Supervisor told Hispanic employees to stop speaking Spanish. Following a hearing, an AJ found that Complainant failed to prove discrimination with regard to that matter. The Commission reversed the decision on appeal. The record was clear that the Supervisor admonished employees for speaking Spanish, instructed employees not to speak Spanish, and made an announcement over the intercom which several employees interpreted as a prohibition against speaking Spanish. Documentary evidence corroborated Complainant's assertions that employees were told not to speak Spanish on the workroom floor. In addition, another Manager acknowledged that the Supervisor made a comment about speaking Spanish during the intercom announcement. Thus, the Commission found that the evidence of record established that the Agency implemented an English-only rule from the date of the announcement until the date the Manager issued a letter stating that employees were permitted to speak languages other than English. The Commission further found that the English-only rule was not justified by business necessity. There was no evidence of widespread problems involving language-related interpersonal conflicts or derogatory or intimidating conduct. To the extent the evidence showed a few sporadic, isolated incidents, the Commission stated the Agency could have used a nondiscriminatory alternative to address them, such as counseling employees about appropriate conduct. Thus, the Commission concluded that the Agency discriminated against Complainant on the basis of his national origin, and ordered the Agency, among other things, to take action to ensure that similar violations of the law would not recur. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120102010 (September 25, 2013).

Sexual Harassment Found. Complainants were limited duty employees at the same Agency facility. In 2009, Complainants reported that a co-worker was wearing shorts which significantly outlined and occasionally exposed his genitalia. Agency managers notified a Human Resources Manager, who, along with the Workplace Harassment Coordinator, initiated a fact finding investigation. Complainants were ultimately notified that their claim of sexual harassment had not been substantiated. Complainants then filed formal EEO complaints. Following a hearing, an AJ concluded that the conduct was neither "sexual," nor based on sex, and even if it was, it was not severe or pervasive enough to create a hostile work environment. On appeal, the Commission noted that the AJ credited Complainants' testimony that the coworker wore his shorts in a manner that made his genitals prominently outlined and sometimes visible. The Commission stated that the AJ erred in not concluding that this conduct was of a sexual nature, and, instead, found the conduct to be inherently sexual and unwelcome. Further, the Commission concluded that a reasonable person would have found the conduct, which occurred over a five to six month period, sufficiently pervasive to create a hostile work environment. The Agency took over six months to conduct an investigation of the conduct and did nothing to separate the coworker from Complainants during that time. There was also no evidence that the Agency took appropriate steps to ensure that it would not recur. Therefore, the Commission found that the Agency was liable for the harassment. The Agency was ordered, among other things, to counsel the coworker regarding his work attire, provide appropriate training to management officials and employees at the facility, and investigate Complainants' entitlement to compensatory damages. Complainants v. U.S. Postal Serv., EEOC Appeal Nos. 0120120339; 0120120427; 0120120510 (August 20, 2013).

Race Discrimination Found. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of race when Complainant had her duties altered from Waitress to Cashier; had to share tips with other Cashiers; was no longer given incentive pay; and management refused to communicate with her. Following a hearing, an AJ found discrimination with regard to Complainant's incentive pay and management's refusal to communicate with her. The AJ, however, found no discrimination with regard to the other matters. Utilizing the substantial evidence standard of review, the Commission reversed the finding of no discrimination as to Complainant's changed job duties and being forced to share tips with a coworker. The Commission noted that the AJ properly found that Complainant established a prima facie case, because she was qualified for the Waitress position for which she was hired and suffered an adverse employment action when her Waitress duties were taken away and she was forced to share tips. The record also showed that Complainant's previous Supervisor intended to hire Complainant as a Waitress, and Complainant performed only those duties. When a new Supervisor learned that Complainant's personnel documentation labeled Complainant a "Cashier," she ordered Complainant to perform only those duties. While the AJ stated that Complainant and the other Cashier ignored the Supervisor's instructions because they thought the orders were discriminatory, the Commission stated that the refusal to follow the Supervisor's orders did not make them any less adverse or less discriminatory. In addition, the Commission noted that the AJ specifically found that the decision to change Complainant's duties and split tips was based on Complainant's race and evidence of an overall hostile work environment. The AJ also found that the Supervisor harbored animus toward African-American employees at the facility, and acted with "vindictiveness and animus" against Complainant. Thus, the Commission found substantial evidence in the record supported a finding that Complainant was subjected to disparate treatment when her Supervisor changed her job duties and ordered her to split her tips. The Agency was ordered, among other things, to ensure that Complainant's personnel records reflect that she was in a Waitress position from the date she was hired until her separation, reimburse Complainant for incentive pay she would have received, and pay proven compensatory damages. Complainant v. Dep't of the Army, EEOC Appeal No. 0720120039 (August 16, 2013).

Sexual Harassment Found. Complainant worked as a Program and Management Analyst. She alleged, among other things, that the Agency subjected her to sexual harassment when her first level supervisor (Person A) engaged in inappropriate touching and closeness. Specifically, Complainant stated that Person A kissed her, rubbed against her, hugged her, and put his arms around her. Complainant also noted that she was placed on a detail assignment during which she was required to perform clerical duties. The Agency ultimately issued a final decision finding no harassment. On appeal, the Commission reversed the Agency's decision. There was no dispute that Complainant, a female, was a member of a statutorily protected class. Further, the Agency's own administrative investigation revealed that, during the relevant time period, Complainant told five coworkers and two management officials that Person A engaged in inappropriate touching and closeness. The investigation also revealed that Person A engaged in similar behavior with other female employees. While Person A denied engaging in any inappropriate conduct, an Employee Relations Specialist averred that Person A acknowledged putting his arm around Complainant's shoulders and waist. The Agency stated that it permanently transferred Complainant to another work location in response to her claim of harassment. Thus, the Commission found that Complainant's reassignment was an example of harassment affecting a term or condition of employment. The Commission stated that the Agency was liable for the harassment even if the hostile work environment did not culminate in a tangible employment action. The record showed that the Agency was notified of the harassment, and initiated an investigation which found that Complainant's claim was substantiated. Nevertheless, the only action the Agency took was to reassign Complainant to another position. The Commission stated that transferring Complainant to an undesirable position was not an appropriate corrective action. The Agency was ordered, among other things, to offer Complainant the position of a Program and Management Analyst or a substantially equivalent position, and investigate her claim for damages. Complainant v. Dep't of Educ., EEOC Appeal No. 0120111258 (August 15, 2013).

Disparate Impact and Disparate Treatment Sex Discrimination Found in Class Action. The Class Representative (CR), a Special Agent with the Agency's Drug Enforcement Agency (DEA), filed a formal class complaint alleging that the Agency discriminated against her and similarly situated females when it denied female Agents foreign assignments and promotions to supervisory positions. The CR also alleged that the Agency's acts constituted a pattern and practice of unlawful discrimination against female Agents in selections for foreign assignments and promotions. According to the record, candidates were asked about their marital status, and female applicants were "interrogated" about their childcare arrangements and whether their husbands could adjust to the role of an overseas spouse. Further, when CR applied for assignments overseas, the Agency repeated expressed concerns about whether her husband was willing to follow her overseas. The Agency never expressed such concerns about the male Selectees. Other female candidates were told that females were not selected for certain overseas assignments in "male dominated cultures," told that women should be having babies and not be Special Agents, and told they could not be assigned overseas if they continued to get pregnant.

The Commission certified a class composed of female Special Agents who were denied foreign assignments between 1990 and 1992. Following a nine-day hearing, an AJ issued a decision finding liability against the Agency. The AJ found that the class presented convincing statistical evidence showing that female Agents at the GS-11, 12 and 13 levels who applied for foreign positions were disparately impacted by the Agency's hiring practices, and the Agency failed to establish the existence of a business necessity for those practices. The AJ found no disparate impact on female Agents at the GS-14 and 15 levels. The AJ also determined that the class established disparate treatment by a preponderance of the evidence showing that the Agency purposefully and repeatedly treated female Agents who applied for overseas positions at the GS-15 level less favorably than their male counterparts. The class showed that the disparate treatment was not isolated, inadvertent or irregular, but instead was the Agency's standard operating procedure in selecting Agents for foreign positions. The Agency failed to articulate why it did not select qualified female Agents for foreign positions. The AJ subsequently issued an order denying the Agency's motion to decertify the class, and a Report of Findings and Recommendations setting forth specific relief for CR.

On appeal, the Commission affirmed the AJ's findings of disparate impact discrimination. The record supported the AJ's conclusion that the class identified the specific practice challenged, specifically a selection process that was highly subjective and without clear guidelines. The Agency did not have adequate procedures to ensure that its staff conducted the selection process consistently and in accordance with EEO guidelines. Staff conducting selections reviewed different material, and the interview process was subjective. The record also supported the assertion of the existence of a sexist culture within the Agency. The Commission further agreed with the AJ's conclusion that the statistical analysis used by the class expert was the proper analysis, and her report was more credible and reliable than that of the Agency's expert which did not analyze applicant flow data or consider different variables. The Agency's expert also failed to explain why she did not consider certain vacancies, and included vacancies that were not considered foreign. The class established that there was a pattern of females being non-selected for foreign positions at the GS-11, 12 and 13 levels, and, therefore, established a prima facie case. The Commission agreed with the AJ that the Agency did not present a business necessity argument. Thus, the class established that female Special Agents at the GS-11, 12 and 13 levels who applied for foreign positions were disparately impacted by the Agency's hiring practices.

Further, the Commission concluded that the AJ correctly found that CR established disparate treatment individually, and the class established disparate treatment as a whole when they were not selected for foreign assignments. The statistical evidence showed that there was a pattern of females being non-selected for foreign positions both before and during the class period. In addition, there was substantial anecdotal evidence in the record of a widespread belief among Agency managers and staff that females would not be as effective as males in certain overseas positions, and that this bias was widespread in the Agency. The record also showed a widespread practice of female applicants being asked questions about childcare and pregnancy that were not asked of male applicants. The testimony of the class members supported the AJ's finding that males were routinely selected over equally or better qualified female candidates for overseas positions, and the Agency was aware of the lack of representation of female Agents in foreign assignments. The Commission found nothing in the record to explain why the Agency did not select qualified female Special Agents for foreign positions. Thus, the class established that it was subjected to disparate treatment.

With regard to relief, the Commission found that CR was entitled to an award of $150,000 in non-pecuniary compensatory damages for the physical and emotional pain, suffering, anxiety and depression she suffered for more than 19 years as a result of the discrimination. In addition, CR was entitled to $1,080,354.50 in attorney's fees as well as $291,674.77 in costs. The Commission found that given the complexity of the case, number of motions filed, and the large amount of data reviewed, the hours charged by counsel were not excessive or duplicative. Further, the record supported the AJ's application of a 20 percent fee enhancement. The Commission also agreed with the AJ that, given the testimony that Agency-wide gender bias existed at the time of the hearing, training should be provided for all staff involved in the overseas selection process, and the Agency should consider taking appropriate disciplinary action against the named individuals in the complaint. Finally, the Commission stated that the Agency should implement an Agency-wide Gender Discrimination Remedy Plan which identified barriers for females and establish clear action plans for eliminating those barriers. Complainant, et al. v. Dep't of Justice, EEOC Appeal No. 0120122033 (June 7, 2013).

Race Discrimination and Racial Harassment Found. Complainant worked as a Police Officer at the U.S. Mint. He filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his race and subjected him to a hostile work environment. Specifically, Complainant stated that management singled him out and confronted him regarding his failure to wear a gas mask, and then suspended him as a result of the incident. In addition, Complainant indicated that he was subjected to racial jokes. Following a hearing, the AJ issued a decision finding that the Agency discriminated against Complainant and harassed him as alleged.

On appeal, the Commission found that the AJ's decision was supported by substantial evidence. While the Agency asserted that the AJ erred in finding that Complainant established a prima facie case, the burden of establishing a prima facie case is not onerous, and varies with the factual circumstances and bases of discrimination alleged. Further, while comparator evidence is usually used to establish disparate treatment, Complainant needed only to set forth some evidence of Agency actions from which, if otherwise unexplained, the AJ could draw an inference of discrimination. The AJ found that although Complainant was given a two-day suspension, others who failed to follow direct orders received letters of reprimand for a first offense. While both parties agreed that Complainant was not wearing his gas mask on the date in question, the AJ found that another Officer also failed to wear a gas mask while walking between a secure and unsecure area. Further, the AJ stated that the Agency provided contradictory reasons about what happened, why Complainant was disciplined, and the circumstances surrounding the investigation of the incident. The AJ also found a number of instances where the Agency's witnesses lacked credibility, specifically with regard to whether Complainant was ordered to put on his gas mask and whether he understood that an order had been given. The Commission stated that the AJ properly relied upon corroborating evidence to evaluate the differing versions of what occurred.

The Commission also found substantial evidence to support the AJ's finding of discriminatory harassment. There was testimony in the record that other Officers made racial jokes and comments, and that a former Chief used a racial slur. Complainant also testified that employees were resistant to diversity training, and the record showed that of the 53 employees at the Mint, only four were Black. Thus, the Commission concluded that the AJ properly found that Complainant was subjected to a racially hostile work environment. The Agency was ordered, among other things, to pay Complainant any benefits due as a result of the unlawful suspension, including back pay and overtime, pay him $35,000 in proven compensatory damages, and pay appropriate attorney's fees. Complainant v. Dep't of the Treasury, EEOC Appeal No. 0720110038 (March 26, 2013), request for reconsideration denied, EEOC Request No. 0520130424 (April 16, 2014).

Under Multiple Bases

Race and Age Discrimination Found with Regard to Non-selection. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the bases of her race and age when it did not select her for a Section Chief position. Complainant was one of seven applicants on the Certificate of Eligibles, and her application showed that she had worked as a Group Supervisor and a Specialist for several years. The Selectee had less than one year of experience as a Specialist. The Agency issued a final decision finding no discrimination. On appeal, the Commission found that the Agency failed to articulate a legitimate, non-discriminatory reason for not selecting Complainant for the position. The record did not include an affidavit from the Selecting Official explaining why he chose the Selectee. Although the Deputy Section Chief told the EEO Counselor that the Agency chose the Selectee because of her qualifications, experience and degree, there was no evidence that the Deputy Chief played any role in the selection process. In addition, the Commission found that the Deputy Chief's cursory assertion was not sufficiently specific to afford Complainant a full and fair opportunity to demonstrate pretext. Specifically, there was no explanation why the Selectee's 10 months at the Agency outweighed Complainant's seven years of experience, or why a Master of Arts degree in International Affairs was relevant to the position. The Commission noted that while the final Agency decision mentioned Complainant's performance appraisal there was no evidence the Selecting Official relied upon appraisals when he evaluated the candidates, and the Selectee's appraisal was not in the record. Therefore, the Commission concluded that the Agency failed to overcome Complainant's prima facie case of race and age discrimination with regard to the non-selection. The Agency was ordered, among other things, to retroactively promote Complainant to the position with appropriate back pay and benefits, and investigate her claim for compensatory damages. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120113819 (September 20, 2013).

Commission Found Harassment Based on Sex, Race and Reprisal. Complainant alleged that she was subject to discrimination on the bases of race, sex, and reprisal for prior protected EEO activity when she was subjected to ongoing harassment, including unfavorable work assignments and name-calling. The Agency's final decision found that Complainant failed to establish her claim of harassment and did not show that she was subjected to unlawful retaliation. The Commission reversed the Agency's decision and found that Complainant was subjected to unwelcome conduct that was sufficiently severe and pervasive to alter the conditions of her employment and create an abusive working environment. The Commission initially noted that the Agency failed to correctly identify Complainant's claim when it considered the incidents as two separate claims of harassment. The record supported Complainant's claim that she was treated differently than employees not of her protected groups. She was expected to work faster and longer than comparative employees, as well as given more work and undesirable assignments. Further, the record showed that Complainant was subjected to cursing and inappropriate comments. The Commission found that, when the established events were considered together, Complainant showed that she was subjected to a hostile work environment. In addition, there was a basis for imputing liability to the Agency because the Supervisor's harassment culminated in a tangible employment action from which no affirmative defense was available. The tangible employment actions occurred when the Supervisor used her authority to increase Complainant's workload and give her less desirable assignments. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training for the responsible management official. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120102267 (August 22, 2013).

Commission Found Harassment Based on Sex and Reprisal. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the bases of sex, perceived sexual orientation, and reprisal for prior protected EEO activity when he was continuously subjected to a hostile work environment by his coworkers and supervisors. Specifically, Complainant stated that three coworkers repeatedly referred to him using offensive anti-gay slurs, and spread rumors about his sexual orientation. Complainant informed his Supervisor, the Unit Commander, and the Section Chief about the conduct, but the harassment continued. In addition, Complainant stated that other Supervisors made offensive comments to him, subjected him to strict scrutiny, ordered a coworker to investigate Complainant, and told his coworkers he had filed an EEO complaint. Following an investigation, the Agency found that Complainant failed to establish a prima facie case of discrimination.

On appeal, the Commission initially found that the Agency's jurisdictional argument failed. The Commission stated that it has jurisdiction to hear claims dealing with sex discrimination, which includes disparate treatment for failing to conform to gender-based expectations and applies to gay, bisexual, heterosexual and transgender complainants. Complainant alleged that his male coworkers referred to him using offensive, insulting, and degrading sex-based epithets historically used when a person is displaying their belief that a male is not masculine. Complainant was alleging a claim of harassment based on the perception that he did not conform to gender stereotypes of masculinity, and, therefore, stated a viable claim. Additionally, the Commission found that Complainant established that he was subjected to a hostile work environment on the bases of sex and reprisal. Complainant was called derogatory sex-based names, his property was defaced with these offensive sex-based names, his supervisors treated him differently from other employees after he filed his EEO complaint, and he was not fairly assigned work. The record showed that Complainant informed his Supervisors of the harassment by his coworkers and they failed to take corrective action. In addition, a coworker repeatedly referred to Complainant as "rat" and "tattle tale," and Supervisors warned employees to be careful around Complainant because he had filed EEO complaints. The Commission noted that the harassment was not limited to sex-based epithets and retaliatory names, but included being ostracized by coworkers and Supervisors, being subjected to more strict scrutiny, and unfairly assigned work. The harassment was perpetrated by both coworkers and Supervisors, and the record was replete with instances where Complainant complained of the harassment throughout his entire chain of command, but the Supervisors did nothing to ensure the harassment would stop. Thus, the Commission concluded that the Agency was liable for the harassment, and, further, failed to exercise reasonable care to prevent and correct the harassing behavior. The Agency was ordered, among other things, to take measures to eliminate the discriminatory conduct toward Complainant, determine Complainant's entitlement to compensatory damages, and provide EEO training to all management officials and employees at this facility. Complainant v. Dep't of Energy, EEOC Appeal No. 0120131136 (August 13, 2013).

Agency Failed to Rebut Prima Facie Case of Harassment Based on Race and Color. Complainant filed a formal EEO complaint alleging, among other things, that the Agency subjected her to hostile environment harassment based on her race and color. Complainant provided several incidents in support of her claim including being given unsafe work instructions by her Supervisor, being constantly monitored and berated in front of co-workers, being held to unreasonable expectations, being subjected to multiple disciplinary actions, and being forced to work overtime without compensation. During the investigation, Complainant submitted an affidavit providing further details about her claim, and indentifying comparators. The Agency ultimately issued a final decision finding no discrimination.

On appeal, the Commission found that Complainant established a prima facie case of a racially motivated hostile work environment. Complainant's affidavit, as well as supporting affidavits from several co-workers showed that Complainant was the frequent victim of badgering, berating, nitpicking, criticism in front of co-workers and excessive monitoring by her Supervisor. In addition, unlike employees outside of her race, Complainant was made to perform overtime work, issued three disciplinary suspensions that were later overturned, and subjected to 10 disciplinary interviews. Complainant also presented evidence that the Supervisor engaged in similar negative behavior to other Caucasian employees. Complainant stated that she reported the harassment to the Postmaster, but no investigation took place and the behavior continued. While the Agency claimed that Complainant's allegations were too vague to merit a response, the Commission found that Complainant's affidavit provided sufficient detail and definitive dates for many of her allegations. The Commission also found that the Supervisor's affidavit was largely unresponsive to the Investigator's questions. Specifically, the Supervisor responded "n/a" and "I don't recall" to every substantive question posed. The Postmaster also stated he did not recall anything about the situation. The Commission stated that, given the specificity with which Complainant articulated her allegations, the managers' affidavits did not meet the Agency's evidentiary burden to rebut Complainant's prima facie case of discriminatory harassment. Thus, the Commission concluded that Complainant proved she was discriminated against based on her race and color. The Agency was ordered, among other things, to conduct training for the Supervisor and Postmaster, take appropriate preventative steps to ensure that employees are not subjected to harassment, and investigate Complainant's claim for damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130848 (June 11, 2013).

Race Discrimination and Retaliation Found. Complainant worked for the Agency as the Chief of the Cryptologic Services Group as part of a Joint Inter Agency Task Force. Complainant began her tour of duty in August 2005. Complainant was rated as "exceeds objectives" on her 2005 and 2006 performance evaluations, and received a performance award in 2006. In March 2007, Complainant had a disagreement with her Deputy, and Complainant told him she believed she was being discriminated against. Complainant's Deputy then sent a letter to the ranking Agency representative (S1) outlining his version of the confrontation and indicating that Complainant felt she had been discriminated against. While Complainant was on scheduled leave, S1 informed her that the Chief of the Intelligence Directorate intended to recommend that Complainant's access to the facility be suspended upon her return, and later that he was going to curtail Complainant from her position. During both conversations, Complainant informed S1 of her intent to file an EEO complaint. Complainant was officially curtailed from her position in July 2007. She filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her race and in reprisal for prior EEO activity. Following a hearing, the AJ found that the Agency discriminated against Complainant when her position was curtailed.

On appeal, the Commission affirmed the AJ's findings. The Commission disagreed with the Agency's assertion that Complainant did not establish a prima facie case, stating that Complainant, an African-American, was subjected to an adverse action when she was curtailed and was treated differently than the two similarly situated employees who succeeded her, one of whom did not meet the minimum qualifications for the position and one of whom was not required to compete for the position. Further, the Agency was aware that Complainant thought she was being discriminated against and began the curtailment proceedings only six days after she told S1 she was going to file an EEO complaint. While the Agency articulated legitimate, non-discriminatory reasons for the curtailment, that is Complainant's work performance, interpersonal skills, ineffectiveness and customer dissatisfaction with the level of support from the Agency, the Commission found those reasons to be pretextual. The record supported the AJ's finding that some employees lied to Agency officials about Complainant's performance, and that the Chief of the Intelligence Directorate had a discriminatory preference for Caucasians in the workplace. The AJ also found that Complainant's leadership team lacked credibility and coordinated their stories in order to make Complainant look like an ineffective leader to Agency officials. The AJ determined that their accounts of Complainant's performance, interpersonal skills and ineffectiveness as a leader were contradicted during their testimony and they actively participated in the discriminatory conduct of the higher level officials. Further, Complainant's subordinate leadership team circumvented Complainant, went against her direct orders, and repeatedly undermined her decisions and authority, and there was no evidence that Complainant's Caucasian predecessor was treated in the same manner. The Commission stated that, even if it were to assume that Agency officials were unaware of the staff members' discriminatory motivations, the Agency was still liable under the "cat's paw" theory. The Commission concluded that the record contained no credible evidence to support the Agency's articulated reasons for curtailing Complainant from her position, and, as such, Complainant established discrimination with respect to the curtailment of her position.

With regard to relief, the Commission stated that because Complainant's husband obtained his position through a spousal accommodation and was dependent on Complainant's continued employment, back pay and interest for Complainant's husband's curtailment was necessary to make Complainant whole. In addition, Complainant proved that she was entitled to an award of $50,000 in non-pecuniary compensatory damages for emotional distress, anxiety, physical ailments, and damage to her reputation. The Agency was also ordered, among other things, to pay Complainant back pay and benefits, expunge the curtailment from her personnel files, and provide appropriate training for Agency staff. Complainant v. Nat'l Sec. Agency, EEOC Appeal No. 0720120011 (June 11, 2013), request for reconsideration denied, EEOC Request No. 0520130573 (December 13, 2013).

Race Discrimination and Retaliation Found. Complainant, a Senior Field Attorney, filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his race (African-American) when the Agency failed to select him for a Supervisory General Attorney position and in reprisal for having filed a discrimination complaint when his Supervisor subsequently issued him a memorandum criticizing his work performance. Following a hearing, the AJ issued a decision finding discrimination and retaliation. The Commission affirmed the AJ's findings on appeal.

The AJ initially found that Complainant established a prima facie case of disparate treatment because he was qualified for the position, but was not selected in favor of an individual outside of his protected group. While the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its selection of the Selectee over Complainant, the AJ ultimately concluded that these reasons were pretext to hide discrimination based on race. Complainant carried his burden by providing credible evidence of bias, pre-selection, and management deviation from standard selection procedure. The Commission rejected the Agency's argument that the AJ inappropriately substituted her own judgment for that of the Agency, noting that the caution the Commission exercises in interfering with Agency personnel actions is not allowed to undercut the intent of Title VII. The Commission agreed with the AJ that the testimony provided by management officials was inconsistent, contradictory, and purposefully vague, and that the hiring pattern in the region evidenced no non-White professional or supervisory employees. Further, the Commission noted that the selection process was patently and clearly not adhered to and disregarded with impunity. Although the Selectee's performance was rated as outstanding, the Commission stated that the AJ could not properly accord credence to the testimony of the management officials. The Commission concluded that, given the totality of the background information showing that the Regional Director treated African Americans less favorably in promotional and award opportunities, selected only Caucasians for professional supervisory positions over a 25 year period, failed to adhere to the required selection procedures, and engaged in blatant pre-selection, the AJ properly found that Complainant's non-selection was motivated by race.

With regard to the claim of retaliation, the AJ found that Complainant established a prima facie case in that he had engaged in protected activity, the management team was aware of the activity, and their actions occurred in temporal proximity to the EEO activity. Shortly after filing the complaint, Complainant received criticism of his work and was threatened with a lower performance rating despite previous and continuous performance ratings of commendable and outstanding. The AJ found that a reasonable person in Complainant's position would be dissuaded from opposing discrimination if the result would be to receive unwarranted criticism of his work and a potential downgrade of his annual evaluation. The AJ concluded that the Agency's articulated reason for its actions, that is Complainant was performing at an unsatisfactory level, was a pretext for retaliation based upon Complainant's overall rating of commendable and the absence of anything negative about his work until shortly after he filed his discrimination complaint. The Commission found substantial evidence in the record to support the AJ's findings. The Agency was ordered, among other things, to offer Complainant the Supervisory General Attorney position within 30 days retroactive to the date he would have been hired, and pay Complainant the appropriate amount of back pay and benefits with interest, as well as $15,000 in compensatory damages. Complainant v. Nat'l Labor Relations Bd., EEOC Appeal No. 0720110017 (May 1, 2013).

Race and Age Discrimination Found with Regard to Discipline. Complainant worked as a Housekeeping Aide, a position he had held for approximately 20 years. He had no record of any prior disciplinary action or misconduct. In May 2011, Complainant was involved in a confrontation with a Nurse after he found some money in the hallway. All of the witnesses averred and the responsible management officials acknowledged that the Nurse put her hand in Complainant's pocket to retrieve the money, and pulled out Complainant's car keys. Complainant asked for the keys back several times, but the Nurse refused to return them to Complainant. Complainant stated that he then "grabbed her hand," retrieved his keys and left the area. The record did not contain a statement from the Nurse. In addition, the Nurse's Supervisor, who witnessed the incident, walked away when Complainant asked for assistance, stating that she did not want to get involved. There was no statement from the Supervisor in the record. One of the witnesses contacted the Agency's Police Services, and a police report was filed concerning the "verbal argument." Neither Complainant nor the Nurse gave a statement about the incident and the police did not file charges. Complainant's Supervisor issued him a notice of proposed removal as a result of the incident, which was ultimately mitigated to a one-day suspension. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race and age when it disciplined him as a result of the incident but did not issue comparable discipline to the Nurse.

On appeal, the Commission found that the Agency discriminated against Complainant as alleged. The responsible management officials stated that they were enforcing the Agency's zero tolerance policy for workplace violence when they proposed Complainant's removal, and subsequently suspended him. The managers indicated that they relied on statements from some witnesses that Complainant twisted the Nurse's arm and said he would "crush" her. The Commission concluded, however, that Complainant established that the articulated reason was a pretext for discrimination. The Commission noted that the Agency's zero tolerance policy would be legitimate, if warranted in this case and consistently enforced in a non-discriminatory manner. The Agency, however, did not provide any explanation for why the nurse, who was also involved in the incident, was not similarly disciplined when it was undisputed that she instigated the conflict, aggressively approached Complainant, and deliberately put her hand in Complainant's pocket. The Commission found no evidence that the Nurse was disciplined at all for her role in the matter. Therefore, without an explanation for the differing treatment, the Commission was left with the inference that the difference was the result of discriminatory factors. Further, the Commission found very little support in the record for the Agency's assertion that Complainant's behavior violated the zero tolerance policy. The Agency police found no basis to file a criminal charge against Complainant, and the record contained no statement from the nurse herself indicating that she believed Complainant's actions amounted to "violence" toward her. The Commission also found telling the absence of any statement from the Nurse's Supervisor who witnessed the incident and was asked to intervene. Therefore, the Commission determined that the Agency discriminated against Complainant when it disciplined him for the incident cited. The Agency was ordered, among other things, to rescind the suspension and expunge all references related to the matter from Complainant's personnel records, restore any pay lost, and investigate Complainant's claim for damages. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120123564 (March 19, 2013).

Retaliation

Retaliation Found with Regard to Non-selection. Complainant, a Licensed Practical Nurse, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when it did not select her for a supervisory position. The Agency ultimately issued a final decision finding no discrimination. On appeal, the Commission initially found that Complainant established a prima facie case of retaliation. Complainant had filed two prior EEO complaints and requested reasonable accommodation. Although the Selecting Official and two other officials stated they were not aware of Complainant's prior EEO activity, Complainant's Supervisor acknowledged that he knew about one of Complainant's prior EEO complaints and her requests for accommodation, and the non-selection occurred within close temporal proximity to Complainant's EEO activity. The Selecting Official stated that she did not choose Complainant for the position because of negative supervisory input and the Supervisor's statement that he would not rehire Complainant. The record showed that Complainant's requests for accommodation affected her relationship with her Supervisor. The Supervisor acknowledged that his relationship with Complainant deteriorated when she requested accommodation and worsened when she filed an EEO complaint. The Supervisor stated that he felt as if he "had been set up," and made statements that showed, at a minimum, he was not happy to be involved in the attempt to respond to Complainant's request for accommodation. The Commission found that the Supervisor's statements demonstrated that he harbored a retaliatory animus against Complainant, and that the Supervisor's negative reference was motivated by that retaliatory animus. The Commission stated that, although the Selecting Official was not aware of Complainant's prior EEO activity, she was the conduit of the Supervisor's retaliatory animus, and her decision not to select Complainant was based upon the Supervisor's biased assessment of Complainant. Therefore, the Commission concluded that the Agency retaliated against Complainant when it did not select her for the position. The Agency was ordered, among other things, to retroactively offer Complainant the supervisory position with back pay and benefits, and investigate her claim for damages. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120110544 (September 23, 2013).

Retaliation Found. Complainant filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when it issued her a Letter of Reprimand for violating leave policies and increased her workload. Following a hearing, an AJ found that Complainant was discriminated against as alleged. The AJ also found that a Supervisor's statement that Complainant was required to use annual leave to file an EEO complaint would be reasonably likely to deter Complainant or others from engaging in the EEO process. The Commission affirmed the AJ's findings on appeal. Complainant had filed a number of prior EEO complaints, including one that was pending at the time of the underlying actions. Further, the record supported the AJ's determination that, after Complainant filed her prior complaints, the volume of her work increased, and she was given short deadlines, denied the assistance of coworkers, and given assignments while she was in training. It was clear from the record that there was a correlation between the increase in Complainant's workload and her prior protected activity. In addition, the Agency's reasons for disciplining Complainant were pretext for discrimination. While the Agency stated that it issued Complainant the Letter of Reprimand for failing to call in to request leave, the record showed that Complainant had previously informed her Supervisor that she would be having a medical procedure on the date in question and would be off work for the remainder of the week. Complainant submitted her leave paperwork the day she returned, and the AJ found it suspicious that the Agency did not issue the Letter of Reprimand until six months after the incident. Management officials also did not discipline other employees for similar incidents. The Commission found it troubling that Complainant's Supervisor would instruct Complainant that she needed to take leave to file an EEO complaint. Thus, the Commission concluded that Complainant established that she was subjected to reprisal. The Agency was ordered, among other things, to expunge the Letter of Reprimand from Complainant's record, offer Complainant the option to transfer to a substantially similar position outside of her current chain of command, and pay her $16,000 in proven compensatory damages. Complainant v. Dep't of the Army, EEOC Appeal No. 0720120040 (August 27, 2013).

Substantial Evidence That Agency's Actions Were Unlawful Forms of Retaliation. Complainant alleged that the denial of her request for an upgrade/promotion after being assigned the duties of two positions was due to unlawful reprisal for prior EEO activity. The AJ concluded that the reason the Agency required Complainant to perform two jobs while refusing to upgrade her position was due to her prior protected EEO activity. The Agency appealed, arguing that the decision to not upgrade the Complainant's position was made by a Supervisor who was unaware of Complainant's EEO activity and that the Agency could not upgrade Complainant's position noncompetitively. After applying a substantial evidence standard of review, the Commission saw no reason to disturb the AJ's finding of retaliation. Even though the immediate Supervisor was unaware of Complainant's prior EEO activity, it was another Supervisor's decision to "take an unnecessarily convoluted route to attempt to have Complainant's GS-7 position reclassified rather than compensate Complainant for her additional workload. The Agency was ordered, among other things, to retroactively promote Complainant with appropriate back pay and benefits, pay Complainant $50,000 in proven compensatory damages, and pay attorney's fees. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0720120025 (August 7, 2013).

Retaliation Found. Complainant, a Supervisory Human Resources Specialist, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him. Complainant also noted that when he informed an Agency Manager that he had filed an EEO complaint, she said she could no longer trust him. Following an investigation, the AJ issued a decision without a hearing finding no discrimination. On appeal, the Commission found that the evidence supported the AJ's findings regarding the matters related to Complainant's working conditions at the Agency. The Commission concluded, however, that the Manager's statements were retaliatory. The Manager admitted that after she was told Complainant filed an EEO complaint she told Complainant she would have to document what was said in meetings and "that might result in trust concerns." She also told Complainant that his decision to file a complaint made her sad and she would have to be more careful about what she said. During the meeting, Complainant agreed to withdraw the complaint. The Commission stated that comments which, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC's regulations and evidence a violation of the law. The Commission found that the Manager's statements were reasonably likely to deter Complainant from engaging in the EEO process, especially in light of the fact that Complainant agreed to withdraw his EEO complaint at that time. The Commission noted that the fact that the Manager later apologized was of little consequence. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training for the Manager. Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120112323 (May 22, 2013), request for reconsideration denied, EEOC Request No. 0520130537 (December 13, 2013).

Retaliation Found with Regard to Performance Appraisal. Complainant worked for the Agency as an Intern or trainee, Human Resources Specialist, and had engaged in prior EEO activity of which her managers were aware. In 2009, Complainant's Supervisor rated her as Level 4 "Exceeds Expectations" on her annual performance appraisal. The Chief of Staff, however, returned the appraisal to the Supervisor, stating that he wanted further justification for the high score. Complainant's Supervisor believed that Complainant's rating was reduced because of her prior EEO activity. Ultimately, the Supervisor reduced the rating because the Chief would not move the appraisal along otherwise. Complainant filed a formal EEO complaint alleging that the Agency retaliated against her with regard to the appraisal. An AJ ultimately granted the Agency's motion for summary judgment and issued a decision finding no discrimination.

On appeal, the Commission initially found that the AJ's issuance of a decision without a hearing was appropriate because there were no genuine issues of material fact. The Commission found, however, that the AJ erred in finding in favor of the Agency, as the record showed that Complainant was in fact subjected to retaliation. The Commission stated that the AJ erred in finding that Complainant did not establish a prima facie case because she did not show that she was treated differently than similarly situated comparative employees. The Commission noted that was not the proper analysis for a claim of retaliation, and the AJ, instead, should have examined how Complainant was adversely treated and whether or not the treatment was based on prior protected activity. In this case, all management officials were aware that Complainant engaged in protected activity, and she was subjected to adverse treatment when the Chief of Staff ordered the Supervisor to lower her performance rating. The evidence of record also established that there was a nexus between the protected activity and the lower rating. The claim for damages in Complainant's prior complaint was pending at the time the Chief of Staff ordered Complainant's appraisal to be lowered. Further, the testimony of Complainant's Supervisor established that the Chief was motivated by reprisal. The Supervisor described an ongoing bias from upper management against Complainant since she engaged in prior EEO activity.

While the Chief stated that he returned the appraisal for revision because it was poorly written, the score was not justified, and the rating was too high given Complainant's few years of service, the Commission found the reasons to be pretextual. The record showed that three of the five appraisals returned by the Chief were for employees who had engaged in protected activity. In addition, the Supervisor stated that she was the only person who observed Complainant's performance on a daily basis, and believed Complainant deserved a Level 4 rating, describing her work as "well above" what was required. The Supervisor also noted that the Chief never discussed Complainant's performance with her. The Commission noted that the Agency conducted a fact finding conference and had the opportunity to question the Supervisor about her statements but did not do so. Thus, a hearing was not necessary to further examine the Supervisor, and the Commission concluded that the Agency retaliated against Complainant. The Agency was ordered, among other things, to change Complainant's performance appraisal, and investigate her claim for damages. Complainant v. Dep't of the Army, EEOC Appeal No. 0120120117 (March 15, 2013).

Retaliation Found. Complainant, an Education Technician, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when her overall annual performance rating was reduced from "outstanding" to "exceeds," and she was refused entrance to the facility prior to her start time. Following a hearing, the AJ found discrimination with regard to those matters, and the Commission affirmed the findings on appeal. Complainant's first and second level supervisors, who were the rater and reviewer for her appraisal, were aware that she had filed a prior EEO complaint. The Agency asserted that Complainant's ratings had been inflated and that she was "borderline" between an overall rating of outstanding and exceeds. In addition, the Agency stated that Complainant was denied access to the facility on the days in question because it was Agency policy that no one was allowed to enter before their start time.

The AJ found that the Agency's explanations for its actions were a pretext to mask reprisal discrimination. Complainant received an overall rating of "outstanding" in the previous year based upon the same ratings on six job elements. Complainant also received "outstanding" ratings in the two years prior. All three appraisals had the same rating and reviewing officials. The Agency admitted that Complainant's performance did not decline, and her second level Supervisor acknowledged that her prior appraisal rating of "outstanding" was deserved. The AJ found that the Agency's explanation that the rating was lowered because the first level Supervisor inflated his ratings was not credible. The responsible officials sought advice from Human Resources on what overall rating to give Complainant, but did not do this for other employees. With regard to Complainant's entry into the facility, the AJ noted that Complainant and her supervisor testified that another employee was allowed admittance prior to his start time. The Commission rejected the Agency's assertion that the matters did not constitute adverse actions. Complainant testified that she could have received a monetary or time off award if she had gotten an "outstanding" rating. Further, the Commission noted that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation.

The Agency noted that management feared that Complainant would file an EEO complaint if she did not receive an overall "outstanding" rating, and, therefore, discussed the matter with Human Resources. The AJ expressed concern that Complainant's first and second level supervisors would discuss Complainant's EEO complainant and potential to file another while completing her performance appraisal. Further, the Commission noted that the two employees cited by the Agency as having their overall ratings decreased received ratings of "exceeds" in three of five elements, and four of five elements, respectively. Thus, there was no discretion but to give those employees an overall rating of "exceeds." The Commission concluded that the AJ's finding of discrimination was supported by substantial evidence. The Commission also affirmed the AJ's finding of no discrimination with regard to three other matters. The Agency was ordered, among other things, to change Complainant's overall rating to "outstanding" for the year in question and provide her with any benefits she would have received as a result thereof, as well as pay her $10,000 in proven compensatory damages and attorney's fees. Complainant v. Dep't of Justice, EEOC Appeal No. 0720130004 (January 29, 2013).

Retaliatory Non-selection and Harassment Found. Complainant, a temporary Housekeeping Aid, filed a formal EEO complaint alleging that the Agency retaliated against him when it did not select him for a permanent position, and his Supervisor harassed him. Following a hearing, the AJ found that Complainant was discriminated against as alleged. The Commission affirmed the AJ's findings on appeal. Complainant applied for a permanent position and his application was referred to his Supervisor for an interview. The Supervisor, however, sent a memorandum to Human Resources stating that Complainant would not be interviewed for the position noting that he had been excessively late and missing from work. Complainant stated that his absences had been for medical treatment or hospitalization for a serious medical condition, and he believed his absences had been excused. Complainant's Supervisor confirmed that he received medical documentation from Complainant, but indicated that he did not submit it to his Manager and did not save the documentation. Further, Complainant had previously initiated an EEO complaint after he was issued a Notice of Termination for absenteeism. The AJ noted that Complainant entered on duty with the Agency as a disabled veteran with a 100 percent disability rating. Thus, the Agency should have reasonably anticipated that he would be absent due to illness or to seek medical treatment. Further, the AJ stated that, despite its assertion that Complainant was not selected because of excessive absenteeism, Complainant's Supervisor failed to keep an accurate accounting of medical documentation provided by Complainant. The AJ found that Complainant's Supervisor independently provided a negative reference to Human Resources in an effort to thwart Complainant from being selected for a permanent position.

With regard to the issue of harassment, the record showed that Complainant's Supervisor confronted Complainant as he left the Agency's Employee Health Clinic. The confrontation occurred in front of other patients and employees and an Agency physician and the Chief of Human Resources had to assist in quieting the disturbance created by the Supervisor. The physician provided a letter to Human Resources detailing the Supervisor's conduct, describing it as "overbearing…undignified and belittling." While the Supervisor stated that Complainant subsequently acted in a threatening manner toward him, the AJ noted that he failed to report any of the incidents and Complainant denied engaging in threatening conduct or making threatening statements. Therefore, the AJ did not find the Supervisor's assertion to be credible. The Agency was ordered, among other things, to reinstate Complainant into a permanent Housekeeping Aid position if he was able to return to work, with appropriate back pay and benefits, and pay Complainant $32,500 in proven compensatory damages. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0720120023 (January 16, 2013).

Retaliation Found. Complainant filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him when his Supervisor made certain remarks about employees who file EEO complaints, stated that employees must contact him before going to the EEO Office, and checked on Complainant twice each day. Following an investigation, an AJ held a hearing. The AJ found no discrimination with regard to a number of matters, but concluded that the Agency retaliated against Complainant with regard to the referenced issues. On appeal, the Commission affirmed the AJ's findings. According to the record, an EEO Counselor sent an e-mail to the Supervisor informing him that the Counselor would be meeting with Complainant. That same day and the following day, the Supervisor told his subordinates that they must go through him before going to the EEO Office, and that those who file EEO complaints or union grievances without first coming to him were "not men and had no integrity."

The Commission stated that the Supervisor did have a need to know, for purposes of scheduling work, if an employee was going to the EEO Office. In this case, however, the Supervisor's comments would deter a reasonable person from engaging in protected EEO activity. Given the close proximity between the e-mail from the EEO Counselor and the Supervisor's statements, the Commission found that a nexus existed between Complainant's protected activity and the adverse treatment. Further, the record supported the AJ's finding that the Supervisor made the comments in an effort to discourage the filing of EEO complaints. The Administrative Assistant corroborated Complainant's assertion that the Supervisor checked on him more frequently after he filed his EEO complaint. The Commission stated that being subjected to increased scrutiny by a supervisor on a continuing basis and checked on twice daily would likely deter a reasonable person from engaging in protected EEO activity. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and notify the employees in Complainant's office in writing that they do not need to inform supervisors of their reasons for visiting the EEO office or get permission to do so except for scheduling reasons. Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120122196 (October 24, 2012).

Official Time

Agency Decision Regarding Official Time Affirmed. In a previous decision, the Commission found that there was insufficient evidence to determine whether Complainant was given a reasonable amount of official time, and remanded that matter to the Agency. The Agency then issued a new final decision, finding that it did not deny Complainant official time. The Agency stated that Complainant failed to follow the proper procedures for requesting official time. On appeal, the Commission found that there was no denial of reasonable official time. The record showed that Complainant requested official time by placing a form on her Supervisor's desk even though she was instructed not to submit requests in that manner. According to the Supervisor, she could not approve time for the date requested because of a heavy workload. Due to other conflicts, Complainant was not scheduled for official time until over one week later. There was no evidence that Complainant told her Supervisor that she was near the end of the time period for filing her formal complaint and, therefore, needed to meet with her representative. Complainant ultimately completed the complaint forms on her own time and did meet the deadline. The Commission found that the Agency provided a plausible explanation for why official time was not approved for the date requested, and the record showed that Complainant did take the two hours of official time that was eventually approved. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111215 (September 6, 2013), request for reconsideration denied, EEOC Request No. 0520140049 (April 3, 2014).

Agency Met Burden Regarding Official Time. According to the record, Complainant had a case pending a hearing before an AJ, and was given the opportunity to prepare a proposal for a global agreement settling a number of EEO complaints. Complainant asserted that he needed approximately one month of official time from the Agency to prepare the agreement. Complainant's Supervisor provided him with two hours per day during the one-month period. Complainant alleged that the Agency failed to provide him with reasonable official time to prepare for his hearing. The Agency concluded that the time provided by the Supervisor was reasonable. On appeal, the Commission found that the Agency's decision was proper. EEOC regulations provide a complainant with a right to a reasonable amount of official time, if otherwise on duty. In this case, however, the record demonstrated that Complainant requested sick leave for the same period he requested official time. Therefore, Complainant was not "in duty status" during the period of time he requested and was allotted official time from the Agency. Thus, the Commission found that the Agency was within its right to deny Complainant's request for additional official time. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120130341 (April 4, 2013), request for reconsideration denied, EEOC Request No. 0520130415 (September 20, 2013).

Remedies

(See also "Findings on the Merits" in this issue. - Ed.)

Remedies Discussed. An AJ issued a decision finding that the Agency discriminated against Complainant and retaliated against him, and ordered the Agency to provide appropriate relief including back pay for the period of time Complainant was considered absent without leave and other pertinent benefits. The Commission ultimately dismissed both the Agency's and Complainant's appeals as untimely, and the Agency issued a final decision addressing certain elements of relief. On appeal from the most recent Agency decision, the Commission noted that the Agency was ordered to pay Complainant back pay with interest and other benefits. Complainant acknowledged that the Agency paid him a lump sum for back pay, plus interest, and an additional sum for overtime. The Commission, however, found that the documentation in the record failed to show that the Agency paid applicable contributions to Complainant's Thrift Savings Plan (TSP) account during several pay periods, and the Agency did not explain how it calculated the amounts for the remaining pay periods, whether it matched Complainant's contributions, and whether it paid the earnings the account would have accrued but for the discrimination. The Commission stated that the Agency should clearly document all deductions made from Complainant's back pay award consisting of TSP contributions, and specify how it calculated these amounts. The Commission noted that the Agency is not required to pay Complainant interest on the retroactive TSP contributions apart from the earnings he would have received on the contributions during the relevant time period. The Commission stated that, in order to make Complainant whole, to the extent Complainant did not earn retirement benefits from his outside employment during the relevant time, the Agency should have allowed Complainant the opportunity to make TSP contributions on the full amount of lost wages and the Agency should have made the appropriate matching contributions and automatic contribution based on the total amount of lost wages without mitigating outside earnings.

With regard to overtime, the Commission also found that the Agency failed to explain why it excluded certain pay periods from its calculations, and stated that the award for denial of overtime should be calculated based upon the average amount worked by similarly situated employees. In addition, while the Commission ordered the Agency to pay Complainant for the tax consequences of a lump-sum wage payment, the Commission has not recognized any entitlement to awards to cover tax liability for interest, attorney's fees or compensatory damages. The Commission stated that individuals are compensated for the extra tax they are required to pay as a result of receiving a lump-sum back pay award, as opposed to the actual amount they would have paid if they received the money over a period of time. Thus, it is the receipt of one lump sum that causes the extra tax liability, not the back pay award itself. There is no option to receive damages, attorney's fees and interest over a period of time, and, thus, there are no additional tax consequences or entitlement to compensation for such negative tax consequences. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111944 (September 13, 2013).

Agency Required to Provide Clear Statement of Method Used to Calculate Back Pay. Petitioner filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of race, sex, and reprisal when she was subjected to a hostile work environment that included an administrative investigation leading to her release from her position. The AJ held that the reasons for the Agency's investigation and Petitioner's release were pretext and awarded remedial action that included back pay and placement in a comparable managerial position. The Agency appealed and the Commission affirmed the AJ's finding of discrimination.

Petitioner subsequently filed a petition for enforcement alleging that her only unresolved matters were back pay and placement in a managerial position that potentially affected the back pay calculation. As to the managerial placement, Petitioner admitted that the Agency tried to deploy her into the position. The Commission found that the Agency fulfilled its obligations when it contacted Petitioner regarding deployment and noted that the back pay liability was tolled when Petitioner rejected an unconditional offer of employment. Therefore, the Agency was required to provide back pay to Petitioner from the date of Petitioner's release from her position until the Agency contacted Petitioner with an unconditional offer of employment, even if Petitioner rejected the offer. The Commission reiterated that the purpose of a back pay award is to restore to Petitioner the income she would have otherwise earned but for the discrimination. In addition, the Commission recognized that precise measurement of a back pay award cannot always be used to remedy the wrong inflicted and "inherently involves some speculation," but noted that any uncertainties in a back pay determination should be resolved against the Agency that has been found to have committed the acts of discrimination. The Commission found that it was reasonable to require the Agency to provide a clear and concise "plain language" statement of the formulas and methods it used to calculate Petitioner's back pay. In this case, the Agency only provided a document which did not explain the back pay estimates and which did not match what the Agency claimed to have paid to Petitioner. Therefore, the Agency was required to provide a clear and concise statement of the method used to calculate back pay. Complainant v. Dep't of Homeland Sec., EEOC Petition No. 0420130004 (July 17, 2013).

Remedies Discussed. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of her sex when it did not select her for the position of Manager, Financial Control and Support. Following a hearing, the AJ found discrimination with regard to that issue, and ordered the Agency to pay Complainant back pay with interest for an 18-month period and $1,500 in non-pecuniary compensatory damages. The AJ limited the back pay period because Complainant testified that the Agency abolished the Manager position during a restructuring and the incumbents had to apply for new positions after that time. The Agency fully implemented the AJ's decision, and Complainant filed an appeal with respect to "her salary, her pay grade, and the amount of damages." Complainant asserted that the remedy should be modified to reflect the Agency's policies concerning reductions in force that provide for save pay and save grade.

On appeal, the Commission initially noted that the Agency must provide Complainant with make-whole relief that places her in the position she would have occupied absent the discrimination, that is the Agency must provide Complainant with all compensation, benefits, and privileges, including any "save pay" or "save grade" compensation and benefits that Complainant would have received had she been selected for the position. The Commission noted that the Agency's argument that Complainant failed to demonstrate that its policies regarding save pay and save grade would have applied to her situation misconstrued the burden of proof. Having been found to have discriminated against Complainant, the Agency bore the burden of showing that Complainant would not have been entitled to such compensation and benefits even absent discrimination. Therefore, the Commission modified the remedy ordered to clarify that make-whole relief included all save pay and save grade compensation and benefits Complainant would have received. The Agency was also ordered to determine the date on which Complainant's tenure as the Manager would have ended if she had been chosen for the position and pay Complainant back pay until that date.

With regard to non-pecuniary damages, the Commission found that the AJ's award of $1,500 was reasonable and appropriate. The record contained doctor's statements noting that Complainant was treated for "work related stressors," and needed to be absent from work to reduce stress and attend appointments. Complainant testified that her doctor prescribed medication for stress, and that she experienced problems eating and sleeping, and anxiety attacks. Complainant also stated that she was "stressed out" and sick about a number of things, including actions that the AJ found not to be discriminatory. Thus, although the evidence showed that Complainant was harmed by the discriminatory non-selection, it also established that other matters contributed to the harm. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111119 (June 28, 2013).

Remedies Discussed. In a prior decision, the Commission found that the Agency subjected Petitioner to a discriminatory hostile work environment and retaliation. The Agency was ordered, among other things, to pay Petitioner $65,000 in non-pecuniary compensatory damages, retroactively promote her to a GS-12 position, determine the appropriate amount of back pay, interest and other benefits, remove two named individuals from their supervisory roles over Petitioner, and provide 40 hours of EEO training to all management officials at Petitioner's facility. The Agency was also directed to submit a Report of Compliance to the Commission and Petitioner. Petitioner subsequently filed a petition for enforcement and clarification, stating that she was unable to determine from the redacted Report of Compliance whether compliance had been achieved. Petitioner also indicated the Internal Revenue Service (IRS) informed her that the damage award was considered taxable and was subjected to interest and penalties. The Agency stated that it did not send Petitioner an un-redacted Report of Compliance because it contained information regarding other employees that was protected under the Privacy Act.

The Commission noted that redaction of information protected under the Privacy Act, such as specific information concerning disciplinary action taken against another employee, is appropriate in an EEO Report of Compliance sent to a complainant. In the instant case, however, the Agency noted that it would not provide Petitioner with the Report, "redacted or not." The Commission stated that the Agency was required to disclose non-disciplinary information to Petitioner in the Report. The Commission set forth only four specific items that should be redacted, and instructed the Agency to re-issue the Report to Petitioner. The Commission further found that the Agency did not provide Petitioner with adequate information to demonstrate how it calculated the amount of back pay to which she was entitled. The Commission stated that the Agency must provide detailed documentation regarding its back pay calculations and use clear and concise "plain language" as to the methods of calculation. The Commission also noted that the Agency had not provided appropriate training to all management officials at the facility.

With regard to damages, the Commission noted that the IRS excluded damages from gross income only to the extent that they are compensation for emotional distress caused by physical injury or sickness, and considered damages taxable unless they are reimbursement for medical or other out-of-pocket costs. The Commission has held that it is beyond the Commission's purview to categorize an award of damages in terms of its potential federal income tax ramifications. The Commission noted that, in the underlying decision on appeal, it found that Petitioner's non-pecuniary compensatory damages were partially based on physical injuries she suffered as a result of the Agency's discrimination. Specifically, the Commission stated that Petitioner experienced mental anguish and physical injuries because of the harassment. Nevertheless, the Commission stated that it was beyond its purview to determine how much, if any of the damages awarded Petitioner should be considered taxable gross income. The Agency was ordered to re-issue the Report of Compliance with only the four redactions specified, send all information regarding back pay calculations to Petitioner, and provide training to all management officials at Petitioner's facility. Complainant v. Dep't of Commerce, EEOC Petition No. 0420110014 (January 31, 2013).

Sanctions

Dismissal of Hearing as Sanction was Proper. According to the record, Complainant was subjected to several administrative investigations and disciplinary actions over the years and had filed multiple EEO complaints. In November 2009, Complainant filed the underlying complaint of discrimination alleging that the Agency barred him from entering the facility and subjected him to harassment in reprisal for prior EEO activity. Complainant requested an administrative hearing, however, the AJ dismissed Complainant's hearing request as a sanction for contumacious conduct for, among other things, refusing to allow the Agency representative to attend depositions, directly contacting Agency employees, referencing and commenting on the Agency representative's age after being told not to do so, delaying processing of his case by sending duplicative motions, filing a criminal complaint against the Agency representative, repeatedly making harassing calls to the Secretary of the Agency, and using aggressive language. The Agency ultimately issued a final decision finding no discrimination. On appeal, the Commission found that the AJ did not abuse her discretion in dismissing Complainant's request for a hearing as a sanction. The AJ gave Complainant numerous opportunities to improve his conduct and adequately warned him about his behavior. The record contained voluminous and repetitive motions filed by Complainant which were not limited to the EEOC AJ but included civil actions. A federal magistrate judge and District Court judge warned Complainant against filing further motions. Further, the record was replete with e-mails in which Complainant threatened to "derail" the Agency representative's professional career if she did not settle his case. Complainant also did not deny the AJ's charge that he called her private cell phone after being warned not to do so. The Commission further affirmed the Agency's' finding of no discrimination, stating that management acted in conformance with relevant, applicable personnel policies and there was no evidence to suggest that the actions were motivated by Complainant's prior EEO activity. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122165 (August 27, 2013), request for reconsideration denied, EEOC Request No. 0520130671 (November 22, 2013).

Dismissal of Hearing as Sanction was Proper. Complainant filed a formal EEO Complaint alleging discrimination because of disability, age, and in retaliation for prior EEO activity. Complainant subsequently filed another formal complaint claiming that she was subjected to a hostile work environment based on disability when management twice requested additional medical documentation explaining her medical limitations and management later discussed her medical information in a meeting to consider possible work accommodations. Following an investigation, Complainant requested an administrative hearing. The AJ, however, granted the Agency's motion for sanctions and dismissed the hearing request. The AJ found that Complainant failed to submit a proposed protective order, continued to refuse to produce information requested by the Agency during discovery, and repeatedly failed to comply with four of the AJ's orders. The AJ noted that Complainant displayed a "disrespectful demeanor, obstinate disobedience, and willful stubbornness" that the Commission has defined as contumacious. The Agency ultimately found no discrimination in the matter.

The Commission found that the AJ's dismissal of Complainant's hearing request as a sanction was appropriate. Complainant repeatedly failed to reply to the AJ's orders and exhibited inappropriate conduct during discovery. While Complainant asserted that she did not have access to her Agency e-mail account, the record showed that Complainant used her e-mail account during the processing of her complaint. The record further revealed that Complainant's responses to the Agency's interrogatories were not responsive. The Commission also affirmed the Agency's finding of no discrimination. The Commission stated that an agency is permitted to seek documentation where it is necessary to determine that the individual has a covered disability for which the requested accommodation is necessary. In addition, if an employee fails to provide the documentation as requested, the employer will not be held liable for failure to provide the requested accommodation. In this case, the record reflected Complainant's opposition to providing any medical information or to describe her impairing condition, her diagnosis, or affected life activities. In addition, Complainant failed to establish that the Agency's actions were sufficiently severe or pervasive to unreasonably interfere with her work performance. Complainant v. Dep't of Justice, EEOC Appeal No. 0120121044 (August 5, 2013).

Commission Sanctions Agency by Issuing Default Judgment. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race, disability and prior EEO activity when it failed to provide him with reasonable accommodation, issued him a Leave Restriction Letter, issued him a Letter of Caution, and subjected him to a hostile work environment. At the conclusion of the investigation, Complainant requested an administrative hearing. The Agency, however, erroneously issued a final decision before a hearing was held. Complainant then withdrew his hearing request and asked that evidence obtained during discovery be included as part of the record. The AJ granted Complainant's request and ordered the Agency to issue a final decision. Despite numerous requests by Complainant, the Agency failed to issue a new decision. Complainant filed an appeal, and the Commission ordered the Agency to supplement the record with the hearing record and all evidence produced during discovery, and issue a new final decision. The Agency subsequently issued a decision finding that Complainant was not subjected to discrimination or harassment. Complainant again filed an appeal with the Commission.

The Commission issued a Show Cause Order informing the Agency that the complaint file was incomplete, and granting the Agency 20 days to submit the supplemental evidence gathered during discovery and ordered by the AJ and the Commission to be included as part of the investigative record. The Commission noted that the Agency failed to provide the supplemental information regarding Complainant's claim of harassment or an explanation as to why it did not submit the complete complaint file. The Commission stated that its regulations are perfectly clear that the Agency has an obligation to submit the complete record within a timely manner. Therefore, based upon the Agency's repeated failure to submit a complete complaint file, the Commission sanctioned the Agency by issuing a default judgment as to the hostile work environment claim. The Commission noted that Complainant alleged that management failed to protect him after he complained that he was harassed by co-workers, and presented specific examples of the harassing conduct. Therefore, the Commission concluded that Complainant would have established a prima facie case of discriminatory harassment that was sufficient to support a conclusion, by default judgment, that Complainant was entitled to relief. The Commission affirmed the Agency's findings with regard to the remaining allegations. The Agency was ordered, among other things, to notify Complainant of his right to request a hearing concerning his entitlement to relief. Complainant v. Dep't of Agric., EEOC Appeal No. 0120113592 (June 5, 2013), request for reconsideration denied, EEOC Request No. 0520130565 (December 18, 2013).

Complainant Sanctioned for Contumacious Conduct. Complainant, an applicant for employment at the Agency, filed a formal EEO complaint alleging that the Agency discriminated against him when it failed to hire him for several Legal Assistant positions. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately dismissed the complaint in its entirety with prejudice, stating that Complainant repeatedly failed to comply with his discovery obligations and engaged in a serious abuse of process. On appeal, the Commission found that the AJ's decision to sanction Complainant was proper. The record showed that Complainant initially expressed concerns about the Agency's representative, and did not respond to the Agency's requests for discovery even when ordered to do so by the AJ and repeatedly warned that the failure to do so would result in sanctions. In addition, Complainant left numerous voice mail messages for the AJ which the AJ stated were lengthy and erratic, and contained lewd and vulgar statements about Agency officials. Agency counsel also indicated that he received similar messages from Complainant, and the Agency reported these actions to the Federal Protective Services. The Commission concluded that the circumstances in the case supported the finding that Complainant engaged in contumacious conduct such that the dismissal of his complaint was appropriate. Complainant v. Dep't of Justice, EEOC Appeal No. 0120130893 (May 20, 2013).

Commission Sanctions Agency for Failure to Submit Complete Record. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of age when she was coerced to retire. Following a hearing, the AJ found that the Agency discriminated against Complainant as alleged. Upon receipt of the Agency's appeal, the Commission sent a letter to the Agency asking it to provide the complete record pertaining to the complaint within 30 calendar days. After the agency partially complied with the request, the Commission informed the Agency that documents pertaining to the hearing process and the hearing transcript were missing and requested they be submitted. When the Agency failed to provide the documents, the Commission issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed together with an order to submit the complete file within 20 days or risk the Commission drawing an adverse inference against the Agency. The Notice emphasized that the hearing record and transcript were missing from the record on appeal. The Agency failed to submit the requested documents, and responded to the request by providing documents it had previously submitted. The Commission found that sanctions were warranted based on the Agency's repeated failure to submit the complete record. The Commission noted that without the hearing transcript it was unable to determine whether the record supported the AJ's decision, and found that the most appropriate sanction for the Agency's failure to comply was to dismiss the Agency's appeal and to uphold the AJ's finding of discrimination. The Agency was ordered, among other things, to offer Complainant placement in her previous position with appropriate back pay. Complainant v. Dep't of Agric., EEOC Appeal No. 0720120026 (April 30, 2013).

Denial of Hearing Request as Sanction Was Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race, sex and reprisal for prior protected EEO activity when he was sent home and placed in off-duty status without pay and issued a notice of 14-day suspension. Complainant requested a hearing before an AJ, but the AJ denied the request on the grounds that Complainant refused to proceed with the hearing. The Agency then issued a final decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On Appeal, the Commission found that the AJ did not abuse her discretion by denying the hearing request because the record reflected that Complainant refused to proceed with the hearing. Complainant did not dispute that he failed to submit a witness list and failed to participate in a scheduled conference call. Complainant asserted that he was justified in refusing to proceed with the hearing because he had filed a motion for a decision without a hearing and there were no genuine issues of material fact. The AJ, however, denied the motions for a decision without a hearing filed by Complainant and the Agency. The Commission stated that although Complainant may have disagreed with the AJ's decision, Complainant had to proceed with the hearing once the AJ made the decision to deny the motions. The Commission found no abuse of discretion by the AJ. The Commission also affirmed the Agency's findings that Complainant failed to establish a prima facie case of reprisal because the uncontested record showed that the Supervisor was unaware of Complainant's previous EEO complaint and Complainant failed to show a nexus between the protected EEO activity in 2002 and the adverse treatment in 2009. Finally, the Commission found that the Agency articulated legitimate, nondiscriminatory reasons for sending Complainant home and issuing him the notice of suspension, and Complainant failed to prove that the Agency's reasons were a pretext for discrimination. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111948 (April 16, 2013), request for reconsideration denied, EEOC Request No. 0520130476 (October 31, 2013).

Imposition of Sanctions Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to harassment. Following an investigation, Complainant requested an administrative hearing. Prior to the scheduled hearing date, the Agency made its initial discovery requests. Complainant, who was not represented by counsel, responded by noting that the information requested had already been provided during the investigation. The record includes an e-mail from Complainant to the Agency indicating that he had subsequently spoken with the AJ and understood what he needed to provide in response to the discovery requests. Complainant then provided the Agency with his response to the interrogatories and a number of documents, as well as his response to the Agency's stipulation of facts. The Agency found that the responses were still not complete and filed a motion to compel Complainant to respond, which the AJ granted. Complainant provided his responses within the specified time frame and indicated that he had executed a release for his medical records. The Agency then filed a motion with the AJ for sanctions against Complainant, asserting that his responses were still inadequate and not responsive. The AJ determined that sanctions were appropriate, and dismissed Complainant's hearing request. The Agency issued a final decision finding no discrimination.

On appeal, the Commission found that Complainant's actions did not warrant the sanction imposed by the AJ in this case. The record showed that Complainant, who was not represented by legal counsel, repeatedly attempted to respond to the Agency's requests and provided those responses within the deadlines imposed. Complainant was frequently in communication with the Agency and the AJ regarding the interrogatories and tried to provide the information requested. Further, although the Agency continued to request additional information, it failed to clarify specifically what it was seeking from Complainant. Thus, the Commission was not persuaded that Complainant affirmatively failed to cooperate with the discovery process and the AJ's orders. The Commission also stated that it appeared there was sufficient information in the investigative report for the parties to proceed to a hearing. The Commission remanded the complaint for an administrative hearing. Complainant v. Fed. Deposit Ins. Comm'n, EEOC Appeal No. 0120122818 (February 19, 2013).

Agency Sanctioned for Failing to Provide Complete Complaint File. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race, color, age and prior EEO activity. Following an investigation, Complainant requested an administrative hearing. Over Complainant's objections, the AJ granted the Agency's motion for summary judgment and found no discrimination. Complainant then appealed the matter to the Commission. The Commission sent the Agency a letter dated July 21, 2010, asking it to provide the complete record pertaining to the complaint within 30 calendar days. The Agency partially complied by submitting a portion of the record. The Commission made several additional attempts, through e-mail, to obtain the complete file. On August 3, 2012, the Commission issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed which ordered the Agency to submit the complete complaint file or provide good cause why it could not do so by August 24, 2012. The Agency failed to respond to the Notice within the specified time frame. The Commission concluded that the Agency's repeated failure to submit the complete record, including its failure to adhere to the deadline contained in the Notice, warranted the imposition of sanctions. The Commission noted that the Agency submitted additional documentation over 100 days past the deadline in the Notice, but found that sanctions were warranted notwithstanding the late submissions. The Commission, therefore, remanded the matter for an administrative hearing. Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120102870 (January 8, 2013).

AJ's Award of Attorney's Fees as Sanction Was Appropriate. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his national origin when it did not select him for a higher-level position. Following an investigation, Complainant requested an administrative hearing. A hearing was conducted via video conference due to the remote location of Complainant and various witnesses. In the Acknowledgement Order, the AJ notified the Agency that failure to follow the orders of the AJ could result in sanctions. In addition, the AJ issued two Hearing and Scheduling Orders notifying the Agency that it was responsible for establishing and maintaining video connections for the hearing. The second Hearing Order specifically stated that the Agency should insure that it had the means to deal with any technical difficulties that could arise during the entire time the hearing was in session. Nevertheless, various connection problems arose on the first day of the hearing, and there were no information technology (IT) personnel present to assist with the difficulties. After the difficulties on the first day of the hearing, the AJ instructed the Agency to take the necessary steps to ensure that technical difficulties could be corrected on subsequent days. The AJ encountered further problems, however, on the second day and had to reschedule the hearing. The AJ again ordered the Agency to have personnel available at the sites during the entire time that the hearing was in session so that it could address and resolve any technical difficulties. The AJ notified the Agency that it would be subjected to monetary or other sanctions if there were further problems that delayed the hearing. Subsequently, the hearing was again delayed due to problems with the video connection.

The AJ issued a decision sanctioning the Agency for failing to comply with his order to have IT personnel available and to properly establish and maintain video connections. The AJ concluded that the Agency must pay Complainant's attorney's fees for the additional time and travel costs incurred because of the delays. The AJ also drew an adverse inference against the Agency for its failure to maintain interview notes, finding that had the Agency retained the notes, they would have established that Complainant's performance during the interview was comparable to the performance of the Selectee. Nevertheless, the AJ concluded that Complainant failed to show that his qualifications were so plainly superior to those of the Selectee as to compel a finding of discrimination.

On appeal, the Commission found that the imposition of monetary sanctions in the form of attorney's fees was appropriate under pertinent EEOC rules and regulations. The Commission was granted, through statute, the power to issue such rules and regulations as deemed necessary to enforce the prohibition of employment discrimination. The Commission exercised its inherent authority to enforce these regulations when it affords its AJs broad authority to conduct hearings and thereby impose monetary sanctions. In this case, the AJ issued several Orders notifying the Agency that it was responsible for establishing and maintaining video connections for the hearing, and that its failure to do so could result in the imposition of sanctions. Nevertheless, problems ensued on several days of the scheduled hearing. The Commission concluded that the AJ properly exercised his discretion and acted consistent with Commission regulations and precedent in ordering the Agency to pay attorney's fees in connection with the delays in the hearing. With regard to the adverse inference, the Commission found that the AJ clearly recognized that the Agency should have preserved the interview notes and applied an adverse inference appropriately tailored to the Agency's failure to do so. The AJ properly found, however, that other evidence presented at the hearing was sufficient to show that Complainant was not selected for the position for non-discriminatory reasons. Thus, the Commission affirmed the AJ's finding of no discrimination. The Agency was ordered to pay Complainant $3,330.88 in attorney's fees and costs incurred as a result of the delays in the hearing. Complainant v. Dep't of the Army, EEOC Appeal No. 0720120007 (November 9, 2012), request for reconsideration denied, EEOC Request No. 0520130236 (March 27, 2014).

Hearing Request Properly Dismissed as Sanction. Complainant, a former Agency employee, filed a formal EEO complaint alleging that the Agency subjected her to a hostile work environment and removed her from employment during her probationary period. Following an investigation, Complainant requested an administrative hearing. The AJ, however, subsequently dismissed the hearing request and the Agency issued a final decision finding no discrimination. On appeal, the Commission found that the AJ's actions were proper. Prior to dismissing the hearing request, the AJ issued an Order to Complainant to refrain from communicating about the complaint with Agency officials other than the designated representative. Complainant was informed of the possibility of sanctions for failure to comply with the Order. After Complainant sent additional correspondence to the Agency's General Counsel who was not the designated representative and asserted that a typographical error in the Agency's interrogatories were an attempt to avoid discovery, the AJ issued a second Order again advising Complainant that her failure to follow the Orders would result in a sanction. Complainant, nevertheless, sent correspondence concerning the complaint to the Agency's Secretary. Thus, the Commission found that the AJ properly dismissed Complainant's request for a hearing and remanded the case to the Agency for the issuance of a final decision. The Commission further found that Complainant failed to show that the alleged incidents of harassment were related to any protected basis, or that the stated reasons for her termination were a pretext for discrimination. Complainant v. Dep't of Commerce, EEOC Appeal No. 0120111951 (November 2, 2012).

Agency Sanctioned for Failure to Provide Complaint File. Complainant filed an appeal with the Commission in 2010. Complainant had filed a formal EEO complaint alleging that the Agency subjected her to ongoing harassment, including issuing her an unsuccessful performance appraisal, placing her on administrative leave, and forcing her to leave her job site. The appeal was from a final Agency decision dismissing the complaint as untimely. The Commission notified the Agency of the appeal and its requirement to submit a copy of the complaint file within 30 days. The notice indicated that the Agency's failure to submit the complaint file within the specified period could result in the Commission drawing an adverse inference. When the Agency failed to respond, the Commission contacted the Agency by electronic mail and again requested the complaint file. The Commission subsequently issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed in which it ordered the Agency to submit the complaint file within 20 days and notified the Agency that the failure to do so could result in sanctions. The Agency did not submit the record to the Commission until six days after the specified period and did not explain the delay. In addition, the Agency issued a final decision dismissing the complaint as untimely. The Commission stated that it began requesting the complaint file from the Agency in November 2010 and the Agency failed to respond to any of its requests. While the Agency finally provided the file in October 2012, it did so after the time frame required by the Notice and without any explanation for failing to submit the file for nearly two years. The Commission sanctioned the Agency by reversing the Agency's procedural dismissal of the complaint, thus denying the Agency the right to argue timeliness. The matter was remanded for processing. Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120110385 (October 15, 2012).

Settlement Agreements

No Breach of Settlement Found. The parties reached a settlement agreement in connection with Complainant's EEO complaint. The terms included a lump sum payment, restoring a number of hours of annual leave, a change in status, and an accommodation for Complainant's disability. On October 21, 2011, Complainant sent an electronic mail message to the Agency Attorney stating that he intended to withdraw from the settlement agreement, and alleging that he signed the agreement under "extreme duress and absolute confusion." The Agency notified Complainant that the settlement was being filed with an AJ as a final agreement. Complainant filed a Revocation Request on November 17, 2011. The following month, Complainant was advised by the Agency that his complaint was closed. Complainant subsequently filed an appeal to the Commission alleging that the contract was not formed properly and alternatively that the Agency breached the settlement by not providing the accommodation as quickly as orally promised during negotiations. On appeal, the Commission found that the parties entered into a valid settlement agreement with no problems regarding formation. While Complainant claimed that he was medically incapacitated and incapable of entering into the agreement, the record indicated that Complainant was able to testify for several hours at a hearing on the day he signed the agreement, and he failed to provide any medical evidence indicating that he was medically incapacitated on that day. The Commission also found that the agreement included valid consideration, and Complainant had adequate time to consider the agreement before signing. Additionally, the Commission held that the Agency was in compliance with the settlement provisions. The Agency paid the promised lump sum, provided documentation showing that it restored the appropriate amount of annual leave, changed charges of absent without leave to leave without pay, and provided the agreed upon accommodation within one week of the execution of the agreement. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121476 (July 17, 2013), request for reconsideration denied, EEOC Request No. 0520130648 (February 12, 2014).

Settlement Agreement Invalid. Complainant and the Agency agreed on the terms of a settlement agreement that provided, among other things, that Complainant would only be assigned to other work stations as needed and "determined by management in accordance with the national agreement." Complainant alleged that the Agency breached the agreement when she was repeatedly assigned to work at other work stations. Complainant appealed and the Commission found that the settlement agreement was invalid. The Agency failed to provide consideration in the settlement by agreeing to only do what the national agreement already required. The Commission ordered the Agency to process the remanded claims. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131501 (July 17, 2013).

Settlement Agreement Void. The parties entered into a settlement agreement that provided, in pertinent part, that the Postmaster would "continue with plans for cross-training" to improve the organization of duties for Agency personnel. In addition, the agreement referenced a meeting to be held in two months time, at which Complainant and a named Agency official were to review progress. Complainant alleged that the Agency breached the agreement when the meeting did not occur. On appeal, the Commission found that the agreement was void for lack of consideration. According to the wording of the agreement, the Agency agreed to continue with its plan for cross-training, which apparently was already in place, The Commission stated that, since the Agency was planning to provide cross training prior to the execution of the settlement agreement, Complainant did not receive any consideration. In addition, the wording of that particular provision did not clearly indicate what cross training would be provided or who would receive such training. The Commission also noted that the second provision regarding the meeting was merely an agreement to continue negotiating for an agreement. Thus, the underlying complaint was remanded for further processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121282 (May 22, 2013).

Settlement Agreement Void. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that Complainant would apply for a position "if and when it becomes available," and the Agency would recommend Complainant for a position "if a job becomes available." In addition, the agreement provided that in order for the agreement to "consummate," a position must become open within one week. Complainant alleged that the Agency breached the agreement when a position was not made available to her. On appeal, the Commission found that the settlement agreement was void. The language of the agreement required that a position become open before it took effect, and, thus, there was no consideration offered at the time the agreement was signed. By its very terms, the agreement was not effective until some action happened in the future. Therefore, Complainant received no consideration, and the settlement agreement was void. The Agency was ordered to reinstate Complainant's claim for processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122057 (May 15, 2013).

Breach of Settlement Found. The parties entered into a settlement agreement that provided, among other things, that Complainant would resign from the Agency, and the Agency would approve 10 days of administrative leave, pay attorney's fees and expunge any disciplinary actions from Complainant's employment record. The agreement also contained a confidentiality clause whereby the parties agreed not to disclose the terms of the agreement to any unrelated party. The Agency agreed to provide a neutral reference if contacted by prospective employers and provide only certain specified information. Complainant subsequently notified the Agency that it was in breach of the agreement when an Agency official made certain statements to the Federal Drug Administration (FDA), including stating that there was "a document that was negotiated" with Complainant that served as her letter of reference. On appeal, the Commission found that these statements constituted a breach of the settlement agreement. While the official did not explicitly state that Complainant had filed an EEO complaint which was resolved by a settlement agreement, he clearly indicated that there was a document negotiated with Complainant which provided a letter of reference. The Commission found the statement, in addition to other responses given to the FDA Official, did not comport with the confidentiality provision which limited the Agency's disclosure agreement to those officials who needed to take action pursuant to the agreement. In addition, an Agency official's comments about an illness in Complainant's family and the official's failure to comment when asked about Complainant's dependability led to a negative inference about the reasons for Complainant's resignation. The agreement allowed the Agency to provide only certain information about Complainant's employment, and the Agency exceeded the provisions in the agreement. The Commission noted that there was no cure to the Agency's breach, and ordered the Agency to provide Complainant with the option of reinstating the underlying complaint or pursuing a new claim of retaliation. Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120120698 (May 8, 2013).

Breach of Settlement Agreement Found. The parties entered into a settlement agreement that stated, in pertinent part, the Agency would pay Complainant $290,000.00, reduced by any wages earned by her for services rendered during the time period of January 1, 2012, and August 31, 2012. The Agency paid Complainant $166,319.62. Complainant alleged that the Agency breached the agreement when it deducted $18,258.16 from the amount agreed to in the settlement. On appeal, the Commission found that the Agency breached the agreement. The Agency cited several provisions from the Internal Revenue Code, and argued that because wages are recognized as earned and taxable at the time they are paid out the Agency did not breach the agreement when it deducted the $18,258.16 that Complainant received as performance pay and earnings in 2012. Complainant argued that although the subtracted amount was indeed paid in 2012, it was earned in 2011, outside the relevant period, and should not have been deducted. The Commission stated that settlement agreements, as contracts between the employee and the Agency, are interpreted using ordinary rules of contract construction and, when the language of the contract is unambiguous, the plain meaning rule is used to ascertain the parties' intent as expressed in the four corners of the instrument. In this case, the agreement stated the agreed amount would be "reduced by any wages earned by [Complainant] for services rendered during the [relevant] time period." Thus, regardless of how the IRS treats wages and earnings for tax purposes, wages earned for services rendered outside of the relevant time period should not have been used to reduce the total payment amount, even if actual payment of said wages occurred during the relevant time period. Therefore, the Agency was ordered to pay Complainant the deducted amount. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130781 (April 24, 2013).

No Breach of Settlement Found. In November, 2010, Complainant and the Agency entered into a settlement agreement which stated, among other things, that the Agency would pay Complainant a lump sum of $55,658, and Complainant "bear[ed] responsibility" for paying any taxes on that amount. In April and May 2012, Complainant contacted the Agency alleging that it was in breach of the agreement when, on February 18, 2012, she was issued a tax form from the Defense Finance Accounting Service (DFAS). On Appeal, the Commission found that Complainant failed to show that the Agency breached the terms of the settlement agreement. The Commission has held that the intent of the parties as expressed in the contract, and not some unexpressed intention, controls the contract. The settlement agreement between Complainant and the Agency expressly provided that if the Internal Revenue Service or any other state or local government determined that any of the lump sum paid to Complainant was taxable as income, Complainant would bear responsibility for those taxes. The Commission also noted that the agreement did not provide that the lump sum would be non-taxable. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120130499 (April 18, 2013).

Settlement Agreement Void for Lack of Meeting of the Minds. The parties entered into a settlement agreement that provided, in pertinent part, that Complainant would be given a lateral transfer to a different department in which her duties would be determined by the Section Manager, and Complainant would maintain her current grade and salary level. When Complainant was asked to sign paperwork necessary to effectuate the transfer, she learned that the new position would entail duties different from her previous position. Complainant refused to sign the transfer documents, asserting that the Agency breached the agreement by not allowing her to retain her previous responsibilities while assuming additional duties. On appeal, the Commission found that the settlement agreement was void because there was no contemporaneous meeting of the minds as to whether Complainant would retain her responsibilities. Complainant argued that, during mediation, the parties specifically discussed her retention of her previous duties. The Commission noted that a contemporaneous meeting of the minds is required in a binding settlement agreement, and Complainant demonstrated a lack of mutual intent by failing to sign the necessary transfer documents. Further, Complainant revoked the agreement prior to the effective date thereof. Thus, the agreement was voided and the underlying EEO complaint was remanded to the Agency for further processing. Complainant v. Dep't of Transp., EEOC Appeal No. 0120130386 (April 9, 2013).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement which provided, among other things, that Complainant would resign from the Agency, and the Agency would write a letter to the Office of Security and Law Enforcement concerning Complainant's separation. The referenced letter was included as an attachment to the agreement and stated that Complainant met the requirements for issuance of a "retired badge and credentials," and was separating from the Agency "in good standing." Complainant alleged that the Agency breached the agreement when it failed to issue him retirement credentials, and issued a form SF-50 indicating that he resigned "in lieu of inovl[untary] action." While the Agency stated that it corrected the form, Complainant asserted that the original form remained in his electronic personnel file.

On appeal, the Commission found that the Agency breached the agreement. The Commission noted that the attachment, incorporated into the agreement by reference, provided that Complainant was separating from the Agency in good standing, and Complainant's personnel records should have reflected this agreement. Therefore, any records remaining as a part of Complainant's personnel file that suggest he did not separate from the Agency in good standing would constitute a breach of settlement. Further, the Agency provided no explanation as to why Complainant's retirement credentials were withheld other than that it was a decision by its headquarters Office of Security and Law Enforcement. The Commission found that withholding a retirement badge and credentials without explanation violated the spirit of the agreement. The Commission noted that if the Agency never intended to issue the credentials, then it acted in bad faith when it agreed to issue a letter requesting them. The Agency was ordered, among other things, to take the necessary steps to remove the incorrect SF-50 and any other documentation that would suggest Complainant left the Agency under circumstances other than in good standing from Complainant's electronic personnel file, and issue Complainant his retirement badge and credentials. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130135 (February 15, 2013), request for reconsideration denied, EEOC Request No. 0520130373 (August 21, 2013).

Settlement Agreement Unenforceable. The parties entered into a settlement agreement in February 2010, which provided, in pertinent part, that the Customer Service Supervisor would not have any input in decisions regarding Complainant's duties, requests for time off or "anything else having to do with" Complainant. Complainant subsequently notified the Agency in April 2011 that it was in breach of the settlement agreement. Specifically, Complainant stated that the Supervisor interfered with his work schedule, and another official failed to monitor and enforce the agreement. On appeal, the Commission found that the agreement was unenforceable. The Commission found the Supervisor's actions in making and posting Complainant's weekly schedule were contrary to the language of the settlement agreement requiring him to have no input in decisions having to do with Complainant. Further, the Commission found that the fact the Supervisor continued to make Complainant's schedule and that Complainant did not claim this was a breach in and of itself for some time demonstrated a lack of meeting of the minds. The Commission also noted that the Supervisor had subsequently become the Acting Station Manager. Thus, any request he made for custodial services could be interpreted as a decision involving Complainant since Complainant could be called upon to perform them. The Commission found that the lack of meeting of the minds and vague language created insurmountable problems with the enforceability of the agreement. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120113559 (February 5, 2013).

Breach of Settlement Found. The parties entered into a settlement agreement which provided, among other things, that the Agency would remove a Notice of Removal from Complainant's Official Personnel File, consider Complainant to have retired in good standing, create a new Form 50 for Complainant reflecting that he retired from the Agency, and cooperate with the Office of Personnel Management (OPM) on any requests for information regarding Complainant's retirement. Complainant subsequently alleged that the Agency breached the agreement by failing to clearly communicate with OPM resulting in the rejection of his application for early retirement. On appeal, the Commission found that the Agency breached the agreement. Complainant stated that he entered into the agreement with the intention that he would be eligible for early retirement, and the record supported that assertion. The Agency acknowledged that it failed to generate a Form 50 showing that Complainant retired. The Commission rejected the Agency's assertions that it could not generate a Form 50 showing that Complainant "retired," and complied with the agreement by changing the Form 50 to reflect that Complainant "resigned." The Commission stated that the settlement agreement expressly obligated the Agency to consider Complainant retired and create a Form 50 reflecting that status. The Agency was ordered to contact OPM and indicate that Complainant had retired under an "early out" process. The Commission noted that if OPM then rejected Complainant's retirement application, the Agency should reinstate the underlying complaint for processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123013 (January 23, 2013).

Breach of Settlement Found. Complainant, a disabled veteran, was terminated from his position during a probationary period. The termination was effective February 25, 2011. Complainant performed an exit check-out on that day and was cleared by every department. Complainant filed a formal EEO complaint with regard to his termination. The parties ultimately entered into a settlement agreement which provided, in pertinent part, that the Agency would accept Complainant's resignation effective February 25, 2011, and correct his official personnel file to reflect that status. In addition, Complainant was to be treated the same as other patients while on Agency property and receive a lump sum payment of $950. Complainant subsequently alleged that the Agency breached the agreement when it failed to accept his resignation and change his personnel records, and when he was subjected to undue scrutiny by Agency police officers.

On appeal, the Commission found that the Agency breached two provisions of the settlement agreement. The record showed that the Agency sought reimbursement for a debt generated for the pay period ending April 9, 2011, due to an overpayment resulting from a "personnel change." The Commission found that this action was evidence that the Agency failed to accept February 25, 2011, as Complainant's resignation date, and ensure that Complainant's records reflected that date. The Agency did not dispute that Complainant had gone through the clearance process and was told he had been cleared of any outstanding debts as of February 25, 2011. While the Agency's finance unit may have automatically generated the debt action, this did not absolve the Agency of its duty to abide by the terms of the settlement agreement. Further, the Commission expressed concern about the Agency's reluctance to remedy the situation by waiving the debt, and its requirement that Complainant submit additional explanation or payment. The Commission noted that this requirement was not part of the settlement agreement, and the Agency's action in seeking repayment of the debt breached the agreement.

Further, the Commission found that the Agency breached the agreement when, on more than one occasion, the Agency's Police Officers monitored and followed Complainant when he came to a facility for medical treatment. The Police detained Complainant because they viewed him not as a patient but as a former employee. While Complainant requested that his complaint be reinstated, the Commission noted that action would require him to return any benefits received, such as the lump sum payment, and would not provide him with the benefit of specific performance of the terms of the agreement. Thus, the Agency was ordered to provide proof that it had accepted Complainant's resignation effective February 25, 2011, reimburse Complainant for any payments made or benefits lost as a result of the April 2011 notice of overpayment, absolve Complainant of any debts claimed after February 25, 2011, and afford Complainant the same treatment that it provides other patients while of Agency property. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113963 (December 7, 2012).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement which provided, in pertinent part, that Complainant's Supervisor would conduct a Stand-up Talk with employees to clarify exceptions to the Agency's policies for disabled employees. On appeal, the Commission found that the Agency breached the agreement when the Supervisor, rather than conducting the Stand-up Talk, told employees they could come to her in private if they wanted information about policy exceptions. The agreement specified that the discussion of exceptions was to be held as part of a Stand-up Talk and not conducted in private. While the Commission found the Supervisor's desire to maintain the privacy of employees commendable, it noted that the goal could have been met by addressing exceptions by hypothetical situations and then telling employees that specific questions could be addressed to the Supervisor in private. The Commission presumed that since the requirement for the Stand-up Talk was included in the agreement, it was important to Complainant to have all employees hear and learn about the exceptions. The Commission noted that the Agency complied with another provision of the agreement requiring the Supervisor to undergo training. As such, reinstatement of the underlying complaint would provide Complainant with the benefit of allowing her to continue with her complaint while the Agency partially complied with the agreement. Therefore, the Commission ordered specific performance of the provision of the agreement concerning the Stand-up Talk. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120113147 (November 20, 2012).

Breach of Settlement Found. The parties entered into a settlement agreement which provided, in pertinent part, that the Agency would cancel a one-day suspension and provide Complainant with back pay for wages and benefits lost as a consequence thereof; correct Complainant's pay records to show that she was present on a specific date and not absent-without-leave, and pay her for wages and benefits lost; and pay Complainant $32,500 in compensatory damages. The agreement also provided that the Agency would submit the necessary paperwork for the back pay and damages. After learning that the Agency had reported the payments to the Internal Revenue Service (IRS) as "non employee compensation," Complainant alleged that the Agency breached the agreement.

On appeal, the Commission initially rejected the Agency's assertion that Complainant's appeal should be dismissed because she failed to notify the Deputy Assistant Secretary for Resolution Management of her breach claim. The record showed that Complainant sent a letter to the "EEO Manager" of the Office of Resolution Management stating that she believed the Agency was not complying with the agreement. Thus, Complainant was in substantial compliance with the terms of the agreement for notifying the Agency of a breach claim.

With regard to the actual breach allegation, Complainant was seeking implementation of the provision requiring that the necessary paperwork reflect her status as an employee and the payment be made to her as an employee for lost back pay, wages, benefits and damages. The Commission stated that it was clear from the wording of the agreement that the nature of the payments provided to Complainant directly arose from her status as an employee, and the Agency's representation to the IRS of the payments as "non-employee compensation" was inconsistent with the terms of the agreement. While the agreement specifically provided that the Agency made no representations as to the tax consequences of the payment that provision did not permit the Agency to incorrectly report the nature of the payment to the IRS to Complainant's detriment. The agreement required the Agency to submit the necessary paperwork to effectuate the terms expressed in the agreement, and the paperwork should have accurately reflected payment to Complainant as an employee. Thus, the Agency was ordered to provide Complainant with an accurate and corrected IRS form that reflected the monies provided under the agreement as "Other Income." Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113923 (November 19, 2012).

No Breach of Settlement Found. The parties entered into a settlement agreement on March 11, 2011, which provided, in pertinent part, that two named management officials would meet with Complainant and a representative within 30 days to discuss the matters raised in her complaint. Complainant alleged that the Agency breached the agreement when it failed to meet with her within the 30-day time frame. According to the record, a letter was delivered to Complainant on April 26, 2011, notifying her that a meeting had been scheduled for April 29, but Complainant failed to appear for the meeting. The Plant Manager telephoned Complainant's work area and Complainant's Supervisor stated that she told him she was not going to attend the meeting. On appeal, the Commission found that the Agency substantially complied with the agreement by scheduling the meeting a little over two weeks after the 30-day time limit set forth in the agreement. The Commission found no indication that the Agency acted in bad faith in failing to meet the 30-day time limit or that the two week delay undermined the intent of the agreement. The Commission noted that Complainant chose not to attend the meeting. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120113710 (January 30, 2013).

Settlement Agreement Void. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that Complainant would be considered for the next available AMS position and training, and that management "should use the resources available" to perform Carrier duties. Complainant alleged that the Agency breached the agreement when it failed to create a new AMS position. The Agency countered that there has not been a vacancy or opportunity to provide Complainant with training. On appeal, the Commission found that the agreement was void for lack of consideration. With regard to the first provision, the Commission noted that the Agency could avoid its contractual duties by simply deciding not to create a new AMS position. Therefore, any consideration offered to Complainant was illusory. Further, the Commission noted that since the condition precedent to the Agency's obligation to consider Complainant for an AMS position did not materialize, that is there was no need to create a new AMS position, the Agency was not required to do anything in exchange for Complainant's withdrawal of her EEO complaint. Finally, the Commission stated that the language was too vague to enforce in that anyone who applied for a position could be said to be "considered" even if they were not qualified and were rejected. Thus, the Agency did not promise Complainant anything beyond what it was already obligated to do. The Commission found that the second provision of the agreement was also void, because the Agency had again promised nothing beyond what it was already obligated to do. The Agency was ordered to reinstate the underlying complaint for processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120113156 (November 6, 2012), request for reconsideration denied, EEOC Request No. 0520130169 (May 23, 2013).

Stating a Claim

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

Complainant v. Dep't of the Army, EEOC Appeal No. 0120132195 (September 9, 2013) (the Agency improperly dismissed Complainant's complaint alleging that it discriminated against him when it cancelled a vacancy announcement for which he applied. Generally, a Complainant suffers no personal harm when an Agency cancels a vacancy announcement without making a selection. In this case, however, Complainant asserted that the Agency cancelled the vacancy announcement in order to prevent him from being considered for selection for discriminatory reasons).

Complainant v. Dep't of the Army, EEOC Appeal No. 0120131959 (August 22, 2013) (Complainant stated a viable claim of disability discrimination with regard to the Agency's failure to extend his overseas tour. Complainant was initially granted an extension of his overseas tour, and, as such, had a benefit or privilege of employment taken away from him when he was told he would have to return to the United States. In addition, by alleging discrimination because of his son's emotional condition, Complainant raised a protected basis in his complaint).

Complainant v. Dep't of the Interior, EEOC Appeal No. 0120121354 (August 13, 2013) (Complainant's claim that Agency officials purposely obstructed her ability to apply for internships stated a viable claim of sex discrimination and reprisal. Complainant stated that her complaint was based on sex stereotyping, and during prior internships, management took actions based on their perception of her sex and whether she conformed to certain stereotypes. Despite the Agency's assertions, the Commission has held that lesbian, gay, bisexual, and transgender individuals may bring claims of discrimination under Title VII in certain circumstances, including sex stereotyping).

Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120131695 (July 31, 2013) (the Agency improperly dismissed Complainant's claim of retaliatory harassment. Complainant asserted that, following a meeting with an Agency official in a matter for which Complainant served as an EEO representative, the official held a "formal investigatory meeting on the usage of EEO time" with Complainant during which Complainant was led to believe he would be subject to disciplinary action and "drilled with questions." The Commission noted that the matters raised in the complaint did not address Complainant's status as an EEO representative, but were primarily focused on actions taken against him as an employee).

Complainant v. Dep't of Argic., EEOC Appeal No. 0120131558 (July 25, 2013) (Complainant's claim that the Agency delayed making a final decision on her desk audit stated a viable claim of discrimination. Complainant was not challenging a determination by the Office of Personnel Management on a classification appeal, but was rather alleging that the Agency purposely delayed making the final decision to discriminatorily deny her an upgrade).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131477 (July 19, 2013) (Complainant's claims that he was assaulted by his Supervisor and that the Agency failed to investigate the incident stated a viable claim of retaliatory harassment. Complainant stated that when he told the Supervisor he was assisting a coworker with an EEO form the Supervisor grabbed Complainant's hands causing him great pain. Complainant asserted that there was a long history of retaliatory animus because of his history representing other employees).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131661 (June 26, 2013) (the Agency improperly dismissed Complainant's complaint of race discrimination and harassment involving the reinstatement of a co-worker. Complainant was part of a group of African-American employees who filed complaints over the co-worker's reinstatement. According to the Counselor's report, the co-worker had previously been terminated after being charged with having racist material and offensive political posters in her work area and found to have violated the Agency's "Zero Tolerance Policy" for racial discrimination. She was later reinstated pursuant to a grievance resolution. Complainant alleged that the co-worker kept racist material at her work station for a long time and management did nothing to address the matter. The Commission rejected the Agency's assertion that Complainant was not harmed by the return of the co-worker to the same workplace where she had kept racist materials for an extended period. The Commission stated that an Agency cannot use a grievance settlement as an excuse to allow a racially hostile work place).

Complainant v. Dep't of Justice, EEOC Appeal No. 0120110412 (June 28, 2013) (the Agency improperly dismissed Complainant's complaint of discrimination because the record showed that the Agency exercised sufficient control over Complainant's position to establish a de facto employer-employee relationship. During their eight-month working relationship, the Agency controlled the means and manner of Complainant's performance, supervised his work, furnished the equipment used and place of work, and had the authority to terminate him. While the Agency did not provide Complainant with leave or benefits, or pay social security, the work Complainant performed was an integral part of the Agency's law enforcement mission); see also, Complainant v. Dep't of the Army, EEOC Appeal No. 0120120751 (June 24, 2013) (the Agency exercised sufficient control over Complainant's position to qualify as a joint employer for purposes of the EEO complaint process. Complainant worked as a Video Editor for an Agency contractor. The Agency did not pay Complainant directly, or provide her with leave, benefits, or pay social security, and the type of job and skill required reflected more of a contractor relationship. Nevertheless, Complainant performed her job at an Agency facility using Agency equipment, and was supervised by an Agency employee for a period of time); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120131148 (June 11, 2013) (the Agency improperly dismissed Complainant's complaint of discrimination on the grounds that she was not an employee or applicant for employment. Complainant's job was professional in nature, the area in which she worked was not the mission of the Agency, and the Agency did not provide Complainant with benefits. Complainant, however, was not supervised by the contractor and Complainant stated that an Agency Manager gave her assignments. The record also showed that Complainant sought assistance or clarification from the Agency, the Agency controlled where and when Complainant performed her job, Complainant worked on Agency premises, and the Agency provided her with the necessary equipment. The contractor stated that its decision to terminate Complainant was based on feedback from the Agency on Complainant's performance. Thus, the Agency had significant input into the termination decision, and exercised sufficient control over Complainant's position to qualify as her employer for purposes of the EEO complaint process); Complainant v. Broad. Bd. of Governors, EEOC Appeal No. 0120122211 (June 11, 2013) (the Agency exercised sufficient control over Complainant's position to qualify as her employer for purposes of the EEO complaint process. Complainant worked in Video Editing Services at the Agency. Complainant worked pursuant to a purchase agreement, did not receive benefits from the Agency, and was not considered an employee for purposes of social security. Complainant, however, had been working at the Agency continuously since 2006, the Agency set her assignments, the work she performed was essential to the Agency's mission, and the Agency could terminate the relationship with Complainant whenever it chose to do so. Complainant also performed her work at the Agency's workplace, used Agency equipment, followed Agency dictated protocols provided by Agency supervisors, received assignments from Agency supervisors, and had her work shifts and hours set by the Agency); Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120114091 (February 5, 2013) (the Agency improperly dismissed Complainant's claim of discrimination for failure to state a claim on the grounds that he was not an Agency employee. Complainant stated that he was supervised on a daily basis by Agency managers, and that there was no difference between direct-hire and contractor anesthesiologists within the department. The Agency provided Complainant with his assignments, conducted weekly case conferences, set the schedule, verified time sheets, and provided him with equipment and supplies. Complainant was paid on an hourly basis and worked for the Agency for nearly four years. While the Agency did not pay taxes for Complainant or provide him with benefits, the record showed that the Agency had sufficient control over Complainant's position to qualify as his employer or joint employer for purposes of the EEO complaint process); Complainant v. Dep't of the Army, EEOC Appeal No. 0120112643 (January 24, 2013) (Complainant was hired under a contract with a private contractor, and the Agency did not provide him with the materials to perform his job or any leave or benefits. The Agency, however, directly supervised Complainant, and controlled his work hours, duty responsibilities and leave requests; Complainant's position did not require a high level of skill or expertise; his relationship with the Agency lasted approximately one year; he was paid at an hourly rate; and the Agency had unfettered control over the decision to terminate Complainant. Thus, the Agency exercised sufficient control over Complainant's position to be rendered a joint employer); Complainant v. Dep't of Def., EEOC Appeal No. 0120114324 (December 18, 2012) (An Agency employee was identified as Complainant's Supervisor and approved her leave. Complainant stated that the Agency Supervisor directed her performance and the Agency had the right to assign her to additional projects. The Agency conceded that it provided Complainant with the necessary equipment and facilities to perform her work, and Complainant's work was part of the Agency's regular mission. Complainant was paid a salary and was terminated by the Agency. While the Agency did not provide Complainant with benefits or withhold taxes, the Agency exercised sufficient control over Complainant's position to qualify as her employer for purposes of the EEO complaint process); Complainant v. Dep't of the Army, EEOC Appeal No. 0120103315 (December 19, 2012) (The Agency controlled the means and manner of Complainant's daily performance; Agency employees were actively involved in Complainant's hiring and termination; the Agency provided Complainant with all necessary equipment, materials and supplies; and the Agency set Complainant's work schedule and paid her an hourly rate. While Complainant was hired to perform services under a contract, and did not receive benefits from the Agency, an examination of all the evidence of the working relationship between the parties showed that the Agency exercised sufficient control over Complainant's position to establish a de facto employer-employee relationship such that it was a joint employer).

Complainant v. Dep't of the Army, EEOC Appeal No. 0120131039 (May 23, 2013) (Complainant's claim that a co-worker hugged her and grabbed her breast stated a viable claim of sexual harassment. The Commission noted that, regardless of whether Complainant used the term sexual harassment or sexual assault, the alleged action, if proven true, was sufficiently severe to state a claim. The Agency's arguments concerning the criminal investigation of the incident and management's response to the situation addressed the merits of the complaint and were irrelevant to the procedural issue of whether Complainant presented a justiciable claim).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130992 (May 21, 2013) (the Agency improperly addressed Complainant's claims individually to determine whether the matters were severe and pervasive enough to constitute a hostile work environment, and should have instead amended Complainant's pending harassment complaint. Further, with regard to Complainant's allegation that her Supervisor repeatedly referred to her as "he," the Commission noted that supervisors and co-workers should use the name and pronoun of the gender the employee identifies with in communications with and about the employee, and the intentional misuse of the employee's name and pronoun may constitute sex based discrimination or harassment).

Complainant v. Gen. Serv. Admin., EEOC Appeal No. 0120130778 (May 8, 2013) (Complainant's claim that an Agency official, during a leadership meeting, mentioned that Complainant had filed an EEO complaint stated a viable claim of retaliation. Complainant's prior complaint was pending a hearing at the time of the comment, and the tone of the comment was purportedly negative. The Commission concluded that revealing and discussing Complainant's pending EEO complaint with management officials from another region was an action that would be reasonably likely to deter protected EEO activity).

Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120130255 (March 20, 2013), request for reconsideration denied, EEOC Request No. 0520130487 (November 15, 2013) (Complainant's claim that the Agency discriminated against him with regard to the treatment of his service dog at an Agency lodging facility stated a viable claim. Complainant, an Inspector General, was on assignment when he was required to go to the Agency lodging facility, and the facility was only available to employees, dependents of employees, and veterans. Thus, access to the facility was considered a privilege of employment, and Complainant asserted that the Agency created a barrier to this privilege when he was required to repeatedly provide certification for his service animal).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130031 (February 22, 2013) (Complainant's claim that the Agency revealed his personal medical information to co-workers and told them he had "mental issues" stated a viable claim. The Commission's regulations implementing the Rehabilitation Act provide for the confidentiality of medical records, and documentation or information of an individual's diagnosis is without question medical information that must be treated as confidential except in certain circumstances. Therefore, Complainant's allegation of unlawful medical disclosure must be investigated before a decision can be made on the merits of the claim).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122376 (February 19, 2013) (Complainant's claim that the Agency dismissed her from new hire orientation and withdrew a job offer stated a viable claim of sex discrimination. Complaints of discrimination based on transgender status should be processed under Title VII and through the federal sector EEO process as claims of sex discrimination. Thus, Complainant's claim that she was discriminated against because of her transgender status stated a claim under Title VII).

Complainant v. Envtl. Prot. Agency, EEOC Appeal No. 0120123476 (February 1, 2013) (Complainant's allegation that he was subjected to an investigation by the Agency's Inspector General stated a viable claim of retaliation. The action could dissuade a reasonable employee from making or supporting a charge of discrimination, and, if proven true, could have a chilling effect on EEO participation).

Complainant v. Dep't of Veterans Affairs, EEOC Appeal Nos. 0120120075 & 0120122771 (January 4, 2013) (Complainant alleged a series of sexual overtures by an Agency Director, followed by allegations of professional misconduct after they were rebuffed, as well as a series of denied or withdrawn professional opportunities. When considered together and viewed in a light most favorable to Complainant, the allegations were sufficiently severe or pervasive to state a viable claim of discriminatory harassment. In addition, the allegation contained in a second complaint concerning the termination of her appointment was entirely related to the first complaint such that the complaints should be investigated together in order to avoid fragmentation).

Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122790 (December 13, 2012) (Complainant's allegation that the Agency issued her a notice of proposed termination stated a viable claim of retaliation. The Commission has held that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms, conditions or privileges of employment to constitute retaliation, and being issued a proposed removal would likely deter a person from engaging in protected EEO activity).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120120039 (December 5, 2012) (Complainant's assertion that she was placed on administrative leave for approximately two months stated a viable claim of sex discrimination and reprisal. Under certain circumstances, placement on paid administrative leave for brief periods would not result in harm sufficient to state a justiciable claim. In this case, however, Complainant claimed a personal loss or harm regarding a term, condition, or privilege of her employment given her extended absence from the work site, the fact that she alleged a loss of overtime opportunities while on administrative leave, and the fact that she asserted that her reputation was "dishonored" while she was on leave).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120113378 (November 21, 2012) (Complainant's allegation that the Postmaster gave better work hours and assignments to a younger female clerk to whom he was sexually attracted stated a viable claim of discrimination. The Commission has taken the position that sexual favoritism in the workplace which adversely affects the employment opportunities of a third party may, under certain circumstances, constitute sexual harassment. While Complainant checked only the box for age discrimination on the complaint form, the Commission found implicit in her complaint, a claim of sexual favoritism where she was alleging she was disadvantaged because she is an older woman).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121385 (November 16, 2012) (Complainant's allegation that an Acting Manager verbally assaulted her on one occasion using racial slurs and profanity, when considered with her statement that prior incidents of alleged racial slurs and profanity were not addressed by management, stated a viable claim of discriminatory harassment).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120112902 (November 15, 2012) (Complainant's allegation that his Supervisors threatened to put him off the clock and instructed him to move his vehicle from a "visitors" parking space designated for individuals with disabilities stated a viable claim of disability discrimination. While the Agency asserted that it was in compliance with the Architectural Barriers Act, the Commission noted that the Rehabilitation Act places different requirements on the Agency. Complainant alleged that the Agency failed to provide him with reasonable accommodation in the form of a parking space designated for individuals with disabilities. The Agency's assertions concerning the Architectural Barriers Act addressed the merits of the complaint without a proper investigation).

Complainant v. Dep't of the Navy, EEOC Appeal No. 0120122234 (October 10, 2012) (the Agency improperly dismissed Complainant's claim that Agency officials retaliated against him for prior EEO activity when they maintained memorandums of record pertaining to alleged performance issues. While the Agency provided the documents to an EEO Investigator during the investigation of a prior complaint, the documents were not mere statements provided as part of an affidavit in another EEO case, and the Agency asserted that it maintained the memoranda for the record in a locked cabinet in the Supervisor's office. As such, the matter was reasonably likely to deter Complainant or others from engaging in protected activity. The Agency properly dismissed two issues concerning statements made by Agency officials solely as part of the investigation of a prior EEO complaint).

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

Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120130942 (May 23, 2013) (the Agency properly dismissed Complainant's complaint of discrimination for failure to state a claim on the grounds that Complainant was not an employee or applicant for employment. Complainant was employed by a private contractor. While an Agency employee determined Complainant's schedule, and made general assignments, Complainant was not directly supervised by an Agency official, was paid by the contractor, did not earn leave from the Agency, and did not perform work integral to the Agency's mission. In addition, the intentions of the parties reflected that Complainant was not an employee. Thus, the Agency did not exercise sufficient control over Complainant's position to qualify as her employer or joint employer) see also, Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120132014 (September 17, 2013) (although a number of factors pointed to a joint employment relationship, the contractor provided Complainant with benefits, paid his wages and withheld taxes. Further, while the Agency decided it no longer wanted Complainant's services, Complainant continued to be employed by the contractor at a different location. Thus, the Commission found that the Agency did not have the power to terminate Complainant's employment and was not a joint employer); Complainant v. Dep't of Energy, EEOC Appeal No. 0120131268 (July 17, 2013) (although Complainant worked at an Agency facility using Agency equipment, he acknowledged that the Agency exercised minimal control over the means and manner of his performance, and the contractor set Complainant's work hours, made his assignments, provided his leave and retirement benefits, and withheld Complainant's taxes. Therefore, the Agency did not exercise sufficient control over Complainant's position to qualify as his joint employer); Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121972 (February 21, 2013) (Complainant was a senior nursing student at Loyola University. The agreement between the Agency and the University provided that the University would select trainees for the program, evaluate their performance and conduct. While the Agency provided supervision for the trainees and had the power to dismiss them, it did not provide Complainant with any monetary compensation, leave, or benefits, and Complainant did not receive any such compensation from the University. Therefore, Complainant failed to show that he was an employee of the Agency, and the Agency's intent was to train him as a student. Complainant did not indicate that he intended to create an employment relationship); Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120123560 (February 19, 2013) (the Agency did not exercise sufficient control over Complainant's job to qualify as her employer for purposes of the EEO complaint process. Complainant, a psychologist worked as a Medical Consultant on Agency premises, and the Agency provided her with equipment. She worked for the Agency for a period of approximately seven years doing work central to the Agency's mission, and the Agency terminated the Blanket Purchase Agreement under which she was working. Nevertheless, Complainant worked independently, and the Agency did not routinely review her work or complete performance appraisals. Complainant set her own hours, and could have outside employment. Complainant was paid based upon the number of reports she submitted, and was not provided with leave or benefits); Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120123477 (February 19, 2013) (The record showed that Complainant worked as a government contractor and the Agency did not control the means and manner of his daily work performance and did directly supervise his work. Complainant was assigned to the Agency as a "task managed" employee whereby he was hired, supervised, and directed by the contractor, and his work was not an integral part of the Agency's business. The contractor provided most of Complainant's initial training, and made the decision to suspend and subsequently terminate Complainant. The contractor was also responsible for Complainant's work schedule, salary, leave, benefits and tax documentation. Thus, the Agency did not exercise sufficient control over Complainant's position to establish a de facto employment relationship); Complainant v. Dep't of the Army, EEOC Appeal No. 0120122211 (November 8, 2012) (the Agency properly dismissed Complainant's complaint because the record showed that the Agency did not exercise sufficient control over Complainant's position to qualify as her employer or a joint employer. While Complainant worked on Agency premises using Agency equipment and the Agency had some control over her hours, the record did not show that the Agency supervised her work and her performance evaluation was done by the contractor with little input from the Agency. The Agency also did not pay Complainant and did not provide her insurance or training); Complainant v. Dep't of the Navy, EEOC Appeal No. 0120103404 (October 10, 2012), request for reconsideration denied, EEOC Request No. 0520130129 (May 7, 2013) (the underlying complaint of discrimination was properly dismissed because the weight of the evidence showed that the Agency did not exercise sufficient control over Complainant's job to qualify as an employer or joint employer for purposes of the federal sector EEO process. Despite the fact that the Agency provided Complainant with a workstation with a government issued computer and there was a continuing relationship between Complainant and the Agency, those factors did not outweigh the other factors, including the fact that Complainant was directly supervised by an employee of the contractor, was paid and had his leave approved by the contractor, and did not perform work that was an integral part of the Agency's mission, which indicated that Complainant was not an employee of the Agency).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130752 (April 17, 2013) (Complainant's claim that the Agency deducted money from her pay and applied it to an Agency debt failed to state a viable claim of discrimination. The incident related to a claim under the Debt Collection Act. The Commission has found that such actions are not within the scope of the EEO complaint process and the Commission's jurisdiction); see also, Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130801 (April 26, 2013) (Complainant's allegation that he was asked to sign debt collection paperwork without a union representative failed to state a viable claim. Challenges to an Agency's actions under the Debt Collection Act are not within the Commission's jurisdiction, and Complainant's assertion that he was denied a union representative constituted a collateral attack on another proceeding).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130222 (February 25, 2013) (Complainant's claim that the Agency discriminated against him when it failed to enforce a grievance arbitration decision failed to state a claim pursuant to the EEOC's regulations. The Commission has consistently held that an employee cannot use the EEO complaint process to lodge a collateral attack on another forum's proceeding, and Complainant must seek enforcement of the arbitration decision within the negotiated grievance process).

Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120121561 (January 9, 2013) (Complainant's claim that the Agency discriminated against him on the bases of his race, sex and color when his Supervisor verbally counseled him and placed him on a list of "problem employees" did not state a viable claim under Title VII. Complainant did not allege that any adverse action was taken as a result of the verbal counseling, and provided no explanation concerning the nature of the purported list or how he was negatively impacted by it).

Complainant v. Dep't of the Army, EEOC Appeal No. 0120122949 (December 12, 2012), request for reconsideration denied, EEOC Request No. 0520130262 (May 31, 2013) (the Agency properly dismissed Complainant's claim that the Agency, on two occasions, did not approve him to serve as another employee's representative. While an employee alleging discrimination may select the representative of his or her choice, it is the aggrieved employee and not the representative who has standing to file a complaint concerning an Agency's actions affecting the duties of the representative. The Commission noted that the other employees may file a complaint over the denial of permission for Complainant to serve as their representative, but Complainant may not do so).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131454 (July 17, 2013) (Complainant's claim that he was discriminated against when his start time was moved ahead one hour did not state a viable claim. A one hour change was not sufficient to render Complainant aggrieved); see also, Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120120642 (November 5, 2012) (the Agency properly dismissed Complainant's complaint concerning the denial of her request to change her start time from 7:30 am to 7:15 am. Complainant failed to show that she was harmed by the denial of a 15 minute start time on one day, and did not assert that she had to use leave or was late to her medical appointment).

Complainant v. Dep't of the Navy, EEOC Appeal No. 0120122288 (October 23, 2012) (Complainant's complaint of discrimination with regard to matters that occurred at the Agency's Navy Exchange in Italy was properly dismissed. Complainant, who was not a U.S. citizen, worked in a position located outside the limits of the United States, and the EEOC's regulations expressly do not apply to non-citizens in such positions).

Summary Judgment

Summary Judgment Not Proper. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (pregnancy). When she was pregnant, she suffered frequent bouts of morning sickness and hyperemesis. Complainant asked for unpaid leave due to these conditions because she had already used her family medical leave and sick leave taking care of a family member. She eventually became eligible and applied for more leave under the Family and Medical Leave Act. Her Supervisor required medical notes from a doctor for every day she was absent. Complainant and her doctor felt that this request was overly burdensome because her pregnancy was chronic in nature. Complainant still entered numerous medical records/absence excuses into the record. The Supervisor rejected many of the notes as insufficient, charged Complainant with being Absent Without Leave (AWOL) for 21 days, and issued Complainant a leave restriction letter. An AJ granted summary judgment for the Agency, finding that Complainant provided no credible evidence that she was treated differently or less favorably than similarly situated males or other employees in similar circumstances.

On appeal, the Commission found that the record was not adequately developed for summary disposition because it was missing relevant policies and procedures for evaluating leave without pay requests due to medical reasons. Further, the record contained no testimony or evidence about how Complainant's Supervisor scrutinized the medical documents of other temporarily disabled employees. The Commission noted that this evidence was necessary to evaluate whether the Supervisor treated Complainant and other pregnant employees the same as employees with comparable temporary disabilities. The Commission noted that one of Complainant's coworkers stated that she experience similar treatment by management and was made to feel she was lying about her pregnancy-related morning sickness. Thus, the Commission stated that the record should also include testimony from management about their views and attitudes on pregnancy-related medical conditions. The complaint was remanded for an administrative hearing. Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120111333 (August 21, 2013).

Summary Judgment Proper in Sex Stereotyping Case. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of sexual orientation when it demoted her and issued her a letter of reprimand. Following an investigation, an AJ issued a decision without a hearing. The AJ found that the claim was within the Commission's jurisdiction because Complainant was alleging that the Agency treated her differently because she did not conform to sexual stereotypes. Nevertheless, the AJ concluded that Complainant failed to establish that she was subjected to discrimination. The Agency rejected the AJ's decision, stating that the Commission did not have jurisdiction over claims of sexual orientation discrimination.

On appeal, the Commission initially found that the AJ was correct in determining that the Commission had jurisdiction over the complaint. The Commission has previously found that, if the allegations state a viable claim of sex discrimination, the fact that Complainant characterized the basis of discrimination as sexual orientation would not defeat an otherwise valid claim. Further, the Commission has recognized the viability of sex stereotyping claims. In this case, Complainant alleged that her Supervisor was motivated by his attitudes about stereotypes that women should only have relationships with men. Thus, Complainant's allegations were sufficient to state a claim that she was discriminated against for failure to match gender-conforming behavior. Nevertheless, the Commission concluded that the AJ correctly issued a decision without a hearing, and found no discrimination. The Agency articulated legitimate, nondiscriminatory reasons for its actions, specifically Complainant's performance and conduct, and Complainant failed to show that the Agency's reasons were a pretext for sex discrimination. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720130012 (May 7, 2013).

Summary Judgment Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior EEO activity when her access into the Main Interior Building (Building) was withdrawn, which resulted in the revocation of her security clearance. According to the record, Complainant filed prior EEO complaints against the former Director of Human Resources and her first level Supervisor. Following an investigation, the AJ granted the Agency's motion for a decision without a hearing. The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for withdrawing Complainant's access to the Building, specifically that there was an investigation pending regarding an incident involving Complainant and another employee, and that Complainant failed to proffer specific evidence to create an issue regarding whether the reason for withdrawing access was pretextual or motivated by retaliatory bias.

On appeal, the Commission found that the record had been adequately developed, and Complainant responded to the Agency's motion. The Commission determined there were no genuine issues of material fact, concluding that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor. While Complainant disputed the Agency's assertions that she was disorderly and irate, she did not dispute that the information was conveyed to an Agency Director who had no direct knowledge of what occurred. Accordingly, the Commission found that Complainant did not produce evidence to dispute the Agency's assertion that her access was revoked based on the reasonable and good faith belief that she had engaged in disruptive conduct. Complainant acknowledged, in her opposition to the Agency's motion for summary judgment that the Director did not discuss his plans with her Supervisor. Thus, Complainant's assertions about her Supervisor's participation in a subsequent inquiry did not create a factual dispute about whether the Director's decision was motivated by retaliatory animus. The Commission concluded that Complainant failed to establish the existence of a genuine issue of material fact, and that the AJ properly granted the Agency's motion for summary judgment. Complainant v. Dep't of the Interior, EEOC Appeal No. 0120110493 (April 19, 2013).

Summary Judgment Improper. Complainant, a male, hearing impaired Mail Equipment Operator, filed a formal complaint alleging that the Agency discriminated against him based on his sex and disability when it placed him on emergency placement off-duty status (emergency placement) and denied his request for reasonable accommodation during a disciplinary meeting prior to placement. The Agency's summary judgment motion was granted by an AJ. The AJ found that the Agency provided legitimate nondiscriminatory reasons for requiring that Complainant go on emergency placement, given Complainant's involvement in an accident, his hostile behavior in response to his Manager's questions, and the Manager's evaluation of Complainant's behavior as threatening. Second, the AJ determined that Complainant's allegation that he was denied reasonable accommodation was unsubstantiated because Complainant did not dispute that the Agency provided an interpreter for him. The AJ reasoned that (1) the Agency was not required to provide a "certified" interpreter to Complainant, (2) a "certified" interpreter was unavailable during emergency placement, and (3) the Agency assigned a sign language interpreter to Complainant during a subsequent meeting. Therefore the AJ found that, Complainant was afforded comprehensive understanding through sign language interpretation which, when coupled with Complainant's hearing aid and his ability to read lips, constituted a reasonable accommodation. Since Complainant did not attempt to prove that the Agency's actions were pretextual, the AJ found that the Agency neither denied Complainant reasonable accommodation nor discriminated against Complainant.

On appeal, the Commission found that the AJ erred in granting the Agency's motion for summary judgment because there were issues of material fact that differentiated each party's claim. Complainant and Agency presented different reasons for Complainant being placed on emergency placement. Complainant's Manager attested that Complainant was placed on emergency placement because he responded to her inquiry about an accident with threatening looks. In contrast, Complainant stated that his Manager was aggressive toward him because of his hearing disability. Facts were also in dispute regarding Complainant's second allegation, that the Agency did not provide reasonable accommodation to him during the disciplinary meeting. Complainant asserted that he had multiple limitations when using his hearing aid and had difficulty communicating and understanding various actions during the meeting. Therefore the Commission concluded that there was sufficient evidence that directly contradicted the Agency's position to raise an issue of material fact regarding whether the Agency provided Complainant with reasonable accommodation. The Commission found that a hearing was necessary to reconcile the conflicting evidence. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120114158 (April 18, 2013).

Summary Judgment Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race, sex (sexual orientation), disability, and prior EEO activity when he was harassed when he returned to work following a leave of absence. Following an investigation, Complainant requested a hearing before an AJ. The AJ issued a decision on summary judgment. The AJ initially dismissed the basis of sexual orientation, but found the basis of sex appropriate to address Complainant's allegations concerning stereotypically gay gestures and references to Complainant as "flamboyant." The AJ ultimately stated that Complainant was not substantially limited in a major life activity, and did not establish a causal connection between his prior EEO activity and the actions at issue. Finally, the AJ concluded that Complainant failed to allege actions that rose to the level of a hostile work environment, or show that the actions were discriminatory.

On appeal, the Commission found that the AJ's issuance of a decision on summary judgment was improper. The Commission initially determined that Complainant's allegations stated a viable claim of sex discrimination and Complainant's characterization of the basis as sexual orientation did not defeat the otherwise valid sex discrimination claim. Complainant alleged that he was mocked as effeminate and told he had "flamboyant" mannerisms which were unsuited to the work place. These allegations were sufficient to state a claim of discrimination for failure to match gender-conforming behavior and, thus, stated a claim of sex discrimination. The record revealed that there were material facts in dispute regarding Complainant's allegation of hostile work environment harassment based on sex, such as whether a Supervisor used terms such as "honey," "sweetie," or "baby," or made "overtly gay" gestures. In addition, there was a dispute as to whether another Supervisor referred to Complainant as "flamboyant" to mock him based upon his perceived sexual orientation. The Commission noted that the second Supervisor had passed away since Complainant filed his complaint making this the type of situation in which a hearing was required to judge the credibility of available witnesses and make findings regarding the material issues in contention. The Commission also found that there were genuine issues of material fact regarding claims concerning Complainant's working conditions, including facts that went to the motivation based on race and reprisal. The Commission concluded that the AJ could not have reached a finding of no discrimination in this case except by resolving significant conflicting evidence in the Agency's favor, which was inappropriate in a grant of the Agency's motion for summary judgment. Therefore, the complaint was remanded for an administrative hearing. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120110008 (January 11, 2013).

Summary Judgment Improper in Equal Pay Act Case. Complainant worked as a Unit Supervisor, Senior Reactor Operator at an Agency Nuclear Plant. She filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her sex when it paid her a lower salary than males occupying the same position. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately issued a decision without a hearing finding no discrimination. On appeal, the Commission found that the AJ erred in issuing a decision without a hearing because the record was not adequately developed in this case.

The Commission noted that, to establish a violation of the Equal Pay Act (EPA), a complainant must show that he or she received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort and responsibility under similar working conditions within the same establishment. The Commission stated that the AJ erred by finding that Complainant did not establish a prima facie case of discrimination under the EPA. The record showed that Complainant's base salary over a two year period was lower than most of her male counterparts. While the Agency asserted that three male employees received less base compensation than Complainant, the Commission noted that Complainant need not compare herself to all similarly situated employees or even all similarly classified male employees. Instead, Complainant may choose to compare herself to one or more male employees doing the same work.

In addition, the Commission found that the AJ improperly added compensation from a deferred agreement to Complainant's base compensation. The Commission stated that the focus in terms of establishing a pay disparity under the EPA should be with respect to "wage rate" rather than total remuneration, and an employer cannot pay a higher hourly wage to one employee and then attempt to equalize the difference by periodically paying a bonus to an employee of the opposite sex. The Commission stated that Complainant's agreement relating to her continued employment with the Agency was not part of her base compensation. Since the compensation was based on a retention agreement it was not in the same form as Complainant's base compensation. Further, even if Complainant's total remuneration was higher for the specified time due to the agreement, the wage rate for her base compensation was lower than most of her male comparators. When solely looking at Complainant's base compensation for the period in question, the Commission found that Complainant established that her base compensation was lower than a number of male comparators. The Commission noted that the record warranted further development as to whether the disparity in Complainant's base compensation was due to a factor other than sex, such as her performance as was asserted by the Agency. Thus, the matter was remanded for an administrative hearing. Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120112831 (November 8, 2012).

Timeliness

EEO Counselor Contact Timely. On March 26, 2011, Complainant did not receive a timely promotion to a Level 9 MPE Mechanic position. He had performed this higher level of work for intermittent periods of time beginning in October 21, 2011, and ending on September 21, 2012. On November 13, 2012, Complainant initiated contact with an EEO Counselor claiming that the Agency discriminated against him on the bases of race, sex, and color, and he ultimately filed a formal complaint. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission noted that a fair reading of the complaint revealed that Complainant was alleging that he was subjected to ongoing unlawful compensation discrimination when he continued to receive lower paychecks. Under the Lilly Ledbetter Fair Pay Act of 2009, an unlawful employment practice occurs, with respect to discrimination in compensation, when an individual is affected by application of a discriminatory compensation decision or practice, including each time wages, benefits or compensation is paid. Complainant asserted that the pay discrimination has been ongoing even after September 2012. Therefore, the Commission found that Complainant's initial contact with the EEO Counselor was timely, and remanded the matter to the Agency for further processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132054 (September 6, 2013).

EEO Counselor Contact Timely. The Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity when it removed him from his position. The Agency dismissed the complaint for untimely EEO Counselor contact, stating that Complainant received notice of his removal on August 1, 2012 but did not contact a Counselor until October. On appeal, the Commission found that Complainant did timely contact an EEO Counselor. Since termination is a personnel action and thus runs from the effective date, the date used for determining the timeliness of EEO Counselor contact was September 1, 2012, the actual date of termination. Thus, Complainant's contact with the Counselor on October 5, 2012 fell within the 45 day window. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131567 (July 25, 2013).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. Complainant filed a formal EEO complaint alleging that the Agency subjected him to discriminatory harassment. Complainant later retired from the Agency and initiated EEO Counselor contact raising a claim of constructive discharge. Complainant subsequently asked the Agency to amend his initial complaint to include that matter. The Agency found that the constructive discharge claim was like or related to the matters initially raised, but stated that Complainant failed to timely raise the issue with an EEO Counselor. The Commission initially affirmed the Agency's dismissal of the constructive discharge claim, but subsequently granted Complainant's request for reconsideration. The Commission noted that a complainant is permitted to amend a pending EEO complaint at any time prior to the Agency's mailing of the notice at the conclusion of the investigation, and there is no requirement that the complainant seek counseling on the new claims. Therefore, the Agency improperly dismissed Complainant's constructive discharge claim after finding that it was like or related to the initial claim of harassment. Further, the Agency's improper dismissal meant that Complainant's ongoing harassment claim was not addressed in its entirety. The Agency was ordered, among other things, to conduct a supplemental investigation with regard to the claim of constructive discharge, and issue a new report of investigation that included all matters in Complainant's ongoing harassment claim, including the claim of constructive discharge. Complainant v. U.S. Postal Serv., EEOC Request No. 0520120189 & EEOC Appeal No. 0120113350 (May 10, 2013).

EEO Counselor Contact Timely. Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin and sex when she was not accepted for a training program for a Postal Inspector position. The Agency dismissed the matter for failure to timely contact an EEO counselor. On appeal, the Commission found that the Agency erred in dismissing the complaint. Complainant asserted she applied for a position in December 2010, and contacted the Agency in January 2011 because she had not received a response to her application. Complainant stated that the Agency informed her she did not qualify because she did not pass the required examination. Complainant presented proof of passing the examination, and the Agency stated Complainant was disqualified due to age restrictions in the subject position. Complainant further asserted that the Agency nevertheless told her that it would keep her information on file. Complainant stated that on July 25, 2012, during an announced hiring freeze, she discovered a young male had been hired for the subject position, and realized she had been the victim of discrimination. The Commission concluded that Complainant developed a reasonable suspicion of discrimination on July 25, 2012, thus triggering the 45-day limitation on that date. Therefore, the Commission found that Complainant timely contacted the EEO Counselor. Complainant v. US. Postal Serv., EEOC Appeal No. 0120130561 (April 2, 2013).

Dismissal of Complaint for Failure to Timely Contact EEO Counselor Improper. Complainant contacted an EEO Counselor on April 11, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it issued her a Notice of Removal in August 2010. Complainant stated that, during a March 2011 arbitration hearing, she learned for the first time that comparable employees did not receive similar Notices. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that the Agency's dismissal was improper. The record contained no evidence rebutting Complainant's assertion that she first learned that similarly situated co-workers received less harsh discipline for the same infraction in March 2011. In fact, Complainant's assertion was corroborated by an Agency Supervisor. The Agency failed to present any evidence to support its assertion that Complainant should have developed a reasonable suspicion of discrimination at an earlier date. Thus, the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120113585 (January 11, 2013).

EEO Counselor Contact Deemed Timely. Complainant, an applicant for employment, filed a formal EEO complaint alleging that the Agency discriminated against her when it rescinded a job offer in July 2010. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant learned the job offer had been rescinded in July 2010 but did not contact a Counselor until April 2011. On appeal, the Commission found that the Agency erred by dismissing the complaint. Complainant stated that she was unaware of the limitation period for contacting an EEO Counselor. The Agency did not assert that Complainant had actual or constructive knowledge of the limitation period. The Commission has previously held that EEO Counselor contact by a non-federal employee is timely although it occurs outside of the applicable time period where the Complainant is not familiar with EEO procedures and is not informed of the procedures by the Agency. Thus, Complainant's EEO contact was deemed timely. Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120113518 (December 19, 2012).

Extension of Time to Contact EEO Counselor Warranted. Complainant was issued a notice of removal dated March 15, 2010. The effective date of the removal was April 18, 2010. Complainant filed a formal EEO complaint, alleging that the Agency discriminated against her when it subjected her to a hostile work environment and issued her the notice of removal. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that she did not do so until May 2, 2011. On appeal, the Commission initially noted that the Agency provided an affidavit from the Supervisor of Customer Services stating that EEO posters were displayed in Complainant's facility which included the applicable time limits for contacting an EEO Counselor. The Agency also provided a copy of the poster, and the information was sufficient to show that Complainant had constructive knowledge of the time limitations. Nevertheless, Complainant provided two letters from a medical provider stating that she was so incapacitated during the relevant period so as to prevent her from timely initiating EEO contact within 45 days of the effective date of removal. Further, the mental incapacitation was alleged to be a direct result of the hostile work environment that was the subject of the complaint. Medical evidence showed that Complainant had recovered sufficiently as of April 27, 2011, and contacted an EEO Counselor on May 2, 2011, which was within 45 days. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120113723 (November 21, 2012).

Waiver of Time Limit for Contacting EEO Counselor Appropriate. Complainant contacted an EEO Counselor on December 2, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it did not renew her teaching contract in August 2011, did not select her for a teaching position on September 23, 2011, and subjected her to a hostile work environment. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission noted that it was undisputed that Complainant did not initiate contact with the Counselor until approximately three and one-half weeks after the expiration of the applicable limitation period. The Commission found, however, that waiver of the time limit was appropriate in this case. Complainant asserted her lack of knowledge of the EEO complaint process, and there was nothing in the record showing that the Complainant had either actual or constructive knowledge of the limitation period. The Agency did not provide evidence that there were EEO posters accessible to Complainant that contained the relevant time limitations or that Complainant received EEO training that included the information. The Commission found nothing in Complainant's EEO complaint history which would support a finding that Complainant, who the Agency characterized as a contractor at the time of her prior complaint, was made aware of the applicable limitation period as a result of her prior pursuit of the EEO complaint process. Thus, the matter was remanded for further processing. Complainant v. Dep't of State, EEOC Appeal No. 0120122132 (October 19, 2012).

Dismissal of Complaint for Failure to Timely Contact EEO Counselor Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on his race when he was reassigned. Complainant initiated contact with an EEO Counselor on August 11, 2009, which was beyond the 45 calendar day time limit; however, Complainant alleged that he had no notice of the time limit because he worked outside most of the time, and was not aware that there were signs posted throughout the building. An AJ ultimately dismissed the complaint for failure to timely initiate EEO counseling on the grounds that the Complainant had constructive notice of the 45 calendar day time limit to initiate EEO contact. On appeal, the Commission affirmed the dismissal. The Agency submitted statements and affidavits demonstrating that the Complainant had knowledge of the time limit because he worked inside 80 to 90 percent of the time and the EEO information was continuously posted on the bulletin board in the main hallway, which employees used regularly to access the locker rooms and cafeteria. The Agency met its burden of informing its employees of their EEO rights and regulations based on the timing and locations of the postings. Thus, the Commission found that the Complainant knew or should have known of the 45 day time limit for contacting an EEO Counselor. Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120131511 (July 25, 2013).

Dismissal for Failure to Timely Contact an EEO Counselor Proper. Complainant contacted an EEO Counselor in January 2012 and subsequently filed a formal complaint alleging, among other things, that he received less compensation than a female Project Manager. The Agency dismissed the matter for failure to timely contact an EEO Counselor, noting that Complainant did not challenge the other employee's promotion when she was selected in 2010. On appeal, the Commission found that the Agency properly dismissed the issue. The record showed that Complainant applied for the same position in 2010 but was not selected. The Commission rejected Complainant's assertion that he raised a claim of discriminatory compensation under the provisions of the Lilly Ledbetter Fair Pay Act. The Commission noted that most courts have concluded that the time frame for challenging the denial of a standard promotion, in which someone was denied the opportunity to move to another position at higher pay, are not affected by the Lilly Ledbetter Fair Pay Act. Complainant v. Dep't of the Army, EEOC Appeal No. 0120122346 (October 23, 2012).

Complaint Properly Dismissed for Failure to Contact an EEO Counselor. According to the record, Complainant was a member of a class action filed on behalf of supervisors in a particular district who were required to use their personal vehicles for Agency business. The class complaint was forwarded to an AJ who ultimately denied class certification. The Agency issued a final order on November 9, 2011, implementing the AJ's decision. Complainant sought EEO counseling on January 13, 2012, and subsequently filed an individual complaint alleging that the Agency discriminated against him when it required him to use his personal vehicle without compensation in March 2009 and placed him in an off-duty status in September 2009. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that the dismissal was proper. The Commission noted that the commencement of a class action suspends the applicable time limit for all asserted members of the class who would have been parties if the class had been certified. Therefore, Complainant's duty to contact an EEO Counselor was suspended during the pendency of the class certification decision. The suspension period ended, however, when the Agency issued its final order adopting the AJ's denial of class certification, and Complainant did not initiate contact with a Counselor within 45 days. Complainant asserted that the Agency failed to notify him of his right to pursue an individual complaint after the class was not certified. The Commission held, however, that where class certification has been denied, there is no regulatory requirement that an Agency notify potential class members of the dismissal of the class complaint or their right to file individual complaints of discrimination. Further, the Commission noted that the class agent in this case also served as Complainant's representative and had personal knowledge that the class complaint had not been certified. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122172 (October 17, 2012).

Agency Failed to Meet Burden of Showing Complaint Untimely. Complainant filed a formal EEO complaint on December 14, 2012, alleging discrimination based on race, sex, and prior EEO activity. The Agency dismissed the complaint as untimely, stating that Complainant received the Notice of Right to File on November 28, 2012, and, as such, the complaint was not filed within the 15-day limitation period. On appeal, the Commission found that the Agency failed to meet its burden of providing proof to show when Complainant received the Notice. The record contained documentation from the United Parcel Service which indicated delivery on November 28 without any details regarding the address. In addition, the documentation showed that the package was "left at reception," and signed for by someone other than Complainant. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120131796 (August 28, 2013).

Formal Complaint Timely Filed. Complainant filed a formal complaint postmarked January 19, 2013, alleging that the Agency retaliated against her for prior protected EEO activity. The Agency dismissed the complaint as untimely, stating that Complainant received the Notice of Right to File a Formal Complaint on December 26, 2012, as evidenced by her signature on a certified mail return receipt. On appeal, the Commission found that the Agency's dismissal was improper. Complainant stated that it was not her signature on the receipt, but instead was the signature of another Agency employee who placed the envelope on Complainant's desk. Complainant noted that she did not receive the Notice until she returned to the office from an approved vacation on January 7, 2013. The Agency presented no evidence, aside from a signature on the receipt which was not Complainant's signature, to show when Complainant actually received the Notice. Thus, the Agency failed to meet its burden, and Complainant's complaint was deemed to be timely filed. Complainant v. Dep't of Agric., EEOC Appeal No. 0120131766 (August 9, 2013).

Time Limit for Filing Formal Complaint Waived. The Agency dismissed Complainant's complaint of discrimination and retaliation, stating that Complainant received notice of her right to file her complaint on November 13, 2012, but did not file her complaint until November 30, 2012, two days beyond the 15-day limitation period. On appeal, the Commission found evidence to justify excusing Complainant's de minimus delay in filing her complaint. Specifically, Complainant provided documentation supporting her claim that her daughter was hospitalized with a medical emergency during the relevant time period and was moved from one hospital to another. Thus, the matter was remanded for further processing. Complainant v. Dep't of Agric., EEOC Appeal No. 0120131572 (July 25, 2013).

Formal Complaint Timely Filed. Complainant contacted an EEO Counselor alleging that the Agency discriminated against him on the bases of his sex, disability, age and prior EEO activity. The EEO Counselor sent Complainant a Notice of Right to File a formal complaint by e-mail on October 9, 2012, and Complainant filed his formal complaint on November 15, 2012. The Agency dismissed the complaint as untimely. On appeal, the Commission found that the Agency did not meet its burden of establishing when Complainant received the Notice. The Commission was not persuaded by the Agency's assertion that the e-mail was "delivered" to Complainant on the same day it was sent. Further, the Commission stated that the EEO complaint processing regulations do not expressly address or define service by electronic mail. Thus, the matter was remanded for processing. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120131022 (June 20, 2013); see also Complainant v. Dep't of the Army, EEOC Appeal Nol. 0120113549 (January 31, 2013) (While the Agency sent a notice of right to file a formal complaint to Complainant by e-mail and expressly requested that she confirm receipt of the notice, the Agency did not submit any evidence showing that Complainant actually received the notice on May 16, and Complainant did not acknowledge receipt of the e-mail on that date. Thus, the Agency failed to meet its burden of obtaining sufficient information to support a determination as to timeliness); Complainant v. Dep't of the Navy, EEOC Appeal No. 0120114124 (November 8, 2012) (Complainant stated that the Agency sent a Notice of Right to File to her work e-mail address after work hours on February 17, and that she did not actually receive the Notice until the following day. The Agency did not submit any evidence that Complainant actually received the Notice on February 17, 2011. The Commission noted that its regulations do not expressly address or define service by electronic mail. Thus, Complainant's complaint was timely filed on March 5, 2011, as the last day of the limitation period fell on a Saturday and that was the next business day).

Formal Complaint Deemed Timely Filed. Complainant filed a formal EEO complaint alleging that the Agency, which did not select him to be interviewed for an advertised Maintenance Mechanic position, discriminated against him based on his color and race. The Agency dismissed the initial complaint because it was filed in an untimely manner. Specifically, the Agency alleged that although the formal complaint was received, it was postmarked three days after the filing period expired. On appeal, the Commission found that Complainant's formal complaint was timely filed. The Agency asserted that the Track and Confirm information showed that the notice of right to file was signed for on October 1, 2012. The Commission reasoned, however, that the Agency bore the burden of proof and the Track and Confirm receipt it provided did not specify the address to which the notice was delivered nor identify the person whose signature appeared on the receipt. Therefore the Commission found the Agency offered insufficient proof to support its finding that notice was received by Complainant on the date specified. Since the Agency acknowledged receipt of the complaint sent by certified mail, the Commission reversed the Agency's decision, and remanded the complaint to the Agency for processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130575 (April 16, 2013).

Extension of Time for Filing Formal Complaint Warranted. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it subjected him to two drug tests, placed him on emergency off-duty non-pay status, and revealed his medical information to his co-workers. The Agency dismissed the complaint as untimely. The record showed that Complainant received the notice of right to file a formal complaint on May 23, 2012, and the Agency received the formal complaint in an envelope without a postmark on June 15, 2012. Complainant was assumed to have filed his complaint within five days of the Agency's receipt, which was eight days beyond the applicable 15-day limitation period. On appeal, Complainant presented a letter from his psychologist indicating that, during the period in question, he was diagnosed with a major depressive disorder and anxiety and was taking a number of different medications. The psychologist stated that Complainant's symptoms included significant concentration and memory deficits which would have "severely limited his ability" to navigate the EEO process. Thus, the Commission found that an extension of the time limit for filing a complaint was warranted in this case. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123246 (January 15, 2013).

Justification for Extending Time Limit for Filing Complaint Found. Complainant contacted an EEO Counselor and subsequently filed a formal complaint alleging that the Agency discriminated against her when it issued her a 15 day suspension. According to the record, Complainant filed her formal complaint two days after the expiration of the 15-day filing period, and the Agency dismissed the complaint as untimely. Complainant's representative informed the Agency that Complainant experienced a medical condition and was on medication that resulted in some difficulties with memory. The representative also provided documentation showing that Complainant was experiencing significant depression and bouts of memory loss. On appeal, the Commission found that although Complainant's medical documentation did not explicitly establish that she was totally incapacitated during the period in question, the seriousness of her medical condition and the briefness of the delay was sufficient justification for excusing the delay. Thus, the complaint was remanded for further processing. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120802 (November 13, 2012).

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