Writers: Mona Alsaidi, Craig Barkley, Abigail Coleman, Robyn Dupont, Harsha Mikkilineni,
Desmond Nichols, Joseph Popiden, Navarro Pulley, Nina C. Rivera, Ellie Stitzer,
Camella Woodham

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

Volume 1 of the Fiscal Year 2022 Digest contains EEOC’s Annual Compilation Issue - a sampling of federal sector decision summaries of note from the prior Fiscal Year (2021), as selected by Digest staff from among the decisions issued by EEOC during that fiscal year. Some summaries that also appeared in previous issues of the Digest are reprinted here for the convenience of readers. 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.”

The EEOC 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 EEOC's approach in its enforcement work and the investigations of complaints.

SELECTED EEOC DECISIONS

Attorney’s Fees

Attorney’s Fees Modified. The EEOC previously found that the Agency violated the Rehabilitation Act when it released Complainant’s confidential medical information. The EEOC reversed the Administrative Judge’s (AJ’s) findings that Complainant also was denied a reasonable accommodation, and subjected to a hostile work environment and disparate treatment. The AJ had also issued a decision awarding attorney’s fees and costs prior to the issuance of that EEOC decision, which was the subject of the instant appeal. In the present case, the EEOC initially agreed with the AJ that an hourly rate of $325 was reasonable for Complainant’s first attorney, but the EEOC reduced the second attorney’s rate to $425. The EEOC excluded time spent by an unidentified individual. The EEOC also found that a reduction in the remaining hours billed was warranted given the attorneys billed at the full hourly rate for travel time and in view of the fact that Complainant did not prevail on the majority of her claims which were fractionable from the successful claim involving the release of confidential medical information. Thus, the EEOC reduced the total hours billed by Complainant’s attorneys by 75%. Heidi E. v. Soc. Sec. Admin., EEOC Appeal No. 2020003219 (Sept. 23, 2021).

EEOC Affirmed AJ’s Award of Attorney’s Fees. The parties settled Complainant’s two underlying EEO complaints while the matters were pending an administrative hearing, and the AJ determined that Complainant was entitled to attorney’s fees and costs. The Agency appealed the AJ’s decision awarding attorney’s fees to the EEOC. On appeal, the EEOC initially noted that Complainant was considered a prevailing party given that she obtained a lump sum payment and restoration of sick leave. The EEOC found no reason to disturb the AJ’s reduction of fees by 50 percent for excessive hours, but rejected the Agency’s request for further reductions. The EEOC noted that senior attorneys provided experience and expertise when discussing settlement strategy that were pertinent to Complainant’s successful settlement negotiations, and their time was relevant to the settlement results. Yvette H. v. Nat’l Labor Relations Bd., EEOC Appeal Nos. 2020003499 & 2020003500 (Aug. 30, 2021).

EEOC Modified Award of Attorney’s Fees. In a prior decision, the EEOC affirmed the AJ’s findings that the Agency discriminated against Complainant based on disability when it held her telework in abeyance for three months, and retaliated against her when officials discussed her prior EEO activity. The EEOC found that Complainant did not prove her additional claims of discrimination and retaliation. The EEOC increased the AJ’s award of nonpecuniary compensatory damages to $10,000. The Agency denied Complainant’s petition for attorney’s fees for work performed on the prior appeal. In the instant appeal, the EEOC initially found that Complainant was a prevailing party because while she did not prevail on several claims in the prior appeal, she was successful in obtaining a higher damages award which was double that awarded by the AJ. Nevertheless, the EEOC noted that Complainant was not successful with respect to four of the five distinct issues raised on appeal, and attorney’s fees may not be recovered for work on unsuccessful claims. Therefore, the Agency was entitled to an 80 percent across-the-board reduction of fees claimed. Marybeth C. v. Dep’t of Def., EEOC Appeal No. 2020001726 (Aug. 3, 2021).

EEOC Modified Award of Attorney’s Fees. An AJ found that Complainant proved the Agency retaliated against her when a supervisor sent a draft request for disciplinary action containing Complainant’s personal identifiable information to Complainant’s coworkers. The AJ concluded that Complainant failed to prove the remaining allegations in her complaint. The EEOC, in a prior appeal, affirmed the AJ’s findings and found no error in the relief awarded. The EEOC noted, however, that neither the AJ nor the Agency addressed the issue of attorney’s fees, and remanded that issue. The Agency ultimately issued a decision, finding that the rate of $300 per hour was appropriate, but excluding certain hours and reducing the award to reflect Complainant’s success on only one claim. On appeal, the EEOC stated that the Agency properly disallowed hours claimed for work that was unrelated to the successful claim. However, Complainant was entitled to all of the time spent for work performed in connection with the Agency’s initial dismissal of the complaint that contained the successful claim. The EEOC found that the successful claim was not inextricably intertwined with the remaining issues so as to warrant the full amount of fees requested, and the Agency’s 1/18th across-the-board reduction was appropriate in this case. The Agency also properly reduced the requested costs based on Complainant’s limited success. The EEOC noted that Complainant was a prevailing party in the appeal and was entitled to fees for time her attorney spent on the appeal. Barbie W. v. Dep’t of the Army, EEOC Appeal No. 2020002288 (July 28, 2021).

EEOC Modified Award of Attorney’s Fees. The EEOC previously found that Complainant was discriminated against when he was denied reasonable accommodation and subjected to reprisal. The Agency denied Complainant’s request for attorney’s fees based on technical grounds, such as one attorney’s failure to provide a resume and proof that she was a member in good standing with the state bar. On appeal, the EEOC found such technical denials were inconsistent with both the EEOC’s regulations and case law, which impose a strong presumption of entitlement to attorney’s fees for the prevailing party in an EEO case. Further, the EEOC has held that one method of addressing the appropriate amount of attorney’s fees when a complainant is not completely successful is to take a percentage across-the-board reduction of compensable time billed. The EEOC agreed with the Agency that a reduction of 75 percent was warranted, as the claims on which Complainant prevailed, i.e., denial of reasonable accommodation and reprisal, were fractionable from his remaining 18 unsuccessful claims of disparate treatment and harassment. Further, Complainant must provide adequate documentation in order to recover costs. Here, Complainant did not include any information such as bills or invoices to support his claimed deposition and transcript costs, and costs associated with filing his appeal. Thus, Complainant was not entitled to payment for these costs. The EEOC also increased the Agency’s total award of nonpecuniary damages to $33,500, finding the amount sufficient to compensate Complainant for his injuries related to the denial of reasonable accommodation, and retaliation. Bryant F. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020002864 (July 21, 2021).

EEOC Affirmed Award of Attorney’s Fees. An EEOC Administrative Judge (AJ) found that Complainant failed to prove various claims regarding her working conditions, denial of overtime, and job assignments. The AJ found, however, that the Agency retaliated against Complainant when management refused to provide her with information during the processing of her EEO complaint, referred to Complainant’s EEO activity in a derogatory manner, and shared information about Complainant with individuals who did not have a legitimate need to know. The AJ awarded Complainant $41,231.58 in attorney’s fees, among other things. The Agency did not dispute Complainant’s statement of costs but disputed the attorney’s fee award. On appeal, the EEOC rejected the Agency’s argument that its offer of resolution should limit the amount of attorney’s fees. The EEOC noted that, because the AJ’s decision resulted in relief more favorable than the offer of resolution, Complainant was not barred from further recovery of attorney’s fees. Moreover, Complainant was the prevailing party and substantially received the relief she sought, including an award of compensatory damages which the Agency accepted. The EEOC also disagreed with the Agency’s contention that Complainant’s prevailing claims were separate from her unsuccessful claims such that the AJ’s 45 percent reduction in attorney’s fees was insufficient. The EEOC noted that the retaliation would not have been discovered but for Complainant’s efforts to pursue her initial EEO claims. Therefore, the EEOC affirmed the AJ’s award of attorney’s fees. Barbara S. v. U.S. Postal Serv., EEOC Appeal No. 2020002285 (Apr. 14, 2021).

EEOC 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 EEOC found no reason to disturb the AJ’s award. The EEOC 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 EEOC 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

EEOC Affirmed Denial of Class Certification. The EEOC affirmed the AJ’s denial of class certification, finding that Complainant failed to show adequacy of representation. Specifically, Complainant was not an attorney; did not retain an attorney; and did not possess the necessary skills and experience to represent the class. Complainant also did not show he had adequate funds, or could obtain the funds needed to adequately represent the class. Finally, no attorney had been identified who would be willing to represent the class. The EEOC also found that the class complaint failed to meet the elements of commonality and typicality. There was no evidence that other potential class members had the same interests and suffered the same harm as Complainant, and Complainant’s broad, conclusory allegations of class-wide harm alone did not establish commonality. Johnson v. Envtl. Prot. Agency, EEOC Appeal No. 2019005355 (May 19, 2021).

EEOC Affirmed Class Certification. The Class Agent filed an individual and class complaint alleging discrimination based on race and/or national origin. Specifically, he asserted that the Agency’s policies affirmatively discouraged or excluded employees with family ties to Puerto Rico from applying for opportunities to assist with disaster relief on the island. An AJ issued a decision certifying the class. In its final order, the Agency identified the class as those Border Patrol Agents discriminated against based on race/national origin (Hispanic/Puerto Rican), or association with others of Hispanic/Puerto Rican descent, who were excluded or discouraged from applying for or denied the opportunity to participate in certain temporary assignments to conduct law enforcement operations and assist with humanitarian efforts. On appeal, the EEOC affirmed the AJ’s decision, initially finding that while the AJ did not specify the definition of the class in her decision, the Agency’s final order recognized the criteria for class membership. The EEOC also found that the allegations were based on the race and national origin of the class members and their associations with others of that race or national origin, not on residency. The EEOC concluded that the commonality requirement for class certification was met because members of the class were affected by the same Agency action or policy. In addition, the Class Agent’s claim was typical of the class, and the record showed that over 40 additional employees filed similar claims of discrimination. Finally, the Class Agent’s attorney was qualified to represent the class. Felix Z. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020005328 (Apr. 29, 2021).

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 EEOC 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 EEOC 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 EEOC remanded Complainant’s individual complaint for processing. Ty S. v. Dep’t of State, EEOC Appeal No. 2020005030 (Dec. 14, 2020).

Compensatory Damages

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

EEOC Increased Award of Nonpecuniary Damages to $175,000. The EEOC previously found that Complainant was subjected to a pattern of racial harassment which management failed to address. The EEOC 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 Post Traumatic Stress Disorder (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 incidents, management assigned him back to the same division where the harassment 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 had 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 including 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 became less patient, more confrontational and felt estranged from his family. He 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 EEOC found that prior decisions involving similar harm supported an increase in the damage award to $175,000. Stanton S. v. Dep’t of Veterans Aff., EEOC Appeal Nos. 2019005938 and 2020002226 (Sep. 14, 2020), request for reconsideration denied, EEOC Request No. 2020005371 (Feb. 2, 2021).

EEOC Increased Award of Nonpecuniary Damages to $175,000. The EEOC found the Agency liable for coworker sexual harassment, and that such conduct likely exacerbated Complainant’s PTSD. The Agency conducted a supplemental investigation, and awarded Complainant $110,000 in nonpecuniary damages. Statements from Complainant, Complainant’s parents, and her medical providers showed that Complainant suffers from PTSD and major depression with additional symptoms including severe headaches, vomiting, nightmares, anxiety, difficulty focusing, hypervigilance, flashbacks and nightmares, avoidance of social situations, suicidal ideation, difficulty sleeping, and panic attacks. The sexual harassment occurred over approximately six years and entailed numerous inappropriate comments, incidents, and emails of a sexual nature. The EEOC noted that the Agency did not contest the psychiatrist’s opinion that Complainant would need to continue treatment for PTSD for the foreseeable future due to the severity of her symptoms. Therefore, the EEOC held that an award of $175,000 was warranted. The EEOC agreed with the Agency that Complainant did not submit evidence establishing an entitlement to future pecuniary damages to include a loss of future earnings. Ashely H. v. Nat’l Transp. Safety Board, EEOC Appeal No. 2020002145 (Sept. 7, 2021).

EEOC Increased Award of Nonpecuniary Compensatory Damages to $175,000. The Agency found that Complainant was subjected to sexual harassment and a hostile work environment based on her sex, and awarded her $75,000 in nonpecuniary compensatory damages. On appeal, the EEOC increased the award to $175,000, finding that award more appropriate given the duration, severity, and egregious nature of the discriminatory actions. While the duration of the actions was short, two months, the harassment included a physical assault, a violent death threat, workplace groping, and solicitation of nude photos, among other things. Further, various Agency employees threatened Complainant with physical violence, and the Agency’s response was wholly ineffective. Complainant provided numerous medical documents demonstrating her mental health treatments, and diagnoses of generalized anxiety disorder, recurrent depression, PTSD, severe weight gain, nightmares, shortness of breath, and various other symptoms. Complainant was prescribed various medications to deal with her conditions, and her spouse provided a detailed statement supporting her claim. The EEOC found that the higher award was consistent with awards in similar cases. Celinda L. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020002892 (Sept. 2, 2021).

EEOC Increased the Agency’s Compensatory Damages Award to $100,000. The EEOC previously found that the Agency discriminated against Complainant when it terminated her from her position, and ordered the Agency, among other things, to investigate Complainant’s claim for damages. The Agency subsequently awarded Complainant $15,000 in nonpecuniary compensatory damages. The EEOC increased the award on appeal to $100,000, stating that Complainant was entitled to compensation related to emotional harm caused by financial difficulties resulting from her discriminatory termination. Complainant stated that the uncertainty over health insurance and income resulting from the discrimination caused her to delay medical treatment. Complainant believed this delay caused her to lose some opportunities to slow the progression of her disease. Complainant also experienced anxiety, depression, sleep disturbances, and the loss of professional relationships. The EEOC agreed with the Agency that Complainant was not entitled to pecuniary damages for costs related to her move because Complainant did not establish a causal nexus between the move and the discrimination. The EEOC also determined that the evidence was insufficient to support Complainant’s claim for front pay, and Complainant failed to establish that she was entitled to recover back pay since she did not engage in reasonable efforts to find comparable employment during the back pay period. Finally, the EEOC concluded that Complainant’s counsel was entitled to payment for two hours of work performed when considering whether to accept Complainant’s case. Aileen C. v. Agency for Int’l Dev., EEOC Appeal No. 2019004993 (Aug. 2, 2021).

EEOC Affirmed Agency’s Award of $95,000 in Nonpecuniary Damages. The EEOC previously found that Complainant had been subjected to unlawful retaliation. The Agency subsequently conducted a supplemental investigation and awarded Complainant $95,000 in nonpecuniary compensatory damages. The EEOC affirmed the Agency’s award on appeal, finding that the amount was consistent with awards in similar cases. Complainant provided documentation of her post-traumatic stress disorder (PTSD) diagnosis, which manifested as severe depression, difficulty sleeping, inability to think clearly or enjoy life, and at her lowest point (prior to working for the Agency), seriously contemplating suicide. Complainant asserted that the retaliatory acts she experienced caused a major flare-up of her PTSD, by triggering emotions she associated with prior sexual trauma that had been perpetrated by a supervisor. Following her non-conversion and subsequent termination by the Agency, Complainant felt hopeless about her future employment, became severely depressed, and was often unable to get out of bed. She also stated that her mental health issues were exacerbated by the financial difficulties accompanying her unemployment. Complainant provided statements from three witnesses in support of her claim, including a statement from an Addiction Therapist from the Substance Abuse Recovery Program, who treated Complainant. Medical documents demonstrated that Complainant was prescribed a number of medications to treat her multiple mental health conditions, underwent regular therapy subsequent to the retaliation, and was hospitalized for PTSD. The EEOC affirmed the Agency’s denial of pecuniary damages. Lauralee C. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020000598 (Sept 21, 2021).

EEOC Increased Award of Nonpecuniary Damages to $85,000. The Agency found discrimination on the basis of disability when Complainant was improperly terminated after missing a fitness-for-duty examination due to lingering effects from medical treatment. The Agency awarded Complainant $45,000 in nonpecuniary compensatory damages, and the EEOC increased the award to $85,000 on appeal. Complainant asserted that she lost her sense of self-worth and had financial difficulties. She also had trouble performing daily tasks, and experienced anxiety attacks, crying and shaking spells, insomnia, nightmares, marital strain, and exacerbation of her preexisting depression. She drank alcohol daily and smoked cigars, and had suicidal ideation, among other things. Complainant submitted affidavits from family members and friends in support of her claim, and the record contained letters from two doctors stating that Complainant was diagnosed with Generalized Anxiety Disorder, Insomnia due to stress, and Hypertension. Complainant’s medications were increased over a two-year period following her termination and Complainant received ongoing mental health counseling. Complainant stated that she was not able to tend to normal household tasks, such as paying bills on time, so her family was evicted from their home and her car was repossessed. She also had to borrow money from family and friends and withdraw money from her retirement fund. The EEOC found that an award of $85,000 was more appropriate in this case and would adequately compensated Complainant for the documented two years of emotional and physical harm that she suffered as a result of the denial of accommodation and subsequent removal action. The award considered the nature of the Agency's action, the degree of harm Complainant experienced, as well as the fact that she appeared to have been suffering from some degree of depression and anxiety prior to the discrimination. The EEOC increased the award of pecuniary damages to include the tax penalty for Complainant’s early withdrawal of money from her retirement account due to financial difficulties resulting from her termination. Jacki A. v. Dep’t of Justice, EEOC Appeal No. 2020002100 (Sept 23, 2021).

EEOC Increased Award of Nonpecuniary Damages to $70,000. The EEOC previously found that the Agency denied Complainant reasonable accommodation, and violated the Rehabilitation Act when Complainant’s supervisor instructed Complainant to include his medical information on publicly displayed forms. Following a supplemental investigation, the Agency awarded Complainant $25,000 in nonpecuniary compensatory damages, and the EEOC increased the award to $70,000 on appeal. Complainant submitted statements from friends and family members, as well reports from his psychiatrist and neurologist noting that Complainant experienced emotional distress as a result of the Agency’s extended and continual denial of accommodation. These symptoms, which they believed were caused by the Agency’s actions, included social and familial withdrawal, depression, anxiety, anger, sleeplessness, nightmares, panic attacks, and embarrassment among other things. The EEOC found that the Agency’s award was insufficient to compensate Complainant. The EEOC rejected the Agency’s argument that it ultimately fully accommodated Complainant, stating that, as noted in its prior decision, Complainant's request for accommodation was still pending with the Reasonable Accommodation Committee during the EEO investigation, and there was no evidence that the Agency had since provided Complainant with an effective accommodation. The EEOC found that, considering the severity and duration of the harm Complainant experienced as a result of the Agency’s lengthy and continued delay in providing him with an effective accommodation, an award of $70,000 was a more appropriate amount in this case. The EEOC affirmed the Agency’s award of $40 for past pecuniary damages, and denial of future pecuniary damages. Augustine V. v. U.S. Postal Serv., EEOC Appeal No. 2020001847 (Aug. 16, 2021).

EEOC Increased Nonpecuniary Compensatory Damages Award to $50,000. The EEOC previously found that the Agency discriminated against Complainant when her supervisor provided a negative reference when she applied for a promotion. Following a supplemental investigation, the Agency awarded Complainant $30,000 in nonpecuniary damages, and the EEOC increased the award to $50,000 on appeal. The nature and extent of the harm suffered by Complainant as a result of her supervisor’s negative reference was more in-line with precedent supporting the higher award. Complainant’s own statements, together with those from her family members and colleagues established that, because of the negative reference and the profound impact it had on her career, Complainant experienced prolonged depression, lost weight, experienced near-constant crying spells, and lost interest in her relationships, preferring to spend her days locked in her bedroom, alone. Complainant suffered and apparently continued to suffer severe emotional distress. The EEOC agreed that Complainant had not proven entitlement to pecuniary damages. Thomasina B. v. Dep’t of Justice , EEOC Appeal No. 2020002975 (Sept. 9, 2021).

EEOC Increased Award of Damages to $47,417.34 to Reflect Present-Day Value of Similar Awards. The Agency found that Complainant was subjected to a racial hostile work environment, and ultimately awarded him $35,000 in compensatory damages. On appeal, the EEOC increased the award to $47,417.34. Complainant experienced anxiety, depression, anger, headaches, and sleeplessness, among other things. Complainant also became socially withdrawn from family, friends and colleagues. Complainant submitted statements from his girlfriend and supervisor to support his claim. The EEOC found that the Agency’s award was consistent with decisions in similar cases, but stated that an award of nonpecuniary damages may consider the present-day value of comparable awards. Therefore, given the significant interval of time since the award in the comparable decision (approximately 10 years), the EEOC increased Complainant’s award. The EEOC also found that Complainant was entitled to attorney’s fees and costs for work performed during the processing of his compensatory damages claim. Darrell K. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020001975 (Aug. 2, 2021).

EEOC Increased Award of Nonpecuniary Damages to $40,000. The EEOC previously found that the Agency violated the Rehabilitation Act, including when a supervisor and several of Complainant’s coworkers accessed Complainant’s confidential medical records. The EEOC ordered the Agency to investigate Complainant’s claim for damages. The Agency subsequently awarded Complainant $2,000 in nonpecuniary damages, and the EEOC modified the award on appeal. Complainant stated that the violation of her privacy and access to her medical records were used to humiliate and embarrass her, and damaged her reputation. Complainant experienced, among other things, depression, irritability, anger, low energy, and crying spells, as well as difficulty concentrating, stomach issues, and insomnia. Complainant continued to experience symptoms at the time she completed her affidavit, and Complainant’s husband corroborated her claim. The EEOC stated that the deliberate violation of Complainant’s privacy 34 times over a 20-month span supported a finding that these violations were a significant cause of the harm suffered by Complainant. Therefore, given the severity and duration of Complainant’s symptoms, the EEOC concluded that an award of $40,000 was appropriate. The EEOC agreed with the Agency that Complainant failed to establish that her claimed pecuniary damages were caused by the discrimination. Donna B. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020001394 (Aug. 3, 2021).

EEOC Increased Nonpecuniary Damages Award to $35,000. The EEOC found that the Agency discriminated against Complainant when it failed to pursue reassignment as an accommodation for his disability. The Agency subsequently awarded Complainant $2,000 in nonpecuniary compensatory damages. The EEOC increased the award to $35,000 on appeal. The EEOC rejected the Agency’s assertion that an EEOC decision in a previous case encompassed nonpecuniary compensatory damages for harm Complainant suffered. The amount of nonpecuniary damages awarded at that time was based on evidence previously submitted. In the instant complaint, the EEOC found discrimination with respect to multiple incidents ranging from May 2017 through December 2018, all stemming from the Agency’s continued failure to accommodate Complainant during that time period. Thus, Complainant was entitled to nonpecuniary compensatory damages for these additional acts separate from his prior complaint. Complainant and his wife submitted detailed affidavits confirming that Complainant continued to suffer severe gastrointestinal issues, suicidal thoughts, and a loss of consortium. Complainant stated that his symptoms continued at least until March 2020. Therefore, the EEOC determined that $35,000 more appropriately compensated Complainant for the exacerbation and continuation of his medical condition and symptoms beyond the period encompassed in the EEOC’s earlier decision. The EEOC affirmed the Agency’s award of pecuniary damages. Bill A. v. U.S. Postal Serv., EEOC Appeal No. 2020003332 (June 3, 2021).

EEOC Increased Award of Nonpecuniary Damages to $30,000. In a prior decision, the EEOC found that the Agency discriminated against Complainant when it denied him a religious accommodation, and ordered the Agency, among other things, to investigate his claim for damages. The Agency awarded Complainant $10,000, and the EEOC increased the award on appeal. In addition to his own statement, Complainant provided statements from his physician, stating that Complainant was under treatment and taking medication for anxiety and sleep difficulties caused by the financial stress from the denial of his religious accommodation. The EEOC found that $30,000 in nonpecuniary compensatory damages adequately compensated Complainant for the harm he suffered as a result of the discrimination. The EEOC stated that nonpecuniary damages are designed to remedy the harm caused by the discrimination rather than punish the Agency for its actions, and the $30,000 award considers the nature of the Agency’s actions, and the degree of harm related to the discrimination. Stanton S. v. U.S. Postal Serv., EEOC Appeal No. 2019004097 (Apr. 15, 2021).

EEOC 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 EEOC 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 EEOC also determined that Complainant was entitled to $52 in pecuniary damages for co-payments incurred for her therapy visits. The EEOC denied Complainant’s request for medication expenses, and future pecuniary damages. Tasia v. Dep’t of Def., EEOC Appeal No. 2020002945 (Oct. 6, 2020).

EEOC Increased Award of Nonpecuniary Damages to $25,000. In a final decision on liability, the Agency held, inter alia, that Complainant was discriminated against when he was denied a reasonable accommodation for his disability. With respect to nonpecuniary, compensatory damages, Complainant provided evidence in the form of his own statements, as well as some medical documentation to support his request for $85,000 in “pain and suffering” and “emotional and psychological distress.” Complainant also provided the names of witnesses who had knowledge of the impact of the discrimination, but did not provide statements from these witnesses, as requested by the Agency. In a final decision on relief, the Agency awarded Complainant $8,000. On appeal, the EEOC increased the award to $25,000, noting that, as a result of the Agency’s discriminatory actions, Complainant experienced chest pain, severe stress, nightmares, insomnia, stomach pain, panic attacks, weight gain, mental anguish, and emotional turmoil that affected his relationships with friends and family. Complainant also stated the discrimination exacerbated his preexisting conditions, which included migraine headaches, depression, post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), gastroesophageal reflux disease (GERD), and chronic pain. Complainant asserted that, notwithstanding a promotion to a different office with a different supervisor subsequent to the discrimination, his injuries remained ongoing and persistent. Complainant noted that he had to increase his medications and visit the emergency room multiple times for chest pain and heart attack-like symptoms that were ultimately found to be caused by stress. In increasing the award, the EEOC held that $25,000 in nonpecuniary damages was more appropriate and consistent with amounts awarded in similar cases. The EEOC found no reason to disturb the Agency’s award with respect to other forms of relief; however, it did order the Agency to post a notice, as well as consider disciplining the responsible management official. Alejandro T. v. Envtl. Prot. Agency, EEOC Appeal No. 2019004457 (Nov. 23, 2020).

EEOC Increased Award of Nonpecuniary Damages to $20,000. An AJ found that Complainant was discriminated against on the basis of her disabilities when the Agency constructively discharged her during her probationary period, and awarded Complainant $5,500 in nonpecuniary compensatory damages. The EEOC increased the award to $20,000 on appeal, stating that the AJ did not sufficiently consider the demoralizing and humiliating nature of Complainant’s forced resignation, and underestimated the extent to which Complainant’s symptoms were exacerbated by the denial of accommodation and constructive discharge. Complainant withdrew from friends and family (including her children), avoided social situations, stopped her daily phone conversations with her mother, and struggled to eat. Complainant’s constructive discharge was deeply humiliating, and her depression was exacerbated when, upon her “resignation” she had to go to the front desk and publicly pack her things, with people asking her what happened. Moreover, the circumstances of the constructive discharge were particularly demoralizing because the Agency essentially rejected Complainant a second time when it rescinded its offer of a lower graded position. Complainant also indicated that she was harmed by her two months of unemployment, because, at the time of her constructive discharge, she was not in a secure financial position. Her debt increased, she could not afford medical bills, and she received a notice from an attorney that her debts were passed on to a collection agency. She also continued to feel embarrassed when individuals at her new job asked about her previous job. Complainant described a lack of confidence in herself and her work that did not exist prior to the denial of a reasonable accommodation and constructive discharge. Lydia F. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020001007 (Sept 16, 2021).

EEOC Increased Award of Damages to $20,000. In a prior decision, the EEOC found that the Agency discriminated against Complainant when the Agency denied him religious accommodation, and ordered the Agency, among other things, to investigate his claim for damages. The Agency subsequently awarded Complainant $2,000 in nonpecuniary damages. The EEOC increased the award to $20,000 on appeal. While Complainant asserted that he was harassed and that the discrimination resulted in his involuntary retirement, the EEOC noted that an award of compensatory damages is limited to the discriminatory act at issue, in this case the denial of religious accommodation. Complainant stated that he experienced difficulty sleeping, anxiety, emotional distress, embarrassment, humiliation, and fear for his family’s safety. Complainant indicated that he attended six counseling sessions, and had difficulty dealing with the response from his coworkers. The EEOC noted that Complainant did not provide any objective evidence to support his claim beside his personal statement, and a $20,000 award was consistent with awards in similar decisions. The EEOC found that the Agency properly denied Complainant’s claim for pecuniary damages. Don T. v. U.S. Postal Serv., EEOC Appeal No. 2020003494 (July 27, 2021).

EEOC 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 EEOC 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 EEOC 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).

EEOC Increased Award of Nonpecuniary Compensatory Damages to $20,000. The Agency adopted an Administrative Judge’s (AJ) finding that it discriminated against Complainant when it did not select her for a position, as well as the AJ’s award of $5,000 in nonpecuniary compensatory damages. Complainant appealed the award of damages, and the EEOC increased the award to $20,000. Complainant stated that the non-selection exacerbated her Post Traumatic Stress Disorder (PTSD). She also experienced trouble sleeping, feelings of humiliation, severe anxiety, fatigue, anger, social withdrawal, and digestive problems, among other things. Complainant stated that she takes medication for anxiety and depression, and attends physical therapy and a peer program two to four times per week. Complainant’s Nurse Practitioner stated that an inability to manage stressors such as non-selection could exacerbate PTSD, but she did not recall Complainant talking to her about her specific non-selection. The EEOC noted that Complainant cannot be awarded damages for her prior pain and suffering or distress related to alleged harassment and retirement. Nevertheless, Complainant established that the discriminatory non-selection exacerbated her pre-existing PTSD, resulting in increased stress and depression, paranoia, and the end of her marriage. Given the nature and duration of Complainant’s harm, the EEOC concluded that $20,000 was more appropriate in this case. Letitia C. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020000230 (Jan. 11, 2021).

EEOC Affirmed AJ Award of $17,000 in Compensatory Damages and Found Agency Appeal Untimely. An AJ found that Complainant was subjected to harassment and retaliation, and awarded Complainant $17,000 in nonpecuniary damages. The EEOC affirmed the award on appeal. The EEOC initially found that the Agency’s appeal was untimely, noting that the Agency initially issued a final decision fully adopting the AJ’s decision and did not challenge the AJ’s finding of discrimination until more than three months later. With regard to the award of damages, Complainant testified that she immediately began to suffer from stress, depression and anxiety after the harassment. She also had difficulty sleeping because she would think about working with the harasser, and Complainant continued to experience sleep issues two years later. Complainant experienced headaches and stomach pain, but did not seek medical treatment or take medication. Complainant lost interest in social activities with her friends because the harassment was “constantly on her mind.” The EEOC stated that while a complainant’s testimony is sufficient to support an award of damages, the absence of supporting evidence can affect the amount of the award. Maxie S. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020004012 (Aug. 5, 2021).

EEOC Affirmed Award of $15,000 in Nonpecuniary Damages. An AJ found that the Agency failed to overcome Complainant’s claim of race and sex discrimination related to the denial of a promotion, and awarded Complainant $15,000 in nonpecuniary damages. The EEOC affirmed the award on appeal, finding that it was supported by substantial evidence in the record. The AJ observed that Complainant experienced emotional harm as a result of the cancelation of his promotion, including loss of sleep, loss of appetite, depression, stress, and familial withdrawal. The AJ also considered Complainant’s and his wife’s testimony that Complainant experienced behavioral changes as a result of the Agency’s actions. Charlie O. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020003390 (Sept. 2, 2021).

EEOC Affirmed $15,000 Nonpecuniary Damages Award. The EEOC previously found that the Afindinggency discriminated against Complainant when it did not select him for a position. Pursuant to the EEOC’s order, the Agency investigated Complainant’s claim for damages, and awarded him $15,000. The EEOC affirmed the award on appeal. Complainant stated that the discrimination exacerbated some of his conditions, such as anxiety, depression, poor sleep, and headaches. Complainant’s ex-wife and sister also asserted that Complainant experienced emotional changes including feelings of frustration, anger, and bitterness. Complainant also avoided crowds and withdrew from social engagements. The medical evidence suggested that Complainant’s depression and anxiety were not severe until he sought treatment more than one year after the discrimination. Prior to that time, Complainant had informed a doctor that he was not experiencing anxiety or depression. The EEOC found that the award of $15,000 was consistent with prior decisions given that there was evidence of other reasons for Complainant’s harm. The EEOC affirmed the Agency’s denial of pecuniary damages. Leon B. v. Dep’t of State, EEOC Appeal No. 2020002697 (Aug. 12, 2021).

EEOC Affirmed Agency’s Award of $15,000in Nonpecuniary Damages. The EEOC previously found that the Agency discriminated against Complainant based on his disability when it rescinded a job offer. The Agency subsequently awarded Complainant $15,000 in nonpecuniary damages, and the EEOC affirmed the award on appeal. Complainant suffered some harm as a result of the Agency’s rescission of the job offer; however, he also had a number of preexisting physical and mental conditions. Based on the evidence submitted, the EEOC determined that Complainant failed to show his physical and mental conditions were directly related to or exacerbated by the Agency’s discrimination. There was no evidence Complainant sought any medical assistance for the emotional distress or depression he claimed he suffered, or that he sought counseling as a result of the discrimination. The EEOC concluded that $15,000 was sufficient to compensate Complainant for the harm suffered as a result of the discrimination. Mark D. v. Dep’t of Justice, EEOC Appeal No. 2020003543 (June 7, 2021).

EEOC Increased Award of Damages to $13,000. The EEOC previously found that the Agency retaliated against Complainant for prior EEO activity when it failed to select him for a position, and ordered the Agency, among other things, to investigate Complainant’s claim for compensatory damages. The Agency conducted a supplemental investigation and awarded Complainant $11,000 in nonpecuniary damages. The EEOC increased the award to $13,000 on appeal. Complainant stated that he suffered from insomnia, anxiety, and periods of severe depression, and a worsening of his pre-existing Post Traumatic Stress Disorder (PTSD). He further claimed that his mental and emotional state deteriorated to the point where he struggled to set up appointments with his treating psychologist. Complainant’s family members, friends, and a coworker submitted statements in support of his claim. The EEOC found that the record was sufficient to establish that Complainant suffered from humiliation, embarrassment, and harm to his professional reputation for approximately one year. Further, while Complainant did not present evidence of having experienced physical symptoms such as headaches and stomach aches, the depression from which he suffered as a result of being passed over for a promotion for which he was eminently qualified was no less debilitating than those conditions. Norberto G. v. Dep’t of Def., EEOC Appeal No. 2020000231 (Jan. 8, 2021).

EEOC Affirmed Agency’s $10,000 Compensatory Damages Award. The EEOC 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 EEOC subsequently affirmed the Agency’s award of $10,000 in nonpecuniary damages. The EEOC 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 EEOC 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).

EEOC Affirmed Agency’s Award of $7,500 in Nonpecuniary Damages. The EEOC previously found that Complainant was subjected to sexual harassment and reprisal. The Agency then awarded Complainant $7,500 in nonpecuniary compensatory damages, finding no evidence that Complainant was rendered unable to work or suffered significant disruption to familial relationships as a result of the harassment. On appeal, the EEOC initially affirmed the Agency’s denial of pecuniary damages, finding that Complainant did not persuasively establish that the Agency’s discriminatory actions were the cause of his expenses. The EEOC also found that the Agency’s award of $7,500 in nonpecuniary damages was supported by the evidence, and was consistent with prior EEOC precedent. While Complainant was treated on two occasions for headaches, anxiety, insomnia, and back pain, there was no evidence that he sought any additional treatment, and Complainant mentioned other incidents that contributed to his conditions. Trey M. v. U.S. Postal Serv., EEOC Appeal No. 2020002804 (Apr. 26, 2021); request for reconsideration denied, EEOC Request No. 2021003583 (Sept. 16, 2021).

EEOC Affirmed the Agency’s Award of $5,000 in Damages. The EEOC previously found that the Agency discriminated against Complainant based on disability when it failed to reasonably accommodate her and reprimanded her for missing work while she was hospitalized due to her medical condition. The EEOC ordered the Agency, among other things, to investigate Complainant’s claim for damages, and the Agency awarded Complainant $5,000. The EEOC affirmed the Agency’s award on appeal. Complainant did not respond to the Agency’s request for evidence regarding the harm she suffered due to the discrimination. Nevertheless, Complainant stated, during the EEO investigation in the underlying complaint, that the Agency’s enforcement of its leave policy caused her stress that raised her blood sugar levels. The EEOC concluded that the $5,000 award was comparable to precedent in similar cases. Irina T. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020001946 (July 29, 2021).

EEOC Awarded Complainant $5,000 in Nonpecuniary Damages. The EEOC previously affirmed the Agency’s finding that Complainant failed to prove many of her claims, but found that the Agency discriminated against Complainant on the basis of reprisal when her supervisor counseled her and issued her a Letter of Reprimand. The Agency subsequently determined that Complainant was not entitled to compensatory damages. On appeal, the EEOC awarded Complainant $5,000 in nonpecuniary damages. The EEOC noted that evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of damages for emotional harm. The EEOC believed Complainant’s statement regarding her symptoms, particularly with regard to her fatigue, anxiety, and depression. Complainant also claimed that she was near bankruptcy due to the financial toll of having to take out loans to pursue her claims. The EEOC found that an award of $5,000 was consistent with awards in similar cases. The EEOC concluded that Complainant was also entitled to an award of pecuniary damages for interest on loan payments which she persuasively showed to be causally related to the discrimination. Finally, the EEOC concluded that the Agency properly reduced Complainant’s claim for attorney’s fees and costs by 50 percent because the two claims on which she prevailed were fractionable from the remaining unsuccessful claims, but modified the award of attorney’s fees to include hours spent during the hearing stage. Roxane C. v. Dep’t of Energy, EEOC Appeal No. 2019004254 (July 26, 2021).

EEOC Affirmed Award of $5,000 in Compensatory Damages. The Agency awarded Complainant $5,000 in nonpecuniary compensatory damages after the EEOC 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 EEOC 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 EEOC 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 EEOC 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 EEOC 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. 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 EEOC found that Complainant did not show he was entitled to more than the $5,000 in nonpecuniary damages, which was similar to what the EEOC had awarded in other cases. Freddie M. v. Dep’t of Def., EEOC Appeal No. 2020002968 (Dec. 30, 2020).

EEOC Increased Award of Nonpecuniary Damages to $4,500. In a final decision on liability, the Agency held that Complainant was discriminated against when he was denied a reasonable accommodation for his disability from June 22, 2017, through September 1, 2017. Subsequent to the Agency’s finding of liability, Complainant requested $300,000 in nonpecuniary, compensatory damages (and equitable relief), stating that he was “devastated thinking that he could not support his family and pay his mortgage,” and considered suicide. The Agency awarded Complainant $2,500, noting that Complainant did not present any medical documentation or statements from coworkers or family members. The Agency further noted that Complainant’s statements were the only evidence of his devastation, depression, sleepless nights, concern about paying his bills, and thoughts of suicide. Also, the Agency noted that the duration of Complainant’s harm was approximately six weeks, during which his leave requests were approved, and he was not in jeopardy of being required to use unpaid leave. On appeal, the EEOC increased the award to $4,500, finding that it was more appropriate based on prior EEOC decisions and considering the nature, severity, and duration of Complainant’s harm. The EEOC noted that an award of nonpecuniary, compensatory damages may consider the present-day value of comparable awards, and accordingly, found that $4,500 was an appropriate award for Complainant’s harm for almost two months. The EEOC affirmed the Agency’s final decision on equitable relief, as this was undisputed by Complainant. Ariel L. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2020000530 (Nov. 23, 2020).

EEOC Increased Award of Nonpecuniary Damages to $2,500. An AJ found that the Agency discriminated against Complainant in reprisal for prior EEO activity when her immediate supervisor gave her a low satisfactory rating on her annual proficiency report, and awarded Complainant $2,000 in nonpecuniary compensatory damages. On appeal, the EEOC increased the award to $2,500. Complainant claimed that as a result of having received the low satisfactory rating, she suffered injury to her professional standing as a nurse and was blocked from advancement. She also stated that the rating left her feeling ashamed and like a failure as a nurse. She gained 30 pounds, was diagnosed with diabetes, and suffered a minor stroke. Complainant admitted that a great deal of her mental and emotional distress resulted not from the low satisfactory rating at issue but from previous incidents involving her termination and the difficulties experienced by her daughter during that same time frame, all of which weakened the necessary causal connection between the discriminatory act and the harm suffered. Carol W. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020001521 (Jul. 7, 2021).

EEOC Increased Award of Nonpecuniary Damages to $2,000. Following a hearing, an AJ found that the Agency violated the Rehabilitation Act when it disclosed Complainant’s confidential medical information on one occasion. To remedy the violation, the AJ ordered the Agency, among other things, to pay Complainant $1,500 in nonpecuniary compensatory damages. On appeal, the EEOC increased the award to $2,000, finding that the amount was consistent with EEOC precedent involving single incidents of inadvertent but unauthorized disclosure of confidential medical information. Michael M. v. U.S. Postal Serv., EEOC Appeal No. 2020001464 (Aug. 3, 2021).

EEOC Affirmed Award of $1,500 in Nonpecuniary Compensatory Damages. The EEOC previously found that the Agency discriminated against Complainant when it did not select her for a position, and ordered the Agency, among other things, to investigate Complainant’s claim for damages. The Agency subsequently awarded Complainant $1,500 in nonpecuniary damages, and the EEOC affirmed the award on appeal, finding it consistent with awards in similar cases. While Complainant stated that she suffered from depression, she related the condition to her involuntary separation. Further, Complainant did not show that the discriminatory nonselection directly caused her depression, or that the nonselection was related to her separation. Specifically, Complainant stated that she was separated from the Agency when it closed her facility. Mafalda H. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020001497 (July 29, 2021).

EEOC Affirmed Agency’s Award of $1,500 in Compensatory Damages. In a previous decision, the EEOC found that the Agency violated the Rehabilitation Act when it denied Complainant reasonable accommodation and required her to submit updated medical documentation. Following a supplemental investigation, the Agency then awarded Complainant $1,500 in nonpecuniary compensatory damages. Complainant stated that the discrimination aggravated her Post Traumatic Stress Disorder (PTSD). On appeal, the EEOC noted that a complainant must demonstrate through appropriate evidence and documentation the harm suffered because of the Agency’s discriminatory action. Based on Complainant’s statement, her ex-husband's affidavit, and medical statements, her physical and mental symptoms were largely caused by her service-related PTSD and other factors not directly related to the Agency’s discrimination. Therefore, the EEOC determined that $1,500 in nonpecuniary compensatory damages was reasonable and appropriate. Natalie S. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021000139 (Apr. 27, 2021).

EEOC Increased Award of Compensatory Damages to $1,500. The EEOC previously found that the Agency retaliated against Complainant when management officials charged him eight hours of Absent Without Leave (AWOL), and ordered the Agency, among other things, to investigate Complainant’s claim for damages. The Agency awarded Complainant $800 in nonpecuniary damages, and the EEOC increased the award to $1,500 on appeal. Complainant asserted that he experienced a loss of joy for snowboarding, and increased weight gain during the period at issue. Complainant noted that he was diagnosed with anxiety and depression. Complainant further explained that he still struggles with anxiety and weight gain, and he just started to regain his self-confidence after he received a favorable decision from the EEOC. The record included medical documents indicating that Complainant had three physician visits following the discrimination and was taking anti-anxiety medication. Although the medical documentation did not discuss the cause of Complainant’s anxiety, he began taking the anti-anxiety medication one month after the AWOL charge. Complainant’s weight also increased during this time. Therefore, the EEOC found sufficient evidence to tie the harm directly to the Agency’s action. The EEOC affirmed the Agency’s denial of past pecuniary damages. Israel F. v. U.S. Postal Serv., EEOC Appeal No. 2020001565 (Mar. 2, 2021).

Dismissals

(See also by category, this issue.)

AJ Erred in Dismissing Complaint on Grounds of Collateral Estoppel. The EEOC found that the AJ erred in dismissing the complaint on the grounds that Complainant was collaterally estopped from pursuing her claims against the Agency, and possibly obtaining a double recovery, due to a settlement agreement she entered with a private staffing company. The EEOC previously determined that the Agency exerted sufficient control over Complainant’s employment to be considered her joint employer for purposes of the EEO process. In addition, the EEOC has previously noted that when an agency qualifies as a common-law joint employer, it is liable for the discrimination on the same basis that it would be liable for discriminating against any of its other employees. Where the combined discriminatory actions of a staffing firm and its client (i.e., the agency) result in harm to the worker, both the staffing firm and the agency are jointly and severally liable for back-pay, front pay, and compensatory damages. Therefore, the EEOC found that, in this case, the settlement between Complainant and the staffing firm did not preclude Complainant from continuing her federal sector EEO complaint against the Agency. Beth G. v. Nat’l Aeronautics & Space Admin., EEOC Appeal No. 2020003205 (Sept. 23, 2021).

Agency Improperly Dismissed Complaint for Failure to State a Claim and Failure to Cooperate. Complainant alleged disability discrimination and harassment. The Agency dismissed the complaint for failure to state a claim, and failure to cooperate. On appeal, the EEOC acknowledged the Agency’s assertion that Complainant’s formal complaint did not provide sufficient details about the claims, such as the date(s) of the event(s) that occurred, or essential elements of the harm Complainant endured. The complaint did, however, contain a partial narrative explaining Complainant’s concerns, and the initial EEO contact form and interview sheet provided details including dates of specific incidents of alleged harassment by a co-worker and the supervisor’s failure to intervene in regard to the alleged harassment. The EEO Counselor’s report also contained extensive details of Complainant’s allegations and incident dates. Thus, the Agency erred in dismissing the complaint for failure to state a claim. Further, the Agency improperly dismissed Complainant’s claim of harassment for failure to cooperate, because the record in this case contained sufficient information regarding Complainant’s concerns to permit adjudication of the complaint. The Agency, in its final decision, failed to indicate how Complainant’s failure to respond to the request for a more detailed formal complaint had an impact upon its ability to address the claim of discrimination. While the EEOC reversed the Agency’s dismissal, Complainant was nevertheless advised to cooperate in the future processing of her complaint, or risk future dismissal for failure to do so. Gaye A. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021003765 (Sept. 15, 2021).

Complaint Properly Dismissed as Stating Same Claim Previously Raised. Complainant filed a formal EEO complaint in February 2021 alleging that the Agency retaliated against her when it required her to take fundamental training in 2019 as if she was a new employee. The Agency dismissed the complaint on grounds that the complaint stated the same claim as that raised in a prior EEO complaint. The EEOC affirmed the dismissal on appeal. In her earlier EEO complaint, Complainant also alleged that she was retaliated against when she was required to take fundamental training in October 2019 as if she was a new employee. While Complainant subsequently spoke with newly hired employees in November 2020 who told her they were not required to complete training, Complainant has not alleged a new, separate harm, and her current complaint includes the same incident and timeframe. Simply alleging that there are new comparators does not constitute a new discriminatory action, and the complaint was properly dismissed. Daisy W. v. Soc. Sec. Admin., EEOC Appeal No. 2021002581 (Aug. 9, 2021).

Complaint Improperly Dismissed as Stating Same Claim Previously Raised. Complainant filed a formal EEO complaint alleging discrimination and retaliation when the Agency refused to increase her pay to half of the maximum salary for an Assistant U.S. Attorney (AUSA) in April 2020. The Agency dismissed the complaint on grounds that it stated the same claim as that raised previously. On appeal, the EEOC stated that while Complainant had previously asserted that she should receive one-half of the maximum AUSA pay in 2016 and 2019, her current claim addressed the April 2020 pay decision and the change in workload she experienced at that time. Thus, Complainant’s current claim was not identical in time to her prior claims, and was not “new evidence” to support her prior claims as argued by the Agency. Therefore the dismissal of Complainant’s current complaint was improper. Michelle C. v. Dep’t of Justice, EEOC Appeal No. 2021002104 (Aug. 5, 2021).

Agency Improperly Fragmented and Dismissed the Complaint on Various Procedural Grounds. Complainant filed a formal complaint alleging that the Agency discriminated against her, and cited various incidents in support of her claim. The Agency characterized the complaint as alleging four separate incidents, and dismissed one as being moot, two for failure to state a claim, and one for failure to timely contact an EEO Counselor. On appeal, the EEOC found that the Agency improperly fragmented Complainant’s hostile work environment claim. The EEOC stated that the Agency erroneously dismissed one incident as being moot because Complainant requested compensatory damages and the Agency failed to address that matter. Further, Complainant’s allegations that the Agency withdrew a job offer and failed to reasonably accommodate her stated actionable claims. Finally, the record showed that at least one incident comprising Complainant’s hostile work environment claim occurred within the 45 days preceding Complainant’s EEO contact. Therefore, the Agency improperly dismissed the incident concerning the withdrawal of Complainant’s job offer because it was part of the alleged hostile environment. The entire complaint was remanded for processing. Sheryl S. v. Dep’t of the Army, EEOC Appeal No. 2021002818 (July 28, 2021).

EEOC Affirmed Dismissal of Complaint for Stating a Claim Raised in Grievance Process. The EEOC affirmed the Agency’s dismissal of Complainant’s complaint on the grounds that the underlying factual issues were previously considered in the grievance process. On March 28, 2019, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of disability and reprisal for prior protected EEO activity. Following the Agency’s investigation, an AJ dismissed Complainant's complaint, finding that the claim was raised during a prior grievance procedure that allows claims of discrimination. On appeal, the EEOC found that the underlying factual issues relevant to the complaint were already considered in the grievance process. The EEOC has held that a complainant need not actually raise a claim of discrimination in a grievance to have elected that forum, and the adjudication of the case in another forum constitutes an election of remedies. Therefore, the complaint was properly dismissed. Delia R. v. Dep’t of Agric., EEOC Appeal No. 2021000829 (Apr. 22, 2021).

Complaint Improperly Dismissed for Failure to Cooperate. Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, color, and reprisal for prior protected EEO activity when it issued her a Notice of Removal and decreased her work hours. The Agency began an investigation and requested that Complainant complete an affidavit. The Agency ultimately dismissed the complaint for failure to cooperate, stating that Complainant failed to return the requested affidavit despite a written warning in the affidavit packet that failure to do so could result in dismissal of the complaint. The EEOC found that there was sufficient information in the record to have permitted the Agency to continue the investigation without Complainant’s affidavit and adjudicate the matter on the merits. Moreover, Complainant provided information in the EEO counselor’s report and a lengthy written statement with her formal complaint. Thus, there was sufficient information to identify the specific actions Complainant was concerned with, the relevant timeframes and the responsible management officials. The EEOC also found that there was insufficient evidence to support a conclusion that Complainant purposely engaged in delay or contumacious conduct. Therefore, the Agency improperly dismissed the complaint. Daisy B. v. U.S. Postal Serv., EEOC Appeal No. 2021001616 (Mar. 17, 2021).

Complaint Improperly Dismissed as Moot and for Untimely EEO Counselor Contact. Complainant filed a formal complaint which the Agency characterized as alleging discrimination regarding an April 2019 decision to rescind her Letter of Proposed Separation; an Absent Inquiry Letter; a document regarding her attendance; and a July 2020 Letter of Proposed Separation. The Agency dismissed the last claim, stating that the matter had been rendered moot, and the remaining claims for untimely EEO counselor contact. On appeal, the EEOC reversed the Agency’s decision, finding that while the Agency rescinded the second Letter of Proposed Separation, Complainant asserted that the continued issuance of such letters caused her emotional distress thereby entitling her to compensatory damages. As such, Complainant’s claim regarding the 2020 Letter of Proposed Separation was not rendered moot. Further, a fair reading of Complainant’s formal complaint demonstrated that she was alleging a claim of ongoing harassment that included the four incidents identified by the Agency. The EEOC noted that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. Here, Complainant received the most recent Letter of Proposed Separation within 45-days of her initial contact with an EEO counselor, and, as such, her entire harassment claim was timely raised. Tera B. v. U.S. Postal Serv., EEOC Appeal No. 2021001319 (Feb. 22, 2021).

Complaint Improperly Dismissed in Part. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it denied her request for reasonable accommodation, and when a management official raised his voice at her. The Agency dismissed the entire complaint for failure to timely contact an EEO Counselor, and the second matter for failure to state a claim. On appeal, the EEOC noted that the discriminatory events occurred on April 2 and 7, 2020, and Complainant emailed the EEO Program Director about these matters on April 24, within 45 days. While the Agency asserted that Complainant should have contacted the Office of Resolution Management to initiate her complaint, the EEOC found that the EEO Program Manager was logically connected to the EEO process and should have told Complainant where to direct her claim. Therefore, Complainant’s contact was deemed timely. The EEOC affirmed the Agency‘s dismissal of the matter concerning the manager’s raised voice for failure to state a claim, noting that the action alleged, without more, consisted of a single isolated incident, and was not sufficient to state a viable hostile work environment claim. Christeen H. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020005121 (Jan. 12, 2021).

Complaint Alleging Discrimination Regarding Pay Improperly Dismissed for Failure to State a Claim and Untimely EEO Counselor Contact. Complainant filed a formal EEO complaint alleging that she was not provided with a retroactive pay increase, back pay, or a time-off award. The EEOC found that the Agency mischaracterized the claims, and improperly dismissed them for failure to state a claim and untimely EEO Counselor contact. The EEOC stated that Complainant alleged a present harm when she was not provided a pay increase, back pay or a time-off award. Further, Complainant alleged a valid claim of retaliation, and the actions were likely to deter Complainant or others from engaging in the EEO process. While the Agency claimed that Complainant’s raise had been implemented and she received a lump-sum back pay award, the argument addressed the merits of Complainant’s complaint without a proper investigation, and was irrelevant to whether Complainant stated a viable claim. In addition, the Lilly Ledbetter Fair Pay Act provides that an unlawful employment practice occurs with respect to compensation each time wages, benefits, or other compensation is paid. Therefore, Complainant’s claim was timely raised with the EEO Counselor whether Complainant developed a reasonable suspicion on an earlier date or not. Finally, the EEOC determined that the Agency erred in providing Complainant appeal rights when it denied her request to amend her complaint to include the alleged denial of a time-off award. Such an attempt to amend a complaint is not appealable until there is a final decision on the underlying complaint. There was nothing in the record to suggest that Complainant reasonably suspected the discrimination prior to her request to amend her complaint, and, as such, the EEOC deemed the matter to have been timely raised. Emelda F. v. Dep’t of the Army, EEOC Appeal No. 2020004414 (Jan. 14, 2021).

Agency Improperly Dismissed Complaint for Failure to Cooperate. According to the record, the Investigator in this case sent Complainant a request for an affidavit along with instructions for completing it. The Agency dismissed the complaint for failure to cooperate, stating that Complainant failed to return the requested affidavit. On appeal, the EEOC found that although Complainant did not explain why she did not return the affidavit as requested, there was sufficient information in the record to have permitted the Agency to continue processing Complainant’s claim. Complainant spoke with the Agency’s EEO Dispute Resolution Specialist and provided sufficient information as detailed in the Inquiry Report (EEO Counselor’s report). The information was sufficient to identify the specific management actions that Complainant was concerned with, the relevant timeframes and the alleged responsible management officials, such that management witnesses could respond to Complainant’s allegations. The record did contain a Report of Investigation including affidavits from management’s witnesses. Therefore, the EEOC concluded that the Agency should have adjudicated the complaint on the merits rather than dismiss it. Adah T. v. U.S. Postal Serv., EEOC Appeal No. 2020005350 (Jan. 4, 2021).

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 EEOC 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 EEOC 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 Complaint Improperly Dismissed for Untimely EEO Contact and Failure to State a Claim. The EEOC 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 EEOC 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 EEOC 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 EEOC 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 EEOC 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).

Agency Improperly Dismissed Harassment Claim for Failure to State a Claim and Untimely EEO Counselor Contact. The EEOC found that the Agency improperly dismissed Complainant’s harassment claim for failure to state a claim and untimely EEO Counselor contact. Complainant alleged, among other things, that he was subjected to multiple verbal and written reprimands, improperly disciplined, threatened with a change in duties, and intimidated. Complainant also indicated that management failed to address the problems. Complainant further stated that the Agency retaliated against him and provided a written timeline of management’s actions over a nearly nine-year period. The EEOC noted that when a complainant asserts that he has been subjected to unlawful retaliation for protected EEO activity, the adverse action need not qualify as an “ultimate employment action,” or materially affect the terms and conditions of employment. In this case, Complainant alleged that he was subjected to harassment over many years based on his prior protected activity. Therefore, he stated a viable claim which, given that some of the alleged incidents occurred within 45 days of Complainant’s contact with the EEO Counselor, was timely raised. Alvaro M. v. Dep’t of Transp., EEOC Appeal No. 2020004764 (Dec. 3, 2020).

Agency Improperly Dismissed Claim for Abuse of Process. The Agency dismissed Complainant’s complaint for abuse of process, asserting that, over the past 10 years, Complainant had filed numerous similar complaints alleging non-selection by various federal agencies. The EEOC reversed the decision on appeal. The EEOC stated that filing numerous complaints alone is not a sufficient basis for dismissal, and the Agency must show evidence that a complainant specifically intended to misuse the EEO process. The EEOC acknowledged that Complainant had filed multiple complaints regarding non-selections. However, filing nine complaints was not dispositive of an abuse of process. Further, there was no evidence that Complainant was attempting to circumvent or overburden the EEO process for the reasons stated by the Agency. None of the various grounds cited by the Agency for dismissal undercut Complainant’s complaint regarding the specific non-selection claim raised in the underlying complaint. Jeffery J. v. Dep’t of the Navy, EEOC Appeal No. 2020004860 (Dec. 2, 2020).

Findings on the Merits and Related Decisions

Under the Age Discrimination in Employment Act

Agency Failed to Rebut Prima Facie Case of Age Discrimination. The EEOC found that the Agency failed to meet its burden of articulating a legitimate, nondiscriminatory reason for Complainant's nonselection. Specifically, the EEOC found that the Selecting Official (SO) failed to provide a specific, clear, and individualized explanation for not selecting Complainant for the supervisory position at issue. The SO stated that he chose the selectee because he thought the selectee was the best qualified for the position. Nevertheless, the SO also stated that everyone on the Best Qualified List was equally qualified. The SO did not provide any examples or information as to why he thought the selectee was better qualified or provide evidence to support his conclusion. Due to the SO’s lack of specific details, the EEOC found the Agency’s explanations were insufficient to afford Complainant a meaningful opportunity to prove pretext. Thus, the Agency failed to rebut the inference of discrimination, which was created when Complainant established a prima facie case of age discrimination, by not articulating a legitimate, nondiscriminatory reason for its actions. The EEOC concluded that the Agency discriminated against Complainant based on his age when it did not select him for the position of Maintenance Worker Supervisor. The EEOC affirmed the Agency’s finding that Complainant failed to establish reprisal with respect to a second claim. The Agency was ordered, among other things, to offer Complainant the position or a substantially equivalent position, with appropriate back pay and benefits. Dalton E. v. Dep’t of Justice), EEOC Appeal No. 2020001456 (Aug. 17, 2021).

Under the Equal Pay Act

Equal Pay Act Discussed. During the period at issue, Complainants applied for positions with the Agency as Program Specialists, and were hired after being recruited by the Agency through a career fair and conference. Complainants’ applications were evaluated with approximately 18 other candidates for Program Specialist positions. The respective candidates with bachelor’s degrees were hired at the GS-07 grade-level, while candidates who had obtained master’s degrees were hired at the GS-09 grade-level. Nonetheless, all four Complainants were promoted to the GS-09 grade-level within one year or so of their hiring. Approximately one year after Complainants were hired, the Agency hired a male comparator to a Program Specialist position at the GS-09 grade-level, even though he had not obtained a master’s degree. The comparator’s application was reviewed and evaluated by a named management official while Complainants’ applications had been reviewed by two separate Human Resources (HR) officials one year earlier.

Complainants filed EEO complaints alleging the Agency discriminated against them on the basis of sex (female) under Title VII and under the Equal Pay Act (EPA) when they were hired at the GS-07 grade-level while the identified male comparator was hired at the GS-09 grade-level for the same position. On appeal, the EEOC affirmed the Agency’s final decision finding no discrimination. Like the Agency, the EEOC determined that Complainants did not establish a prima face case of discrimination, as the identified comparator was not similarly situated to them because he was hired a year later and evaluated by a different management official. The EEOC also found that the record did not support an inference of discrimination because male candidates without master’s degrees were also hired as GS-07s like the Complainants. The EEOC stated that, assuming Complainants established a prima facie violation under the EPA, the Agency established that the pay differential was based on a factor other than sex. In so finding, the EEOC noted that Complainants’ applications were evaluated by two separate HR officials while the comparator was evaluated by a different management official one year later under somewhat different circumstances. The EEOC determined that the different grade classifications resulted from a difference in professional judgment by the evaluating officials, and the record did not reflect that sex factored into the decision-making process in management’s application of the relevant classification qualification criteria. Aida E., Julietta K., Juanita K,, & Yvette H. v. Dep’t of Agric., EEOC Appeal Nos. 2020002203, 2020002190, 2020002216, 2020002197 (Jan. 28, 2021).

Under the Rehabilitation Act

Denial of Reasonable Accommodation. Complainant alleged disability discrimination (metastatic cancer) when, among other things, the Agency denied his request for reasonable accommodation. In 2016, the Agency developed a plan that resulted in all staff in Complainant’s division relocating to another area. After receiving a relocation transfer order, Complainant raised concerns with the Agency, namely that relocating would result in the loss of his medical network and treatment for his metastatic cancer. Complainant suggested a reassignment to a temporary position in in his current office, noting that he was open to any reassignment in that area, and made various requests for reasonable accommodation. Complainant ultimately relocated after the Agency denied his requests for reassignment. The Agency subsequently denied Complainant’s reasonable accommodation request to relocate back to his original location, stating that this would require the removal of a number of the essential functions of Complainant’s job. The Agency maintained that it did not rely upon an undue hardship rationale when it denied Complainant’s reasonable accommodation request.

On appeal, the EEOC noted that Complainant, notwithstanding his diagnosis, had successfully performed the essential functions of his position leading up to and after his relocation. Although there was a demonstrated need for performance improvement following his relocation, Complainant was still performing the essential functions of his position and thus was considered a qualified individual with a disability. Complainant made repeated requests for reasonable accommodation, which were ignored, partially approved, and denied. The EEOC rejected the Agency’s contention that it provided an effective accommodation of two days of telework per week in the new location, as well as the Agency’s assertion that Complainant needed to be in that office to perform his essential functions. Agency management stated that Complainant’s position description did not change with the relocation or the Agency’s realignment plan. The record showed that Complainant performed the same essential functions after he relocated as he had previously performed. The Agency had not shown that the essential functions were inherently connected to a specific location or that being physically located in a particular office was required as an essential function of the position. While the Agency’s argued it could not provide Complainant with a long distance and/or full-time telework arrangement because it was ending these types of arrangements, the EEOC noted that an employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, as long as the accommodation would be effective and not cause an undue hardship. Aside from one questionable medical assessment, the Agency offered no evidence to support its contention that the two-day telework schedule would be an effective accommodation, as compared to Complainant’s requested accommodation of fulltime telework from his former location. The EEOC noted that the Agency ignored Complainant’s request to consider reassignment as an accommodation, and instead of engaging in an interactive process with Complainant to explore this, the Agency simply ignored this avenue. Finally, the EEOC held that the Agency failed to engage in good faith efforts to provide Complainant with an effective reasonable accommodation. The Agency was ordered, among other things, to take the necessary steps to immediately provide Complainant with a reasonable accommodation If Complainant was still employed by the Agency, reimburse any annual leave or non-paid leave taken by Complainant because of the Agency’s failure to provide him with a reasonable accommodation, and investigate his claim for compensatory damages. The EEOC found that Complainant failed to prove additional claims of retaliation. Bryce A. v. Export-Import Bank, EEOC Appeal No. 2019004342 (Sept. 23, 2021).

Denial of Reasonable Accommodation Found. The EEOC found that the Agency denied Complainant a reasonable accommodation in violation of the Rehabilitation Act. Complainant frequently requested telework as a reasonable accommodation. The record was clear that, after the Agency denied Complainant’s request for telework, Complainant then asked for a reassignment to a position that would allow her to telework and her supervisor agreed to allow a reassignment if a position could be located. The Agency did not search for a reassignment, because Agency officials believed Complainant would be able to compete for vacancies at the sub-agency due to the operation of its preference policies. The EEOC determined, however, that there was no evidence that the Agency attempted to identify vacant positions to which Complainant could be reassigned or confirm whether the Indian Preference policy would actually prevent a reassignment. While Complainant identified several positions for reassignment in another subcomponent of the Agency, the Agency indicated it lacked the policies and procedures necessary to effectuate a reassignment from one operating component to another, and took the position that it was Complainant’s responsibility to obtain and secure her own reassignment to another operating subcomponent. The EEOC found that the Agency had not shown that reassigning Complainant posed an undue hardship and its failure to engage in a good faith search for a reassignment was a violation of the Rehabilitation Act. The EEOC found that Complainant failed to prove additional claims of harassment and disparate treatment discrimination. The Agency was ordered, among other things, to conduct a supplemental investigation on compensatory damages, and provide appropriate training to the responsible management officials. Shanti N. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019004882 (Sept. 14, 2021).

Denial of Reasonable Accommodation Found. During the relevant time, Complainant worked as a Food Inspector, and developed asthma with acute exacerbation due to the chemicals in the work environment. Immediately following his diagnosis, Complainant submitted a doctor’s note to the Agency and a worker’s compensation claim. The Agency then removed Complainant from the work room floor, escorted him out of the plant, and failed to engage in the interactive process. Complainant requested the use of a respirator/mask as recommended by his physician, which would protect him from inhaling the chemical irritants and allow him to return to work. The Agency denied the request stating there was no evidence of significant inhalation exposure to any of the employees at the facility. Complainant made additional attempts to obtain the recommended respirator as a reasonable accommodation. Instead, the Agency offered Complainant a different respirator, which was ineffective as it did not filter chemical gases and vapors. The Agency argued that permitting Complainant the use of his recommended respirator would create an undue burden, citing speculative safe concerns and compliance with OSHA standards. On appeal, the EEOC concluded that the Agency failed to make good faith efforts to provide Complainant with a reasonable accommodation. The Agency did not establish that providing Complainant with the physician-recommended respirator would be ineffective or that it was an undue hardship. Its professed safety concerns could have been easily addressed by testing the respirator and engaging in the interactive process with Complainant. The Agency failed to also consider alternative reasonable accommodations such as the use of a fume hood or cabinet. Therefore, the Agency violated the Rehabilitation Act when it failed to provide Complainant with an effective reasonable accommodation. The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide appropriate training for the responsible management officials. Tyson A. v. Dep’t of Agric., EEOC Appeal No. 2020000972 (Aug. 16, 2021).

EEOC Found Complainant Subjected to Harassment Based on Disability. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him and subjected him to harassment on the bases of disability (left-hand amputee) when the Director mimicked his physical disability during a safety re-enactment meeting. An AJ issued a decision by summary judgment in favor of the Agency, and the EEOC modified the decision on appeal. While the EEOC found that summary judgment was appropriate because no genuine dispute of material fact existed, the EEOC concluded that the AJ erred in finding in favor of the Agency, as the record reflected that Complainant was subjected to a hostile work environment. The Director did not dispute that he mimicked Complainant’s disability when he demonstrated a safety inspection as though he had no left hand, in front of other employees. Further, when Complainant approached the Director and asked him not to mimic his disability, the Director responded in an intimidating and abrasive manner. Complainant was so humiliated by the Director’s conduct that he communicated to the Deputy Director, among others, that he no longer wished to attend meetings where the Director would be present. EEOC noted that, rather than immediately addressing Complainant’s request and concerns of a hostile work environment, the Agency generated meeting minutes that stated Complainant did not want to attend a meeting because he did not want to meet with management. Moreover, Complainant received emails accusing him of having a conflict with management. EEOC found that the Agency was liable for the harassment, because it failed to take immediate and appropriate corrective action. EEOC ordered the Agency to, among other things, provide Complainant with proven compensatory damages and to take all necessary steps to ensure that Complainant has no contact with the Director. Damon Q. v. Dep’t of Def., EEOC Appeal No. 2020003388 (Aug. 9, 2021).

EEOC Affirmed AJ’s Findings of Disability Discrimination, Denial of Reasonable Accommodation, and Harassment. Complainant began working for the Agency as an Engineering Technician in January 2014, and sustained an on-the-job injury in July 2014. Complainant began a series of appointments with medical specialists, several at significant distance from his home, for symptoms indicating an exacerbation of his neurological condition. During his absence from work, Complainant and his wife were in consistent communication with Agency management regarding his absences and deteriorating health. Complainant believed he was on approved leave without pay (LWOP). However, in October 2014, management terminated his employment. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of his disability and prior EEO activity when it denied his requests for reasonable accommodation in the form of telework and/or extended use of LWOP, terminated his employment, and subjected him to a hostile work environment.

Following a hearing an AJ found that the Agency discriminated against Complainant as alleged and subjected Complainant to a hostile work environment harassment and retaliation. The EEOC affirmed the AJ’s finding on appeal. The record showed that Complainant was a qualified individual with a disability, and, as such, the Agency had an obligation to provide him with reasonable accommodation absent an undue hardship. While it appeared that Agency officials made various attempts to engage in an interactive process with Complainant, the Agency failed to show that granting the reasonable accommodation of LWOP would have caused an undue hardship. While the Agency initially granted Complainant LWOP, it subsequently amended his timesheets to place him in Absent-Without-Leave status, and then terminated him as a result. The EEOC also found that Complainant was subjected to disparate treatment based on his disability and reprisal. Finally, the EEOC affirmed the AJ’s finding that Complainant was subjected to a hostile work environment when management continued to make demands on Complainant and threaten him with disciplinary action knowing that Complainant was seeking treatment for his medical condition. The EEOC modified the AJ’s remedial relief by awarding backpay, finding that Complainant had, in fact, mitigated damages by working at his family business in lieu of finding other interim employment. The EEOC also determined that an award of compensatory damages of $100,000 was more appropriately to compensate Complainant for the nature, severity, and duration of harm experienced as a result of the Agency’s unlawful actions. Complainant’s attorney’s fees and cost were also adjusted upwards. Kyle S. v. Dep’t of Agric., EEOC Appeal No. 2019005694 (July 26, 2021).

Denial of Reasonable Accommodation Found. The EEOC found that the Agency unlawfully denied Complainant a reasonable accommodation when it refused her request to bring her medical alert dog to work. Complainant experienced atrial fibrillation (a-fib), had had strokes, and was at risk of having additional strokes. She provided medical documentation in which her physician recommended the use of an a-fib detection dog and noted that Complainant’s dog was alerting her to a-fib episodes approximately every two weeks. The EEOC found that the Agency did not offer Complainant an effective alternative accommodation when it suggested that Complainant take leave or use a personal monitoring device. It is not an effective accommodation to require an employee to take leave when another accommodation would enable the employee to continue working, and it is not the Agency's role to dictate what type of assistive or monitoring device an employee uses. The EEOC also found that the Agency did not establish that providing the requested accommodation would have resulted in an undue hardship. The Agency representatives observed Complainant and her dog in the workplace, and nothing in the letter denying Complainant's request stated that having the dog in the workplace would have caused any difficulty or that the Agency would have incurred any costs. Given the nearly 10-month delay between Complainant's request and the Agency's decision, the EEOC found that the Agency failed to make good-faith efforts to provide a reasonable accommodation and that Complainant was entitled to compensatory damages. The Agency was ordered, among other things, to grant Complainant’s request to bring her medical alert dog to work, and investigate her claim for damages. Thersa E. v. U.S. Postal Serv., EEOC Appeal No. 0120182764 (June 23, 2021).

Improper Medical Inquiry. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability when it subjected him to unduly burdensome medical assessments that resulted in his being terminated from his employment with a federal contractor. Complainant was employed with a federal contractor as a Court Security Officer (CSO) for the Agency’s U.S. Marshals Service. During a required annual medical examination, the Agency learned that Complainant had diabetes. A Federal Occupational Health (FOH) physician subsequently concluded that, because Complainant was diabetic, he must be further examined by his physician and provide specific information about his condition.  Complainant’s physician provided a report stating that Complainant did not require medication at that time, and his borderline Type II Diabetes should not impair his ability to perform his job. Complainant also provided some of the additional requested medical information.  The federal contractor subsequently terminated Complainant on the grounds that he failed to provide all required medical documentation requested by the Agency.

On appeal, the EEOC found that the Agency violated the Rehabilitation Act by subjecting Complainant to improper, excessive medical inquiries and examinations solely because he was diabetic. By stating that law enforcement personnel with diabetes should be automatically subjected to medical inquiries/examinations, the Agency relied on the type of generalized stereotypes forbidden by the Rehabilitation Act. The Rehabilitation Act requires that medical inquiries and examinations be based on individualized assessments of employees’ ability to perform the essential functions of their positions.  Additionally, by delegating the decision to request medical information and examinations to FOH, which would not clear Complainant to continue working until he provided all requested medical information, the Agency’s improper medical inquiry directly caused Complainant’s termination. The Agency was ordered, among other things, to offer Complainant conditional reinstatement to his former position or a substantially equivalent position with appropriate back pay and benefits, and investigate Complainant’s claim for compensatory damages. Salvatore K. v. Dep’t of Justice, EEOC Appeal No. 0120182095 (Jun. 23, 2021).

EEOC Affirmed AJ’s Finding that Agency Violated Rehabilitation Act When It Delayed Providing Complainant Reasonable Accommodation. The EEOC affirmed the AJ’s finding of disability discrimination when the Agency failed to reasonably accommodate complainant for a four-month period. Complainant’s physician had recommended that she use specific ergonomic equipment to relieve the symptoms of her disability, including tingling sensations while typing and severe pain. These devices included a special mouse, a professional talk-to-type program, an ergonomic workstation, an adjustable chair, and an ergonomic keyboard. Complainant submitted a reasonable accommodation request, but the Agency did not order the equipment until three months later, despite Complainant providing the Agency with the ergonomic assessment and a detailed description of the equipment and information on where it could be purchased. Complaint alleged and the AJ found that because of the delay her pain increased, and she lost the ability to type with her right hand and use a computer mouse. Complainant went on medical leave due to extreme pain resulting from the lack of the requested equipment. The EEOC found that the delays were unnecessary, violated the Agency’s responsibility to expeditiously respond to a request for reasonable accommodation, and demonstrated a lack of good faith in the Agency’s accommodation efforts. The EEOC reduced the AJ’s nonpecuniary compensatory damages award to $100,000, however, because the record showed that there were other contributing factors to Complainant’s decline, specifically, obsessive compulsive disorder and a continuous custody battle with her ex-husband. Susan B. v. Dep’t of the Army, EEOC Appeal No. 2020001632 (June. 16, 2021).

EEOC Found Denial of Reasonable Accommodation. Complainant alleged the Agency discriminated against him based on disability (hearing impaired) when it did not provide him with a certified interpreter at the kickoff meeting for the Combined Federal Campaign (CFC). Complainant only briefly attended the CFC meeting because no sign language interpreter was present. Complainant stated management officials apologized to him for not providing an interpreter explaining that “their staffs [were] new.” The Human Resources Manager knew of the requirement to provide interpreters for deaf employees for any presentations, but said that the CFC coordinators were responsible for obtaining an interpreter and should have requested assistance from Human Resources. The Manager acknowledged that she had failed to remind them of the requirement, and that it was her responsibility. The Agency arranged a “make-up” CFC meeting for hearing impaired employees, but there were no keynote speakers, and no Managers present. While the CFC representative did attend, the hearing impaired employees felt “marginalized, minimized, and segregated,” and recognized that they lost the opportunity to network and be part of the larger workforce. The EEOC found that even though Complainant did not request an interpreter for the CFC kick off meeting, Agency management was aware that he would always need an interpreter for any and all meetings. The EEOC stated that for a severely hearing impaired employee who can sign, reasonable accommodation, at a minimum, requires providing an interpreter whether or not the employee asks for an interpreter. Therefore, the EEOC found the Agency’s failure to provide Complainant with interpreter services clearly constituted a lack of good faith and Complainant was entitled to present a claim for compensatory damages. Lamar M. v. U.S. Postal Serv., EEOC Appeal No. 2019005929 (June 15, 2021).

Denial of Reasonable Accommodation Found. The EEOC found that the Agency failed to reasonably accommodate Complainant. Complainant, who has a hearing impairment, alleged the denial of an effective reasonable accommodation when the Agency failed to provide effective interpreter services during a Combined Federal Campaign (CFC) event and an emergency meeting concerning COVID-19. Agency managers acknowledged that they did not provide Complainant with a sign language interpreter during the CFC event. Further, the EEOC found that providing an interpreter during a second CFC event failed to qualify as an effective accommodation, because it lacked the charity representatives from the first event and did not make up for Complainant’s inability to engage in the discussions and interactions at the original event. As to the emergency meeting, the Agency failed to avail itself of Video Remote Interpreting (VRI), or Video Relay Service (VRS), which were effective alternatives to live sign language interpreter services and were feasible and readily available for this facility. The EEOC also found the Agency did not act in good faith, as this facility had a record and history of denying hearing-impaired persons accommodation. The EEOC stated that the Agency’s guidelines for providing communication accommodations were defective because they failed to require the Agency to provide effective alternatives during emergency meetings or when cancellations of live sign language interpreters occur. The EEOC ordered the Agency, among other things, to update its guidelines, as well as immediately ensure that Complainant is provided with a qualified sign language interpreter when required. Darius C. v. U.S. Postal Serv., EEOC Appeal Nos. 2020000613 & 2021001698 (May 24, 2021).

Improper Disclosure of Medical Information. An AJ issued a decision by summary judgment finding that Complainant failed to prove his various claims of national origin discrimination and reprisal. The EEOC affirmed the AJ’s issuance of a decision on summary judgment, and findings as to 10 of the claims. The EEOC, however, found that the Agency violated the Rehabilitation Act when a Supervisor disclosed Complainant’s confidential medical information. The Supervisor acknowledged sending an email to 118 employees, including both managers and employees in which he mentioned Complainant’s rapid heartbeat and tightness in his chest. The Supervisor also stated that not all recipients needed to know the information, and he was aware that such information needed to be disclosed only on a “need-to-know” basis. While the disclosure was inadvertent, the EEOC concluded that the action constituted a violation of the Rehabilitation Act. The Agency was ordered, among other things, to investigate Complainant’s entitlement to damages. Alan N. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020001528 (Apr. 8, 2021), request for reconsideration denied EEOC Request No. 2021003175 (Dec. 20, 2021).

Agency Improperly Disclosed Medical Information. Complainant filed a formal complaint alleging, among other things, disability discrimination. On appeal, the EEOC found that the Agency violated the Rehabilitation Act when it improperly disclosed Complainant’s confidential medical information. It was undisputed that the Agency’s Attorney Advisor forwarded two documents to a management official that included references to Complainant’s medical history and diagnosis. The EEOC noted that supervisors and managers may be provided information regarding necessary restrictions and accommodations needed by an employee. In this case, however, there was no dispute that the Attorney Advisor also informed the official of Complainant’s specific diagnosis, and the Agency did not show that the official needed to know that information. The official in question stated that he did not participate in granting or processing requests for reasonable accommodation. In addition, the union representative confirmed that the official mentioned Complainant’s diagnosis to him, and the official stated that he did not believe Complainant’s accommodation was medically necessary. Therefore, the EEOC found that the Attorney Advisor and the official improperly disclosed Complainant’s medical information. The Agency was ordered, among other things, to pay Complainant $3,000 in proven nonpecuniary damages. The EEOC affirmed the Agency’s finding of no discrimination or harassment regarding the remaining claims. Heidi E. v. Soc. Sec. Admin., EEOC Appeal No. 2020002437 (Mar. 2, 2021); request for reconsideration denied, EEOC Request No. 2021002730 (Sept. 21, 2021).

Denial of Reasonable Accommodation Found. Complainant alleged that the Agency failed to provide him with an effective accommodation for his disability (paralysis in left arm) in the form of assistive computer technology. An AJ found that Complainant established a violation of the Rehabilitation Act when the Agency failed to accommodate Complainant’s disability for a period of two years, and the EEOC affirmed the AJ’s findings. The EEOC found that Complainant was a qualified individual with a disability, and the Agency failed to satisfy its ongoing obligation to provide Complainant with an effective accommodation. Specifically, the AJ correctly determined that the Agency failed to provide Complainant with an effective accommodation over a two-year period after the Dragon software installed on Complainant’s computer did not allow him to complete the essential functions of his position. The Agency failed to explain why it did not immediately procure a better laptop capable of supporting the necessary software while running Dragon, and also made inadequate efforts, despite repeated requests from Complainant, to explore alternate accommodations. The EEOC found that the AJ’s award of $75,000 in nonpecuniary compensatory damages was reasonable given the emotional and physical harm Complainant suffered due to denial of accommodation. The Agency was ordered, among other things, to determine, with Complainant’s participation, what effective accommodation would allow Complainant to effectively perform the essential functions of his job. Kristopher M. v. Dep’t of the Treasury, EEOC Appeal No. 2019001911 (Mar. 3, 2020).

Agency Improperly Disclosed Medical Information. Complainant filed an EEO complaint alleging, among other things, that her second-level supervisor (S2) disclosed information about her medical condition and reasonable accommodation request to a union official who was not representing her in any capacity. On appeal, the EEOC found that S2 disclosed Complainant’s personal medical information without justification to an individual without a need to know. Two witnesses who were present at the meeting in question stated, under oath, that S2 discussed Complainant’s medical condition and reasonable accommodation without prompting. While a third individual stated that Complainant’s medical information was not discussed, another witness stated, under oath and without contradiction, that the third individual left the meeting before S2 began talking about Complainant. The Agency was ordered, among other things, to conduct a supplemental investigation into Complainant’s entitlement to compensatory damages, provide EEO training to S2, and consider disciplining S2. The EEOC affirmed the finding of no discrimination or harassment regarding additional claims. Alice S. v. Dep’t of Def., EEOC Appeal No. 2020000391 (Feb. 11, 2021).

Denial of Reasonable Accommodation and Discriminatory Termination Found. Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against her based on her disability (epilepsy) when it failed to provide her with reasonable accommodation and terminated her employment. Specifically, the Agency denied Complainant’s requests for a consistent daytime work schedule, and ultimately terminated her employment. On appeal, the EEOC found that the Agency’s actions violated the Rehabilitation Act. Medical documentation showed that Complainant’s epilepsy affects her concentration and attention, and can alter her level of consciousness, alertness and ability to drive. In addition, Complainant was qualified for her position, as confirmed by an Agency Human Resources official. Complainant’s request for an accommodation was initially denied by the Postmaster, and then again by the Agency’s District Reasonable Accommodation Committee (DRAC). The EEOC found that the offer of a position at another facility was not an offer of a reassignment because the Agency only informed Complainant that the position was “going to be posted,” and it did not offer to place Complainant into the position. The Agency stated that a reassignment search was conducted and that it found no vacant positions within Complainant’s commuting area and medical restrictions. The Agency, however, did not provide evidence that it conducted an agency-wide search for vacant, funded positions. Further, Complainant provided a list of 10 vacant positions in February 2018. The Agency did not offer any arguments or evidence that these available positions would not have allowed Complainant to work a daytime shift, or that placing Complainant into one of these positions would have been an undue hardship. Therefore, the EEOC found that the Agency violated the Rehabilitation Act when it denied her request for a schedule change and did not offer her a reassignment to a vacant funded position. The EEOC also found that the Agency violated the Rehabilitation Act when it terminated Complainant’s employment instead of providing a reasonable accommodation. The Agency was ordered, among other things, to offer to reinstate Complainant to her former position, or an equivalent position at a facility that can provide her with a consistent daytime work schedule, pay Complainant appropriate back pay and benefits, and investigate Complainant’s claim for damages. Mirta Z. v. U.S. Postal Serv., EEOC Appeal No. 2020000383 (Jan. 28, 2021).

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 EEOC 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 EEOC 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 EEOC 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 EEOC 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 EEOC 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 EEOC 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 EEOC 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 Title VII

Racial Harassment Found. Complainant, a Registered Nurse, alleged, among other things, that she was subjected to harassment and a hostile work environment on the basis of race. Specifically, Complainant stated that Management failed to take appropriate action after she reported that a resident’s wife (RW) and other family members made racially charged statements and otherwise harassed her while she was working. An AJ found that a hearing was not warranted on the matter, because Complainant could not show that some of the incidents occurred, and the Agency took immediate and appropriate corrective action when it spoke with RW and emphasized that RW should treat employees in a courteous manner. On appeal, the EEOC concluded that the AJ’s decision to grant summary judgment in favor of the Agency was inappropriate, and that the record was sufficiently developed to find the Agency liable for subjecting Complainant to a hostile work environment. The patient’s family members, particularly his wife RW and daughter (RD), referred to Complainant and other staff as “the help” or “house staff,” an allusion to slavery terminology in the United States. Complainant notified management that RW said, among other things, “[my husband] is white and he comes first” regarding daily care and RW constantly instructed Complainant on how to perform her job. Complainant indicated that the racially charged language was ongoing, and the family members exhibited a heightened expectation of deference from Complainant, which Agency managers appeared to tolerate, and even reinforce. Complainant offered multiple examples of how this reinforced expectation of deference both encouraged harassing behavior by the family members and undermined Complainant. The record was devoid of evidence to support management’s assertion that it took actions to address the situation, and the record lacked statements from any of the attendees at the alleged meetings. Further, the harassment continued, and management’s ineffective response violated the Agency’s own Anti-Harassment Policy, supporting Complainant’s assertion that management fostered a culture of tolerance with respect to harassment by a patient’s family members. Management’s actions failed to satisfy the Agency’s obligation to protect Complainant from harassment, as they were neither “immediate” nor “appropriate.” The EEOC has held that an agency has a duty to protect its employees from non-employee harassment. Thus, the EEOC found that the Agency was liable for the racial harassment in this case. The EEOC affirmed the AJ’s finding of no retaliation with regard to a separate claim. The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages, and provide training for the named management officials. Caroline B. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020000978 (Sept. 16, 2021).

EEOC Found Sex Discrimination and Hostile Work Environment. Complainant alleged, among other things, that the Agency discriminated against her on the basis of sex (pregnancy) when her work responsibilities were altered, and she was subjected to a hostile work environment, including inappropriate comments and being excluded from meetings and emails. On appeal, the EEOC found that Complainant was discriminated against as alleged. Despite the Agency’s assertion to the contrary, the record showed that Complainant’s work duties were altered due to her pregnancy. Further, the Agency conceded in its final decision that Complainant established that she was subjected to unwelcome conduct based on her sex, and the actions were sufficiently severe or pervasive to establish a hostile work environment. The EEOC rejected the Agency’s argument that Complainant failed to establish that it was liable for a hostile work environment, stated that the affirmative defense was not available given that the supervisor’s actions culminated in a tangible employment action, i.e., changes in Complainant’s work duties. Moreover, even if there was no tangible employment action, the EEOC found that the Agency failed to take prompt and effective action when it was notified of the harassment by Complainant’s supervisor. The EEOC acknowledged that the Agency initiated an informal investigation, counseled the supervisor, and instituted a “carve-out” for evaluation purposes. The EEOC concluded, however, that those actions were insufficient to meet the Agency’s full responsibility to take appropriate corrective action because the Agency failed to fully remove the supervisor from authority over Complainant. The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide the supervisor with appropriate training. Cecille W. v. Dep’t of State, EEOC Appeal No. 2019001540 (Aug. 19, 2021).

Sex Discrimination Found Regarding Denial of Overtime. Complainant alleged, among other things, that the Agency discriminated against her on the bases of sex when it denied her the opportunity to work overtime. On appeal, the EEOC found that Complainant was discriminated against as alleged. Complainant was not selected for overtime, even though she made management aware that she was interested, and male coworkers were given the opportunity to work overtime. While the Agency articulated a legitimate, nondiscriminatory reason for denying Complainant overtime, that is the needed approval of the front office, the EEOC found that the Agency’s reason was pretext for discrimination. The Director specifically denied the need for any front desk involvement, and stated she did not know what that meant. The record contained witness affidavits supporting Complainant’s claim. The EEOC affirmed the Agency’s finding of no discrimination with regard to an additional claim. The Agency was ordered, among other things, to investigate Complainant’s entitlement to backpay and compensatory damages. Eleni M. v. Department of Veterans Aff., EEOC Appeal No. 0120182429 (Aug. 6, 2020).

Complainant Subjected to Hostile Work Environment Based on Sexual Orientation. Complainant alleged harassment on the basis of sexual orientation, including a coworker (C1) threatening to sue her for slander. Complainant asserted that C1 also commented that Complainant should work in another area because there were more gay people there, had a “sense of entitlement,” could not “play the gay card,” and the town was “not ready for this” referring to Complainant’s sexual orientation. Complainant stated that her supervisor told her that he already knew that she was lesbian because C1 had looked her up online, and the supervisor did not do anything about C1’s comments because he was afraid to lose his job. On appeal, the EEOC found that the sufficiently pervasive negative comments about Complainant’s sexual orientation poisoned the work environment before she arrived, creating a hostile work environment and severely altering the terms of her employment. Complainant repeatedly asked various management officials for help with the situation, but her only recourse was to request a transfer to a different location when various investigations did not alter the hostile work environment. The EEOC found that a reasonable person would find this harassment was sufficiently severe or pervasive to constitute a hostile work environment. The EEOC concluded that the Agency failed to take immediate, effective action and imputed liability to the Agency for the C1’s harassment. The supervisor was aware of the behavior and did nothing about it. Further, while an investigation was initiated, it was mistakenly stopped and produced no results when Complainant filed her EEO complaint. Other than allowing Complainant to transfer away after months of harassment, the Agency took no corrective action. The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and restore any paid leave or compensate Complainant for unpaid leave used as a result of the discrimination. Lynne E. v. Dep’t of Veterans Aff., EEOC Appeal No. 0120170202 (June 17, 2021).

EEOC Found Complainant Subjected to Hostile Work Environment Based on Sex (Sexual Orientation). Complainant, a Supervisory Health System Specialist, filed an EEO complaint alleging, among other things, that the Agency discriminated against and subjected him to a hostile work environment on the basis of sex (male, sexual orientation). Specifically, Complainant asserted that management permitted and/or failed to address verbally abusive comments, insults, name calling (specifically referring to Complainant using a degrading sex-based epithet), ridicule, and insubordination from Complainant’s subordinate (E1) over a nearly two-year period. On appeal, the EEOC found that Complainant was subjected to a hostile work environment as alleged. The EEOC found that the Agency knew of the conduct at issue and management officials did not take prompt and effective action once they became aware of E1’s conduct. Instead, management officials placed the onus on Complainant to discipline the employee or file an EEO complaint. The record indicated that Complainant had reported his concerns to the Deputy Director verbally and in writing, who did nothing to address the conduct. Additionally, the inadequate responses from Complainant’s managers likely emboldened E1 to continue harassing Complainant, diminishing his authority as her supervisor and heightening the severity of the alleged incidents. Finally, the EEOC found that the Agency’s Workplace Anti-Harassment Policy Statement failed to effectively communicate EEO policies and procedures because it did not clearly establish the complaint procedure or ensure confidentiality to the extent possible. The Agency was ordered, among other things, to investigate Complainant’s claim for damages and provide appropriate training to the responsible management officials. Foster B. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019005682 (Apr. 12, 2021).

Agency Found Liable for Hostile Work Environment Based on Sex. Complainant alleged, among other things, that she was subjected to a harassment on the basis of sex (female, sexual orientation). The Agency found that Complainant was subjected to a hostile work environment on the basis of sex when a named coworker harassed her because of her sexual orientation, but that management took appropriate action upon learning of the harassment. According to the record, Complainant’s coworkers spread rumors that Complainant was involved in a relationship with a female coworker. The rumors continued for over two years. In addition, one specific coworker repeatedly made offensive comments regarding Complainant’s sexuality. After Complainant’s supervisors learned of the harassment, they expressed concern about the time Complainant spent with the coworker, and began taking actions against Complainant based on perceptions of Complainant’s sexual orientation and relationship with her coworker. Complainant’s supervisors reprimanded her and constantly moved her away from the coworker with whom she was alleged to be engaged in a relationship. The EEOC determined that the Agency was liable for the harassment by both the coworkers and Complainant’s supervisors, because Complainant told management about the coworkers’ harassment and they did not adequately address the situation. Despite being aware of the harassment, the supervisors did not effectively act to address the situation when they learned of the named coworker’s comment or the rumors. The supervisors did not separate Complainant from the alleged harassers, investigate the allegations, nor discipline the alleged harassers. There was no indication that any supervisory official took action to stop the rumors once they were brought to their attention. In fact, the evidence showed that the supervisors also spread the rumors and took tangible employment actions against Complainant. As a result, the EEOC found that the Agency was liable for the harassment by both the coworkers and supervisors. The Agency was ordered, among other things, to immediately take steps to ensure that all sexual harassment cease in Complainant’s facility, expunge any reference to the reprimands Complainant received for socializing with the coworker from all of Complainant’s records, and investigate Complainant’s claim for damages. Thomasina B. v. Dep’t of Def., EEOC Appeal No. 0120141298 (Feb. 9, 2021); request for reconsideration granted, EEOC Request No. 2021002395 (June 9, 2021) (granting request for reconsideration and modifying appellate decision to narrow the training requirement ordered in the appellate decision).

Hostile Work Environment and Sex-Based Discrimination Found. Both Complainants worked as International Broadcasters for the Agency’s International Broadcasting Bureau, Voice of America (VOA). Complainants filed separate EEO complaints alleging, among other things, that the Agency subjected them to a hostile work environment and discrimination based on sex, including denying them promotions, and modifying their television anchor duties. At the conclusion of the investigations for both complaints, the Agency issued two separate decisions which both concluded that Complainants failed to prove their claims. The EEOC consolidated the matters on appeal, given that the underlying facts were the same in both complaints. The EEOC determined that Complainants both established a prima facie case of discrimination based on sex because they were replaced by male anchors, and all the recipients of the promotion were males. The EEOC then found that the Agency failed to meet its burden to articulate legitimate, nondiscriminatory reasons for its decisions. Several responsible management officials failed to provide detailed and supported statements regarding the removal of anchor duties and the denial of promotions. For example, one of the responsible management officials repeatedly provided vague statements that were often not supported by the record, or provided statements that were refuted and/or contradicted by other management officials. Moreover, when given several opportunities to clarify his statements by the EEO Investigator, the official failed to substantively respond. The EEOC stated that, even if it determined that the Agency’s explanation was sufficient to meet its burden, Complainants still established, by a preponderance of the evidence, that the Agency's explanations were pretextual. The Agency was ordered, among other things, to retroactively promote Complainants with appropriate back pay and benefits, reinstate pertinent television and/or radio duties, investigate Complainants’ claims for compensatory damages, and provide training to the responsible management officials. Madlyn F. & Lashawn C. v. U.S. Agency for Global Media, EEOC Appeal Nos. 2019005498 & 2020003512 (Feb. 9, 2021).

Sexual Orientation Discrimination Found Regarding Non-Selection. Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his sexual orientation when it did not select him for an Assistant Fire Operations Supervisor position in 2014. Complainant stated that rumors began spreading about his sexual orientation shortly after he began working for the Agency in 2001. Although his application was referred to the Selecting Official (S2) for further consideration, S2 selected three other candidates. When Complainant asked S2 why he was not offered a second-round interview, S2 responded that reference-checking revealed issues with Complainant’s communication and supervisory skills. On appeal, the EEOC noted that the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. ---, 140 S. Ct. 1731 (2020), held that discrimination based on sexual orientation or transgender status violates Title VII’s prohibition on discrimination because of sex. The EEOC then found that Complainant established that the Agency’s proffered explanation for not selecting him was pretextual. S2 chose four individuals to evaluate the application materials and conduct first-round interviews, and specifically instructed the panel to narrow the field to six or seven candidates. When Complainant was ranked first of the seven recommended candidates, S2 then decided to expand the field to 12 candidates for “diversity” purposes because there were three vacancies, even though there had been three vacancies throughout the hiring process.

Moreover, the Agency deviated from standard procedure without explanation in weighting references such that each reference check was worth more points than the scores from the first-round interview and the application materials combined, essentially negating the extensive work of the panel. By weighting the references so highly, Complainant slipped from the top-ranked candidate to the eighth-ranked candidate and did not make the cut for a second-round interview. In contrast, a candidate who was not recommended by the panel was afforded a second interview despite having less experience than Complainant. Complainant also had more experience than the other two selectees. Further, the Agency failed to contact any of the references listed on Complainant’s application, including his former first-line supervisors. Although it was logical to consult Complainant’s current first-line supervisor, the EEOC found it strained credulity that others who had only supervised Complainant sporadically and indirectly could provide more relevant information than his former supervisors. Additionally, the negative references provided were not supported by Complainant’s positive performance evaluation, which was issued by S1 approximately one month before the negative references, and were directly contradicted by the testimony of his prior supervisors. Therefore, the EEOC concluded that the Agency’s articulated reason for not selecting Complainant was unworthy of credence and a pretext for discrimination. The Agency was ordered, among other things, to offer Complainant the position, or a substantially equivalent position with appropriate back pay and benefits, and investigate his claim for damages. Bart M. v. Dep’t of the Interior, EEOC Appeal No. 0120160543 (Jan. 14, 2021).

Denial of Religious Accommodation Found. Complainant, a Supervisory Chaplain at a Federal Corrections Institution, filed a formal EEO complaint alleging, among other things, discrimination on the basis of religion (Oneness Pentecostal (Pacifist)) when the Agency denied his request for religious accommodation. Specifically, Complainant requested an exemption from an Agency policy requiring certain employees to carry a form of pepper spray while on duty. Complainant asserted that, according to his religious beliefs, he could not carry a weapon for offensive or defensive purposes. The Agency contended that granting the religious accommodation would pose an undue hardship, because it would have a “significant impact” on facility operations by reducing the number of staff members on duty who could respond to an emergency. Accordingly, the Agency denied Complainant’s request for religious accommodation. However, approximately five months later, the Agency granted Complainant’s request. On appeal, the EEOC held that the Agency discriminated against Complainant with respect to its original denial of a religious accommodation, finding that the Agency did not meet its burden to show an undue hardship. Specifically, the Agency failed to show how exempting one employee out of approximately 300 would significantly impact its operations during an emergency. According to the record, there were other employees who worked with Complainant in the chapel and who would have pepper spray. Based on the EEOC’s finding, the Agency was ordered to conduct a supplemental investigation into Complainant’s claim for compensatory damages and provide appropriate remedial EEO training for the responsible management officials. The EEOC affirmed the Agency’s finding that Complainant failed to establish his claim of retaliatory harassment. Frances A. v. Dep’t of Justice, EEOC Appeal No. 2019004187 (Nov. 30, 2020).

Under Multiple Bases

EEOC Affirmed AJ’s Finding of Age and Reprisal Discrimination and Harassment. An AJ issued a decision finding that the Agency discriminated against Complainant based on his age and in reprisal for prior EEO activity when it did not select him for a Division Manager position and subjected him to a hostile work environment, including a successful effort to thwart his bid for promotion and efforts to have him disciplined or fired. The EEOC affirmed the AJ’s decision on appeal. The record established that the responsible management official (RMO1) harbored a bias against Complainant and two other older men who reported to her. Prior to Complainant’s non-promotion, Complainant and the two male coworkers had lodged numerous specific and detailed allegations against RMO1, including one that was submitted 12 days before the vacancy at issue was announced. RMO1 thus knew of Complainant’s prior EEO activity when he applied for and was not selected for the position, and RMO1’s testimony to the contrary was not credible. RMO1 injected herself into and carefully guided the selection process to Complainant’s detriment. The AJ concluded that the interview process was problematic and unreliable, and Complainant’s qualifications were plainly superior to those of the selectee. Regarding the harassment claim, the AJ concluded that Complainant was subjected to retaliatory harassment by RMO1, pointing out that a non-promotion was a tangible employment action, rendering the Agency vicariously liable for the unlawful harassment of its supervisors. In addition, Complainant was subjected to further acts of retaliatory harassment after filing the instant EEO complaint, when RMO1 launched a campaign to get him fired, including combing through Complainant’s time and attendance and leave records trying to find errors, and pushing Complainant’s supervisor to discipline him. The AJ concluded that RMO1’s actions were so harmful as to dissuade a reasonable person from making or supporting a claim of discrimination. The EEOC concluded that substantial evidence of record supported the AJ’s determinations that Complainant had been discriminated against on the bases of age and reprisal and subjected to a hostile work environment for which the Agency was liable. The EEOC also found that the relief awarded by the AJ, including, among other things, back pay and benefits, past pecuniary damages, and $300,000 in nonpecuniary damages, was supported by the record. Miquel G. v. Dep’t of Transp., EEOC Appeal No. 2019002129 (Sept. 23, 2021).

Denial of Accommodation and Reprisal. The record reflected that Complainant informed multiple management officials that she was provided with duties outside of her medical restrictions, but no action was taken to address Complainant’s concerns. In fact, management threatened to send Complainant home. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on disability and in reprisal for prior EEO activity. An AJ issued a decision without a hearing in favor of the Agency finding no discrimination. On appeal, the EEOC found that Complainant was denied reasonable accommodation for her disability when she was made to work outside of her medical restrictions and subjected to reprisal for attempting to exercise her rights under the Rehabilitation Act. The record was clear that Complainant was an individual with a disability, and the Agency believed Complainant could perform the essential functions of her job with accommodation. Further, management required Complainant to perform certain functions that required her to walk in excess of her medical restrictions, and warned Complainant she would be sent home if she could not do the work. Management made no effort to address Complainant’s concerns, and instead retaliated against her for exercising her right to seek an accommodation. The Agency was ordered, among other things, to ensure Complainant was provided with a reasonable accommodation, and investigate her claim for damages. Marleen G. v. U.S. Postal Serv., EEOC Appeal No. 2020003464 (Sept. 7, 2021).

Agency Denied Complainant Reasonable Accommodation and Retaliated Against Him. Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against him on the bases on disability (deafness/perceived disability of tumor), and in reprisal for protected EEO activity when it denied Complainant’s request for reasonable accommodations and terminated his employment. On appeal, the EEOC found that Complainant was discriminated against on the basis of disability when the Agency denied his request for reasonable accommodation and retaliated against when the Agency terminated Complainant’s employment during his probationary period. Regarding the reasonable accommodation claim, EEOC found that Complainant was a qualified individual with a disability, and that the Agency failed to accommodate him when it did not provide a requested sign language interpreter for meetings with his supervisor (S1) either in-person or through a video relay service. EEOC also found that Complainant engaged in protected EEO activity when he requested an accommodation, and he was subsequently subjected to an adverse action when his employment was terminated. While S1 stated that Complainant continued to have challenges, despite having had over 200 hours of training, and that he had a “bit of an attitude” and would not follow her instructions, EEOC found that S1’s proffered reasons were inconsistent with other evidence in the record. For example, S1 noted in Complainant’s 90-day evaluation that he strived to work well with others and had “a very positive attitude and personality.” The evidence in the record also supported Complainant’s concerns about his training. Witnesses stated that Complainant’s training was “very inconsistent” and “difficult to follow and often unclear;” and that the trainer “struggled to explain things clearly” and showed “clear frustration and impatience” when Complainant asked questions. Therefore, EEOC concluded that the Agency retaliated against Complainant when it terminated his employment during his probationary period. The EEOC affirmed the Agency’s decision with regard to additional claims. The Agency was ordered, among other things, to offer Complainant reinstatement of his former position, with appropriate back pay and benefits, and investigate Complainant’s claim for damages. Lonny C. v. Dep’t of the Interior, EEOC Appeal No. 2020004093 (Aug. 5, 2021).

EEOC Affirmed AJ’s Finding of Hostile Environment Based on Race, Sex and Reprisal. Complainant alleged, among other things, that she was subjected to a hostile work environment based on race, sex, and reprisal in the form of unwelcome racist comments, being stared at, and having kisses blown at her. The EEOC affirmed the AJ’s finding of a hostile work environment based on race and sex, as well as the AJ’s finding of reprisal based on the Agency’s issuance of a cease-and-desist letter to Complainant in response to her reports of harassment. The EEOC determined that the Agency’s actions were reasonably likely to deter Complainant or others from engaging in protected activity. The EEOC further found a nexus existed between Complainant’s activity and the issuance of the cease and desist letter. Specifically, Complainant’s reports of harassment started the chain of events that led to her receiving the cease and desist letter. The EEOC found that the AJ properly ordered the Agency to discontinue issuing cease and desist orders to employees who have reported discrimination, absent clear, documented evidence of conduct other than reporting discrimination. Alesia P. v. Dep’t of Justice, EEOC Appeal No. 2020001024 (June 14, 2021)

EEOC Found Complainant Was Subjected to Harassment and Discrimination Based on Sex and Prior EEO Activity. At the time of events giving rise to this complaint, Complainant was serving in her probationary period as a Part-Time Transportation Screening Officer (TSO). Complainant filed an EEO complaint alleging that she was subjected to discrimination and harassment based on her sex, and in reprisal for prior protected EEO activity. Specifically, Complainant stated a co-worker made comments regarding her sexual orientation on a weekly basis that created a hostile work environment. Complainant stated that while she did not immediately report the harassment, she and another co-worker did ultimately raise the issue with their second-level supervisor. Complainant stated that another co-worker overheard Complainant’s supervisor talking about the sexual orientation of two officers and mentioning Complainant’s name. Complainant stated that she was issued a low performance rating and ultimately removed during her probationary period for alleged instances of absence without leave (AWOL).

On appeal, the EEOC found that Complainant’s co-worker made several offensive comments towards Complainant about her sexual orientation, and Complainant became fearful when working with the co-worker. The EEOC determined that the co-worker’s conduct unreasonably interfered with Complainant’s work performance, and that she met her burden of establishing that she was subjected to a hostile work environment because of her sex. In addition, there was evidence that Complainant was subjected to retaliation because she complained about the harassment. For example, a supervisor mentioned to all of Complainant’s co-workers that “someone” was complaining that management was not taking things seriously. The record also showed that management’s actions failed to end the harassment, and rather, retaliation from co-workers and management continued unaddressed. The EEOC further found that Complainant established that the Agency’s reasons for her low performance rating and termination were a pretext for retaliation. Complainant asserted that her performance was higher than her rating revealed, and the Agency ultimately raised it. In addition, Complainant’s supervisor authorized Complainant’s first absence from the facility and the second incident of alleged AWOL seemed to last no more than 30 minutes. Co-workers corroborated that other TSOs were absent from their positions on occasion but not similarly disciplined. Therefore, the EEOC concluded that Complainant’s termination was a pretext to retaliate against her for engaging in EEO activity. The Agency was ordered, among other things, to rescind the AWOL charges and Notice of Termination, retroactively restore Complainant to her position, or a substantially equivalent position, pay Complainant appropriate back pay and benefits, and investigate Complainant’s claim for damages. Phyllis F. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120150799 (Feb. 16, 2021).

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 EEOC 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 EEOC 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 EEOC 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 EEOC 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 EEOC 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 When Complainant Placed Under Investigation. Complainant alleged, among other things, that she was discriminated against on the basis of reprisal when she was placed under investigation. An AJ issued a decision on summary judgment in favor of Complainant on that matter. On appeal, the EEOC affirmed the AJ’s decision, noting that Complainant engaged in protected oppositional activity when she informed an Agency official that the responsible management official (RMO) instructed a co-worker not to speak to or associate with Complainant and “stop running around with Black people.” Complainant reported that the RMO’s behavior was, or could, constitute employment discrimination. An Agency official and the RMO were aware Complainant had reported the RMO’s comments, and shortly afterward Complainant learned that she was the subject of an investigation. While the Agency argued that no investigation occurred and that there was no evidence of an investigation, Agency officials stated that they were aware Complainant had been under investigation during this time. The EEOC stated that, even if Complainant could not establish that an actual investigation occurred, the evidence was clear that Agency management, at a minimum, led Complainant to believe that one had been initiated. The Agency did not offer a legitimate, non-discriminatory reason for investigating Complainant, or even threatening to investigate her. Thus, the record evidence clearly established that Complainant was subjected to an action that led her to believe there was an investigation, which a reasonable employee would have found materially adverse, and which could dissuade a reasonable employee from engaging in protected activity. The EEOC affirmed the AJ’s award of $7,500 in nonpecuniary damages. Amina W. v. Dep’t of Justice, EEOC Appeal No. 2021000697 (Sept. 9, 2021).

Retaliatory Harassment Found. Complainant alleged retaliatory harassment when, among other things, after reporting sexual harassment in the workplace, Complainant was assigned to work outside for about 12 weeks. Although Complainant’s allegations were investigated, the investigator concluded there was insufficient evidence of sexual harassment. The investigator noted “angst and friction” between Complainant and “the younger generation” in the workplace. Complainant stated that, for his work outside, he was initially given about four assignments but nothing further, so he took it upon himself to pick up trash. On appeal, the EEOC found that Complainant was subjected to retaliatory harassment with respect to his outside work assignment, as well as management’s negative explanations to him as to why he was given this assignment. Complainant’s report of sexual harassment constituted protected activity of which management was aware. According to a supervisor’s own statement, he assigned Complainant to work outside because Complainant’s report of sexual harassment caused a lot of hard feelings in the office. The EEOC found the Agency’s argument that Complainant was not aggrieved unpersuasive, concluding that Complainant’s limited outdoor work assignments, which led him to collect trash in the heat while being laughed at by the supervisor, was reasonably likely to deter EEO activity. With regard to the Agency’s liability, the EEOC noted that, while assigning Complainant to work outside for 12 weeks may or may not have been a tangible employment action, the Agency did not raise an affirmative defense. The EEOC noted, among other things, that management failed to take appropriate action after Complainant reported sexual harassment, and the supervisor blamed Complainant for creating a hostile work environment. Thus, the EEOC found that Complainant was subjected to retaliatory harassment, and ordered the Agency, among other things, to take steps to ensure that retaliation against workers who report sexual harassment cease, and conduct a supplemental investigation on compensatory damages. Michael S. v. Dep’t of the Army, EEOC Appeal No. 202000817 (Sept. 8, 2021).

Retaliatory Harassment Found. Complainant alleged that the Agency subjected her to a hostile work environment in reprisal for her EEO activity. Complainant cited a number of incidents, including the responsible management official (RMO) accusing her of improperly leaving her work area; threatening and yelling at her; and accusing her of failing to update a roster. Complainant stated that RMO also charged her 15 minutes of annual leave for being tardy when he did not do so for another employee who was one hour late; threatened her with disciplinary action; and falsely accused her in a staff meeting of being responsible for the unit having too many “delinquents” in credit card funds. On appeal, the EEOC found that Complainant established a hostile work environment and discrimination based on her protected EEO activity. Specifically, Complainant engaged in opposition activity when she reported that the RMO expressed deep rooted resentment toward women in the workplace. Complainant also demonstrated that, after she engaged in opposition activity, RMO’s conduct became more aggressive and targeted. The record did not include any evidence to challenge Complainant’s affidavit, and accordingly, she established a temporal connection between her protected activity and the RMO’s conduct. The EEOC held that RMO’s conduct would dissuade a reasonable employee from making or supporting a charge of discrimination. Accordingly, the EEOC determined that Complainant established that RMO’s actions could be viewed as reasonably likely to deter Complainant or others from engaging in protected EEO activity. The EEOC found that the Agency was liable for the harassment because RMO was a supervisor and no affirmative defense was available because the harassment culminated in a tangible employment action (i.e., Complainant was charged leave and her request for overtime was denied). The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages, and take all necessary steps to remove the RMO from Complainant’s line of supervision. Judie D. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020002526 (Sept. 7, 2021).

Retaliatory Harassment Found. Complainant, an Associate Warden, filed a formal EEO complaint alleging, among other things, retaliatory harassment when, from about November 2016 through October 2017, he was repeatedly referred to Internal Affairs (IA) to be the subject of an investigation. The evidence showed the Warden referred Complainant to IA four or five times. The first referral occurred at the same time Complainant sought EEO counseling for a prior matter, and the later referrals during the investigation of that complaint. IA did not sustain any of the charges against Complainant. The facility’s General Foreman averred that the Warden had a history of threatening, bullying, and/or coercing Complainant’s subordinate department heads to make allegations of misconduct against Complainant, and even solicited staff to submit memorandums. The EEOC noted that it found retaliation in Complainant’s prior EEO complaint when the Warden removed a department from Complainant’s supervision after Complainant voiced his concerns to the Warden about what he perceived as discrimination towards certain Black staff members. The EEOC stated that, in the instant case, the Agency did not raise an affirmative defense to the supervisor’s actions, and was liable for the harassment. The EEOC affirmed the Agency’s finding of no discrimination with regard to a separate claim. The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide appropriate training for all executive staff and department heads at the facility. Markus C. v. Dep’t of Justice, EEOC Appeal No. 2020000154 (Aug. 19, 2021).

EEOC Affirmed the Agency’s Finding of Retaliation. Complainant alleged an Agency official called her into a meeting because of her status as an EEO complainant, threatened and repeatedly asked her to tell him that she would not file any further charges or allege retaliation, and warned that her work conditions would suffer if she continued to pursue her EEO case. The EEOC noted that Agency officials discussed Complainant's EEO case in front of her and one supervisor repeatedly referred to Complainant’s EEO complaint in an angry voice. The EEOC found the supervisor’s comments and conduct were reasonably likely to deter Complainant, or any other employees who were present at the time from personally engaging in the EEO process. The EEOC affirmed the Agency’s finding of no discrimination with regard to the remaining claims. The Agency was ordered, among other things, to provide at least four hours of training for the supervisor and investigate Complainant’s claim for damages. Tomeka T. v. Dep’t of the Treasury, EEOC Appeal No. 2020000390 (June 15, 2021).

Retaliation Found. The EEOC found that the Agency retaliated against Complainant for prior EEO activity by removing his supervisory duties. Complainant engaged in protected activity when he informed his manager that African-American employees were not provided the same opportunities as White employees and warned the manager of perceived mistreatment of minorities. As such, Complainant’s manager was aware of his protected activity. The EEOC concluded that removing Complainant’s supervisory duties was precisely the kind of action that would dissuade a reasonable employee from engaging in protected EEO activity. Further, the manager removed Complainant’s supervisory duties less than six months after Complainant filed his EEO complaint. The EEOC found the manager’s articulated reason for the action, that another manager wanted Complainant out of his supervisory chain because Complainant was undermining his authority, was not credible and was pretextual. Specifically, the second manager denied complaining about Complainant. The EEOC affirmed the Agency’s finding of no discrimination with regard to additional claims. The Agency was ordered, among other things, to investigate Complainant’s claim for damages. Markus C. v. Dep’t of Justice, EEOC Appeal No. 2019004183 (May 20, 2021).

Retaliation Found. Complainant alleged, in relevant part, that the Agency subjected her to discrimination on the basis of reprisal when, during a meeting to discuss her union activities, her supervisor made references to Complainant’s prior EEO activity and accused her of “throw[ing] [him] under the bus” by filing an EEO complaint. While the Agency admitted that the supervisor made the comments, the Agency argued that the comments were directed at Complainant’s union activities and grievance filings and not her protected EEO activity. The EEOC rejected the Agency’s contention and found that the comments referred to Complainant’s prior EEO activity. Further, the comments were akin to accusing Complainant of betrayal or disloyalty. As such, the accusations would dissuade a reasonable person from making or supporting a charge of discrimination. The Agency was ordered, among other things, to investigate Complainant’s entitlement to compensatory damages and provide training to Complainant’s supervisor. Jane H. v. Dep’t of the Air Force, EEOC Appeal No. 2020003198 (May 19, 2021).

Retaliation Found. Complainant filed a formal EEO complaint alleging, among other things, that the Agency retaliated against him for prior protected EEO activity when his first-level supervisor accused him of lying to the Agency’s Equal Employment Opportunity (EEO) Office. On appeal, the EEOC found that the Agency subjected Complainant to retaliation as alleged. In reaching this conclusion, the EEOC considered the supervisor’s contention that he did not accuse Complainant of lying and merely stated Complainant had dishonestly fabricated accusations. The EEOC concluded that there was no material difference between accusing someone of lying and accusing them of dishonestly fabricating accusations. Further, such accusation would dissuade a reasonable employee from engaging in protected EEO activity. The EEOC affirmed the Agency’s finding of no discrimination regarding additional claims. The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages and to provide appropriate training to the supervisor. Michael L. v. Dep’t of the Treasury, EEOC Appeal No. 2020003199 (May 16, 2021).

Retaliation Found. Complainant, a Contract Representative/Patient Benefits Coordinator, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her for prior EEO activity when her third-level supervisor confronted Complainant about her role as a witness in a coworker’s EEO investigation. The coworker’s complaint also named the third-level supervisor as a responding management official. On appeal, the Commission noted that Complainant alleges that the third-level supervisor called Complainant into the supervisor’s office and asked whether Complainant was a witness in the coworker’s EEO complaint. Complainant felt pressured, so she denied her role as a witness. According to Complainant, the supervisor then responded: "I did not think you would, because your mother raised you better than that." Complainant felt the conversation was inappropriate and found the reference to her deceased mother upsetting. The third-level supervisor did not communicate with Complainant on a daily basis. The Commission determined that the meeting constituted a violation of Title VII’s anti-retaliation provision. The supervisor’s comments could reasonably discourage participation in the EEO process, given the supervisor’s and Complainant’s roles in the coworker’s EEO complaint, their supervisor/subordinate dynamic, and the timing of the meeting in relation to Complainant’s protected activity, as well as the supervisor’s use of her personal relationship with Complainant, evinced by her reference to Complainant’s mother. The Commission affirmed the finding of no discrimination with regard to Complainant’s additional claims. The Agency was ordered to post notice of the finding of discrimination at the facility where the action occurred. Renae L. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2020000428 (Apr. 29, 2021), request for reconsideration denied, EEOC Request No. 2021004022 (Oct. 13, 2021).

Retaliation Found. Complainant filed a formal complaint alleging, among other things, that the Agency retaliated against her when her supervisor (S1) referenced a Letter of Reprimand while in Complainant’s presence; she received a significantly lower score for personal leadership and integrity on her performance evaluation; and a management official (S3) asked Complainant why she was not “scared of anyone,” and whether Complainant planned to leave her position.  Following a hearing on these matters, an AJ issued a decision finding that Complainant was subjected to unlawful retaliation, and the EEOC affirmed the AJ’s findings on appeal. Specifically, the AJ stated that S1 and S3 were aware of Complainant’s EEO activity, and their conduct was intended to dissuade Complainant from pursuing an EEO complaint. The AJ noted that, soon after learning of Complainant’s EEO activity, S1 attempted to threaten Complainant by sitting next to Complainant’s desk and having a conversation with S3 about a Letter of Reprimand. Further, the AJ found that reprisal played a role in Complainant’s performance rating. Specifically, after Complainant’s EEO activity, S1 recommended a lower rating for personal leadership and responsibility even though there was no reason to doubt Complainant’s leadership, and the Agency later raised the rating. Finally, Agency management “peppered” Complainant with comments about the negative affects her complaints were having on her and her co-workers. The Agency was ordered, among other things, to expunge documents reflecting the lower rating from Complainant’s record, pay Complainant $6,000 in proven compensatory damages, and provide appropriate training for each responsible management official. The EEOC affirmed the AJ’s finding of no discrimination with regard to the remaining issues in Complainant’s complaint. Irene M. v. Dep’t of the Navy, EEOC Appeal No. 2020001286 (Feb. 2, 2021).

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 EEOC 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 EEOC 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 EEOC 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 EEOC 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 EEOC 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 EEOC 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. Complainant, an applicant for Agency employment as a Certified Registered Nurse Anesthetist, filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and reprisal when it rescinded a job offer after he disclosed to the selecting officials that he had a history of sedative abuse following the loss of his wife and son. The Agency asserted that there was no job offer to rescind, but it did cease the credentialing process required to hire Complainant because of certain issues with his application. An AJ issued a decision by summary judgment, concluding in relevant part that while there was evidence that disability discrimination played a role in Complainant not securing the position, there were other legitimate reasons for the decision not to hire Complainant. As such, the AJ determined that Complainant was not entitled to compensatory damages or placement into the position. The Agency adopted the AJ’s decision in its entirety. On appeal, the EEOC affirmed the AJ’s decision, finding evidence of both lawful and unlawful reasons for not selecting Complainant. Further, the Agency demonstrated, by clear and convincing evidence, that it would have taken the same action even if it had not considered the discriminatory factor. Specifically, the evidence confirmed that Complainant failed to provide recommendation letters as required and intentionally omitted previous employers from his application materials so that the Agency could not contact them. Accordingly, the EEOC found that Complainant was not entitled to personal relief such as placement in the position, back pay or damages. The EEOC ordered the Agency, among other things, to provide training for the responsible officials. Brenton W. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020000957 (Aug. 4, 2021).

Sanctions

EEOC Sanctioned Agency for Failing to Timely Issue a Final Decision. Complainant filed two formal complaints alleging discrimination and reprisal. Following an investigation, Complainant initially requested an administrative hearing, but subsequently withdrew her request. The AJ then dismissed the hearing on October 10, 2018, and remanded the matter to the Agency for issuance of a final decision. The Agency issued a final decision finding no discrimination. On appeal, the EEOC affirmed the Agency’s finding that Complainant failed to prove her claims of discrimination and harassment. However, the EEOC sanctioned the Agency for failing to issue a final decision within 60 days of receiving notification that Complainant was requesting a final decision. Specifically, the Agency issued its final decision 451 days late, and did not provide any explanation for its extraordinary delay. The EEOC ordered the Agency to post notice of its failure to comply with the EEOC’s regulations at its Office of Employment Discrimination Complaint Adjudication, and provide training to its EEO personnel who failed to comply with the regulatory timeframe. Willa B. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020003273 (Aug. 9, 2021).

EEOC Sanctioned Agency for Failing to Complete an Appropriate Investigation within 180 Days. Complainant filed a formal EEO complaint alleging discrimination when, as a result of the Agency cancelling its Supervisory Merit Promotion Process, she did not receive a rating that allowed her to compete for future vacancies. Following the Agency’s investigation, Complainant requested an administrative hearing, and the AJ ordered the Agency to produce additional evidence. The Agency submitted some supplemental evidence, but noted that it did not have all of the information specified by the AJ. Complainant withdrew her request for a hearing, and the Agency ordered a supplemental investigation, but did not transmit the supplemental material until five months after the deadline for completion. The Agency ultimately issued a final decision dismissing certain claims and finding that Complainant failed to prove her claim of discrimination. On appeal, the EEOC found that Complainant failed to prove her claims of discrimination. Nevertheless, the EEOC sanctioned the Agency for failing to meet its obligation to complete an appropriate investigation within 180 days citing the Agency’s two supplemental investigations and AJ’s order to provide additional evidence. In addition, the final decision was issued 410 days late. Therefore, the EEOC sanctioned the Agency by ordering it to analyze its performance in conducting timely and adequate EEO investigations and issuing timely final decisions, and report its findings to the EEOC. The Agency was further instructed to propose a corrective plan of action if it found it was not in compliance with the EEOC’s regulations. Finally, the Agency was ordered to provide training to its EEO personnel who failed to comply with the EEOC’s regulations. Kathlyn K. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020002630 (Aug. 9, 2021); see also Mac O. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020002744 (Aug. 9, 2021); Gia M. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020002745 (Aug. 9, 2021); Derrick P. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020003291 (Aug. 9, 2021); Tammy S. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020003444 (Aug. 9, 2021); Cher C. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020003445 (Aug. 9, 2021).

AJ Abused Discretion in Dismissing Hearing Request as a Sanction. Complainant filed an EEO complaint alleging that she was subjected to reprisal for prior EEO activity. Following an investigation, Complainant requested an administrative hearing. The AJ issued an Acknowledgment Order scheduling an initial conference. The Order also requested that the parties provide additional evidence, including requiring Complainant to submit specific evidence addressing the responsible management officials’ motivation for the allegedly discrimination actions, as well as evidence regarding comparators and names of witnesses, and copies of all medical documentation. The Agency was instructed to submit “any evidence which is not already included in the Report of Investigation.” Complainant submitted information to the AJ within the specified period, but the AJ subsequently issued an Order to Show Cause stating that Complainant failed to provide the requested documentation. Complainant and the AJ exchanged emails with the AJ advising Complainant that the documentation submitted was already in the record and Complainant informing the AJ that the documentation was “everything [she] had” related to her complaint. Complainant indicated that she would send the requested documentation, and that she was seeking a legal representative. The AJ then advised Complainant that it was too late to send the information and she had to show a legally sufficient reason for failing to submit the material. The AJ then dismissed Complainant’s hearing request. On appeal, the EEOC noted that Complainant did timely provide the AJ with information in response to the Acknowledgment Order. Further, Complainant provided the AJ with medical documentation that was not already in the record, and the EEOC did not find that Complainant engaged in contumacious conduct. Therefore, it was an abuse of discretion to dismiss Complainant’s hearing request. The EEOC further noted that it appeared the AJ ordered Complainant to provide information to rectify perceived deficiencies in the report of investigation prepared by the Agency, and it is the Agency’s responsibility to produce an adequate record. As such, it was inappropriate to sanction Complainant. If the AJ found the record was inadequately developed, it was inappropriate to order Complainant to provide the missing information before the initial conference and an opportunity for discovery. The AJ could have instead ordered the Agency to conduct a supplemental investigation, or the AJ could have further developed the record during the hearing process. Accordingly, the EEOC remanded the matter for a hearing. Tynisha H. v. U.S. Postal Serv., EEOC Appeal No. 2020000367 (July 28, 2021). Additional Decisions Addressing an AJ’s Dismissal of the Hearing Request as a Sanction Include: Nathanial E. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020001247 (July 28, 2021) (Complainant retained an attorney one day before the joint prehearing statement was due, and while the attorney did not request a postponement, he did include a statement with the Agency’s prehearing statement indicating he would supplement the statement as soon as possible. A fair interpretation of the attorney’s statement was that it was a request for a brief extension. There was no evidence that the attorney’s actions were either willfully disobedient or unreasonable under the circumstances, and the dismissal of the hearing request was improper); Jayna A. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020002873 (July 27, 2021) (the AJ did not follow up on the Agency’s motion to dismiss after Complainant’s failure to attend a schedule deposition by issuing a show cause order prior to dismissing the hearing request. The AJ never ordered Complainant and her attorney to attend the Agency’s deposition nor did the Agency file a motion to compel when Complainant failed to do so. Therefore, the dismissal of the hearing request was improper); Garrett B. v. Soc. Sec. Admin., EEOC Appeal No. 2019002002 (June 16, 2021) (EEOC found AJ’s dismissal of the hearing request as a sanction was too harsh. Complainant provided email evidence of his response to the AJ’s notice of his intent to issue a decision by summary judgment, with an attachment, and affirmed that he had served the Agency. While the AJ stated he did not receive the attachment, the documentary evidence supported Complainant’s claim that a file was attached to his email prior to the AJ issuing the dismissal Order. Even if there was an error, the AJ could have alerted Complainant to the missing attachment which appeared to be an inadvertent mistake rather than an intentional failure to follow the AJ’s order. The record was also devoid of an Agency response to the notice, despite the express requirement that it submit a response. The EEOC found that a lesser sanction would suffice to deter similar future conduct, and the AJ should have tailored the sanction to what was lost by the delay in receiving Complainant’s response, rather than entirely dismissing the hearing request); Josefina L. v. U.S. Postal Serv., EEOC Appeal No. 2020000206 (June 16, 2021) (EEOC affirmed AJ’s dismissal of the hearing request as a sanction where Complainant failed to appear for a scheduled Initial Conference (IC) and failed to respond to the resultant Show Cause Order (SCO). Complainant’s claim that she was not aware of the “meeting,” was not credible since Complainant had responded to portions of the AJ’s Notice showing that she was on notice of the IC, and Complainant failed to explain why she did not respond to the SCO. The Agency was prejudiced, and justice was delayed by Complainant’s failure to attend the IC as the hearing process came to a standstill. Although Complainant’s two incidents of noncompliance did not rise to the level of contumacious conduct, she failed to show that she was confused by the orders, made a documented effort to comply, was incapacitated, or was prevented from complying with the orders. Complainant's conduct was an unjustified failure to exercise the due diligence necessary for the administrative process to function properly and Complainant’s failure to take responsibility for her actions demonstrated a disregard of the administrative hearing process); Paul F. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019005369 (Feb. 25, 2021) (the AJ abused his discretion by dismissing the hearing request as a sanction where Complainant’s non-compliance with the AJ’s orders consisted of one instance in which he failed to submit a prehearing statement. Complainant stated that he had been overwhelmed by his mother’s sudden decline in health and her passing prior to the deadline for filing his prehearing statement, and the EEOC found no evidence that Complainant engaged in or exhibited the kind of willful or obstinate refusal to comply with the AJ’s orders that typifies contumacious conduct. The record also did not show that Complainant failed to act with due diligence, and the EEOC found that dismissing Complainant’s hearing request was too harsh, and a lesser sanction would have been more appropriate); Sofia W. v. Dep’t of the Treasury, EEOC Appeal No. 2019001779 (Feb. 2, 2021) (dismissal of the hearing request was too harsh where Complainant stated that she did not have legal assistance when the AJ requested a witness list. Complainant indicated that upon seeing the Agency’s witness list, she determined that she did not need to submit additional witnesses. When she then submitted her list to the AJ, it did not contain additional witnesses beyond those named by the Agency. Thus, Complainant’s failure to add witnesses to the Agency’s list did not prejudice the Agency or compromise the EEO process.); Sylvester C. v. U.S. Postal Serv., EEOC Appeal No. 2019004212 (Feb. 2, 2021) (dismissal of the hearing request was improper where there was no evidence that Complainant either willfully disobeyed the AJ’s orders, or unjustifiably failed to respond to those orders. Complainant believed he had already submitted the prehearing statement that the AJ requested, and there appeared to be a breakdown in communication regarding whether Complainant received the AJ’s notification of the prehearing conference. There was no indication that Complainant engaged in the kind of willful or obstinate refusal to comply with the AJ’s orders that constitutes contumacious conduct).

Settlement Agreements

No Breach of Settlement Found. The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would pay Complainant $74,000. In its initial appellate decision, the EEOC found that the Agency breached the agreement when it offset the amount by $1,923.17 for health insurance premiums, and paid Complainant only $72,076.83. The EEOC subsequently granted the Agency’s request for reconsideration, and found no breach of settlement. The record showed that the payment was processed by the Department of the Treasury’s U.S. Coast Guard Finance Center. The Agency instructed the Center to pay Complainant the entire amount, but the Finance Center then paid Complainant the lesser amount to offset an amount Complainant owed for health insurance. The EEOC has previously held that there was no breach of settlement when the agency initiated a full lump-sum payment under the settlement agreement, but the amount was then offset by a debt owed to the agency. Thus, the EEOC concluded that the Agency did not breach the settlement agreement. The EEOC declined to address Complainant’s assertions regarding the Agency’s attempts to collect another debt that was not before the EEOC. Kiara R. v. Dep’t of Homeland Sec., EEOC Request No. 0520180135 (Aug. 24, 2021).

No Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement that included a letter from the Director of the facility as an exhibit. The exhibit acknowledged Complainant’s concerns about an Agency physician and indicated the physician had been relocated to another “campus” such that he should not have any reason to interact with or encounter Complainant. The settlement agreement specifically indicated that the terms of the exhibit would remain in effect. Complainant alleged that the Agency breached the agreement when the physician traveled to her facility to undergo training, and Complainant encountered him while working. Complainant stated that he made eye contact with her and glared at her for “several seconds.” The Agency investigated the incident, and found that it did not breach the agreement, because the physician had a legitimate, business reason for being at the facility, and Complainant admitted that he did not go to Complainant’s office or contact her. The EEOC affirmed the Agency’s finding on appeal. The encounter was inadvertent, and the physician denied making eye contact or engaging with Complainant. Even assuming the physician glared at Complainant for a few seconds, the EEOC found that such an encounter was insufficient to constitute a breach of settlement. Specifically, the agreement appeared to anticipate a possible chance encounter, and provided that the first-line supervisor would promptly determine whether any contact was reasonable. The EEOC found that the parties did not intend to impose strict liability for a chance encounter. Nannette T. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020003191 (Aug. 9, 2021).

Settlement Agreement Void Where Not Signed by Appropriate Agency Official. Complainant, Complainant’s attorney, and Agency counsel signed a document entitled “Negotiated Settlement Agreement” (NSA). Thereafter, pursuant to the NSA, an EEOC AJ dismissed the matter and issued an award of attorney’s fees and costs. Complainant’s attorney subsequently alleged breach of the NSA, and the Agency found that the NSA was void and unenforceable, because it had not been signed by a named Agency official or any other individual identified as a “settlement official.” On appeal, the EEOC concurred with the Agency that the parties did not enter into a binding settlement agreement, noting that the NSA required all parties, including the settlement official, to sign the agreement in order for it to be effective. The EEOC rejected Complainant’s argument that an email correspondence between the parties, and between the parties and the AJ, demonstrated that Agency counsel alone had the authority to bind the Agency. Rather, the record evidence demonstrated that the AJ was expecting the parties to substitute the partially signed settlement agreement with a fully signed settlement agreement in order for the agreement to be final and binding. The EEOC also rejected Complainant’s assertion that no written agreement was necessary due to an oral agreement before the AJ, noting that the EEOC has upheld an oral settlement only in narrow circumstances such as when it is part of a transcript prepared by a court reporter. Therefore, the EEOC remanded the matter to the Agency for reinstatement of Complainant’s underlying complaint. Shalon C. v. Dep't of the Army, EEOC Appeal No. 2021001986 (June 9, 2021).

Complainant Not Entitled to Reinstatement of Complaint. Complainant and the Agency entered into a settlement agreement before an AJ that provided, in pertinent part, that the Agency would pay Complainant $40,000 in nonpecuniary compensatory damages and replace two of Complainant’s Performance Evaluations with evaluations indicating “no-rating.” Complainant alleged that the Agency breached the settlement agreement when it did not change her ratings. The Agency agreed with Complainant and gave Complainant the choice of having the Agency implement the terms of the settlement agreement or void the agreement, which would require Complainant to repay the $40,000. Complainant chose to have the settlement agreement voided, but indicated that she could not pay back the funds and requested a payment plan. Complainant’s claims were then returned to the AJ for processing. The AJ declined to reinstate Complainant’s complaints, stating that once a breach of a settlement agreement is found, the remedial relief is either reinstatement of the underlying complaint for processing or specific enforcement of the agreement. Further, for Complainant’s complaints to be reinstated, she must return any benefits she received per the settlement agreement, including the $40,000. On appeal, the EEOC agreed with the AJ that a repayment plan was an ineffective way to return the Agency to the status quo before the settlement agreement. Therefore, because Complainant was not able to repay the $40,000 she received under the settlement agreement, she was not entitled to have her EEO complaints reinstated, and the EEOC ordered specific performance of the settlement agreement. Stacie D. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020005130 (Mar. 5, 2021).

EEOC Affirmed Agency’s Finding that Settlement Agreement Was Void. The parties entered into a settlement agreement that provided, in pertinent part, that Complainant’s request for a change of craft would be approved and sent to Human Resources for processing within seven business days. Human Resources acknowledged receipt of the approved request, and Complainant was ultimately instructed to report to duty as a Clerk. Notwithstanding, Complainant filed a grievance seeking back pay for the delay in placing her in the Clerk position. The union then discovered that the settlement agreement violated the Collective Bargaining Agreement and Memorandum of Understanding. The union and the Agency resolved the contractual violation by reaching a separate agreement, whereby the Agency would return Complainant to her former position. Complainant alleged that returning her to her original position violated the EEO settlement agreement, and the Agency found that the EEO settlement agreement was void. On appeal, the EEOC noted that while settlement agreements are binding on the parties, the EEOC has previously held that an Agency may not specifically perform the terms of an agreement if doing so violates a collective bargaining agreement. In those cases, the Agency must reinstate Complainant’s complaint from the point processing ceased. Accordingly, the EEOC affirmed the Agency’s decision. Camie B. v. U.S. Postal Serv., EEOC Appeal No. 2020004464 (Mar. 2, 2021).

EEOC Found No Breach of Settlement. The parties entered into a settlement agreement in September 2016 that provided, among other things, that the Agency would submit personnel forms changing Complainant’s duty station to a specific location. Complainant alleged that the Agency breached the agreement when it offered to reassign Complainant to one of three different duty stations. On appeal, the EEOC affirmed the Agency’s finding that it did not breach the settlement agreement, stating that the Agency initially processed the applicable personnel forms. Complainant acknowledged that he did not expect to remain at the specified location for the remainder of his career, and that the reassignment would have been temporary. Complainant stated, however, that he had a reasonable expectation that his duty station would remain close to the specified location. The EEOC stated that the settlement agreement was silent as to if, when, or where a future reassignment might occur, and the Agency did not attempt to change Complainant’s duty station for over three years. Further, Complainant did not establish that the Agency acted in bad faith when it decided to change his duty station. Manuel R. v. Dep’t of Def., EEOC 2020002558 (Jan. 13, 2021).

EEOC Found No Breach of Settlement. The parties entered into a settlement agreement that provided, among other things, that the Agency would restore 80 hours of sick leave and pay Complainant’s attorney’s fees in the amount of $2,500. Complainant agreed to withdraw several pending EEO complaints. Complainant subsequently alleged that the Agency breached the agreement when it issued her a Notice of Proposed Suspension for being Absent Without Leave (AWOL) prior to the execution of the settlement agreement. On appeal, the EEOC affirmed the Agency’s finding that it did not breach the settlement agreement. The EEOC noted that Complainant did not allege that the Agency failed to restore her sick leave or pay her attorney’s fees. While Complainant asserted that the parties had agreed that any time and attendance issues would not be raised in the future, that unexpressed intention was not included in the agreement and the Agency did not agree to any terms related to disciplinary actions. Further, the settlement agreement specifically noted that it did not include any other conditions or assurances, and the EEOC agreed with the Agency that settlement agreements do not prohibit agencies from issuing discipline for previous attendance problems. The EEOC noted that the Agency was investigating the suspension as a separate EEO claim. Scarlet G. v. Dep’t of Commerce, EEOC Appeal No. 2020003758 (Jan. 13, 2021).

Breach of Settlement Found. The parties entered into a settlement agreement that provided, in pertinent part, that Agency management would “present” training opportunities for Complainant within six months. The Agency acknowledged that Complainant did not receive a training opportunity during the six months following the signing of the Agreement, but stated a manager later offered a structured two-week training at the manager’s new office. Complainant did not accept the offer as it would have entailed a 100-mile, one-way commute, and the parties understood that the training would take place at Complainant’s workplace. The EEOC concluded that the Agency breached the agreement when it failed to provide training within six months and did not cure the breach when it offered a training opportunity that required a 200-mile total daily commute. The EEOC stated that Complainant should be given the option of specific enforcement of the agreement or reinstatement of the underlying complaint. Miles N. v. U.S. Postal Serv., EEOC Appeal No. 2020005234 (Jan. 6, 2021).

Breach of Settlement Found. The parties entered into a settlement agreement that provided, in pertinent part, that the Agency would issue a neutral reference letter and restrict the information that it supplied to third parties to that specified in the agreement. On appeal, the EEOC found that Complainant did not receive the benefit of either of these provisions. Specifically, the EEOC stated that the Agency was not acting in accordance with the terms of the agreement when it released additional negative information via personnel forms. While the Agency argued that the agreement did not specifically mention the personnel forms, the EEOC found that was not dispositive in the case. The agreement clearly set forth the parties’ understanding that Complainant was releasing her claims based on the promise that the Agency would not release any negative information and would only release the information expressly specified in the agreement. Complainant clearly articulated in her breach notices that she was seeking enforcement of the agreement and the EEOC ordered compliance instead of reinstatement of the complaint. Further, because the EEOC found noncompliance, Complainant was the prevailing party in this matter. The EEOC noted that Complainant did not waive and release the Agency from claims for future damages that were incurred after the execution of the agreement, and any waivers Complainant made were contingent on the Agency’s compliance with the terms of the agreement. Colene M. v. Gen. Serv. Admin., EEOC Appeal No. 2020004322 (Jan. 5, 2021).

Stating a Claim

Complaint Alleging Disclosure of Medical Information Stated Viable Claim. Complainant alleged that the Agency subjected her to disability discrimination when Agency managers questioned her about her disability and reviewed her confidential medical information. The Agency dismissed the formal complaint for failure to state a claim, reasoning that claims involving violations of the Privacy Act and/or Health Insurance Portability and Accountability Act (HIPAA) are outside of the EEOC’s jurisdiction. On appeal, the EEOC found that while the Agency properly dismissed the claim to the extent that Complainant was alleging that the Agency violated HIPAA and/or Privacy Act, Complainant was also alleging a violation of the Rehabilitation Act when an Agency official allegedly shared her private medical information with a named Agency manager who did not have a need to know this information. The EEOC noted that all information obtained regarding the medical condition or history of an applicant or employee must be maintained on separate forms and in separate files and must be treated as confidential medical records. Thus, Complainant’s allegation that the Agency improperly disclosed her medical information stated a actionable claim. Syreeta P. v. U.S. Postal Serv., EEOC Appeal No. 2021003542 (Sept. 16, 2021).

Complainant Stated Viable Harassment Claim. Complainant alleged that she was subjected to a hostile work environment based on sex and age, when her supervisor allowed an employee to return to work after serving a suspension for previously threatening Complainant. The Agency dismissed the complaint for failure to state a claim. On appeal, the EEOC noted that Complainant was alleging that the named employee had been harassing women, including herself, since 2011, and the harassment included recent incidents that involved threatening Complainant. Thus, Complainant was alleging ongoing harassment, the latest example of which was management allowing the individual to return to the office. As such, since the issue to be adjudicated involved the Agency’s liability for the employee’s alleged discriminatory harassment of Complainant, the EEOC concluded that Complainant’s assertion that management failed yet again to protect her by allowing the employee to return to work stated a viable claim. Vasiliki B. v. Dep’t of the Navy, EEOC Appeal No. 2021003817 (Sept. 15, 2021).

Complainant Stated Viable Claim of Harassment. The Agency characterized Complainant’s complaint as a single incident involving an Agency official notifying Complainant that his tour of duty would be changed to an eight-hour workday, and dismissed the complaint for failure to state a claim. On appeal, the EEOC found that the Agency erred in dismissing the complaint, finding that the totality of the actions alleged could create a hostile work environment. Complainant argued that the Agency failed to include an Agency official’s prior act of changing Complainant’s tour of duty. Complainant explained that he was initially a full-time employee but was changed to a “fixed salary part-time employee,” which reduced his salary. Complainant further averred that the Agency failed to address the continuous threats and scrutiny that the Agency official subjected him to. Complainant described that the Agency official scrutinized his schedule and demanded that he park in the patient parking lot and enter the patient main entrance so security cameras could capture his arrival and departure times. Complainant further contended that the Agency official misled him into believing that he was under investigation to coerce him to reduce his working hours. Thus, Complainant alleged a viable claim of harassment. Although the Agency challenged Complainant’s assertion concerning the change in his status to part-time, the EEOC determined that this went to the merits of the complaint without a proper investigation as required by the regulations, and was irrelevant to the procedural issue of whether Complainant had stated a justiciable claim. Brian R. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021003474 (Sept. 9, 2021).

Agency Qualified as Joint Employer. Complainant worked for a staffing firm serving the Agency as a Senior Research Scientist (Programmer). He alleged the Agency discriminated against him based on sex (male) when he was terminated in March 2019. The Agency dismissed Complainant’s complaint for failure to state a claim on grounds that it had insufficient control over his employment to be his joint employer. The EEOC found that the dismissal was improper, disagreeing with the Agency’s finding that it was not involved in the staffing firm’s decision to hire Complainant. Specifically, the EEOC noted that the Agency conducted one of Complainant’s job interviews. Further, Complainant served the Agency for nine years, and even though the staffing firm assigned Complainant to the particular area he worked, he used some Agency equipment to perform his duties, including the Agency’s virtual private network, and remotely coded directly onto Agency computers. The EEOC also concluded that the Agency was involved in the decision to remove Complainant because it made clear to the staffing firm it did not want his service. Sonny M. v. Nat’l. Aeronautics & Space Admin., EEOC Appeal No. 2021001448 (Jun. 28, 2021). Additional Decisions Addressing the Issue of Joint Employment Include: Irina T. v. Dep’t of the Treasury, EEOC Appeal No. 2020000651 (July 21, 2021) (Agency exercised sufficient control over Complainant’s employment to be considered a joint employer where the work was done at the Agency’s facility using Agency equipment; an Agency supervisor reported Complainant for not following his instructions and sought Complainant’s removal; and the contract language allowed the Agency to request the immediate removal of any employee for a variety of reasons such that the Agency had broad latitude in removing individual employees); Lilian C. v, Dep’t of Homeland Sec., EEOC Appeal No. 2020000469 (June 17, 2021), request for reconsideration denied, EEOC Request No. 2021003801 (Oct. 7, 2021) (Complainant worked for a bus company serving the Agency as a shuttle bus driver shuttling TSA employees and contractors. Complainant admitted that her bus company supplied her the bus, gave her all direction, authorized all leave and completed her performance evaluations, and she did not report to anyone at the Agency. Complainant continued to be employed by the bus company performing the same job serving the Agency until the Agency found her character/conduct unfit. The EEOC found that the Agency did not exercise sufficient control over Complainant’s employment to be deemed her common law employer for the purpose of the EEO complaint process); Detra W. v. Dep’t of Commerce, EEOC Appeal No. 2020003147 (Apr. 14, 2021) (Complainant, an applicant for employment with the Agency through a staffing firm, was on dialysis due to renal failure. She advised the staffing firm Director at the beginning of the hiring process that she would need to telework four days per week while receiving treatment. The EEOC found that the Agency was a joint employer, noting that the Agency had significant input into the denial of Complainant’s reasonable accommodation request, and also had significant control over the hiring process. The Agency set detailed qualifications for the position, and while the staffing firm recruited Complainant and decided to present her as a candidate, Agency personnel reviewed her resume, interviewed her, approved her coming on board, and required her to pass a background check conducted by the Agency); 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).

Former Employee Stated Viable Claim Regarding Reference to Prospective Employer. The EEOC found the Agency erred in dismissing Complainant’s complaint for failure to state a claim on grounds she was not a current employee or applicant for employment. Complainant alleged that, after she complained about sexual harassment while employed by the Agency, an Agency official contacted a private contractor that had offered Complainant a position, and made negative comments about her, resulting in the private contractor withdrawing an employment offer. The EEOC’s regulations provide that a former employee may state a viable retaliation claim for protected activity that took place during the time of employment, even if the disputed action occurred after the termination of the employment relationship. Further, to the extent the Agency based its dismissal on the notion that Complainant was not harmed, the EEOC stated that providing negative information to a new employer would be reasonably likely to deter Complainant or others from engaging in protected activity. Barbara S. v. Dep’t of the Navy, EEOC Appeal No. 2021001824 (June 8, 2021).

Complaint Stated Viable Claim of Disability Discrimination. Complainant alleged that she was discriminated against based on disability when she was forced to walk down the stairs during a non-fire evacuation at her facility, in violation of the Agency’s Occupant Emergency Plan (OEP) regarding employees with disabilities. The AJ dismissed the complaint for failure to state a claim on grounds that the circumstances did not concern Complainant’s performance of the essential functions of her job, but rather the Agency’s assistance for Complainant’s safe egress during an emergency evacuation. On appeal, the EEOC stated that a denial of reasonable accommodation claim does not solely involve the performance of essential functions, and may also relate to enjoyment of equal benefits and privileges of employment. The EEOC held that being able to exit the worksite in a safe manner during an emergency evacuation would be considered a benefit/privilege of employment, and thus reversed the dismissal. Eve E. v. Soc. Sec. Admin., EEOC Appeal No. 2020004148 (June 2, 2021).

Agency Improperly Addressed Merits of Claim When It Dismissed Complaint for Failure to State a Claim. Complainant applied for a General Engineer position with the Agency, and subsequently filed a formal EEO complaint when he was not selected. The Agency dismissed the matter for failure to state a claim, asserting that Complainant was not eligible to apply for the position. On appeal, the EEOC found that the Agency improperly dismissed the complaint. The EEOC noted that the Agency addressed the merits of the claim without a proper investigation, and did not consider the procedural issue of whether the matter states an actionable claim under the EEO statutes. Wiley W. v. Dep’t of the Navy, EEOC Appeal No. 2020005208 (Apr. 27, 2021).

Complainant Stated Viable Harassment Claim. Complainant, an Asian American, filed an EEO complaint alleging that one of his subordinate employees harassed him on the bases of his race (Asian) and national origin (Chinese). Complainant stated the subordinate, among other things, disparaged Chinese immigrants; mocked Complainant’s language and communication skills due to his perceived foreign accent; and engaged in efforts to undermine Complainant, such as skipping and walking out on meetings, not completing assignments, ignoring Complainant’s emails, and attempting to bypass Complainant’s authority by reporting directly to Complainant’s superiors. Complainant also alleged that his own supervisors were aware of this subordinate’s conduct but failed to effectively stop it. The EEOC found that the Agency improperly dismissed Complainant’s complaint for failure to state a claim. Citing its recent resolution Condemning Violence, Harassment, and Bias Against Asian Americans and Pacific Islanders in the United States, the EEOC noted that the subordinate’s alleged behavior occurred in the context of a nation-wide increase in reports of harassment against Asian Americans. The subordinate’s behavior fell squarely within the types of discrimination frequently experienced by Asian American workers, that is discrimination regarding language or accent, and perceived competence of Asian American workers. The subordinate’s emails, taunts, and comments also insinuated that Complainant was “un-American,” “anti-American,” or had a “grudge against America.” Management officials allegedly knew that the subordinate made disparaging references to Complainant’s national origin before the subordinate was assigned to Complainant’s supervision. Therefore, considering Complainant’s allegations together and assuming them to be true, the EEOC concluded that Complainant alleged a viable claim of ongoing harassment in violation of Title VII. Norbert K. v. Dep’t of State, EEOC Appeal No. 2021001898 (Apr. 19, 2021).

Agency Improperly Fragmented Claim of Harassment and Dismissed the Complaint for Failure to State a Claim. The EEOC found that the Agency improperly fragmented Complainant’s formal complaint rather than collectively viewing the incidents raised. Complainant alleged that management threatened him, made derogatory comments about him, falsely accused him of harassment, and banned him from specific Agency locations. When viewed together, Complainant’s claims were sufficiently severe or pervasive to state an actionable claim of harassment. The EEOC also found that Complainant’s allegations were not a collateral attack on the grievance process. Complainant was not contesting the outcome of a grievance determination or alleging the Agency violated the collective bargaining agreement. While Complainant alleged that he was subjected to discriminatory harassment while performing union duties, his role as a union official was insufficient to remove the complaint from the EEO process. Mohammad V. v. U.S. Postal Serv., EEOC Appeal No. 2021001241 (Mar. 2, 2021). Additional Decisions Addressing Dismissal of Harassment Claims Include: 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); Cornell S. v. Dep’t of Transp., EEOC Appeal No. 2020002934 (Oct. 13, 2020) (a fair reading of the entire record showed an incident involving a supervisor inappropriately touched Complainant’s arm was part of a pattern of harassment spanning years. Complainant also indicated that management denied him accommodations, breaks, leave, and training, and a supervisor called him “boy” and “lazy.” Complainant’s training instructor corroborated at least some of Complainant’s allegations. Therefore, Complainant sufficiently summarized a claim of ongoing hostile work environment that included the purported arm-grabbing incident).

Complainant Stated Viable Claim of Retaliatory Harassment. The EEOC found that the Agency mischaracterized Complainant’s claim and improperly dismissed the complaint for failure to state a claim. Despite the Agency’s assertion that Complainant did not allege retaliation for protected EEO activity, the EEO Counselor’s report and Complainant’s formal complaint clearly showed that Complainant stated he was retaliated against for asking Agency managers to accommodate his medical condition pursuant to the Rehabilitation Act. Specifically, Complainant, who was diagnosed with a medical condition impacted by second-hand smoke, stated that after asking Agency managers to prevent other employees from smoking in and around the facility, he was singled out and subjected to a hostile work environment by his supervisors and co-workers. Therefore, Complainant stated a viable claim. Rich P. v. Dep’t of Homeland Sec., EEOC Appeal No. 2021001010 (Jan. 22, 2021).

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 EEOC found that the Agency improperly dismissed the complaint for failure to state a claim. While the EEOC 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: Abe U. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021002577 (Sept. 15, 2021) (Complainant alleged a viable claim of retaliation, because the formal fact-finding investigation constituted a materially adverse action); 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 EEOC 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 EEOC 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).

Complaint Filed by Volunteer Properly Dismissed. Complainant, a volunteer at the Agency, filed a formal complaint alleging that she was subjected to a hostile work environment and retaliation. The Agency dismissed the complaint for failure to state a claim because Complainant was a volunteer, and not an employee of the Agency, and the EEOC affirmed the Agency’s decision on appeal. The EEOC has stated that while volunteers usually are not protected “employees,” an individual may be considered an employee if, as a result of the volunteer service, she receives benefits that constitute significant remuneration rather than merely the inconsequential incidents of an otherwise gratuitous relationship. A volunteer may also be considered an employee for the purpose of the EEO process if the volunteer work is required for regular employment or typically leads to regular employment with the employer. In this case, the EEOC found that the type of volunteer work Complainant did was not a prerequisite to regular employment, and the small benefits she received did not constitute significant remuneration. Tera B. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020005079 (Mar. 2, 2021).

EEOC Affirmed Agency Dismissal as Collateral Attack on Another Proceeding. The EEOC affirmed the Agency’s dismissal of Complainant’s claim that management failed to timely provide him with the proper paperwork to file a worker’s compensation claim, and resisted in facilitating Complainant’s medical treatment. The EEOC found that the proper forum for Complainant to have raised his allegation was with the Office of Worker’s Compensation Programs. Further, Complainant should have raised his allegations that the Agency failed to comply with provisions of its handbook and union agreement in the negotiated grievance process. Abe U. v. U.S. Postal Serv., EEOC Appeal No. 2021003512 (Aug. 4, 2021). Additional Decisions Dismissing Complainant as Being a Collateral Attach Include: Alesia P. v. U.S. Postal Serv., EEOC Appeal No. 2021000068 (Jan. 11, 2021) (a review of the EEO Counselor’s report and formal complaint revealed that Complainant’s complaint essentially concerned representations made by the Agency during the processing of Complainant’s worker’s compensation claim. Specifically, Complainant asserted that the Agency misrepresented the availability of Complainant’s previous modified duty assignment, thereby denying her worker’s compensation benefits. Complainant should have challenged the Agency’s actions through the Office of Workers’ Compensation Programs, because any remedial relief would be available there and not through the EEO process).

Complaint Alleging Violation of Debt Collection Act Failed to State a Claim. Complainant filed a complaint alleging that the Agency subjected him to unlawful retaliation when it issued him a Letter of Demand. The EEOC affirmed the Agency’s dismissal of the complaint for failure to state a claim. EEOC precedent has held that challenges to an agency’s actions under the Debt Collection Act are outside of the scope of the EEO complaint process. Stan H. v. U.S. Postal Serv. EEOC Appeal No. 2021001651 (Mar. 18, 2021).

Summary Judgment

Summary Judgment Affirmed. Complainant alleged the Agency discriminated against her on the bases of disability and in reprisal for prior protected EEO activity when supervisory officials denied her request for a reasonable accommodation, and she was retroactively placed in an absent without leave (AWOL) status. Following the Agency’s investigation, the AJ granted the Agency’s motion for a decision without a hearing and issued a summary judgment decision in favor of the Agency. The EEOC affirmed the AJ’s decision, finding that the record was adequately developed. The EEOC found that the Agency provided Complainant with a reasonable accommodation when the Agency, based on recommendations in Complainant’s medical documentation, moved her to another supervisor and authorized telework twice a week. Complainant later changed her accommodation request, so the Agency requested new medical documentation, but Complainant resubmitted the same information. As such, the Agency denied Complainant’s request for a reassignment. The EEOC noted that, while the Agency is required to provide reasonable accommodation, the Agency is not required to provide the accommodation of Complainant’s choice. The EEOC determined that there was no evidence that the Agency’s actions were unreasonable. Therefore, the AJ properly issued a decision without a hearing. Phoebe O. v. Dep’t of the Army, EEOC Appeal No. 2020000674 (Apr. 5, 2021).

Summary Judgment Affirmed. Complainant alleged that the Agency discriminated against her when her first-level supervisor removed her from her bid post for allegedly going against policy, and when she was subjected to harassment, including being disrespected, denied overtime and overtime pay, not allowed to attend a re-entry program, and not given the items necessary to do her job. An AJ ultimately issued a decision without a hearing, finding that Complainant failed to prove discrimination or harassment as alleged, and the EEOC affirmed the decision on appeal. The EEOC initially found that the record was adequately developed for purposes of summary judgment. Only two witnesses were not interviewed, one who had retired and whose contact information was unknown, and another who was not employed by the Agency at the time of the alleged discrimination. In addition, Complainant failed to raise her concerns about the accuracy of the evidence and supporting documentation in response to the Agency’s motion for summary judgment. Regarding Complainant’s claims, the EEOC stated that the Agency articulated legitimate, nondiscriminatory reasons for the actions, and Complainant failed to establish that those reasons were a pretext for discrimination. Specifically, Complainant was moved to a different office because she held mail, against Agency policy, and supervisory orders. Further, Complainant did timely receive overtime pay despite refusing to follow instructions on how to correct an administrative error. Management also explained that Complainant was allowed to, and did attend the re-entry program, and she could have taken the equipment she needed to perform her job without prior approval. Complainant did not refute management’s explanations or the record evidence regarding these matters. Further, the EEOC concluded that Complainant also did not establish her hostile work environment claim. Dominica H. v. Dep’t of Justice, EEOC Appeal No. 2020000448 (Jan. 14, 2021), request for reconsideration denied, EEOC Request No. 2021002017 (Apr. 29, 2021).

Summary Judgment Reversed. Complainant alleged that she was sent home, without pay, because she was wearing her religious head garment. An AJ ultimately issued a decision on summary judgment finding no discrimination, and the EEOC vacated the decision on appeal. The EEOC noted that the record contained conflicting statements from Complainant, the responsible management officials, and a witness as to what transpired on the day in question. It was evident that findings of fact needed to be made by assessing witness credibility and weighing conflicting evidence. In addition to the existence of genuine issues of material fact, the EEOC found that the requirement for a thorough investigation was not met. A review of the record indicated that not all relevant information was included in the investigative file. For example, it was unclear what actions or inactions occurred during the approximately six months between her religious accommodation request and the incident. Moreover, the Agency’s policy on head garments/wear was not properly investigated. While the Agency noted that there was no question about its policy regarding headwear and the method through which to obtain a religious accommodation, the policy directly related to Complainant’s claim that she was targeted due to her religious head garment while other similarly situated employees wore supposed religious head gear and non-religious head gear such as baseball hats without issue. Additionally, the EEOC noted that there was scant information regarding Complainant’s prior protected EEO activity that served as the foundation of her reprisal allegations. Therefore, the EEOC found that summary judgment was not appropriate, and remanded the matter for a hearing. Deborah C. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020003082 (Sept. 13, 2021).

Summary Judgment Reversed. Complainant filed an EEO complaint alleging, among other things, that he was discriminated against on the basis of sex/sexual orientation and subjected to harassment. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately issued a decision without a hearing finding that Complainant failed to prove his claims. On appeal, the EEOC found that the record was not adequately developed. For example, that two witnesses with information regarding an alleged physical assault against Complainant did not provide affidavits despite the EEO Investigator’s requests. Therefore, the AJ’s decision was made without relevant witness testimony, and, as such, summary judgment was not appropriate. The EEOC found issues of fact in dispute regarding management’s explanations for its actions, and the AJ improperly credited management’s testimony over Complainant’s statements. The AJ also incorrectly found that given all of the evidence, Complainant did not suffer an adverse action. If a hearing had been held and it was shown that the alleged actions occurred and were related to Complainant’s sexual orientation, then the events could establish a viable claim of harassment. Therefore, the EEOC concluded that there were too many unresolved issues which required an assessment as to the credibility of various management officials, coworkers, and Complainant such that summary judgment was improper. The matter was remanded for a hearing. Merlin W. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019004821 (Aug. 9, 2021).

Summary Judgment Reversed. The EEOC found that the AJ erred in issuing a decision on summary judgment decision finding that Complainant was not discriminated against based on sex and age when the Agency did not select her for a position. The Agency selected a significantly younger male candidate, and it was undisputed that Complainant was qualified for the position. The EEOC found that there were genuine issues of material facts in dispute as to whether Complainant established that the Agency's legitimate, nondiscriminatory reasons for her nonselection were pretext for discrimination. While the Selection Official (SO) stated that the male candidate was chosen after a decision was made to accept his lateral transfer for the vacancy, the record did not contain the male candidate’s written transfer request nor was he asked to provide an affidavit confirming that he requested the transfer. The SO also deleted the email containing the transfer request and was unable to produce it. Complainant alleged that the SO fabricated the male candidate’s lateral transfer request as a pretext to support the male candidate’s selection, and no other management official corroborated the SO’s assertion that the male candidate requested a lateral transfer. The SO did not deny telling Complainant that she was not selected because of her longevity which Complainant interpreted to mean because she was eligible for retirement. The SO denied ever mentioning Complainant’s retirement but claimed she did not select Complainant because Complainant acknowledged that it was her intention to only hold the position temporarily, until she could attain a Postmaster position in another office. The EEOC found the AJ clearly credited the SO over Complainant in finding that the male candidate had requested a lateral transfer and that the SO never mentioned Complainant’s retirement eligibility as the reason for her nonselection. As such, EEOC found that the AJ impermissibly relied on credibility determinations in making her summary judgment finding. The Agency did not dispute that months earlier the SO selected another younger male employee who ranked third over Complainant who was an acting supervisor at the time and ranked second. The EEOC concluded that the investigative record was not complete because it did not contain the affidavit of the male transferee, or the affidavit of the concurring official who claimed to be unaware of the selection of the male transferee. The EEOC concluded there were too many unresolved issues which required further development of the record and an assessment as to the credibility of the various management officials, other witnesses, and Complainant herself, which required a hearing. Shantay H. v. U.S. Postal Serv., EEOC Appeal No. 2019004237 (June 17, 2021).

Summary Judgment Reversed. Complainant alleged that the Agency subjected him to a hostile work environment based on his race (African-American) and in reprisal for prior protected EEO activity when on several occasions, a hangman’s noose was hung in his work area, and management failed to take sufficient action. The EEOC found a genuine dispute as to the facts surrounding the incident, including conflicting statements of witnesses concerning the description of the ropes alleged to be nooses. The record contained photos of a rope with a loop tied at the bottom end, which the Agency did not dispute was a noose, but the record contained conflicting evidence as to who took the photos and when they were taken, and no evidence as to who was responsible for the alleged nooses. The record also contained conflicting testimony about whether an investigation was conducted into the noose allegations. The EEOC concluded that too many unresolved issues remained which required an assessment as to the credibility of the management officials and a need for further development of the record regarding the alleged nooses and the Agency’s response. Therefore, the AJ erred when he concluded that there was no genuine issue of material fact in this case, relied on the Agency’s statement of facts and legal analysis, and adopted the Agency’s Motion for Summary Judgment in its entirety. Chad T. v. U.S. Postal Serv., EEOC Appeal No. 2020000836 (June 17, 2021).

Summary Judgment Reversed. The EEOC found Complainant was wrongfully denied discovery, and the AJ improperly issued a decision on summary judgment finding no discrimination. Complainant was a civilian Mariner with shipboard duties. After informing the Agency of her pregnancy, stating she was qualified, and physically fit for shipboard assignment, Complaint was declared Not Fit for Duty (NFFD). A vacant shoreside position was identified for Complainant temporarily, but the manager refused, stating that since Complainant was not disabled, the position needed to be advertised for nationwide competition. On appeal, the EEOC found some confusion as to the language used in the AJ’s discovery order. Complainant believed that, because she initiated discovery prior to the deadline, she properly complied with the terms of the AJ’s order to begin discovery. The EEOC found that the AJ abused her discretion by not allowing Complainant to complete discovery. Further, there was no evidence that the Agency was unfairly prejudiced by Complainant’s failure to timely submit her discovery requests by a mere three hours. The EEOC stated that there were material facts at issue as to whether the Agency offered Complainant other positions at other locations, and whether the Agency’s policy of not providing the same accommodation to pregnant employees that it provided other employees needing accommodation violated the anti-discrimination laws. Jennifer K. v. Dep’t of the Navy, EEOC Appeal No. 2020001035 (May 20, 2021)

Summary Judgment Reversed. The EEOC vacated the AJ’s summary judgment decision, finding that the AJ failed to address Complainant’s denial of reasonable accommodation allegation. In finding no discrimination, the AJ conducted a disparate treatment analysis and harassment analysis regarding Complainant’s claims. Complainant, however, also alleged that the Agency denied him reasonable accommodation when it provided him with a modified job offer which exceeded his medical restrictions and told him that there was no other work available for him. The EEOC found that the record needed further development regarding this claim and such development might involve credibility determinations. While the record contained statements from management officials indicating Complainant was placed in worker’s compensation leave status because there was no work available to accommodate Complainant’s restrictions, Complainant alleged that his prior modified job accommodated his restrictions. Further, the record reflected that the Agency thereafter placed Complainant back into his prior modified job and simply removed anything that violated his limitations. The EEOC concluded that Complainant’s denial of reasonable accommodation claim warranted further development regarding whether Complainant was a qualified individual with a disability and whether the Agency failed to provide him with a reasonable accommodation. Because it was remanding Complainant’s denial of a reasonable accommodation claim, the EEOC declined to fragment the complaint by separately addressing the related harassment claim. Loyd H. v. U.S. Postal Serv., EEOC Appeal No. 2020005113 (Jan. 8, 2021).

Timeliness

Complainant Timely Initiated EEO Contact Upon Reasonably Suspecting Discrimination. Complainant alleged discrimination when she was removed from her position as Postmaster and placed into a temporary detail with different days off. The Agency dismissed the complaint for untimely EEO counselor contact. On appeal, the EEOC noted that, although the Agency asserted Complainant should have been aware of the personnel action earlier, Complainant averred that she first understood the reassignment to be a temporary, six-month reassignment, and it was not until she learned that the reassignment was permanent that she reasonably suspected discrimination. The EEOC found that Complainant’s actions (i.e., calling to inquire as to when she would be returning to her prior position at the approximate six-month mark) added further validity to Complainant’s contention. The record contained no evidence rebutting Complainant’s assertion. Thus, the EEOC determined that Complainant only developed a reasonable suspicion of unlawful discrimination when she first learned that her temporary reassignment was, in fact, a permanent reassignment. Accordingly, the Agency improperly dismissed the complaint. Shana H. v. U.S. Postal Serv., EEOC Appeal No. 2021003707 (Sept. 16, 2021). Additional Decisions Addressing Reasonable Suspicion Include: Alfonso T. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021001207 (June 8, 2021) (Complainant stated that he had no reason to suspect discrimination upon initially learning of his nonselections, and only developed a reasonable suspicion of discrimination after he later received information about the race, gender, age, and qualifications of the other candidates selected or referred for selection. The EEOC found that nothing in the nonselection notifications would have prompted Complainant to believe these decisions were discriminatory); Glynda S. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021000489 (Jan. 14, 2021) (While Complainant claimed she did not know of her non-selection until her status was updated to “not hired” on the USAJobs website on June 24, 2020, the EEOC found that Complainant had, or should have had, a reasonable suspicion of discrimination more than 45 days prior to her EEO contact. Specifically, Complainant sent an email to the selecting official in December 2019, indicating she understood a tentative selection had been made, and asking for feedback on her interview. The record also contains the selecting official’s December 19, 2019 response informing Complainant that the selection committee had made its decision. Complainant also sent an email to an individual in the Agency’s Office of Inspector General seeking information as to why she was not hired); Sona B. v. U.S. Postal Serv., EEOC Appeal No. 2020004469 (Jan. 5, 2021) (While it was undisputed that Complainant’s initial EEO Counselor contact was just two days beyond the 45-day time limitation for initiating EEO contact, Complainant stated that she did not learn about the most recent incident of harassment, being displaced from her position and reassigned, until seven days later, explaining that she was on leave when her position was changed. Complainant noted that she did not learn of this change until after she returned to work); Soo C. v. Dep’t of Justice, EEOC Appeal No. 2020005492 (Nov. 30, 2020) (the EEOC rejected Complainant’s assertion that she did not learn of the discrimination until she became aware that a former male colleague who resigned in the face of pending adverse actions, did not have any derogatory comments on his personnel form. Complainant received a copy of her personnel form nearly two months earlier, recognized the negative implications of the language contained therein upon receipt, and months earlier, had taken issue with the performance improvement plan as discriminatory, retaliatory, and abusive. The additional knowledge of a possible comparator only added additional evidence to support her claim).

EEOC Found Sufficient Justification to Toll Limitation Period for Initiating EEO Complaint. An AJ granted the Agency’s motion to dismiss Complainant’s complaint for failure to timely contact an EEO Counselor. The AJ found that while Complainant learned of the discriminatory action, her termination, on September 18, 2017, and the termination notice made her aware of the 45-day limitation period for initiating EEO contact, she waited 51 days to contact the EEO office. On appeal, the EEOC noted that it has previously held that an agency may not dismiss a complaint based on a complainant’s untimeliness, if that untimeliness is caused by the agency’s action in misleading or misinforming the complainant. In this matter, the notice of termination informed Complainant that she could appeal her removal to the Section Chief (SC), who would then issue a “final and binding decision.” This misled Complainant to believe that the removal action would not be final until the SC’s determination. In addition, when the SC issued her decision, she included the contact information for the EEO Office, if Complainant wished to file an EEO complaint. The EEOC also found that the Agency misled Complainant when it accepted her complaint as timely and noted that the “final decision” on Complainant’s appeal of her removal had not been issued, as of November 28, 2017. The EEOC concluded that the Agency’s actions justified tolling the 45-day filing limitation period as Complainant was under the impression that her removal would not be “final and binding” until the SC’s December 12, 2017 decision. Willa B. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020003720 (Sept. 2, 2021).

AJ Improperly Dismissed One Allegation in Complaint for Untimely EEO Counselor Contact. Complainant initially contacted an EEO Counselor on May 30, 2019, and ultimately filed a formal complaint alleging discrimination regarding, among other things, her nonselection for a Supervisory position in April 2019. An AJ dismissed the entire complaint for failure to timely contact an EEO Counselor. On appeal, the EEOC affirmed the dismissal of all claims except the nonselection. The AJ determined that the limitation period for initiating EEO contact began on April 1, 2019. The record, however, showed that Complainant stated that while she heard a rumor on that day that some applicants had been interviewed for the position while she had not, Complainant was not officially notified of her nonselection until April 15, 2019, when she received an email from human resources. Therefore, Complainant timely contacted the EEO Counselor with regard to her April 2019 nonselection, and the EEOC remanded that matter for a hearing. Amber W. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2021002641 (July 28, 2021).

Complaint Timely Contacted EEO Counselor Within 45 Days of Effective Date of Removal. The EEOC reversed the Agency’s dismissal of Complainant’s complaint on grounds that Complainant did not contact the EEO Counselor within the 45-day window required by the EEOC’s regulation. The EEOC stated that complaints of discrimination should be brought to the attention of the EEO Counselor within 45 days of the date of the matter alleged to be discriminatory, or within 45 days of the effective date of a personnel action. In this case, while Complainant was notified of his removal on June 12, 2020, the removal was not effective until June 25, 2020. Therefore, Complainant’s contact with the EEO Counselor on August 8, 2020, was within the 45-day limitation period. Les B. v. U.S. Postal Serv., EEOC Appeal No. 2021001934 (Mar. 31, 2021).

EEOC Found Adequate Justification to Excuse Delay in Contacting EEO Counselor. Complainant filed a formal complaint alleging that the Agency terminated his employment on August 20, 2019. The Agency dismissed the complaint, stating that he did not initiate contact with an EEO Counselor until March 2, 2020, which was beyond the 45-day limitation period. On appeal, the EEOC noted that Complainant provided documentation showing that he contacted the Florida EEOC on Human Rights, sent a letter to the Agency’s EEO office nine days after the event which was returned, and tried contacting the EEOC’s District Office. There was no information as to whether Complainant, who was a recent hire, received any training or other information about the EEO complaint process. It was also not clear as to how Complainant was finally directed to the appropriate EEO office. Therefore, the EEOC was not convinced that Complainant was made aware of where and when he needed to contact an EEO Counselor, and Complainant presented adequate justification to excuse his delay. Jerrold K. v. Dep’t of Commerce, EEOC Appeal No. 2020005298 (Feb. 9, 2021).

EEOC Found Adequate Justification to Excuse Delay in EEO Contact. The Agency dismissed Complainant’s complaint alleging discrimination when he was denied a transfer for failure to timely contact an EEO Counselor. The record showed that while the alleged discrimination occurred on March 30, 2020, and April 12, 2020, Complainant did not contact an EEO Counselor until June 25, 2020, which was beyond the 45-day limitation period. The EEOC noted, however, that Complainant asserted that he was unaware of the time limitation, and the Agency failed to provide documentation showing that Complainant had actual or constructive knowledge of the 45-day time limit. Specifically, there was no evidence that EEO posters were displayed at the facility where Complainant was employed. Further, Complainant stated that the pandemic impeded his efforts to pursue the EEO complaint process during the relevant period. Therefore, the EEOC concluded that Complainant presented sufficient justification to excuse his relatively brief delay in seeking EEO counseling. Reid J. v. U.S. Postal Serv., EEOC Appeal No. 2021001336 (Jan. 22, 2021).

Complainant Timely Initiated EEO Counselor Contact by Contacting Individual Logically Connected to the EEO Process. Complainant contacted an EEO Counselor by email on March 29, 2018, and subsequently filed a formal complaint, alleging retaliation when certain duties of his were revoked on March 21, 2018, and a manager threatened to terminate him on March 28, 2018. The EEO Counselor whom Complainant contacted had been the EEO Counselor for Complainant in a prior EEO matter. In his March 29th email, Complainant raised a new allegation of reprisal. On or about April 13th, the EEO Counselor told Complainant that he must initiate separate EEO counseling for this new matter, and Complainant contacted the Agency’s Civil Rights Office on May 21st. An AJ ultimately dismissed the complaint, noting that Complainant failed to seek separate EEO counseling until May 21st, which was after the 45-day limitation period. On appeal, the EEOC reversed the dismissal, finding that by sending the March 29th e-mail, Complainant had both contacted someone logically connected to the EEO process and exhibited an intent to begin the EEO complaint process. The EEOC further noted that the EEO Counselor’s call on April 13th did not change the fact that Complainant’s initial EEO Counselor contact had already taken place on March 29th. Moreover, the EEO Counselor erred in telling Complainant to initiate contact again; rather, the EEO Counselor should have opened a new EEO case for Complainant or forwarded his email to another EEO Counselor. Based on the foregoing, the EEOC found that Complainant timely initiated EEO Counselor contact, and thus, the Agency’s final action implementing the AJ’s dismissal was reversed, and the matter was remanded for a hearing. Marquis K. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020004187 (Nov. 23, 2020).

Fear of Retaliation Insufficient to Toll Limitation for Initiating EEO Contact. The EEOC affirmed the Agency’s dismissal of Complainant’s complaint for untimely EEO Counselor contact. Complainant alleged discrimination when he was not selected for a position in May 2019. Complainant did not initiate contact with the EEO Counselor, however, until November 2019, well past the 45-day limitation period. Complainant cited fear of reprisal as his reason for not timely pursuing a complaint. However, the EEOC has generally held that, without more, fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO counselor. Matt B. v. Dep’t of Justice, EEOC Appeal No. 2021000390 (Mar. 16, 2021).

EEOC 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 EEOC found this statement sufficient to show Complainant had constructive knowledge of the relevant time limitation. The EEOC also rejected Complainant’s claim that the Agency’s actions caused her delay. While the EEOC has tolled limitation periods because an agency’s actions mislead an individual concerning his/her EEO rights, the EEOC 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 EEOC applied the doctrine of laches and found insufficient justification for extending or tolling the time limit. Shan D. v. Soc. Sec. Admin., EEOC Appeal No. 2020003438 (Nov. 16, 2020).

Contact with Agency Human Resources Personnel and Management Does Not Constitute EEO Contact. The EEOC affirmed the Agency’s dismissal of Complainant’s complaint for failure to timely contact an EEO Counselor. It was undisputed that Complainant made EEO contact more than 45 days after the alleged discriminatory incident. While Complainant asserted that she contacted Human Resources, high-level managers, and Agency legal advisors within the time limitation, Complainant stated that she was seeking reconsideration of the Agency’s decision to terminate her candidacy for a specific position. The record showed that she did not seek to begin the EEO process during that time, and the EEOC has consistently held that utilizing other agency procedures does not toll the time limit for contacting an EEO Counselor. The EEOC also noted that Complainant did not specify if, or how, she was prevented from making EEO contact by the pandemic. Therefore, the EEOC found no justification for extending the 45-day limitation period. Takako Y. v. Dep’t of State, EEOC Appeal No. 2021000174 (Jan. 22, 2021).

Use of Other Agency Procedures to Resolve Matter Was Insufficient to Toll Time Limitation for EEO Contact. Complainant initiated EEO contact in September 2019 with regard to incidents that occurred in August 2018. The EEOC 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 EEOC 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 EEOC 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 EEOC 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 EEOC has consistently held that the utilization of other agency procedures does not toll the time limit for contacting an EEO Counselor).

Agency Failed to Meet Burden to Establish Complaint Untimely Filed. The Agency dismissed Complainant's formal complaint on the grounds that it was untimely filed, asserting that while the Notice of Right to File a Complaint was received at Complainant's address of record on January 16, 2021, he did not file his formal complaint until February 2, 2021, beyond the required 15-day timeframe. On appeal, the EEOC found that the dismissal was improper. Complainant stated that he retrieved the Notice from his apartment cluster mailbox on January 19, 2021, the day after the Martin Luther King federal holiday. Complainant further indicated that he did not sign the confirmation sticker on the envelope, and did not know who did. The EEOC has held that equity demands that a complainant be provided with adequate notice when the presumption of constructive receipt is relied on the dismissal for untimeliness to provide him with a full and fair opportunity to rebut it. In this case, the Agency did not advise Complainant that it was relying on the doctrine of constructive receipt, but merely asserted that the record reflected that Complainant received the Notice on January 16, 2021. Therefore, Complainant was not provided with the opportunity to demonstrate on appeal that the unidentified individual who signed for the Notice at his address of record was not a family member or member of his household of suitable age and discretion. Darrin H. v. U.S. Postal Serv., EEOC Appeal No. 2021002646 (Aug. 24, 2021). Additional Decisions Addressing Issue of Receipt by Complainant Include: Karin C. v. U.S. Postal Serv., EEOC Appeal No. 2021000398 (Feb. 11, 2021) (The record was insufficient to establish when Complainant and her representative received the Notice of Right to File. Although a Postal Service tracking document indicated that the letter containing the Notice was left at Complainant’s front door or on her porch, there was no proof that Complainant actually received it, and the record also contained sufficient evidence to support Complainant’s claim that neither she nor her representative received the letter. The EEOC noted that where there is an issue of timeliness, the agency always bears the burden of obtaining sufficient information to support a reasoned determination on the issue); Danita S. v. Dep’t of Educ., EEOC Appeal No. 2021000774 (Feb. 2, 2021) (the EEOC found sufficient justification to excuse Complainant’s brief delay in filing her complaint. While UPS tracking documentation showed that a Notice of Right to File a Complaint was left at Complainant’s front door, there was no evidence to show that the package was personally received by Complainant or anyone at her residence on September 2, 2020, as the Agency claimed. Complainant asserted that she received the Notice on September 4, 2020. Given the lack of evidence showing that Complainant or anyone at her residence was aware of the delivery of the package, the EEOC exercised its discretion and excused Complainant’s one-day delay in filing her complaint); Delphia F. v. Dep’t of Housing & Urban Dev., EEOC Appeal No. 2020004684 (Nov. 30, 2020) (the Agency did not provide adequate mail confirmation to support a determination as to when Complainant received the Notice of Right to File a Formal Complaint. The tracking confirmation did not show that the Notice was delivered to Complainant’s home address on the date in question; rather, it simply showed delivery to a specific town. Further, although the record included an email from Complainant’s non-legal representative indicating that Complainant received the Notice on a certain date, Complainant expressly denied this, asserting that she did not receive the Notice until a later date. Therefore, there was insufficient evidence in the record from which to conclude the formal complaint had been untimely filed).

Complaint Timely Filed within 15 Days of Attorney’s Receipt of Notice of Right to File. The EEOC reversed the Agency’s dismissal of Complainant’s complaint on grounds of untimeliness. While the record showed that Complainant received the Notice of Right to File a Formal Complaint on May 16, 2020, her attorney asserted that she did not receive the notice until two days later, and the Agency failed to provide any evidence to the contrary. The EEOC’s regulations provide that, when a complainant designates an attorney representative, the time frames are computed from the attorney’s receipt. Therefore, Complainant’s complaint was timely filed on June 2, 2020. Sandra N. v. U.S. Postal Serv., EEOC Appeal No. 2021000558 (Feb. 2, 2021).

Complaint Improperly Dismissed as Untimely. Complainant filed a formal EEO complaint, which the Agency dismissed as untimely. The EEOC reversed the Agency’s decision on appeal. The EEOC 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 EEOC concluded that the Agency did not provide any evidence to support its claimed April 22, 2020 filing date. The EEOC 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 EEOC 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.

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The DIGEST of Equal Employment Opportunity Law

Selected EEOC Decisions Regarding:

SELECTED EEOC DECISIONS

Attorney’s Fees

Class Certification

Compensatory Damages

Dismissals

Findings on the Merits and Related Decisions

Under the Age Discrimination in Employment Act

Under the Equal Pay Act

Under the Rehabilitation Act

Under Title VII

Under Multiple Bases

Retaliation

Mixed Motive

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness