The DIGEST of Equal Employment Opportunity Law

Fiscal Year 2021, Volume 2

Office of Federal Operations

May 2021

 

Selected EEOC Decisions Regarding:

Attorney’s Fees

Class Certification

Compensatory Damages

Complaint Processing

Dismissals

Findings on the Merits

Under the Rehabilitation Act

Under Multiple Bases

Retaliation

Mixed Motive

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness

______________________________

The Digest of EEO Law is a quarterly publication of EEOC’s Office of Federal Operations (OFO).

Carlton M. Hadden, Director, OFO
Virginia Andreu, Assistant Director, OFO’s Special Operations Division

Digest Staff
Editor: Robyn Dupont

Writers: Craig Barkley, Robyn Dupont, Joseph Popiden, Navarro Pulley,
Nina Rivera, Camella Woodham

 

The Digest is available online through EEOC’s homepage at https://www.eeoc.gov/digest.

 

The Commission redacts Complainants' names when it publishes decisions, and all federal sector appellate decisions issued for publication use a randomly generated name as a substitute for the name of the complainant. This randomly generated first name and last initial is assigned using a computer program that selects names from a list of pseudonyms and bears no relation to the complainant's actual name.  This change was made to address privacy concerns and to ensure consistency with the Commission's approach in its enforcement work and the investigations of complaints.

 

The summaries below are neither intended to be exhaustive or definitive as to the selected subject matter, nor are the summaries themselves to be given the legal weight of case law in citations. For summaries of decisions involving claims of harassment, see “Findings on the Merits” by statute, as well as “Under Multiple Bases.”

SELECTED EEOC DECISIONS

Attorney’s Fees

Commission Affirmed Award of Attorney’s Fees.  An EEOC Administrative Judge (AJ) found that the Agency retaliated against Complainant when it did not select her for a Computer Analyst/Programmer Associate position.  The AJ found no discrimination with regard to Complainant’s nonselection for another position.  The Agency adopted the AJ’s decision, and Complainant’s attorneys submitted a fee petition.  The AJ determined that the claimed hourly rates for Complainant’s attorneys were reasonable, but the AJ reduced the number of hours claimed for each attorney.  The AJ excluded specific time claimed for work on the unsuccessful claim, and reduced the total number of hours by 15-percent across-the-board based on the unsuccessful claims presented, the relationship of the claims, and the time spent addressing these issues.  The AJ denied the Agency’s request for a further reduction for, among other things, excessive time billed and vague entries, and noted that the amount of time spent preparing for the hearing was reasonable.  The Commission found no reason to disturb the AJ’s award.  The Commission initially rejected the Agency’s argument that Complainant was not a prevailing party, noting that Complainant obtained some relief on her complaint.  The Agency did not dispute the hourly rate claimed by one attorney, and the other attorney submitted sufficient information to support the claimed hourly rate.  The Agency did not establish that the AJ erred in regard to the number of hours billed or the 15-percent reduction.  The record showed that Complainant’s attorneys completed a significant amount of work on Complainant’s case, and the AJ had the opportunity to observe the work done in preparation for the hearing.  The fact that Complainant did not prevail on every aspect of her complaint did not, in itself, justify a reduction in hours where the claims were intertwined, and it would be impossible to segregate the hours involved in each claim.  Given that Complainant’s claims were related and involved a common set of facts, the billable hours were not easily separated.  Therefore, the Commission affirmed the AJ’s award of attorney’s fees.  Iliana S. v. U.S. Postal Serv., EEOC Appeal No. 2021000595 (Dec. 7, 2020).

Class Certification

Class Certification Denied.  Complainant alleged that the Agency’s promotion system, while utilizing facially neutral annual selection boards, relied on subjective factors that manifest bias including “career promise,” mentor/mentee input, and relationship-forming potential.  Complainant asserted that the reliance on such subjective criteria negatively impacted the advancement of Foreign Service Officers over the age of 40.  The AJ denied class certification, and the Commission affirmed the decision on appeal.  The AJ found that Complainant failed to establish commonality and typicality.  Specifically, Complainant failed to establish how the use of the identified subjective criteria impacted those age 40 or older.  Not only did Complainant fail to provide evidence of the application of such allegedly discriminatory criteria to himself, but he also failed to provide evidence from other class members concerning how they were harmed by the use of such subjective criteria.  The AJ noted that while Complainant provided information in support of his claim of a statistically significant disparate impact on older workers seeking promotion, he failed to show how the use of the subjective criteria negatively affected other older Foreign Service Officers.  Further, the Agency applied other criteria when considering promotions including specific career paths, postings, discipline, and employee evaluation reports, which were applied to eligible Foreign Service officers “in direct competition with others of their skill code and grade.”  The Commission noted that Complainant failed to address the application of these other criteria in any way and failed to identify facts common to the class as a whole.”  The AJ further found that Complainant failed to meet the typicality requirement because he had unique circumstances, specifically a negative employee evaluation, which undermined his assertion that his claim was typical of the class.  The AJ found that the arguments Complainant made when grieving his 2014 evaluation regarding the importance of employee evaluation reports to his promotion prospects undercut his argument that promotions were based on subjective criteria.  Therefore, the AJ properly concluded that Complainant failed to establish the requirements for class certification.  The Commission remanded Complainant’s individual complaint for processing.  Ty S. v. Dep’t of State, EEOC Appeal No. 2020005030 (Dec. 14, 2020).

Class Certification Denied.  Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (African American), color (Black), and reprisal for prior EEO activity.  Complainant stated that the Agency had a long-standing practice of discriminating against employees and managers in Postal Police Officer (PPO) positions which are primarily held by non-white incumbents.  Complainant also noted that the Agency sought to prevent individuals in PPO positions from meeting to obtain better pay.  The matter was forwarded to an AJ, and, during the AJ’s review, Complainant alleged that the Agency engaged in a pattern and practice of suppressing wages in "racially segregated job titles.”  The AJ ultimately denied class certification, finding that Complainant failed to meet the elements of commonality, and typicality.  The AJ noted that the claim was analogous to that in a prior complaint, and was, therefore, subject to dismissal. On appeal, the Commission affirmed the AJ’s denial of class certification.  The Commission explained that the purpose of the commonality and typicality requirements is to ensure that a class agent has the same interests and experienced the same injury as the members of the proposed class.  Here, Complainant did not establish questions of fact common to the class, and therefore has not established commonality.  Complainant, a PPO who is African American, stated that most PPOs (bargaining unit employees) and PPO Managers (non-bargaining unit employees) are non-Caucasian and, for many years, the Agency has engaged in a pattern or practice of wage suppression.  Complainant also made several general allegations regarding Agency policies and procedures.  The Commission found that Complainant failed to establish an evidentiary basis from which it could reasonably infer the operation of an overriding policy or practice of discrimination.  In addition, Complainant failed to establish that his individual claim was typical of the class as a whole.  Complainant cited both bargaining unit and non-bargaining unit employees who worked in various locations nationwide.  Complainant failed to show that his experience was representative or typical to other putative class members.  Finally, the Commission agreed with the AJ that the complaint involved a generalized grievance shared by all employees in PPO positions, and, therefore, the complaint failed to state a justiciable claim.  Darell B. et al. v. U.S. Postal Serv., EEOC Appeal No. 2020003752 (Nov. 16,2020).

Compensatory Damages

(See, also, “Findings on the Merits,” and “Remedies” this issue.)

Commission Increased Award of Nonpecuniary Damages to $175,000.  The Commission previously found that Complainant was subjected to a pattern of racial harassment which management failed to address.  The Commission ordered the Agency, among other things, to investigate Complainant’s claim for damages, and the Agency awarded Complainant $110,000.  Complainant testified that he was diagnosed with PTSD by both his psychiatrist and the Agency’s psychiatrist as a result of the harassment, which including two physical assaults.  Complainant explained that he had trouble sleeping at night and constantly thinks about the details of the assaults.  Complainant explained that when he returned to work following the discriminatory incidents at issue, management assigned him back to the same division where the harassing incidents took place.  Complainant stated that he had to use a computer with a screensaver depicting a person bound and gagged, and he could only remain at work for an hour and 26 minutes.  Complainant stated he has been taking medication and attending regular therapy sessions since the assaults.  Complainant indicated that before the discrimination and physical assault, he was a positive and happy person, but he has since suffered mental and physical symptoms of distress including depressed mood, difficulty sleeping, nightmares, sweating, shortness of breath, lethargy, fatigue, erectile dysfunction, persistent negative thoughts, humiliation, irritability, loss of enjoyment of life, inability to concentrate, and memory problems.  Complainant was diagnosed with Panic Disorder Without Agoraphobia, Adjustment Disorder with Mixed Anxiety, and Depressed Mood.  Because of these conditions, Complainant explained that he became less patient, more confrontational and feels estranged from his family.  Since the attack, Complainant has lost interest in regularly going to the gym and stopped regularly attending church.  The record included physician’s visit notes corroborating Complainant’s conditions, and describing mental and physical symptoms that resulted from the verbal and physical harassment.  The Commission found that prior decisions involving similar harm supported an increase in the damage award to $175,000.  Stanton S v. Dep’t of Veterans Affairs, EEOC Appeal Nos. 2019005938 and 2020002226 (Sep. 14, 2020), request for reconsideration denied, EEOC Request No. 2020005371 (Feb. 2, 2021).

Commission Increased the Agency’s Compensatory Damages Award to $25,000.  The Agency found that Complainant was subjected to discriminatory harassment and awarded Complainant $6,000 in nonpecuniary compensatory damages.  The Commission increased the award to $25,000 on appeal.  Complainant stated that she experienced stress, anxiety attacks, depression, and high blood pressure, conditions she did not have before the discrimination occurred.  Complainant also indicated that, due to her medical conditions, she had trouble sleeping, withdrew from social activities, experienced strain in her marriage, and had to continuously seek care of a medical doctor and psychiatrist.  The record included medical documents and letter from Complainant’s physician indicating that the emotional harm Complainant suffered was directly related to the harassment from her supervisor.  The physicians indicated that Complainant had sleep disturbances, decreased concentration, and difficulty breathing and sitting still for approximately two years due to the “toxic supervisor.”  The medical records indicated that Complainant could still function, although with difficulty.  Additionally, physicians and therapist confirmed that Complainant had been treated for excessive stress and anxiety related to her work environment for over one year.  Complainant’s testimony identified the type of harm she suffered and adequately tied that harm directly to the Agency’s actions.  The Commission also determined that Complainant was entitled to $52 in pecuniary damages for co-payments incurred for her therapy visits.  The Commission denied Complainant’s request for medication expenses, and future pecuniary damages.  Tasia v. Dep’t of Def., EEOC Appeal No. 2020002945 (Oct. 6, 2020).

Commission Affirmed AJ’s Award of $20,000 in Compensatory Damages.  An AJ found that the Agency discriminated against Complainant on the bases of disability, genetic information, and reprisal when it did not issue her a performance evaluation, and did not keep her medical records confidential.  The AJ found no discrimination with regard to the remaining claims.  The AJ then awarded Complainant $20,000 in nonpecuniary compensatory damages, and the Commission affirmed the award on appeal.  Complainant stated that not receiving an evaluation made her feel trapped, because she was not able to look for another job.  In addition, she experienced anxiety after seeing her medical information on her supervisor’s desk.  Complainant’s daughter stated that Complainant experienced depression, gained weight, withdrew from her family, and no longer wanted to go to work.  The AJ considered the nature, severity, and duration of the harm, as well as mitigating factors such as family pressure and stress related to the EEO process.  The Commission found that the Agency failed to present any evidence to support its claim that the award was monstrously excessive.  Darlene H. v. Dep’t of Transp., EEOC Appeal No. 2019004438 (Nov. 18, 2020).

Commission Affirmed Agency’s $10,000 Compensatory Damages Award.  The Commission previously found the Agency subjected Complainant to a retaliatory hostile work environment over an eight-month period, and ordered the Agency, among other things, to investigate Complainant’s claim for damages.  The Commission subsequently affirmed the Agency’s award of $10,000 in nonpecuniary damages.  The Commission agreed with the Agency that the medical records Complainant provided contradicted his assertion that the hostile environment exacerbated his preexisting medical and psychological conditions.  For example, two therapists attributed Complainant’s condition to a non-combat brain injury, and did not link any of Complainant’s symptoms to his workplace.  Further, the record was devoid of any evidence showing that Complainant’s knee and back problems were exacerbated by his work situation.  The Commission concluded that, based on the contradictory documentation, and limited testimonial evidence presented, the award of $10,000 was appropriate, and consistent with awards in similar cases.  Mario K. v. U.S. Postal Serv., EEOC Appeal No. 2019003967 (Oct. 1, 2020).

Commission Affirmed Award of $5,000 in Compensatory Damages.  The Agency awarded Complainant $5,000 in nonpecuniary compensatory damages after the Commission found the Agency discriminated against Complainant based on disability when it did not provide him with a designated parking space as a reasonable accommodation.  The Commission affirmed the Agency’s award on appeal.  Complainant stated that his preexisting knee condition worsened because he was not accommodated with a designated parking space.  Complainant also noted that he was required to use steel stairs at his workplace, stand for long periods daily, and use public transit after he was terminated because he lost his sponsorship and right to drive.  The Commission agreed with the Agency that Complainant mainly attributed his intangible injuries, such as problems in his marriage, insomnia, and depression, to his participation in the EEO process, and to his termination and harassment for which no discrimination was found.  Complainant acknowledged that, prior to requesting accommodation, he had difficulty standing, walking upstairs, and sitting or standing for long periods due to possible blood clots.  As such, he did not solely attribute his worsening knees to the denial of accommodation.  Given all this, in the absence of medical evidence, the Commission found that Complainant did not show his worsening knee condition, weight gain or diabetes was directly or proximately caused by the failure to provide him with a designated parking space for seven months.  The Commission found that Complainant sustained some nonpecuniary damages related to Agency’s failure to reasonably accommodate him for seven months which more likely than not contributed in part to Complainant’s emotional pain, depression, and irritability, and his physical discomfort by having to walk further.  Given the severity and duration of Complainant’s emotional pain, and more significantly the small role played by the parking matter in causing this, the Commission found that Complainant did not show he was entitled to more than the $5,000 in nonpecuniary damages, which was similar to what the Commission had awarded in other cases.  Freddie M. v. Dep’t of Def., EEOC Appeal No. 2020002968 (Dec. 30, 2020).

Complaint Processing

Agency Improperly Processed Complaint After MSPB Denied Jurisdiction.  Complainant requested a hearing before an EEOC AJ following the investigation into her non-mixed hostile work environment claim.  While her complaint was being processed, Complainant was removed from employment during her probationary period, and Complainant appealed that action to the Merit Systems Protection Board (MSPB).  The EEOC AJ dismissed Complainant’s hearing request without prejudice on grounds that the action was appealable to the MSPB.  In the Notice of Dismissal, the EEOC AJ indicated that the matter “may be reopened with the understanding that [Complainant] will also be permitted to amend her complaint to include appeal of the removal action.”  The MSPB dismissed Complainant’s appeal for lack of jurisdiction, and for being untimely filed.  The Agency then issued a final decision in Complainant’s EEO complaint, finding that Complainant did not establish that she was subjected to a hostile work environment or discrimination.  The Agency noted that the EEOC AJ ordered it to issue a final decision after Complainant withdrew the hearing request.

On appeal, the Commission found that that the Agency improperly processed Complainant’s complaint following the MSPB’s dismissal of her appeal.  After the AJ dismissed Complainant’s hearing request without prejudice, the Agency was required to hold Complainant’s EEO case in abeyance until the MSPB issued a decision on Complainant’s removal.  Therefore, the Agency should have suspended processing the complaint until the MSPB rendered a decision on its ability to take jurisdiction over the matter.  When the MSPB denied jurisdiction in Complainant’s appeal, the case was considered a “non-mixed” matter under the EEO complaint process and should have been processed as such.  The Agency should have reissued a notice under the Commission’s regulations giving Complainant the right to elect a hearing or an immediate final decision regarding her termination claim.  In this case, Complainant was never provided with an opportunity for a hearing on her removal claim or her claim of a hostile work environment.  Thus, in light of the MSPB’s denial of jurisdiction over Complainant’s removal, the Commission remanded Complainant’s entire claims for processing.  Enola L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019004027  (Nov. 3, 2020).

Agency Failed to Conduct Adequate Investigation.  The Commission found that the Agency failed to adequately investigate Complainant’s claim of disability discrimination.  Specifically, the record was inadequate to determine whether the Agency fulfilled its obligations under the Rehabilitation Act.  The AJ found that the Agency failed to engage in the interactive process, and Complainant stated that the modified position the Agency offered him caused him pain such that he could not complete his duties.  While Complainant asserted that he could have been reassigned to either of two available positions, the AJ concluded that Complainant failed to identify available, vacant positions to which he could have been assigned.  The Commission stated that the investigation should have included more information about Complainant’s condition, including what duties or jobs he could have performed, as well as identified any available positions to which Complainant could have been reassigned.  Complainant should then have had the opportunity to address whether he could have performed the essential functions of the vacant positions with or without reasonable accommodation.  The Commission noted that there appeared to be evidence that could have been entered during the investigation or discovery which would have provided more information on the matter.  The Commission also questioned the Agency’s limitation of the scope for its reassignment, without explanation, to a specific geographic radius.  Therefore, the record was insufficient, and the Commission remanded the matter for a supplemental investigation.  Ollie L. v. U.S. Postal Serv., EEOC Appeal No. 2019000141 (Sept. 22, 2020).

Dismissals

(See also by category, this issue.)

Complaint Improperly Dismissed for Stating Same Claim Previously Raised.  The Agency dismissed Complainant’s complaint on grounds that it had been addressed in a prior EEO complaint.  On appeal, the Commission initially noted that the Agency’s characterization of the complaint was too narrow, and a fair reading of the complaint showed that Complainant was alleging the Agency failed to provide her with an effective reasonable accommodation.  While the allegation of harassment in Complainant’s prior complaint included incidents in which management allowed loud music to be played which aggravated Complainant’s migraines, Complainant did not include or address the incidents in the current complaint which occurred several years later.  The Commission also stated that the complaint did not state the same claim as that raised in Complainant’s prior grievances which were filed at least two years prior to the instant complaint.  Therefore, the Agency’s dismissal was improper.  Irvin M. v. Dep’t of the Navy, EEOC Appeal No. 2020005170 (Dec. 31, 2020).

Harassment Complainant Improperly Dismissed for Untimely EEO Contact and Failure to State a Claim.  The Commission found that a fair reading of Complainant’s complaint showed that Complainant timely raised a valid harassment claim which was improperly dismissed by the Agency.  The Agency characterized the complaint as alleging three claims and dismissed one for untimely EEO Counselor contact and the additional claims for failure to state claim.  Complainant, however, raised numerous incidents of harassment, including one that occurred within 45 days of her contact with the EEO Counselor.  The Commission noted that some of the same individuals were involved in all of the alleged incidents of harassment.  Therefore, Complainant stated a viable claim of harassment.  The Commission noted that, to the extent Complainant included matters related to claims in other forums, such as the FMLA or worker’s compensation process, those matters would not be included in an EEO claim of harassment.  Dominica H. v. U.S. Postal Serv., EEOC Appeal No. 2020005106 (Dec. 15, 2020);  Additional Decisions Addressing the Dismissal of Harassment Claims Include:  Simone J v. Dep’t of the Air Force, EEOC Appeal No. 2020001944 (Dec. 9, 2020) (Complainant alleged an ongoing pattern of discriminatory harassment, including being placed on extended administrative leave, having her work duties sharply restricted, and being issued a proposed removal after she participated in the EEO process that was sufficient to state a viable claim.  Complainant’s transfer to another federal agency did not render moot her claim of ongoing harassment while she was at the Agency.  The Agency’s claim that Complainant failed to establish a nexus between any prior EEO activity and/or disability, and the alleged harassment addressed the merits of the claim without a proper investigation and was irrelevant to the procedural issue of whether Complainant had stated a justiciable claim.  Further, while some of the incidents occurred more than 45 days prior to Complainant’s contact with the EEO Counselor, other incidents occurred within the 45-day period, and, as such, Complainant’s entire harassment claim was timely);  Opal V. v. Dep’t of State, EEOC Appeal No. 2020004444 (Oct. 8, 2020)(Complainant’s complaint was more properly characterized as one of ongoing harassment by her supervisor and several subordinates.  Complainant alleged a series of events which created a hostile work environment over several months, including one incident involving a meeting with her supervisor that occurred within the 45 days prior to her email contact with the EEO Counselor.  The EEO Counselor’s report specifically referenced Complainant’s allegation of a hostile work environment based on her sex.  Therefore, Complainant stated a viable claim.  The Agency’s assertion that Complainant failed to show a nexus between her sex and the alleged harassment went to the merits of the claim without a proper investigation and was irrelevant to the procedural issue of whether Complainant stated a justiciable claim).

Complaint Improperly Dismissed for Stating Same Claim Previously Raised and Failing to State a Claim.  Complainant filed a formal EEO complaint alleging that she had to remain on administrative leave when the Agency did not grant her requests to return to work following a fitness-for-duty examination.  The Commission found that the Agency improperly dismissed the complaint for failure to state a claim, and for stating the same claim as that raised in two prior EEO complaints.  Complainant’s prior complaints concerned allegations of discrimination and harassment, and involved incidents that occurred from 2013 through December 2019.  The current complaint, however, raised incidents that began in April 2020, and, while similar, did not involve the same time period or incidents raised in the prior complaints.  Further, while the Agency asserted that Complainant was not aggrieved because she was on paid administrative leave, the Commission has previously held that a complainant is aggrieved when placed on administrative leave, even if paid, when the leave is for an indefinite period of time such as the circumstances raised by Complainant.  Complainant also alleged reprisal, and, in cases of reprisal, adverse actions need not qualify as ultimate employment actions or materially affect the terms and conditions of employment to state a claim.  Therefore, Complainant stated a viable claim.  Josephine S. v. U.S. Postal Serv., EEOC Appeal No. 2020005496 (Dec. 10, 2020).

Complaint Improperly Dismissed as Untimely and for Failure to State a Claim.  The Agency dismissed Complainant’s entire complaint as untimely.  The Agency also dismissed Complainant’s allegation that she was instructed to complete paperwork stating that she could be terminated if she injured herself again, for failure to state a claim.  The Commission reversed the dismissal on appeal.  While finding that Complainant’s formal complaint was untimely by one day, the Commission stated that Complainant provided a note from her doctor indicating she was serving a 14-day home quarantine during the filing period due to exposure to the coronavirus.  Therefore, Complainant stated she could not leave her house.  The Commission found adequate justification to excuse Complainant’s brief delay in filing her complaint.  The Commission also determined that the Agency fragmented the complaint into two separate claims.  A fair reading of the complaint showed that the incidents were part of Complainant’s denial of reasonable accommodation claim.  Specifically, Complainant alleged that the Agency failed to accommodate her medical restrictions when it did not allow her to return to work, and then only allowed her to return if she signed the referenced document.  The Commission concluded that Complainant stated a valid claim of disability discrimination.  Priscila F. v. U.S. Postal Serv., EEOC Appeal No. 2020005145 (Dec. 10, 2020).

Complaint Improperly Dismissed for Stating the Same Claim Raised Previously.  Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when, beginning on May 17, 2019, it denied him reasonable accommodation by failing to provide an ergonomic chair, causing him to remain off work and lose pay.  The Agency dismissed Complainant’s complaint for stating the same claim that was resolved in a settlement agreement, dated October 5, 2019, of a prior complaint.  On appeal, the Commission found that the Agency’s dismissal was improper.  While Complainant referred to a May 17, 2019 statement from his physician in both complaints, the record showed that the prior complaint concerned a suspension.  The Commission has held that “same” does not mean “similar,” and the elements of the formal complaint must be identical to the elements of the prior formal complaint in time, place, incident, and parties.  The Commission found that the matters were not the same.  Freddy K. v. U.S. Postal Serv., EEOC Appeal No. 2020004714, (Nov. 9, 2020).

Complaint Improperly Dismissed for Failure to State a Claim and Raising the Same Matter as a Prior Grievance.  Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race and reprisal for prior protected EEO activity when his immediate supervisor issued him a Proposed Letter of Reprimand.  The record indicated that the proposed reprimand was reduced to a Letter of Counseling. The Agency dismissed the complaint for failure to state a claim, and for filing a grievance on the same matter.  On appeal, the Commission noted that a letter of counseling could be considered an adverse action if it was placed in Complainant’s personnel record to be considered for future disciplinary actions. In addition, Complainant raised a retaliation claim and the Commission’s regulations specifically provide that allegations that a proposal to take a personnel action is retaliatory are not subject to dismissal for failure to state a claim.  Therefore, Complainant stated a viable claim. The Commission also found that since the Agency’s collective bargaining agreement did not allow for claims of discrimination, the filing of a grievance did not constitute an election, and Complainant was not prevented from filing his EEO complaint. Charles G. v. Dep’t of the Air Force, EEOC Appeal No. 2020003207 (Oct.7, 2020).

Findings on the Merits and Related Decisions

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

Under the Rehabilitation Act

Disability Discrimination Found Regarding Denial of Training.  Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against him on the basis of disability (severe photosensitivity) when it denied his request to attend Pathways Training.  An AJ granted the Agency’s motion for a decision without a hearing finding that Complainant did not prove that he was subjected to discrimination as alleged.  On appeal, the Commission found that Complainant established that he had been denied a reasonable accommodation and that he was subjected to disparate treatment based on disability when the Agency cancelled his request to attend the training.  Complainant’s supervisor acknowledged that she cancelled Complainant’s request to attend the training because of Complainant’s disability.  Specifically, Complainant’s supervisor perceived that there were limitations caused by the lighting at the training site, despite Complainant’s expressed desire to attend the training and belief that he could be accommodated at the training site with the aid of sunglasses and window shades.  There was no evidence that allowing Complainant to attend the training would have caused any hardship to the Agency.  Therefore, the Commission concluded that the Agency failed to articulate a legitimate, nondiscriminatory reason for its action.  The Agency was ordered, among other things, to provide Complainant with the Pathways Training, and investigate his claim for damages.  The Commission affirmed the AJ’s finding of no discrimination with regard to the remaining claims.  Bennett W. v. Dep’t of the Interior, EEOC Appeal No. 2019005238 (Nov. 9, 2020).

Denial of Reasonable Accommodation Found.  The Commission found that the Agency did not act expeditiously to accommodate Complainant’s disability.  Complainant informed the Agency in December 2017 and again in April 2018, that she needed to be relocated from her workstation due to its proximity to the cleaning crews that mix chemicals, shampoo carpets, and set up and break down equipment to buff floors.  Complainant informed her supervisor that she had to leave the building on April 9, 2018, when she got sick due to cleaning chemicals behind her desk.  Despite Complainant clearly putting the Agency on notice again of her vulnerability at her workstation, the Agency did not act promptly to find her another work location.  Complainant was eventually relocated to another building in late-May 2018.  The Commission determined that, after that time, Complainant was provided alternative accommodations, or her requests were not connected with her medical condition.  To remedy the discrimination, the Commission ordered the Agency, among other things, to restore or compensate Complainant for any leave she was forced to use due to the Agency’s initial failure to accommodate her, and conduct a supplemental investigation into Complainant’s entitlement to compensatory damages.  The Commission found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as to the remaining claims.  Goldie G. v. Soc. Sec. Admin., EEOC Appeal No. 2019004032 (Oct. 5, 2020).

Under Multiple Bases

Sex and Age Discrimination Found Regarding Nonselection, and Remedies Discussed.  Complainant, a Deputy U.S. Marshal, filed a formal EEO complaint claiming that the Agency discriminated against him based on sex and age when he was not selected for a temporary (120-day) Acting Judicial Security Inspector position.  Following a hearing, an AJ determined that the Agency’s stated reasons for Complainant’s nonselection were a pretext for discrimination, and the Commission affirmed the AJ’s finding of discrimination on appeal.  The Selecting Official (SO) explained that Complainant did not receive the promotion because he did not have prior experience working in the entire unit.  However, the record indicated that Complainant did have prior experience as early as 2014, and the SO was the responsible management official who selected Complainant for his prior detail.  The SO also stated that Complainant was not selected based on his work performance during his prior detail, as well as his performance as a Deputy.  However, the Agency officials who oversaw Complainant’s performance during his prior detail denied having any conversation with the SO regarding Complainant’s performance, or reporting any issues with Complainant’s performance.  Complainant’s first level supervisor also denied having any conversation with the SO regarding Complainant’s work performance as a Deputy.  Therefore, the SO’s articulated reasons for not selecting Complainant were not substantiated by the record.  The record also contradicted the SO’s assertion that he consulted Complainant’s first and second-level supervisors regarding his selection.  The Commission stated that the SO’s shifting testimony as to the reasons for the selection decision, as well as testimony from other management officials that directly contradicted the SO’s statements, strongly indicated pretext, and the weight of the evidence suggested a lack of credibility on the part of the SO.  The Commission affirmed the AJ’s award of $20,000 in nonpecuniary compensatory damages, finding the record showed that Complainant experienced anxiety, difficulty sleeping, social withdrawal, and depression after his nonselection and Complainant began to doubt his work performance for approximately one year.  The Commission also affirmed the AJ’s denial of Complainant’s request for restoration of leave, because Complainant did not adequately establish a causal connection between his leave usage and the discrimination.  The Commission reversed the AJ’s award of back pay.  Derrick T. v. Dep’t of Justice, EEOC Appeal No. 2020001239 (Dec. 14, 2020).

Retaliation

Retaliation Found.  Complainant alleged, in relevant part, that the Agency discriminated against him on the basis of reprisal when his immediate supervisor sent him inappropriate text messages referencing his prior EEO activity.  On appeal, the Commission found that the supervisor’s actions were retaliatory.  According to the record, the supervisor stated it was “pretty sad” that Complainant “made up stories about people,” and that was the reason why his EEO complaints “never went anywhere.”  The supervisor also stated Complainant was “stupid” and “pathetic,” because he “pushed” a coworker to file an EEO complaint.  While Complainant’s supervisor denied sending the text messages, the investigative report contained screenshots of the messages.  The Commission concluded that the messages disparaging Complainant’s protected EEO activity were likely to deter a reasonable employee from engaging in protected EEO activity.  The Agency was ordered, among other things, to investigate Complainant’s entitlement to compensatory damages, and provide training to Complainant’s supervisor.  The Commission affirmed the Agency’s finding of no discrimination with regard to the remaining allegations raised in the complaint.  Carlton T. v. U.S. Postal Serv., EEOC Appeal No 2019005495 (Nov. 16, 2020).

Reference to Ongoing EEO Matter in Letter of Caution Constituted Retaliation.  Complainant alleged, among other things, that an Agency manager issued him a Letter of Caution for unsatisfactory job performance that referenced Complainant’s prior EEO activity.  An AJ issued a decision on summary judgment, which found Complainant had not established discrimination as alleged.  On appeal, the Commission found that the reference to Complainant’s protected activity was reasonably likely to deter Complainant or others from engaging in the EEO process.  The Letter of Caution included, along with various alleged deficiencies, a reference to an EEO settlement agreement between the manager and Complainant, as well as a reference to an instance one week before the letter was issued when Complainant “claimed discrimination and harassment at work, currently being investigated.”  While the Commission did not specifically find the issuance of a letter concerning work performance itself was unwarranted, it found that the reference to Complainant’s protected activity in this context amounted to retaliation.  The manager, as Complainant’s supervisor, made explicit references to Complainant’s EEO activity in a disciplinary context, which could reasonably have a chilling effect on use of the EEO complaint process.  The Agency was ordered, among other things, to ensure that the responsible management officials received individualized in-person training addressing retaliation under EEO statutes in relation to their role as management officials, including specifically addressing how the actions in the instant complaint constituted unlawful retaliation.  The Commission affirmed the AJ’s finding of no discrimination or discriminatory harassment with regard to Complainant’s additional claims.  Will K. v. U.S. Postal Serv., EEOC Appeal No. 2020000109 (Oct. 26, 2020).

Mixed Motive

Mixed Motive Discussed.  The Commission affirmed the AJ’s finding that the Agency would not have hired Complainant absent the discrimination under a mixed motive analysis.  The AJ initially found that Complainant established that she was subjected to race discrimination when she was not selected for a Computer Analyst/Programmer position.  The AJ observed, however, that the Labor Relations Specialist credibly testified that he independently concluded that the job posting for the position violated the collective bargaining agreement, and he decided to settle the union’s grievance that required the cancelation of the hiring process for the position.  The Labor Relations Specialist testified that he was not aware that Complainant was the leading candidate for the position at the time the settlement agreement was reached with the Union.  The Commission found that the credibility determinations of the AJ were entitled to deference due to the AJ's first-hand knowledge, through personal observation, of the demeanor and conduct of the witnesses at the hearing.  Therefore, substantial evidence in the record supported the AJ’s decision that the Agency would not have selected Complainant even absent the discrimination.  With respect to Complainant’s request for compensatory damages and back pay, the Commission noted that a complainant is not entitled to personal relief in mixed-motive cases such as this.  The Commission found that Complainant failed to establish that the AJ abused his discretion when he declined to sanction the Agency, and Complainant failed to prove discrimination regarding her nonselection for a second position.  Iliana S. v. U.S. Postal Serv., EEOC Appeal No. 2019005824 (Dec. 7, 2020).

Sanctions

AJ’s Dismissal of Hearing Request as Sanction Was Found to Be Too Harsh.  The Commission vacated the AJ’s decision to sanction Complainant by dismissing her hearing request, and remanded the case for a hearing.  The AJ stated that Complainant engaged in behavior that showed a lack of cooperation, and failed to comply with the AJ’s orders.  Specifically, Complainant failed to provide requested information by a specified date.  The Commission found that Complainant’s noncompliance consisted solely of failing to submit various prehearing evidentiary documents by the assigned deadline.  Complainant explained that she mistakenly overlooked the deadline set forth in the initial order.  Complainant also stated that she was confused about the process and attempted to hire counsel, which she did after the deadline passed.  The Commission found that the delay from the single incident, if any, would have been minimal had the AJ not cancelled the prehearing conference outright, but had granted Complainant’s Counsel the continuance needed to comply with the AJ’s order after taking over the case.  There were no other incidents of noncompliance attributable to Complainant.  The Commission has consistently held that dismissal of a hearing request as a sanction is only appropriate in extreme circumstances, such as when the complainant engages in contumacious conduct, and not in cases of mere negligence.  Complainant must either have willfully disobeyed the AJ’s orders or unreasonably failed to respond to those orders in order to justify dismissal of the hearing request as a sanction.  Therefore, the Commission could not as a matter of law find that the integrity of the EEO process had been so compromised as to warrant the most severe sanction.  When a lesser sanction would have normally sufficed to deter the conduct and to equitably remedy the opposing party, the Commission has held that the AJ abused their discretion by dismissing the hearing request in the absence of a clear showing of contumacious conduct on the part of the Complainant.  Jane R. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019005264 (Dec. 29, 2020).

Settlement Agreements

No Breach of Settlement Found.  The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would “facilitate” a contact for Complainant in a specific office; permit Complainant to begin his work day between 4:00 p.m. and 6:30 p.m.; permit Complainant to use one Family Medical Leave Act (FMLA) day per week; and allow Complainant to take an extended lunch break.  The agreement also provided that Complainant would not be available for team lead duties until a specific date.  Complainant alleged that the Agency breached the agreement when it failed to remove a Letter of Requirement, a negative Performance Appraisal Report (PAR), and a Performance Improvement Plan (PIP) from his official record.  On appeal, the Commission found that the Agency did not breach the settlement agreement.  Complainant asserted that the removal of the three items was agreed to during mediation, and that he would not have been forced to use leave if he had been permitted to use a flexible or part-time schedule.  The executed settlement agreement, however, did not include any such terms.  Complainant was advised that he could contact an EEO Counselor if he believed he was subjected to additional acts of discrimination.  Otto D. v. Dep’t of Justice, EEOC Appeal No. 2020005445 (Dec. 9, 2020).

No Breach of Settlement Found.  The parties entered into two settlement agreements that provided, in pertinent part, that an Agency manager or her designee would schedule and assign employees based on the needs of the service; and the manager and Complainant would meet once a month for a period of two months to discuss Complainant’s concerns.  Complainant alleged that the Agency breached the agreements when it failed to hold the meetings.  On appeal, the Commission found that the Agency did not breach the agreements.  The record included email documentation of the meetings, including the dates, and the name of the manager’s designee.  Further, while Complainant claimed that the meetings did not provide him with the opportunity to discuss the discovery in connection with his new complaint, the parties did not elaborate on the specifics of the management meetings at the time the settlement agreements were executed, and the agreements pertained only to the resolution of his prior EEO complaints.  Michel S. v. U.S. Postal Serv., EEOC Appeal No. 2020002272 (Oct. 7, 2020).

Stating a Claim

Agency Qualified as Joint Employer.  Complainant was employed by a staffing firm serving the Agency as a Senior Logistics Analyst and Mentor.  Complainant filed a formal EEO complaint alleging harassment based on his race and sex when a military coworker made offensive comments and used a racial slur while working near Complainant’s desk.  A subsequent management inquiry revealed similar conduct on the part of this individual towards other employees.  The Commission reversed the Agency’s dismissal of the complaint for failure to state a claim, finding that the Agency qualified as a joint employer.  The evidence showed that Complainant worked on Agency premises using Agency equipment, and the Agency gave him his daily assignments, reviewed his daily work, and set his daily schedule.  Complainant asserted that Agency personnel trained and mentored him, and an Agency Branch Chief did not recall one time when a staffing firm manager was present at Complainant’s worksite.  Therefore, the Agency had sufficient control over Complainant’s position to qualify as his joint employer. Alfonso C. v. Dep’t of the Army, EEOC Appeal No. 2020002983 (Dec. 16, 2020).  Additional Decisions Addressing the Issue of Joint Employment Include: Buck H. v. Dep’t of the Air Force, EEOC Appeal No. 2020003769 (Dec. 14, 2020) (the Agency had more than sufficient control over Complainant’s position to be his joint employer.  Complainant worked on Agency premises using Agency equipment.  Agency managers assigned him work on a daily basis, made his schedule, retained the right to require overtime, dictated his travel and training requirements, and maintained control over his security clearance.  There was no onsite staffing firm management, and the Agency had the final say over Complainant’s hiring and firing.  The Agency prepared Complainant’s performance evaluations, and ultimately revoked Complainant’s security clearance and removed him from the contract resulting in Complainant’s termination by his staffing firm).

Complainant’s Allegation of Discriminatory Investigation Stated Viable Claim.  Complainant alleged that the Agency discriminated against him when the Section Chief initiated an investigation into complaints from two of Complainant’s clients.  The Commission found that the Agency improperly dismissed the complaint for failure to state a claim.  While the Commission has held in some cases that merely conducting an investigation without more is insufficient to state a valid claim, in this case, Complainant was temporarily reassigned.  Complainant also asserted that the reassignment required him to change his schedule and limited his administrative duties.  Thus, Complainant alleged harm with respect to a term, condition, or privilege of employment, and stated a viable claim.  Complainant also alleged that the client complaints and subsequent encounters with management had explicitly racial elements.  While the Agency asserted that the complaint was an impermissible attack on another adjudicatory proceeding, the investigation appeared to be an Agency management-directed inquiry and not a proceeding before a neutral outside body.  Adalberto S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020005223 (Dec. 10, 2020); Additional Decisions Addressing Agency Investigations Include:  Garland C v. Dep’t of the Navy, EEOC Appeal No. 2020000389 (Oct. 8, 2020), request for reconsideration denied, EEOC Request No. 2021001114 (Feb. 17, 2021) (the Agency properly dismissed Complainant’s complaint alleging that it subjected him to discrimination when he learned that he was a target of an Agency criminal investigation regarding fraudulent time and attendance practices.  Merely conducting an investigation into purported improper or illegal conduct does not cause any injury without more, such as resulting disciplinary action).

Complaint Alleging Placement on Extended Leave and Leave Without Pay Stated Viable Claim.  The Commission found that the Agency improperly dismissed Complainant’s complaint for failure to state a claim.  A fair reading of the complaint showed that she alleged she was placed in paid leave status from November 19, 2019, until March 5, 2020, when the Agency’s management directed that she no longer be paid.  The Commission acknowledges that, under certain circumstances, placement on paid administrative leave for a brief period does not state a justiciable claim.  However, in the instant case, Complainant’s allegations suggest that there was an extended period of forced paid leave, followed by a period of leave without pay.  Therefore, Complainant stated a viable claim.  Venetta S. v. U.S. Postal Serv. EEOC Appeal No. 2020004069 (Nov. 4, 2020).

Complainant Stated Viable Claim of Discrimination and Harassment.  Complainant alleged that, over the course of a year, management discussed Complainant’s disability with his coworkers, made fun of Complainant’s disability, and disclosed the details of Complainant’s protected EEO activity to his coworkers.  The Commission found that Complainant alleged sufficient facts that, if proven true and considered together, would constitute an actionable hostile work environment claim.  The reasons cited by the Agency in its final decision, that is the actions cited were taken by personnel not in Complainant’s supervisory chain of command and the Agency was not aware of the harassment, improperly addressed the merits of Complainant’s complaint, and were irrelevant to the procedural issue of whether he stated a justiciable claim.  Moreover, Complainant alleged that management disclosed his disability to coworkers.  Documentation or information of an individual's diagnosis is without question medical information that must be treated as confidential except in limited circumstances.  Therefore, the Commission found that Complainant alleged a viable claim of unlawful medical disclosure, a per se violation of the Rehabilitation Act, which must be investigated.  The Commission concluded that Complainant had shown a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy, and the Agency erred in dismissing Complainant’s complaint for failure to state a claim.  Sammy R. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019005737 (Nov. 3, 2020).

Complainant Stated Viable Claim of Retaliatory Harassment.  Complainant filed a formal complaint, alleging that the Agency subjected him to retaliation, including being stalked, belittled, and embarrassed by his supervisor in front of his coworkers, and being reassigned to a different machine.  The Commission found that Complainant’s allegations, when viewed together and presumed to have occurred as alleged, stated a viable claim of retaliatory harassment.  Complainant alleged that the supervisor was engaged in an ongoing campaign to harass him in retaliation for his prior EEO activity.  The record contained a sworn statement from two coworkers supporting Complainant’s claim.  The Commission noted that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation.  Therefore, the Commission reversed the Agency’s decision dismissing Complainant’s complaint for failure to state a claim.  Leon B. v. U.S. Postal Serv., EEOC Appeal No. 2020003069 (Oct. 13, 2020). 

Complainant Stated Viable Claim of Harassment.  The Commission found that the Agency improperly dismissed Complainant’s claim for failure to state a claim.  While the Agency asserted that Complainant’s initial statement to the EEO Counselor raised only a single incident of a supervisor touching his arm, a fair reading of the entire record showed Complainant stated the incident was part of a pattern of harassment spanning years.  Complainant indicated that management denied him accommodations, breaks, leave, and training, and a supervisor called him “boy” and “lazy.” Complainant submitted a statement from his training instructor who corroborated at least some of Complainant’s allegations.  When reading Complainant’s narrative, including the statement accompanying the formal complaint, the Commission concluded that Complainant sufficiently summarized a claim of ongoing hostile work environment that included the purported arm-grabbing incident.  Cornell S. v. Dep’t of Transp., EEOC Appeal No. 2020002934 (Oct. 13, 2020); Additional Decisions Addressing Dismissal of Harassment Claims Includes:  Eric M v. Dep’t of Justice, EEOC Appeal No. 2019005414 (Dec. 31, 2020) (Complainant alleged a set of facts that, if true, could be sufficiently severe or pervasive to constitute an actionable hostile work environment claim.  While the three allegations in complainant’s initial complaint may have failed to render Complainant aggrieved, Complainant raised 30 additional claims in his request to amend, including being subjected to excessive supervision/surveillance, having his duties changed, receiving an inaccurate performance evaluation, and being subjected to false claims of misconduct and workplace violence, that, if true, sufficiently stated a claim of harassment);  Sallie M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020004543 (Nov. 9, 2020) (a fair reading of Complainant’s formal complaint and the EEO counseling report showed that the Agency’s definition of the claim was too constricted, and a more accurate definition of the claim was one of ongoing race, sex, and/or age-based harassment of which the matter addressed by the Agency was but an example).

Agency Improperly Dismissed Claim Alleging Discriminatory Nonselection.  The Commission found that the Agency mischaracterized background information that Complainant provided as a separate claim, and dismissed the matter for failure to state a claim.  Complainant alleged that the Agency denied her the opportunity to compete for a supervisory position.  Specifically, Complainant asserted that the Agency manipulated the classification and qualification criteria for the vacancy to exclude Complainant from applying, and to facilitate choosing the selected candidate, who was outside of Complainant’s protected class.  Complainant also alleged that the Agency failed to convey information about the vacancy as it usually did at staff meetings.  Complainant's claims that the Agency discriminated against her by discouraging her from applying for the position and/or having a secretive selection process were allegations of an injury or harm to a term, condition, or privilege of employment for which there was a remedy.  Celine B. v. Smithsonian Inst., EEOC Appeal No. 2020003113 (Oct. 5, 2020).

Complaint Based on Union Status Failed to State Viable Claim.  The Commission affirmed the Agency’s dismissal of Complainant’s complaint alleging discrimination based on her status as the Union Treasurer for failure to state a claim.  The Commission noted that Union membership is not a protected basis for purposes of the EEO complaint process, and Complainant failed to cite any protected basis.  Cathey V. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020005438 (Dec. 30, 2020).

Summary Judgment

Summary Judgment Affirmed.  Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of religion, and in reprisal for prior EEO activity when management officials and a coworker conducted an internal review of his work; his first-line supervisor asked a contractor to write reports to replace reports written by Complainant; the supervisor gave Complainant an unfair performance evaluation; and the supervisor and coworker gave away Complainant’s research funding.  Following an investigation and period for discovery, an AJ issued a decision without a hearing finding that Complainant failed to prove disparate treatment discrimination.  On appeal, the Commission found that the AJ properly issued the decision without a hearing.  The record was adequately developed.  Since the AJ initially denied the Agency’s pre-discovery motion for summary judgment, Complainant was able to respond to the Agency’s motion after engaging in discovery.  The Commission agreed with the AJ that there were no material issues of fact in dispute.  While Complainant disputed certain assertions regarding his work, the record showed that Complainant would not have met the standards for a higher performance rating even if his assertions were true.  Further, while Complainant claimed that the supervisor and coworker should not have reviewed his work because they were  not subject matter experts, it was undisputed that the Agency’s policy was to complete an internal review.  The Commission affirmed the AJ’s finding that Complainant failed to establish that the Agency’s reasons for the actions were a pretext for discrimination or reprisal.  Olin M. v. Envtl. Prot. Agency, EEOC Appeal No. 2019003561 (Oct. 21, 2020).

Summary Judgment Affirmed.  Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the bases of race, sex, disability, and age when she was denied upward mobility, reassigned, suspended for five days, denied reasonable accommodation and leave under the Family Medical Leave Act, and subjected to negative comments.  The AJ issued a decision without a hearing finding no discrimination.  The Commission affirmed the AJ’s decision on appeal, noting that Complainant failed to establish that there were material facts in dispute or identify any discovery that was necessary to cure the alleged deficiencies in the record.  The Commission stated that even construing any inferences in favor of Complainant, a reasonable fact finder could not find in Complainant’s favor.  The AJ correctly determined that the responsible management officials articulated legitimate, nondiscriminatory reasons for the actions.  Complainant was one of three employees reassigned, and she did not provide any evidence regarding purported promotional opportunities.  Further, witnesses stated that it was initially unclear why Complainant requested leave, and the request for medical leave was approved once the Agency received clarifying information.  The Agency also articulated legitimate reasons for Complainant’s proposed suspension, and Complainant failed to show that the reasons were a pretext for discrimination.  The Commission also found that Complainant failed to prove her claims of harassment or denial of accommodation.  Josefina L. v. Dep’t of Def., EEOC Appeal No. 2019004856 (Oct. 14, 2020).

Summary Judgment Affirmed.  Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race and sex, and in reprisal for prior protected EEO activity, when it did not select her for a position as a Transportation Security Manager.  An AJ issued a decision without a hearing finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.  On appeal, the Commission initially found that while Complainant argued that there was a dispute of material facts and credibility issues, she did not provide any evidence to support her assertions, and the AJ properly issued a decision without a hearing.  Complainant’s only offered her opinion that the selection process was unfair.  The Commission stated that the AJ viewed the record in the light most favorable to Complainant when she assumed that Complainant established a prima facie case of discrimination, and the AJ properly found that Complainant did not show that the Agency’s reasons were a pretext for discrimination.  Specifically, the Agency chose the selectee due to his experience in checkpoints and baggage locations, and Complainant did not assert that she had any experience in these areas. In addition, Complainant did not show that her qualifications were plainly superior to those of the selectee.  Regarding Complainant’s allegation that the selecting official asked how her baby was feeling, the Commission found that the question did not demonstrate an unlawful bias based on Complainant’s pregnancy.  Therefore, the Commission affirmed the AJ’s decision.  Eryn M. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019005404 (Oct. 27, 2020).

Timeliness

Commission Applied Doctrine of Laches in Affirming Agency’s Dismissal of Complaint for Failure to Timely Contact EEO Counselor.  The Agency dismissed Complainant’s claims for untimely EEO Counselor contact, finding that Complainant first contacted the EEO counselor more than 45 days after the alleged actions.  On appeal, Complainant acknowledged that she did not initiate EEO contact within 45 days, but argues that the time limit should be tolled or waived.  The alleged events occurred from December 2015 until August 25, 2017.  The record showed that Complainant initially contacted an EEO Counselor on October 25, 2019, which was over two years after the last alleged discriminatory event.  While Complainant argued that she was not aware of the time limit for initiating contact, the record contained a statement from an Agency official, attesting that the Agency had posted notice of the relevant EEO regulations, including the 45-day time limit for contacting an EEO Counselor since at least November 2015.  The Commission found this statement sufficient to show Complainant had constructive knowledge of the relevant time limitation.  The Commission also rejected Complainant’s claim that the Agency’s actions caused her delay.  While the Commission has tolled limitation periods because an agency’s actions mislead an individual concerning his/her EEO rights, the Commission has also consistently held that a complainant must act with due diligence in the pursuit of her claim or the doctrine of laches may apply.  Here, Complainant waited over two years from the date of the latest alleged discriminatory event before she contacted an EEO Counselor.  Therefore, the Commission applied the doctrine of laches, found insufficient justification for extending or tolling the time limit.  Shan D. v. Soc. Sec. Admin., EEOC Appeal No. 2020003438 (Nov. 16, 2020).

Complainant Failed to Timely Contact EEO Counselor Within 45 Days of Suspecting Discrimination.  The Commission affirmed the Agency’s dismissal of Complainant’s complaint for failure to timely contact an EEO Counselor.  Complainant received notification that he was not selected for a Criminal Investigator position on July 2, 2019, but did not initiate EEO contact until April 4, 2020.  Complainant asserted that he did not reasonably suspect discrimination until he received information regarding his ranking in February 2020 following a December Freedom of Information Act request.  The Commission found Complainant’s contention unpersuasive, stating that Complainant acknowledged being “curious” about and finding “inconsistencies and gaps” regarding his nonselection as early as September 2019.  Complainant did not present any persuasive argument or evidence warranting an extension of the time limitation for initiating EEO Counselor contact.  Ian C. v. Dep’t of Def., EEOC Appeal No. 2020004702 (Oct. 19, 2020).

Use of Other Agency Procedures to Resolve Matter Was Insufficient to Toll Time Limitation for EEO Contac.  Complainant initiated EEO contact in September 2019 with regard to incidents that occurred in August 2018.  The Commission affirmed the Agency’s dismissal of Complainant’s formal complaint on grounds of untimely EEO Counselor contact, finding that Complainant contacted the EEO Counselor well beyond the 45-day limitation period.  Complainant acknowledged attending No Fear Act training, which the Agency noted included relevant information about the EEO complaint process, and its time limitations.  Further, the Agency verified that EEO posters were displayed at Complainant’s facility.  While Complainant asserted that the termination letter she received did not provide EEO appeal rights, and she spent time contacting the Office of Personnel Management and the Better Business Bureau, the Commission has consistently held that utilization of agency procedures, union grievances, or other remedial processes does not toll the time limit for contacting an EEO Counselor.  The Commission concluded that Complainant presented no persuasive evidence to warrant an extension of the time limit for initiating EEO counseling.  Sara I. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020001654 (Oct. 15, 2020); Additional Decisions Addressing Complainant’s Use of Other Agency Processes Include:  Iris D. v. Dep’t of Hous. and Urban Dev., EEOC Appeal No. 2020004732 (Oct. 7, 2020), request for reconsideration denied, EEOC Request No. 2021001273 (Mar. 10, 2021) (Complainant filed a formal complaint alleging that she became aware, in December 2018, that the Agency hired an “out-stationed” employee after denying Complainant the opportunity to be out-stationed in October 2018.  The Commission affirmed the Agency’s dismissal of the complaint for untimely EEO Counselor contact, noting that Complainant did not initiate contact with an EEO Counselor until October 2019.  While Complainant asserted that she tried to work with management over several months to get her position changed, the Commission has consistently held that the utilization of other agency procedures does not toll the time limit for contacting an EEO Counselor).

Complainant Failed to Timely Contact EEO Counselor.  The Commission affirmed the Agency’s dismissal of Complainant’s complaint for failure to timely contact an EEO Counselor.  The events at issue occurred between April and June 2019, but Complainant did not contact the EEO Counselor until November 2019, which was beyond the 45-day limitation period.  While Complainant argued that the time limit should have been extended because he was given false information by the Union President, specifically the contact information for an individual who had been retired for 5 years, the record showed that Complainant was notified and aware of the applicable time limit.  The record included pictures of bulletin boards located near Complainant’s work area that provided notice of the applicable time limits. Complainant also acknowledged taking No Fear Act training and his actions in contacting his Union representative established that he knew of the discriminatory matters at issue.  Instructions for contacting an EEO Counselor were also readily available to Complainant on the Agency’s intranet.  Nevertheless, Complainant did not initiate EEO contact until four months after he sent his initial email to the contact provided by the Union President.  Therefore, the Commission found that Complainant did not act diligently in pursuit of his complaint and he failed to provide sufficient reasons to extend the time limit.  Victor S. v. Dep’t of Def., EEOC Appeal No. 2020003220 (Oct. 7, 2020).

Complainant Timely Filed Formal Complaint.  The Commission reversed the Agency’s dismissal of Complainant’s complaint on grounds it was untimely filed.  The record showed that Complainant’s attorney received the Notice of Right to File a Formal Complaint on August 12, 2019, and Complainant filed his complaint on August 27, 2019, as evidenced by the postmark on the envelope.  Therefore, Complainant’s complaint was filed within the 15-day limitation period.  The Commission noted that the first day counted in the limitation period is the day after the receipt of a Notice of Right to File.  Cornell S. v. Dep’t of Def., EEOC Appeal No. 2020004338 (Oct. 19, 2020).

Complaint Improperly Dismissed as Untimely.  Complainant filed a formal EEO complaint, which the Agency dismissed as untimely.  The Commission reversed the Agency’s decision on appeal.  The Commission noted that an agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.  The record showed that Complainant received the Notice of Right to File an Individual Complaint by email on March 31, 2020.  The formal complaint was signed by Complainant and dated April 1, 2020, as were the related EEO documents she submitted.  The Commission concluded that the Agency did not provide any evidence to support its claimed April 22, 2020 filing date.  The Commission reminded the Agency that filing dates are determined by the date of mailing, not the date of receipt.  To establish that Complainant’s formal complaint was untimely, the Agency must have provided evidence that she sent it after the April 15, 2020 deadline.  The record was devoid of any evidence of a filing date, such as a copy of a postmarked envelope evincing the mailing date.  Given the Agency’s inability to meet its evidentiary burden, the Commission found its dismissal of Complainant’s complaint for untimely filing was improper. Soila R. v. Dep’t of Commerce, EEOC Appeal No. 2020003939 (Oct. 7, 2020.