The DIGEST Of Equal Employment Opportunity Law

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Volume XXI, No. 4

Office of Federal Operations

Fall 2010

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Inside

Selected EEOC Decisions on:

SELECTED NOTABLE EEOC DECISIONS FROM FY 2010

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(The Fall 2010 edition of the Digest contains a sampling of summaries of decisions of note, some appearing in previous issues, selected by the staff of the Digest from among the volume of decisions the EEOC issues each fiscal year. The summaries are neither intended to be exhaustive or definitive as to the selected subject matter, nor are they to be given the legal weight of case law in citations. For summaries of decisions involving claims of harassment, see by statute as well as under multiple bases. – Ed.)

SELECTED EEOC DECISIONS

Attorney's Fees

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

Agency Ordered to Pay Attorney's Fees Based on Reasonable Rate for Out-of-Town Counsel. The Commission ordered the Agency to pay Complainant's attorney's fees in the amount requested, even though Complainant sought out-of-town counsel. While noting that the reasonable hourly fee is generally the prevailing market rate in the relevant community, the Commission found that the Agency failed to meet its burden of showing that Complainant's decision to retain out-of-town counsel was unreasonable. Complainant asserted that when the Agency refused to implement the decision of an Administrative Judge (AJ) awarding her compensatory damages, she found it necessary to obtain legal counsel outside of the area who was experienced in federal EEO matters. The Commission found that, in this case, it was not unreasonable for Complainant to seek out-of-town counsel with relevant experience and a proven track record of success in receiving favorable outcomes for its clients. The Commission ordered the Agency to pay Complainant's reasonable attorney's fees in the amount originally requested. Coffee v. Dep't of the Army, EEOC Appeal No. 0120093008 (November 17, 2009); see also, Donaldson v. Dep't of Homeland Sec., EEOC Appeal No. 0720090032 (December 24, 2009) (finding that Complainant's use of an out-of-state attorney was reasonable. The Agency never objected to the location of Complainant's counsel during the proceedings, and various Agency officials involved in the case, including the Agency Counsel, were located in that area).

Attorney Entitled to Prevailing Market Rate. Complainant successfully pursued a claim of disability and reprisal discrimination, and requested attorney's fees. According to the record, his attorneys, as part of the Federal Employee Legal Services Center, provide legal representation to federal employees at a "reasonable cost." Complainant's attorneys entered into a fee agreement with Complainant at a reduced rate. On appeal, the Commission found that Complainant was entitled to attorney's fees based upon the attorneys' customary hourly rate, which the Commission stated was reasonable and supported by the evidence of record. The Commission noted that attorneys who demonstrate that they charged reduced rates to federal employees in discrimination cases based upon public interest motives are entitled to receive an hourly rate at the prevailing market rate, notwithstanding a fee agreement. Lampkins v. U.S. Postal Serv., EEOC Appeal No. 0720080017 (December 8, 2009).

Attorney Fee Award Modified. The Agency adopted the AJ's finding that Complainant was subjected to reprisal when she received an "unsatisfactory" proficiency rating and was subsequently terminated from her probationary position. As relief, the Agency stated, among other things, that Complainant was entitled to an award of attorney's fees. Subsequently, the Agency issued a decision reducing the amount of fees claimed by Complainant. On appeal, the Commission noted that the Agency properly excluded 1.7 hours of work performed prior to the filing of the complaint, as the record showed that Complainant's attorney had already agreed to represent her prior to that time. With regard to the hours claimed for subsequent work, the Commission noted that the matter involved a three-day hearing, and many of the hours challenged by the Agency involved efforts by Complainant to ensure Agency compliance with discovery orders. Thus, the Commission found that, with a few exceptions, Complainant's fee petition was appropriate in its entirety due to the fact that she was a prevailing party, and the Agency's across the board 50 percent reduction was unwarranted. The Commission did note that Complainant was not entitled to reimbursement for paralegal time spent copying depositions which was part of office overhead, or time that was billed twice for drafting a letter to opposing counsel. Stance v. Dep't of Veterans Affairs, EEOC Appeal No. 0120080515 (June 24, 2010).

Class Complaints

Class Certification Granted. The Class Agent filed a formal EEO complaint alleging that the Agency discriminated against individuals with disabilities, and the AJ defined the class as all current and former employees with targeted disabilities at the Agency who, on or after August 22, 2005, applied for promotions, appeared on a best qualified list, and were denied promotional opportunities. The AJ further found that the class met the requirements for certification, and the Commission affirmed the AJ's findings on appeal. With regard to the numerosity prerequisite, the Commission noted that there were at least 35 employees with targeted disabilities who applied for promotions, made the best qualified list, and failed to be selected. In addition, the Class Agent proffered sufficient evidence to support his contention that significant factual and legal questions were common to the members of the class, including significant evidence of an alleged Agency-wide policy of excessive subjectivity in personnel decisions and maintenance of a strong Agency culture which included disability stereotyping. In addition, the Class Agent presented statistical evidence of disparities in selection based on disability. While the Agency challenged the evidence provided by the Class Agent, the Commission noted that, at the class certification stage, the main issue was whether or not there were common questions of fact or law and not whether the evidence supported the ultimate finding as to discrimination. Finally, the Commission determined that the law firms aiding the Class Agent were clearly experienced in class actions, including claims of discrimination based on disability. Thus, the AJ's certification of the class was upheld. Jantz v. Soc. Sec. Admin., EEOC Appeal No. 0720090019 (August 25, 2010), request for reconsideration denied EEOC Request No. 0520110045 (January 4, 2011).

Compensatory Damages

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

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

$200,000 Awarded for Denial of Reasonable Accommodation. After finding that Complainant was discriminated against when he was denied reasonable accommodation, the Commission determined that Complainant was entitled to an award of $200,000 in non-pecuniary compensatory damages as a result thereof. Specifically, the Commission noted that the Agency's failure to accommodate Complainant resulted in his inability to work and in the loss of income. Complainant testified that due to the loss of his job, his ex-wife sued for custody of his children, and he was unable to satisfy his child and spousal support obligations. Complainant stated that the Agency's actions brought him to the brink of "financial ruin." Blount v. Dep't of Homeland Sec., EEOC Appeal No. 0720070010 (October 21, 2009), request for reconsideration denied EEOC Request No. 0520100148 (April 16, 2010).

$125,000 Awarded for Discriminatory Harassment. The Commission found that Complainant was subjected to harassment based on her disability and prior protected activity for over two years. Complainant testified that, over the course of the harassment, she needed medication to sleep, had nightmares, was uninterested in things she used to do, and experienced severe stress. Complainant was prescribed several medications, was under the care of a psychiatrist and a psychologist, and was placed off work. She was diagnosed with major depressive disorder, anxiety disorder, and panic disorder. Thus, the Commission affirmed the AJ's award of $125,000 in non-pecuniary compensatory damages. Champion v. U.S. Postal Serv., EEOC Appeal No. 0720090037 (March 10, 2010).

$76,000 Awarded for Race and Color Discrimination. The Commission determined that Complainant was entitled to an award of $76,000 in non-pecuniary compensatory damages resulting from a discriminatory non-selection. The record included statements from Complainant, his friends, his psychologist, and a "Behavioral Sciences Team" indicating that Complainant exhibited symptoms of Post Traumatic Stress Disorder following the discrimination. Complainant became depressed, suffered a loss of self-esteem, and experienced a variety of physical symptoms, including headaches, nausea and insomnia. Thus, the evidence supported the non-pecuniary award. In addition, the Commission found that Complainant was entitled to an award of $2,250 in pecuniary damages for proven out-of-pocket treatment expenses. Bostick v. Dep't of the Army, EEOC Appeal No. 0120093611 (March 5, 2010).

$25,000 Awarded for Retaliatory Harassment. The Commission affirmed the AJ's finding that Complainant was subjected to retaliatory harassment when she was required to provide leave slips, denied travel expenses, and issued an Opportunity to Improve Letter. In addition, the Commission found that Complainant was entitled to an award of $25,000 in non-pecuniary compensatory damages. Complainant and her husband testified that Complainant experienced depression and had difficulty sleeping. In addition, Complainant was withdrawn, had decreased interactions with family and friends, and had difficulty concentrating. The Commission noted, however, that Complainant and her husband attributed some of her symptoms to actions that were dismissed by the Agency and for which no discrimination was found. Johnson v. Dep't of the Treasury, EEOC Appeal No. 0720080019 (June 4, 2010).

$15,000 Awarded for Sexual Harassment and Reprisal. In a previous decision, the Commission found that Complainant was subjected to sexual harassment and retaliation, and ordered the Agency to calculate the proper amount of compensatory damages. The Agency subsequently issued a final order awarding Complainant $15,000 in non-pecuniary damages. On appeal, the Commission agreed with the Agency that the amount was sufficient to compensate Complainant for the stress, anxiety, depression, and other emotional harm she suffered as a result of the discrimination. The Commission noted that Complainant failed to offer any documentation in support of her claim for increased medical expenses, lost income, relocation expenses, or expenses relating to an automobile accident. Complainant also failed to show that these expenses were related to the discrimination. The Commission did note that Complainant would be entitled to costs related to litigating her EEO complaint, including travel expenses to attend the EEOC hearing. The Commission ordered the Agency to provide Complainant an opportunity to support her request for such costs, and reimburse her for them. Woolf v. Dep't of Energy, EEOC Appeal No. 0120101756 (August 10, 2010).

$12,500 Awarded for Disability Discrimination and Reprisal. Following a hearing, an AJ issued a decision finding that Complainant was subjected to disability discrimination and reprisal when the Agency failed to reasonably accommodate her and issued her two notices of separation. The Agency fully implemented the AJ's decision, and subsequently awarded Complainant $12,500 in non-pecuniary compensatory damages, as well as $3,375 in pecuniary damages. On appeal, the Commission noted that the discrimination resulted in Complainant experiencing sleep problems and stress, and exacerbated her pre-existing depression and anxiety. The Commission further stated that Complainant's condition was also influenced by other factors, such as the delay in receipt of OWCP benefits. Thus, the Commission found that the award of $12,500 was sufficient to remedy the harm caused by the discrimination. Further, the Commission found that the Agency correctly awarded Complainant $3,375 in pecuniary damages for treatment by one physician for depression during the relevant time period. With regard to Complainant's claim for reimbursement for treatment by another physician, out of pocket expenses for medication, costs associate with the foreclosure of Complainant's home, moving expenses, bankruptcy, loss of credit, and lost wage earning capacity, the Commission found that Complainant failed to show that any of these were related to the discrimination. Vonville v. U.S. Postal Serv., EEOC Appeal No. 0120082116 (August 2, 2010).

Compliance

Agency Failed to Comply with Commission Decision. In a previous appeal, the Commission reversed the Agency's dismissal of Complainant's formal EEO complaint, and remanded the matter for investigation into whether the Agency had discriminated against complainant based on his race and age with regard to the assignment of overtime. Rather than comply with the Commission's remand order, the Agency issued another Final Agency Decision again dismissing Complainant's complaint for failure to timely file his formal complaint. On appeal from the second final decision, the Commission found that the Agency failed to comply with the Commission's remand order. The Commission further found that the Agency provided no justification for introducing new evidence on timeliness at such a late date, and failed to provide a reason as to why the evidence could not have been produced previously. Because the Agency, on remand, did not articulate a legitimate, nondiscriminatory explanation as to why Complainant received fewer overtime hours than the comparative employees, the Commission found that it had not met its burden of proof. The Commission therefore concluded that Complainant had established that he was discriminated against on the bases of race and age with regard to the assignment of overtime, and awarded Complainant the 45 hours of overtime compensation he had requested as relief. Scott v. Dep't of Transp., EEOC Appeal No. 0120090110 (July 16, 2010), request for reconsideration denied, EEOC Request No. 0520100538 (October 14, 2010).

Agency Failed to Comply with its Final Decision. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it denied her reasonable accommodation, sent her home, and told her there was no available work that would accommodate her disability. Following a hearing in the matter, the AJ found that Complainant was discriminated against as alleged. The AJ ordered the Agency to pay Complainant back pay for a specific period, minus retirement benefits; pay Complainant for increased tax liability she may have incurred as a result of being paid the lump sum back pay award; offer Complainant the option of reinstatement to her former position of Modified Distribution Clerk at her former facility, consistent with her medical restrictions; restore any lost leave; ensure that all responsible management officials receive a minimum of 40 hours of EEO training; post notice of the discrimination; and pay Complainant $10,000 in non-pecuniary compensatory damages. In its final order, the Agency fully adopted the AJ's findings and remedies. Subsequently, Complainant notified the Agency that, with the exception of paying compensatory damages, it had not complied with its decision. Complainant filed an appeal with the Commission when the Agency did not resolve the matter.

On appeal, the Commission noted that, because the Agency fully adopted the AJ's Order, it must provide the relief specified by the AJ. The Commission stated that the documentation in the record showed a profound breakdown in communication between the Agency and Complainant regarding compliance with the final order. Specifically, while there is a letter from the Agency to Complainant indicating that Complainant verbally agreed to be reinstated to the Modified Distribution Clerk position as ordered, the letter also indicated that the Agency later determined that Complainant could not be placed into that position, and offered her a clerical position instead. Subsequent correspondence revealed that an impasse developed between Complainant and the Agency regarding whether the position offered complied with the AJ's Order, which precluded the Agency from calculating Complainant's back pay and tax liability award, as well as restoring her lost leave. The Commission concluded that, because the Agency chose to fully implement the AJ's order, it must make a written offer to reinstate Complainant to the Modified Distribution Clerk position she previously held in a capacity consistent with her physical restrictions. In addition, the Agency must calculate Complainant's back pay for the specified periods until the date she is reinstated or declines the offer of reinstatement. The Commission also found no evidence that the Agency provided EEO training to the responsible management officials, posted notice of the discrimination, or restored Complainant's leave. Thus, the Commission ordered the Agency to specifically comply with the relief ordered by the AJ. Fabish v. U.S. Postal Serv., EEOC Appeal No. 0120102231 (September 9, 2010).

Dismissals

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

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

Complaint Improperly Dismissed for Failure to Cooperate. The Agency dismissed Complainant's complaint for failure to cooperate because Complainant failed to submit her affidavit. On appeal, the Commission found the Agency's dismissal for failure to cooperate was improper, because the evidence failed to show that Complainant purposely engaged in delay or contumacious conduct. The record contained a letter from Complainant requesting a 20-day extension to respond to the affidavit request, because Complainant was working extended hours and the affidavit contained 172 questions. The Commission noted that there was no evidence the Agency responded to Complainant's extension request prior to summarily dismissing her complaint. Further, the Commission stated that there was sufficient information in the record, including a two-paged typed statement and three-paged handwritten statement from Complainant and documentation regarding the alleged management actions, for the Agency to have continued the investigation without Complainant's affidavit. Parker v. U.S. Postal Serv., EEOC Appeal No. 0120090491 (June 4, 2010).

Complaint Improperly Dismissed as Raising the Same Matter as a Grievance. Complainant initiated a grievance action in November 2009 when he did not receive an award. He also contacted an EEO Counselor and subsequently filed a formal EEO complaint in January 2010. The Agency dismissed his EEO complaint on the grounds that he elected to raise the issue in a negotiated grievance procedure. On appeal, the Commission found that the dismissal was improper. The Commission noted that the agreement between the union and the Agency provided that aggrieved employees had the option of raising issues of discrimination in a grievance procedure or an EEO complaint but not both. In this case, however, the Agency dismissed Complainant's grievance in December 2009 on the grounds that he chose to pursue the matter through the EEO process. The Commission found that the Agency's dismissal of the grievance was in essence a determination that the matter at issue was not grievable, and, therefore, Complainant did not make an election. Thus, since Complainant could not use the grievance process, he must be granted the opportunity to pursue his claim through the EEO process. Johnson v. Dep't of Transp., EEOC Appeal No. 0120101620 (August 17, 2010).

Complaint Improperly Dismissed as Raising the Same Matter as a Grievance. Complainant filed a formal EEO complaint in February 2010 alleging that the Agency discriminated against her when it refused to allow her to continue performing certain duties. The Agency ultimately dismissed the complaint on the grounds that Complainant previously raised the same matter in a negotiated grievance procedure. On appeal, the Commission found that the dismissal was improper. The record contained a response to the grievance that showed Complainant did file a grievance concerning the same facts and circumstances as her EEO complaint. The Commission noted, however, that the Agency failed to provide the portion of the collective bargaining agreement that includes the express language stating whether the grievance procedure permits claims of discrimination. In addition, the Agency denied Complainant's grievance on the grounds that the matter was non-grievable. Thus, the matter was remanded to the Agency for further processing. Barnes v. Dep't of the Air Force, EEOC Appeal No. 0120102045 (August 31, 2010).

Findings on the Merits and Related Decisions

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

Under the Age Discrimination in Employment Act

Age Discrimination Found with Regard to Non-Selection. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of her age when it failed to select her for a GS-12 Soil Conservationist/District Conservationist position. Following an investigation, the Agency found that Complainant had not been subjected to discrimination. On appeal, the Commission initially found that, contrary to the Agency's conclusions, Complainant did establish a prima facie case of discrimination because (1) at 50, she was over 40 years of age and a member of the relevant protected group; (2) she was not selected for the position she sought; and (3) a significantly younger person (29 years old) was selected instead. The Commission further found that the Agency provided legitimate, non-discriminatory reasons for its actions when it stated that Complainant was not selected for the position because she did not perform as well as the Selectee during the interview and did not have a graduate degree, which the selectee had. Nonetheless, the Commission ultimately found that the Agency's stated reasons for Complainant's non-selection were a pretext for age discrimination. The Commission stated that Complainant had plainly superior qualifications for the position, and the record revealed that the Selecting Official mischaracterized Complainant's response to an interview question. The Commission also noted that the Selecting Official's assertion that he changed the questions presented in the interview and the written test after he reviewed the applicants' responses to the KSAs was troubling and called into question the credibility of the Selecting Official. The Commission ordered the Agency to, among other things, retroactively place Complainant in the position or a substantially similar position, and pay Complainant appropriate back pay and benefits. May v. Dep't of Agric., EEOC Appeal No. 0120090571 (July 9, 2010).

Age Discrimination Found with Regard to Non-Selection. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his age when he was not selected for the position of General Engineer. Complainant was found to be qualified for the position, but was not one of the 10 candidates selected by the Agency. Following an investigation, the Agency issued a final decision finding no discrimination. On appeal, the Commission found that the Agency failed to proffer a legitimate, non-discriminatory reason for not selecting Complainant. The Commission determined that Complainant established a prima facie case of age discrimination, notwithstanding that some Selectees were members of Complainant's protected class, because other Selectees were younger than Complainant. The Commission then found that the Agency failed to rebut the prima facie case. The record showed that the Selecting Official merely stated that he employed the qualifications in the vacancy announcement to make the selections. The Selecting Official did not provide any specific testimony as to what qualities he considered in this particular selection, and the record lacked any explanation as to why Complainant was not selected for the position. The Commission ordered the Agency to offer Complainant a General Engineer or substantially equivalent position, with appropriate back pay and benefits. Lingle v. Dep't of Transp., EEOC Appeal No. 0120082276 (July 9, 2010), request for reconsideration denied, EEOC Request No. 0520100475 (September 24, 2010).

Under the Rehabilitation Act

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

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

Disability Discrimination Found with Regard to Fitness for Duty Examination. Complainant worked for the Agency as a Mail Processing Clerk, and due to medical restrictions, her primary duty involved placing address labels on pieces of mail that had been repaired so that they could be returned to customers. According to the record, Complainant complained to management that other employees were discarding deliverable mail. Agency management investigated Complainant's allegations, and determined that the mail in question was undeliverable bulk mail. Complainant's supervisor indicated that Complainant had been going through the waste basket on a daily basis after being instructed not to do so. The following day, Complainant was ordered to undergo a fitness for duty (FFD) examination. Complainant underwent a two and one-half hour examination, and the physician diagnosed her as having delusional and depressive disorders. He stated that Complainant needed psychiatric treatment because of her failure to follow instructions regarding discarded mail and her inability to control her behavior. The doctor concluded that Complainant was unfit for duty, and the Agency's Medical Director concurred with the assessment. Complainant was advised that, in order to return to work, she must initiate treatment with a psychiatrist who must then submit a written recommendation to the Agency's medical unit. Complainant complied with the Agency's requirement, and returned to work several months later. She also filed a formal complaint of disability discrimination.

An AJ held a hearing in the matter, and found that the Agency violated the Rehabilitation Act when it ordered Complainant to undergo a psychiatric FFD examination. The Commission affirmed the AJ's decision on appeal. The Commission stated that the record was devoid of any evidence that would support a reasonable belief that Complainant could not perform the essential functions of her job or posed a direct threat to herself or other employees. The Agency claimed that Complainant displayed irrational behavior when she accused another employee of improperly discarding mail, had strained relationships with co-workers, disrupted other employees, and failed to follow instructions. The Commission stated that while such conduct may have warranted discipline, it did not lead to the conclusion that the Agency reasonably believed Complainant was a direct threat to herself or others or was unable to perform the essential functions of her job. The Agency was ordered to expunge all documentation associated with the FFD examination from Complainant's personnel files, pay Complainant for any pay lost during the period she was in a "non-work" status, and credit Complainant for any leave used or lost during the period in question. Snyder v. U.S. Postal Serv., EEOC Appeal No. 0720080050 (December 8, 2009).

Denial of Reasonable Accommodation Found. Complainant, an Immigration Status Verification Officer, filed a formal complaint alleging discrimination on the basis of his disability. Specifically, Complainant stated that, after he had a stroke, the Agency failed to act on his request to work at home as a reasonable accommodation. Complainant made his requests by telephone. During the investigation of his complaint, Complainant asserted that the Agency's actions resulted in his inability to work, and he sought disability retirement. On appeal, the Commission initially found that Complainant was a qualified individual with a disability. Complainant requested the reasonable accommodation of working at home, at least part time, while undergoing rehabilitation. One management official attempted to assist Complainant in pursuit of a reasonable accommodation, but was told that the matter was not his concern and that there was no work for Complainant. That official testified, however, that there were many tasks Complainant could have performed at home which would have aided in the mission of the Agency, and that it was possible for Complainant to access the Agency's computer databases from home. Complainant also stated that he would have been able to access the Agency's computer network from home and perform some work functions.

The Commission noted that Complainant's requests for accommodation were summarily denied by the Agency before it requested any medical documentation. The Commission found that the Agency made no attempt to determine what Complainant's limitations were or which of his essential job functions could be modified, and made no attempt to explore the possibility of other potential accommodations. Instead, the Agency encouraged Complainant to seek disability retirement. Agency officials testified that they were "either unaware or untrained" as to their responsibilities under the Rehabilitation Act. The Commission concluded that the Agency failed to make a good faith effort to reasonably accommodate Complainant. The Agency was ordered to reinstate Complainant to his position, with appropriate back pay, and pay Complainant $200,000 in compensatory damages. Blount v. Dep't of Homeland Sec., EEOC Appeal No. 0720070010 (October 21, 2009), request for reconsideration denied EEOC Request No. 0520100148 (April 16, 2010).

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

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

Disability Discrimination Found with Regard to Medical Inquiry. Complainant, a Cook Supervisor at a Federal Correctional Institution, sustained injuries when a metal food cart fell on her, and when she tripped over a pallet. Complainant was given light duty work for over six months, after which she was notified that her light duty assignment would be terminated. Complainant was then charged with annual leave when she did not report to work. In addition, the Agency directed Complainant to attend a fitness for duty examination with a psychiatrist pursuant to Complainant's physician's recommendation after he was unable to identify any physical problems. Complainant ultimately filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her when it ordered her to undergo a psychological fitness for duty evaluation. Following an investigation, the Agency issued a final decision stating that Complainant was ordered to undergo a psychological evaluation so the Agency could obtain information on when she could return to work and how her condition impacted her duties. In particular, the Agency indicated that it was seeking more information regarding her medical condition in order to provide her with a reasonable accommodation. On appeal, the Commission found that the Agency failed to meet its burden showing that a psychological examination was needed. The Commission stated that the Agency presented no evidence that Complainant's mental state was at issue or that it felt that she was unable to perform the essential functions of her job because of a mental condition. The Commission ordered the Agency to, among other things, investigate Complainant's entitlement to compensatory damages. Cofield-Gipson v. Dep't of Justice, EEOC Appeal No. 0120073270 (July 9, 2010), request for reconsideration denied, EEOC Request No. 0520100533 (November 18, 2010).

Under the Equal Pay Act and Title VII

According to the record, Complainant, a kinesiotherapist, took a downgrade in order to transfer to another Agency facility. A female kinesiotherapist subsequently transferred into the facility. She retained her higher grade, and performed the same work as Complainant. Complainant sought a promotion through various channels, and although the Agency promised to promote him, it never did so. Complainant ultimately filed a formal EEO complaint alleging discrimination on the basis of sex with regard to his pay. During the investigation, it became apparent that Complainant was being paid less than the female comparative even though he was performing both the identical duties to the comparative plus additional duties that the comparative did not have to perform. Following a hearing, an AJ found that Complainant established his claims under both the EPA and Title VII, and the Commission affirmed the decision on appeal. The Commission rejected the Agency's argument that Complainant did not specifically allege a Title VII violation, noting that the EEOC regulations provide that a violation of the EPA is also a violation of Title VII. The Commission further found that the violation was willful, as evidenced by the Agency's repeated, unfulfilled promises to promote Complainant. Thus, the Commission ordered the Agency to, among other things, promote Complainant, and pay him back pay from three years prior to the date he filed his complaint, plus an equal amount in liquidated damages. The Commission noted that, since Complainant is entitled to the highest benefit provided by either the EPA or Title VII, but not both, the Agency must calculate back pay under both statutes to determine which one is more favorable to complainant. Gervais v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070063 (December 15, 2009).

Under Title VII

Race Discrimination Found with Regard to Non-selection. Complainant filed a formal EEO complaint alleging he was discriminated against on the basis of his race when he was not selected for a promotion. On appeal, the Commission found that Complainant put forth a prima facie case of race discrimination in that he applied for the position, was qualified and tentatively selected, but then his promotion was disapproved. In addition, Complainant identified two individuals within the Agency that were not of his race, but were selected for promotions. Although the Commission found that the Agency met its burden to put forth a legitimate, nondiscriminatory reason for not promoting Complainant, namely that he was under investigation for violating a court order, the Commission further concluded that the Agency's reason was unworthy of credence and not supported by the evidence in the record. The Commission noted that while the selecting official stated that he could not process the promotion because of the investigation, the Agency failed to provide documentation of any such policy or any documentation pertaining to the investigation. Thus, Complainant successfully showed that the Agency's reasons for his non-selection were a pretext for discrimination. The Commission ordered the Agency to offer Complainant the position, or a substantially equivalent position, with appropriate back pay, and to conduct an investigation to determine whether he was entitled to compensatory damages as a result of his non-selection. Rodgers v. Dep't of the Interior, EEOC Appeal No. 0120071822 (November 20, 2009).

Race Discrimination Found. Complainant filed a formal EEO complaint alleging, among other things, that he was discriminated against on the basis of his race when the agency terminated his participation in a training program. Following a hearing, an AJ issued a decision finding that Complainant was discriminated against on the basis of his race. The Manager who made the decision to terminate Complainant conceded that Complainant passed all required tests. Further, the Manger did not consult with the instructors before making the decision, but instead relied upon one individual who was clearly hostile toward Complainant and whom the AJ found was not credible. In addition, two witnesses testified that they heard someone remark "one down and two to go" when Complainant turned in his equipment following his termination. At that time, there were only three Black students in the 31-person class. One week before the class was to graduate, the third and last Black student was removed from the program. On appeal, the Commission affirmed the AJ's finding of discrimination. The record showed that Complainant was not rated as "marginal." Further, the environment was not favorable to Black recruits. According to the record, it was the Agency's policy to afford remedial training and an opportunity to correct behavior before removing candidates from the training program. The record indicated that the policy was followed with respect to White comparatives, but was not followed in Complainant's case. The Agency was ordered to, among other things, offer Complainant reinstatement into the next training program, with back pay. Jones v. Dep't of Energy, EEOC Appeal No. 0720090045 (March 5, 2010).

Sex Discrimination Found with Regard to Non-selection. Complainant, a Supervisory Staff Attorney, submitted an application to the Office of Personnel Management (OPM) for an Administrative Law Judge position. Complainant was deemed qualified for the position, was included on two certificates sent to the agency by OPM, and was interviewed by the Agency. She received a composite interview score of seven points, which the Acting Chief Administrative Law Judge indicated made her a "borderline" candidate for selection. Candidates were asked to rank their geographic preferences, and the Agency then went down the list of localities with openings and matched each vacancy with candidates that had expressed an interest in working in that area. The Agency selected the top three candidates who had expressed an interest in each locality based upon their OPM scores to compete for the position. Complainant was considered for six vacancies, but was not selected for any positions.

Following a hearing, an AJ found that Complainant was subjected to sex discrimination when she was not selected for two of the positions. On appeal, the Commission affirmed the AJ's decision. The Responsible Management Officials testified that Complainant was not selected for either position because she was not the most qualified based upon the recommendations of the interview panels. The Commission concurred with the AJ that the Selecting Officials based their decisions on "vague perceptions, intuitions, and feelings that were not premised upon the objective record." For example, one of the Selecting Officials stated that she was concerned with Complainant's willingness to take on an assignment in a particular location and stay for the required two-year period. Complainant, however, credibly testified that she informed the interview panel in no uncertain terms that she would be willing to accept any position available and remain for at least two years. In addition, Complainant previously relocated for over three years to accept an attorney position. Further, while the Selecting Official expressed concerns about whether Complainant would be sensitive to the Agency's complainants, and be responsive to Agency management, Complainant's performance appraisals of record clearly stated that she worked well with members of the public and management officials, and had strong interpersonal skills. The Selecting Official was unable to clearly explain any basis for her concerns about Complainant beyond her own subjective impression. Finally, while the Selecting Official stated that she spoke with Agency officials who worked with Complainant, those named officials did not recall speaking with the Selecting Official about Complainant. The Agency was ordered to place Complainant into either of the positions specified or a substantially equivalent position, with appropriate back pay and benefits, as well as pay Complainant $30,000 in proven compensatory damages, $95,095.80 in attorneys' fees, and $6,288.32 in costs. Carter v. Soc. Sec. Admin., EEOC Appeal No. 0720080005 (October 23, 2009).

Sex Discrimination Found with Regard to Non-Selection. Complainant, an Immigration Enforcement Agent, alleged that she was discriminated against on the basis of sex when the Agency failed to select her for a Deportation Officer position and a Supervisory Immigration Enforcement position. Following a hearing the AJ issued a decision finding that Complainant established that the Agency's reasons for her non-selection for both positions were a pretext for discrimination. Specifically, as to the Deportation Officer position, the AJ found that Complainant would have been selected if it were not for the fact that the panel changed her interview scores. Further, there was no evidence that the panel altered the scores of the other applicants. Regarding the Supervisory Immigration position, the AJ found that the selection panel gave Complainant substantially lower interview scores for answers that where very similar or better than male Selectees. On appeal, the Commission found substantial evidence to support the AJ's finding that Complainant was subjected to unlawful discrimination based on her sex. The Commission found that Complainant's qualifications were "plainly superior" to those of the male Selectees. The Commission ordered the Agency to, among other things, place Complainant into her choice of the two positions, with appropriate back pay and benefits, and pay Complainant $15,000 in proven compensatory damages. Watson v. Dep't of Homeland Sec., EEOC Appeal No. 0720090029 (August 23, 2010).

Sexual Harassment Found. Complainant filed a formal EEO complaint alleging, among other things, that he was subjected to sexual harassment. Specifically, Complainant stated that, on one occasion, his supervisor lifted Complainant's shirt and inappropriately touched him. On appeal, the Commission found that Complainant was subjected to unlawful sexual harassment. While the Supervisor denied that the incident occurred, Complainant's claim was supported by the statement of a co-worker eyewitness. In addition, the Agency neither rebutted nor discredited this evidence. Further, the Commission found that the supervisor's actions were sufficiently severe and pervasive to alter the conditions of Complainant's employment and create an abusive working environment. The Commission also found no basis to relieve the Agency of liability, given that Complainant reported the incident to the Agency's Postal Inspector in Charge by letter on three separate occasions, but the Agency took no action. The Agency was ordered, among other things, to pay Complainant $10,000 in proven non-pecuniary compensatory damages, based on evidence that complainant's pre-existing stress condition had been aggravated by the Agency's actions. Johnson v. U. S. Postal Serv., EEOC Appeal No. 0120073809 (June 24, 2010).

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

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

Under Multiple Bases

Race and Sex Discrimination Found. Complainant and the Selectee submitted applications for the position of Prosthetic Representative. The Commission found that Complainant possessed plainly superior qualifications for the position in relation to the Selectee. Complainant worked in the Prosthetics division for approximately 10 of his 22 years with the Agency with various duties and a greater range of programs. The Selectee had approximately seven years of experience at the Agency and in Prosthetics. The Commission also found that the Selectee had a suspiciously unfair advantage in the selection process, in that the record reflects that the Selectee previewed the qualifications for the position and signed the recruitment checklist before the vacancy announcement was issued while she was Acting Chief. It is also noted that at least one interview panelist claimed the Selectee was better qualified due to her management experience, even though the vacancy was for a "trainee" job that did not require management skills. Further, the Selecting Official acknowledged that he falsified selection documents that indicated that he contacted references for a candidate, reviewed the Agency's diversity plan, and discussed the plan with the EEO manager. The Commission also noted that the Selecting Official stated to Complainant and other employees that he was left to die in Vietnam by an African-American man. In addition, the Selecting Official never selected an African-American, although he had interviewed African-Americans for positions. Given the totality of the circumstances, the Commission found that the Agency's explanations for not selecting the Complainant were unworthy of belief. Among other relief, the Commission ordered the Agency to offer Complainant the position of Prosthetics Representative, with the appropriate amount of back pay, and provide EEO training to the responsible Agency officials. Calloway v. Dep't of Veterans Affairs, EEOC Appeal No 0120080458 (September 29, 2009), request for reconsideration denied, EEOC Request No. 0520100087 (March 11, 2010).

Race, National Origin and Sex Discrimination Found. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race, national origin, and sex when it did not select her for a Project Manager (trainee) position. According to the record, Complainant achieved the highest rating and ranking score from the rating panel. The Agency stated, however, that she did poorly during her interview. Following a hearing, the AJ found that the Agency failed to articulate a legitimate, non-discriminatory reason for Complainant's non-selection. Specifically, the AJ stated that the Agency failed to preserve any of the notes taken by the interview panel. In addition, neither of the two Interviewees who testified at the hearing could remember Complainant's specific answers to any of the interview questions. On appeal, the Commission affirmed the AJ's finding of discrimination. The Commission noted that the Agency offered an acutely subjective explanation for not selecting Complainant, and then failed to produce the objective evidence upon which Complainant might rely in her attempt to show pretext. The Agency was ordered to, among other things, retroactively promote Complainant to the position, with back pay and appropriate grade increases, and pay her $5,000 in proven compensatory damages. Chhe v. Dep't of Hous. and Urban Dev., EEOC Appeal 0720090008 (August 6, 2010), request for reconsideration denied EEOC Request No. 0520100584 (January 27, 2011).

Race and National Origin Harassment Found. Complainant, a Senior Correctional Officer, filed a formal EEO complaint alleging, among other things, that he was subjected to harassment on the bases of his race and national origin. Specifically, Complainant asserted that a Senior Officer made provocative comments to him in front of inmates, thereby undermining his authority and creating tension among his co-workers. Complainant spoke to a Lieutenant about the comments, but no action was taken. Subsequently, Complainant and the Senior Officer were involved in a verbal altercation, and several individuals overheard the Officer tell Complainant he would "see him in the parking lot after work." Complainant reported the incident to his first-line supervisor, and both Complainant and the Senior Officer were asked to write a memorandum. On appeal, the Commission found the Agency liable for failing to take prompt and corrective action in response to Complainant's claim of co-worker harassment. The Commission noted that Complainant worked as a Correctional Officer in a Bureau of Prison's medical facility, and was one of very few minority officers. The Commission found that although the alleged conduct might not have been considered severe enough to create a hostile environment in a normal workplace, it did so within the context of a dangerous prison facility. The Commission also found credible evidence from both Complainant and two of his fellow officers that the Senior Officer targeted minority officers for abuse. The Agency acknowledged that management was aware of the Senior Officer's actions, but took no action in response to complaints about the provocative comments even though the Agency conceded that the comments had the effect of undermining a Correctional Officer's credibility. Further, there was no evidence that the Agency's response to the verbal altercation, which included instructing Complainant to write a memo, was prompt or appropriate enough to stop the harassment. The Commission ordered the Agency to, among other things, investigate Complainant's claim for compensatory damages. Mercedes v. Dep't of Justice, EEOC Appeal No. 0120102127 (September 17, 2010), request for reconsideration denied, EEOC Request No. 0520110053 (December 15, 2010).

Age Discrimination and Reprisal Found. Complainant filed a formal complaint alleging, among other things, that she was subjected to age discrimination when the Agency removed her supervisory duties, and subjected to age and reprisal discrimination when she received a "minimally effective" performance evaluation. Following a hearing, an AJ found discrimination as to these matters. On appeal, the Commission noted that Complainant's supervisory duties were reduced, and her position title was changed from Supervisory Human Resources Specialist, to Human Resources Specialist. Further, Complainant's Supervisor made various age-based comments such as "younger people are coming in and they are better with computers," and "young people are taking over and they're the best." Complainant's Supervisor also asked her on numerous occasions when she planned to retire. While the Agency asserted that some of Complainant's supervisory duties were removed in order to streamline its benefits processing function, one witness testified that she was told she was being removed from Complainant's supervision because Complainant had too many duties. In addition, Complainant stated that she was told that the Supervisor was reassigning her duties because it was what he wanted to do. Another employee noted that the Supervisor stated on numerous occasions that he intended to replace Complainant with another employee who was in her 20s. With regard to the performance evaluation, the Agency stated that Complainant received a "minimally effective" rating for various reasons, including her failure to provide performance standards for two employees and failure to train another named employee. Complainant stated, however, that she did prepare the performance standards for the two employees, but that they were subsequently reassigned and required new standards. In addition, the record showed that the Supervisor conducted Complainant's evaluation with his office door open when he normally conducted performance evaluations with his door closed. The Agency was ordered to, among other things, place Complainant into a Supervisory Human Resource Specialist position, with applicable benefits, and correct its records to reflect that Complainant received a "highly effective" rating with all applicable benefits. Cook v. Dep't of Labor, EEOC Appeal No. 0720080045 (February 22, 2010).

Disability Discrimination and Reprisal Found. According to the record, Complainant was born with the four fingers of her left hand on the same ligament, resulting in her having no dexterity or grasping ability with regard to those fingers. Further, Complainant is unable to perform any meaningful lifting with her left hand. Due to her overuse of her right hand to compensate, Complainant experienced bursitis, tendonitis, and neuritis in her right arm. Complainant's job as a Personnel Security Specialist required a substantial amount of typing, which was difficult for her, and, in August 2002, Complainant's production standards increased by several units per day. Complainant initially requested several accommodations, including lower production levels and the use of adaptive equipment, in order to keep up with her job responsibilities. The Agency denied Complainant's request to lower her production quotas, but provided Complainant with a one-handed keyboard. Complainant also applied for a vacant Privacy Act Specialist position that involved less typing, and later asked to be reassigned to the position as an accommodation. The Agency denied Complainant's request for a reassignment, and ultimately offered the Privacy Act Specialist position to a former incumbent. After 30 days of using the new keyboard, Complainant's performance had increased only slightly, and she did not meet her performance requirements. Complainant was placed in a temporary detail position, and ultimately left the Agency on disability retirement.

Complainant filed a formal EEO complaint alleging that she was discriminated against when the Agency denied her requests for reasonable accommodation. Complainant amended her complaint to include retaliation as a basis for discrimination. Following a hearing, an AJ found that the Agency subjected Complainant to disability discrimination and retaliation, and the Commission affirmed the AJ's decision on appeal. The Commission determined that Complainant was an individual with a disability, because she is substantially limited in her ability to carry, perform household tasks, and perform fine manipulation. In addition, she was substantially limited in the ability to work in both a class of jobs and a range of jobs requiring the use of two hands or even one healthy hand. Complainant's physician reported that Complainant has very little motion in the fingers of her left hand, decreased mobility in the joints, and essentially has use of only her right hand, which suffers from overuse. Further, in this case, the Commission concluded that the Agency should have reassigned complainant to the Privacy Act Specialist position, as Complainant established that a vacancy existed for which she was qualified, and she requested reassignment into the position on several occasions. The position was vacant at the time the 30-day trial period for the one-handed keyboard ended, and remained vacant for several months after complainant was denied the position. The Commission also found direct evidence of reprisal. The record contained testimony by a Supervisor that establishes that efforts to secure the Privacy Act Specialist position for Complainant ceased as soon as it became known that she had initiated EEO counseling in connection with her request for accommodation. The Commission concurred with the AJ that the refusal of Complainant's Supervisors to assist her in securing the reassignment was a materially adverse action that could have deterred her from pursuing her EEO complaint. The Commission found no evidence that the Agency would have dropped Complainant from consideration for the position in the absence of her EEO activity. The Agency was ordered to, among other things, pay Complainant $26,500 in non-pecuniary damages, and $364.52 in pecuniary damages, and compensate Complainant for 12 hours of annual leave used as a result of the discrimination. Bowers v. Dep't of Def., EEOC Appeal No. 0720070012 (March 22, 2010).

Retaliation

Reprisal Found Regarding Comments by Selecting Official. Complainant applied and was not chosen for a position. After Complainant filed an EEO complaint, the Selecting Official told a co-worker that he could not believe Complainant filed a complaint, that she was a liability, and that she was on the "other side of the line" because she filed the complaint. The Selecting Official told the co-worker that if she was going to file a complaint, to tell him first. He further told the co-worker that he expected loyalty from his employees. Additionally, two weeks before the hearing in this matter, the Selecting Official told the co-worker that he knew she was named as a witness, that a court reporter would be at the hearing, and that the transcript was a public record and he would know everything the co-worker said. The Commission found that the Selecting Official illegally interfered with the EEO process when he made the comments to the co-worker. The Commission ordered the Agency to provide the Selecting Official with 16 hours of EEO training, and to consider taking disciplinary action against the Selecting Official. James v. Dep't of Agric., EEOC Appeal No. 0120073831 (September 22, 2009), request for reconsideration denied, EEOC Request No. 0520100086 (March 22, 2010).

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

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

Per Se Finding of Reprisal. Complainant filed a formal EEO complaint alleging, among other things, that his Supervisor accused him of going to the an EEO Counselor without permission, tried to check Complainant's cellular phone to see if he had called the EEO Counselor without permission, and threatened to "dock" Complainant's pay if he attempted to contact an EEO Counselor. During the investigation, Complainant's Supervisor acknowledged that he told Complainant he, the Supervisor, would make the appointment for Complainant to see the EEO Counselor at the facility. In addition, the Supervisor stated that when he saw Complainant had paperwork from an EEO Counselor, he asked where Complainant obtained it, and told Complainant that he wanted to see his cell phone to verify if Complainant had contacted the EEO Counselor. Finally, the Supervisor told Complainant that, while Complainant had a right to see an EEO Counselor, the Supervisor must set up an appointment for Complainant during work time, and he would "dock" Complainant's pay if he left work without permission. On appeal, the Commission held that the actions at issue constituted a per se interference with the EEO process that amounted to retaliation against Complainant. The Commission noted that in this series of events, the Supervisor acted as if he were entitled to arrange all of Complainant's interactions with an EEO Counselor, which went far beyond a legitimate need to verify Complainant's whereabouts during work hours. In this way, the Supervisor impermissibly injected himself into the EEO process, and went so far as to ask to inspect Complainant's cellular telephone so that he could determine whether Complainant had contacted an EEO Counselor without his permission. The Commission found no special circumstances in this case that would make it necessary for the Supervisor to arrange Complainant's meetings with the EEO Counselor. The Agency was ordered to, among other things, cease and desist from requiring that all contact with EEO Counselors be arranged by management officials, conduct training for managers at Complainant's facility, and undertake a supplemental investigation to determine Complainant's entitlement to compensatory damages. Smith v. Dep't of the Navy, EEOC Appeal No. 0120082983 (February 16, 2010), request for reconsideration denied EEOC Request No. 0520100287 (July 9, 2010).

Retaliation Found When Complainant Reassigned. Complainant filed a formal EEO complaint alleging that she was retaliated against for engaging in protected EEO activity when she was reassigned out of her position as Manager of Injury Compensation. During the investigation, Complainant stated that she had previously been reassigned, but was placed back into the position one month before the civil action she filed on the matter was scheduled for trial. After the court granted the Agency's motion for summary judgment, the Agency reassigned her a second time. In its final decision, the Agency found that Complainant was not subjected to retaliation. The Agency asserted that Complainant was reassigned pending the outcome of a hostile work environment EEO complaint that was filed against Complainant by one of her subordinate employees.

On appeal, the Commission found that the Agency's reason for reassigning Complainant was not credible. Specifically, although management stated that Complainant was reassigned because a hostile work environment harassment complaint was filed against her, there was no evidence that the subject EEO complaint was in fact a hostile work environment claim. The complaint, in fact, concerned a one-time incident involving an audit. Further, Complainant's direct supervisor stated that she was reassigned because of poor performance. The Commission found that explanation to be wholly inconsistent with the reasons proffered by the Manager of Human Resources. Thus, the Commission determined that the Agency's articulated reason was unworthy of belief and a pretext for reprisal. The Agency was ordered to, among other things, retroactively reassign Complainant to her Manager Injury Compensation position with back pay, interest, leave, and other benefits, and pay proven compensatory damages. Fuentes v. U. S. Postal Serv., EEOC Appeal No. 0120091994, (June 30, 2010).

Retaliation Found with Regard to Terms and Conditions of Employment. Complainant filed a formal EEO complaint alleging that the Agency retaliated against him when it prevented him from submitting his Pay-for-Performance core requirements, subjected him to unfavorable working conditions, gave him negative evaluations and references, did not permit him to attend important job-related meetings, and gave him less than deserved performance ratings. The Agency issued a final decision finding no discrimination. On appeal, the Commission initially found that Complainant was not discriminated against with regard to the submission of his core requirements. Specifically, the Commission found no evidence that Complainant was treated any differently than similarly situated employees who had not engaged in protected activity. Nevertheless, the Commission stated that a supervisor essentially admitted telling Complainant "I know you filed an EEO. You better be careful what you wish for. You don't always get what you want." In addition, the supervisor came to Complainant's office and angrily said in a loud and intimidating voice "Boy, how many EEOs do you have going? Do you know?" The Commission concluded that a supervisor twice making such comments to an employee would be reasonably likely to deter the employee or others from engaging in protected activity. The Commission was also persuaded, based on the Agency's virtual silence regarding the other claims, that Complainant was subjected to retaliatory terms and conditions of employment. The Agency was ordered to, among other things, pay Complainant proven compensatory damages. Boswell v. U.S. Postal Serv., EEOC Appeal No. 0120091674 (July 7, 2010).

Retaliation Found with Regard to Non-selection. Complainant was a term employee with the Agency who sought a permanent position. She had filed a prior EEO complaint regarding her 2006 performance appraisal. As a result of the prior complaint, her second-line supervisor (Branch Chief) placed her cases on hold in the office's file room with a sign, "Please do not touch." Complainant filed a formal complaint of retaliation when the Agency did not select her for a permanent position. She subsequently requested to amend her complaint to include claims of unlawful retaliation regarding a mid-term review and the Branch Chief placing her cases on hold. Following a hearing, the AJ determined that the Agency did not discriminate against Complainant with regard to the non-selection and her mid-term review. However, the AJ determined that the Branch Chief retaliated against Complainant when she placed Complainant's cases on hold, and that the resulting backlog of cases was an important consideration during the hiring process. On appeal, the Commission determined that the claim regarding the backlog of cases should have been considered part of Complainant's evidence of pretext regarding the non-selection rather than a separate claim. Based on the AJ's finding that the Branch Chief used the backlog of cases to sabotage Complainant's efforts to gain permanent employment, the Commission concluded that the Branch Chief retaliated against Complainant when she was not selected for the permanent Adjudications Officer position. As such, the Agency was ordered, among other things, to offer Complainant a permanent Adjudications Officer position with back pay and benefits, and pay Complainant $15,000 in proven compensatory damages. Pizzo v. Dep't of Homeland Sec., EEOC Appeal 0720100027 (August 9, 2010), request for reconsideration denied, EEOC Request No. 0520100585 (November 3, 2010).

Retaliation Found When Complainant Terminated from Employment. Complainant, a Rural Mail Carrier, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when it terminated her employment, and subjected her to sexual harassment. Following a hearing, the AJ issued a decision finding no discrimination or harassment. The AJ found that the Agency articulated legitimate nondiscriminatory reasons for terminating Complainant, finding that she failed to perform an additional mail carrier route and failed to report her absence from work on one occasion. The AJ further found no evidence of reprisal, as the decision to terminate Complainant occurred before she contacted the EEO specialist. The AJ also found that the conduct complained of was not severe or pervasive enough to constitute unlawful harassment.

On appeal, the Commission found that the AJ's finding that Complainant was not subjected to a hostile work environment was supported by substantial evidence. The co-workers' comments cited by Complainant were not frequent, severe, or physically threatening and did not unreasonably interfere with Complainant's work performance. Further, Complainant never made the Agency aware of the harassment. With regard to Complainant's termination, however, the Commission found that Complainant was subjected to retaliation. The Agency's decision to terminate Complainant occurred immediately after she complained to her Supervisors of sexual harassment and after her Supervisors found that she was contemplating engaging in the EEO process. In this regard, the Commission found that prior to Complainant raising the issue of discrimination, there was no evidence that the Agency was contemplating termination. The Commission noted that Complainant's termination was overturned through the grievance process. Thus, the Agency was ordered to investigate Complainant's claim for compensatory damages, and provide back pay with interest. Ketring v. U.S. Postal Serv., EEOC Appeal No. 0120080466 (August 23, 2010).

Hearing Process

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

Mixed Motive

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

Sanctions

AJ's Issuance of Default Judgment Proper. Complainant, an Attorney Advisor, filed a formal complaint alleging that she was subjected to sex and age discrimination when the Agency did not select her for three temporary Senior Attorney positions and one Supervisory Attorney Advisor position. Following an investigation, Complainant requested an administrative hearing, and subsequently amended her complaint to include the bases of disability and reprisal, as well as claims that she was denied official time and "hazard leave." The AJ issued an Acknowledgment and Order that outlined the procedures to be followed in the hearing process, and noted that the parties were expected to complete discovery within 90 days. Complainant forwarded a Request for Admissions to the Agency, but it did not respond as it had not appointed a representative at the time. Complainant then asked the AJ to impose sanctions on the Agency based upon what she believed were deficiencies in the report of investigation. Complainant also sought to depose 10 witnesses. Several days later, Complainant served notice of her intent to schedule depositions of over 30 witnesses, and instructed the Agency to identify the individuals, contact them for scheduling their appearances, and coordinate travel to Complainant's attorney's office beginning the following Monday. The parties subsequently filed a Joint Request for Rulings on the Agency's contention that it had 30 days to file objections to the depositions, and on a request to extend discovery. The following day, the AJ ordered the Agency to produce the 30 employees for deposition. The Agency, however, notified Complainant's attorney that it was not ready to do so and would not appear for deposition. In response to a Motion to Compel and Motion for Sanctions, the Agency indicated its willingness to work out a mutually agreeable deposition schedule of those individuals relevant to the complaint. Complainant filed an additional Motion to Compel and Motion for Sanctions, to which the Agency did not respond. Ultimately the AJ issued a default judgment against the Agency, and ordered relief, including placement into the subject positions with back pay. A decision on attorney's fees and compensatory damages was pending at the time of the 2001 terrorist attack on New York City, and the case records were destroyed. In November 2001, the case was assigned to a second AJ (AJ2), and the case file records were reconstructed. AJ2 issued a decision awarding all relief ordered by the first AJ, as well as $60,000 in compensatory damages and $29,025.30 in attorney's fees.

On appeal, the Commission found that the first AJ's issuance of a default judgment was proper. The Commission stated that the report of investigation was, as Complainant asserted, inadequate given the number of non-selections at issue and the lack of documentation in the record. The Commission rejected the Agency's argument that an outside company conducted the investigation, stating that fact does not absolve the Agency of its responsibility to ensure that the report of investigation is adequately developed, and the Agency retains control of the outcome of the investigation. In addition, the Commission found that the Agency was negligent in responding to discovery requests in a timely manner. The Commission noted that the Agency took over two months, or two-thirds of the time allotted for discovery to appoint a representative. In addition, the Agency failed to respond to discovery requests both before and after a representative was appointed. Further, the Agency refused to even attempt to comply with the order to produce requested witnesses. Given the facts of the case, including the Agency's failure to show good cause with respect to the delay in appointing a representative and its failure to respond to discovery requests, the Commission concluded that the imposition of a default judgment was appropriate. The Commission affirmed AJ2's decision with regard to compensatory damages and attorney's fees. The Commission also found that Complainant established a right to placement into the positions as relief by showing that she was qualified for the positions at issue, applied and was not selected, and individuals outside of her protected class were favored in the selection. Cox v. Soc. Sec. Admin., EEOC Appeal No. 0720050055 (December 24, 2009).

Final Agency Decision Reversed Where Agency Failed to Provide Complaint File. Complainant filed a formal EEO complaint alleging that the Agency subjected him to discriminatory harassment, and the Agency dismissed the complaint for failure to state a claim. Complainant then filed an appeal with the Commission. Despite multiple requests from the Commission to produce the complaint file, the Agency failed to do so. The Commission noted that the Agency was made aware that the complaint file was missing from the Commission's records. The Commission stated that it was impossible to determine whether the Agency properly dismissed the complaint without the complaint file. Thus, the Commission reversed the Agency's final decision, and remanded the matter for processing. Volmar v. Soc. Sec. Admin., EEOC Appeal No. 0120082261 (August 23, 2010).

Hearing Request Properly Dismissed as Sanction. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when he was denied a reasonable accommodation and harassed. Following an investigation, Complainant requested an administrative hearing. Subsequently, the AJ sanctioned Complainant for failing to appear at a pre-hearing conference, and dismissed the complaint from the hearing process. The Agency then issued a final decision finding no discrimination. On appeal, the Commission found that the AJ did not abuse his discretion when he dismissed Complainant's hearing request. According to the record, the AJ issued two orders directing the parties to appear at a telephonic pre-hearing conference; however, neither Complainant nor his representative appeared for the conference. Further, Complainant and his representative disregarded the AJ's repeated orders and failed to put forth their reasons for the non-compliance. The AJ also noted that Complainant failed to provide his recent mailing address or any other pertinent information. The Commission stated that Complainant failed to provide any arguments or explanation justifying his failure to comply with the AJ's orders. The Commission then determined that Complainant failed to show that the Agency denied him reasonable accommodation, or that he was subjected to discriminatory harassment. Alvardo v. Soc. Sec. Admin., EEOC Appeal No. 0120102199 (September 10, 2010).

Settlement Agreements

Settlement Agreement Void When No Meeting of the Minds. Complainant and the Agency entered into a settlement agreement that provided for the Agency to "instruct" two named management officials to refrain from discussing Complainant's work history, and physical and mental well being with other employees or supervisors. Complainant alleged that the Agency breached the agreement when one of the named officials discussed her medical information and how to post her time card with her Supervisor. The Agency noted that the official was Complainant's prior Supervisor, and that business necessity required him to discuss Complainant's medical and employment information. On appeal, the Commission noted that it appeared the parties did not come to a meeting of the minds regarding the clause at issue. Specifically, the Agency interpreted the clause to mean that the officials may not discuss Complainant's information except when there is a business necessity to do so. Complainant, on the other hand, seemed to believe the officials would never discuss anything about her under any circumstances. The Commission determined that the matter should be remanded to allow Complainant the opportunity to void the agreement if she believed the officials were not permitted to discuss her information under any circumstances, including the processing of her workers' compensation claim. The Commission noted that, should the underlying complaint be reinstated for further processing, the parties would be returned to the status quo at the time of the settlement agreement, and Complainant would be required to return any benefits received pursuant to the settlement agreement. Robinson, aka Calame v. Dep't of Veterans Affairs, EEOC Appeal No. 0120092289 (October 9, 2009); see also, Guevara v. U.S. Postal Serv., EEOC Appeal No. 0120091159 (July 8, 2010) (the Commission found no meeting of the minds where settlement agreement provided for Complainant to "get the next approved city carrier job that comes available" at the named facility. The terms were too ambiguous, and there was no contemporaneous meeting of the minds. Complainant believed he was entitled to any carrier position that became available, while the Agency believed it only applied to part-time flexible carrier positions).

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

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

Settlement Agreement Void. Complainant and the Agency purportedly entered into a settlement which provided for Complainant to receive reinstatement of 20 hours of leave "to be concurred by higher level Management within 30 days." When Complainant notified the Agency that she did not receive credit for the hours, the Agency indicated that management refused to reinstate the leave. On appeal, the Commission determined that the settlement agreement was void. The Commission found that the settlement agreement was not final and binding as written, because there remained an open and pending matter, that is the approval of management. The Commission noted that the agreement did not include an alternative plan in the event that management refused to reinstate Complainant's leave, and thus, the agreement left Complainant without consideration. The Agency was ordered to reinstate Complainant's underlying EEO complaint for processing. Cooper v. U.S. Postal Serv., EEOC Appeal No. 0120090970 (June 18, 2010).

Standing

Complainant's Estate Does Not Have Standing. Complainant passed away in March 2009. In April 2009, Complainant's estate sought pre-complaint counseling and filed a formal EEO complaint alleging that the Agency discriminated against the deceased employee when it denied him reasonable accommodation. The Agency dismissed the matter, stating that Complainant's estate did not have standing to initiate the EEO process. On appeal, the Commission concurred with the Agency. The Commission noted that where a complainant has initiated the EEO process prior to his or her death at least by contacting an EEO Counselor, the estate may represent the deceased complainant. In this case, however, Complainant had not initiated the EEO process. While Complainant's estate asserted that he would have sought EEO counseling before he died if the Agency had not misled him into believing he would be returned to work, the Commission stated that the estate proffered no evidence of fraud or misrepresentation. Estate of Torrez v. U.S. Postal Serv., EEOC Appeal No. 0120101573 (July 27, 2010); see also, Estate of Stanton v. Dep't of the Navy, EEOC Appeal No. 0120101517 (August 20, 2010) (the Commission affirmed the Agency's dismissal of a complaint of harassment filed by Complainant's wife and purported executrix of his estate. An estate does not have standing to file a formal complaint on behalf of a deceased complainant where, as in this case, the complainant did not at least initiate EEO counseling.)

Stating a Claim

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

Anderson v. Dep't of the Navy, Appeal No. 0120092413 (October 16, 2009) (the Complainant's claim that he was required to submit the report from a fitness for duty examination to the Agency's security personnel states a claim; Commission has the authority to review an Agency's decision to initiate a review of a security clearance status and to review whether the grant or denial of a security clearance was done in a nondiscriminatory manner).

King v. Dep't of Justice, EEOC Appeal No. 0120093395 (November 24, 2009). (a complaint of harassment that included an allegation that Complainant's Supervisor at one time used of an offensive racial slur is severe enough to constitute a viable claim of discrimination. The Commission highlighted the severity of using the offensive slur, which "dredge[s] up the entire history of racial discrimination in this country.").

Goldstein v. Dep't of Homeland Sec., EEOC Appeal No. 0120092772 (December 9, 2009). (the Complainant stated a viable claim of harassment which included an explicit reference to his religion. The statement, made by someone who knew Complainant, was not a general statement made in the abstract, but specifically referred to complainant and his religion. Further, Complainant alleged that a management official failed to fully investigate the matter as a hostile work environment).

Parnell v. Dep't of Veterans Affairs, EEOC Appeal No. 0520100031 (December 17, 2009). (an allegation that Complainant's co-worker twice referred to Complainant's granddaughter, in Complainant's presence, as a "big, fat monkey" stated a claim of race discrimination. The remarks contained historically offensive slurs toward Complainant's race).

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

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

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

Carranza v. Dep't of the Army, EEOC Appeal No. 0120092727 (May 11, 2010). (the Agency's dismissal of the complaint for failure to state a claim on the grounds that Complainant was a contractor was improper. The Agency controlled the means and manner of Complainant's work, provided Complainant with her worksite, materials, equipment and supplies, and Complainant alleged that an Agency manager was directly responsible for her removal. Thus, the Agency exercised sufficient control over Complainant's position to qualify as a joint employer.) see also, Von Rueden v. Dep't of the Army, EEOC Appeal No. 0120102082 (August 19, 2010) (Complainant, a licensed medical doctor who was hired as a fee based practitioner, was considered an employee of the Agency where she was required to work under the supervision of Agency officials as well as abide by Agency bylaws and regulations with regard to training, maintenance of records, her performance appraisal plan, and the release of medical information, and the Agency provided her with her workspace, materials, equipment and supplies).

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

Neu v. Dep't of the Army, EEOC Appeal No. 0120100873 (June 3, 2010). (the Complainant's claim that she was subjected to a hostile work environment on the bases of her race, color and sex by a co-worker who referred to female employees as "big black girl," "black gal," and "monkeys" stated a viable claim of harassment. While Complainant was not present when some of the incidents occurred, she was present for a number of them, and alleged that the co-worker acted in an intimidating and frightening manner when confronted about engaging in racial behavior.)

Thompson v. Dep't of Justice, EEOC Appeal No. 0120101142 (June 15, 2010). (the Complainant's claim that the Agency retaliated against her by disseminating her medical information to staff via e-mail, contacting her psychologist and seeking medical information, and making inappropriate inquiries regarding what medication she was taking states a viable claim of discrimination. If an Agency discloses medical information pertaining to a complainant in a manner that does not conform with 29 C.F.R. § 1630, then the action would constitute a violation of the Rehabilitation Act.)

McCullum v. U. S. Gov't Printing Office, EEOC Appeal No. 0120090889 (July 30, 2010). (the Complainant's allegation that the Agency withdrew an offer for a position on the night shift after selecting her for the position, because the Agency only employed men on the night shift stated a valid claim of discrimination.)

Terrill v. Office of Pers. Mgmt., EEOC Appeal No. 0120091388 (August 6, 2010). (the Complainant, who was on detail to the Agency, alleged that the Agency discriminated against her when her Detail Supervisor sent an e-mail to her home agency which purportedly raised issues of misconduct. Complainant demonstrated that she was aggrieved by the action because the record reflected that, as a result of the e-mail, her home agency deemed her ineligible for placement into the Priority Placement Program.)

Warner v. U. S. Postal Serv., EEOC Appeal No. 0120101895 (August 24, 2010). (the Complainant's allegation that she was denied a detail states a claim of retaliation, because the action is reasonably likely to deter an employee from engaging in protected activity. The Agency's argument that Complainant did not apply for the detail addresses the merits of the complaint and is irrelevant to the issue of whether she stated a justiciable claim under Title VII.)

Warren v. Gen. Serv. Admin., EEOC Appeal No. 0120102392 (September 2, 2010). (the Complainant's allegation that his Supervisor threatened to charge him with being absent without leave if he did not contact the Agency's EEO counsel and then notify the Supervisor that he had done so states a viable claim of retaliation and discrimination. Such an action creates a chilling effect on Complainant's participation in the EEO process, and may constitute a per se violation of the EEOC Regulations.)

St. Romain v. Dep't of the Army, EEOC Appeal No. 0120102569 (September 10, 2010). (the Complainant's allegation that the Agency discriminated against her when it subjected her to an internal investigation states a justiciable claim, because Complainant alleged that she was targeted for the investigation because of her sex, and that similar charges would not have been lodged against a male employee under similar circumstances.)

Whitaker v. U. S. Postal Serv., EEOC Appeal No. 0120102283 (September 10, 2010). (the Complainant's allegation that she was subjected to a hostile work environment constituted a viable claim of discriminatory harassment where Complainant stated that management failed to take action when, for approximately three months, a co-worker made unwanted comments and stared at her in an intimidating manner, and continued his actions after she moved to another tour.)

Tucker v. National Aeronautics and Space Admin., EEOC Appeal No. 0120102677 (September 25, 2010), request for reconsideration denied EEOC Request No. 0520110072 (February 1, 2011). (the Complainant's allegation that the Agency subjected him to an investigation by the Inspector General states a claim of retaliation where Complainant asserted that the Agency used the proceedings as a means to intimidate and threaten him. Such an allegation, if proven true, could have a chilling effect on EEO participation.)

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

DeBord, Sr. v. U.S. Postal Serv., EEOC Appeal No. 0120100074 (March 18, 2010). (the Complainant's claim that he was subjected to race, sex, and age discrimination when the Agency asked him to provide medical documentation in relation to a Family and Medical Leave Act related absence was properly dismissed for failure to state a claim. The record shows that the Agency approved Complainant's request for leave, and Complainant took the leave. Although Complainant stated that he was threatened with discipline, the Agency did not issue any disciplinary action, and the events, even if true, were not sufficient to establish that Complainant was subjected to harassment.)

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

Rose v. Dep't of the Interior, EEOC Appeal Nos. 0120101487 & 0120101488 (July 27, 2010), request for reconsideration denied, EEOC Request Nos. 0520100537 & 0520100536 (October 22, 2010). (the Agency properly dismissed Complainants' EEO complaints for failure to state a claim where Complainants worked as park volunteers, and there was no evidence that they received benefits or significant remuneration such that they could be considered "employees" under the EEOC Regulations.)

Boyd v. U. S. Postal Serv., EEOC Appeal No. 0120102316 (September 7, 2010). (the Complainant's claim that, as a retired employee, he was not permitted to conduct union duties at Agency facilities did not state a justicable claim, and does not fall within the Commission's purview.)

Summary Judgment

Summary Judgment Proper. According to the record, a Supervisor observed that Complainant was not complying with written work orders. When the Supervisor attempted to discuss this with Complainant, a heated exchange ensued, and Complainant allegedly made an obscene gesture and mouthed an obscenity. Complainant also allegedly swung his arm at the Supervisor, at which point a manager intervened and placed Complainant in off duty status. Complainant, who is hearing impaired, filed a formal EEO complaint, stating that he should have been provided with an interpreter. Following an investigation, an AJ issued a decision without a hearing, finding that Complainant was not subjected to discrimination as alleged. On appeal, the Commission found that the AJ appropriately issued a decision without a hearing, as Complainant failed to proffer sufficient evidence to establish that a genuine issue of material fact existed, or that there were credibility issues such that a hearing was warranted. The Commission noted that, even assuming Complainant established a prima facie case, Complainant failed to show that the Agency's articulated reason for the action, that Complainant violated the zero tolerance policy, was a pretext for discrimination. Complainant acknowledged that he was involved in a heated exchange with the Supervisor, and did not deny that he made and obscene gesture and mouthed an expletive. Further, Complainant did not request an interpreter at the time of the exchange, and was provided with one when he was interviewed regarding the incident the following day. Kronenberg v. U.S. Postal Serv., EEOC Appeal No. 0120073116 (March 19, 2010).

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

Summary Judgment Inappropriate. Complainant worked for the Agency as a Physical Security Specialist, and applied for the same position in another division. Complainant was among the top eight candidates and was interviewed for the position. Complainant provided the names of three references in his application. The Director of Employment, however, contacted Complainant's supervisor who informed him Complainant needed to work on his writing skills. Complainant's supervisor also opined that Complainant did not have the ability to manage a nation-wide policy office, had some issues with strategic thinking, had problems reaching compromise, and had a dogmatic approach. Complainant was among the top three candidates forwarded to the Selecting Official; however, the interview panel recommended that the Selecting Official not interview Complainant and Complainant was not selected for the job.

Over Complainant's objections, the AJ granted the Agency's motion for a decision without a hearing, and found that Complainant failed to prove that he was discriminated against as alleged. On appeal, the Commission determined that there was insufficient evidence in the record to support the issuance of a decision without a hearing. Specifically, because Complainant alleged that he was not selected for the position, the applications of the candidates, interview notes, and ranking sheets were critical to the investigation of whether discrimination occurred. Although Complainant requested the ranking sheets and interview notes during the discovery period, the Agency failed to provide that information, indicating only that it was attempting to retrieve the documents. Further, the Commission noted that the record was devoid of any of the documents relating to the candidates' applications, or evidence relating to how the interview panel determined each candidate's qualifications. While the Agency relied upon the statements of Complainant's Supervisor, Complainant alleged that he had repeatedly engaged in protected activity, and the Supervisor's statements were made in retaliation for that activity. The Commission concluded that the record failed to contain the requisite documentation for Complainant to demonstrate that his qualifications were of such merit that absent discrimination or retaliation, he would have been selected for the position. The matter was remanded for an administrative hearing. Geary. v. Dep't of Agric., EEOC Appeal No. 0120071295 (October 22, 2009).

Grant of Summary Judgment Reversed Where Direct Evidence of Reprisal. Complainant filed a formal complaint alleging, among other things, that he was subjected to reprisal when he was suspended for five days. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately issued a decision without a hearing. The AJ analyzed the claim under a disparate treatment theory of discrimination, and found that Complainant failed to prove that he was discriminated against as alleged. On appeal, the Commission found that the AJ erred in examining the claim using a disparate treatment analysis, because Complainant presented direct evidence of discrimination. Specifically, the letter of proposed suspension referenced his EEO activity as a basis for disciplining Complainant. The letter of proposed suspension asserted that Complainant engaged in insubordination when he refused to follow instructions concerning proper e-mail traffic, and included, as an attachment, a list of Complainant's e-mails deemed "offensive" by Complainant's Supervisor. These e-mails included several in which Complainant alleged to management that he was being subjected to retaliatory harassment and disparate treatment. Further, in an investigative statement, the Supervisor cited Complainant's claim that he was subjected to reprisal and disparate treatment as an example of "insubordination." The Commission noted that management stated that Complainant was suspended because he falsely accused his Supervisor of misappropriating funds, and exhibited rude, discourteous behavior toward his Supervisor. Thus, the Commission determined that the matter should be reviewed under a mixed motive analysis. The Commission stated, however, that the record was inadequate to determine whether the Agency would have suspended Complainant absent its retaliatory motive, and the determination depended upon an assessment of the credibility of the responsible officials. Thus, the claim concerning Complainant's suspension was remanded for a hearing. Smith v. Dep't of the Army, EEOC Appeal No. 0120073300 (December 18, 2009).

Summary Judgment Improper Where Genuine Issues of Material Fact. Complainant, an Officer in the Uniformed Division of the Secret Service, filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of a disability and association with a disabled person when it lowered his scores for promotion thereby resulting in his non-referral for the position of Captain. The AJ ultimately issued a decision in the matter without a hearing finding no discrimination. On appeal, the Commission found that the issuance of a decision without a hearing was not appropriate. Specifically, the Commission stated that there were significant unresolved issues concerning Complainant's non-selection for promotion. According to the record, past selections were usually made based on the ranking of the candidates. In this case the record failed to show why Complainant, who was ranked second, was passed over in favor of the candidate who ranked seventh. Further, while the Chief who made the selection stated that he chose the Selectee because he had more experience than Complainant, the Chief also stated that he did not recall even discussing Complainant during the selection process. Thus, the Commission concluded that this discrepancy could only be resolved through a credibility determination made during a hearing. In addition, the Commission determined that the record was inadequately developed with regard to the reasons why Complainant's score was lowered, and with regard to Complainant's performance during the oral interview panel. Stump v. Dep't of Homeland Sec., EEOC Appeal No. 0120082599 (June 11, 2010), request for reconsideration denied, EEOC Request No. 0520100484 (September 21, 2010).

Timeliness

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

Formal Complaint Timely Filed. Complainant contacted an EEO Counselor alleging that the Agency discriminated against her on the basis of her age when it declined to pay her for sick leave and holiday pay. Complainant initially received a Notice of the Right to File an Individual Complaint on November 18, 2008. Complainant signed and returned a form to the Agency, but the Agency subsequently notified Complainant that she failed to include the actual Formal Complaint form. The Agency then sent Complainant a letter on December 4, 2008, notifying her that she had 15 calendar days in which to provide the signed copy of the Formal Complaint. The Agency received the completed forms on December 15, 2008, and dismissed the complaint as being untimely. On appeal, the Commission found that the Agency's December 4 letter negated the formal complaint deadline. The Commission stated that it was reasonable for Complainant to have relied on the letter which extended the deadline. Cuffie v. U.S. Postal Serv., EEOC Appeal No. 0120091294 (June 11, 2010).

Dismissal for Untimely EEO Counselor Contact Improper. Complainant, an applicant for employment, contacted an EEO Counselor on August 10, 2009, alleging that she was discriminated against when she was denied employment in May 2009. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, and, in response to Complainant's appeal, asserted that EEO posters including the 45-day limitation period were displayed at the facility where Complainant tested for the position. The Commission reversed the Agency's dismissal of the complaint. The Commission noted that Complainant was at the Agency facility for only a brief time, about one hour. Thus, the Commission concluded that, given the circumstances in this case, Complainant could not have been expected to have read the posting, thereby having constructive notice of the applicable limitation period. Houser v. Dep't of Commerce, EEOC Appeal No. 0120100340 (January 28, 2010).

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

Dismissal for Untimely EEO Counselor Contact Improper. Complainant contacted an EEO Counselor in December 2009 and raised various issues of discrimination that occurred from September 2008 through September 2009. After Complainant filed a formal EEO complaint, the Agency dismissed the matter for failure to timely contact the Counselor. On appeal, the Commission found that the Agency failed to meet its burden of establishing the Complainant knew of the applicable time limitations for initiating an EEO complaint. The Agency did not claim that EEO posters were widely displayed at Complainant's facility. Further, while the Agency argued that Complainant must have been aware of the relevant time limits because she had previously sought to file an EEO complaint as a contract employee, the Commission noted that the applicable time limits for contractors and federal employees are not necessarily the same. Thus, the Commission found that Complainant's contact with the EEO Counselor was timely. Moralez-Piper v. Dep't of the Army, EEOC Appeal No. 0120101463 (July 15, 2010).

Dismissal for Untimely EEO Counselor Contact Improper. Complainant contacted an EEO Counselor and subsequently filed a formal complaint, alleging that the Agency subjected him to various instances of harassment and discrimination from November 2007 through June 2009. The Agency ultimately dismissed the matter for failure to timely contact an EEO Counselor. While the Agency asserted that there were training sessions covering the applicable time limitations in June and August 2009, the Commission noted that Complainant went on light duty at a different facility in May 2009 and stated that he did not attend the training. Further, the record contained a statement from an Agency official stating that there was no record of Complainant having attended the training. The Commission also stated that while Complainant's Supervisor maintained that there were EEO posters at the work facility, an unsworn statement from the alleged responsible management official was not persuasive evidence that Complainant had actual or constructive notice of the EEO time limits. Mitchell v. Dep't of the Navy, EEOC Appeal No. 0120102094 (August 16, 2010), request for reconsideration denied, EEOC Request No. 0520110015 (December 10, 2010).