The DIGEST Of Equal Employment Opportunity Law

Volume XVI, No.3

Office of Federal Operations

Summer Quarter 2005

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Inside

Selected EEOC Decisions on:

Article:

A CASE UPDATE: RECENT DECISIONS ADDRESSING RETALIATION

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SELECTED EEOC DECISIONS

Attorney's Fees

Attorney's Fees Paid By Agency Improperly Calculated. As part of a settlement agreement, the agency agreed to pay reasonable attorney's fees and expenses to complainant's counsel. The Commission found, however, that the amount paid by the agency did not constitute the appropriate amount of attorney's fees. The record indicated that the agency erroneously determined that four complaints were closed at the time the settlement agreement was executed. The agency issued a final action with regard to those four complaints and that final action was appealed. EEOC found that the four complaints were closed under the terms of the settlement agreement. Accordingly, the Commission remanded the matter for the agency to pay complainant's counsel the attorney's fees and expenses claimed by complainant for work in those four complaints, less any amounts complainant's counsel had been reimbursed by the agency for such work. Leigh v. United States Postal Service, EEOC Appeal No. 01A41860 (March 7, 2005), request for consideration denied, EEOC Request No. 05A50720 (May 16, 2005).

Compensatory Damages

Commission Upholds Award of $195,000. After a finding of retaliatory discrimination, an EEOC Administrative Judge (AJ) awarded complainant $195,000 in non-pecuniary compensatory damages due to the emotional suffering by complainant as a result of the retaliatory conduct. The AJ found that the agency's actions had permanent and substantially long-term effects. The AJ found that complainant suffered from the following: bouts of crying; humiliation; depression; destruction of her spirit and confidence; feelings of having no purpose in life; fluctuating-weight problems; rashes; anxiety; nightmares relating to her supervisor; difficulty coping with life; being tense and unable to sleep when next to her husband in bed; and disinterested in sexual intercourse.

Further, as a result of medication taken for emotional distress, complainant felt clumsy; shaky; considered herself to be unsafe operating a motor vehicle; and a nervous wreck. Her husband testified that complainant was extremely stressed; experienced mood swings; became sick more often; kicked the bed while sleeping; and was exhausted to the point where she remained in bed for 20 hours during the day. He testified that complainant was unable to deal with any negativity and was extremely self conscious about her communication skills; interaction with others; and loss of professional reputation and standing in the community.

Complainant's friends testified to her change in appearance, including significant aging in a short amount of time; facial swelling and appearing sunken; and complainant's becoming withdrawn. Her psychologist testified that complainant suffered from a significant amount of depression.

In upholding the AJ's award, the Commission noted its precedent that evidence from a health care professional was not a mandatory prerequisite for recovery of compensatory damages for emotional distress. In addition, EEOC noted that the award was consistent with amounts awarded in similar cases. Looney v. Department of Homeland Security, EEOC Appeal Nos. 07A40124 and 01A53252 (May 19, 2005).

EEO Process – Dismissals

Identical Claims and Failure to Seek Counseling. Complainant alleged discrimination when the agency took the following actions against her: (1) On April 26, 2004, she was not given the opportunity to act as back up in her supervisor's absence; (2) she was denied training as a collection agent; (3) she was harassed after asking for training and the chance to act in her supervisor's absence; (4) she was told that her position description would be changed, effective 60 days from June 9, 2004, deleting the paragraph, which stated that she could "fill-in" for her supervisor; and (5) she received a Letter of Reprimand on June 9, 2004, regarding her duties that her supervisor and co-worker were now assuming.

The agency dismissed claims (1), (2), and (3) on the grounds that these claims stated claims identical to claims raised in a prior complaint. The agency dismissed remaining claims (4) and (5) on the grounds that complainant failed to present these claims to the EEO Counselor prior to filing her complaint.

On appeal, the Commission affirmed the agency's dismissals of claims (1), (3), (4), and (5), noting that (4) and (5) were not like or related to the other incidents described in the complaint. Further, claims (4) and (5) appeared to be specific incidents of harassment based on reprisal and were not separate claims from (3), which was also not raised with an EEO Counselor. However, the Commission reversed the agency's dismissal of claim (2), finding nothing in the record to show that complainant raised any claim identical to claim (2) in a prior or pending complaint. Accordingly, the Commission remanded claim (2) for further processing by the agency. Montford v. Department of the Navy, EEOC Appeal No. 01A45827 (February 2, 2005), request for reconsideration denied, EEOC Request No. 05A50626 (April 12, 2005).

EEO Process – No Failure to Cooperate

Extension of Time Period Warranted for Complainant's Cooperation. EEOC found from the record that complainant, despite due diligence, was so incapacitated that she was unable to respond to requests for information within the agreed-upon time frame. The record contained a doctor's letter reporting that, after being diagnosed with cancer, complainant was psychiatrically overwhelmed. Another physician noted that, following the diagnosis, complainant suffered from severe depression and was unable to handle paperwork. The agency was ordered to process the remanded claims. Guzzo v. United States Postal Service, EEOC Appeal No. 01A42260 (April 27, 2005).

EEO Process – Signature Requirement

Signature Requirement Met. Complainant's formal complaint form did not contain his signature, but instead was signed by his non-attorney representative. Nevertheless, complainant's representative enclosed a signed statement from complainant that was sufficient to identify the alleged discriminatory actions. The Commission found that the signed statement was sufficient to meet the requirements of EEOC's regulations, which require that a complaint contain a signed statement from the complainant. Chestra v. United States Postal Service, EEOC Appeal No. 01A51383 (March 11, 2005).

EEO Process – Hearings

Six-Year Delay by Agency in Failing to Provide Hearing Opportunity Held Inordinate. Complainant filed complainants in 1996 and 1997, which were consolidated. A hearing before an EEOC AJ was scheduled for January 1999. However, on December 31, 1998, the AJ granted a postponement, due to the scheduled surgery of the agency's representative, and returned the complaint files to the agency pending notification that the agency representative was able to go forward with the hearing. Complainant filed the instant appeal in 2004, claiming that the agency had constructively dismissed his two EEO complaints by not processing them, after he was informed, in 2002, that his complaints were being transferred to a new agency EEO person. The agency provided no explanation for its inaction. The Commission ordered an immediate hearing before an EEOC AJ. Sullivan v. Department of Defense, EEOC Appeal No. 01A50428 (April 21, 2005).

EEO Process – Summary Judgment

Summary Judgment Inappropriate When Material Facts Are In Genuine Dispute and Record is Inadequate. Complainant, claiming sex discrimination, averred that she witnessed male drivers with Class-B licenses given training on agency property and provided a tractor-trailer to obtain their Class-A license from the state. Agency policy was to train and promote drivers according to seniority. Complainant's seniority date was two years before one of the co-workers' who received training. Complainant stated that she received only familiarization training. She also alleged that management officials had said that women were not wanted in the field of truck driving.

The Commission found that, when complainant's evidence was juxtaposed with the agency's, genuine disputes of material fact clearly existed in the record. The Commission also noted that summary judgment is inappropriate where, as here, the record was undeveloped. When asked who would be able to testify to what kind of training the agency offered and who received it, complainant indicated that the 11 drivers she named as having been promoted above her would know. However, the investigator did not question them. He only obtained affidavits from complainant's supervisors and driving instructor. The Commission noted that complainant was compelled to provide material evidence on her own accord on appeal. The agency's Employee Detail Report showed that 6 of the 11 co-workers complainant identified on appeal were hired with Class-B licenses and had since been promoted to level-6 tractor-trailer drivers. The Commission declared that, while it will not, in general, consider new evidence submitted on appeal, the lack of this evidence in the record used to rule on summary judgment was disturbing. The investigator should have acquired this information in order to develop an impartial and appropriate factual record and thoroughly address the matters at issue, as required by the Commission's regulations. The Commission remanded the matter for a hearing. Harvey v. United States Postal Service, EEOC Appeal No. 01A50210 (March 31, 2005).

EEO Process – AJ Approves Class Settlement

AJ Did Not Abuse Discretion in Approving Class Action Settlement. The Commission concluded that the AJ did not abuse his discretion in finding that the settlement agreement was fair, adequate, and reasonable to the class as a whole. The AJ determined that the reasonableness of the monetary settlement was supported by the additional non-monetary provisions of the settlement and that the monetary relief was not so grossly inadequate that it should be disapproved. May and Perry v. United States Postal Service, EEOC Appeal Nos. 01A44445 and 01A44564 (May 4, 2005).

EEO Process – Presumption of Receipt Rebutted

Complainant Rebutted Presumption As to When She Received the Notice of Final Interview. The agency's presumption that complainant received the notice five days after mailing was rebutted when, according to complainant, damage caused by a hurricane delayed mail for several weeks. Brumfield v. United States Postal Service, EEOC Appeal No. 01A51880 (April 7, 2005).

Findings On the Merits

In the following decisions, the Commission found no discrimination:

—Under Disability Law—

No Denial of Reasonable Accommodation. The Commission found that complainant, who suffered from degenerative disc changes, post-traumatic stress disorder, and generalized anxiety, was not denied reasonable accommodation when he was offered a limited duty Modified Mailhandler position performing janitorial tasks. The Commission noted that complainant was unable to perform the essential functions of his former Mailhandler position, with or without reasonable accommodation, and had a 10-pound lifting restriction. Further, EEOC found that complainant failed to show that there were any other funded vacant positions to which he could have been reassigned; or that the agency could have located a position for him if it had conducted a broader search. Prioleau v. United States Postal Service, EEOC Appeal No. 07A40021 (May 9, 2005).

No Denial of Reasonable Accommodation. Complainant, a service representative at an agency facility, returned to work in August 2001, after a surgical procedure that left her with a vocal cord dysfunction. Complainant advised management that she was extremely limited in her ability to talk (no more than 15 minutes per day), and that she could no longer perform service window or telephone interviews. Complainant advised the agency that the only duty she could perform was written correspondence. The Commission found that the evidence overwhelmingly showed that the Service Representative position required oral interaction with customers, including use of the telephone and in-person dialogue at the service window. Without these functions, the facility would not be operational. The Commission further stated that Service Representatives are hired primarily to interact orally with customers. Thus, EEOC found that answering telephones and waiting on customers were essential functions of the position, and that complainant was unable to engage in this level of communication because of her vocal cord disability with or without an accommodation. The Commission found that distributing complainant's telephone and service window duties to her co-workers was not an effective accommodation, because it did not enable her to perform the essential functions of her position and because it had an unacceptable impact upon both working conditions and service to the public. Finally, EEOC found that complainant failed to demonstrate that reassignment was available as a last resort reasonable accommodation, noting in particular the fact that she had rejected the agency's efforts to find a suitable position for her at a larger facility. Fortrin v. Social Security Administration, EEOC Appeal No. 01A46108 (June 16, 2005).

Complainant Not an Individual With a Disability. The Commission found that complainant, who experienced residual effects from hip, leg, and ankle injuries, was not an individual with a disability. Although complainant's restrictions included no continuous lifting over 10 pounds, and no intermittent lifting over 35 pounds, those limitations were insufficient to show that he was substantially limited in the major life activity of lifting. Further, while management officials referred to him as "disabled," during the hearing, they did not indicate that they regarded complainant as being disabled in a major life activity. Housh v. United States Postal Service, EEOC Appeal No. 01A33300 (May 19, 2005), request for reconsideration denied, EEOC Request No. 05A50946 (July 19, 2005).

No Failure to Accommodate. The Commission found that the agency did not fail to accommodate complainant or discriminate against him when the agency delayed awarding him a bid assignment for a period of two months. Complainant, who was restricted with regard to lifting, bending, and stooping, bid on a Mailhandler position, which had a 70-pound lifting requirement. Complainant was awarded the position pending a determination that he was physically qualified for the job. The Commission noted that, after complainant submitted a note from his physician, the agency needed to ascertain from the union whether it would intervene on behalf of the next senior bidder because complainant did not meet the requirements of the position. The agency also needed to determine if complainant could meet the functional requirements of the position by having the Manager of the relevant work unit agree that complainant could be accommodated. The union raised no objections to complainant's receiving the bid position, and the agency modified the duties associated with the position to fit complainant's revised limitations as set forth in another note from his physician. The Commission stated that the agency was entitled to request documentation from complainant with regard to his capabilities and spend a reasonable amount of time analyzing the information. Collier v. United States Postal Service, EEOC Appeal No. 01A44289 (May 11, 2005).

Complainant Not an Individual With a Disability. The Commission found that complainant failed to show that he was an individual with a disability (sleep apnea). The only evidence concerning his condition showed him to be sleepy and tired, interrupted in his sleep, and required to wear a mask. EEOC found that such vague statements were insufficient to show that complainant was substantially limited in a major life activity. There was no documentation regarding whether and to what extent the condition affected his ability to breath or sleep. Cole v. Department of the Navy, EEOC Appeal No. 01A42577 (February 16, 2005).

Agency Not Required to Provide Accommodation of Individual's Choice. The Commission found that the agency did not violate the Rehabilitation Act when it denied complainant's request for a disabled parking space within 50 feet of the agency activity's building (the distance beyond which complainant could not walk without resting, due to her end-stage renal disease and dialysis treatment); and, in the alternative, provided her with wheel-chair service. The Commission agreed with the AJ's determination that it was undisputed that no parking space existed within 50 feet of the building and that the provision of a wheelchair, and an employee who wheeled complainant into the building, was a reasonable and effective accommodation. The Commission noted that an agency is not required to provide an accommodation of an employee's choice, but may choose from among reasonable accommodations as long as the chosen accommodation is effective. Nutter v. Department of the Navy, EEOC Appeal No. 01A51902 (March 28, 2005).

—Under Title VII—

No Sexual Harassment Found. The Commission found that, while complainant identified a series of events and circumstances, which she found to be unpleasant or demeaning, the acts that included her supervisor's rubbing her shoulders and back, they did not appear to constitute a sexual advance or otherwise represent conduct of a sexual nature. The overwhelming evidence in the record established that the supervisor routinely touched both men and women when he spoke to them. The Commission noted that there was no evidence to show that agency officials had any knowledge of complainant's sexual harassment allegations until she sought EEO counseling. The incidents cited over a three-and-a half-year period, were not so severe or pervasive as to entitle complaint to relief under the federal employment discrimination laws. Choice v. United States Postal Service, EEOC Appeal No. 01A40796 (March 31, 2005).

In the following decisions, the Commission found discrimination:

—Under Disability Law—

Fitness-For-Duty Examination Violated the Rehabilitation Act. The Commission found that complainant was subjected to disability discrimination when he was sent for a fitness-for-duty examination (FFDE). Complainant, who suffered from heart disease, had a problematic relationship with co-workers and supervisors. In referring complainant for the FFDE, the agency stated that complainant's continued "stressing" over minor details and personality conflicts could cause him physical harm. The Commission stated that, while the agency referred complainant for the examination because of his heart condition, it did not demonstrate a reasonable belief that his condition impaired his ability to perform the essential functions of his position, or that complainant posed a direct threat to himself or others. In fact, the agency indicated that complainant had no limitations. Thus, the agency failed to show that the FFDE was job related and consistent with business necessity. By way of relief, the Commission ordered the agency to advise complainant of his right to submit objective evidence in support of his claim for compensatory damages, provide training for the agency officials involved in the decision to send complainant for an FFDE, and to consider taking disciplinary action against those officials. Gloger v. United States Postal Service, EEOC Appeal No. 01A31462 (February 10, 2005), request for reconsideration denied, EEOC Request No. 05A50640 (April 25, 2005).

At the time of his employment with the agency in 1998, complainant disclosed that he had a seizure in 1984 and was taking anti-seizure medication. He held a valid commercial driver's license at the time he was hired and throughout his employment with the agency. His commercial driving record was clean of accidents for at least 10 years before his employment with the agency and during his tenure with the agency.

In December 2002, the agency removed complainant from his position, after he underwent a periodic medical examination conducted by the agency's contract physician. The doctor advised the agency that complainant was not qualified to operate a commercial motor vehicle under DOT regulations because of his anti-seizure medication.

Complainant appealed his removal to the MSPB, which upheld the agency's action. MSPB found that complainant was not a "qualified individual with a disability" because he was not qualified under DOT regulations to operate a commercial vehicle and could not perform the essential functions of his position with or without reasonable accommodation.

Complainant petitioned the EEOC, which found that the agency had discriminated against complainant on the basis of disability and could not use its voluntary adoption of the DOT regulations as a defense. Instead, the agency was required to conduct an individualized assessment of complainant's qualifications in light of his disability and the particular job at issue, in order to avail itself of the "direct threat" defense. Factors relevant in determining whether an individual with a disability poses a direct threat include the nature of the risk, the severity of the potential harm, the probability that the potential harm will occur, and the imminence of the harm. The Commission found that the agency failed to meet its burden of proof by showing that complainant posed a significant risk of substantial harm as required under the EEOC's regulations. Thus, the EEOC disagreed with the Board's decision and referred the matter back to the Board for further consideration.

Upon reconsideration, the Board disagreed, finding that the agency was bound when it voluntarily chose to adopt the DOT regulations under the proper exercise of powers granted to it by statute. The Board then certified this matter to the Panel. The Panel deferred to EEOC's interpretation of the Rehabilitation Act and adopted the EEOC's decision. Accordingly, the Panel referred the matter to the Board to order the agency to take appropriate action, including cancellation of the removal and the award of all payments and benefits to which the complainant was entitled. Boots v. United States Postal Service, MSPB Docket No. AT-0752-03-0286-E-1; EEOC Docket No. 03A40060 (June 23, 2005) (Before Special Panel [the panel] Upon Certification By the U.S. Merit Systems Protection Board).

—Under Title VII—

Race-Based Harassment Found. The Commission found that complainant's supervisor subjected him to hostile work environment harassment when he used a historically-offensive racist slur in complainant's presence and at least once in reference to complainant; treated him less favorably than he did White employees; verbally abused him; and subjected him to hazardous working conditions because of complainant's race (African-American). The Commission found that there was a basis for holding the agency vicariously liable for the harassment because the supervisor controlled complainant's daily work activities. Further, the Commission found that the agency failed to prove the affirmative defense that is available when the harassment does not result in a tangible employment action. In so finding, the Commission noted that the agency did not argue on appeal that it exercised reasonable care to take any corrective action. EEOC also found that the supervisor violated the anti-retaliation provisions of Title VII when, standing behind complainant, he informed all employees that if they wanted to file an EEO complaint, they had to discuss it with him first. The Commission found that the supervisor's statement was reasonably likely to deter future protected activity. By way of remedies, EEOC ordered the agency to determine complainant's entitlement to compensatory damages; train the supervisor with regard to his obligations to eliminate discrimination in the federal workplace; and consider disciplining the supervisor. Whidbee v. Department of the Navy, EEOC Appeal No. 01A40193 (March 31, 2005).

Sexual Harassment Found. The Commission found that complainant was subjected to sexual harassment by a co-worker on two occasions. The record revealed that one of complainant's co-workers grabbed and hugged her, made suggestive comments to her, and placed complainant's hand on his crotch. The following day, complainant reported the incident to a manager who related the information to three other officials. Complainant was advised that she would have to provide the complete name of the co-worker in order for management to fully investigate the matter. Subsequently, the co-worker again approached her several days later. The Commission noted that management failed to respond in a reasonable or effective manner after being informed of the initial incident and that, given the nature and severity of the actions, management should have at least contacted agency inspectors or local law enforcement. As part of the relief awarded complainant, the Commission ordered the agency to provide EEO training to the individuals involved in the incident; consider taking disciplinary action against them and investigate complainant's entitlement to compensatory damages. Lopez v. United States Postal Service, EEOC Appeal No. 01A45212 (February 10, 2005).

Retaliation Discrimination Found. Complainant, a Tax Examining Assistant, claimed that he was retaliated against for prior EEO activity when managers instructed an armed security guard to contact the Federal Police, who then questioned complainant regarding an alleged threat made to a co-worker. After an investigation, the agency found no discrimination. On appeal, the Commission reversed the agency. The Commission found that the agency's proffered legitimate non-discriminatory reasons were a pretext for discriminatory animus based on complainant's prior EEO activity. The agency stated that the security guard acted on his own to contact Federal Police and that the security guard had no knowledge of complainant's prior EEO activity. The record reflected that the management officials who contacted the guard on duty may have requested that the guard contact Federal Police. The agency insisted that complainant was not the reason Federal Police were contacted and that management did not direct the guard to contact Federal Police. However, the Commission found sufficient evidence to conclude that management officials either directed the guard to, or heavily influenced the guard's decision to, call Federal Police.

The Commission also found that the record contradicted the affidavit testimony from a team leader who asserted that, although the employee stated that she was threatened by complainant, management would not have had complainant escorted from the building without developing the facts further. The Commission found that the decision was made by management officials and the guard on duty to call Federal Police without speaking to complainant "because they saw no need to," nor did they speak to any of the other employees who witnessed the altercation. Although an interview of witnesses to the incident at issue would have likely revealed that the alleged victim made racial comments to complainant, which comments were the impetus of the verbal disagreement, both managers admitted little to no investigation occurred before Federal Police were called. The Commission noted that the alleged victim originally stated that complainant allegedly threatened to file an EEO complaint against her, which caused her to become upset and begin crying and seeking the manager's assistance. Management officials stated that Federal Police were contacted because the employee said that she felt "threatened," which she never said before. The Federal Police Officers, the Commission found, stated that, at the time they arrived on the scene, management said that no verbal threats had been made by either party. Additionally, the record showed that, although the employee in question, one month later, claimed that complainant told her to "watch her back," no statements to that effect were reported to management or the Federal Police before or during the incident involving complainant.

The Commission also found that the employee who accused complainant of "threatening" her was known to be emotionally unstable and prone to hysteria. This employee was also involved in several very loud verbal confrontations with other employees, yet the record did not reflect that Federal Police were called in for any of those incidents.

Finally, the Commission rejected the agency's assertion that complainant had no right to criticize how an agency conducted its investigation and that this claim was a collateral attack. EEOC found that, where it appears that an adverse action is taken against an employee for discriminatory reasons, the complainant has a right to question the acting authorities' motives, which in this case included the investigatory facts surrounding the Federal Police's involvement. As part of the relief ordered, the Commission directed the agency to conduct training for the responsible management officials, as well as to consider taking disciplinary action against them and report the results of that consideration to the Commission. EEOC also remanded the issues of compensatory damages and attorney's fees, and ordered the agency to submit a report of compliance and post an Order that the agency's facility had engaged in unlawful reprisal discrimination. Miller v. Department of the Treasury, EEOC Appeal No. 01A33926 (December 29, 2004), request for reconsideration denied, EEOC Request No. 05A50505 (April 19, 2005).

Race-Based Nonselection Found. The Commission found that the agency discriminated against complainant on the basis of race (African-American) when it did not select her for the position of Retail Specialist. In affirming the AJ's finding of discrimination, the Commission noted that the agency, through the Selecting Official (SO), failed to meet its burden of providing a legitimate, nondiscriminatory reason for not choosing complainant over the White selectee. EEOC stated that complainant was entitled to some rationale for her nonselection that provided her with an opportunity to attempt to satisfy her ultimate burden of proving that the agency's explanation was a pretext for discriminatory animus. The Commission agreed with the AJ's finding that SO's statements that the selectee was chosen primarily on subjective criteria, did not afford complainant a full and fair opportunity to demonstrate pretext. The Commission also concurred with the AJ's finding that neither SO nor the agency presented any interview notes or other written documentation, which would have provided some evidence to support the choice of the selectee. In addition, the Commission noted that the AJ rejected the hearing testimony of the SO, finding her not to be a credible witness with regard to her statement that experience was not important, which conflicted with the criteria required by the job announcement. By way of relief, the Commission ordered the agency to offer complainant the position of Retail Specialist or a substantially equivalent position at a mutually-acceptable location; provide make-whole relief, including back pay and benefits to which complainant would have been entitled but for the discrimination, as well as $6,000 in non-pecuniary compensatory damages, and the restoration of three days of sick leave. Beasley v. United States Postal Service, EEOC Appeal No. 07A40096 (March 18, 2005).

Mootness

Complaint Not Moot. The Commission found that complainant's claim that he was discriminated against when he was denied the opportunity for a temporary appointment as a Cook, was not rendered moot when complainant accepted a position as a Full-time Seasonal Permanent Cook with the agency. EEOC noted that complainant applied for the temporary appointment in August 2004, and was not hired for the permanent position until November 2004. Further, the agency hired an independent contractor to serve as temporary Cook in the interim. The Commission noted that complainant's selection for the permanent position did not include back pay, seniority and benefits from August 2004 to November 2004. Perkins, Sr. v. Department of the Army, EEOC Appeal No. 01A52293 (June 10, 2005).

Sanctions – Default Judgment

Commission Affirms AJ's Sanctions and Default Judgment Against Agency. In this matter, the Commission affirmed the AJ's issuance of a Decision and Order on Default Judgment in favor of complainant. The AJ concluded that the agency failed to cooperate in the discovery process; failed to comply with Orders and directives of the AJ; failed to timely raise a challenge to complainant's submissions; unduly delayed the hearing process; and failed to provide a good cause explanation for its actions. In affirming the AJ's decision, the Commission found that the agency failed to comply with the AJ's Acknowledgement and Order (A & O); made late and incomplete responses to the Orders issued by the AJ extending the discovery time limit and directing the agency to show cause why sanctions should not be imposed; and otherwise failed to honor its verbal commitments regarding discovery responses.

The Commission further determined that the agency did not demonstrate good cause for its delay and failure to respond by claiming lack of staffing (to include an argument that neither of the two staff members assigned to the case were attorneys) and deaths in the families of pertinent staff. EEOC found that these reasons were never communicated during the repeated attempts in the hearing process to compel discovery responses from the agency. In addition, the Commission found that because the content of an agency's discovery response failed to provide much meaningful additional information, and suggested that key agency witnesses might not be available to provide testimony, to include the two agency managers involved in the matter, the agency improperly impeded the processing of the complaint.

Accordingly, the Commission found that the AJ properly determined that the agency failed to timely proceed with discovery and failed to comply with the AJ's orders concerning discovery. EEOC further found that the AJ properly drew an adverse inference in favor of complainant, thereby entering a default judgment finding discrimination, and finding that complainant was entitled to relief. The Commission noted that the evidence of record revealed that, during the investigation, the agency failed to refute complainant's claims of discrimination, further supporting the decision in complainant's favor. As part of the relief awarded, the Commission concurred with the AJ's award of $12,000 in non-pecuniary compensatory damages, finding that the severe emotional distress she claimed was attributable to her discriminatory treatment by two agency managers, as well as complainant's development of physical symptoms requiring medical treatment. Barbour v. United States Postal Service, EEOC Appeal No. 07A30133 (June 16, 2005).

Settlement Agreements

Impossibility of Compliance Renders Settlement Agreement Void. Complainant was removed from employment for being absent without leave (AWOL) and pursued the matter through the EEO process. Subsequently, complainant and the agency entered into a settlement agreement providing that complainant would write a letter requesting reinstatement and that her reinstatement would be supported by two named management officials. After complainant wrote a letter requesting reinstatement, pursuant to the agreement, she was advised that it was the agency's policy not to reinstate former employees who had been removed for cause. The Commission found that complainant's reinstatement was impossible at the time the settlement agreement was executed. Thus, the agreement was illusory and void and remanded the issue of complainant's removal, raised in her initial complaint, for further processing at the point at which processing ceased. Tang v. United States Postal Service, EEOC Appeal No. 01A42743 (May 27, 2005), request for reconsideration denied, EEOC Request No. 05A50977 (July 7, 2005).

Breach Found. Complainant and the agency entered into a settlement agreement which provided, among other things, that named supervisors would not require complainant to leave work as long as she was able to perform duties within her medical restrictions, unless there was legitimate reason to do so. The Commission found that the agency breached the agreement when, on one occasion, she was told to leave work early even though there was work she was capable of performing. The Commission rejected the agency's assertion that the work did not need to be completed on the day in question and could be put aside until the following day. The Commission noted that the agency failed to rebut the assertion that it had a policy of withholding work from limited duty employees, such as complainant, in order to assign it to regular-duty carriers working overtime. The Commission ordered the agency to comply with the settlement agreement by refraining from making any demand that complainant leave the workplace as long as she is able to perform duties that are within her medical limitations, unless there is a legitimate reason to do so. Lanzo v. United States Postal Service, EEOC Appeal No. 01A51408 (May 27, 2005).

No Breach Found. Complainant and the agency entered into a settlement agreement which provided that complainant would be given an additional 12 hours of overtime in the second quarter. Subsequently, complainant retired from the agency before the end of the second quarter. The Commission found that the agency did not breach the agreement by failing to provide complainant with an opportunity to earn 12 hours of overtime. The agency asserted that there was no opportunity to offer complainant 12 hours of overtime; and the Commission found the agency's actions to be consistent with the language of the agreement. EEOC noted that the terms of the agreement did not include an alternative for compensating complainant for overtime if he elected to end his employment. Daniels v. United States Postal Service, EEOC Appeal No. 01A51102 (May 13, 2005).

Stating a Claim

In the following decisions, the Commission found complainant's claims failed to state a claim upon which relief could be awarded:

Feng v. United States Postal Service, EEOC Appeal No. 01A45794 (May 31, 2005) (no harm found where supervisor allegedly told complainant to speak English and purportedly stated that he could not understand what the complainant had said).

McAdoo v. Department of Justice, EEOC Appeal No. 01A50228 (March 29, 2005) (retaliation based on sexual orientation is not cognizable because sexual orientation is not a basis of discrimination prohibited by the statutes enforced by the EEOC).

In the following decisions, the Commission found that the complaints stated a claim:

Dawes v. United States Postal Service, EEOC Appeal No. 01A52189 (April 29, 2005) (complainant's claim that a supervisor threw a parcel at him, when considered with his statement that he was degraded on almost a daily basis by his supervisor, was sufficiently severe to constitute an actionable claim of harassment).

Templin v. United States Postal Service, EEOC Appeal No. 01A50908 (February 4, 2005) (complainant's assertion that a supervisor threatened her that he was going to shove his fist down her throat, stated a claim of discriminatory harassment).

Culp v. United States Postal Service, EEOC Appeal No. 01A50879 (February 15, 2005) (complainant claimed that he was denied overtime because of his age and sex while he was on union time, while younger, female workers were allowed to work overtime while performing union functions; EEOC stated that being allowed to work overtime is a privilege of employment, and found that this stated a claim of disparate treatment on the bases of age and sex).

Timeliness

Complaint Timely Filed. Complainant received a Notice of Right to File a Formal Complaint (the Notice). The Notice did not contain a certificate of mailing, but, instead, included language indicating that complainant was presumed to have received the Notice within five days after it was mailed. The record contained no evidence showing when complainant actually received the Notice. The agency dismissed the complaint on the grounds that it was not filed within 15 days of the presumed date of receipt. The Commission reversed the agency, stating that the Notice did not contain any certificate of mailing or the equivalent, which would reflect that an agency official certified that the Notice was mailed on a specific date. Raleigh v. United States Postal Service, EEOC Appeal No. 01A46115 (May 11, 2005).

EEO Counselor Contact Timely. In finding complainant's EEO contact timely, the Commission held that she did not have grounds to reasonably suspect that the agency's action was discriminatory until on or about May 20, 2004, when a White female was granted an 11:00 a.m. starting time. Complainant (African-American) had claimed that, in March 2004, her supervisor denied her request, without explanation, to begin work at 11:00 a.m. The Commission found that nothing occurred during those two months that would otherwise have created a reasonable suspicion that complainant had been discriminatorily denied her request. Accordingly, the Commission found complainant's June 3, 2005 EEO contact timely and remanded the matter to the agency for further processing. Bingham v. United States Postal Service, EEOC Appeal No. 01A50221 (February 25, 2005). See Duplessis v. United States Postal Service, EEOC Appeal No. 01A52490 (June 15, 2005) (complainant had reasonable suspicion of discrimination only when she returned to work, after being placed in a non-duty/non-pay status for wearing a surgical shoe, and noticed another employee wearing the same shoe on the work room floor). See also, Anderson v. Department of the Navy, EEOC Appeal No. 01A50185 (January 26, 2005), request for reconsideration denied, EEOC Request No. 05A50569 (April 6, 2005) (agency failed to show that complainant had actual or constructive knowledge notice of the 45-day time limit for contacting an EEO Counselor).

A CASE UPDATE:
RECENT DECISIONS ADDRESSING RETALIATION

In the following recently issued cases the Commission addressed the issue of retaliation for engaging in protected EEO activity.

Cases Addressing Whether Complainant Has Engaged in Protected Activity.

The complainants in Abordo, et al, and the Estate of James Yell v. USPS, ¹ initially worked as Special Delivery Messengers. They were involuntarily reassigned to other facilities after the agency dismantled the Special Delivery unit to which they were assigned. Complainants filed EEO complaints with regard to that action in 1991. The complaints were held in abeyance pending a decision in a union grievance. Subsequently, on July 15 and 16, 1997, the Special Delivery craft was abolished and the complainants were transferred to other positions. Complainants again filed EEO complaints, asserting that the 1997 transfers were retaliatory. The Commission found that complainants were not subjected to retaliation with regard to that action. The Commission stated that there was no causal connection between the 1991 complaint and the subsequent transfer. While an Arbitrator issued a decision in the previous grievance action on June 10, 1997, the Commission found that such action did not constitute protected activity as the complainants did not actually take part in the action. Citing Clark County School District v. Breedon,² the Commission likened the issuance of the decision to its issuance of a right to sue letter which the Supreme Court had found did not constitute protected EEO activity. In addition, the 1991 complaint did not again become active until July 30, 1997, that is, two weeks after the complainants were transferred. The last time the prior complaint was active was in April 1994, which was too remote in time to establish a causal connection. Thus, complainants failed to show that there was any causal connection between their 1991 complaints and the 1997 transfer, and, as such, did not establish a prima facie case of retaliation.

In Chesney v. USPS,³ the Commission found that being named as a responsible official in an EEO complaint does not constitute protected activity. The complainant was named as a discriminating official in a complaint filed by a co-worker. He subsequently filed his own complaint alleging retaliation when he was denied a higher-level detail and advancement. Complainant stated that he was removed from his detail due to his protected activity which consisted only of having been named in the co-worker's EEO complaint. The Commission found no evidence that the agency's actions were motivated by discriminatory animus. The Commission stated that complainant's status as a person accused of discrimination does not, without more, constitute protected activity.

In Anthony v. Department of the Interior,⁴ the Commission found that the complainant did engage in protected EEO activity when she sent e-mail messages to the Office Director alleging that the agency discriminated against women and African-American employees. Complainant, who was employed as a Program Manager and Attorney Advisor for the agency's Board of Land Appeals, responded to an invitation to comment on the agency's draft Departmental Diversity Plan. She e-mailed the Director of the Board, asserting her belief that the agency had engaged in discrimination and cronyism which disadvantaged women and minorities. She stated that management denied advancement to women while favoring non-competitive promotion of white males for a specific position. Complainant submitted two other e-mails in which she commented on the agency's EEO plan. The Commission found that complainant engaged in opposition to EEO practices that she believed were unlawful when she sent the e-mails raising concerns about the agency's perceived noncompliance with its EEO responsibilities and challenging the diversity plan. Further, in a subsequent meeting, the responsible officials made it clear to complainant, in the presence of others, that her continuing opposition to EEO practices could result in adverse personnel actions. Specifically, after one of complainant's e-mails, she was threatened with discipline and subjected to derogatory remarks. Complainant was also not provided with sufficient inventory to meet her production quota, or assigned the same types of cases as were others who did not speak out. The Commission ultimately found that the record was sufficient to support a finding of retaliation and hostile work environment.

Direct Evidence of Retaliation

The complainant in Rehbein v. Department of the Treasury,⁵ complained to his supervisor that he was being discriminated against on the bases of his race, gender, and age when he was not selected for temporary supervisory positions. He also stated that he would be filing an EEO complaint. A short time later, complainant's supervisor sent him a memorandum stating that he would not certify complainant for management positions, and complainant was nonselected for a supervisory position. The supervisor advised the EEO Counselor that complainant's complaint about the temporary promotions "may have been the straw that broke the camel's back," and that he "wanted complainant to be quiet and not hear any more complaints." The Commission found that the supervisor's statements were direct evidence of discriminatory intent. Specifically, the statements showed the supervisor's displeasure with complainant's protected activity, and were linked to the adverse action he took in writing the memorandum. Further, the supervisor intended to hinder complainant's advancement to higher level positions. The Commission noted that the record showed that the supervisor attempted to cover up his actions by destroying the memorandum, and drew an adverse inference that the memorandum would have evidenced an intent to retaliate against complainant. In addition, the supervisor's failure to certify complainant affected his ability to be promoted to supervisory or management positions. Thus, the Commission concluded that complainant was subjected to retaliation when he was not certified for management positions, and not selected for a specific position. The agency was ordered to promote complainant to a supervisory position, with back pay and benefits, expunge any records regarding the denial of certification for management positions, provide training for the responsible supervisors, and conduct a supplemental investigation with regard to the issue of compensatory damages.

The Commission also found direct evidence of retaliation in Jackson v. Department of the Interior.⁶ Complainant, a Fishery Biologist, contacted an EEO Counselor in November 1999 with regard to pay and promotion issues. Subsequently, his supervisor informed him, both orally and in his performance appraisal, that his dissatisfaction was affecting his performance. The supervisor also told complainant that he would tell prospective employers that complainant almost filed a grievance against the agency. The Commission found that the supervisor's statements constituted direct evidence of retaliation. Specifically, the supervisor commented on complainant's EEO activity in an effort to punish him, and the statements were reasonably likely to deter protected activity. The agency was ordered to pay specified attorney's fees and damages, provide appropriate training to the supervisor, and expunge any adverse or derogatory materials relating to complainant's performance from his records.

Disparate Treatment Discrimination Found

In Payne v. Department of the Air Force,⁷ the Commission found that complainant was subjected to retaliation when she was terminated from employment. Complainant, a dual status military technician, sent an e-mail message to an agency official asserting that she was being harassed due to her race. Complainant advised the official that she would raise allegations of further harassment with the appropriate authorities. Approximately three weeks later, complainant was issued a notice of termination. The notice indicated that complainant was being terminated because of "inappropriate and discourteous e-mail responses" sent to the official, and quoted a portion of complainant's e-mail in which she complained of harassment.

The Commission found that complainant established a prima facie case of retaliation. Complainant engaged in protected activity when she sent the e-mail opposing unlawful racial harassment. Further, the official who issued her the termination was aware of complainant's actions and specifically quoted portions of her e-mail in the notice. Finally, the Commission stated that there was a nexus between the protected activity and complainant's termination less than one month later. The Commission noted that while the agency articulated a legitimate, nondiscriminatory reason for complainant's termination, that is, that complainant engaged in discourteous conduct, complainant showed that the stated reason was a pretext for prohibited discrimination. While the agency indicated that complainant did not properly address the official by rank, there was no written policy requiring her to do so. Further, the record showed that other employees regularly addressed the official by her first name. Finally, although the agency asserted that complainant engaged in other instances of insubordination, the notice of termination focused solely on complainant's e-mail exchange with the official. Thus, the Commission concluded that complainant was subjected to retaliation. The agency was ordered to reinstate complainant, with appropriate back pay and benefits, remove all references to the termination from her personnel records, and provide appropriate training for the responsible officials.

In Arroyo v. USPS,⁸ the Commission found that the complainant was subjected to retaliation when she was terminated from employment. Complainant worked for the agency as a Casual Clerk. In February 2000, complainant advised two management officials that she was being sexually harassed by her first-line supervisor. Subsequently, she was terminated in March 2000. The Commission found that complainant established a prima facie case, in that she engaged in protected activity when she reported the harassment to management, and was terminated less than one month later. The agency asserted that complainant was terminated due to poor performance and her inability to work with all of the necessary equipment. However, the Commission found that the record showed that the agency's reasons were a pretext for prohibited discrimination. Specifically, while the Acting Manager stated that complainant was one of three employees who received the most "unsatisfactory" ratings from the Automation Supervisors, only one Supervisor actually rated complainant as "unsatisfactory." The other two Supervisors rated complainant "outstanding" and "satisfactory" in all areas, including quality of work. Further, other individuals who supervised complainant testified that her performance was satisfactory. The agency was ordered to reinstate complainant, with back pay and benefits, provide training for the named management officials, and pay complainant specific attorney's fees and damages.

The complainant in Keller v. USPS,⁹ was issued a notice of removal two days after she requested reasonable accommodation for her foot condition. The Commission noted that complainant engaged in protected activity when she requested additional floor mats as a reasonable accommodation, and that management was aware of her request. While the agency asserted that complainant was terminated for leaving a door to the facility unlocked, the Commission found that the stated reason was pretextual. Specifically, complainant denied leaving the door unlocked, and the record showed that the key to the door was readily available to all employees. Further, upon discovering the unlocked door, the agency manager did not inventory the building, conduct an investigation, or contact agency inspectors or the police, but instead contacted a labor relations representative to report that complainant had engaged in misconduct. Thus, the Commission concluded that the substantial evidence in the record supported a finding of retaliation. The agency was ordered to provide training for the responsible officials, and conduct a supplemental investigation with regard to the issue of compensatory damages.¹⁰

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Footnotes

¹ EEOC Appeal No. 07A20066 (11/6/03), request for reconsideration denied, EEOC Request No. 05A40305 (September 29, 2004).

² 532 US 268 (2001).

³ EEOC Appeal No. 01A24401 (10/27/03).

⁴ EEOC Appeal No. 01A20111 (3/10/04).

⁵ EEOC Appeal Nos. 01A32184 and 01A43703 (February 15, 2005).

⁶ EEOC Appeal No. 07A30126 (9/28/04).

⁷ EEOC Appeal No. 07A40136 (March 28, 2005).

⁸ EEOC Appeal No. 07A30065 (February 23, 2004).

⁹ EEOC Appeal No. 01A03119 (April 25, 2003).

¹⁰ Complainant had been previously reinstated, with full back pay, as a result of a grievance action.