The DIGEST Of Equal Employment Opportunity Law

Fiscal Year 2023, Volume II

The Equal Employment Opportunity (EEO) Digest compiles summaries of notable appellate decisions in the Federal sector. The EEO Digest is published quarterly by the EEOC’s Office of Federal Operations, Special Operations Division.

The U.S. Equal Employment Opportunity (EEOC) redacts complainants’ names when it publishes decisions. All Federal sector appellate decisions issued for publication use a randomly generated first name and last initial, selected by a computer program from a list of pseudonyms without relation to the complainant’s actual name. This protects complainants’ privacy and ensures greater trust in the Federal EEO complaint process.

The summaries below are neither intended to be exhaustive nor definitive as to the selected subject matter. The summaries should not be given the legal weight of case law in citations. To review the entire decision, go to Federal Sector Appellate Decisions.

For more information about the Federal EEO complaint process, please visit Overview Of Federal Sector EEO Complaint Process or email federalsectoreeo@eeoc.gov.

Table of Contents

I. Procedural Dismissal Decisions

a. Failure to State a Claim – 29 C.F.R. § 1614.107(a)(1)

b. Untimely Counseling Contact – 29 C.F.R. § 1614.107(a)(2)

c. Untimely Filing of the Formal Complaint – 29 C.F.R. § 1614.107(a)(2)

d. Allegation Raised in Negotiated Grievance Proceeding – 29 C.F.R. § 1614.107(a)(4)

e. Appeal Made to the MSPB – 29 C.F.R. § 1614.107(a)(4)

f. Complaint is Moot – 29 C.F.R. § 1614.107(a)(5)

II. Decisions on the Merits

a. Title VII of the Civil Rights Act of 1964

b. The Age Discrimination in Employment Act of 1967 (ADEA)

c. Sections 501 and 505 of the Rehabilitation Act of 1973

d. Retaliation

e. Religion and Disability Accommodation

f. Agency Failure to Appeal

III. Remands for a Hearing with an EEOC Administrative Judge

IV. Remedies

a. Compensatory Damages

b. Back Pay

c. Attorney’s Fees

V. Sanctions

VI. Compliance

a. Settlement Agreement

b. Petition for Enforcement
 

I.  Procedural Dismissal Decisions

a. Failure to State a Claim – 29 C.F.R. § 1614.107(a)(1)

❖ Fidelia F. v. Department of the Army, EEOC Appeal No. 2022002824 (Sept. 19, 2022)

The Agency issued a final decision dismissing the complaint for failure to state a claim. In Complainant’s formal complaint, she alleged that she was unable to receive the COVID-19 vaccine due to her physical disability and the Agency denied her travel request due to her non-vaccination status. The EEOC found that Complainant was alleging discrimination based on her vaccination status rather than a disability. The EEOC has consistently held that vaccination status is not a characteristic protected under the statutes it enforces. Therefore, the EEOC affirmed the Agency’s dismissal.

❖ Valentine S. v. U.S. Postal Service, EEOC Appeal No. 2022004565 (Dec. 22, 2022)

The Agency dismissed the formal complaint for failure to state a claim, finding that Complainant raised no EEO regulatory basis for the alleged discrimination and Complainant’s written narrative failed to infer a basis for discrimination. The record shows that Complainant notified the EEO Counselor during a phone call that he was alleging retaliation, but the Counselor failed to check the box for reprisal. In addition, Complainant’s signed complaint form had reprisal checked as a raised basis for discrimination. The EEOC found that the Agency did not refute Complainant's contention that he had previously raised reprisal as a basis during the pre-complaint process. Therefore, given the confusion in the record, the EEOC reversed the Agency’s dismissal and remanded the complaint for further processing.

❖ Julius C. v. U.S. Postal Service, EEOC Appeal No. 2022005005 (Dec. 14, 2022)

The Agency dismissed the complaint for failure to state a claim, reasoning that Complainant was not aggrieved by the management official’s actions. The EEOC found that a fair reading of the EEO Counselor’s Report and EEO complaint reflected that Complainant was claiming that he was denied a religious accommodation. The record showed that Complainant asked his supervisor to be excused from working overtime because, as a Muslim, he was fasting for Ramadan. The supervisor refused to excuse him. The EEOC determined that the issue of whether the supervisor denied Complainant’s request for a religious accommodation stated a viable claim under Title VII, which required further investigation and processing. The EEOC concluded that the Agency erred in dismissing the complaint and remanded the matter to the Agency for further processing.

❖ Gloria L. v. Department of Navy, EEOC Appeal No. 2023000439 (Dec. 15, 2023)

The Agency issued a final decision dismissing the formal EEO complaint for failure to state a claim. The Agency concluded that the four isolated events alleged by Complainant had occurred over an eight-month period, and therefore, Complainant’s discrimination claims were insufficiently severe and pervasive to qualify as harassment. The EEOC, in reversing the Agency’s dismissal, found that the alleged harassing incidents and remarks together, in a light most favorable to the complainant, stated a viable claim of a hostile work environment that merited an EEO investigation. Specifically, the record showed that the Agency’s alleged actions towards Complainant were both disciplinary and formal in nature, as opposed to merely instructive or cautionary. The EEOC reversed the Agency’s dismissal and remanded the matter for further processing.

❖ Liza B. v. Department of the Army, EEOC Appeal No. 2022003214 (Oct. 31, 2022)

The Agency dismissed the complaint for failure to state a claim, arguing that Complainant’s supervisor acted based on Agency policy and the Collective Bargaining Agreement. The Agency asserted that it dismissed Complainant’s failure-to-investigate claim because management did investigate the matter and found legitimate nondiscriminatory reasons for her supervisor’s actions. On appeal, the EEOC found that the Agency’s reasons for dismissing the complaint improperly addressed the merits of the claims without a proper EEO investigation as required by the regulations. Moreover, Complainant’s allegations, considered altogether, were sufficient to state a claim, especially considering Complainant’s retaliation allegations. Further, it was found that Complainant’s allegations were at least materially adverse, and the supervisor’s actions were reasonably likely to deter Complainant or others from engaging in protected activity. Thus, the EEOC reversed and remanded the complaint for investigation and further processing.

❖ Noah W. v. Department of Interior, EEOC Appeal No. 2022003191 (Sept. 27, 2022)

The Agency dismissed Complainant’s complaint for failure to state a claim. The final decision found that the Agency did not exercise sufficient control over Complainant’s position to qualify as a joint employer for EEO purposes. The record showed that Complainant was a contractor with the Company that provides the Agency with Information Technology services. Complainant worked primarily from home but came to the Agency’s facility on a quarterly basis for several hours to update passwords. Complainant filed a formal EEO complaint based on disability and reprisal when the contracting company prohibited him from working in the office without a mask and subsequently terminated him. The EEOC concurred with the Agency and found that the Agency played no part in the Company’s decision to terminate Complainant. Specifically, the record revealed that the Agency informed the Company of the reasonable accommodation issue (Complainant’s medical condition with respect to the mask mandate), the Company was responsible for disability accommodations pertaining to Complainant, and the Company conducted its own investigation and terminated Complainant rather than addressing the accommodation issue. Accordingly, the EEOC affirmed the Agency’s final decision dismissing Complainant’s complaint.

❖ Michell B. v. U.S. Postal Service, EEOC Appeal No. 2022003914 (Nov. 8, 2022)

The Agency dismissed a complaint for failure to state a claim, finding that Complainant’s claim of harassment was not sufficiently severe or pervasive and that Complainant did not allege an injury in fact. On appeal, the EEOC found that Complainant’s harassment allegation was essentially that she was forced to work in the same installation as the Manager who, she alleged, sexually harassed her eight years before. The EEOC noted that, in the formal complaint and EEO counseling records, Complainant alleged that the return of the Manager was causing her post-traumatic stress disorder, panic attacks, heart palpitations, and shortness of breath. However, Complainant had not claimed that the Manager engaged in any harassing behavior after he returned to Complainant’s installation. The EEOC has held that a complainant is not aggrieved by the mere presence of a person because such a claim is analogous to an allegation regarding a proposed action. As such, the EEOC concluded that Complainant did not allege present harm or loss with respect to a term, condition, or privilege of employment. Thus, the EEOC affirmed the Agency’s final decision dismissing the complaint.

❖ Michael S. v. U.S. Postal Service, EEOC Appeal No. 2022003596 (Sept. 12, 2022)

The Agency dismissed the formal complaint for failure to state a claim. Complainant alleged discrimination based on retaliation for engaging in prior EEO activity when management instructed him to leave a public event outside Agency premises, and then loudly threatened him in front of others with being escorted from the event. The EEOC concluded that the Agency improperly dismissed the complaint for failure to state a claim. The available record showed that the claim as defined by the Agency was a constricted construction of Complainant’s claim. More accurately, the claim alleged an ongoing pattern of retaliatory harassment that included, but was not limited to, the public event incident. The EEOC remanded the complaint to the Agency for further processing.

❖ Deandre Y. v. Department of the Army, EEOC Appeal No. 2022002908 (Sept. 20, 2022)

The Agency dismissed a specific portion of Complainant’s EEO complaint, where he alleged that he was passed over for promotion and ultimately forced out of his position by a minimally qualified, younger individual. The Agency asserted that the complaint failed to state a claim, as the selectee had impressive credentials. The EEOC determined that the Agency’s rationale was not relevant to the procedural question of whether Complainant had stated a justiciable claim. The EEOC found Complainant had stated a viable age-based claim and the Agency issued a decision based on the merits without conducting a proper investigation of Complainant’s claim. Thus, the EEOC remanded the age-based complaint to the Agency for further processing.

❖ Sarah H. v. Department of Veterans Affairs, EEOC Appeal No. 2022003096 (Sept. 26, 2022)

The Agency dismissed Complainant’s formal EEO complaint for failure to state a claim. The Agency concluded that Complainant failed to show that she suffered harm or loss to a condition of her employment when Human Resources did not process her request to withdraw from the Federal Employee Health Benefits (FEHB) program. However, the EEOC has long held that insurance coverage is a fringe benefit by virtue of employment, and those disputes over insurance coverage do concern a term/condition of employment. Therefore, the EEOC concluded that Complainant asserted that she suffered personal loss as a result of the Agency’s failure to process her request to withdraw from FEHB. Among other things, she contended that she had experienced issues obtaining prescriptions and getting medical treatment through Medicaid. The EEOC found that Complainant’s complaint stated a claim under its regulations.

❖ Hana D. v. U.S. Postal Service, EEOC Appeal No. 2022003073 (Oct. 19, 2022)

The EEOC found that the Agency improperly dismissed Complainant’s complaint for failure to identify an alleged basis of discrimination. The record showed that Complainant did not check a box to select a covered basis on her formal complaint form and she indicated that she did not know which one it fell under and that it was “maybe retaliation.” The EEOC found, however, that the EEO Counselor’s Report reflected that Complainant alleged discrimination based on mental disability in violation of the Rehabilitation Act. As such, the EEOC determined that Complainant sufficiently raised a covered basis during the EEO complaint process. Therefore, the EEOC concluded that the Agency improperly dismissed the complaint and remanded the matter to the Agency for further processing.

❖ Estefana M. v. U.S. Postal Service, EEOC Appeal No. 2022003369 (Oct. 19, 2022)

The Agency dismissed the formal complaint for failure to state a claim. The Agency reasoned that an investigative interview alone does not render one aggrieved. Complainant alleged discrimination on the bases of her race (African American), color (Brown), sex (female), and reprisal for prior protected EEO activity when she was given a Pre-Disciplinary Interview. The EEOC found that the Agency improperly dismissed Complainant’s complaint regarding the basis of reprisal. In the instant matter, Complainant alleged that a management official called her on the phone and in an elevated voice asked her about delayed mail. Complainant asserted that she subsequently was told to report for a Pre-Disciplinary Interview and bring a representative. During the interview, she asserted that a management official provided a false statement. The EEOC found that the alleged incidents, if proven true, could be reasonably likely to deter Complainant or others from engaging in protected activity. Accordingly, the EEOC affirmed the Agency’s dismissal with respect to the bases of race, color, and sex—but reversed and remanded for investigation Complainant’s claim of reprisal.

❖ Estell L. v. U.S. Postal Service, EEOC Appeal No. 2022004293 (Nov. 21, 2022)

The Agency dismissed the formal complaint for failure to state a claim reasoning that Complainant argued that a less qualified person was selected after the position was reposted. The Agency argued that Complainant did not apply for the reposted position, therefore, she did not state a claim. On appeal, the EEOC found that Complainant set forth an actionable claim, noting that Complainant was referring to the initial position she applied for, interviewed for, and was not selected for. The EEOC determined that Complainant was alleging that the Agency reposted the position in order to not select her, which set forth an actionable claim. Thus, the EEOC reversed the Agency’s dismissal and remanded the complaint to the Agency for further processing.

❖ Latoyia B. v. Department of the Army, EEOC Appeal No. 2023000217 (Dec. 5, 2022)

The Agency dismissed the complaint for failure to state a claim, arguing that Complainant failed to state a claim because the Agency had offered Complainant an alternate reasonable accommodation. The Agency maintained that by offering an alternate accommodation it had granted the request for accommodation. On appeal, the EEOC found that the Agency’s reason for dismissing the complaint improperly addressed the merits of the complaint without a proper EEO investigation as required by the regulations. Although the EEOC determined that the Agency improperly dismissed Complainant’s complaint, it did not find that the Agency’s dismissal warranted the imposition of sanctions. Thus, the EEOC reversed the Agency’s dismissal and remanded the complaint to the Agency for further processing. Joint Employment.

❖ Jon M. v. Department of the Army, EEOC Appeal No. 2022003920 (Nov. 2, 2022)

The Agency dismissed the formal complaint for failure to state a claim. The Agency reasoned that Complainant was neither a Federal employee nor an applicant for Federal employment. Complainant alleged that he was terminated due to false allegations made by an Agency patent law attorney and that these allegations were reported to his staffing firm. Thus, the circumstances surrounding Complainant’s termination were significant to determine whether the Agency was a joint employer for EEO purposes. However, the record was not sufficiently developed to decide whether the Agency was a joint employer. The record was devoid of evidence that the Agency interviewed or even tried to interview relevant officials with Complainant’s staffing firm. Accordingly, the EEOC vacated the Agency’s final decision dismissing Complainant’s complaint and remanded the matter to the Agency for a supplemental investigation. In addition, the EEOC reminded the Agency of its obligation to maintain a firewall between its EEO functions and the Agency’s defensive function due to an email in the record from the Agency labor law attorney stating, “I did a semi-edit to the acceptance letter to make it a denial.”

❖ Floyd C. v. U.S. Postal Service, EEOC Appeal No. 2022004431 (Oct. 19, 2022)

The Agency dismissed the complaint under different procedural grounds: for stating the same claim in a prior complaint and for failure to state a claim. Complainant alleged that he was not permitted to return to work, a claim raised also in his previous complaint and later withdrew by an electronically signed form. The EEOC has held that a “complainant who receives counseling on an allegation but does not go forward with a formal complaint on the allegation is deemed to have abandoned the claim and consequently cannot raise it in another complaint.” As such, the EEOC found that Complainant could not resurrect this previously abandoned claim. However, the EEOC found that Complainant did not abandon the matter of the Agency not permitting him to return to work after he withdrew his complaint. Specifically, Complainant alleged that the Agency continued not to allow him to return to work after signing the withdrawal form for his prior EEO case. Therefore, the EEOC reversed the Agency’s dismissal of claim (1) as to the time after the signing of the withdrawal form until Complainant was permitted to return to work and affirmed the Agency’s dismissals of claims (2) and (3).

b. Untimely Counseling Contact – 29 C.F.R. § 1614.107(a)(2)

❖ Edgardo D. v. Department of Veterans Affairs, EEOC Appeal No. 2022003195 (Sept. 28, 2022)

The Agency issued a decision dismissing all claims under different procedural grounds: (1) for untimely EEO Counselor contact, (2) for not being like or related to the claims in which Complainant received EEO counseling, and (3) for failure to state a claim. Complainant set forth numerous claims involving various time periods in an eight-page attachment to her formal complaint. The EEOC found that a fair reading of Complainant’s complaint reflected that, because of her protected bases (including reprisal), she had been denied advancement at the Agency. While the Agency identified numerous claims comprising Complainant’s complaint, instead of treating these events as incidents in a hostile workplace claim, the Agency viewed them individually and dismissed them on separate dismissal grounds. Thus, the EEOC found that the Agency acted improperly by treating matters raised in Complainant’s complaint in a piecemeal manner. Here, Complainant had alleged a claim of ongoing harassment based on a series of events that occurred from February 1, 2018, to April 19, 2022. The record showed that Complainant contacted the EEO Counselor on March 31, 2022, well within the 45-day time limit. Therefore, the EEOC found that Complainant’s EEO Counselor contact was timely and that the Agency's dismissal for untimely contact was inappropriate. The EEOC reversed the Agency’s decision and remanded the case to the Agency for further processing.

❖ Bonny R. v. Department of Justice, EEOC Appeal No. 2022004406 (Dec. 6, 2022)

The Agency dismissed Complainant’s complaint for untimely EEO Counselor contact and for failure to state a claim. Complainant alleged that the actions comprising her harassment claim continued throughout her initial EEO counseling contact and, therefore, her EEO contact was timely. She also argued that she was subjected to an offensive and harassing investigation for sexual misconduct because she was a woman, whereas the more senior male employee with whom she engaged in the alleged misconduct was treated far more favorably. The EEOC found that Complainant’s claim was timely as she was alleging ongoing harassment. The EEOC also determined that her claim stated a viable claim of sex discrimination that required investigation and further processing. Accordingly, the EEOC reversed the Agency’s dismissal of the complaint and remanded the complaint to the Agency for further processing.

❖ Roman B. v. Department of Defense, EEOC Appeal No. 2022002701 (Oct. 18, 2022)

In its final decision, the Agency identified Complainant’s formal complaint as alleging that the Agency subjected him to discrimination on the basis of disability (mental and physical) when, on October 8, 2021, Complainant was removed from his position and transferred to another position. The Agency dismissed the claim for untimely Counselor contact. The Agency determined that Complainant's initial EEO Counselor contact was on December 15, 2021, and therefore 68 days after Complainant’s transfer. The EEOC determined that a fair reading of the record showed that Complainant alleged that the Agency failed to provide him with a reasonable accommodation beginning in his position as a Commissary Management Specialist and continuing in another Commissary position. As such, the EEOC found that Complainant’s claim addressed an allegation of ongoing reasonable accommodation denial, which should be construed as timely raised. The EEOC has held that an employer has an ongoing obligation to provide a reasonable accommodation, so failure to provide an accommodation constitutes a violation each time the employee needs it. Therefore, the EEOC determined that Complainant timely contacted the EEO Counselor and remanded the matter to the Agency for further processing.

❖ Lakia L. v. U.S. Postal Service, EEOC Appeal No. 2022003209 (Oct. 19, 2022)

In its final decision, the Agency maintained that Complainant received notice of her disability retirement on December 14, 2021, but she initially contacted the EEO Office on January 31, 2022—which was over the 45-day time limitation. On appeal, the EEOC found that Complainant indicated that she was informed of her disability retirement on or before December 16, 2022. The EEOC additionally found that a priority mail envelope regarding the retirement showed a delivery from the Agency to Complainant with an expected delivery date of December 17, 2022. This delivery date would be within 45 days of her contacting the EEO Office. The EEOC noted that the agency always bears the burden of obtaining sufficient information to support a reasoned determination of untimeliness. In finding that the Agency failed to meet its burden, the EEOC reasoned that the Agency did not explain how it determined the relevant date when Complainant’s time to contact the EEO Office began to run. Consequently, the EEOC determined that the Agency improperly dismissed Complainant’s retirement disability claim for untimely Counselor contact and remanded the matter to the Agency for further processing.

❖ Gaylord I. v. Department of Veterans Affairs, EEOC Appeal No. 2022004489 (Dec. 7, 2022)

The Agency dismissed one of Complainant’s non-selection claims for untimely EEO Counselor contact. On appeal, Complainant argued that he did not have a reasonable suspicion regarding the discrimination associated with the selection until the selectee was announced. The EEOC determined that the EEO Counselor contact regarding this claim was within the 45-day EEO Counselor contact requirement. Accordingly, the EEOC reversed the dismissal and remanded the complaint to the Agency for further processing.

❖ Lamar D. v. Department of Homeland Security, EEOC Appeal No. 2022000740 (Nov. 2, 2022)

Following the initial conference with an EEOC Administrative Judge (AJ), the Agency filed a motion to dismiss on the grounds that Complainant’s initial EEO contact on November 4, 2019, was untimely. The Agency argued that Complainant should have suspected discrimination as early as August 28, 2019, when Agency management notified him that all requests to retain him or extend his assignment were denied and sent him paperwork to facilitate his return to his permanent duty station. The AJ granted the Agency’s Motion for Dismissal. However, the record clearly showed that the effective date of the Agency’s personnel action occurred on September 29, 2019. Therefore, the EEOC ultimately concluded that Complainant’s date of initial EEO contact on November 4, 2019, was indeed timely. The EEOC reversed the Agency’s final order dismissing the complaint and remanded the matter to the Agency for further processing.

❖ Spencer T. v. Department of the Army, EEOC Appeal No. 2022003836 (Nov. 10, 2022) 

The Agency dismissed Complainant’s complaint of denial of reasonable accommodation for untimely EEO Counselor contact. The EEOC has held that an employer has an ongoing obligation to provide a reasonable accommodation and failure to provide such accommodation constitutes a violation each time the employee needs it. On appeal, the EEOC found that Complainant’s allegation must be characterized as a recurring or ongoing violation. Complainant’s last day of employment at the Agency was March 16, 2022. Thus, the alleged violation occurred through that date and Complainant had until May 2, 2022, to contact an EEO Counselor. Complainant made contact on April 29, 2022. Therefore, the EEOC concluded that Complainant’s EEO Counselor contact was timely, and the dismissal of his complaint was improper.

c. Untimely Filing of the Formal Complaint – 29 C.F.R. § 1614.107(a)(2)

❖Catherina B. v. Department of Justice, EEOC Appeal No. 2022004083 (Oct. 31, 2022)

The Agency dismissed the formal complaint for being untimely filed. The Agency reasoned that Complainant received the Notice of Right to File a Formal Complaint (Notice) on February 2, 2022, but that she did not file a formal complaint until April 27, 2022, outside of the applicable time period. The record showed that Complainant received the Notice from the Department of State Office of Civil Rights (S/OCR) on February 2, 2022, stating: “[i]f you decide to file a formal complaint, it must be submitted (to S/OCR) on the attached DS-3079 Formal Complaint of Discrimination Form within 15 calendar days of your receipt of this Notice.” However, the form was not attached, which the EEO Counselor confirmed. The record contained an email to Complainant from an EEO Specialist/Informal Team Lead with the Department of State dated April 25, 2022, admitting the error, providing Complainant with the proper form, and stating she had 15 calendar days to file a formal complaint. Complainant then submitted her formal complaint two days later. Based on these circumstances, the EEOC concluded that Complainant’s formal complaint on April 27 was timely filed, reversed the Agency’s final decision dismissing the complaint, and remanded the matter for further processing.

❖ Lyn H. v. U.S. Postal Service, EEOC Appeal No. 2022004796 (Dec. 5, 2022)

The Agency dismissed the complaint as untimely filed. The EEOC determined that Complainant submitted a document sufficient to convey her intent to file a formal complaint, even though it was not on the Agency’s form. Moreover, the Agency provided Complainant with an opportunity to cure the defect within 15 days, which Complainant did. Accordingly, the EEOC reversed the Agency’s dismissal and remanded the complaint to the Agency for further processing.

d. Allegation Raised in Negotiated Grievance Proceeding – 29 C.F.R. § 1614.107(a)(4)

❖Nobuko M. v. U.S. Postal Service, EEOC Appeal No. 2023000106 (Dec. 22, 2022)

The Agency determined that Complainant’s allegation constituted a collateral attack on the grievance process and dismissed the matter for failure to state a claim. The EEOC found that the Agency improperly dismissed the complaint for failure to state a claim because the complaint did not concern the outcome of the grievance, but discrimination in the administration of the grievance process. Complainant’s formal EEO complaint made it clear that she believed the manager’s actions for the duration of the internal processing of the grievance were discriminatory. While the EEOC does not review allegations related to how a grievance was ultimately decided, the EEOC does review allegations of discrimination that an agency’s grievance process was administered in a discriminatory fashion or that a grievance resolution is discriminatory in its implementation. As such, the EEOC found that Complainant’s case fit into an exception to the general rule concerning claims involving a grievance process, and therefore stated a viable claim of discrimination. The EEOC reversed the Agency’s dismissal and remanded the matter for further processing.

❖ Loida J. v. Department of the Army, EEOC Appeal No. 2022002923 (Oct. 31, 2022)

An EEOC Administrative Judge (AJ) granted the Agency’s Motion to Dismiss the complaint on the grounds that Complainant had previously elected to pursue the same claims through the negotiated grievance procedure. The EEOC found that the matters raised during the grievance covered the same incidents and found that Complainant first elected the union forum. Therefore, Complainant was barred from later filing an EEO complaint on the same matters. The EEOC affirmed the Agency’s final order adopting the AJ’s dismissal of the complaint.

❖ Lloyd H. v. Social Security Administration, EEOC Appeal No. 2022003449 (Oct. 19, 2022)

The Agency dismissed Complainant’s two claims for untimely EEO Counselor contact and for raising issues that were previously raised in a grievance procedure that accepts allegations of discrimination. However, the EEO Counselor’s Report indicated that Complainant initiated EEO Counselor contact on March 11, 2022, regarding events that occurred on February 15, 2022, and were ongoing. Therefore, the date of Complainant’s initial contact was well within the 45-day time limit. In addition, the EEOC found that issues in the instant complaint concerned events that occurred several months after Complainant’s grievance was decided. As such, the EEOC concluded that the events alleged in the instant complaint were not the same matters alleged in the grievance procedure. While the record showed that Complainant had engaged in the negotiated grievance process, the record did not contain a copy of the collective bargaining agreement (CBA) sufficient to show that the CBA permitted allegations of discrimination to be raised in a negotiated grievance procedure. Thus, the EEOC could not determine if the negotiated grievance procedure at issue permitted the acceptance of grievances that allege discrimination. The EEOC remanded the complaint to the Agency for further processing.

e. Appeal Made to the MSPB – 29 C.F.R. § 1614.107(a)(4)

❖ Shanta S. v. U.S. Postal Service, EEOC Appeal No. 2022004640 (Dec. 14, 2022)

The Agency dismissed Complainant’s claims of discrimination on the grounds that Complainant had previously filed an appeal with the Merit Systems Protection Board (MSPB) on the same matters. However, the Agency did not provide evidence or proof to substantiate its final decision. Thus, the EEOC reversed the dismissal and remanded the matter to the Agency for further processing.

❖ Royce O. v. U.S. Postal Service, EEOC Petition No. 2022004657 (Sept. 7, 2022)

After the Agency concluded that Complainant had not been subjected to discrimination in Complainant’s mixed case complaint, MSPB’s subsequent finding that it lacked jurisdiction to hear his appeal, the instant petition followed. The EEOC concluded that the matter could no longer be reviewed as a mixed case, since the MSPB did not address any matters within the EEOC’s jurisdiction. In this regard, the MSPB made no determinations on the allegations of discrimination. The EEOC denied the Petition and the matter was referred to the Agency for processing, with notification to the Petitioner of his right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision from the Agency.

f. Complaint is Moot – 29 C.F.R. § 1614.107(a)(5)

❖ Alfonzo M. v. U.S. Postal Service, EEOC Appeal No. 2022003886 (Dec. 21, 2022)

The Agency issued a final decision dismissing the formal complaint on the grounds of mootness. In the instant case, Complainant alleged that the Agency subjected him to discrimination based on disability when he was denied a Request for Notification of Absence and subsequently charged absent without leave (AWOL). Complainant requested a compensatory remedy of $60,000 to resolve his complaint. Complainant alleged he had difficulties paying his bills and experienced sleeping difficulties, among other things, because of the Agency’s alleged actions. On appeal, the EEOC concluded that the Agency improperly dismissed the complaint as being moot, noting that Complainant requested compensatory damages related to the harm caused by the alleged discrimination. The EEOC disagreed with the Agency’s determination that Complainant’s response in support of his damages was not adequate. The EEOC found that the response addressed the merits of his claim, as opposed to the present procedural issue of whether the formal complaint was rendered moot. Moreover, the EEOC determined that Complainant alleged a personal loss or harm to a term, condition, or privilege of employment for which there is a remedy. As such, the EEOC remanded the complaint to the Agency for further processing. 

II.  Decisions on the Merits

a. Title VII of the Civil Rights Act of 1964

❖ Melissia M. v. Department of Homeland Security, Request No. 2021005014 (Oct. 4, 2022)

The Agency issued its final decision, finding that Complainant did not establish discrimination. On appeal, the EEOC modified the Agency’s final decision regarding three claims, finding that Complainant established that the Agency’s legitimate nondiscriminatory reasons for her demotion to a non-supervisory position and her unsatisfactory performance appraisal were pretextual and unworthy of belief. The EEOC found that employees did not corroborate the Agency’s reasons for its actions. Specifically, a subordinate employee stated that the responsible Supervisor had been holding Complainant accountable for duties she was not responsible for. Another subordinate employee believed that the supervisor had been subjecting Complainant to discrimination, explaining that she observed the supervisor treating Mexican women, like herself, poorly. The EEOC further found that another employee attested that the supervisor showed favoritism to non-Hispanic employees and that Complainant may have been subjected to discrimination. Based on the record, the EEOC concluded that it was more likely than not that the supervisor was motivated by discrimination based on Complainant’s sex and national origin. The EEOC additionally determined that the supervisor’s actions were severe or pervasive enough to constitute a hostile work environment and that the Agency was liable because the harassment resulted in tangible employment actions. The EEOC ordered the Agency to, among other things, conduct a supplemental investigation and determine the appropriate amount of compensatory damages due to Complainant.

❖ Melanie F. v. Department of Homeland Security, EEOC Appeal No. 2021002205 (Sept. 26, 2022)

A final agency decision (FAD) was issued finding that Complainant failed to show unlawful harassment. The Agency asserted that Complainant did not show that the actions were race-based or sufficiently severe to establish a hostile work environment. In her formal complaint, Complainant alleged discrimination on the bases of race (African American/Haitian American), national origin (Haitian American), color (Black), and in reprisal for prior protected EEO activity. Complainant alleged that she was subjected to racially insensitive and inappropriate comments, that an employee came into her office and drew a caricature of a monkey on her whiteboard, and that she was involuntarily transferred to a different office location. On appeal, the EEOC held that the evidence clearly showed that the alleged incident—of a monkey face drawn on her whiteboard while she was in court—occurred as Complainant alleged and that the harassment was directed to her because it was in her private office. Further, the EEOC found that Complainant was the only African American employee in her unit. The EEOC reasoned those racial stereotypes have persisted to the present with characterizations of African Americans as monkeys, apes, and other animals. The EEOC has held that a single incident of a racial comparison to an animal may create a hostile work environment. As such, the EEOC found that Complainant established that she was subjected to unwelcome racial conduct from a supervisor, which created an offensive and hostile work environment.

Furthermore, after she reported the incident, Complainant was temporarily and then permanently reassigned based on her “voluntary” transfer request. The EEOC found that the reassignment was involuntary and that she was subjected to a discriminatory hostile work environment. The Agency argued that it should not be held liable for the actions of a supervisor because, once it was informed of supervisor’s conduct, it took prompt action to correct his actions. The record showed that the Agency pulled the supervisor from his assignment, put him on an alternative work schedule for three weeks, removed his acting supervisor title, and verbally counseled him. While the record did not indicate that further racial harassment occurred from the supervisor, Complainant contended that the Agency did not take sufficient remedial measures and corrective action. The EEOC concluded that the Agency was under an obligation to do “whatever is necessary” to end harassment, to make the victim whole, and to prevent the misconduct from recurring. In harassment cases, the EEOC has generally found that an agency may not involuntarily transfer or reassign the victim of the harassment but should instead transfer or reassign the harasser. In this case, the Agency involuntarily and permanently reassigned Complainant (who was the victim) to a less desirable situation. Complainant incurred relocation costs and lost her private office. Therefore, the record showed that the Agency’s actions had not fully and effectively corrected the effects of the discriminatory harassment on Complainant. The Agency did not satisfy the elements of its affirmative defense. Accordingly, the EEOC found the Agency liable for the hostile and offensive work environment created by the supervisor and the aftermath of harm caused by the actions of management. The EEOC reversed the FAD and ordered the Agency to take remedial actions.

❖ Zonia C. v. Department of Justice, EEOC Appeal No. 2021001326 (Sept. 20, 2022)

Over Complainant’s objections, the EEOC Administrative Judge (AJ) assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision finding no discrimination and/or harassment. In the decision, the AJ determined that Complainant failed to state a claim because the alleged incidents were not of sufficient severity or pervasiveness to constitute an actionable claim. The AJ further noted that the evidence failed to support that Complainant was subjected to an adverse employment action. As for Complainant’s claim of a hostile work environment, the AJ found that the record evidence was insufficient to support the claim and, furthermore, insufficient to show that the alleged harassment was based on Complainant’s protected classes. On appeal, the EEOC found that, considered as a whole, the record established that Complainant was subjected to harassment based on race. The alleged harassment also clearly affected the terms and conditions of her employment as the supervisor created difficulties when she requested leave, threatened her position, threatened her with violence, and failed to evaluate Complainant. For example, the record revealed that the supervisor used the word “crackers” when speaking with Complainant about White employees and attempted to create a divisive atmosphere, which Complainant reported to multiple management officials. The EEOC further found that these incidents of race-based harassment were sufficiently severe to constitute a hostile work environment and found the Agency vicariously liable.

❖ Mac O. v. Department of Veterans Affairs, EEOC Appeal No. 2021004377 (Nov. 29, 2022)

An EEOC Administrative Judge (AJ) granted Summary judgment in the Agency’s favor on a portion of Complainant’s complaint. The EEOC found that, while the summary judgment was appropriate, the AJ should have partially rendered a decision in Complainant’s favor. The EEOC specifically found that Complainant, an Associate Chaplain, established that the Agency’s nondiscriminatory reasons for denying him site visits were pretextual based on his race (African American). The EEOC determined that management’s reasons for denying Complainant travel to site visits had inconsistencies and contradictions. For example, the Director first attested that there was no money for site visits in fiscal year 2019 and no Associate Chaplain conducted site visits that year. Later, the same Director admitted that an Associate Chaplain did in fact conduct a site visit. Therefore, the EEOC found that the Director’s shifting explanations established that her reasons for denying Complainant the site visits were motivated by discrimination.

In addition, the EEOC found that Complainant engaged in protected EEO activity when he expressed concern and support for allegations of harassment and discrimination raised by other employees. The EEOC determined that the Director was aware of this protected activity and that Complainant proved that the Agency retaliated against him for protected EEO activity when it stopped allowing him to conduct site visits. The EEOC ordered the Agency to, among other things, conduct a supplemental investigation and determine the appropriate amount of compensatory damages due to Complainant.

b. The Age Discrimination in Employment Act of 1967 (ADEA)

❖Brenda M. v. Department of Veterans Affairs, EEOC Appeal No. 2021003686 (Dec. 5, 2022)

The Agency issued a final decision finding no discrimination/harassment based on disability and age regarding six workplace incidents, including claims of telework, reasonable accommodation, duty station, and retirement. On appeal, the EEOC found age discrimination when management attempted to force Complainant to change her duty station. However, the EEOC found that Complainant neither lost any earnings as a result nor did her position change. Consequently, the EEOC determined that Complainant was not entitled to back pay or benefits typically associated with a finding of discrimination. The EEOC also found that, due to the finding of discrimination only on the basis of age, Complainant was not entitled to compensatory damages as these are not available in cases involving age discrimination. Accordingly, the EEOC ordered training and the consideration of disciplinary action for the manager involved.

❖ Mercedez A. v. Department of Justice, EEOC Appeal No. 2021000657 (Oct. 4, 2022)

After a hearing, an EEOC Administrative Judge (AJ) found that the Agency’s decision not to select Complainant for a Procurement and Property Specialist position was due to discrimination because of her age and sex. On appeal, the EEOC found that the record showed that Complainant was a far superior candidate for the position and had performed significant procurement work in a prior job for years. The EEOC considered that the selectee was 25 years younger than Complainant and she did not have relevant experience for the position at issue. Based on Complainant’s superior qualifications and the dubious reasons for her non-selection, the EEOC found that substantial evidence in the record supported the AJ determination that discrimination played a role in the selection decision. The EEOC also agreed with the AJ’s finding that the reassignment of her duties was due to discrimination based on age and sex. Specifically, the EEOC found no evidence in the record that Complainant was improperly performing her duties, as the Agency alleged. The EEOC ordered the Agency to provide Complainant with back pay, compensatory damages, and attorney’s fees, among other relief.

c. Sections 501 and 505 of the Rehabilitation Act of 1973

❖ Mary B. v. U.S. Agency for Int’l Development, EEOC Appeal No. 2021002184 (Sept. 6, 2022)

The Agency issued a final decision concluding that Complainant had not been discriminated against and subjected to a hostile work environment on the bases of disability and reprisal. On appeal, Complainant only challenged the placement of her medical records on the Agency’s public shared drive. The EEOC concluded the Agency violated the Rehabilitation Act by not keeping Complainant’s medical records confidential. The EEOC ordered the Agency to expunge Complainant’s confidential medical information, provide training to management, and conduct a supplemental investigation into Complainant’s entitlement to compensatory damages.

❖ Barney G. v. Social Security Administration, EEOC Appeal No. 2021000802 (Sept. 12, 2022)

The Agency’s final decision found neither discrimination nor a hostile work environment based on sex, disability, and age. Complainant alleged that the Agency denied him telework as a reasonable accommodation, harassed him with requests for additional medical documentation, and denied him similar opportunities given to other employees. On appeal, the EEOC reversed the Agency’s decision in part—concluding that, while Complainant was not subjected to a hostile work environment, the Agency had failed to provide him a reasonable accommodation. The EEOC determined that the medical record and testimonial evidence showed that Complainant could perform the essential functions of his position with a telework accommodation. The Agency did not raise the defense of undue burden and the record did not support such a finding. The EEOC ordered the Agency, among several things, to engage in the interactive EEO process, provide Complainant with a reasonable accommodation, and conduct a supplemental investigation into Complainant’s entitlement to compensatory damages.

❖ Jeramy C. v. Department of Defense, EEOC Appeal No. 2021004849 (Oct. 11, 2022)

After conducting a hearing, an EEOC Administrative Judge (AJ) issued a decision finding that the Agency discriminated against Complainant based on his disability. Specifically, the AJ found that Complainant’s job offer was rescinded for reasons that were not job-related or consistent with business necessity because there was no evidence that the Agency conducted an individualized assessment of Complainant’s ability to perform the position. Moreover, the AJ found that Complainant was not offered the opportunity to request reasonable accommodation or to engage in the interactive EEO process to discuss the possibility of reasonable accommodation.

The Agency issued a final order rejecting the AJ’s determination and filed an appeal with the EEOC. The Agency argued that it appropriately determined that Complainant was not a qualified individual with a disability as he failed to successfully complete his pre-employment physical examination. The Agency maintained that its Physician Assistant assessed Complainant’s condition and determined that his condition would be made worse by the function of the job. In reversing the Agency’s decision, the EEOC determined that substantial evidence supported the AJ’s determinations and that the Agency failed to show that Complainant was not qualified to perform the physical aspects of his position with or without reasonable accommodation. The EEOC concluded that the Agency made a subjective evaluation of the risk of Complainant’s future injury and failed to conduct the necessary individualized assessment of Complainant’s ability to perform the essential functions of the position. The Agency’s final order was reversed and remanded, with slight modifications to the original remedies ordered by the AJ.

❖ Valerie L. v. U.S. Postal Service, EEOC Appeal No. 2021003877 (Nov. 16, 2022)

In its final decision, the Agency concluded that Complainant failed to prove that management subjected her to discrimination or reprisal as alleged. Complainant alleged that the Agency discriminated against her on the bases of disability, age, and in reprisal for prior protected EEO activity when it disallowed her bid assignment. In 2019, Complainant requested accommodations from management to mitigate difficulties arising from her occasional Lupus flare-ups. Complainant testified that she could perform all the duties of her current position, except when she had a very severe Lupus flare-up, which caused her difficulty in climbing three or more flights of stairs consecutively. In April 2020, Complainant was awarded a bid (BID1) for a Part-Time Flexible carrier position because she was the senior bidder. Complainant did not explicitly request the continuation of an accommodation and management did not require that Complainant provide medical documentation prior to being awarded BID1. However, when the Complainant bid on a Full Time Regular Carrier position in August 2020 (BID2) and then January 2021 (BID3), management requested that she submit documentation removing all medical restrictions and stating that she was physically fit to perform the full duties of the position. Since Complainant did not provide the medical documentation, she was not granted the position. The Agency argued that Complainant was not qualified for the position at issue.

On appeal, the EEOC found no discrimination based on age or reprisal. However, with respect to the non-selection, the EEOC found that it was undisputed that, during the relevant time frame, Complainant had successfully performed every task associated with the position of mail carrier. The EEOC determined that the record did not demonstrate that providing Complainant a reasonable accommodation would cause an undue hardship. Moreover, the EEOC found that the Agency failed to demonstrate that it made a good faith effort to provide Complainant with a reasonable accommodation and it failed to engage in the interactive EEO process. Accordingly, the EEOC concluded that damages may be awarded to Complainant. The EEOC reversed the Agency’s finding of no discrimination based on disability and ordered the Agency to take remedial actions.

❖ Tanya D. v. Department of Justice, EEOC Appeal No. 2022002544 (Nov. 21, 2022)

The Agency filed a motion for a decision without a hearing, which the EEOC Administrative Judge (AJ) granted over Complainant’s objections. The AJ found that Complainant was not an individual with a disability and that the Agency articulated legitimate, nondiscriminatory reasons for its actions in reassigning Complainant to a main office position and scrutinizing her time and attendance records. In her formal complaint, Complainant alleged discrimination based on the bases of sex (female), disability, and reprisal over several incidents. However, on appeal, she only challenged the denial of reasonable accommodation. The EEOC concluded that Complainant was a qualified individual with disability and the Agency violated the Rehabilitation Act by failing to provide her with a reasonable and effective accommodation for her disability by refusing to provide her with a flexible schedule. Specifically, the EEOC found that any concerns with the quality of Complainant’s performance were irrelevant in determining whether Complainant was entitled to an accommodation. The EEOC emphasized that the pertinent question was whether the Agency could have accommodated Complainant’s disability without incurring an undue hardship—not whether Complainant’s performance merited special privileges. The EEOC found the Agency liable for compensatory damages and remanded the case for the Agency to conduct a supplementary investigation into the amount of damages to which the Complainant is entitled.

❖ Antwan N. v. Department of Homeland Security, EEOC Appeal No. 2022001315 (Dec. 5, 2022)

The Agency issued a final decision finding no discrimination. Complainant alleged discrimination based on his disability (hearing and speech impairment) when the Agency denied his medical waiver request and subsequently rescinded his tentative offer of employment. The Agency explained that Complainant would “have difficulties communicating using a telephone to gather and exchange information and communicating verbally with members of the staff and public.” In addition, the Agency stated that Complainant “did not provide any examples to demonstrate the ability to localize sound and exchange information in emergency situations, particularly in remote environments where technology may not be available.” The Agency asserted that this “would likely affect the safe and efficient performance of the essential job tasks.” According to the Agency, Complainant needed to pass the hearing test because the position was in a “law enforcement environment.” However, the record showed that the position varied significantly by duty station and the Agency did not apply its concerns about Complainant’s limitations to the environment of the position in question. In addition, the record revealed that the position was not a law enforcement or weapons-carrying position and lacked the other physical requirements for law enforcement officers.

The EEOC concluded that, based on the record, it was undisputed that Complainant was not hired for the position solely because of his disability. Moreover, the EEOC found that the results of Complainant’s hearing tests alone did not constitute adequate evidence that he posed a significant risk of substantial harm to the health and safety of himself or others. Therefore, the EEOC found that the Agency failed to conduct an adequate individualized assessment of factors such as the likelihood that potential harm would occur if Complainant was hired. Moreover, the Agency did not adequately distinguish Complainant from the two other Agency employees working in the same position with similar hearing impairments. Accordingly, the EEOC reversed the Agency’s final order and concluded that the Agency violated the Rehabilitation Act when it failed to grant Complainant a waiver of the hearing requirements. The EEOC remanded the matter back to the Agency for corrective action.

❖ Tyson A. v. U.S. Postal Service, EEOC Appeal No. 2021004945 (Nov. 7, 2022)

The final agency decision (FAD) found no discrimination based on disability and reprisal when Complainant was sent to a fitness for duty reevaluation. On appeal, the EEOC agreed that the Agency’s disability-related medical examination was not improper. Specifically, the record revealed that on March 30, 2017, Complainant was placed on administrative leave/non-duty status after his fitness for duty examination found him not fit for duty. In 2019, a reevaluation was needed to determine if Complainant had achieved sufficient clinical stability of risk “to safely return to work and not pose a risk to others or himself.” The testimonial evidence in the record indicated that in the fitness for duty evaluation from 2017, Complainant was provided a series of recommended steps and sessions that could allow the Complainant to return to duty. Upon completion of the recommended treatment plan, Complainant was to provide the Agency with letters of recommendation from his treatment providers confirming that he had taken the remedial steps in the plan. Then, for the Complainant to return to duty, he would be referred to a fitness for duty reevaluation to determine if he was, in fact, fit to return to full duty status. Therefore, the EEOC found that the Agency’s action was not a violation of the Rehabilitation Act, and that the Agency articulated a legitimate non-discriminatory reason for its actions.

Complainant also claimed that the Agency violated the Rehabilitation Act when his medical information was allegedly improperly disclosed. The EEOC found that Complainant signed a release of his medical records valid for one year concerning information related to his “medical absence and recent recommendation to return to work.” The EEOC found that the requested information was to determine whether Complainant was fit to return to work, so it was not a violation of the law. Further, the EEOC concluded that Complainant had not demonstrated that he required a reasonable accommodation as he alleged. Therefore, the EEOC affirmed the FAD.

❖ Cheryl L. v. Department of the Treasury, EEOC Appeal No. 2021001710 (Sept. 26, 2022)

The Agency issued a final decision finding that Complainant was not subjected to discrimination/harassment based on disability and reprisal. Complainant alleged that management discriminated against her when they attempted to block her renewal request for a reasonable accommodation (RA), changed her position description (PD) without explanation, excluded her from training opportunities, challenged her granted RA after initially approving it, and denied her leave request. The record showed that, prior to the relevant time frame, the Agency provided Complainant with an accommodation that allowed Complainant flexibility to schedule medical appointments and to telework on days she was physically unable to report to the office.

On appeal, Complainant asserted that her EEO complaint was not properly investigated for an array of reasons, such as the EEO investigator’s failure to interview her proffered witnesses or her manager. As an initial matter, the EEOC found that the Agency developed an impartial and appropriate factual record, as the Report of Investigation (ROI) contained copies of relevant Agency policies, emails, medical documents, and decisions. In addition, the EEOC found that Complainant failed to establish she was an aggrieved individual when management changed her PD. Further, the EEOC found that the Agency provided legitimate non-discriminatory reasons, and Complainant failed to show pretext when she was denied training opportunities and leave requests. However, the EEOC concluded that by modifying Complainant’s long-held accommodations to make them less effective, the Agency violated its accommodation duties under the Rehabilitation Act. Specifically, the EEOC found that the Agency’s change of Complainant’s schedule format, from maxi-flex to a compressed schedule, had rendered her RA less effective because she had no flexibility to attend medical appointments. Therefore, the EEOC reversed the Agency finding of no discrimination regarding the denial of an effective RA and remanded the case for further action.

❖ Minerva Z. v. Department of Veterans Affairs, EEOC Appeal No. 2021002154 (Sept. 22, 2022)

The Agency consolidated Complainant’s two formal complaints and issued a final decision concluding that Complainant was subjected to reprisal when she received a Notice of Proposed Removal (NPR) but found no discrimination or harassment (sexual and non-sexual) regarding the other claims raised by Complainant.

Complainant’s claims include an alleged incident of reprisal when an Agency’s Human Resources Specialist, continually pressured her to settle her EEO complaint despite being told that she was not interested in discussing settlement. On appeal, the EEOC found that the investigation was not adequate and that the record lacks the thoroughness required for the fact finder to address this issue. Therefore, the EEOC vacated the Agency’s decision regarding this claim and remanded it for a supplemental investigation.

In addition, the EEOC found no discrimination or reprisal regarding Complainant’s claim of disparate treatment, i.e., letter of reprimand, change of tour, and denied overtime. The EEOC also found no evidence of non-sexual or sexual harassment.

However, the EEOC found that the Agency failed to provide Complainant with reasonable accommodation when denied Complainant's request for “three to four days” of telework per week and instead granted her telework two days per week. The Human Resources Specialist determined that the telework schedule would be reevaluated in 90 days but gave no explanation as to why that was necessary. Complainant accepted the two-day telework but reiterated her desire for four days. The EEOC found that the record did not support the Agency’s conclusion that two days of telework per week provided an effective accommodation. Specifically, the record showed that the Agency had information from Complainant’s doctors stating that, in their opinion as medical professionals, an effective accommodation for Complainant’s disability entailed between three and four days of telework. The EEOC concluded that the Agency failed to show that an additional day of telework would cause an undue burden. The record also showed that numerous similarly situated employees were teleworking three days per week. Moreover, approximately three months later, the Agency granted Complainant four days of telework. The EEOC concluded that the Agency did not engage in good-faith efforts to accommodate Complainant and awarded her compensatory damages.

Further, the EEOC concluded that while the record shows that several management officials were aware of at least some aspects of Complainant’s EEO activity, the record was devoid of evidence of retaliatory animus on the part of any responsible official against Complainant, including when she received a Notice of Proposed Removal.

Therefore, the EEOC affirmed in part, reversed in part, and vacated in part the Agency’s decision.

EEOC Jurisdiction: Dual-Status Technicians

❖ Vickie P. v. Department of the Army, EEOC Appeal No. 2021000751 (Sept. 26, 2022)

The final agency decision (FAD) dismissed some of Complainant’s claims for failure to state a claim, finding they were “personnel actions that relate solely to the Complainant’s military service” and were outside of the jurisdiction of the civilian EEO process. The Agency found no discrimination on the rest of the claims. On appeal, the EEOC reiterated that dual-status technicians are considered both uniformed military personnel as well as Federal civilian employees. The EEOC stressed that dual-status technicians are covered by the Federal sector EEO process when the alleged discriminatory action arises from the individual’s capacity as a Federal civilian employee, and thus the EEOC has jurisdiction over those cases. The EEOC reiterated that each National Guard dual-status technician complaint must be analyzed on a case-by-case basis to determine whether the EEOC has jurisdiction. Therefore, the EEOC agreed with the Agency that Complainant’s reprimand—being denied attendance at Battlefield Assemblies onsite with her service dog and the Commander’s disclosures of the Complainant’s seizure disorder to the military chain of command—failed to state a claim since these were done in Complainant’s capacity as a uniformed military officer, not as a civilian employee. Further, the EEOC concluded that this was not a case of failure to provide reasonable accommodation. The record showed that management approved Complainant’s use of a service dog, continued to support the accommodation, and never withdrew its approval. Regarding Complainant’s harassment claims, the EEOC also affirmed the Agency finding that the alleged claims were not severe or pervasive enough to constitute unlawful discriminatory harassment. Specifically, the EEOC agreed with the Agency that co-workers who told Complainant (or complained to co-workers) that dogs were not allowed in the building were not in her supervisory chain of command, had no authority to deny her use of a service dog, and were mistaken. Similarly, the EEOC found that the Supply Sergeant’s inquiry regarding what the dog was for was not a disability-related inquiry likely to elicit information about Complainant’s disability. Further, the EEOC found that the Contractor and Supply Sergeant’s reactions to the presence of the Complainant’s service dog were not based on reprisal or her disability, but simply an extreme fear of her large German Shepherd dog. However, the EEOC found that the Commander’s disclosures of Complainant’s seizure disorder to the Non-Commissioned Officer in Charge, where the Complainant worked as a civilian, violated the confidentiality requirement in the Americans with Disabilities Act. Therefore, the EEOC affirmed the FAD in part and reversed it in part, ordering the Agency to take remedial actions.

d. Retaliation

❖ Stanton S. v Department of Veterans Affairs, EEOC Appeal No. 2022001199 (Oct. 11, 2022)

The Agency issued a final decision that Complainant established a prima facie case with respect to the discrete incidents addressed in the complaint; the Agency articulated legitimate, nondiscriminatory reasons for its actions; and Complainant did not establish that any of those reasons were a pretext for discrimination. The Agency further found that the incidents considered together were not severe or pervasive enough to constitute a hostile work environment. In his formal complaint, Complainant alleged discrimination and harassment based on disability and retaliation for a previous complaint, which resulted in a finding of discrimination and Complainant being reassigned to another Agency facility.

On appeal, the EEOC found that the record established that Complainant’s supervisor subjected Complainant to retaliatory harassment based on a demonstrated pattern of indifference to Complainant’s needs. This amounted to exclusion and hostility, which the EEOC found would dissuade a reasonable person from engaging in protected activity. Moreover, the EEOC found that the record provided ample support for Complainant’s statement that his supervisor made it clear from the beginning that he “resented” that Complainant had been reassigned to work under him because of Complainant’s successful EEO complaint. For example, when Complainant’s pay was withheld at the start of his reassignment, the Complainant alleged that his supervisor mocked him by patting his front pants pocket and making a comment to the effect that he had Complainant’s pay in his pocket. When Complainant asked him for his pay, the supervisor said it was not worth talking about and walked away. The record also provided some support for Complainant’s assertion that the supervisor directed Complainant’s co-workers to file Reports of Contact about him. Further, the EEOC found that the Agency was liable for the harassment. The EEOC affirmed the Agency’s final decision with respect to Complainant’s claims of disparate treatment but reversed the Agency’s finding of no retaliatory harassment and remanded the claims to the Agency for the proper remedial actions.

❖ Angella F. v. Department of the Army, EEOC Appeal Nos. 2022001369 and 2022001579 (Dec. 20, 2022)

Complainant alleged that the Agency subjected her to retaliation after it initially appeared to comply with the settlement agreement to promote her to a Natural Resource Specialist position. The Agency placed her into the position at issue, but Complainant alleged that the Agency changed the duties of the position to make it less attractive in retaliation for her EEO activity. The EEOC noted that the Agency changed the specifics of the position, including the schedule requiring Complainant to work nights and weekends. As such, the EEOC found that Complainant was not alleging a breach of the settlement agreement, but instead alleging subsequent acts of unlawful retaliation. The EEOC determined that Complainant’s claim of reprisal should be processed as a separate complaint, declining to address any allegation of noncompliance with the settlement.

❖ Larraine D. v. Department of Homeland Security, EEOC Appeal No. 2021001090 (May 5, 2022), Request for Reconsideration denied, EEOC Request No. 2022003561 (Nov. 28, 2022)

The EEOC modified the Agency’s final decision finding no discrimination. Specifically, the EEOC noted that the record showed that the Supervisor told Complainant that his offer to move her to a new team would be unavailable if she filed an EEO complaint. The EEOC determined that the statements made by the supervisor, even if well-intentioned, coupled with his inquiry about whether Complainant would file a formal complaint, were sufficient to be reasonably likely deter a person from engaging in the EEO process. The EEOC ordered the Agency to provide training to the Supervisor, consider taking disciplinary action against him, undertake a supplemental investigation to determine Complainant’s entitlement to compensatory damages, and cease and desist from discouraging employees from engaging in the EEO process.

e. Religion and Disability Accommodation

❖ Vernie M. v. U.S. Postal Service, EEOC Appeal No. 2020004103 (Sept. 19, 2022)

The Agency issued a final decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment. Complainant alleged discrimination and harassment on the bases of religion (Protestant), disability (physical), and reprisal for prior protected EEO activity. On appeal, the EEOC found that the Agency presented no argument that Complainant’s use of an empty room for prayer posed an undue hardship. In addition, the Agency neither provided an alternative accommodation nor discussed the matter with Complainant to determine if an alternative accommodation was available. Regarding the disability claim, the EEOC found that the Agency failed to provide Complainant with a reasonable accommodation when Complainant requested easier access to a building via a closer parking spot, an accommodation that she previously had in place with her former supervisor. The EEOC further found that the Agency did not provide any analysis or report that allowing Complainant to park in the space would pose undue hardship or pose a significant risk of substantial harm, either to Complainant or her peers. The EEOC determined that the Agency’s reasons for denying Complainant’s request to park in the requested disability parking space were insufficient. Thus, the EEOC modified the Agency’s final decision and found that the Agency violated Title VII and the Rehabilitation Act. The EEOC ordered the Agency to conduct a supplemental investigation regarding Complainant’s entitlement to compensatory damages, to provide training to the responsible management official, to consider disciplinary action against the Supervisor, and to post a notice of the finding.

f. Agency Failure to Appeal

❖Britany N. v. U.S. Agency for Global Media, EEOC Appeal No. 2022003074 (Sept. 6, 2022)

The EEOC Administrative Judge (AJ) issued an interim decision, finding that Complainant had proven that the Agency discriminated against her with regard to the hiring decision, but that she had not proven that she had been subjected to harassment. The interim decision specifically stated that its issuance did not trigger the time for filing an appeal or for the Agency’s issuance of a final action for purposes of appeal rights. The AJ issued a decision, including notice of appeal rights, consistent with the findings of the preliminary decision as well as addressing damages and attorney’s fees. The Agency subsequently issued a final order rejecting the AJ’s finding that Complainant proved that the Agency subjected her to discrimination as alleged, but the Agency did not file an appeal or a brief with the EEOC. As the Agency did not appeal the AJ’s decision simultaneously with its issuance of the final decision, the Agency did not issue a final decision consistent with 29 C.F.R. § 1614.110(a) within 40 days of the AJ’s decision. Therefore, the AJ’s decision finding discrimination became the Agency’s final decision (see 29 C.F.R. § 1614.109). Therefore, the EEOC reversed the Agency’s decision to not implement the AJ’s decision and remanded for remedies, including reinstating the Complainant and providing back pay. 

III.  Remands for a Hearing with an EEOC Administrative Judge

❖ Wilburn M. v. U.S. Postal Service, EEOC Appeal No. 2022000095 (Dec. 13, 2022)

The final agency decision (FAD) found no discrimination after Complainant allegedly failed to request a hearing or a FAD. On appeal, Complainant argued that he received the Report of Investigation (ROI) after receiving the FAD, and thus was unable to submit a request for a hearing. Complainant stated he submitted an online Change of Address Order requesting his mail be forwarded to his new address. The EEOC found that the Agency did not refute Complainant’s contention that he did not receive the ROI and notice of right to request a hearing prior to its issuance of a final decision. As Complainant desired a hearing, the EEOC ordered the Agency to submit a copy of the complaint file, including the ROI, to the appropriate EEOC Hearings unit.

❖ Carter R. v. Department of Veterans Affairs, EEOC Appeal No. 2021002814 (Sept. 27, 2022)

After an Agency’s Motion for a Decision Without a Hearing, an EEOC Administrative Judge (AJ) issued a summary judgment decision finding no discrimination. The AJ concluded that Complainant did not establish that he was an “individual with a disability” entitled to a reasonable accommodation because he failed to show how his condition limited a major life activity. Complainant alleged that the Agency denied his request for reasonable accommodation and instead demoted him to a different position with a lower grade. The Agency maintained that it accommodated Complainant by reassigning him to the lower graded position. The evidence supported Complainant’s contentions that three (3) other technicians were approved for the same accommodation he sought. The EEOC determined that it was unclear whether the officials who considered Complainant’s reasonable accommodation request considered alternative accommodations, such as allowing regularly scheduled opportunities for him to take his medication and eat. Without resolution of these issues through a hearing, the EEOC concluded that it was unable to assess the Agency’s undue hardship defense. Therefore, on appeal, the EEOC reversed the Agency’s finding of no discrimination and remanded the matter for a hearing with an EEOC AJ.

❖ Maximo L. v. Department of the Interior, EEOC Appeal No. 2021001813 (Sept. 26, 2022)

An EEOC Administrative Judge (AJ) issued a Notice of Intent to Issue a Decision Without a Hearing (Notice). The AJ stated that the Rehabilitation Act was not meant to cover temporary conditions, such as Complainant’s injured wrist. The AJ further indicated, regarding Complainant’s claim of age discrimination, that there appeared to be no evidence that younger employees similarly situated to him were treated differently than him. The AJ provided the parties an opportunity to respond. In response, Complainant asserted that summary judgment was not proper in this matter. He stated that he had also been subjected to unlawful retaliation when he was terminated from his position after he requested a hearing for the instant complaint. Then, the AJ issued a decision by summary judgment. Regarding his termination claim, the AJ found that Complainant’s response to the Notice “raised claims that were not counseled, accepted, and investigated, including claims subject to mixed case complaint processing…At no time did Complainant request leave [sic] to amend his complaint.” The AJ found no discrimination regarding the other claims.

On appeal, the EEOC found that the record showed that an EEOC staff member (ES1) uploaded several documents to the EEOC portal with respect to the complaint at issue. These documents included a copy of a proposed removal for Complainant and a document entitled “EEO Complaint Retaliation” in which Complainant stated that Agency management issued him a Notice of Removal “in retaliation for the EEO complaint I filed against [them].” The record also reflected that ES1 uploaded documents on the “Decision to Remove” and a statement from Complainant entitled “A Statement to the EEO Judge.” Therein, Complainant stated that he believed Agency management removed him because of his complaint. The EEOC determined that based on the specific circumstances expressed by the Complainant, the documents in question should have been construed as a motion to amend. Moreover, the EEOC found that Complainant’s termination claim was like or related to his complaint. Thus, Complainant was not required to seek counseling on these new claims. The EEOC vacated the Agency’s final order implementing the AJ’s decision finding no discrimination. Therefore, the EEOC vacated the Agency’s final order implementing the AJ’s decision without a hearing finding no discrimination and remanded this matter for a hearing with an EEOC AJ.

❖ Roy E. v. Department of Justice, EEOC Appeal No. 2021002939 (Sept. 28, 2022)

The EEOC AJ issued a final decision without a hearing, finding that there was no indication that the Agency was unlawfully motivated by Complainant’s disabilities. In his complaint, Complainant alleged that the Agency discriminated against him on the basis of disability when the Agency withdrew a job offer for the position of Physical Security Specialist-Bomb Technician (Bomb Technician). Complainant contended that the withdrawal of the job offer was based on speculation about his condition, when the Agency should have had a mental health professional assess his ability to perform the job. On appeal, the EEOC noted that while concerns regarding Complainant’s ability to safely perform the Bomb Technician duties with his mental conditions may be valid and reasonable, both Agency psychologists (RO1) and RO2) statements given during the EEO investigation were insufficient to reasonably adjudicate whether he would pose a direct threat in the position. Further, the EEO investigation did not contain sufficient information concerning the evaluation of Complainant’s unique abilities and disabilities which is the crux of an individualized assessment. The EEOC determined that there was conflicting testimony regarding Complainant’s lack of candor during the clearance process (the other reason proffered by the Agency for rescinding the job offer). RO1 and RO2 described that Complainant was honest about his medical history, whereas the Unit Chief stated that Complainant’s lack of candor was one of the reasons she decided to rescind the job offer. The EEOC found that Complainant alleged lack of candor was a genuine issue of material fact and a decision without a hearing was, therefore, inappropriate. Thus, the EEOC determined that the AJ erred in granting summary judgment in the Agency’s favor. The EEOC vacated the Agency’s final action adopting the AJ’s decision and remanded the matter for a hearing.

❖ Joey B. v. U.S. Postal Service, EEOC Appeal No. 2021004116 (Dec. 8, 2022)

The EEOC Administrative Judge (AJ) dismissed Complainant’s hearing request as a sanction based on Complainant’s failure to comply with her show-cause order. The AJ concluded that “Complainant displayed a marked indifference to his obligations in the process, choosing when, and in what circumstances he would comply, failing to accept accountability for his failures and demonstrating a questionable degree of good faith in his representation the AJ…” On appeal, the EEOC reiterated its position that the dismissal of a hearing request as a sanction is only appropriate in extreme circumstances—such as when the complainant engages in contumacious conduct, not merely negligence. The EEOC found no indication in the instant case that Complainant engaged in the kind of willful or obstinate refusal to comply with the AJ’s orders that typifies contumacious conduct. As such, the EEOC concluded that the circumstances in this case did not justify the sanction imposed by the AJ. Accordingly, the EEOC vacated the Agency’s final decision and remanded the complaint for a hearing.

❖ Marcos S. v. Department of Veterans Affairs, EEOC Appeal No. 2021004325 (Dec. 13, 2022)

The Agency initially dismissed several claims and only investigated claims 10 and 11. However, the EEOC Administrative Judge (AJ) later reinstated claims 1 through 9 and issued a decision without a hearing and without investigation of the claims. On appeal, the EEOC disagreed with the AJ’s assessment that the record was adequately developed. Even though the Agency provided several documents in its Motion for a Decision Without a Hearing, the Report of Investigation itself lacked affidavits from relevant individuals, including Complainant. Thus, the EEOC found that the investigative record was inadequately developed for a determination on the merits of the complaint. The EEOC remanded the case to the appropriate EEOC Hearings unit for a supplemental investigation.

❖ Roman G. v. Department of Veterans Affairs, EEOC Appeal No. 2022000508 (Dec. 15, 2022)

The EEOC found that the credibility of witnesses was at issue. The Agency asserted that management officials were not aware of Complainant’s request for accommodation. On the other hand, Complainant asserted that he met with his Supervisor and Director informing them of his reasonable accommodation request to situationally telework for his medical conditions. The EEOC observed that Complainant submitted medical documentation to the Agency, explaining his need for situational telework for his medical conditions, some of which were permanent. The EEOC also considered that Complainant alleged that Agency officials, when denying Complainant’s request for reasonable accommodation, informed him it was not accepting additional requests to telework from employees. The EEOC determined that the record was devoid of evidence that the Agency engaged in the accommodation interactive process with Complainant and found that the AJ erred in issuing summary judgment in the Agency’s favor.

❖ Sacha K. v. Department of Veterans Affairs, EEOC Appeal No. 2022001593 (Nov. 28, 2022)

The EEOC Administrative Judge (AJ) issued a summary judgment decision finding no discrimination. The AJ addressed 14 of the 24 claims of discrimination raised by Complainant. The AJ determined that there were no genuine issues of material fact regarding Complainant’s disparate treatment and hostile work environment/harassment claims based on sex or disability. The AJ also noted that Complainant did not have a disability and did not provide medical documentation to support her claims of disability discrimination. On appeal, the EEOC noted that the AJ, without any specific detail, found that Complainant failed to establish a prima facie case of discriminatory harassment, disparate treatment, or unlawful retaliation. However, the AJ provided no explanation on the claims being adjudicated, which constituted an error. The EEOC additionally found there was a genuine issue of material fact in dispute concerning whether the Agency violated the terms of Complainant’s approved reasonable accommodation. Therefore, the EEOC remanded the matter to the appropriate hearing unit for the holding of a hearing.

Matt A. v. U.S. Postal Service, EEOC Appeal No. 2022003153 (Nov. 28, 2022)

The EEOC Administrative Judge (AJ) found that Complainant did not present evidence to dispute the Agency’s stated legitimate, nondiscriminatory reason for his removal (unsatisfactory work performance), and therefore granted the Agency’s Motion for Summary Judgment. The Agency’s final action implemented the AJ’s decision. Here, Complainant alleged that he was subjected to discrimination based on disability and reprisal when he received Negative Performance Evaluations and a Letter of Separation. On appeal, the EEOC found, however, that the AJ erred by not viewing the evidence in a light most favorable to Complainant as the non-moving party, as required during the summary judgment stage. In so finding, the EEOC noted that Complainant presented evidence indicating that management officials displayed a negative attitude towards him upon being informed of his disability. For example, the record showed that the responsible supervisor told Complainant that he was “full of shit” because his disability was not visible. The EEOC was also troubled by statements from management officials expressing ignorance of the Agency’s duties under the Rehabilitation Act. The EEOC further found no evidence indicating that there had been performance issues regarding Complainant before he informed his supervisor that he had a disability. As such, the EEOC concluded that summary judgment should not have been granted in the Agency’s favor, and therefore remanded the matter to the appropriate hearing unit for the holding of a hearing.

IV.  Remedies

a. Compensatory Damages

❖ Tomeka T. v. Department of Treasury (IRS), EEOC Appeal 2022000651 (Dec. 8, 2022)

In EEOC Appeal No. 2020000390 (June 15, 2021), the EEOC affirmed the Agency’s finding of discrimination with respect to Complainant’s allegation of discriminatory harassment and affirmed the Agency’s finding of one incident of unlawful retaliation. The Agency was ordered to conduct a supplementary investigation on compensatory damages as well as to post a notice and consider discipline for the responsible management official. The Agency issued a final agency decision (FAD) concerning Complainant’s entitlement to compensatory damages and found that she was not entitled to pecuniary damages for leave usage. In particular, the Agency concluded that Complainant did not provide sufficient evidence to establish that her purported health issues were related to the incident of reprisal. However, the Agency determined that Complainant suffered some emotional distress because of the unlawful incident and awarded $4,500 in non-pecuniary compensatory damages. On appeal, the EEOC affirmed the Agency’s decision to deny pecuniary damages for leave usage because there was no evidence from which to determine whether Complainant took any leave as a direct result of the Agency’s retaliation. However, the EEOC modified the Agency’s FAD and awarded Complainant $10,000 in non-pecuniary damages.

❖ Wiley G. v. Department of the Navy, EEOC Appeal No. 2022000605 (Oct. 31, 2022)

Following a separate hearing on damages, the EEOC Administrative Judge (AJ) issued a decision awarding Complainant $100,000 in non-pecuniary compensatory damages, $8,513.91 in past pecuniary damages, annual leave restoration (or equivalent payment thereof) for 352 hours, and attorney’s fees of $34,332. The Agency issued a final order accepting AJ’s finding that Complainant was subjected to discriminatory harassment. However, the Agency rejected the AJ’s award of $100,000 and requested that the EEOC substantially reduce the amount awarded. The Agency argued that Complainant’s medical conditions were pre-existing conditions originating from Complainant’s military service and other life events unrelated to the discriminatory harassment. On appeal, the EEOC found that many of these conditions were stable and controlled before Complainant began working at the Agency—and exacerbated when Complainant was subjected to harassment at the Agency. The EEOC concluded that the award of $100,000 was neither excessive nor the product of passion or prejudice and was consistent with prior EEOC precedent. Accordingly, the EEOC reversed the Agency’s final order rejecting the AJ’s order of remedial awards.

❖ Erick N. v. Department of the Army, EEOC Appeal No. 2021004863 (Nov. 2, 2021)

The Agency issued a final decision finding that Complainant was not subjected to sex discrimination with respect to his harassment claims but was subjected to one incident of unlawful retaliation. Specifically, the Agency found retaliation when management told him that his statement that his supervisor was biased and sexist was bordering on insubordination and that he needed to be careful. Complainant’s representative filed an attorney’s fee petition seeking a total attorney’s fee award of $45,385 and a total of $420,000 in pecuniary and non-pecuniary compensatory damages. The Agency issued a final decision awarding a total attorney’s fee of $15,900 at the requested hourly rate of $650 but reducing the total requested fee by half to reflect Complainant’s limited success on the merits by prevailing on only one of his claims. The decision further excluded any time billed prior to the filing of the formal complaint and reduced an entry for travel time to the pre-hearing conference. The Agency also awarded compensatory non-pecuniary damages in the amount of $1,000. The EEOC found that an award of $5,000 in non-pecuniary compensatory damages was more appropriate considering Complainant’s emotional harm by the single incident of per se reprisal. The EEOC also affirmed the Agency’s reduction of the attorney’s fee by half to reflect the lack of success on the merits. Nevertheless, the EEOC awarded an additional 1.25 hours of work performed prior to the filing of the formal complaint for discussions with Complainant, which resulted in modifying the award of attorney’s fees to a total of $16,712.50.

❖ Cecille W. v. U.S. Postal Service, EEOC Appeal No. 2021001542 (Sept. 28, 2022)

Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Hearings were held in November and December 2016 and in January 2017. Thereafter, the AJ issued a decision concluding no discrimination or unlawful retaliation had been established. The Agency thereafter issued a final order implementing the AJ’s decision. Complainant appealed. In EEOC Appeal No. 0120181915 (August 6, 2020), the EEOC reversed the Agency’s final order, concluding the evidence showed the Agency had violated the Rehabilitation Act by failing to reasonably accommodate Complainant’s disabilities. The matter was remanded to the Agency to provide remedial relief, including providing an effective reasonable accommodation, determining the appropriate amount of back pay, a supplemental investigation regarding compensatory damages, training to responsible management officials, and attorney’s fees.

The Agency issued a final decision awarding Complainant $22,500 in non-pecuniary damages and denied for lack of evidence Complainant’s request for out-of-pocket expenses in future medical care. On appeal, the EEOC concurred with the Agency that the record did not support an award of any future pecuniary damages. However, the EEOC awarded $30,000 in non-pecuniary compensatory damages. Complainant testified in her supplemental affidavit that the discrimination she experienced caused her stress, depression, sleepless nights, nightmares, fear, and weight gain. She further testified that when she was denied reasonable accommodation and no longer had income, it had a devastating impact on her and her family. As a result, Complainant realized that she was going to lose her house and had to move into her parent’s basement. With respect to attorney’s fees, Complainant’s attorneys submitted a petition for $37,459 in attorney’s fees and $393.95 in costs for a total of $37,852.95. In its final decision, the Agency awarded Complainant $30,814.40 in fees, expenses, and costs. Complainant was represented by two attorneys, and both requested a rate of $400 per hour in the fee petition. The Agency found adequate support for the $400 rate for one of the attorneys (Attorney 1). However, the Agency reduced the hourly rate for the other (Attorney 2) to $250 because she had only been practicing employment law for two years or less. The Agency also reduced the hours by an across-the-board 10% to reflect its conclusion that there were several duplicative and excessive charges. The EEOC concluded that the Agency correctly reduced the rate awarded for work performed by Attorney 2 to $250 per hour and found no reason to disturb the Agency’s decision to apply the 10% reduction to the hours requested. The EEOC modified the Agency’s final decision regarding compensatory damages by increasing the amount to $30,000 and affirmed the Agency’s final decision regarding the award of attorney’s fees and expenses.

❖ Nancey D. v. Department of Defense, EEOC Appeal No. 2022000526 (Sept. 28, 2022)

After conducting a hearing on the merits, the EEOC Administrative Judge (AJ) found that Complainant was subjected to a hostile work environment when she complained to management. Management took no action and made Complainant feel that she was to blame. Thereafter, the AJ ordered remedies, including back pay and non-pecuniary compensatory damages in the amount of $45,000. The Agency rejected the AJ’s finding and appealed to the EEOC. In affirming the AJ’s findings, the EEOC concluded that Complainant presented evidence of harassment sufficiently severe and pervasive to support a hostile work environment claim. Moreover, the record revealed that management was fully aware of the harassment, as Complainant and other female colleagues complained to management, and took no action. The EEOC looked to similar decisions where complainants felt threatened and experienced emotional distress and concluded that $45,000 in this instance was not excessive. The case was remanded to the Agency to fully implement the AJ’s decision.

❖ Doyle T. v. Department of the Air Force, EEOC Appeal No. 2022004281 (Sept. 30, 2022)

The EEOC modified the EEOC Administrative Judge’s (AJ) award of $275,000 in non-pecuniary compensatory damages to the statutory maximum of $300,000. The EEOC concurred with the AJ’s finding that the Complainant was subjected to discrimination when the Agency denied his request for a reasonable accommodation in violation of the Rehabilitation Act and ultimately withdrew its offer of employment. In awarding $300,000 in non-pecuniary compensatory damages to Complainant, the EEOC considered that Complainant continued to suffer harm because of the discrimination more than eight years after the actual discriminatory action. The EEOC considered that after the Agency withdrew its job offer, Complainant became unable to support his family and became depressed, suffering feelings of anger, humiliation, and low self-esteem. The EEOC noted that the stress from the discrimination caused Complainant to experience intense headaches and high blood pressure that led to emergency room visits. The EEOC also noted that Complainant filed for bankruptcy five times, which destroyed his credit rating. This resulted in the withdrawal of several offers of employment from different Federal agencies on the grounds of his poor credit and financial delinquencies, which exacerbated his inability to find a job. Finally, the EEOC considered that Complainant became withdrawn from his biological daughters due to his inability to pay child support payments. In awarding $300,000 in non-pecuniary compensatory damages, the EEOC considered the present-day value of other comparable awards.

❖ Billie S. v. Department of Justice, EEOC Appeal No. 2022002502 (Nov. 21, 2022)

When the Agency did not assign an investigator to investigate the complaint in a timely manner, Complainant filed a request for a hearing before an EEOC Administrative Judge (AJ) and a motion for sanctions. The AJ found that sanctions in the form of default judgment were warranted for the Agency’s failure to timely investigate Complainant’s complaint. The AJ noted that the Agency took 417 days to complete its investigation—237 days after the regulatory deadline expired—and found that the Agency failed to provide sufficient reason for the delay. The AJ, therefore, issued a default judgment against the Agency. However, the AJ found that Complainant did not establish a prima facie case of discrimination based on sex, disability, or reprisal. Still, the AJ concluded that Complainant was entitled to an $800 award in compensatory damages as well as $30,149.20 in attorney’s fees. The AJ also ordered the Agency to provide training, consider discipline for the responsible management officials, and post a notice. The Agency subsequently issued a final order adopting the AJ’s default judgment and accepting the AJ’s award of compensatory damages and attorney’s fees. Complainant appealed. Since neither party challenged the AJ’s default judgment, the EEOC did not discuss it in its decision. The EEOC found that Complainant established a prima facie case because statements in the record from Complainant’s co-workers showed that he was singled out repeatedly by his supervisor and subjected to harsher treatment. Therefore, the EEOC determined that an award of $125,000 in compensatory damages properly reflected the duration and severity of the emotional harm Complainant suffered and compensated him for the additional aggravation of his physical conditions.

❖ Joann G. v. Department of Defense, EEOC Appeal No. 2022002444 (Dec.7, 2022)

After a hearing, an EEOC Administrative Judge (AJ) determined retaliatory conduct occurred when a supervisor stated, “Well, that was a professional threat and I have never seen a subordinate go up against a supervisor and win.” In so finding, the AJ determined that the statement was reasonably likely to deter other employees from filing complaints or otherwise engaging in EEO activity. The AJ found that Complainant did not prove her other two claims. Therefore, the AJ awarded complainant $5,000 in non-pecuniary compensatory damages. Complainant appealed the award, arguing that the award should be higher due to the stress that the comment caused her. The EEOC found that the AJ’s decision to award $5,000 in compensatory damages was supported by substantial evidence in the record and was in line with EEOC case precedent. Accordingly, the EEOC affirmed the Agency’s final decision implementing the AJ’s Order awarding $5,000 in non-pecuniary damages and remanded the matter for further processing.

b. Back Pay

❖Bart M. v. Department of the Interior, EEOC Appeal No. 2021004846 (Nov. 17, 2022)

The EEOC determined on appeal that Complainant established that he was subjected to discrimination based on sexual orientation when he was not selected for a position. The Agency issued a final decision on remedies, but Complainant appealed the Agency’s calculation of back pay. The EEOC determined that the back pay period began on the date Complainant would have started the position absent discrimination and extended to the date he either declined retroactively or was retroactively placed in the position. The EEOC concluded that this back pay period would restore Complainant to the position he would have occupied absent discrimination. However, the appellate record did not show the date Complainant was retroactively placed into the position, which would give the end of the back pay period. Accordingly, the EEOC modified the Agency’s final decision regarding the dates for remedies and remanded the matter to the Agency for further processing.

c. Attorney’s Fees

❖Zachary V. v. Department of the Air Force, EEOC Appeal No. 2022004037 (Dec. 12, 2022)

In EEOC Petition No. 2020000605 (Feb. 25, 2021), the EEOC ordered the Agency to pay attorney’s fees and costs as a sanction for effectively forcing Petitioner to incur more legal expenses unnecessarily. Petitioner's Counsel submitted a petition for attorney’s fees in the amount of $8,273.80, which the Agency agreed to pay in full. The EEOC ordered the Agency to pay the attorney’s fees within 60 days, but the Agency did not pay until 16 months later. The EEOC found that the Agency’s delay in payment was unreasonable and ordered the Agency to pay Petitioner’s Counsel $288.48 in interest and awarded attorney’s fees and costs associated with the processing of the instant petition for enforcement.

❖ Mike G. v. Social Security Administration, EEOC Appeal No. 2021003869 (Oct. 27, 2022)

The Agency issued a final agency decision (FAD) finding no discrimination in claims 1, 2, and 4. However, the Agency concluded that Agency management violated the Rehabilitation Act and found discrimination in claim 3. The Agency awarded Complainant $500 in compensatory damages and attorney’s fees. Complainant sought $35,687.00 in attorney’s fees and $1,647.29 in costs. Since Complainant was successful on only one claim, the Agency awarded Complainant $1,973.25 in attorney’s fees and no costs. On appeal, the EEOC determined that Complainant did not demonstrate that any of the information gleaned during discovery or any of the rulings made by the EEOC Administrative Judge (AJ) supported the Agency’s finding of discrimination on Claim (3). Moreover, the record showed that the Agency’s finding on Claim (3) was wholly supported by information gleaned through the Report of Investigation (ROI), when Complainant was not represented by an attorney. The EEOC concluded that it was not clear from the record what actions Complainant’s attorneys took that led to the Agency’s finding in his favor. Therefore, the EEOC affirmed the Agency’s final decision on attorney’s fees and costs and remanded the matter for further action.

❖ Velva B. v. U.S. Postal Service, EEOC Appeal No. 2020002159 (Nov. 8, 2022)

In a class action complaint, an EEOC Administrative Judge (AJ) found that the Agency discriminated against employees based on disability when they were subjected to (1) withdrawals of their reasonable accommodations, (2) hostile work environments, and (3) disclosures of confidential medical information. (See EEOC Appeal Nos. 0720160006 & 0720160007 (Sept. 25, 2017); and EEOC Request Nos. 0520180094 & 0520180095 (Mar. 9, 2018)). The Class Agent requested $17,215,063.60 in attorney’s fees and $577,528.43 in costs. The Class Agent was represented by two law firms for the class litigation: Firm 1 based in Rochester, New York, and Firm 2 based in Washington, D.C., with an office in Austin, Texas. The Class Agent requested hourly billing rates for the New York City area and requested an enhancement of 40% for “exceptional success.” The Class Agent also stated that the submitted costs were necessary and reasonably incurred during the litigation of the class complaint. However, the Agency issued a final decision awarding $1,532,937.36 in attorney’s fees and $229,258.71 in costs. Among other things, the Agency concluded that there was no justification for a 40% enhancement and that the fee petition contained excessive, duplicative, and inadequately documented costs. On appeal, concerning attorneys’ hourly rates, the EEOC determined that the Rochester area rates were appropriate for attorneys in Firm 1 and used the Laffey Matrix for attorneys in Firm 2 located in Washington, D.C. and Austin, Texas. With respect to the reasonable number of hours, the EEOC found that an across-the-board reduction of 50% was appropriate because many hours were inadequately described (such as “research” or “attend a meeting”), attorney’s fees may not be recovered for work on unsuccessful claims, and clerical expenses are not reimbursable. The claimed hours for travel were also reduced by half. Further, the EEOC found that the requested 40% enhancement for exceptional quality of representation was not justified. Therefore, the total attorney’s fees were modified to $4,803,493.81.

Concerning the Class Agent request of $73,877.36 for travel costs, the EEOC applied a 50% across-the-board reduction to the requested travel costs because the Class Agent failed to provide sufficient information to fully support the reasonableness of her costs. The EEOC also modified other costs due to a lack of supporting documentation and declined to include the costs for legal research. In total, Class Agent’s total costs were modified to $542,949.93.

❖ Jazmine F. v. Department of Defense, EEOC Appeal No. 2021001591 (Sept. 27, 2022)

In EEOC Appeal No. 0120162132 (June 22, 2018), request for reconsideration denial, EEOC Request No. 0520180517 (Nov. 7, 2018), the EEOC reversed the Agency’s final decision, finding no reprisal discrimination. The EEOC concluded that the Agency retaliated against Complainant when her third-line Supervisor interfered with a prospective employment opportunity by notifying others about Complainant’s prior EEO activity. The Agency issued a final decision on damages, awarding a total of $4,226.10 for medical expenses as well as out-of-pocket costs from depositions and mailings. The Agency denied non-pecuniary compensatory damages because Complainant did not expressly quantify such relief and Complainant’s request for attorney’s fees because she was acting pro se (i.e., she represented herself). On appeal, the EEOC determined that the Agency properly denied attorney’s fees given Complainant was entirely pro se during the entire complaint process, except during the appeal stage. However, the EEOC modified the Agency’s decision and ordered the Agency to pay Complainant $10,000 in non-pecuniary compensatory damages and $3,202 in pecuniary damages for her medical costs and co-payments. In addition, the Agency was ordered to pay Complainant $130.60 for out-of-pocket costs associated with mailing correspondence and $893.50 for the costs related to depositions. The matter was remanded to the Agency for compliance.

V.  Sanctions

❖ Kayce L. v. Department of Health and Human Service, EEOC Appeal No. 2019002439 (Sept. 30, 2022)

The Agency issued a final decision—1,312 days after Complainant’s request for an immediate final decision—concluding that Complainant failed to prove that the Agency subjected her to discrimination or harassment based on race (Caucasian), national origin (German, Persian), sex (female), religion (Jehovah’s Witness, Jewish), and reprisal for prior protected EEO activity. In her formal complaint, Complainant alleged discrimination and harassment when her supervisor made comments to her such as “Stop trying to act Black,” “Are you sure you’re not Black?” and “Don’t worry, we all know you’re Black.” On appeal, the EEOC declined to issue a default judgment as a sanction for the Agency’s untimely final decision but referred the case to the EEOC Federal Sector Programs for further assessment of the Agency’s EEO program.

In addition, the EEOC noted that the Agency failed to justify why nine named witnesses (co-workers and management officials) did not provide requested affidavits for the investigation despite the attempts made by the investigator. Thus, the EEOC found it appropriate to draw an adverse inference against the Agency, finding that the missing affidavits would have established that the supervisor’s reasons for her actions were pre-textual and that she was motivated by discriminatory racial animus when she negatively rated Complainant’s performance. In further drawing an adverse inference, the EEOC found that, had the missing affidavits been provided, they would have also corroborated Complainant’s claims that the Deputy Director had been subjecting her to a hostile work environment. The EEOC also determined that had the Director responded to his requested affidavit, his sworn statement would have reflected that he knew of the alleged sexual harassment by the Deputy Director but failed to take prompt remedial action. Therefore, the EEOC found the Agency liable for the hostile work environment. The EEOC reversed the Agency’s final decision in part and affirmed in part. The Agency was ordered to take several remedial actions, including ensuring that Complainant had no more contact with the Deputy Director, considering discipline against the responsible management officials, and providing Complainant with compensatory damages.

❖ Eldon P. v. Department of the Navy, EEOC Appeal No. 2022002176 (Oct. 11, 2022)

The EEOC Administrative Judge (AJ) dismissed the complaint because of Complainant’s failure to respond to the AJ. Specifically, Complainant’s email address of record generated undeliverable receipt notices and Complainant failed to respond to voicemails left by the AJ at Complainant’s telephone number of record. The AJ noted that, after the Agency provided updated contact information for Complainant, the AJ issued another order requiring a response from Complainant within ten days. When no response came, the AJ dismissed the complaint. On appeal, the EEOC determined that Complainant’s behavior did not rise to the level of contumacious conduct. The EEOC reiterated its position that when a complainant has not cooperated in the hearings process, absent a finding of contumacious conduct, the appropriate sanction is to dismiss the hearing request (not the complaint) and remand the complaint to the agency to issue a final agency decision on the record. The AJ’s decision was reversed, and the case was remanded to the Agency. 

VI.  Compliance

a. Settlement Agreement

❖ Davina W. v. Social Security Administration, EEOC Appeal No. 2022003512 (Oct. 19, 2022)

A settlement agreement required the Agency to offer Complainant a position that she was seeking through her reasonable accommodation request, which included minimizing her interactions with her former supervisor and not simply removing her from the supervisory chain. However, the Agency was aware at the time the agreement was reached that Complainant’s former supervisor would be transferred near the office of Complainant’s new position. As such, the EEOC found that the Agency breached the agreement and ordered the Agency to give Complainant the choice of either the enforcement of the agreement or reinstatement of the underlying complaint.

❖ Augustine P. v. Department of the Army, EEOC Appeal No. 2022002667 (Dec. 12, 2022)

The Agency argued that it fully complied with the settlement agreement when it initiated the restoration of 300 hours of sick leave to Complainant. However, the Agency’s submitted documentation failed to show that the 300 hours were restored to Complainant. The record contained an internal Agency email requesting information for the processing of the settlement agreement, but the email contained no discussions regarding the restoration of Complainant’s sick leave hours. The EEOC concluded that initiating the process to restore the 300 hours of leave was not the same as actual restoration. Therefore, the EEOC ordered the Agency to comply with the provision to restore the 300 hours of sick leave to Complainant.

❖ Jess P. v. U.S. Postal Service, EEOC Appeal No. 2022004507 (Dec. 15, 2022)

The EEOC found that the Agency should have paid Complainant the same salary he enjoyed prior to leaving his position, as there was no specific language in the agreement regarding salary. In providing a lower salary to Complainant upon his return, the Agency argued that the settlement agreement stated that Complainant forfeited all rights to seniority as required by the Collective Bargaining Agreement (CBA). On appeal, the EEOC agreed with Complainant’s arguments that seniority does not dictate salary level. As such, the EEOC found that the Agency was not barred from paying Complainant his previous salary by the agreement language forfeiting CBA seniority. The EEOC, therefore, found that the Agency breached the settlement agreement and remanded the matter to the Agency for further processing.

❖ Reginald V. v. Department of the Army, EEOC Appeal No. 2022002580 (Nov. 17, 2022)

In a settlement agreement, the Agency agreed to issue the Complainant a performance evaluation for fiscal year (FY) 2021 commensurate with Complainant’s performance. Complainant alleged that the Agency breached this section of the settlement agreement by issuing a lower-than-expected performance evaluation for FY 2021 and requested that the Agency specifically implement its terms. The Agency determined that it had complied with the agreement. Nevertheless, the Agency declared the section “null and void” on the ground that there was not a “meeting of the minds.” The Agency stated that Complainant believed that under this section he would only be evaluated for his work after his reassignment, while the Agency understood it to mean that Complainant would be evaluated for his performance for the entire fiscal year. The EEOC determined no breach of settlement agreement. Specifically, the EEOC found that Complainant had failed to establish that the Agency breached the settlement agreement by issuing a performance appraisal that was not commensurate with his performance. A fair reading of his appraisal showed the Chief of Staff commended him for his work and his appraisal scores resulted in a salary increase and contribution award.

❖ Ingeborg B. v. Department of Commerce, EEOC Appeal No. 2022005077 (Dec. 6, 2022)

On May 26, 2020, the parties entered into a settlement agreement, which provided, in pertinent part: “Complainant will submit a Standard Form 52 (SF-52) to the Agency within 60 days of the execution of this Agreement requesting resignation effective October 29, 2018.” The Agency also agreed to remove all documentation of the “erroneous nature of Complainant’s termination” from her Official Personnel Folder. By email dated August 22, 2022, Complainant alleged a breach of the agreement. Specifically, Complainant asserted that on August 20, 2022, she received a copy of her SF-52 from the National Archives, which set forth that she was terminated due to unsatisfactory performance. Complainant requested that the terms of the settlement agreement be specifically implemented. On appeal, the EEOC found a breach of settlement agreement and remanded the matter to the Agency for further processing.

❖ Thad P. v. Department of Veterans Affairs, EEOC Appeal No. 2022000404 (Nov. 10, 2022)

Complainant had pursued a civil action regarding a failure to promote in the U.S. District Court for the Central District of California, Western Division. Complainant and the Agency entered into a settlement agreement to resolve the matter and the civil action was dismissed with prejudice in January 2012. In pertinent part, the settlement agreement provided that the Agency would adjust Complainant’s schedule so that he had an equal split of non-teaching days (other than his current two teaching days) assigned to the clinic, with no reduction in Complainant’s pay. The agreement also required the Agency to use its best efforts so that within 45 days the Complainant could use the other half-time split to assist on tort claim reviews. In August 2021, Complainant filed a complaint alleging that the Agency was in breach of the January 2012 settlement agreement because the Agency failed to comply when the Agency reassigned Complainant to the Quality Safety and Value Department under the supervision of a nurse and with only one day of clinic. The Agency dismissed the complaint concluding the matter was the subject of a civil action in a U.S. District Court. Further, the Agency stated that Complainant’s allegation of reassignment fell under subsequent acts of discrimination rather than breach.

On appeal, the EEOC found that the Agency had complied with the terms of the provision in question for over ten years. The EEOC has held that when an individual bargains for a position without any specific terms as to the length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position ad infinitum. Further, the EEOC has held that a settlement agreement that places personnel into specific duties, without defining the length of service or other elements of the employment relationship, will not be interpreted to require the agency to place the personnel in the identified job duties or positions in perpetuity. Thus, the EEOC affirmed the Agency’s determination that it was not in breach of the January 2012 agreement.

b. Petition for Enforcement

❖ Dayle H. v. Department of Veterans Affairs, EEOC Petition No. 2021003153 (Sept. 14, 2022)

An EEOC Administrative Judge (AJ) consolidated two complaints that the Agency discriminated against the Petitioner on the bases of sex and reprisal and issued a default judgment for the Petitioner. The AJ concluded that the Agency failed to exercise reasonable effort in the discovery process, failed to comply with the AJ’s orders, and delayed the production of documents and the hearings process in general. The AJ ordered several remedies, including significant non-pecuniary damages, attorney’s fees, and back pay. After Complainant’s subsequent appeal that the Agency was non-compliant with the AJ’s ordered remedies, the EEOC initially issued an appellate decision concluding that the Agency failed to provide any computational analysis for the basis of Petitioner’s back pay and tax consequences. The instant petition followed when Petitioner indicated that the Agency continued its failure to fully implement the AJ’s orders and failed to fully comply with directives set forth in the EEOC’s initial decision. Complainant further averred that the Agency also failed to comply with the terms of a subsequent settlement agreement (not part of the petition). The EEOC concluded that the Agency continued in its failure to fully implement the relief ordered in the initial appeal. The EEOC reminded the Agency that continued failure to file a compliance report or fully implement the orders set forth in the instant petition may result in referral to the EEOC’s Office of Special Counsel and a requirement to issue a written report to the EEOC’s Director of Federal Sector Programs.

❖ Dalton E. v. Department of Justice, EEOC Appeal No. 2022001808 (Oct. 19, 2022)

The EEOC found that the Agency did not fully comply with the EEOC’s previous decision, which found age discrimination in Petitioner’s favor. In so finding, the EEOC determined that the Agency failed to pay Complainant the additional earnings his Thrift Savings Plan (TSP) account would have accrued had he not been subjected to discrimination. The EEOC considered that the Agency sent an email stating that it was working to rectify the back pay for Petitioner’s TSP. The EEOC concluded that the Agency had agreed to research the matter and communicate the results with Petitioner but failed to do so. Therefore, the EEOC ultimately granted the petition and ordered the Agency to pay Petitioner the remaining back pay owed with a clearly detailed explanation of how the Agency calculated this portion of Petitioner's back pay.