Carlton M. Hadden, Director, OFO
Jamie Price, Assistant Director, OFO's Special Operations Division
Digest Staff
Editor: Robyn Dupont
Writers: Robyn Dupont, Erin Perugini, Navarro Pulley, Laura Revolinski, Aaron Rubin, Margaret Ruckelshaus, Scott Schaefer

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

(The Commission will now redact Complainants' names when it publishes decisions. Beginning on October 1, 2015, all federal sector appellate decisions issued for publication will use a randomly generated name as a substitute for the name of the complainant, rather than the generic term "Complainant." This randomly generated name will consist of a first name and last initial, and will be assigned using a computer program that selects names from a list of pseudonyms bearing no relation to the complainant's actual name.)

SELECTED EEOC DECISIONS

Agency Processing

Agency Failed to Adequately Investigate Complainant's Claim of Disability Discrimination. Complainant, a Marine Corps veteran, filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability, Post Traumatic Stress Disorder (PTSD), when he was removed from consideration for a Deputy U.S. Marshall position. The Agency issued a final decision assuming Complainant had a covered disability, but concluding that he was not a qualified individual with a disability because of his PTSD. The Agency found that Complainant was disqualified from the position because his PTSD was not fully controlled, and he could "suffer sudden or subtle incapacitation" while serving in the position. On appeal the Commission noted, however, that Complainant's treating psychologist opined that Complainant was not experiencing symptoms of PTSD at that time. The Commission determined that Complainant's history of service to the country, coupled with his noticeable and documented improvement in a relevantly short period of time, suggested that the Agency should have clarified or expanded its individualized assessment. The Commission noted that a personal examination by the Agency's own Contract Psychiatrist would have been appropriate. The Commission ordered a supplemental investigation to clarify the record. Floyd C. v. Dep't of Justice, EEOC Appeal No. 0120121887 (November 3, 2015).

Agency Did Not Properly Process Class Complaint. The Commission found that the Agency did not properly process Complainant's class complaint. The Agency treated the complaint, which alleged race, sex, and disability discrimination as well as reprisal, as an individual complaint and dismissed the matter procedurally. Complainant made several references to a class action during the initial complaint process which reflected an intention to file a class complaint, and it was improper for the Agency to not process the class complaint. The Commission remanded the class complaint for processing, and instructed the Agency to hold Complainant's individual complaint in abeyance until a final determination on class status could be made. Long B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141596 (November 25, 2015).

Agency Improperly Failed to Process Complaint. After Complainant failed to be selected for multiple positions, she filed a formal EEO complaint which alleged that the Agency subjected her to discrimination. The Agency told Complainant that it would not complete the investigation within the regulatory timeframes. On appeal, the Commission noted that Complainant asked the Agency several times how she could request a hearing before an AJ. Instead of providing Complainant with the appropriate information, the Agency gave her a withdrawal notice. The Commission found that the Agency's actions further confused Complainant, who was not attempting to withdraw her complaint. Therefore, the Agency's closure of the matter was improper, and the Agency was ordered to process the matter pursuant to the EEOC's regulations. Jaqueline L. v. Dep't of Justice, EEOC Appeal No. 0120150694 (November 10, 2015).

Agency Failed to Properly Characterize Complainant's Claim. The Agency failed to address Complainant's denial of reasonable accommodation claim, and improperly narrowed its examination of Complainant's hostile work environment claim to two incidents. A fair reading of the complaint and related EEO counseling report revealed that Complainant was raising at least eight incidents of alleged harassment, beginning with the October 2012 denial of reasonable accommodation and ending with his January 2013 removal. The Agency could not determine that Complainant failed to prove a discriminatory hostile work environment without investigating and considering the full range of incidents Complainant alleged made up his claim. Therefore, due to an inadequate investigation, the Commission vacated the Agency's finding of no discrimination and ordered the Agency to conduct a supplemental investigation. Ted L. v. U.S. Postal Serv., EEOC Appeal No. 0120140369 (October 20, 2015).

Agency Failed to Provide Interim Relief While Appeal Was Pending. The Agency appealed an Administrative Judge's (AJ's) finding of discrimination and order to reinstate Complainant. While the appeal was pending before the Commission, the Agency did not reinstate Complainant or provide notice of the Agency's intention to provide or deny interim relief in accordance with the Commission's regulations, which permit the withholding of relief granted to Complainant except for prospective pay and benefits while an appeal is pending before the Commission. The Commission dismissed the Agency's appeal, finding that the interim relief requirement was triggered by Agency's filing of an appeal. The Commission reversed the AJ's decision not to award Complainant attorney's fees for work done on the complaint before filing, but affirmed an across-the-board reduction of hours because of excessively vague and duplicative entries. The Commission also affirmed the AJ's disallowance of an award for hours billed by Complainant's attorney for work done for Complainant's concurrent claim before the Merit Systems Protection Board (MSPB). Karry S. v. Dep't of the Air Force, EEOC Appeal No. 0720140038 (October 9, 2015).

Attorney's Fees

Attorney's Fees Discussed. In a prior decision, the Commission ordered the Agency, among other things, to pay Complainant attorney's fees and costs after finding that it subjected Complainant to reprisal. On appeal from the Agency's final decision in that matter, the Commission increased the award of fees and costs. The Commission initially reduced the amount requested for summarizing a pre-existing medical report finding that the amount requested was not reasonable. The Commission then determined that Complainant's attorney should be compensated based upon the prevailing market rates for attorneys practicing in Washington DC. The Commission found that all of the work performed by one associate was documented and supported by contemporaneously prepared records, and the Agency did not present any evidence showing that the services were excessive or out-of-line with services provided by attorneys with similar experience. The Commission disallowed 0.1 hours claimed by another associate as duplicative. The Commission stated that the Principal Attorney was entitled to time spent reviewing the fee petition given the Attorney's responsibility for ensuring the firm's financial viability. The Commission declined to use an across-the-board reduction for time spent preparing the fee petition, but instead limited fees to only those claimed by one associate. Sanora S. v. U.S. Postal Serv., EEOC Appeal No. 0120133235 (December 11, 2015) (the Commission also discussed the Agency's award of compensatory damages, as noted below. Ed.).

Complainant Entitled to Attorney's Fees for Work to Obtain Compliance with Commission's Final Order. In a previous decision, the Commission ordered the Agency to comply with a settlement agreement and restore 39 hours of Complainant's leave. The Agency did not restore Complainant's leave until ten months after Complainant and the Agency entered into the settlement agreement. Complainant's attorney filed an appeal for breach of the settlement agreement and took additional steps in order to ensure that the agency complied with the agreement. The Agency did not dispute on appeal that it complied with the settlement agreement only after Complainant's compliance efforts. As a result, the Commission found that Complainant was entitled to attorney's fees and costs for the efforts that were made in order to secure compliance with the settlement agreement. Samuel R. v. U.S. Postal Serv., EEOC Appeal No. 0120123028 (December 4, 2015).

Class Complaints

Class Certification Affirmed. The Agency sought reconsideration of the Commission's prior decision certifying a class action alleging race discrimination. The Agency sought reconsideration in light of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), arguing that under Wal-Mart, the class should not be certified because the class members' claims of discrimination lacked a common unifying "glue." The Commission found that the evidence was sufficient to meet the requirement of commonality. Specifically, the evidence showed that there was centralized control over some personnel selections which presented a "common direction" of promotions required under Wal-Mart. The Commission noted that Wal-Mart did not set out a per se rule against class certification where subjective decision making or discretion was alleged. Finally, the manageable size of the underlying class also distinguished it from Wal-Mart. The Commission did, however, limit the class to include African-Americans who served in law enforcement or operational positions and were subjected to discrimination with regard to certain specific actions. Harry A. v. Dep't of Justice, EEOC Request No. 0520120575 (November 17, 2015).

Compensatory Damages

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

Commission Increased Award of Damages to $35,000. In a prior decision, the Commission ordered the Agency, among other things, to investigate Complainant's claim for compensatory damages after finding that it subjected Complainant to reprisal. On appeal from the Agency's final decision in that matter, the Commission increased the award of non-pecuniary damages to $35,000. The Commission noted that Complainant prevailed on only three of the 10 incidents she raised in her complaint, and, as such, her recovery should be 30 percent of the base award. The testimony and documentary evidence, including statements from a psychologist, and a psychiatrist, as well as affidavits from family members, friends, co-workers and Complainant's minister, established that Complainant's preexisting anxiety and depression were aggravated by the discriminatory actions. Although Complainant was able to continue working, her personality and outlook permanently changed from optimistic and hopeful to gloomy and pessimistic, and her personal relationships deteriorated. The Commission considered that Complainant was also exposed to stressors outside of work after the retaliatory incidents occurred which affected her condition. The Commission found that Complainant did not establish the necessary causative link to support a claim for future pecuniary damages, and stated that her claim for lost real estate earnings was speculative at best. The Commission did affirm the Agency's award of $18,255.50 in pecuniary damages. Sanora S. v. U.S. Postal Serv., EEOC Appeal No. 0120133235 (December 11, 2015) (the Commission also discussed the Agency's award of attorney's fees as noted above. Ed.).

Commission Increased Award of Damages to $20,000. The Commission previously found that the Agency subjected Complainant to sexual harassment. The Commission then increased the Agency's award of $6,000 in non-pecuniary damages to $20,000 based upon Complainant's affidavit that she suffered from anxiety, mental anguish and feelings of unworthiness as a result of the Agency's failure to investigate her claims of harassment. Complainant also claimed she experienced ongoing humiliation and provided a letter from her mother attesting to her claim of emotional health. The Commission affirmed the Agency's award of pecuniary damages. The Commission also denied Complainant's request to be reimbursed for her own time in pursing her EEO complaint, stating that the EEOC's regulations do not provide for such reimbursement. Yun C. v. U.S. Postal Serv., EEOC Appeal No. 0120141368 (October 13, 2015).

Dismissals

(See also by category, this issue.)

Agency Improperly Fragmented Claim. Complainant filed a formal complaint regarding a number of actions by Agency managers, alleging that the Agency subjected him to discrimination on the basis of disability. The Agency dismissed four claims for untimely EEO Counselor contact, one claim alternatively for failure to state a claim, and two claims because Complainant filed an appeal concerning his removal with the MSPB. The Commission stated that a fair reading of the complaint revealed that Complainant was alleging that he had been subjected to ongoing discriminatory harassment on the basis of his disability. The allegations were proffered as examples of patterned harassment, and should not have been viewed as separate claims. Since one of the incidents occurred within the 45 days preceding Complainant's EEO Counselor contact, the entire claim of harassment was timely raised. The Commission noted that while the two allegations which were raised with the MSPB could not be considered independent claims of discrimination on their own, they should be considered as evidence in support of the claim of harassment. Bruce P. v. U.S. Postal Serv., EEOC Appeal No. 0120152141 (December 18, 2015).

Complaint Properly Dismissed as Raising a Matter Not Brought to EEO Counselor's Attention. Complainant filed a formal complaint alleging discrimination when he was left to staff a facility without being given coverage for lunch or breaks. The Commission affirmed the Agency's dismissal of the complaint for raising a matter that had not been brought to the attention of an EEO Counselor and was not like or related to the matter on which Complainant received counseling. Complainant sought counseling solely regarding the denial of overtime, and there was no indication that the denial of lunch and break coverage, which occurred at a different facility, was related to the overtime issue. Mac K. v. U.S. Postal Serv., EEOC Appeal No. 0120152577 (December 8, 2015).

Dismissal of Complaint as Stating the Same Claim Raised Previously and for Failure to State a Claim Improper. The Commission found that the Agency improperly dismissed the instant complaint for stating identical claims as those raised in his prior complaint since the record did not contain a copy of Complainant's previous complaint. It is the burden of the Agency to have evidence or proof in support of its final decision. In addition, the Commission found that the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment. Complainant alleged a series of related incidents of harassment beginning in April 2015 which, when taken together, stated an actionable claim of harassment. The Commission remanded the matter to the Agency for further processing. Von E. v. Dep't of Transp., EEOC Appeal No. 0120152502 (December 4, 2015).

Complaint of Harassment Improperly Dismissed for Untimely EEO Counselor Contact and Failure to State a Claim. The Agency dismissed five claims in Complainant's complaint as untimely, and concluded that others failed to state a claim. The Commission, however, held that Complainant alleged an ongoing pattern of discriminatory and retaliatory harassment. Complainant's EEO Counselor contact was timely as to some of the events cited, and, therefore older claims that constituted the same unlawful practice would not be barred. Moreover, a fair reading of the complaint sufficiently revealed a cognizable claim of hostile work environment. Detra W. v. U.S. Postal Serv., EEOC Appeal No. 0120152326 (December 3, 2015).

Complaint Improperly Dismissed. The Agency improperly dismissed one allegation in Complainant's complaint concerning the failure to pay Complainant for time during which he attended an EEO deposition, on the grounds that the matter was an improper spin-off complaint and for failure to timely contact an EEO Counselor. The claim was not a spin-off, but concerned the Agency's purported failure to pay Complainant compensation to which he was entitled. With regard to Complainant's EEO Counselor contact, the Commission noted that Complainant gave the Agency a reasonable amount of time to pay him the four hours identified in this claim and Complainant only developed reasonable suspicion when he emailed his Maintenance Manager on February 15, 2015, and discovered that the Agency still had not processed his pay. The Commission determined that Complainant provided sufficient justification for extending the time limit for contacting an EEO Counselor. Finally, while the Agency dismissed a second allegation concerning the denial of reasonable accommodation as stating the same claim raised previously, the record contained no evidence to support its assertion. Therefore, the Commission reversed the Agency's dismissal. Genaro D. v. U.S. Postal Serv., EEOC Appeal No. 0120152495 (December 2, 2015).

Complaint Properly Dismissed for Filing a Grievance. The Commission found that the Agency properly dismissed Complainant's complaint on the grounds that she filed a grievance on the same matters raised in her EEO complaint. Complainant filed a formal complaint in which she alleged that she was subjected to harassment and a hostile work environment. The record indicated that Complainant had already filed a grievance on the same matters raised in her EEO complaint. The Commission noted that a complainant may pursue discriminatory matters through either the grievance process or the EEO complaint process, but not both. Ashely S. v. Dep't of the Army, EEOC Appeal No. 0120152672 (December 1, 2015).

Complaint Improperly Dismissed. Complainant alleged that she was discriminated against on the basis of race, sex, and color. Specifically, after Complainant and other employees were sent home for lack of available work and then later returned to work, Complainant learned that a similarly situated employee outside of her protected classes was receiving lost benefits but Complainant was not. The Agency dismissed the complaint, stating that it was identical to a class action pending before the Commission and that it was untimely because it was filed more than 45 days after Complainant returned to work. The Commission reversed the Agency's decision, finding first that the issue in Complainant's claim was not sufficiently similar to the class action which concerned the initial decision to send employees home, to be considered an identical claim. The Commission also deemed the complaint timely, because it was filed less than 45 days after Complainant had reason to suspect that discrimination had taken place, which occurred when Complainant learned that the other employee was receiving lost benefits and she was not. Mathilda S. v. U.S. Postal Serv., EEOC Appeal No. 0120152565 (December 1, 2015).

Complaint Improperly Dismissed for Mootness. Complainant filed a complaint when her days off were changed from Saturday and Sunday to Tuesday and Sunday. The Agency dismissed the claim for mootness, asserting that Complainant's days off were restored to Saturday and Sunday under a grievance settlement. On appeal, the Commission found that the claim was not moot because Complainant was requesting to be paid out-of schedule-pay for the times she had to work on Saturdays. Therefore the Agency had not eradicated all the effects of the alleged discrimination. Jonnie C. v. U.S. Postal Serv., EEOC Appeal No. 0120152508 (November 19, 2015).

Complaint Properly Dismissed in Part and Improperly Dismissed in Part. Complainant alleged that she was subject to a hostile work environment on the basis of sex, specifically sexual orientation, and experienced retaliation for engaging in EEO activity. The Agency dismissed the claim of sexual harassment as not being within the jurisdiction of Title VII and dismissed a claim regarding a January 2013 letter of warning as not being timely. The Agency also concluded that Complainant failed to prove that discrimination had occurred. The Commission reversed the dismissal of Complainant's claim of sex discrimination, stating that discrimination based on an individual's sexual orientation is a form of discrimination based on sex stereotypes. The Commission agreed that the letter of warning was not timely, as it was a discrete act that occurred more than 45 days before Complainant contacted an EEO Counselor. However, the Commission stated that the letter of warning could be used as support for Complainant's claim of a hostile work environment. The Commission found that the Agency failed to adequately investigate the claim of harassment and remanded the matter for the Agency to conduct a more thorough investigation. Larita G. v. U.S. Postal Serv., EEOC Appeal No. 0120142154 (November 18, 2015).

Complaint Properly Dismissed Because Complainant Elected to File MSPB Appeal. Complainant appealed his removal to the MSPB and contacted an EEO Counselor on the same day. The Commission affirmed the Agency's dismissal of the complaint on appeal. In its removal decision, the Agency advised Complainant that he could appeal the action to the MSPB if he believed it was discriminatory or initiate an EEO complaint. The Commission stated that an election occurs with the filing of an MSPB appeal or the filing of a formal EEO complaint, not initiating EEO counseling. In this case, Complainant elected to file an MSPB appeal prior to filing a formal EEO complaint. Deangelo C. v. Dep't of Homeland Sec., EEOC Appeal No. 0120152120 (November 13, 2015).

Dismissal of Complaint Improper. Complaint filed a formal complaint in which he alleged that the Agency subjected him to discrimination on the bases of race and age. During a pre-hearing conference, the parties agreed that the case would be held in abeyance with the AJ pending an arbitration decision and Complainant would be given a choice to request a hearing within 30 days of receiving that arbitration decision. Complainant then retired from the Agency. The Agency never issued the arbitration decision to Complainant, and requested that the AJ dismiss the case with prejudice based upon Complainant's retirement. The AJ complied with the request and dismissed the complaint with prejudice. On appeal, the Commission noted that since the arbitration decision was never issued, Complainant was never offered his right to a hearing on the merits of his claims. The Commission stated that the AJ's dismissal based upon Complainant's failure to request a hearing within 30 days of the arbitrator's decision was improper since the arbitrator's decision was never issued. The Commission remanded the matter for an administrative hearing. Andres M. v. U.S. Postal Serv., EEOC Appeal No. 0120152411 (November 12, 2015).

Complaint Improperly Dismissed for Filing a Grievance. The Agency improperly dismissed Complainant's complaint for filing a grievance. There was no evidence that Complainant was involved in the filing of the grievance, which appeared to have been filed independently of Complainant by the union. As such, the Agency did not establish that Complainant elected to pursue the grievance process rather than the EEO complaint process. The Commission found that while Complainant may have participated in the union's grievance, such participation did not constitute an election within the meaning of the Commission's regulations. Ciera B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120152079 (October 21, 2015).

Complaint Improperly Dismissed. Complainant alleged harassment arising from seven incidents over 10 months. The Commission reversed the Agency's dismissal for failure to state a claim with regard to four of the incidents, finding that the Agency improperly fragmented Complainant's claim. The incidents, taken together, alleged a pattern of harassment and set forth a cognizable hostile work environment claim. Additionally, the Commission reversed the Agency's dismissal of six claims as untimely, as at least one incident of harassment occurred within the 45 day period preceding EEO counselor contact. Finally, while the Agency asserted that Complainant filed a grievance with regard to one incident, the Agency failed to provide information showing that claims of discrimination were permitted to be raised in the grievance process. It was clear from the record that Complainant did not have any prior EEO activity, and the Commission, therefore, found that it was proper for the Agency to dismiss reprisal as a basis for the complaint. Isabel F. v. Small Bus. Admin., EEOC Appeal No. 0120151948 (October 14, 2015).

Complaint Improperly Dismissed for Failure to Timely Contact an EEO Counselor and Filing a Grievance. Complainant filed an administrative grievance and contacted an EEO Officer in August 2014, alleging that he was discriminated against when he received a notice of suspension. The EEO Officer advised Complainant to wait until a decision had been rendered on the administrative grievance before beginning the EEO process. Complainant filed a formal EEO complaint on December 30, 2014, which the Agency dismissed for falling outside of the 45-day time limit for initiating counseling and because Complainant had also filed an administrative grievance. The Commission reversed the dismissal, finding that Complainant's initial contact with the EEO Officer in August fell within the 45-day limit for initiating counseling and was thus timely. The Commission also stated that the EEO claim was not barred by the filing of an administrative grievance, though it would have been barred if Complainant's grievance had been filed in accordance with a negotiated grievance procedure set forth by a collective bargaining agreement. Octavio C. v. Dep't of the Army, EEOC Appeal No. 0120151089 (October 14, 2015).

Complaint Improperly Dismissed as Being Moot. After the Agency denied Complainant's request for additional telework days due to complications from her pregnancy and then withdrew her existing telework schedule, Complainant alleged discrimination when the Agency failed to restore leave that she had used as a result. The Agency dismissed the complaint as being moot, stating that Complainant agreed to give up leave restoration pursuant to a union settlement agreement. Complainant acknowledged that, during union negotiations unrelated to a grievance, she agreed to waive restoration of "lost telework days" in return for being granted a five-day per week telework schedule to accommodate her pregnancy-related restrictions. Complainant maintained, however, that she was only referring to the two days in her original telework agreement, and she continued to seek restoration of the additional leave she used before being allowed to telework for the entire week. The Commission found that a fair reading of the complaint showed that Complainant was also alleging retaliation for having requested accommodation of her pregnancy-related complications when the Agency withdrew her original telework schedule. The Commission could not say with confidence that there was no reasonable expectation that the alleged violation would recur, or that interim relief completely and irrevocably eradicated the effects of the alleged discrimination. Specifically, Complainant sustained a loss of leave that had not been remedied. Thus, the Agency was ordered to process the complaint. Taren P. v. Equal Employment Opportunity Comm'n, EEOC Appeal No. 0120113764 (October 9, 2015).

Findings on the Merits and Related Decisions

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

Under the Rehabilitation Act

Disability Discrimination Found with Regard to Non-selection and Failure to Maintain Confidential Medical Records. Complainant filed a complaint after a supervisor rejected his application for a security detail position. The supervisor denied the request after reading a letter from Complainant's psychiatrist that was mistakenly placed in Complainant's personnel file. The letter, which urged special consideration for Complainant regarding a particularly tough performance review, led the hiring supervisor to believe that Complainant was unable to handle stress. Although the Commission noted that Complainant did not prove that he had a disability, it held that he was regarded as having a substantial impairment in the major life activity of working in a wide range of jobs. Further, the supervisor's admission that she did not interview Complainant because of the letter constituted direct evidence of discrimination, and the Commission noted that it was more likely than not that Complainant would have been selected for the job had the supervisor not read the letter. Therefore, the Commission found that the Agency subjected Complainant to disability discrimination when it did not select him for the position. The Commission further found that the Agency's failure to maintain Complainant's confidential medical information in a separate medical file constituted a per se violation of the Rehabilitation Act. The Agency was ordered, among other things, to ensure that all confidential medical information for all employees is kept in a separate medical file apart from the official personnel files, and investigate Complainant's claim for damages. Riley G. v. Dep't of Homeland Sec., EEOC Appeal No. 0120112139 (November 20, 2015).

Denial of Reasonable Accommodation Found. Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of his disability when it denied him reasonable accommodation in the form of teleworking two days per week, with the option to switch telework days for inclement weather conditions. On appeal, the Commission found that the Agency erred when it did not analyze whether Complainant was denied a reasonable accommodation. The Commission noted that, throughout the record, Complainant clearly contended that the Agency was aware of his conditions, and failed to provide him with an accommodation after he requested one. Further, there was no dispute that Complainant was a qualified individual with a disability. The Commission disagreed with the Agency's finding that Complainant's reasonable accommodation "expired," stating that there was no evidence that Complainant's need for an accommodation, which was obvious, was eliminated. The Commission found that the Agency failed in its duty to engage in the interactive process to determine if there was an effective accommodation for Complainant's disability and failed in its obligation to develop an adequate record through investigation. The Commission also found that the Agency failed to show that accommodating Complainant would have resulted in an undue hardship. In regards to Complainant's other complaints the Commission agreed with the Agency that Complainant failed to establish a prima facie case of retaliation and hostile work environment. The Agency was ordered, among other things, to investigate Complainant's claim for damages and provide training for the responsible management officials. Clayton C. v. Dep't of Transp., EEOC Appeal No. 0120120350 (November 17, 2015).

Disability Discrimination Found. The Agency requested that Complainant return to work and denied his further requests for sick leave, even though Complainant and his psychiatrist explained that he could not return to work at that time due to his major depression. Not believing Complainant or his psychiatrist, the Agency required Complainant to submit to a fitness for duty examination, which it used to deny him further use of sick leave for his disability. The Agency did not provide Complainant with any form of reasonable accommodation after it denied him sick leave. As a result, Complainant took annual leave for one month and then retired. During this time, the Agency presented Complainant with no accommodations. The Commission found that the Agency did not demonstrate that the fitness for duty examination was job-related or consistent with business necessity. Further, Complainant was substantially limited in the major life activity of concentrating due to his medical condition. Complainant identified two vacant positions to which he could have been reassigned, and the Agency did not dispute Complainant's assertion that he could have performed the essential functions of either position. The Agency also did not dispute that it failed to engage in the interactive process. The Commission found that due to the Agency's failure to engage in the interactive process, Complainant was left with no other choice but to retire, and that Complainant's retirement amounted to a constructive discharge. The Agency was ordered, among other things, to retroactively offer Complainant an Executive Service position or other mutually agreed upon position, with appropriate back pay and benefits, and investigate his claim for compensatory damages. Arnold C. v. U.S. Postal Serv., EEOC Appeal No. 0120093856 (November 3, 2015).

AJ's Finding of Disability Discrimination Affirmed. The Commission affirmed the AJ's finding that the Agency failed to reasonably accommodate Complainant's disability when it did not significantly reduce his typing requirement or assist him with the walking that was required of his position. The Agency did not dispute that Complainant was a qualified individual with a disability. Further, the record showed that Complainant repeatedly attempted to seek various accommodations and was largely ignored or provided with insufficient accommodation. The Commission stated that after subjecting Complainant to an independent medical examination, the Agency failed to comply with the recommendations of its own physician. The Commission concluded that the Agency was liable for its failure to accommodate Complainant, and the resulting hostile environment which led to Complainant's inability to work. The Agency was ordered, among other things, to pay Complainant back pay from the date of his retirement until the date he either accepted or rejected reinstatement, or the date on which it was determined that Complainant could not be accommodated in the position, as well as pay Complainant $250,000 in proven non-pecuniary compensatory damages. Augustine S. v. Dep't of Homeland Sec., EEOC Appeal No. 0720110018 (October 22, 2015).

Denial of Reasonable Accommodation Found. The Commission found that the AJ's decision to issue a decision without a hearing was appropriate. The Commission found, however, that the AJ erred when she found in favor of the Agency rather than Complainant. The Commission found that, because of her medical conditions, Complainant was substantially limited in the major life activities of performing manual tasks and working. The Commission further determined that while Complainant failed to prove that she was denied a reasonable accommodation when the Agency moved her to a cold work area, Complainant did establish that the Agency denied her reasonable accommodation when management ordered her to work outside her restrictions. According to the record, the Agency was specifically on notice that Complainant was restricted from operating machinery when a supervisor directed her to do so, and, as such the Agency was liable for compensatory damages associated with that action. Mckenzie L. v. U.S. Postal Serv., EEOC Appeal No. 0120073428 (October 14, 2015).

Denial of Reasonable Accommodation Found. Complainant injured his knee and ankle, which prevented him from being able to stand for long periods of time or engage in physical activities such as twisting. The Commission found that the Agency failed to provide reasonable accommodation by placing Complainant in a position that required long periods of standing and walking. The Agency did not fail to provide reasonable accommodation by refusing to place Complainant in the position that Complainant desired but that was incompatible with Complainant's medical restrictions. The Agency satisfied its obligation to provide accommodation when it offered Complainant a position that complied with Complainant's medical restrictions even though Complainant accepted the position with qualifications. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide training for management officials at the facility. Harold M. v. Dep't of the Air Force, EEOC Appeal No. 0120081812 (October 14, 2015).

Denial of Reasonable Accommodation Found. Complainant filed a complaint alleging disability discrimination when he was not provided with a stool at his workstation. The Postmaster agreed that Complainant could use a stool, but required him to go to the register room and retrieve it himself. The Commission found that Complaint was an individual with a disability based upon a note from Complainant's doctor stating that Complainant's conditions left him unable to stand for more than a few minutes at a time. The doctor recommended that Complainant use a stool at his work station. The Commission found that requiring Complainant to retrieve and carry the stool himself was not an effective accommodation given Complainant's limitations in standing and walking, and Complainant was therefore entitled to present a claim for compensatory damages. The Commission found that Compliant failed to establish additional claims of disparate treatment and harassment. The Agency was ordered, among other things, to provide Complainant with a reasonable accommodation and investigate his claim for compensatory damages. Collin R. v. U.S. Postal Serv., EEOC Appeal No. 0120113831 (October 14, 2015).

Denial of Reasonable Accommodation Found. Complainant suffered from episodic migraines related to lighting and continuously asked for reasonable accommodations such as being placed in an office with natural light and installing non-fluorescent lighting. Following a hearing, the AJ issued a final decision finding disability discrimination. The Commission rejected the Agency's contention on appeal that Complainant was not an individual with a disability under the Rehabilitation Act. Complainant's testimony, as corroborated by her doctors, established that the nature and severity of her impairment was such that she was substantially limited in several major life activities, and the Agency did not offer any persuasive evidence to contradict Complainant's testimony. The Commission also rejected the Agency's assertion that it made a good faith effort to accommodate Complainant, stating that the Agency unduly delayed providing her with an effective accommodation, and failed to demonstrate that providing an effective accommodation would have been unduly burdensome. The Commission affirmed the AJ's award of $60,000 in proven non-pecuniary compensatory damages, as well as $3,544.80 in pecuniary damages. The Agency was also ordered, among other things, to provide an effective reasonable accommodation for Complainant's disability. Yessenia H. v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070027 (October 13, 2015).

Under Multiple Bases

Disability Discrimination and Retaliation Found. The Commission found that the Agency discriminated against Complainant when it denied him reasonable accommodation, and subjected him to reprisal when it deterred him from seeking reasonable accommodation. The Agency conceded that Complainant was an individual with a disability as a result of paralysis in his right leg and foot, and that he was qualified to perform the essential functions of his job. According to the record, Complainant, who had limited ambulation, requested accommodation for additional time during his breaks in order to move back and forth to his work station, and also a modification of his arrival and departure times. Complainant identified a number of available potential accommodations, and the Agency did not effectively respond to any of them or show that they would pose an undue hardship. Further, the Commission noted that a request for accommodation is a form of protected EEO activity. The record showed that after an EEO Official advised Complainant that reasonable accommodation was to "help employee[s] do their job and not change their [time on duty]," Complainant believed he could not request an accommodation and did not file a formal accommodation request. The Commission stated that the Agency's actions in deterring Complainant from filing a request for accommodation constituted reprisal. The Agency was ordered, among other things, to engage in the interactive process to determine an appropriate extension time for breaks and adjustment to Complainant's arrival and departure times, and calculate compensatory damages for the harm caused by the reprisal. Harland B. v. Dep't of the Treasury, EEOC Appeal No. 0120130672 (December 10, 2015).

Sex Discrimination and Retaliation Found. Complainant alleged sex discrimination and reprisal, claiming that she was denied a time-off award, that her request for a transfer was denied, and that a supervisor made disparaging comments regarding her protected EEO activity. Following a hearing, an AJ found that the Agency denied the Complainant a time off award because of her sex and prior EEO activity, noting that similarly situated male employees received time off awards under similar circumstances. The AJ also found that the denial of Complainant's transfer request and subsequent disparaging comments constituted reprisal. The Agency accepted the AJ's finding that the disparaging comments constituted reprisal, but rejected the other findings. On appeal, the Commission found that the AJ did not abuse her discretion when she struck evidence proffered by the Agency relating to its alleged legitimate, nondiscriminatory reason for denying the award. The Agency did not produce the documentation within the time required by the AJ, and the AJ found that the delay prejudiced Complainant. Additionally, the Commission held that substantial evidence supported the AJ's finding that the denial of a transfer request constituted reprisal because Complainant's first-line supervisor denied the request in order to preserve the appearance that he had done nothing wrong, while other supervisors and Agency investigators in fact recommended the transfer. The Agency was ordered, among other things, to pay Complainant $33,000 in proven compensatory damages, compensate her for any lost leave and the time off award, and pay appropriate attorney's fees and costs. Zoila P. v. Dep't of Justice, EEOC Appeal No. 0720130036 (November 24, 2015).

Disability Discrimination and Retaliation Found. The Commission reversed the Agency's finding that Complainant was not disabled, ruling that conditions which prevented Complainant from engaging in the major life activity of lifting constituted a disability. The Commission found that the Agency did not fail to provide reasonable accommodation by refusing to adjust Complainant's work schedule, because Complainant did not provide a sufficient nexus between her condition and her work schedule. The Commission did find that the Agency failed to provide reasonable accommodation when it denied Complainant's requests to perform light duty. While the Postmaster claimed that Complainant did not submit updated medical documentation and there was no work available within her restrictions, those contentions were contradicted by the documentary evidence and testimony of two Agency managers. The Commission also ruled that the denial of light duty was retaliatory despite facially reasonable explanations provided by the Postmaster because these reasons were disputed by conflicting testimony from other managers, the Postmaster had referred to Complainant's prior EEO activity when discussing her requests within the Agency, and the request was granted shortly after Complainant contacted a Congressman about the situation. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and restore any leave used as a result of the denial of accommodation. Kylee C. v. U.S. Postal Serv., EEOC Appeal No. 0120090617 (October 13, 2015).

Denial of Reasonable Accommodation, Disability-Based Harassment and Retaliation Found. Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of disability when it denied her reasonable accommodation. On appeal, the Commission rejected the Agency's position that Complainant was not a qualified individual with a disability entitled to reasonable accommodation. The Commission found that Complainant's impairments substantially limited her ability walk and stand, and evidence from Complainant's medical providers clearly established that she was an individual with a disability. The Agency did not argue that Complainant was unable to perform the essential functions of her position. The Commission also found that the Agency denied Complainant's request for reasonable accommodation when the Agency did not allow Complainant to use the elevator during a fire drill and when her supervisors required her to walk back and forth from their offices, instead of allowing her to communicate via e-mail. The Commission stated that one supervisor's testimony that he was not aware Complainant had trouble walking was not credible given the testimony in the record from other employees that they witnessed Complainant have difficulty walking and standing. The Commission also found that the supervisor's actions created a hostile work environment, and constituted disability-based harassment. Further, the Agency retaliated against Complainant when it denied her training. The Commission remanded the matter to the Agency to take remedial action. Iliana S. v. Dep't of Justice, EEOC Appeal No. 0120081848 (October 13, 2015).

Retaliation

Improper Handling of Complainant's EEO Complaint Files Constituted Per Se Reprisal. The Commission found per se retaliation when the Agency's EEO Complaints Manager disclosed documents related to Complainant's prior EEO complaints to the Chief Executive Officer. There was no question that if the Agency believed that Complainant had violated a law or policy, she could be subjected to an investigation like any other employee. In this case, however, the Agency failed to provide a plausible explanation for why Complainant's EEO records needed to be reviewed, if the concern was with her e-mails. The only reasonable explanation was that the Agency was seeking to deter Complainant's protected EEO activity and that of others. The Commission specifically noted that in one of the e-mails cited by management as evidence that Complainant allegedly violated the chain of command, Complainant indicated that she might have been subjected to continued harassment. Thus, Complainant's complaints about harassment resulted in her being investigated. The Agency admitted that Complainant's EEO files were left unsecured in the Chief Executive Officer's office for a period of time, and the Commission found that there was a blatant mishandling of Complainant's EEO complaint files. The Agency was ordered, among other things, to investigate Complainant's claim for damages, and provide appropriate training for the named management officials. Zenia M. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120121845 (December 18, 2015).

Retaliation Found When Agency Investigated Complainant. Complainant filed a formal complaint alleging, among other things, that the Agency retaliated against him when it investigated him for alleged misconduct. Complainant stated that prior to the investigation he told a supervisor that he intended to file an EEO complaint regarding a selection decision because he thought he was being treated differently than other employees. On appeal, the Commission stated that although Complainant's manner of opposition was rather direct and bold, it was not unduly disruptive or insubordinate, or otherwise unreasonable. As such, the Commission found that Complainant engaged in protected EEO activity when he questioned the selection decision, told the supervisor that he had been treated differently than other Federal Air Marshalls, and asserted that he would file an EEO complaint about the matter. Further, the Agency acknowledged that it investigated Complainant because of his EEO activity. Although the investigation did not result in any further action against Complainant, the Commission determined that investigating Complainant was reasonably likely to deter employees from engaging in EEO activity. The Commission found that Complainant failed to prove his additional claims of discrimination and hostile work environment. Devon H. v. Dep't of Homeland Sec., EEOC Appeal Nos. 0120131649 & 0120131684 (December 18, 2015).

Retaliation Found When Agency Failed to Substantiate Reasons for Denying Promotion. Complainant alleged, among other things, discrimination on the basis of reprisal when he was not selected for a promotion. The Agency did not find discrimination. The Commission reversed the Agency and found discrimination on Complainant's claim regarding the denial of promotion, finding that the Agency failed to provide an adequate explanation for not selecting Complainant. The Commission stated that it was not sufficient for the Agency to provide a ranking of the candidates considered for the promotion in which Complainant was ranked last without disclosing how it determined those rankings. The Commission affirmed the Agency's findings of no discrimination regarding a reassignment, a pay increase and training as the Agency was able to provide explanations that were not proven to be pretextual. The Agency was ordered, among other things, to retroactively offer Complainant the promotion with appropriate back pay and benefits, and investigate Complainant's claim for damages. Devon H. v. Dep't of Homeland Sec., EEOC Appeal No. 0120131083 (December 3, 2015).

Unlawful Reprisal Found. Complainant claimed that he experienced reprisal from his supervisors after speaking to another person in management about the supervisors' discriminatory treatment of female employees in the Agency. The Agency claimed that Complainant did not engage in protected activity because his complaints about the supervisors were not specific to the treatment of women. The Commission found that Complainant's activity was protected and the Agency was aware of the protected activity because evidence and testimony indicated that the parties involved knew that his complaints pertained to the treatment of women in the office. The Commission also found that Complainant was subjected to adverse actions shortly after his complaints were made, to which multiple Agency employees attested, and for which the supervisors could offer no credible legitimate explanation. Specifically, the Commission concluded that assertions by two management officials regarding Complainant's work product were not credible and the comments made about Complainant went beyond his work product or personnel issues. Thus, the Commission found that Complainant demonstrated that he was subject to unlawful reprisal for reporting the mistreatment of women by his supervisors. The Agency was ordered, among other things, to offer Complainant a temporary detail. Jeramy R. v. Dept. of Justice, EEOC Appeal No. 0120132089 (November 19, 2015).

Commission Affirms AJ's Finding of Retaliation. When Complainant was removed from his position he filed an EEO complaint in which he claimed the Agency discriminated against him on the bases of race, sex, color, age, and reprisal for prior protected EEO activity. The AJ determined that Complainant failed to establish a prima facie case of discrimination based on race, sex, color, or age, but did successfully establish a prima facie case of reprisal. The Commission affirmed the AJ's findings on appeal. While the Agency asserted that Complainant had performance problems, Complainant was rated "fully successful" or better, and his appraisal did not reference any of the alleged problems. Further, the supervisor's testimony regarding Complainant's performance was contradicted by the testimony of a higher level management official who the AJ found to be credible. The Commission affirmed the AJ's award of $23,375 in non-pecuniary damages due to the emotional harm Complainant suffered from the reprisal. Elbert H. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140032 (November 13, 2015).

Retaliatory Harassment Found. Complainant filed an EEO complaint alleging, among other things, that Agency managers harassed her when they issued a memorandum containing incorrect information about her. Following an investigation, the Agency found no discrimination. On appeal, the Commission found that the memorandum, which expressed concerns about Complainant's ethics and candor, questioned her compliance with Agency policies, and criticized her work, constituted retaliatory harassment. The Agency had previously found that Complainant was subjected to a retaliatory hostile work environment perpetrated by the same individual who drafted the memorandum. The Commission did not view the memorandum in isolation, but stated that it was another incident of harassment and retaliation for Complainant's prior EEO activity. The Commission affirmed the Agency's finding of no discrimination with regard to the denial of Complainant's request to serve as an instructor and evaluator because Complainant did not show that the explanation given for the supervisor's denial of Complainant's requests was pretext to mask discrimination. Anne C. v. Dep't of Justice, EEOC Appeal No. 0120132758 (November 10, 2015).

AJ's Finding of Retaliation Affirmed. The Commission found that the AJ applied the proper causation standard when finding that Complainant was subjected to retaliatory harassment. The Commission noted that the "but for" standard discussed in the Supreme Court's decision in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013) does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not contain the "because of" language on which the Supreme Court based its holdings. In this case, Complainant participated in prior protected EEO activity by filing previous EEO complaints and alleging in his prior workers' compensation claims that he had been subjected to unlawful discrimination and harassment. He also opposed the harassment directly to two supervisors. The AJ correctly found that Complainant was subjected to adverse actions when his supervisor rejected his work reports, told him to bring in more thorough medical documentation, told the police that Complainant should be a suspect in a burglary at the facility, and tried to inform Complainant's future employer about his prior protected EEO activity. The Commission agreed that these actions were reasonably likely to deter an individual from engaging in the EEO process. The Commission further found that Complainant was able to show causation because the record established that retaliation for his prior protected activity more likely than not motivated the challenged actions. The Commission noted that it did not find anything in the record to contradict the AJ's credibility determinations. The Commission did find that a second AJ who issued a decision on damages erred when he limited the harassment timeframe to six months and the Commission clarified that the correct timeframe in which the harassment occurred. Therefore, the Commission increased the award of non-pecuniary compensatory damages to $125,000. Donny F. v. Dep't of Homeland Sec., EEOC Appeal No. 0720130035 (October 20, 2015).

Retaliation Found. Complainant injured herself and requested reasonable accommodation for her disability while simultaneously providing Agency management with medical documentation which outlined her restrictions. After the request, management accused Complainant of lying about her injury and potentially harming herself to support her claims. Agency officials also pressured Complainant to accept an assignment that violated her medial restrictions and charged her with AWOL when she had to undergo surgery. Eventually Complainant was terminated due to unsatisfactory work. Following a hearing, the AJ found, among other things, that Complainant failed to establish a prima facie case of reprisal and did not show that she was subjected to harassment. The Commission found that the AJ erred as a matter of law with regard to the basis of reprisal, noting that a request for reasonable accommodation constituted protected activity under the Rehabilitation Act, and management officials were aware of Complainant's request. Therefore, Complainant established a prima facie case of reprisal. The Commission also found the Agency liable for the hostile work environment based on retaliation since the actions were directly related to Complainant's request for accommodation, and the management officials' actions resulted in Complainant's termination, a tangible employment action. The Agency did not appeal the AJ's finding of disability discrimination when it failed to provide her with reasonable accommodation and terminated her. The Commission affirmed the AJ's order requiring the Agency, as part of its interactive process for reasonable accommodation, to provide Complainant with a list of all vacant positions in the geographic area specified by Complainant on an ongoing basis for a period of 90 days. Tammy S. v. Dep't of Justice, EEOC Appeal No. 0720130022 (October 2, 2015).

Remedies

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

Agency Did Not Fully Comply with the Commission's Order. The Commission previously found that the Agency denied Petitioner reasonable accommodation and retaliated against him. Subsequently, in response to a petition for enforcement, the Commission found that the Agency had not complied with its prior order. The record showed that the Agency correctly deducted the amount that OWCP overpaid Petitioner from the back pay award, but did not provide documentation showing Petitioner's OWCP earnings. The Commission noted that if Petitioner submitted satisfactory documentation showing that he repaid any of the overpayment, the Agency must then pay Petitioner the overpayment amount that he had already paid. In addition, the Agency did not document how it calculated overtime. The Commission noted that it would not find that the Agency was non-compliant for reporting payment of compensatory damages to the IRS as income. However, Petitioner asked for compensation for excess taxes caused by the lump sum back pay award that placed him in a higher tax bracket. The Commission noted that since the Agency was liable for increased tax liability resulting from receipt of a lump sum of back pay it must allow Petitioner to provide explicit and detailed calculations showing the amount he is claiming. Petitioner was not entitled to a uniform allowance for a period in which he did not work, but was entitled to attorney's fees incurred as a result of the petition for enforcement. Emerson S. v. U.S. Postal Serv., EEOC Petition No. 0420130026 (November 20, 2015).

Remedies Discussed. The Agency found that it denied Complainant reasonable accommodation and constructively discharged him. The Agency provided back pay and compensatory damages. Complainant appealed the Agency's decision regarding relief, claiming that he should be provided with two-years of front pay, as well as increased amounts of back pay and damages. The Commission rejected Complainant's claim for increased back pay, finding that the Agency offered Complainant reinstatement in good faith, which he twice rejected along with the ordered back pay award. The Agency properly advised Complainant of his responsibility to report outside earnings, and Complainant's decision to reject the offer of reinstatement terminated the back pay period. The Commission also affirmed the Agency's award of nonpecuniary, compensatory damages of $85,000, taking into consideration prior Commission decisions upholding similar awards. Finally, the Commission found that the Agency rightly denied Complainant's request for front pay. Front pay is available only as an equitable remedy where reinstatement is impossible. Here, the Agency complied with its reinstatement order, but Complainant failed to provide the information necessary to provide effective accommodations. Billy B. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120132680 (November 19, 2015).

Agency Failed to Comply with Order Regarding Back Pay. Petitioner petitioned for enforcement of an order for the Agency to provide him with back pay following an unlawful termination, alleging that the Agency improperly offset back pay owed to him based on outside earnings and improperly excluded a period of time from the back pay calculations. The Agency asserted that because Petitioner had secured employment for a period of time, it offset the back pay award based on Petitioner's hourly wage and number of hours worked per week while he was employed in that position. The Commission upheld the use of Petitioner's alternative employment to offset back pay, but found that the Agency's improperly excluded a period of time during which Petitioner was unemployed from back pay calculations. The Commission found that Petitioner had not failed to mitigate the damages of his unemployment and had been actively seeking work throughout that period. The Commission also stated that Petitioner's prolonged unemployment was at least in part attributable to depression resulting from his unlawful termination. The Commission rejected the Agency's argument that Petitioner was not entitled to additional back pay because he had received compensatory damages, stating that an award of compensatory damages has no bearing on back pay owed by Agency. Damon Q. v. U.S. Postal Serv., EEOC Appeal No. 0420130028 (November 19, 2015).

Agency Complied with AJ's Order. Complainant alleged that the Agency failed to comply with an AJ's order that the Agency offer her a specific position. The Agency offered the position and engaged in the interactive process to find a reasonable accommodation. Complainant accepted the offer but requested a new start date given her disability, and a temporary light duty assignment in another location. The Commission concluded that the Agency's denial of this request did not violate the AJ's order. Stacie D. v. Dep't of Agric., EEOC Appeal No. 0120133016 (November 12, 2015).

After-Acquired Evidence Does Not Bar Agency's Liability for Back Pay and Compensatory Damages. In a prior decision, the Commission held that the Agency discriminated against Complainant when it denied him a medical clearance without conducting an individualized assessment into whether his alleged disability constituted a direct threat. Subsequently, the Agency discovered that Complainant was ineligible for employment because he had not registered with the Selective Service System. The Agency withdrew its conditional offer of appointment and issued a decision denying compensatory damages. On appeal, the Commission rejected the Agency's assertion that the case involved a mixed motive, stating that instead the evidence of Complainant's unsuitability constituted after-acquired evidence which did not bar the Agency's liability for having engaged in unlawful discriminatory conduct. There was no dispute that the Agency discriminated against Complainant when it initially denied him a medical clearance. The Commission concluded that Complainant was not eligible for appointment in light of a determination that retroactive placement into the position was not an available remedy given the decision by the Office of Personnel Management. The Commission found, however, that Complainant was entitled to back pay from the date of his non-selection to the date on which the Agency discovered that Complainant was not suitable, i.e., the date on which it learned that Complainant had not registered for the Selective Service. Complainant was also entitled to compensatory damages, given that victims of discrimination may suffer injury regardless of whether a legitimate reason for an adverse action is subsequently discovered. Harvey D. v. Dep't of State, EEOC Appeal No. 0120122385 (October 22, 2015).

Commission Affirms AJ's Order Requiring Agency to Change its Policy on Reasonable Accommodation. After finding that the Agency discriminated against Complainant when it failed to reasonably accommodate her, the AJ ordered the Agency, among other things, to change its national policy to reflect its obligation to offer reassignment as a reasonable accommodation to Transportation Security Officers. The Agency challenged only that provision of the order on appeal. The Commission has previously held that the determination as to whether an individual is a qualified individual with a disability does not end at the position held by the employee. The Commission rejected the Agency's assertion that requiring it to change its current policy under the Aviation and Transportation Security Act exceeded the Commission's authority. The AJ's remedy merely required the Agency to create a policy that reflected the obligation that it already had, that is to offer a reasonable accommodation in the form of a reassignment when appropriate to Transportation Security Officers. Further, the Agency's Reasonable Accommodation Program Manager testified that it was the Agency's policy that Transportation Security Officers were not eligible for accommodation when they could not meet the statutory requirements of the position, and the Commission concluded that this supported the need for an agency-wide modification of the existing policy. Marielle L. v. Dep't of Homeland Sec., EEOC Appeal No. 0720140024 (October 22, 2015).

Sanctions

Commission Issued Default Judgment for Complainant as Sanction. The Commission sanctioned the Agency for failing to provide the report of investigation in Complainant's complaint. The Commission stated that it notified the Agency of the appeal in 2012, and of the requirement to submit a copy of the entire complaint file. After receiving an incomplete file, and despite numerous informal attempts to obtain the missing information, the Commission issued a Show Cause Order. The Agency produced the hearing transcripts and many of the same documents previously submitted, but did not produce the report of investigation or pre-hearing motions and orders. Therefore, the Commission issued a decision partially in favor of Complainant. The complaint involved multiple non-selections, and the Commission found that the record contained the most available documentary evidence as to one specific Deputy Regional Administrator position. The Commission found that a complete report of investigation would show that Complainant established a prima facie case of reprisal as to that position, and that the Agency's articulated reasons for not selecting Complainant were pretextual. The documentation in the record showed that Complainant was deemed qualified and referred for hiring, and that the alleged responsible official was aware of Complainant's prior EEO activity. Therefore, the Commission concluded that the Agency subjected Complainant to reprisal when it did not select him for the position. The Agency was ordered to offer Complainant the position, and pay him appropriate back pay and benefits. The Commission affirmed the AJ's finding of no discrimination with regard to the other vacancies. Gerald L. v. Dep't of Transp., EEOC Appeal No. 0120123187 (December 17, 2015).

Commission Issued Default Judgment for Complainant as Sanction. After a hearing, an AJ determined that Complainant did not prove that the Agency subjected her to discrimination or harassment. Complainant filed an appeal and the Commission sent a letter to the Agency asking it to provide the complete record pertaining to the complaint. The Agency only partially complied with the request so the Commission issued a "Notice to Show Good Cause Why Sanctions Should Not Be Imposed." Specifically the Notice stressed that the hearing transcript was missing from the record. The Agency never responded to the Notice. Since the Agency failed to submit the hearing transcripts and provided no explanation for its failure to comply, the Commission found that the imposition of sanctions was warranted. The Commission determined that a default judgment was a proper sanction in this case because without a hearing record the Commission could not properly review whether the record supported the AJ's determination and Complainant was prejudiced by the Agency's failure to comply with the Notice. The Commission found that the appropriate remedy in this case was for the Agency to retroactively promote Complainant to a Management Analyst Position with back pay since she was able to establish prima facie cases of discrimination based on race, color, and reprisal. The Commission also ordered the Agency, among other things, to conduct a supplemental investigation on compensatory damages and provide a minimum of eight hours of in-person training to its EEO managers and staff. Amina W. v. Dep't of Energy, EEOC Appeal No. 0120113823 (November 17, 2015).

Settlement Agreements

Breach of Settlement Found. The parties entered into a settlement agreement that provided, in pertinent part, for a person of Complainant's choosing to be present when a specific manager addressed Complainant. On appeal, the Commission found that the agency breached the settlement agreement. The manager confirmed that he spoke to Complainant twice after the agreement went into effect. While he stated that "at least one employee was present," he did not confirm that the person was of Complainant's choosing, as provided for in the Agreement. The Commission stated that Complainant should be given the choice of requiring future Agency compliance with the agreement or reinstating the underlying complaint and voiding the entire agreement, including any benefit she had already received. Jeanie P. v. U.S. Postal Serv., EEOC Appeal No. 0120150898 (December 23, 2015).

Settlement Agreement Void for Lack of Consideration. The agreement at issue provided solely that, in exchange for withdrawing Complainant's complaint, the Agency would "further explore the issues brought to mediation" within 30 days. On appeal, the Commission stated that Complainant incurred a legal detriment by withdrawing her formal EEO complaint but the Agency did nothing beyond what it otherwise would have done even absent an Agreement. Therefore, the Commission found that the settlement agreement was void for lack of consideration, and ordered the Agency to reinstate and process Complainant's original complaint. Yessenia H. v. Dep't of the Navy, EEOC Appeal No. 0120152719 (December 23, 2015).

Agency Acted in Bad Faith and Breached Settlement Agreement. The Agency entered into a settlement agreement with Complainant, but immediately after, tried to argue that no agreement was reached. Three weeks after the agreement was signed providing Complainant with a step increase, the Agency demoted Complainant to a lower grade level. This action was implemented even when the question of the validity of the agreement was pending before the Commission. Following the Commission's determination that the agreement was valid and its order to the Agency to specifically perform, the Agency continued to delay. Soon after providing the Commission with evidence of compliance, the Agency attempted to undo its action by seeking to have Complainant return the funds paid out to her under the promotion. The Commission found that the Agency acted in bad faith by trying to undo an agreement that the Commission had previously found to be valid, and by trying to avoid complying with the Commission's previous order. The Agency was ordered to correct its determination that Complainant was indebted for the amount paid her at the higher salary level in accordance with the settlement agreement. Thomasina K. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120143051 (December 18, 2015).

Breach Found. Complainant and the Agency entered into a settlement agreement, which provided in relevant part that the Agency would continue to accommodate Complainant by allowing him to use his 50 minutes of break/lunch periods as needed throughout the work day. Subsequently, Complainant alleged that the Agency breached the Agreement when it denied him comfort breaks and required him to take an additional 30 minutes for lunch. On appeal, the Commission found that the Agency breached the agreement. Both the Agency and Complainant stated that the 50 minutes had been divided into one 30 minute lunch break and two 10 minute comfort breaks. The Commission found nothing in the agreement that stated that the Agency had the ability to unilaterally alter the amount of time Complainant was required to take for his lunch break. The Commission ordered the Agency to comply with the relevant terms of the settlement agreement. Clayton S. v. U.S. Postal Serv., EEOC Appeal No. 0120152641 (December 9, 2015).

No Breach of Settlement Found. The Agency and Complainant agreed to resolve Complainant's EEO complaint through settlement, with Complainant agreeing to waive his claims in exchange for a lump sum payment. When Complainant did not receive the full amount agreed to in the settlement, he alleged that the Agency breached the terms of the agreement. The Agency concluded that it was not in breach, as the missing amount was offset by the Department of Treasury to cover child support and tax arrears. The Commission found that the Agency had, in fact, paid the full amount promised in the settlement, and that the Agency was not responsible for the offset. Nigel S. v. Dep't of Homeland Sec., EEOC Appeal No. 0120152487 (November 25, 2015) .

No Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement to resolve Complainant's claim of discrimination which provided for Complainant to be transferred to a new location when it was "completed." Complainant argued that Agency breached the agreement by not transferring her when the location opened. The Agency asserted that the location was partially open but still under development, and the department in which Complainant would be employed had not yet become operational. The Commission found that the Agency did not breach the agreement, stating that the plain meaning of the term "completed" was not ambiguous and could not be interpreted to mean "opened." Jonelle R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120152419 (November 12, 2015).

Breach of Settlement Found. Complainant alleged that the Agency breached a settlement agreement when it did not provide him with the monetary incentive of $20,000 that the Agency issues with its offers of Voluntary Early Retirement. The Commission agreed that the Agency breached the agreement. The agreement expressly stated that the Agency would offer Complainant the unrestricted benefits of a Verified Early Retirement plan and specifically referenced Complainant's entitlement to payments and benefits of the plan. The Commission rejected the Agency's arguments that Complainant did not meet any of the eligibility requirements required to receive the $20,000 monetary incentive and that the lump sum payment of $25,000 in compensatory damages was intended as a substitute to the incentive payment. The Agency failed to show that when it offered the Verified Early Retirement plan as consideration, it was actually offering a different Verified Early Retirement Plan without an incentive payment. The Agency was ordered to issue Complainant a payment in the amount of $20,000, plus interest. Darius C. v. U.S. Postal Serv., EEOC Appeal No. 0120142478 (October 14, 2015).

Stating a Claim

Complainant Stated a Viable Claim of Retaliation. The Agency dismissed Complainant's claim that he was retaliated against when he was given an investigative interview. On appeal, Complainant asserted that he had previously been threatened not to participate in, or to file any, additional EEO claims. The Commission found that the complaint stated a viable retaliation claim. The Agency claimed that although Complainant might have felt he was treated differently, the incident did not render Complainant aggrieved. The Commission noted, however, that the anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to advance the statutes' basic guarantees, and claims of retaliation are not limited to actions affecting employment terms or conditions. Clement M. v. U.S. Postal Serv., EEOC Appeal No. 0120152790 (December 23, 2015).

Agency Improperly Dismissed Claim Alleging Requirement to Work at Alternate Location. The Commission found that Complainant's claim that the Agency required him to work at an alternate worksite stated a viable claim of discrimination. Complainant alleged that the Agency restricted his access to the worksite and required him to work at home in an attempt to remove him from employment. The record included a letter from Complainant's supervisor stating that Complainant was being assigned to an alternate worksite because of "behavior that has raised concern," and Complainant asserted that the supervisor was uncomfortable with his seizures. The Commission stated that the change to Complainant's work location constituted a viable allegation of harm to a term, condition, or privilege of employment and stated a claim. Levi S. v. Dep't of the Navy, EEOC Appeal No. 0120151301 (November 25, 2015).

Complainant Stated a Viable Claim of Retaliation. Complainant's allegation that his supervisor approached him in an aggressive manner, yelled at him and threw his belongings stated a viable claim of retaliation. Complainant indicated that he was working on high voltage machinery at the time, and the Commission found that the behavior could deter Complainant from engaging in protected EEO activity. Complainant also noted that the supervisor referred to a co-worker as a "money grubbing EEO employee," which could also reasonably deter Complainant or others from engaging in protected activity. The Commission stated that comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Terrell C. v. U.S. Postal Serv., EEOC Appeal No. 0120152271 (November 12, 2015).

Complaint Improperly Dismissed as Collateral Attack on OWCP Process. A fair reading of the record showed that Complainant was alleging a broader claim that the Agency discriminated against her when it issued her a modified assignment to return to work which conflicted with her medical restrictions, and the Commission found that the matter stated an actionable claim. The Commission noted, however, that Complainant's assertion that Agency officials colluded to include false information on her workers' compensation form was properly dismissed. Chau O. v. U.S. Postal Serv., EEOC Appeal No. 0120152427 (November 10, 2015).

Complainant Stated a Viable Hostile Work Environment Claim. The Agency failed to review the events alleged by Complainant as a claim of ongoing harassment and hostile work environment. A fair reading of Complainant's allegations indicated that she had been subjected to higher scrutiny regarding her whereabouts for over a two-year period, including being instructed to post notes on her office door when she was not there, and not being allowed to work at home while other similarly situated employees were allowed to do so. Considering Complainant's claims together and in the light most favorable to her, the Commission found that Complainant sufficiently alleged a viable claim of hostile work environment harassment. Darlene F. v. U.S. Postal Serv., EEOC Appeal No. 0120141894 (October 21, 2015); see also Kit R. v. Gen. Serv. Admin., EEOC Appeal No. 0120140870 (December 8, 2015) (Complainant's allegations that her second-line supervisor changed her work schedule, including suspending telework; changed her workload; and threatened her stated a cognizable claim of ongoing hostile work environment harassment); Pamela L. v. Dep't of the Army, EEOC Appeal No. 0120150664 (December 8, 2015) (the Agency improperly looked at the incidents in the complaint individually in a piecemeal manner instead of treating the actions as part of Complainant's allegation of hostile work environment harassment); Garry H. v. U.S. Postal Serv., EEOC Appeal No. 0120152560 (December 2, 2015) (the Agency improperly reduced the matters raised by Complainant to allegations relating only to investigative interviews when a fair reading of the complaint and pre-complaint documents showed that the formal complaint addressed a pattern of harassing incidents); Jeffrey G. v. Soc. Sec. Admin., EEOC Appeal No. 0120150645 (October 2, 2015) (Given the breadth of Complainant's claim, a fair reading of the complaint and EEO Counselor's report reflected a series of alleged incidents that included Complainant being harassed based on his race and sex such that the Agency's dismissal for failure to state a claim was improper).

Complaint Properly Dismissed Where No Documentation of Authority to Act on Behalf of Complainant's Estate. The Commission noted that where a Complainant has initiated the EEO process prior to his or her death by at least contacting an EEO Counselor, an estate may represent the deceased complainant. However, failure to provide documentation of authority to act on behalf of an estate can constitute a basis for dismissing the complaint. Here, Complainant's daughter and brother both failed to provide legal documentation establishing that either, or both, was official executor(s) of Complainant's estate, and therefore the Agency's dismissal was proper. Noah S. v. Dep't of Homeland Sec., EEOC Appeal No. 0120141200 (December 17, 2015).

Complaint of Retaliation Properly Dismissed Because Complainant Had Not Engaged in Protected Activity. The Commission affirmed the Agency's dismissal of Complainant's formal complaint for failure to state a claim. Complainant raised only reprisal as a basis for discrimination, but there was no evidence that Complainant engaged in protected EEO activity. Complainant has been named as a responsible management official in other EEO complaints. Being named as a responsible management official in an EEO complaint did not constitute protected activity. Cary J. v. Dep't of the Interior, EEOC Appeal No. 0120140604 (December 3, 2015).

Complaint Properly Dismissed as Collateral Attack on Another Proceeding. Complainant's allegations (that her supervisor did not correctly complete her workers' compensation form, and that she received a letter of demand from the Agency) failed to state a viable claim of discrimination. Complainant should have raised her concerns regarding the workers' compensation form with the Department of Labor, and pursued the demand letter through the Debt Collection Act process. Therefore, the complaint was properly dismissed. Joanna V. v. U.S. Postal Serv., EEOC Appeal No. 0120143159 (November 20, 2015); see also Lyda F. v. U.S. Postal Serv., EEOC Appeal No. 0120152357 (November 13, 2015) (Complainant's allegation that she was denied limited duty compensation constituted a collateral attack on OWCP's administrative process).

Complaint Properly Dismissed as Collateral Attack on Debt Collection Process. The proper forum for Complainant to challenge the propriety of the collection process and validity of her debt was through the administrative process of the Debt Collection Act. In the instant case, Complainant alleged that the subject issue stemmed from the Agency's claim that she had a Sick Leave/Annual Leave overdraft in 2008. The Commission found that the Agency properly dismissed the formal complaint for failure to state a claim. Gaye A. v. Dep't of Def., EEOC Appeal No. 0120152225 (November 3, 2015).

Complaint Properly Dismissed Because Complainant Was Not an Employee or Applicant. Complainant, who admitted she was not an employee or applicant for employment with the Agency, filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability when she experienced problems with the Agency regarding her son's medical treatment, how she was billed, and what insurance coverage was applied. On appeal, the Commission noted that due to Complainant's status as a consumer of the Agency's services, her complaint could not be adjudicated within the EEO complaint process. Clarine L. v. Dep't of Health & Human Serv., EEOC Appeal No. 0120143138 (November 3, 2015).

Summary Judgment

Summary Judgment Affirmed. Complainant filed an EEO complainant alleging discrimination on several bases when the Agency removed her from her position. Over Complainant's objections, the AJ granted the Agency's motion for a decision without a hearing and found no discrimination. Specifically, the AJ noted the Agency's legitimate nondiscriminatory reason for Complainant's termination for unacceptable conduct, and an inability to get along with others, including "failure to follow instructions, confrontational demeanor and abrasive attitude towards management and staff." On appeal, the Commission affirmed the AJ's findings. The Commission found that Complainant failed to establish that there was a triable issue of fact that would lead a reasonable fact finder to find discrimination. Other than Complainant's beliefs and assertions, the Commission found she had failed to establish unlawful discrimination by meeting her burden of persuasion by a preponderance of the evidence that the Agency's action was based on prohibited reasons. Almeda B. v. Dep't of the Army, EEOC Appeal No. 0120142432 (December 11, 2015).

Summary Judgment Affirmed. The AJ granted summary judgment in favor of the Agency on a claim of hostile work environment based on Complainant's sex and age. Complainant appealed the AJ's denial of her motion to amend her complaint to add approximately 200 additional issues. The Commission affirmed the AJ's decision to deny this motion, noting that an AJ has broad discretion in choosing whether to accept additional claims pursuant to the Commission's regulations. The Commission also affirmed summary judgment, finding that even if viewed in the light most favorable to Complainant the allegations of harassment were more indicative of personality clashes than a hostile work environment. Further, the Commission noted that none of the alleged incidents were based on discriminatory or retaliatory animus. Beatriz P. v. Dep't of Homeland Sec., EEOC Appeal No. 0120131313 (November 19, 2015).

Summary Judgment Reversed. Complainant filed a formal EEO complaint claiming disability discrimination, including being issued a Letter of Warning, having to change his medical restrictions when his supervisor threatened that he could no longer accommodate his restrictions, being subjected to derogatory comments by his supervisor, and being denied work on several occasions. Over Complainant's objections, the AJ summarily decided in favor of the Agency. On appeal, the Commission found that summary judgment was not appropriate in this matter due to an inadequately-developed record. The Commission found that the AJ had only considered the disability-based harassment claim and not the reasonable accommodation claim. Further, there was no evidence in the record that the Agency had engaged in the interactive process with Complainant to explore ways he could be accommodated. In addition, while Complainant's manager stated that there was no work available for Complainant within 50 miles, the record was silent as to whether the Agency had actually conducted a 50-mile job search. It was also unclear what happened to the work Complainant had been doing at his own work location as an accommodation, and there was a dispute as to whether work was in fact available. Accordingly, the Commission remanded the matter for a hearing. Bruce P. v. U.S. Postal Serv., EEOC Appeal No. 0120130142 (December 11, 2015).

Summary Judgment Reversed. Complainant filed an EEO complaint alleging that she was sexually harassed by her supervisor, including being subjected to inappropriate comments and touching. Over Complainant's objections, the AJ granted the Agency's motion for a decision without a hearing and issued a finding of no discrimination. On appeal, the Commission reversed the decision and ordered the complaint remanded for a hearing. The Commission noted that other evidence in the record brought into question whether the Agency took the prompt remedial action it was credited with taking. For example, there was evidence that the supervisor was seen at the facility at least twice after the Agency claimed to have removed him from the facility. In addition to factual questions, the Commission noted legal ones. Complainant asserted, for example, that she suffered a tangible employment action in that her pay was withheld due to leave being incorrectly reported by the supervisor. The Commission stated that the Agency would not be able to assert an affirmative defense if the supervisor's conduct resulted in a tangible employment action. Therefore, the Commission found that a hearing was necessary because there were genuine issues of material fact. Celine B. v. U.S. Postal Serv., EEOC Appeal No. 0120120537 (December 9, 2015).

Summary Judgment Reversed. Complainant appealed from an AJ's grant of summary judgment and findings of no discrimination with regard to her disparate treatment, hostile work environment, and reprisal claims. Complainant alleged that her Nurse Manager made racial slurs, and, when she complained about these slurs, the Nurse Manager lowered her proficiency grade and took other retaliatory actions. The Commission reversed the AJ's grant of summary judgment, holding that the AJ improperly made credibility determinations by rejecting Complainant's version of events and substituting the Nurse Manager's version. The Commission also noted that the investigative record was incomplete, especially with regard to additional incidents of harassment, and remanded the matter for hearing. Tamara G. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112387 (December 3, 2015).

Decision on Summary Judgment Reversed. The Commission found that summary judgment was inappropriate because there were genuine issues of material fact in dispute and the record was inadequately developed. First, The Commission found that there was no analysis of whether the medical standard used was job-related and consistent with business necessity. The Commission found that there was a dispute in the record as to whether a simple diagnosis of HIV required additional screening and reassignment in the absence of objective evidence that the employee was having problems performing the essential functions of the job. The Commission stated that the AJ failed to respond to Complainant's allegation that he was forced to undergo a neuropsychiatric examination and periodic blood testing. The Commission noted that there was a dispute in the record as to whether there was sufficient objective evidence to support a neuropsychiatric examination and there was no evidence to support the application of a regulation which required routine surveillance of soldiers with HIV to Complainant who was a civilian employee. Finally, the Commission noted that the Agency's investigation did not secure a meaningful affidavit from the individual whom Complainant alleged had subjected him to harassment. Therefore, the Commission remanded the matter for an administrative hearing. Milford R. v. Dep't of Def., EEOC Appeal No. 0120120081 (December 3, 2015).

Summary Judgment Reversed. Complainant filed a complaint alleging that the Agency subjected him to a hostile work environment and disapproved his leave based on his national origin, age and prior EEO activity. Complainant raised 19 different instances of discriminatory treatment. An AJ granted the Agency's motion for summary judgment, finding that ten of the claims did not occur as alleged, four of the claims provided no basis for imputing liability, four more claims failed to identify similarly situated employees that were treated more favorably, and one final claim identified an instance of discipline undertaken in good faith. On appeal, the Commission held that it was improper for the AJ to make findings on disputed issues of fact absent a hearing. Specifically, the Commission noted that questions concerning leave denials, the absence in the record of the policy regarding leave, and other inconsistencies warranted a hearing and cross-examination. Additionally, the Commission noted that Complainant provided more than mere assertions, and that construing the evidence in the light most favorable to Complainant required the case to be remanded. Edgardo G. v. Dep't of Veterans Affairs , EEOC Appeal No. 0120120189 (November 17, 2015).

Summary Judgment Reversed. Complainant filed a claim of discrimination based on age, alleging that he was subject to a hostile work environment. The Agency motioned for a decision without a hearing, and the AJ granted this motion and found Complainant failed to prove discrimination. The Commission found it improper not to hold a hearing for three reasons. First, Complainant and the Agency offered differing accounts of events that were material to Complainant's claim, which indicated a genuine issue of material fact. Second, the Agency failed to provide documents requested by Complainant that may have substantiated Complainant's allegations, indicating an inadequate investigation into the complaint. Third, the AJ weighed conflicting evidence in favor of the Agency which was improper as the AJ is required to weigh evidence in favor of the non-moving party, and it was inappropriate to deny a hearing when conflicting evidence needed to be resolved. Rusty C. v. Dep't of Def., EEOC Appeal No. 0120114237 (November 12, 2015).

Summary Judgment Reversed in Case Involving Issue of Criminal Background Check. Complainant filed an EEO complaint alleging that the Agency subjected her to disparate treatment and disparate impact discrimination on the basis of race (African-American) when the Agency failed to hire her because of her arrest/conviction record. On appeal, the Commission noted that the Agency did not articulate how Complainant's conviction related to the duties of the Contact Representative position, and how Complainant's conviction rendered her unqualified for the duties of that position. The Commission also noted that the record was not sufficiently developed for it to determine whether there was a disparate impact on African-Americans by the Agency's background check policies or practices. Further development of the record and a hearing were ordered. Taryn S. v. Selective Serv. Sys., EEOC Appeal No. 0120113421 (November 3, 2015).

Summary Judgment Reversed. Complainant requested a hearing before an AJ after the Agency investigated his claim of discrimination when it rescinded his offer of employment. The AJ issued a decision without a hearing finding that Complainant failed to establish a prima facie case of national original and age discrimination. Complainant had formally accepted the Agency's offer which was contingent on the successful completion of employment documentation and requirements. The Commission noted that while the AJ relied upon comparative evidence, a prima facie case can be established without comparative evidence. Complainant claimed that he was repeatedly assured the position was his so long as his security clearance was favorably adjudicated, and he relocated across the country based on those assurances. The Commission stated that once Complainant's security clearance was favorably adjudicated the Agency was free to bring him on board, and Complainant was so far along in the process that as a practical matter there was a question as to whether the offer had been finalized by the time it was withdrawn. The Commission found that Complainant asserted a genuine issue of material fact as to whether the Agency was motivated by discrimination when it rescinded the job offer such that judgment as a matter of law for the Agency should not have been granted. As a result, the Commission concluded that a hearing was necessary. Allan F. v. Dep't of the Air Force, EEOC Appeal No. 0120132640 (October 8, 2015); request for reconsideration denied, EEOC Request No. 0520160083 (March 11, 2016).

Timeliness

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. Complainant initiated EEO counselor contact on August 12, 2014, alleging unlawful retaliation when, on April 11, 2014, she was rated as "not qualified" for a position. The Agency dismissed Complainant's complaint for untimely EEO Counselor contact, and the Commission reversed the agency's dismissal on appeal. The Commission found persuasive Complainant's assertions that she did not reasonably suspect unlawful discrimination until July 2014, when a colleague informed her that the Human Resources Officer stated in a staff meeting that Complainant was "a trouble maker" who "likes to file EEO complaints." The Commission ordered the Agency to resume processing Complainant's complaint. Martine L. v. Fed. Deposit Ins. Corp., EEOC Appeal No. 0120152142 (October 29, 2015).

Untimely EEO Counselor Contact Affirmed Where Complainant Abandoned Complaint. On December 24, 2014, Complainant initiated contact with an EEO Counselor alleging denial of leave based on age and disability. He did not file a formal complaint at the time, pursuing alternative processes. When these processes proved unsuccessful, Complainant again contacted an EEO Counselor concerning the matter and filed a formal EEO complaint. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission affirmed the dismissal, finding that Complainant abandoned his claim when he chose not to pursue the EEO process following his initial contact with the Counselor. The Commission has consistently held that the use of internal agency procedures, union grievances, and other remedial processes does not toll the time limits for contacting an EEO Counselor. August V. v. Dep't of the Treasury, EEOC Appeal No. 0120152782 (December 23, 2015).

Complaint Properly Dismissed for Untimely EEO Counselor Contact. An AJ dismissed Complainant's complaint on the grounds of untimely EEO Counselor contact, and the Commission affirmed the decision on appeal. The AJ found that Complainant's September 20, 2011 EEO Counselor contact was well beyond the 45-day time limitation when, by her own admission, she was notified of her nonselection on April 25, 2011. The AJ rejected Complainant's contention that she did not develop a reasonable suspicion of discrimination until August 30, 2011, stating that, at the very least, Complainant would have developed a reasonable suspicion no later than April 27, 2011, when she became aware that Human Resources was providing her with conflicting information regarding her qualifications for the subject position. The Commission determined that Complainant failed to present adequate justification for extending the limitation period. Lynne E. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120152408 (December 11, 2015).

Complaint Properly Dismissed for Untimely EEO Counselor Contact. Complainant alleged that the Agency subjected her to discrimination on the basis of age when on December 12, 2014, she was terminated from her position. Complainant initiated EEO contact 74 days after the alleged discrimination. The Commission upheld the Agency's dismissal for failure to timely contact an EEO Counselor. The Complainant had, or should have had, a reasonable suspicion of age discrimination well prior to her date of initial EEO contact since she stated that she was harassed for over a year due to her age, and that she had received multiple counseling sessions to which younger employees were not subjected. Complainant did not present adequate justification for extending the limitation period. Stephani G. v. Dep't of Navy, EEOC Appeal No. 0120152423 (November 25, 2015).

Commission Found Sufficient Justification to Excuse Delay in Filing Formal Complaint. Complainant acknowledged that she filed her formal complaint beyond the limitation period, but stated that she did not learn she had been issued a notice of her right to file a complaint until a later date. Complainant noted that while she authorized the Agency to send notices and documents to a home e-mail address, the EEO Specialist sent the notice to Complainant's work address instead. The record showed that Complainant submitted her formal complaint within 4 days of discovering the notice, and the Commission found sufficient justification to excuse the short delay. Starr R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142090 (November 17, 2015).

Complaint Improperly Dismissed as Untimely. The Commission reversed the Agency's dismissal of Complainant's complaint for failure to file within the 15-day limitation period. Complainant argued that his complaint was timely since another person signed for the Notice of Right to File a Discrimination Complaint and he filed his formal complaint within 15 days of when he became aware of the Notice. The Agency did not advise Complainant that it was relying on the doctrine of constructive receipt, or provide Complainant with the opportunity to demonstrate that the individual who signed the Notice at his address was not a family member or member of his household of suitable age and discretion. Therefore, the Commission remanded the complaint for further processing. Felix R., v. Dep't of Def. , EEOC Appeal No. 0120152035 (October 13, 2015); see also Gena C. v. U.S. Postal Serv., EEOC Appeal No. 0120152816 (December 23, 2015) (the Agency failed to inform Complainant that it was relying on the constructive receipt doctrine, which is a rebuttable presumption, to dismiss the complaint where the record contained a certified return receipt for the Notice of Right to File that had been signed for by an individual other than Complainant).

ARTICLE

(The following article is not intended to be an exhaustive or definitive discussion of a complex area of law, nor is it intended as legal advice. The article is generally based on EEOC documents available to the public at the Commission's website at http://www.eeoc.gov/, as well as on Commission case law and court decisions. Some EEOC decisions cited may have appeared in previous editions of the Digest.)

Stating a Claim in the EEO Process:
Determining One's Status as Either an Agency Employee or Independent Contractor
By Navarro Pulley and Laura Revolinski

INTRODUCTION

Complaints of employment discrimination are to be processed in accordance with the Commission's regulations.¹ These regulations apply to all employees of and applicants for employment with covered agencies and departments.² This means that a complainant must be an agency employee or applicant for employment in order to pursue the administrative EEO complaint process.

BACKGROUND

The Commission has applied the common law of agency test set out in Ma v. Dep't of Health & Human Serv. to determine whether an individual is an agency employee versus a contractor.³ In Ma, the Commission highlighted the following factors: 1) agency's right to control the manner and means by which the work is accomplished; 2) the skill required; 3) the source of the equipment and tools used to perform the job; 4) the location of the work; 5) the duration of the relationship between the parties; 6) whether the agency has the right to assign additional projects to the hired party; 7) the extent of the worker's discretion over when and how long to work; 8) the method of payment; 9) the worker's role in hiring and paying assistants; 10) whether the work is part of the agency's regular business; 11) whether the agency is in business; 12) whether the agency provides the worker with benefits such as insurance, leave and workers' compensation; and 13) whether the worker is considered an employee for tax purposes.⁴

The question of whether an employment relationship exists is fact-specific and depends on whether the Agency controls the means and manner of the Complainant's work. This determination requires consideration of all aspects of the Complainant's relationship with the Agency. In the EEOC Compliance Manual⁵, the Commission set out factors indicating that a worker is in an employment relationship with an employer including:

The employer has the right to control when, where, and how the worker performs the job.
The work does not require a high level of skill or expertise.
The employer furnishes the tools, materials, and equipment.
The work is performed on the employer's premises.
There is a continuing relationship between the worker and the employer.
The employer has the right to assign additional projects to the worker.
The employer sets the hours of work and the duration of the job.
The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.
The worker does not hire and pay assistants.
The work performed by the worker is part of the regular business of the employer.
The worker is not engaged in his/her own distinct occupation or business.
The employer provides the worker with benefits such as insurance, leave, or workers' compensation.
The worker is considered an employee of the employer for tax purposes (i.e., the employer withholds federal, state, and Social Security taxes).
The employer can discharge the worker.
The worker and the employer believe that they are creating an employer-employee relationship.

This list is not exhaustive, and not all or even a majority of the listed criteria need be met.⁶ Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship.⁷

The Commission recognizes that a "joint employment" relationship may exist where both the Agency and the staffing firm are joint employers.⁸ A determination of join employment requires an examination of the amount and type of control the staffing firm and the agency each maintain over the Complainant's work, whether or not the individual is on the federal payroll.⁹ For example, the Agency is an employer of the Complainant if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship.¹⁰ The test to determine employment status turns on whether the Agency controls the means and manner of the Complainant's work performance.¹¹

COMMISSION DECISIONS FINDING JOINT EMPLOYMENT

In Cortez J. v. Dep't of the Navy,¹² Complainant stated that the Agency controlled when, where and how he performed his job on a daily basis, and an Agency manager acknowledged that he interacted with Complainant almost daily, including requesting that Complainant perform routine tasks. While the staffing firm completed Complainant's performance appraisal, Agency officials met with the staffing firm supervisor weekly and the record indicated that the Agency provided input for the appraisal. The Commission also found that the Agency had significant input into the decision to terminate Complainant. Thus, the Agency was a joint employer.

In Letty K. v. Dep't of Def.,¹³ the Commission concluded that the Agency exercised sufficient control over Complainant's position to qualify as her employer. Complainant reported to an Agency manager, and stated that she had the authority to make financial decisions on the Agency's behalf. Complainant was also required to obtain a security clearance, and the Agency did not dispute that Complainant worked at an Agency facility using material and equipment it provided to her. While the Agency did not provide Complainant with retirement benefits or leave, or pay social security taxes, the Agency maintained the ability to terminate Complainant. The Commission specifically determined that the Agency's decision to terminate Complainant was indicative of a joint employment relationship.

In Doyle S. v. Dep't of the Interior,¹⁴ the evidence showed that Complainant was paid a fixed price for one year of services and did not receive retirement benefits. The Agency, however, entered into a personal service contract directly with Complainant whereby it specified his duties and responsibilities, and monitored his performance. The Agency controlled the means and manner of Complainant's job and renewed his contractor 13 times. The Commission relied on the Ma factors, five of which supported a finding that Complainant was an employee and three favored a ruling that Complainant was a contractor. The Commission found that Complainant was an employee, stating that the Agency controlled Complainant's duties and responsibilities, monitored his performance, and provided office space, supplies and equipment. Further, Complainant stated that he received paid vacation time, and the Agency acknowledged that his work was critical to its mission.

In Nannette T. v. Dep't of the Army,¹⁵ although many factors indicated that Complainant was a contractor, the Commission considered the nature of the complaint and placed weight on control of the environment. While the contractor provided Complainant with leave and benefits and withheld taxes, and Complainant referred to herself as a contractor, Complainant performed duties related to military intelligence in a top secret Agency facility, using tools, equipment and materials provided by the Agency. Complainant asserted that she worked on a different floor than the contract supervisor and reported to Agency employees, and it appeared from the record that Complainant sought and obtained Agency approval with respect to leave and duty hours. Finally, Complainant raised numerous incidents of harassing comments and behavior that were perpetuated by an Agency supervisor and co-worker and witnessed by most of the Agency employees on her team. The Commission found that Complainant was an employee of the agency. Outside of the Ma factors, the Commission stated that the nature of the alleged harassment indicated significant Agency control over Complainant's daily work environment.

In Jesse R. & Arthur F. v. Dep't of Justice,¹⁶ a majority of factors indicated that Complainants were employees of the Agency rather than contractors. While Complainants worked on premises provided by a staffing firm, performed work requiring a high level of expertise, and received wages and benefits from the staffing firm, the record showed that an Agency manager routinely assigned one Complainant projects and duties, and dictated the other Complainant's schedule, travel and contacts. Complainants also stated that the staffing firm was not involved in their daily work. The Agency set Complainants' work hours and their work directly related to the Agency's mission. Finally, there was no dispute that the Agency made the decision to end Complainants' services, which the Commission found particularly significant because Complainants were alleging discriminatory termination.

COMMISSION DECISIONS FINDING COMPLAINANT WAS A CONTRACTOR

In Jared F. v. Dep't of Def.,¹⁷ the Commission concluded that the Agency did not exercise sufficient control over Complainant's position to qualify as his employer. Complainant's position did not require a high level of skill, and he used equipment provided by the Agency. He also worked on Agency premises for 15 years. The record showed, however, that Complainant was not supervised by Agency staff, and Complainant was not compensated by the Agency. The Agency also did not control when Complainant performed his duties.

In Erick N. v. Nuclear Regulatory Comm'n,¹⁸ the Agency conceded that its staff gave Complainant assignments, and the Agency designated Complainant's hours and where his work was performed and provided him with the tools and equipment needed to perform his duties. The staffing firm, however, handled Complainant's pay and benefits, and Complainant's duties were not related to the Agency's mission. After Complainant had an altercation with an Agency employee, the Agency asked that the staffing firm find a resolution other than terminating Complainant, but the staffing firm conducted its own fact finding investigation and decided to reassign Complainant to other clients. This indicated that the staffing firm retained full power over Complainant's employment, which the Commission regarded as significant enough to deem Complainant a contractor and not an employee of the Agency.

In Aracely J. v. Dep't of the Navy,¹⁹ Complainant performed work at an Agency workspace using Agency equipment. The contract between the Agency and the contractor, however, provided that the contractor was responsible for developing the framework for the program, providing training, and ensuring that personnel completed all necessary functions. In addition, Complainant was supervised by an employee of the contractor, and the contractor controlled the means and manner of Complainant's employment. The Commission also noted that Complainant's duties were not central to the Agency's operations and Complainant characterized herself as a "contractor" in documents accompanying the complaint.

CONCLUSION

Footnotes

¹ 29 C.F.R. §1614.103(a).

² 29 C.F.R. § 1614.103(c).

³ EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)).

⁴Id.

⁵EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000).

⁶Id.

⁷Id.

⁸EEOC's Enforcement Guidance Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997).

⁹Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).

¹⁰Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, at Coverage Issues Question 2.

¹¹EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, page 2-25.

¹² EEOC Appeal No. 0120143162 (May 20, 2015).

¹³ EEOC Appeal No. 0120141849 (April 1, 2015).

¹⁴ EEOC Appeal No. 0120142623 (January 29, 2015).

¹⁵ EEOC Appeal No. 0120142750 (January 28, 2015).

¹⁶ EEOC Appeal Nos. 0120141963 & 0120141762 (January 28, 2015).

¹⁷ EEOC Appeal No. 0120151418 (October 2, 2015).

¹⁸ EEOC Appeal No. 0120142033 (January 28, 2015).

¹⁹ EEOC Appeal No. 0120132837 (January 28, 2015).

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ARTICLE

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