The EEOC redacts complainants’ names when it publishes decisions. All federal sector appellate decisions issued for publication use a randomly generated name as a substitute for the name of the complainant. A computer program randomly generates a first name and last initial from a list of pseudonyms that bear no relation to the complainant’s actual name. This ensures the privacy of complainants and is consistent with the EEOC's approach in its enforcement work and the investigations of complaints. The summaries below are not intended to be exhaustive or definitive and should not be given the legal weight of case law in citations. For summaries of decisions involving claims of harassment, see “Findings on the Merits” by statute, as well as “Under Multiple Bases.”

SELECTED EEOC DECISIONS

Attorney’s Fees

EEOC Affirmed AJ’s Award of Attorney’s Fees. Following a hearing, an EEOC Administrative Judge (AJ) found that the Agency failed to reasonably accommodate Complainant and retaliated against her for prior EEO activity. The AJ ordered the Agency, among other things, to pay Complainant $77,800 in attorneys’ fees. The Agency subsequently issued a final order adopting the AJ’s finding of discrimination but rejecting the compensatory damages and attorneys’ fees awards. The EEOC affirmed the AJ’s award of attorney’s fees on appeal. A review of the record and the hearing transcript demonstrated that both of Complainant’s attorneys actively participated in the hearing and that the time expended by Complainant’s two attorneys was not duplicative, but rather complementary of each other. Furthermore, the fee petition’s billing entries were reasonable and sufficiently detailed. Accordingly, the AJ properly awarded Complainant $77,800 in attorneys’ fees. Carol P. v. Small Business Admin., EEOC Appeal No. 2021004687 (Mar. 9, 2022). (Discussion of the award of compensatory damages may be found below).

EEOC Reversed Agency’s Reduction of Attorney Fees. The Agency issued a final order accepting a finding of discrimination from an EEOC AJ but reduced the award of attorneys’ fees. The AJ had awarded the full amount requested. The Agency noted that Complainant’s lead attorney (Attorney-1) provided sufficient information about her skills and experience to substantiate her claimed fees. However, the Agency asserted that there was insufficient information to support the fees charged by Complainant’s two other attorneys of record (Attorney-2 and Attorney-3) as well as others who worked on the case (such as paralegals, interns, and other attorneys). In addition, the Agency stated that the record lacked substantial evidence to support the reasonableness of many of the fees claimed or the AJ’s acceptance of the use of three attorneys of record for a case that was not overly complex. Finally, the Agency asserted that Complainant’s legal team made no effort to eliminate redundant or unnecessary hours, such as having multiple attorneys participate in calls and prepare for and attend hearings when not all attorneys actually played a role.

On appeal, the EEOC noted there was a strong presumption of entitlement to fees for the prevailing party. Complainant submitted a sworn statement from Attorney-3 attesting to the accuracy of the fee petition and addressing her skills and qualifications. Additionally, the EEOC found that the use of multiple counsel and support staff was not excessive, duplicative or redundant due to the extended timespan (six years) of the legal representation. The EEOC noted that the billing entries for Attorney-2 and Attorney-3 provide the same level of detail as the billing entries for Attorney-1, whom the Agency conceded had provided sufficient specificity. Some of the hours claimed included reviewing copied emails or participating in group conference calls. The EEOC acknowledged that these hours were reasonable, as both Attorney-2 and Attorney-3 engaged in those activities to learn the latest details of the case. Moreover, the hours Attorney-3 spent at the hearing were compensable. Thus, the EEOC concluded that substantial evidence supported the AJ’s award of attorneys’ fees. Orlando O. v. Dep't of Justice, EEOC Appeal No. 2021003074 (Nov. 15, 2021).

Class Certification

Class Certification Denied. Complainant filed a formal EEO complaint alleging a hostile work environment when the Agency restricted employees with pending EEO activity from participating on an EEO advisory committee. An AJ ultimately denied class certification in the matter, and the EEOC affirmed the decision on appeal. The AJ found that the claim did not meet the requirement of numerosity where there were no more than 28 potential class members. Complainant named no specific class members other than himself when asked to provide a list of individuals that would be appropriate class members. Further, while Complainant’s initial claim of reprisal was typical to the class, his claims of race, color and age discrimination were not. Finally, Complainant, who was not an attorney and had not retained counsel, could not adequately represent the interests of the class. Complainant’s individual complaint was remanded for further processing by the Agency. David H. v. Dep’t of Homeland Sec., EEOC Appeal No. 2021001512 (Mar. 16, 2022).

Compensatory Damages

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

EEOC Affirmed AJ’s Award of $200,000 in Nonpecuniary Compensatory Damages. An AJ found that the Agency denied Complainant reasonable accommodation and retaliated against him. The AJ awarded Complainant $200,000 in nonpecuniary damages among other things to compensate Complainant for harm such as emotional pain and suffering sustained as a result of the discrimination. The EEOC affirmed the AJ’s award on appeal, noting that Complainant credibly testified that the Agency’s actions resulted in his hospitalization. Specifically, Complainant stated that he suffered a nervous breakdown which led to a 10-week hospitalization. The record clearly established that Complainant was unable to work for approximately eight months. During this period, the Agency continued its pattern of harassment toward Complainant, repeatedly sending emails to his personal email address questioning his leave status and stating he needed to return to work or face termination. The evidence indicated that Complainant would have continued working but for the discrimination. Doyle S. v. Dep’t of Interior, EEOC Appeal No. 2021003144 (Mar. 17, 2022).

EEOC Increased Award of Nonpecuniary Compensatory Damages to $100,000. The EEOC previously found that the Agency denied Complainant reasonable accommodation. The Agency awarded Complainant $25,000 in nonpecuniary compensatory damages to compensate him for harm such as pain and suffering resulting from the discrimination. The EEOC increased the award to $100,000 on appeal, to better reflect the severity of the harm caused by the discrimination. Complainant suffered depression, anxiety and stress because he was forced to sit at his desk with nothing to do for approximately five years. In addition, the Agency’s failed to provide a place to relieve his guide dog, which led to Complainant falling and injuring his shoulder. Complainant provided medical evidence to support his claim for damages, showing that he experienced suicidal thoughts, fatigue, muscle tics, as well as panic attacks severe enough to require trips to the emergency room. The EEOC concluded that Complainant did not prove his claim for pecuniary damages. Clifford L. v. U.S. Postal Serv., EEOC Appeal No. 2021001926 (Feb. 2, 2022).

EEOC Increased Award of Nonpecuniary Compensatory Damages to $60,000. The EEOC found that the Agency’s award of $20,000 in nonpecuniary compensatory damages was insufficient to account for the harm Complainant suffered as a result of the discrimination. The denial of Complainant’s request for accommodation worsened her preexisting Type I diabetes and caused new health problems, including gastroparesis, autonomic neuropathy, and hypoglycemic unawareness. Complainant experienced intolerable levels of depression and anxiety, started therapy, and was prescribed medication. Complainant became socially withdrawn and estranged from her adult children due to the mental harm she suffered. The EEOC found that an award of $60,000 in nonpecuniary compensatory damages more appropriately compensated Complainant for the harm caused by the Agency’s discrimination. The EEOC also increased the award of pecuniary damages for out-of-pocket expenses for her copays, fees, and costs for her medical records, as well as the withdrawal of her Thrift Savings Plan. Jona R. v. Dep’t of State, EEOC Appeal No. 2020004549 (Mar. 31, 2022).

EEOC Affirmed AJ’s Award of $50,000 in Nonpecuniary Compensatory Damages. Following a hearing, an EEOC Administrative Judge (AJ) found that the Agency failed to reasonably accommodate Complainant and retaliated against her for prior EEO activity. The AJ ordered the Agency, among other things, to pay Complainant $50,000 in nonpecuniary compensatory damages. The EEOC affirmed the award on appeal, finding that amount appropriately compensated Complainant for the harm caused by the Agency. Complainant experienced both emotional and physical distress, including mood swings, loss of joy, migraines, emotional distress, exacerbation of high blood pressure, sleeplessness, marital discord, and loss of self-esteem. Complainant’s testimony, as well as that of family members, which the AJ found credible, supported her claim. Carol P. v. Small Business Admin., EEOC Appeal No. 2021004687 (Mar. 9, 2022). (Discussion of Attorney’s Fees Found Above).

EEOC Increased Award of Nonpecuniary Compensatory Damages to $30,000. The EEOC found that the Agency’s award of $12,000 in nonpecuniary compensatory damages was insufficient to compensate Complainant for the emotional harm caused by her discriminatory non-promotion. Complainant experienced damage to her career, extreme stress, feelings of inadequacy, hives, skin irritation, hair loss, relationship strain, and poor sleep. Complainant sought therapy for work and family stress, and was diagnosed with adjustment disorder, anxiety, and depression. The EEOC concluded that an award of $30,000 in nonpecuniary compensatory damages more appropriately compensated Complainant for the harm caused by the Agency. This award was consistent with the amount awarded in similar cases. Terrie M. v. Dep’t of State, EEOC Appeal No. 2021002279 (Mar. 31, 2022).

EEOC Increased Award of Nonpecuniary Damages to $10,000. The EEOC previously found that Complainant’s supervisor retaliated against her with regards to certain comments he made. The Agency awarded Complainant $1,000 in nonpecuniary compensatory damages, which the EEOC increased to $10,000 on appeal. The EEOC initially noted that while Complainant stated that she was “retraumatized” during the EEO process, compensatory damages are not available for stress related to pursuing an EEO complaint. In addition, Complainant did not support her claim that she suffered harm over a three-year period. Complainant stated that she experienced depression, anxiety, loss of enjoyment of life, and dental problems due to grinding her teeth. The medical documentation of record, however, did not support that all of Complainant’s claimed harm was connected to the retaliation. Complainant did seek medical care for emotional harm approximately one month after the retaliation, complained of work-related stress, anxiety, panic attacks, and feelings of hopelessness, and was diagnosed with depression and prescribed medication. Complainant’s physician noted that she was doing much better the following week. The EEOC concluded that an award of $10,000 in nonpecuniary damages was more appropriate based on the nature, severity, and duration of Complainant’s harm. The EEOC affirmed the Agency’s decision regarding pecuniary damages. Leora R. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2020004621 (Apr. 11, 2022).

EEOC Increased Award of Compensatory Damages to $10,000. The EEOC previously found that the Agency discriminated against Complainant when it revoked an offer of employment, and ordered the Agency, among other things, to investigate his claim for damages. The Agency subsequently awarded Complainant $3,500 in damages, which the EEOC increased to $10,000 on appeal. The EEOC noted that the Agency failed to consider Complainant’s affidavit when it determined compensatory damages. Complainant explained that losing out on the job caused continuing stress, and adversely affected his sense of self-worth. Complainant experienced sadness, depression, and did not enjoy things he once enjoyed. Complainant’s wife confirmed his symptoms. The EEOC noted that some of Complainant’s emotional distress was caused by factors other than the discrimination and concluded that an award of $10,000 was appropriate. Joshua F. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020003749 (July 28, 2021), request for reconsideration denied, EEOC Request No. 2021004850 (Jan. 26, 2022).

Award of $3,000 in Nonpecuniary Damages Affirmed. The Agency found that management unreasonably delayed processing Complainant’s request for reasonable accommodation and awarded him $3,000 in nonpecuniary compensatory damages. The EEOC affirmed the award on appeal. Complainant provided limited testimony during the investigation describing the difficulties he experienced when trying to obtain reasonable accommodations. Complainant asserted that he suffered undue stress that aggravated his chronic fatigue syndrome symptoms, and that he went to the hospital for heart palpitations, but he did not provide any medical records. The investigative record contained a statement from Complainant’s physician in support of the reasonable accommodation request, but that showed no evidence of any harm Complainant may have suffered as a result of the Agency’s delay in granting him reasonable accommodation. Complainant did not provide further evidence in support of a compensatory damages award when given the opportunity to do so. Thus, the EEOC found that an award of $3,000 was appropriate. Jeffrey K. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020004403 (Jan. 19, 2022).

EEOC Increased Compensatory Damages Award to $2,000. The EEOC previously found that the Agency violated the Rehabilitation Act by disclosing confidential health information to unauthorized persons. The Agency then awarded Complainant $500 in nonpecuniary compensatory damages, and determined Complainant was not entitled to pecuniary damages. While the EEOC agreed that Complainant did not provide evidence to establish a claim for pecuniary damages, the EEOC increased the award of nonpecuniary damages to $2,000. The record showed that the disclosure of Complainant’s medical information occurred in April 2017 and continued until at least December 2017. As a result, Complainant stated that she experienced anxiety, insomnia, altered self-esteem, embarrassment, and humiliation. Ebony M. v. U.S. Postal Serv., EEOC Appeal No. 2020004813 (Jan. 12, 2022).

Complaint Processing

EEOC Remanded Complaint After the MSPB Dismissed Appeal for Lack of Jurisdiction. The EEOC vacated the Agency’s final decision finding no discrimination, noting that the EEOC AJ erred in dismissing Complainant’s hearing request in regard to her reasonable accommodation claim. The EEOC stated that the reasonable accommodation claim could not be appealed to the Merits Systems Protection Board (MSPB) due to lack of jurisdiction. The EEOC determined that the Agency should have separated the non-mixed allegations from mixed case allegations by issuing a final decision with appeal rights to MSPB only for the mixed case allegations and notifying complainant of right to request an EEOC hearing for the non-mixed allegations. After the EEOC AJ dismissed Complainant’s hearing request, the Agency designated the constructive discharge claim as a mixed-case complaint and provided Complainant with appeal rights to the MSPB. The EEOC determined that because the MSPB AJ subsequently dismissed Complainant’s appeal for lack of jurisdiction, the Agency was required to recommence processing the matter as a non-mixed case. As such, the EEOC found that the constructive discharge claim should have been processed as a non-mixed case, and that the EEOC AJ improperly dismissed Complainant’s hearing request with respect to her reasonable accommodation claim. Jene M. v. Dep’t of Homeland Sec., EEOC Appeal No. 2021000224 (March 24, 2022).

EEOC Ordered Agency to Comply with Final Decision. The Agency dismissed Petitioner’s complaint for failure to state a claim on grounds that Petitioner, as a U.S. citizen, was not “legally” employed at the German facility where he worked. The EEOC previously reversed the dismissal of Petitioner’s complaint. In a prior decision, the EEOC found that Petitioner had worked for the Agency in various positions in Germany and filed EEO complaints that were accepted and fully adjudicated. This undermined the Agency’s assertions that Petitioner was not legally employed and was not entitled to use the federal EEO process. The EEOC ordered the Agency to issue a final decision on the merits of Complainant’s claim within 30 calendar days of the date the appellate decision was issued. The EEOC noted that the matter appeared to be part of a pattern where the Agency has failed to comply with the EEOC’s orders, and advised the Agency that any failure to comply to the order in this case would result in a referral to the EEOC’s Office of Federal Operations, Federal Sector Programs for further review. Ezra C. v. Dep’t of the Air Force, EEOC Appeal No. 2022000639 (Feb. 7, 2022).

EEOC Ordered Joint Processing of Complaint. Complainant, an employee of the Department of Commerce’s Census Bureau (Census), worked on an interagency research project that was funded and directed by the Department of Housing and Urban Development (HUD). Complainant filed a formal EEO complaint with HUD alleging that she was subjected to sex-based and retaliatory harassment. HUD dismissed the formal complaint for failure to state a claim, essentially finding that it was not Complainant’s employer. HUD acknowledged its interagency agreement with Census but asserted that HUD did not have jurisdiction or control over the terms and conditions of Complainant’s employment. On appeal, the EEOC noted that when two agencies bear joint responsibility over the alleged discrimination, both agencies must jointly process the EEO complaint. According to the record, Complainant initiated the EEO process with both Census and HUD, each of which attributed responsibility to the other agency. The EEOC found that liability for the alleged discrimination must be determined by examining acts and decisions by both Census and HUD. Thus, the EEOC remanded the complaint for joint processing by both agencies. Anastasia C. v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 2021003693 (Nov. 8, 2021).

Dismissals

(See also by category, this issue.)

Agency Improperly Dismissed a Claim for Untimely EEO Counselor Contact. The Agency dismissed Complainant’s claim regarding the denial of leave for untimely EEO Counselor contact, and subsequently found no discrimination regarding her claim that the Agency continued to deny her leave requests. The EEOC reversed the dismissal on appeal, finding that the Complainant was alleging an ongoing hostile environment, including, but not limited to, being denied a reasonable accommodation on an ongoing basis for her pregnancy. The ongoing hostile work environment allegedly continued through the date complainant sought EEO counseling, and, as such, her contact was timely. Furthermore, this represented a recurring violation because Complainant’s claim of a hostile work environment involved an ongoing denial of reasonable accommodation. Thus, the EEOC found that Complainant’s overall hostile work environment claim was timely raised and remanded the entire complaint for further processing. Emilia Z. v. U.S. Postal Serve., EEOC Appeal No. 2021003600 (Apr. 25, 2022).

Agency’s Dismissal of Harassment Claim for Untimely EEO Counselor Contact and Failure to State a Claim Was Improper. The EEOC determined that the Agency’s dismissal for untimely EEO Counselor contact was improper. Complainant’s entire complaint of harassment was actionable and timely because at least one incident occurred within the 45-day period required to contact an EEO Counselor. In addition, the Agency improperly dismissed a portion of Complainant’s complaint for failure to state a claim. The EEOC determined that the incidents, when viewed collectively, set forth an actionable hostile work environment claim. America K. v. Dep’t of the Army, EEOC Appeal No. 2022000432 (March 29, 2022).

Agency Improperly Dismissed Complaint on Grounds Claims Were Previously Raised. The EEOC found that the Agency improperly dismissed Complainant’s complaint as being previously raised. The record did not contain a copy of the previous complaint or any other documentation establishing that Complainant had previously raised the same matters. Therefore, the Agency did not meet its burden to produce evidence in support of its final decision, and the EEOC reversed the Agency’s dismissal of the complaint. Angella F. v. U.S. Postal Serv., EEOC Appeal No. 2022000387 (March 28, 2022).

Complaint Improperly Dismissed on Grounds of Mootness. Complainant alleged that the Agency discriminated against her when it denied her overtime and her supervisor delivered the excess mail. The Agency dismissed the complaint on grounds that the matter was moot, because Complainant’s claim for overtime pay had been resolved through an earlier grievance. The EEOC reversed the decision on appeal. While Complainant’s union grievance remedied much of the harm in Complainant’s EEO complaint, Complainant had made a viable claim for compensatory damages. Therefore, the Agency could not dismiss the complaint as moot. Azucena X v. U.S. Postal Serv., EEOC Appeal No. 2022001126 (Mar. 14, 2022).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact and Mootness. Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin and disability when he was reassigned on April 11, 2021, as part of the interactive reasonable accommodation process. The Agency dismissed this claim for untimeliness and mootness, but the EEOC reversed the decision on appeal. Complainant timely contacted an EEO Counselor within 45 days of the effective date of the personnel action at issue. In addition, the Agency, in determining that the matter was moot, addressed the merits of Complainant's complaint without a proper investigation as required by the regulations. The EEOC found that the Agency's articulated reason for the action in dispute, that Complainant was provided with a reasonable accommodation, went to the merits of the complaint without a proper investigation. Accordingly, the Agency's dismissal was improper. Virgilio M. v Dep’t of the Navy, EEOC Appeal No. 2022000187 (Mar. 3, 2022).

Agency Failed to Support Dismissal for Stating the Same Claim as Previously Raised. Complainant filed a formal complaint alleging discrimination after being placed on leave on May 1, 2014, and issuance of a Proposed Notice of Removal on June 13, 2014. The Agency dismissed this claim as having been raised in a prior complaint. On appeal, the EEOC noted that the record contained insufficient evidence to support the Agency’s decision. The Agency did not include any copies of this earlier complaint (or related documents) and failed to substantiate the basis for its dismissal. Tyson A. v. U.S. Postal Serv., EEOC Appeal No. 2022000322 (Mar. 2, 2022).

Complaint Improperly Dismissed as Being Moot. The Agency dismissed Complainant’s claim of discrimination on grounds that it was moot, noting that the letter of warning raised by Complainant had been resolved through a grievance settlement. The EEOC reversed the dismissal on appeal. Complainant asserted that the letter of warning was still in his file at the time of his appeal. The EEOC also found that the grievance settlement agreement did not absolve Complainant of the violation that he had been charged with, but simply reduced the penalty to a discussion. Furthermore, while the settlement agreement stated that the letter of warning would expire on April 18, 2022, pending no further discipline, the settlement agreement did not completely and irrevocably eradicate the effects of the alleged discrimination. Specifically, it could not be said with assurance that the discussion would be removed from Complainant’s file. Accordingly, the Agency’s dismissal of the complaint as moot was improper. Jesse A. v. U.S. Postal Serv., EEOC Appeal No. 2022000308 (Jan. 19, 2022).

Complaint Improperly Dismissed for Failure to State a Claim and Untimely EEO Counselor Contact. Complainant contacted an EEO Counselor, and subsequently filed a formal complaint alleging that she was subjected to a hostile work environment for approximately three months. Complainant cited various incidents involving a coworker and a named supervisor in support of her claim. The Agency dismissed all incidents Complainant raised with the EEO Counselor, finding that Complainant abandoned those matters because she did not include them in her formal complaint. The Agency also dismissed one incident which occurred more than 45 days prior to Complainant’s initial EEO contact as untimely, and another incident which it found was not sufficiently severe to state a claim of harassment. The EEOC reversed the decision on appeal. The EEOC stated that a fair reading of the EEO Counselor’s report, formal complaint, and Complainant’s statement on appeal revealed that Complainant was alleging that she was subjected to ongoing harassment by the coworker that included all of the incidents discussed during counseling, including the specific incident dismissed by the Agency as not sufficiently severe. Furthermore, the EEOC found that all of the incidents were like or related to that specific incident and the overall harassment claim. Thus, the incidents, when viewed together, stated an actionable claim of harassment, and the EEOC remanded the claim for processing. Detra S. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021004619 (Jan. 13, 2022).

Complaint Improperly Dismissed for Failing to State a Claim and Failing to Respond to a Written Request for Clarification. The Agency characterized Complainant’s complaint as alleging that a supervisor came to Complainant’s new assignment on one occasion and glared at him. The Agency dismissed Complainant’s complaint for failing to state a claim of discrimination on the bases of disability and reprisal for prior protected EEO activity. On appeal, the Agency stated that Complainant did not provide evidence of any adverse action from his employer or show that he was denied any entitlement in relation to his employment. The EEOC found that the Agency mischaracterized Complainant’s complaint. The Agency ignored management’s statement to the EEO Counselor that Complainant requested an accommodation. Complainant was essentially claiming that management violated his medical restrictions and changed his light duty assignment, which would render him aggrieved. Furthermore, there was no evidence that the Agency issued a request to the Complainant for relevant information or provided a notice of dismissal. Thus, the Agency improperly dismissed the complaint. Ariel L. v. U.S. Postal Serv., EEOC Appeal No. 2021004248 (Jan. 10, 2022).

EEOC Affirms Agency’s Dismissals of Two Claims Involving Discrete Acts, But Reversed Dismissal of Harassment Claim. Complainant filed a complaint alleging harassment and hostile work environment claims and reprisal for prior protected EEO activity. Complainant outlined 13 different incidents. The Agency dismissed one claim concerning Complainant’s Office of Worker’s Compensation Programs (OWCP) claim for failure to state a claim and another claim for failure to timely contact an EEO Counselor. Complainant’s other claims were subsequently dismissed for failure to cooperate. The EEOC affirmed the Agency’s dismissal of the allegation concerning Complainant’s OWCP claim, which was based on an Agency management official that allegedly submitted fraudulent documents to OWCP. This matter constituted an impermissible collateral attack on the OWCP process and failed to state a claim within the meaning of EEO regulations. The EEOC also affirmed the dismissal of Complainant’s allegation regarding a disciplinary action. The record showed that the action occurred more than 45 days prior to Complainant’s contact with the EEO Counselor and was untimely. The EEOC noted, however, that while the claim could not be considered as a discrete act, it could be considered with Complainant’s harassment claim.

The EEOC concluded that the Agency improperly dismissed Complainant’s remaining claim of harassment for failure to cooperate and should have issued a decision on the merits. While the EEO Investigator requested that Complainant complete an affidavit on multiple occasions, the EEOC was not convinced that the Agency provided Complainant with written notice that the failure to do so within 15-days could result in the dismissal of her complaint. There was no evidence Complainant actually received the only written notice containing a deadline for responding to the Investigator’s request. None of the other emails or forms requesting information or an affidavit specified a deadline or advised Complainant that her complaint could be dismissed. Furthermore, the record was sufficiently developed for the Agency to adjudicate Complainant’s claim on the merits, and there was no evidence Complainant was uncooperative. While the EEOC found that Complainant’s explanation for her failure to submit an affidavit was insufficient to warrant an extension, the EEOC concluded that Complainant’s actions were not an intentional delay, and she had already provided ample information regarding her claim. The record also contained sufficient information to adjudicate the complaint. Rosamaria F. v. U.S. Postal Serv., EEOC Appeal No. 2021004197 (Jan. 10, 2022).

Agency Improperly Dismissed Complaint on Grounds that Complainant Previously Filed a Grievance on the Same Matter. Complainant alleged discrimination and reprisal when she was placed on a swing shift until a new position could be found to accommodate her permanent, light duty status. Complainant also asserted that she involuntarily accepted a new position to avoid termination. The Agency dismissed the first claim on the grounds that Complainant had resolved the matter through a negotiated grievance procedure and dismissed the second claim for failure to state a claim. With respect to the first claim, the EEOC had previously found a procedural dismissal improper where the record did not contain a copy of the relevant portion of the collective bargaining agreement (CBA) reflecting that claims of discrimination were permitted to be raised in the grievance process. In this case, while the Agency provided sufficient evidence that Complainant raised the event described in the first claim through the negotiated grievance procedure, the Agency did not offer evidence that the CBA permitted the acceptance of grievances which alleged discrimination. Although the Agency had identified various Articles of the CBA, the only excerpt actually contained in the record did not address whether the CBA would permit Complainant to raise issues of discrimination in the grievance process. Thus, the Agency failed to meet its evidentiary burden. With respect to the second claim, the EEOC determined that Complainant was challenging an employment action taken by the Agency and the stated reason for its action, that she was reassigned because it was approved by the Office of Workers’ Compensation Programs (OWCP). As such, the Agency addressed the merits of the complaint and such arguments were irrelevant to the procedural issue of whether Complainant stated a viable claim. Thus, the EEOC concluded that the Agency improperly dismissed the second claim as a collateral attack on the OWCP process. Marybeth C. v. Dep’t of the Air Force, EEOC Appeal No. 2021004031 (Jan. 4, 2022), request for reconsideration denied, EEOC Request No. 2022001634 (June 23, 2022).

Findings on the Merits

Under the Rehabilitation Act

EEOC Found Discrimination When Agency Did Not Provide Reasonable Accommodation. Complainant verbally requested a reasonable accommodation for post-traumatic stress disorder (PTSD) when she was first hired by the Agency. Complainant was initially allowed to work from a desk in the back of the office with a wall behind it. However, her new Supervisor later required Complainant to move to the front of the office where customers and co-workers could stand behind her when the area was congested. Complainant submitted a formal accommodation request that her desk be placed away from people entering the office spaces. The Agency approved an accommodation in the form of privacy screens for her desk but did not move her desk location. Complainant informed the Agency that the accommodation was not satisfactory, but the Agency did not respond. Complainant was terminated during her probationary period for, among other things, moving her work desk without permission, unprofessional conduct to her supervisor, and leaving her work desk without permission on two occasions. In a formal complaint, Complainant alleged that the Agency had denied her a reasonable accommodation and discriminated against her on the bases of disability and reprisal for protected EEO activity. On appeal, the EEOC found that the Agency failed to provide a reasonable accommodation. Specifically, the EEOC stated that the Agency failed to engage in the interactive process, even after Complainant indicated to her supervisor that the privacy screens were not an effective accommodation because they did not remove the possibility of people approaching her from behind. The Agency did not provide any explanation for its refusal to grant Complainant’s accommodation request, and the EEOC further noted that Complainant had previously performed her position from a desk in the back of the office for more than a year. The Agency also failed to provide legitimate, nondiscriminatory reasons for Complainant’s termination because the Agency’s stated reasons were not supported by the evidence in the record. Complainant’s alleged misconduct was the direct result of her disability and the Agency’s failure to provide a reasonable accommodation. The evidence also indicated that the Supervisor subjected Complainant’s leave requests to additional scrutiny, requiring supporting documentation that was not required by Agency policy. The evidence also did not support the Agency’s allegation that Complainant left her work desk without permission on two occasions. The Supervisor sent an email less than a week prior to the incidents on which Complainant’s termination was based, expressing a desire to reassign or discipline Complainant for the “continuous cycle” of “administrative issue[s]” he had had to deal with regarding Complainant’s accommodation request. Thus, Complainant successfully established the Agency’s reasons for its actions were a pretext for discrimination and, therefore, that the Agency had subjected her to discrimination on the bases of disability and reprisal. The EEOC further found that Complainant had established she was subjected to a hostile work environment, culminating in her termination, because her supervisor was responsible for the harassment and the Agency failed to take any action to prevent or correct the Supervisor’s behavior. The Agency was ordered, among other things, to reinstate Complainant and provide her with a reasonable accommodation. Chanelle B. v. Dep’t of the Navy, EEOC Appeal No. 2020004887 (Feb. 24, 2022).

Denial of Reasonable Accommodation Found. Complainant filed a complaint alleging that she was discriminated against on the bases of disability (PTSD, autoimmune deficiencies, sinusitis, asthma, pneumonia, respiratory issues, bronchial infection, and dust allergies) when she was denied reasonable accommodation. The Agency found no discrimination, stating that Complainant’s preferred accommodation, being seated at a single workstation per day, would have caused the Agency an undue hardship. The Agency admitted that Complainant established that she had a disability, but only offered Complainant face masks, gloves, and bleach-free wipes as an alternate accommodation. On appeal, the EEOC found that the Agency failed to provide an effective alternate reasonable accommodation or evidence of undue hardship. While the Agency offered Complainant cleaning supplies, this did not prevent Complainant from being afflicted by dust and debris multiple times a day when cleaning multiple stations. In regards to undue hardship, aside from noting that there were only 37 stations in total, the Agency did not provide any analysis or report indicating that allowing Complainant to work in one space would pose undue hardship or a significant risk of substantial harm, either to Complainant or her peers. The EEOC concluded that the Agency’s reasons for denying Complainant’s request to work at a single station per day were insufficient and demonstrated that the Agency violated the Rehabilitation Act. The Agency was ordered, among other things, to restore any leave used by Complainant, provide her with reasonable accommodation, and conduct a supplemental investigation into compensatory damages. Ileen C. v. Soc. Sec. Admin., EEOC Appeal No. 2021000865 (Feb. 3. 2022).

Agency’s Policy Requiring All Police Officers to Be Clean-Shaven Violated Rehabilitation Act. Complainants, all Agency Police Officers, alleged discrimination on the bases of race (African American), color (Black), and disability (Pseudofolliculitis Barbae (PFB)). PFB is a chronic bacterial skin disorder brought on by shaving that predominantly affects African American males. PFB can cause pain, skin irritation, rashes, and infection. As Officers, Complainants were required to use personal protective equipment (PPE) to defend themselves and others against possible exposure to explosives and chemicals. In this regard, the Agency prohibited them from having any facial hair to facilitate the use of a tight-fitting facemask respirator. Although the Agency originally granted Complainants medical waivers allowing them to keep their facial hair no longer than one-quarter inch, the Agency ultimately issued a policy stating that waivers of the clean-shaven requirement would no longer be granted. Complainants challenged the policy after the Agency directed them to shave their facial hair or face a job reassignment with possible pay reduction or termination. The EEOC agreed that the ability to wear a properly fitting respirator mask was job-related and consistent with business necessity, but concluded that the Agency’s blanket policy requiring all Officers to be clean-shaven regardless of their medical condition violated the Rehabilitation Act. Specifically, the Agency failed to show there was no reasonable accommodation that would enable Complainants to meet the existing standard, or an alternative approach that would still allow them to perform the essential functions of their position. Furthermore, Complainants requested, as an alternative accommodation, that the Agency provide Powered Air-Purifying Respirators (PAPRs) that allow facial hair per Occupational Safety and Health Administration regulations. While an Agency Director asserted that it was not possible to provide PAPRs due to the need for officers to be trained on the use of all equipment, the Director also stated that he was not aware if the Agency looked at other respirators as an accommodation. The EEOC determined that the Agency’s conclusive statements about the potential risk of mask seal failure in an emergency lacked adequate evidence. Moreover, prior to implementing the policy at issue, the Agency had granted medical waivers, and Complainants passed their annual mask fit tests. There was no evidence that they were unable to perform the essential functions of their position or that any incident had occurred where they were in danger or risked danger to others due to a respirator mask failure. The record also contained evidence that alternative masks were available for those who could not use a negative pressure mask due to a medical condition. Thus, the Agency was ordered, among other things, to reinstate Complainants to their Police Officers positions and provide them with reasonable accommodation. Cleveland C., et al., v. Dep’t of Def., EEOC Appeal Nos. 2020003894, et al. (Nov. 17, 2021), request for reconsideration denied, EEOC Request No. 2022000893 (Apr. 4, 2022).

Agency Failed to Prove That Reasonable Accommodation Would Be an Undue Hardship. Complainant alleged, among other things, that the Agency discriminated against her on the bases of disability (Occupational Asthma, Rhinitis, and Conjunctivitis) when it denied her reasonable accommodation and subjected her to harassment. Specifically, Complainant asserted that management failed to enact or enforce measures to limit allergens in Complainant’s workspace. An AJ found that the Agency violated the Rehabilitation Act as alleged. Complainant was able to perform the essential duties of her job and did not experience symptoms (such as difficulty breathing, headaches, and difficulty concentrating) until she was exposed to food allergen triggers. The Agency failed to provide case-specific evidence that providing Complainant with reasonable accommodation would cause an undue hardship. The EEOC concluded that the Agency’s offer to move Complainant away from other staff was not an effective accommodation due to the nature of Complainant’s work and her need to frequently interact with co-workers. The EEOC also concurred with the AJ that Complainant established discriminatory harassment based on management’s failure to enact or enforce a policy that prohibited at least foods with certain smells from the workplace shared with Complainant. Furthermore, the Agency instructed Complainant to inform her co-workers of her food allergies rather than issuing a general policy. The EEOC affirmed the AJ’s award of $75,000 in proven compensatory damages, as well as $1,350 in pecuniary damages for medical expenses. Rebecca L. v. Dep’t of the Treasury, EEOC Appeal No. 2021001759 (Nov. 4, 2021), request for reconsideration denied, EEOC Request Nos. 2022000864 & 2022000888 (July 25, 2022).

EEOC Found Denial of Reasonable Accommodation, Disparate Treatment and Constructive Discharge. Complainant alleged, among other things, that the Agency denied her a reasonable accommodation for her disability (irritable bowel syndrome (IBS)), subjected her to disparate treatment discrimination with regard to her core hours and issued her a Letter of Requirements, and that she was ultimately constructively discharged. Complainant’s position as a Technical Editor mainly required preparing manuscripts and various administrative oversight duties, and she was initially permitted to telework with a flexible schedule. Complainant teleworked full-time for several years. Subsequently, Complainant began reporting to a new supervisor, who canceled all telework agreements in Complainant’s department. Complainant notified the new supervisor that she had a medical condition and that revocation of telework aggravated this condition, necessitating that she use leave. Complainant submitted two requests for reasonable accommodation to telework full-time and provided documentation from her physician. The Agency refused to grant Complainant’s request for telework, and Complainant thereafter did not return to work. On appeal, the EEOC held that Complainant was unequivocally a qualified individual with a disability. Following the suspension of telework, Complainant made both informal and formal requests for accommodation, and advised her supervisor of her documented history of intestinal issues. Nevertheless, the Agency did not take action until Complainant formally requested a reasonable accommodation which it denied. The EEOC found that providing Complainant with a shared office and bathroom was not effective, noting that the Agency’s own physician suggested that Complainant have a restroom reserved for her use. The Agency’s assertion that Complainant’s position was not telework eligible was largely undercut by Complainant’s frequent, prolonged, and successful use of telework for several years. Accordingly, the EEOC found that the Agency had denied Complainant a reasonable accommodation.

Moreover, the EEOC found that Complainant was subjected to disparate treatment when she was issued a Letter of Requirement to work core hours, while other employees outside of her protected class were treated more favorably. While Complainant’s supervisor asserted that Complainant was not regular in attendance, the supervisor readily admitted she instituted core hours as part of Complainant’s performance plan but not for any other employee and permitted other employees to disregard core hours. In sum, the Agency admitted that Complainant was held to a different standard than the remainder of the department, and the EEOC noted that the Letter of Requirement was contradictory to the Agency’s obligation to accommodate Complainant’s disability. Finally, the EEOC determined that Complainant had also proven a claim of constructive discharge, given the evidence clearly demonstrated that Complainant’s resignation was due to the Agency’s decision on her accommodation request. The EEOC held that a reasonable person in Complainant’s situation would have found the Agency’s actions intolerable, noting that Complainant adequately performed her duties prior to the revocation of telework. The EEOC found the Agency’s actions were both intolerable and discriminatory and led to Complainant’s resignation. However, the EEOC found that the record did not support Complainant’s claim of hostile work environment. The Agency was ordered, among other things, to offer Complainant retroactive reinstatement, with appropriate back pay and benefits, and investigate Complainant’s claim for damages. Sandra A. v. Dep’t of the Navy, EEOC Appeal No. 2021002131 (Sept. 16, 2021), request for reconsideration denied, EEOC Request No. 2022000276 (Mar. 7, 2022).

Denial of Reasonable Accommodation and Per Se Violation of the Rehabilitation Act Found. The EEOC found that the Agency committed a per se violation of the Rehabilitation Act when Complainant’s supervisor contacted Complainant’s physician despite already having sufficient information to substantiate Complainant’s need for a reasonable accommodation, and the Agency failed to provide reasonable accommodation. Complainant sustained a work-related injury to her dominant hand, and her supervisors became aware of Complainant’s injuries shortly after they occurred. Complainant requested accommodation in advance of surgery in the form of a laptop that could be secured from home or to be permitted to work from home on her personal computer until she was cleared to use her right hand. Complainant also requested voice activated software (Dragon), a headset, a microphone, and a voice recorder. Complainant did not receive a response to her request prior to taking leave. Complainant submitted two requests for leave under the Family Medical Leave Act (FMLA), the second of which was denied. While the EEOC found that Complainant failed to prove discrimination with regards to the denial of FMLA leave, the EEOC noted that, in denying Complainant’s request, her supervisor stated that Complainant’s doctor’s office informed him that Complainant had been cleared for duty. The EEOC found that the supervisor committed a per se violation of the Rehabilitation Act by communicating with Complainant’s health provider about Complainant’s confidential medical information without Complainant’s knowledge or permission when the agency already had sufficient information about Complainant’s disability and need for a reasonable accommodation. With regard to the denial of accommodation, the EEOC stated that Complainant’s supervisor improperly terminated the interactive process after Complainant submitted her first request for accommodation. Furthermore, the Agency continued to deny Complainant accommodation after she returned to work. The medical documentation in the record confirmed the continued existence of Complainant’s impairment, and, as such, the EEOC saw no reason for the Agency’s requirement for additional forms or medical documents. Complainant’s supervisor never explained in her many requests why the documentation Complainant provided was insufficient. As such, the supervisor’s requests for additional medical documentation following her most recent formal request for accommodation and accompanying documentation were improper disability-related inquiries. As such, the EEOC concluded that the Agency failed in its responsibility to reasonably accommodate Complainant. Given the Agency’s excessive delay in responding to Complainant’s request for accommodation, the EEOC found that Complainant was entitled to an award of compensatory damages. The Agency was also ordered, among other things, to pay Complainant appropriate back pay. Eleni M. v. Dep't of the Army, EEOC Appeal No. 2020001903 (Sept. 7, 2021), request for reconsideration denied, EEOC Request No. 2021005193 (Feb. 22, 2022).

Agency Failed to Promptly Provide Reasonable Accommodation. Complainant, a store associate, asserted that she was diagnosed with osteoporosis in 2007, had a bilateral knee replacement in 2011, and experienced pain in her knees due to the cold after being assigned to the meat department in 2014. The record contained a copy of Complainant’s Reasonable Accommodation Form signed by her physician, stating that Complainant was unable to stand for prolonged periods or work in an ambient temperature below 50 degrees. As an accommodation, Complainant had requested to be moved out of the meat department. The record reflected that Complainant was ultimately rotated out of the meat department in September 2015, approximately ten months after her request for reasonable accommodation. On appeal, the EEOC found that the Agency failed to promptly provide Complainant a reasonable accommodation and failed to provide a reasonable justification for the ten-month delay. The record reflected that Complainant was proactive in pursuing her reasonable accommodation request by following up with various managers and completing the Reasonable Accommodation Form numerous times. Thus, the EEOC found that the delays were unnecessary, violated the Agency’s responsibility to quickly respond to a request for reasonable accommodation, and demonstrated a lack of good faith. Although the Agency found no discriminatory animus as a contributing factor to the delay, the EEOC noted that a finding of discriminatory intent is not an element of a failure to timely accommodate. The Agency was ordered, among other things, to restore any leave used by Complainant due to the denial of accommodation and investigate Complainant’s claim for damages. Brittney B. v. Dep’t of Def., EEOC Appeal No. 2021002613 (Sept. 2, 2021), request for reconsideration denied, EEOC Request No. 2021005096 (Mar. 7, 2022).

Agency Denied an Effective Reasonable Accommodation. Complainant alleged, among other things, that the Agency discriminated against him based on disability when it denied his reasonable accommodation request for two days of telework per week. The Agency offered an alternative accommodation that was not effective where Complainant could take breaks outside and use leave when he felt ill. Complainant stated that going outside did not help his condition, could trigger an asthma attack, and would impede his ability to get his work done. Complainant also noted that all employees are entitled to take breaks outside, and use leave when needed. Complainant established that he was effectively accommodated with two days of telework from 2014 through 2017, and that the Agency made him renew his request, which it then denied. The Agency did not argue that granting Complainant’s request for telework would have been an undue hardship, and failed to continue to engage in the interactive process. Thus, the EEOC found that the Agency provided an ineffective alternative accommodation and failed to continue to engage in the interactive process in good faith. As such, Complainant was entitled to compensatory damages. The Agency was also ordered, among other things, to grant Complainant’s request for telework and restore or compensate Complainant for any leave used due to the Agency’s failure to provide him with a reasonable accommodation. The EEOC affirmed the Agency’s dismissal of the remaining unrelated claims for failure to timely contact an EEO Counselor. Waltraud R. v. Dep’t of Agric., EEOC Appeal No. 2020001535 (July 13, 2021), request for reconsideration denied EEOC Request No. 2021004595 (Mar. 7, 2022).

Under Title VII

Sex-Based Harassment Found. The Agency found that Complainant was subjected to a hostile work environment based on sex but asserted that there was no basis for attributing liability to the Agency. On appeal, the EEOC found that the Agency did not have the right to raise an affirmative defense, because the harassment Complainant endured resulted in tangible employment action. Specifically, Complainant’s supervisor altered the terms and conditions of Complainant’s employment by changing Complainant’s maxi-flex work schedule to require strict break and lunch times and ordered Complainant to notify the supervisor when he left his workstation. The supervisor also restricted Complainant to using certain entrances. Therefore, the EEOC found that the Agency subjected Complainant to a hostile work environment and could not avoid liability. Nathanial E. v. Dep’t of the Interior, EEOC Appeal No. 2021000613 (Jan. 13, 2022).

Under Multiple Bases

Race and Age Discrimination Found. The EEOC found that the Agency discriminated against Complainant based on race and age when it failed to reassign her to a Budget Analyst position, and took her duties away, causing her demotion. Complainant’s first and second level supervisors, in refusing to reassign Complainant, were motivated by unlawful considerations, and the EEOC found that the removal of Complainant’s duties was an attempt to ensure that Complainant would not be reassigned. To remedy the discrimination, the EEOC ordered the Agency, among other things, to pay Complainant appropriate back pay and other benefits, and investigate Complainant’s entitlement to compensatory damages. Glynda S. v. U.S. Agency for Global Media, EEOC Appeal No. 2020004387 (Mar. 28, 2022).

Pattern of Harassment Found Based on Race and Sex. Complainant, a registered nurse, filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the bases of race (African American) and sex (female). Complainant cited 17 work-related incidents in support of her claim. Following a hearing, an AJ found that Complainant demonstrated that she was subjected to harassment in two incidents. On appeal, the EEOC concluded that Complainant was subjected to a pattern of harassment. Specifically, it was uncontested that Complainant was the subject of unwelcome verbal and physical conduct which involved her protected class. As to verbal conduct, a physician called Complainant and a black female coworker a “monkey” in reference to an invitation. Both Complainant and the coworker considered this a racial slur. The EEOC has long held that the use of the term “monkey” to refer to an African American is an historically offensive racial slur. While the Agency took some action regarding Complainant’s allegations, the Agency did not show that it was effective. A pattern of harassment should not be addressed in a piecemeal manner. As such, the EEOC found that Complainant established that she was subjected to harassment based upon sex and race with regards to five additional claims. The EEOC awarded Complainant $125,000 in nonpecuniary compensatory damages for the physical and emotional harm she suffered as a result of the harassment. Willia M. v. Department of Veterans Aff., EEOC Appeal No. 2020005021 (Mar. 14, 2022).

Agency Failed to Rebut Prima Facie Case of Discrimination Regarding Nonselection. Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against her on the bases of race (African American), sex (female), and color (Brown) when it did not select her for an Operations Supervisor position. On appeal, the EEOC found that the Agency failed to articulate a legitimate, nondiscriminatory reason for Complainant’s nonselection. Specifically, the Agency’s stated reason for not selecting Complainant was not sufficiently clear, specific, and individualized. While the Agency asserted that Complainant was recommended by her supervisor, the Agency claimed that the selectees were highly recommended by their supervisors. However, not only was there no documentation of any of the referenced recommendations in the record, but none of the supervisors providing the purported recommendations were interviewed for corroboration of the Agency’s stated reasons. Thus, the EEOC concluded that the Agency failed to overcome Complainant’s prima facie case of discrimination based on race, sex, color, and reprisal. The EEOC affirmed the Agency’s finding of no discrimination or harassment with regards to three other claims. The Agency was ordered, among other things, to offer Complainant an Operations Supervisor position or a substantially equivalent position, with appropriate backpay, and to investigate Complainant’s claim for compensatory damages. Priscilla H. v. Soc. Sec. Admin., EEOC Appeal No. 2021001678 (Jan. 18, 2022), request for reconsideration denied, EEOC Request No. 2022001994 (June 30, 2022).

Hostile Work Environment Found Based on Race and Sex. Complainant alleged, among other things, that he was subjected to a hostile work environment on the bases of race and sex when his first-level supervisor made insulting, humiliating, and embarrassing statements. For example, the supervisor referred to Complainant and others as the “gay mafia,” stating “these people just won’t let it alone” in response to a question about LGBT Pride Month, saying a job candidate was gay and not a “good fit” for the organization because his personality was “too big for this office,” and making comments about “White guys.” On appeal, the EEOC found that Complainant was subjected to severe or pervasive comments premised on his sex that included sex-based assumptions and stereotypes that singled out Complainant based on his sexual orientation. The EEOC further noted that the supervisor’s conduct, especially in her capacity as a supervisor, perpetuated an environment where slights based on sexual orientation were normalized, as corroborated by multiple witnesses’ testimony. Upon becoming aware of the allegations, the Agency failed to promptly correct the supervisor’s behavior, and simply issued the supervisor a letter stating that certain statements could be taken the wrong way by her subordinates. However, the Agency’s harassing conduct did not coincide with a tangible employment action. Thus, the EEOC concluded that the Agency failed to raise an affirmative defense and to demonstrate it exercised reasonable care to prevent and promptly correct the supervisor’s behavior. Although the Agency had issued a Policy Statement on Anti-Harassment, the record lacked evidence as to when the policy was most recently disseminated or when Complainant received the policy. The EEOC held that Complainant had established a hostile work environment and that the Agency was liable for the harassment. The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and remove the supervisor from Complainant’s supervisory chain. Felix R. v. Nat’l Aeronautics & Space Admin., EEOC Appeal No. 2019002240 (Sept. 7, 2021), request for reconsideration denied EEOC Request No. 2022000158 (Mar. 17, 2022).

Failure to Provide Religious Accommodation and Retaliatory Harassment Found. Complainant, a health physicist stationed in Japan, filed a formal request for a religious accommodation to waive the requirement that health physicists obtain a respirator qualification. Complainant stated that his request was due to his strong religious beliefs against shaving his beard, and it was undisputed that Complainant had a bona fide religious belief that conflicted with this new requirement. The Agency denied Complainant’s request and directed him to exercise his return rights and end his assignment in Japan. On appeal, the EEOC noted that there was evidence of another possible accommodation. Specifically, another employee raised the possibility of using a different respirator that sealed at the neck instead of the face. According to the record, the Agency had a few months to obtain this respirator from the time Complainant made his request for accommodation until the new requirement went into effect, and there was no evidence showing it would not have been available in Japan. Therefore, the Agency failed to prove that providing an accommodation would have caused an undue hardship. The EEOC also found that Complainant engaged in protected EEO activity when he requested a religious accommodation, and that he was subjected to retaliatory harassment when the Agency directed him to exercise his return rights. The Agency’s instruction for Complainant to prematurely end his assignment in Japan, which meant that Complainant and his family had to unexpectedly relocate overseas within 30 days, was materially adverse and it would deter a reasonable person from engaging in protected EEO activity. Therefore, the Agency subjected Complainant to retaliatory harassment. The EEOC affirmed the Agency’s finding that Complainant did not establish his additional claims of discrimination or harassment. The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and consider developing internal procedures for processing request for religious accommodation based on the EEOC’s recommended best practices. Merlin W. v. Dep’t of the Navy, EEOC Appeal No. 2020002711 (Sept. 2, 2021), request for reconsideration denied, EEOC Request No. 2022000013 (Mar. 28, 2022).

Sex and Race Discrimination Found in Nonselection. The EEOC found substantial evidence in the record to support the finding of an AJ that the Agency discriminated against Complainant based on sex and race when it did not select her for a supervisory position. The EEOC initially found that Complainant established a prima facie case of discrimination, as the record showed that the Agency selected a Hispanic male with significantly less experience than Complainant, an Asian female. Notwithstanding the AJ’s finding that Complainant was plainly superior to the selectee (W1) solely by virtue of qualifying at the GS-13 level, the EEOC also found sufficient evidence of pretext. The evidence of record suggested many of the accomplishments that the Agency cited as evidence of W1’s superior qualifications were performed while W1 was under Complainant’s supervision. W1 acknowledged during the hearing that he assisted Complainant with performing engineering and survey work, as he could not independently perform those duties himself because he was not a licensed Professional Civil Engineer. Furthermore, W1 was not a licensed Professional Civil Engineer because he failed a fundamental engineering examination. Moreover, as noted by the AJ, the record showed that W1 still regularly relied on Complainant for help even after he had been promoted above Complainant’s grade level. The EEOC saw no basis to reverse the AJ’s overall credibility determinations, as it shared the AJ’s concerns regarding the manner in which W1 represented his qualifications, such as indicating in his resume that he independently performed the work, when in reality, he assisted Complainant and others. The EEOC stated that, even if W1 performed better than Complainant in his interview as claimed by the Agency, there was still substantial evidence to support the AJ’s conclusion that Complainant was plainly superior to W1, given the totality of her qualifications, including the comparative breadth of her supervisory experience. Therefore, the EEOC affirmed the AJ’s finding of discrimination with regards to Complainant’s nonselection. The EEOC declined to address the Agency’s assertions regarding two additional claims, noting that Complainant would not be entitled to other remedies. Zetta B. v. Dep’t of Agric., EEOC Appeal No. 2020003201 (Sept. 2, 2021), request for reconsideration denied, EEOC Request No. 2022000030 (Mar. 24, 2022).

Agency Denied Religious Accommodation and Improperly Disclosed Medical Information. Complainant, a Supervisory Immigration Services Officer, filed tow EEO complaints of discrimination alleging, among other things, that the Agency denied his request for a religious accommodation and that management shared his medical information. The EEOC consolidated the Agency’s final decisions and found that Complainant established that the Agency discriminated against him as alleged. Regarding the failure to accommodate claim, the record established that Complainant had a bona fide religious belief (Islam), and that the practice of conducting five daily prayers limited his ability to work later in the day because he needed to go home to properly conduct his mandatory prayers. Complainant was able to work early in the day, and he was only limited by the Agency’s policies, which set the employees’ start time at 6:00 a.m., at the earliest. Complainant requested to work prior to 6:00 a.m. and on weekends and holidays to earn religious compensatory time or credit hours as a religious accommodation, but the Agency denied his requests. While the Agency stated that it granted an alternative accommodation of a flexible work schedule, the EEOC found that ineffective because no schedule allowed for Complainant to work prior to 6:00 a.m. Complainant could only have worked regular hours, without the need to earn and use religious compensatory time or credit hours, if he could start work prior to 6:00 a.m. The EEOC rejected the Agency’s assertion that granting Complainant’s requests would be an undue hardship because other supervisors would have to cover Complainant’s responsibilities in his absence, finding that Complainant had been granted his requested accommodation for two months and the Agency did not produce any evidence showing there was any undue hardship during that time. With regard to the medical disclosure, the record showed that Complainant volunteered his medical information in response to the proposed suspension, and the deciding official shared Complainant’s written response with the proposing official. There was no indication that the proposing official had a need to receive a copy of Complainant’s response because the deciding official had the sole responsibility to make the final decision. The EEOC affirmed the Agency’s finding of no discrimination with regards to other claims. The Agency was ordered, among other things, to conduct a supplemental investigation regarding any compensatory damages, attorney’s fees, and costs. Bryce A. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020001712 (July 29, 2021), request for reconsideration denied, EEOC Request No. 2021004817 (Feb. 22, 2022).

Retaliation

Retaliatory Harassment Found. Following a hearing, an EEOC AJ found that the Agency subjected Complainant to a hostile work environment based on his prior EEO activity. The EEOC affirmed the finding on appeal. The AJ determined that the Agency retaliated against Complainant when it refused to provide him the requisite experience, such as temporary promotions and acting assignments, to qualify for higher-level positions. The AJ further noted that Agency supervisors and employees openly discussed and laughed about Complainant’s pending EEO matters. One manager made comments about being less likely to promote individuals with “baggage,” which the manager admitted could refer to Complainant’s reputation for filing EEO complaints. The AJ also found that the Agency exhibited discriminatory animus toward Complainant and subjected him to a hostile work environment based on his race and color. The named manager had a reputation for using a racially derogatory slur and exhibited a high level of animosity toward Complainant in particular. The EEOC found that substantial evidence in the record supported a finding of retaliation. Management’s comments were likely to deter a reasonable employee from engaging in protected EEO activity and had a potentially chilling effect on the EEO process. The EEOC found that Complainant was not subjected to discrimination with regards to other issues raised in his complaint. The Agency was ordered, among other things, to pay Complainant $15,000 in proven nonpecuniary compensatory damages, and $226.33 in pecuniary damages, as well as attorney’s fees and costs. Carroll R. v. Dep’t of the Treasury, EEOC Appeal No. 2020002891 (Feb. 14, 2022), request for reconsideration denied, EEOC Request No. 2022002375 (July 6, 2022).

Retaliation Found. The EEOC found that Complainant was subjected to reprisal when the Assistant Director told Complainant that if any of his accusations against management were untrue, he would be terminated. The EEOC has long held that the truth or falsity of a complainant's allegations goes to the merits of the complaint and is irrelevant to whether he or she can bring a claim of discrimination. The EEOC also noted that warning a complainant not to make false accusations or risk disciplinary action may amount to retaliation on its face. The EEOC expressed concern that the broad warning made by the Assistant Director could dissuade a reasonable person from engaging in protected EEO activity for fear that an unsuccessful EEO complaint could result in disciplinary action. To remedy the discrimination, the Agency was ordered, among other things, to investigate Complainant’s entitlement to compensatory damages, and provide appropriate training to the Assistant Director. Shelby R. v. Dep’t of Homeland Security, EEOC Appeal No. 2020005406 (Mar. 28, 2022).

Relief

Agency Failed to Offer Complainant a Substantially Equivalent Position. An AJ found that the Agency discriminated against Complainant, an applicant for employment, on the bases of disability and in retaliation when it did not select him for a Contract Specialist position. The AJ ordered the Agency, among other things, to retroactively reinstate Complainant to the position, or a substantially equivalent position, to “include all seniority, promotions, and grade step increases to which Complainant would have been entitled but for the discrimination.” This also included securing a clearance as required for the original position. The Agency fully implemented the AJ’s decision, but stated that the position in question no longer existed. The Agency provided two job offers to Complainant that it asserted were substantially equivalent to the Contract Specialist position. Complainant initially accepted one of the positions then withdrew his acceptance because the position did not have a security requirement. On appeal, the EEOC noted that the measure of substantial equivalence should be based on the position that was the subject of the original complaint. In this case, the Agency did not meet its burden to establish that it offered Complainant a substantially equivalent position to the Contract Specialist position. Specifically, the Agency acknowledged that the position no longer services classified missions or requires a security clearance. Furthermore, the Agency did not provide an updated position description or explain how a Contract Specialist position without duties requiring a clearance could still be substantially equivalent. The EEOC has previously held that offering a complainant the “most comparable position” does not satisfy an agency’s obligation to provide make-whole relief. While the second position offered included many of the same elements as the original position, including a security clearance requirement, the EEOC found that it also fell short of make-whole relief as the Agency did not provide a position description for that position to show that it entailed substantially equivalent responsibilities, opportunities, and status as the original position. The EEOC stated that Complainant would be entitled to any subsequent promotions he would likely have received if he had been selected for the original position, as well as necessary reasonable accommodation. Alvaro P. v. Dep’t of the Air Force, EEOC Appeal No. 2021004984 (Mar. 14, 2022).

EEOC Modified Order Requiring Agency to Conduct EEO Training. The EEOC found that its previous decision, finding discrimination in Complaint’s favor, improperly ordered the Agency to conduct EEO training for all its managers and supervisors across the world. The Agency employed approximately 2,600 supervisors and managers spread throughout the globe at various detachments other than in Japan where the discrimination occurred. The EEOC stated that only management within the applicable detachment were responsible for the discrimination at issue. In addition, there was no evidence of a culture of discrimination within the Agency. Therefore, the EEOC modified its order so that only the supervisors and managers at that location would be provided training. Merlin W. v. Dep’t of Navy, EEOC Request No. 2022000013 (Mar. 28, 2022).

Sanctions

Dismissal of Hearing Request as Sanction Improper. Complainant filed a formal complaint alleging discrimination and a hostile work environment. Complainant requested an administrative hearing, and the Agency initiated discovery. Neither Complainant nor her attorney responded to the Agency’s discovery requests, or orders from the AJ. The AJ then dismissed Complainant’s hearing request as a sanction and remanded the complaint to the Agency for issuance of a final Agency decision. The EEOC has held that dismissal of a hearing request as a sanction is only appropriate in extreme circumstances. In this appeal, the record was insufficient to demonstrate that Complainant had engaged in the kind of willful or obstinate refusal to comply with an AJ’s orders that typifies contumacious conduct or that she willfully failed to act with due diligence. Therefore, the AJ’s dismissal of Complainant’s hearing request was too harsh a sanction in that it prematurely curtailed the proceeding. Nina H. v. Dep’t of Labor, EEOC Appeal No. 2021000962 (March 15, 2022).

EEOC Reversed AJ’s Issuance of Default Judgment. Complainant filed a formal EEO complaint alleging national origin discrimination after he was not selected for a position. The complaint was twice amended to include allegations of reprisal related to training and a performance rating. Complainant subsequently requested a hearing, and the AJ issued a Default Judgment as a sanction against the Agency for failing to adhere to the regulatory timeframes for conducting the investigation. On appeal, the EEOC concluded that the AJ abused her discretion in issuing the default judgment, as she failed to fully analyze any prejudicial effect on Complainant as a result of the investigation’s delay. Specifically, the sanction should have been narrowly tailored to deter the Agency from delaying investigations in the future. The EEOC remanded the matter for a hearing noting that an evidentiary sanction was more appropriate. Bruce P. v. Dep’t of Justice, EEOC Appeal No. 2021004818 (Mar. 7, 2022).

AJ’s Dismissal of Hearing Request as Sanction Was Improper. An AJ dismissed Complainant’s hearing request as a sanction, citing several alleged instances of ex parte communications, and Complainant’s failure to attend a status conference. On appeal, the EEOC found the dismissal of the hearing request was improper. The record showed no evidence of the alleged ex parte communications in the record. While Complainant did send two emails to the AJ, neither of those was cited as incidents in the AJ’s dismissal order. The EEOC stated that, at most, Complainant may have been negligent in failing to include the Agency’s counsel in the email. Furthermore, the EEOC noted that the only evidence that Complainant was informed of the teleconference was an email sent by the AJ asking if Complainant was available on the date in question. There was no formal scheduling order for the conference from the AJ present in the record. Complainant asserted that she did not have access to a computer in the public library due to the pandemic and sometimes had difficulty accessing email. Thus, the EEOC agreed with Complainant’s counsel that none of the incidents cited by the AJ to justify dismissing Complainant’s hearing request were supported by evidence in the record. The EEOC noted that the absence of supporting evidence in record made it impossible for Complainant to challenge the AJ’s ruling. Therefore, upholding the dismissal of Complainant’s hearing request would have a negative impact upon the integrity of the EEO process. The EEOC remanded the matter for a hearing. Clarine L. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020004391 (Feb. 8, 2022).

EEOC Affirms AJ’s Dismissal of Hearing Request. Complainant alleged in his complaint that he faced discrimination and a hostile work environment based on race, sex, age, disability and reprisal. However, Complainant failed to respond to the EEO Investigator’s and EEOC AJ’s requests for an affidavit or declaration, so the AJ ultimately dismissed Complainant’s hearing request as a sanction. In addition, the Agency found that Complainant failed to establish discriminatory or retaliatory motive by the listed officials within his compliant. The EEOC concluded that the AJ did not abuse her discretion when she dismissed the hearing request and affirmed the Agency’s finding of no discrimination or hostile environment. With regards to the sanction, the EEOC found that Complainant’s noncompliance was extensive. During the initial investigation, the EEO Investigator attempted to obtain an affidavit or declaration from Complainant. However, Complainant never supplied one despite being given multiple extensions. The AJ then requested the Complainant provide deposition testimony or answer the investigator’s questions to certify the record, but Complainant refused to participate in the scheduled deposition. Complainant also failed to participate in the prehearing teleconference and post-conference. The EEOC noted that aside from generalized assertions of being ill and denied an accommodation, Complainant did not present any justification for his conduct and essentially failed to prosecute his case. Thus, the AJ properly dismissed Complainant’s request for a hearing, finding that Complainant engaged in contumacious conduct when he refused to provide missing investigative information to his file despite frequent warnings to do so. With regards to the Agency’s finding of no discrimination, the EEOC found that Complainant did have a disability, and the Agency provided him with an effective accommodation. Complainant did not provide any information that undercut management’s explanations to prove retaliation. Otis P. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020004334 (Feb. 7, 2022)

AJ’s Dismissal of Hearing Request as Sanction Was Not Justified. An AJ dismissed Complainant’s hearing request as a sanction for untimely submission of her Preliminary Case Information (PCI) report. The AJ noted that Complainant’s counsel did not notify her that he was having difficulty uploading documents to the EEOC’s public portal. On appeal, the EEOC found that the AJ’s dismissal of the hearing request as a sanction was not justified. Complainant’s noncompliance with the AJ’s orders consisted solely of her failure to timely submit the PCI report. Complainant’s counsel asserted that he believed he had successfully uploaded the report prior to the deadline. The EEOC found that any prejudicial effects of Complainant’s noncompliance were minimal, as Complainant’s counsel timely responded to the Show Cause Order and submitted a copy of the PCI report at that time. The EEOC has held that dismissal of a hearing request as a sanction is only appropriate in extreme circumstances, and there did not appear to be any indication in this case that Complainant or her attorney engaged in the type of willful or obstinate refusal to comply with the AJ’s orders that would constitute contumacious conduct. As such, the EEOC remanded the matter for a hearing. Tessa L. v. Dep’t of Labor, EEOC Appeal No. 2020003668 (Jan. 24, 2022).

AJ Properly Sanctioned Complainant by Waiving Discovery. Complainant filed a complaint of discrimination and reprisal for prior protected EEO activity. The AJ sanctioned Complainant for failing to follow instructions for submitting the Preliminary Case Information report by waiving discovery. The EEOC affirmed the AJ’s sanction. The sanction was appropriately and narrowly tailored, and Complainant did not assert that the waiver of discovery harmed her claim. Since Complainant did not raise any further evidence in support of her claim of discrimination, the EEOC found that the record did not support a judgment in Complainant’s favor. The EEOC concurred with the AJ that the Agency was not liable for the coworker’s harassment since the Agency took swift corrective action. The EEOC also affirmed the AJ’s finding that that Complainant’s additional harassment claims were not sufficiently severe to constitute harassment. Therefore, the Commission affirmed the Agency’s decision. Lelah T. v. U.S. Postal Serv., EEOC Appeal No. 2021001870 (Jan. 13, 2022).

AJ Erred in Issuing Default Judgment as Sanction. Complainant filed a formal complaint alleging that the Agency discriminated against him when it denied him a promotion. An AJ subsequently issued a default judgment against the Agency as a sanction citing the Agency’s confusion regarding the assignment of a representative, difficulty finding a suitable location for a video conference, and then experiencing technical problems during the conference. Specifically, the AJ found that the Agency failed to proceed to a hearing on at least three separate occasions and that Complainant’s second-level supervisor sent a group email regarding Complainant’s EEO activity. This entitled Complainant to a favorable ruling, a partial default judgment. The EEOC noted that Complainant filed two motions for sanctions but did not request a default judgment in either motion. Therefore, the Agency was never notified that it could be subjected to that specific sanction and never given the chance to explain why a default judgment should not be imposed. As such, the imposition of a default judgment was improper. Having found default judgment inappropriate in the absence of notice, the EEOC considered what sanction was an appropriate response to the Agency’s failure to schedule a hearing for more than a year as well as the confidentiality breach by the second-level supervisor. The EEOC found the Agency made no deliberate flagrant actions flouting the AJ’s orders to justify imposition of a default judgment. The EEOC ultimately found insufficient evidence to support Complainant’s claims of discrimination and a hostile work environment. To remedy the disclosure of confidential information, the EEO complaint, the EEOC ordered the Agency to provide EEO training for the supervisor involved. Owen L. v. Office of Pers. Mgmt., EEOC Appeal No. 2020000990 (July 15, 2021), request for reconsideration denied, EEOC Request No. 2021004857 (Mar. 2, 2022).

Settlement Agreements

No Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, the Agency would allow Complainant to telework two to three days per week with an approved telework agreement. Complainant alleged that the Agency breached the agreement when, in response to the Agency’s potential return to the office following the COVID-19 pandemic, he was required to submit a new telework agreement, and was only approved for situational telework. The Agency asserted that it did not breach the agreement and had complied with its terms for nine years. On appeal, the EEOC noted that nothing in the settlement agreement established that Complainant would be entitled to telework two to three days per week indefinitely. The record showed that Complainant had teleworked for two or more days a week for over nine years, which the EEOC found was sufficient time to establish good faith compliance by the Agency. Thus, the current proposed change to situational telework did not constitute a breach of the 2012 agreement. Bart M. v. Dep’t of Justice, EEOC Appeal No. 2022000306 (Mar. 14, 2022).

EEOC Found Settlement Agreement Void. The EEOC rejected the Agency’s assertion that Complainant made an untimely appeal. Complainant met with the Postmaster to discuss the alleged breach within the 30-day period prior to her appeal. The EEOC found that the settlement agreement did not impose any legal detriment upon the Agency. The settlement agreement also provided no relief or benefit to Complainant for her initial complaint. The settlement merely bestowed upon her the same benefit employees were entitled to have. Therefore, the EEOC found the settlement agreement was void and ordered the Agency to reinstate Complainant’s complaint. Cassy W. v. U.S. Postal Serv., EEOC Appeal No. 2020005182 (Jan. 24, 2022).

Settlement Breach Found. Complainant entered into a settlement agreement with the Agency that provided, in pertinent part, that within 12 months, the two responsible management officials (RMOs) would receive diversity training and jointly identify a career enhancement opportunity for Complainant commensurate with her expertise and in the best interest of the Agency. Complainant subsequently alleged a breach of the settlement agreement. On appeal, the EEOC affirmed the Agency’s finding of no breach of Provision 5(c) concerning diversity training. Although Complainant stated she was unaware if the specified RMOs had received diversity training, the record contained adequate documentation that the RMOs had indeed completed an Office of Diversity and Inclusion training. The EEOC found, however, that the Agency breached the second provision. The EEOC concurred with the Agency that this provision did not obligate the Agency to provide Complainant with a temporary duty rotation or joint duty assignment as a “career enhancing opportunity.” The record contained an email from one of the management teams, indicating that both management teams had spoken and approved a request for Complainant to attend a training course. However, Complainant submitted documentation showing that she was not approved by the training organizers to participate in the training. Thus, the EEOC found that the Agency’s actions did not comply with the overall intent and spirit of the agreement, and ordered that management jointly identify a career enhancing opportunity that Complainant could actually attend or participate in. Mafalda H. v. Dep’t of Justice, EEOC Appeal No. 2021004628 (Jan. 5, 2022).

No Breach of Settlement Found. The parties entered into a settlement agreement in July 2018 that provided, in pertinent part, that the Agency would place Complainant into a detail position as a Senior Advisor that would end in June 2020. Complainant alleged that the Agency breached the agreement when it reassigned her from her Administrative Judge position in July 2020. On appeal, the EEOC noted that the Agency complied with the plain text of the agreement that required it to place Complainant in a specific two-year detail. Complainant served in the detail for the entirety of the agreed-upon term, at which time she was returned to her former position. While Complainant stated that the Agency then subsequently reassigned her to a different position, that matter was a separate claim of discrimination, and the EEOC advised Complainant to initiate the EEO counseling process if she wished to pursue the matter. Micki C. v. Dep’t of the Interior, EEOC Appeal No. 2021001595 (Dec. 20, 2021), request for reconsideration denied, EEOC Request No. 2022001501 (May 10, 2022).

Stating a Claim

Complainant Stated a Viable Claim of Harassment. The EEOC determined that the Agency’s dismissal of the complaint for failure to state a claim was improper. The Agency asserted that most of Complainant’s claims were based on isolated comments that did not result in harm, but the EEOC concluded that Complainant stated a viable claim of harassment. Specifically, Complainant asserted that his manager had been abusive on multiple occasions, such as telling Complainant that he was going to beat his during a telephone conversation. Complainant also claimed that a supervisor insulted him and his unit. The EEOC found that Complainant demonstrated that he was aggrieved. Fritz O. v. Dep’t of the Army, EEOC Appeal No. 2022001216 (March 28, 2022).

EEOC Reversed AJ’s Dismissal of Complaint Finding that Agency Was Complainant’s Joint Employer. Complainant alleged that she was constructively discharged when her position was moved to another location. The EEOC noted that the relocation of Complainant’s position was significant to the analysis of whether the Agency was a joint employer for purpose of establishing standing to use the EEO complaint process. The evidence in the record reflected that an Agency Official played a role in Complainant’s relocation, which showed that Agency was a joint employer of the Complainant. The President of the contracting firm asserted that an Agency official made the decision to transfer Complainant's position. Therefore, the EEOC found that the AJ improperly dismissed the complaint for failure to state a claim on grounds that the Agency could not be considered Complainant's joint employer. Complainant had standing to proceed with her complaint. Azucena A. v. Dep’t of Navy, EEOC Appeal No. 2021001212 (Mar. 22, 2022).

Sufficient Evidence Found to State Actionable Claim of Discriminatory Harassment. Complainant filed a formal complaint alleging that the Agency subjected him to discrimination when his supervisor threatened him; he was denied a union steward; he was given an official discussion; and he was questioned about his work and required to get his own mail. The Agency dismissed the formal complaint for failure to state a claim. On appeal, the EEOC held that the Agency had properly dismissed the claim regarding the union steward as a collateral attack on another proceeding. As to the remainder of the complaint, however, the EEOC stated that a review of the formal complaint and pre-complaint documents showed that Complainant was alleging an ongoing hostile work environment comprised of various incidents. When considering the alleged incidents collectively, the EEOC found that Complainant stated an actionable claim of harassment. Tristan W. v. U.S. Postal Serv., EEOC Appeal No. 2022001167 (Feb. 24, 2022).

Agency Improperly Framed the Claim Raised and Dismissed the Complaint for Failure to State a Claim. Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and disability. The Agency framed the issue as involving Complainant being sent home and placed on administrative leave. The Agency dismissed the complaint for failure to state a claim, reasoning that Complainant was not aggrieved. On appeal, Complainant asserted that the Agency incorrectly stated that she was placed on administrative leave with pay. Complainant explained that instead, she was initially placed on Emergency Placement without pay, which was not adjusted until she filed an EEO complaint. Complainant submitted a copy of a memorandum stating that she was being placed in emergency placement off-duty status without pay. On appeal, the EEOC found that the Agency improperly dismissed the complaint for failure to state a claim. Rosena J. v. U.S. Postal Serv., EEOC Appeal No. 2022001171 (Feb. 24, 2022).

Allegation that Agency Disclosed Medical Information Stated Viable Claim. In a decision on a prior EEO complaint, the Agency noted that one dismissed claim alleging violations of the Health Insurance Portability and Accountability Act (HIPAA) and the Privacy Act could constitute a violation of the Rehabilitation Act’s prohibition against improper disclosure of medical information. The Agency advised Complainant to contact an EEO Counselor. Complainant then filed the underlying complaint alleging unlawful reprisal. The Agency framed the claim as alleging a hostile work environment when Complainant’s supervisor contacted Complainant’s medical provider for information regarding his medical status. The Agency dismissed the complaint for failure to state a claim. The EEOC affirmed the Agency’s decision to dismiss the claim to the extent Complainant was alleging a violation of HIPPA or the Privacy Act. HIPPA and the Privacy Act are outside the EEOC’s jurisdiction. However, the EEOC stated that Complainant was also alleging a per se violation of the Rehabilitation Act, which stated an actionable claim. Therefore, the EEOC affirmed the Agency’s dismissal of Complainant's claims that the Agency violated HIPAA and the Privacy Act. However, the Commission reversed the Agency’s dismissal of Complainant's claim alleging a violation of the Rehabilitation Act due to improper disclosure of medical information. Winford M. v. Dep’t of Veterans Aff., EEOC Appeal No. 2022000340 (Feb. 7, 2022).

Agency Improperly Dismissed Complaint for Failure to State a Claim. The Agency dismissed the complaint reasoning that Complainant was not aggrieved and did not suffer a harm or loss with respect to a term condition or privilege of employment. The EEOC, however, found that Complainant stated a viable claim of discrimination and reprisal. Complainant alleged that his postal vehicle was vandalized, and management did not properly investigate the matter. The EEOC found that Complainant’s claims were sufficiently severe to state an actionable claim of harassment. Additionally, the EEOC found that the Complainant’s claim that, upon learning he had filed an EEO complaint, an Agency manager stated he would consider that a threat, if true, could have a chilling effect on a Complainant's willingness to engage in the EEO process. Therefore, Complainant stated a claim of retaliation. Nick S. v. U.S. Postal Serv., EEOC Appeal No. 2022000267 (Jan. 31, 2022).

Agency Improperly Dismissed Complaint for Failure to State a Claim. The Agency dismissed the complaint for failure to state a claim, asserting that Complainant was not a federal employee and, in the alternative, had failed to demonstrate any loss or harm in relation to her employment. The EEOC reversed the Agency’s dismissal, finding that the Agency was a joint employer. The contract employer was responsible for Complainant’s compensation, benefits and withholding Social Security. Meanwhile, Agency employees provided Complainant with her assignments, and there was no contract supervisor at the Agency site where Complainant worked. The Agency also provided Complainant with equipment, set Complainant’s schedule, and oversaw Complainant’s leave. Thus, the EEOC concluded that the Agency exercised sufficient control of Complainant to qualify as her joint employer. The EEOC also determined that the incidents cited by Complainant, which culminated in her termination, were sufficiently severe to state a harassment claim. Ranae P. v. Dep’t of the Army, EEOC Appeal No. 2021005034 (Jan. 24, 2022). Additional Decisions Addressing the Issue of Whether the Agency Was a Joint Employer Include: Britany B. v. Dep’t of the Air Force, EEOC Appeal No. 2021003831 (Apr. 4, 2022) (The Agency controlled when work needed to be done, but the staffing firm had direct and indirect control over Complainant’s schedule, work assignments, and practical day-to-day implementation and delivery of her weather forecasts. Thus, the Agency did not exercise requisite control of the means and manner of Complainant’s work to qualify as Complainant’s joint employer).

Complaint Improperly Dismissed for Failing to State a Claim. The Agency dismissed the complaint on grounds Complainant failed to state a claim of hostile work environment. The EEOC reversed the dismissal on appeal. The EEOC found that the Complainant provided enough factual information to support an inference of harm or loss with respect to a term, condition or privilege of the employment. Complainant described her injury and accommodation, as well as how the accommodation was changed. Thus, the EEOC concluded that Complainant stated a viable hostile work environment claim. Goldie G. v. U.S. Postal Serv., EEOC Appeal No. 2021004792 (Jan. 11, 2022).

EEOC Affirmed Dismissal of Complaint Involving the Debt Collection Act. Complainant alleged that he faced employment discrimination based on his race, color and disability after he began receiving payroll deductions for his Federal Employee Health Benefits. The Agency stated the complaint failed to state a claim on the basis that it was a collateral attack on the proceedings of another forum. The EEOC determined that the Complainant should have resolved any debt through the administrative process of the Debt Collection Act. George V. v. Dep’t of Def., EEOC Appeal No. 2021004531 (Jan. 10, 2022).

Summary Judgment

Summary Judgment Affirmed. Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race and reprisal, and subjected him to harassment. An AJ issued a decision on summary judgment in favor of the Agency, which the EEOC affirmed on appeal. The EEOC initially found that Complainant failed to point to any specific evidence showing a dispute of material fact that required a hearing. Thus, a reasonable fact finder could not find in Complainant’s favor, even construing any inference in favor of Complainant. The EEOC noted that the majority of incidents alleged in support of Complainant’s claim of harassment related to his conduct and performance. The remaining issues consisted primarily of a personality dispute between Complainant and his supervisors, not based on Complainant’s race. The EEOC noted that, although Complainant felt aggrieved, the anti-discrimination statutes do not protect employees from adverse treatment not related to a protected basis. The EEOC stated that all but three of the incidents alleged occurred prior to Complainant’s protected EEO activity, and Complainant was unable to establish a nexus between his EEO activity and the alleged incidents. Arden V. v. U.S. Postal Serv., EEOC Appeal No. 2021000815 (Jan. 11, 2022).

EEOC Reversed Summary Judgment. The EEOC found an AJ’s decision on summary judgment in favor of the Agency was improper. There were genuine issues of material facts and issues with witness credibility. The AJ also failed to evaluate whether the Agency’s legitimate, nondiscriminatory reason for non-selection was pretext for discrimination based on race, sex and age. Complainant’s qualifications should have been compared to the selectee’s qualifications to assess whether they were demonstrably superior. Finally, the credibility of the Directors of the Agency and the Complainant himself should have been evaluated. The EEOC noted that the Director asserted that the selectee was chosen because of her superior performance during the interview, but a supervisor stated that the Director discussed choosing the selectee for the position prior to completing the interviews. Therefore, summary judgment should not have been granted. Dewey R. v. Dep’t of the Navy, EEOC Appeal No. 2020004294 (Feb. 7, 2022).

Summary Judgment Reversed. Complainant filed a complaint alleging the Agency systematically discriminated against employees based on race and sex. Specifically, she alleged that African American women were denied fair opportunity for promotions to the GS-15 level. Furthermore, Complainant stated the Agency denied her a job promotion and lowered her performance rating due to discrimination and retaliation. The EEOC found that the AJ improperly granted summary judgment against Complainant. There were several issues of genuine dispute. The record showed that the Agency bypassed not only Complainant but another African American female when making the selection decision. Furthermore, while the Agency asserts that the Complainant performed less satisfactorily in the interview than the selectee, the evidence of record did not support the Agency’s claims. The record was missing vital information to evaluate the competency of the Complainant. In addition, the Agency edited Complainant’s performance evaluation to Complainant’s detriment following her EEO complaint. There was also a dispute as to whether a confrontation took place, which was the stated reason for changing Complainant’s performance rating. Thus, there were too many unresolved issues for summary judgment to be granted. Nannette T. v. Dep’t of the Army, EEOC Appeal No. 2020004578 (Jan. 27, 2022).

Timeliness

Complainant Timely Initiated Contact with Individual Logically Connected with the EEO Process. Complainant alleged, among other things, that the Agency discriminated against him when it failed to select him for two positions. The Agency dismissed the claims for failure to timely initiate EEO contact. The EEOC affirmed the dismissal of one claim but concluded that the Agency failed to meet its burden to show untimely EEO counselor contact in regard to the other claim. Specifically, the EEOC found that Complainant presented sufficient evidence that he properly initiated the EEO process within the 45-day timeframe when he faxed an Agency EEO Specialist a form expressing his intent to file an EEO complaint. The EEOC concluded that the EEO Specialist was an Agency official “logically connected” with the EEO process. Lawrence L. v. U.S. Postal Serv., EEOC Appeal No. 2022001100 (April 5, 2022).

Agency Improperly Dismissed Like or Related Claims. The EEOC found that the Agency improperly dismissed four claims of Complainant’s complaint for not being the subject of EEO Counseling. In so finding, the EEOC determined that Complainant’s allegations were like or related to the matter for which Complainant underwent EEO counseling. The essence of Complainant's claims was that she had been subjected to an ongoing pattern of discriminatory harassment, and all the claims alleged shared a common theme. Taken together, the EEOC concluded that Complaint’s claims stated a viable claim of discriminatory harassment that required investigation and further processing. Earlie P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2022000915 (March 29, 2022).

Agency Failed to Show Complainant Had Knowledge of 45-Day Limitation Period. The EEOC found that the Agency improperly dismissed Complainant’s complaint for untimely EEO Counselor contact. It was undisputed that Complainant contacted an EEO Counselor beyond the 45-day limitation period, but Complainant claimed she was unaware of this period. The EEOC found that the Agency provided no documentation reflecting Complainant's actual or constructive knowledge of the 45-day limitation period and noted that an Agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. The record contained no affidavit or documentation supporting the Agency’s claim that it had an EEO poster displayed within the workplace that contained EEO Counselor contact information. Sandra S. v. U.S. Postal Serv., EEOC Appeal No. 2022001178 (Mar. 24, 2022).

Complainant Timely Initiated EEO Contact After Developing Reasonable Suspicion of Discrimination. Complainant filed a formal complaint of discrimination after not being selected for five positions. The Agency dismissed the complaint for untimely EEO counselor contact. Complainant contended that she did not develop a reasonable suspicion of discrimination until she learned that White females with less experience had been selected. On appeal, the EEOC noted that, prior to learning the identity of the selectees, Complainant had no reason to believe there was any discrimination. Complainant was competing with employees in two districts and there could have been more qualified applicants. The EEOC concluded that Complainant first suspected discrimination when she learned the identity of the selectees, and she timely contacted an EEO counselor upon learning this information. Therefore, the Agency improperly dismissed the complaint. Diedre A. v. U.S. Postal Serv., EEOC Appeal No. 2022000901 (Feb. 28, 2022).

Complainant Improperly Dismissed When Complainant Was Unaware of Time Limits for Initiating EEO Contact. The Agency dismissed Complainant’s formal complaint of discrimination for untimely EEO counselor contact, finding that he failed to initiate EEO Counselor contact until nearly one year after he had been removed by the Agency. Complainant contended that, as a home-based employee, he was unaware of both the EEO complaint process and the 45-day time limit. Complainant explained that he only learned about the EEO process from an EEO investigator who contacted him as a witness regarding a coworker’s EEO complaint. On appeal, the EEOC found that, while the Agency asserted that this situation did not justify an extension of the applicable time limit, the Agency failed to provide evidence showing that Complainant knew or should have known about the time limit for contacting an EEO Counselor. Furthermore, Complainant was a term-limited hire during the Census, and primarily teleworked, so he would have had less exposure to notifications about EEO time limits that may have been posted within the Agency’s offices. The EEOC concluded that the Agency failed to meet its burden of proving sufficient information to justify its decision as to untimeliness. Lenard H. v. Dep’t of Commerce, EEOC Appeal No. 2022000855 (Feb. 28, 2022).

Complaint Improperly Dismissed for Untimely EEO Counselor Contact. An AJ dismissed the complaint for failure to timely contact an EEO Counselor. The EEOC reversed the decision on appeal. Complainant, a contract employee, explained that she did not receive EEO training and was unaware of the EEO process or the applicable time limits. Furthermore, when Complainant was removed from her assignment with the Agency, she was not advised of her EEO rights. Complainant stated she was unsure whether she was in a position to contest the Agency’s adverse actions. In the months that followed her removal, the Contractor attempted to place Complainant in a different assignment with the Agency, but ultimately failed to do so. Complainant believed that her former supervisor at the Agency prevented her from being reassigned or rehired. The EEOC found the record was, at best, unclear as to when Complainant was aware of the EEO process or applicable time limitation period for initiating EEO contact. The Agency proffered no evidence to challenge Complainant’s lack of EEO awareness. The Agency failed to meet its burden to obtain sufficient information to support its decision. Michelle T. v. Office of the Dir. Of Nat’l Intelligence, EEOC Appeal No. 2020003649 (Jan. 20, 2022).

Complainant Failed to Timely Contact an EEO Counselor. The Agency dismissed the complaint for failing to timely contact an EEO Counselor. The Complainant alleged experiencing two separate instances of discrimination; one in March 2015 and another from March 2020 to September 2020. The EEOC affirmed the Agency’s decision. While Complainant initiated contact with an EEO Counselor within days of the second incident, the Complainant did not continue with the EEO process at that time. Complainant did not express an intent to pursue the EEO process until December 2020, more than 45-days after the incident. Although the Complainant asserted on appeal that the harassment (non-sexual) was ongoing, the formal complaint only mentioned specific episodes of harassment that occurred through September 2020. Since Complainant did not provide any adequate justification for tolling the time limit, the EEOC affirmed the Agency’s decision. Bennie S. v. Dep’t of Homeland Sec., EEOC Appeal No. 2021004250 (Jan. 10, 2022), request for reconsideration denied, EEOC Request No. 2022001818 (Apr. 24, 2022).

Formal Complaint Improperly Dismissed for Untimely EEO Counselor Contact. Complainant filed a formal complaint alleging a hostile work environment. Complainant referred to a number of incidents that occurred prior to a certain date, as well as incidents concerning the Family Medical Leave Act that took place at a later date. The Agency dismissed the complaint for untimely EEO counselor contact. On appeal, Complainant asserted that her medical condition and hospitalization delayed her in pursuing these matters. The EEOC noted that the formal complaint and pre-complaint documents reflected that Complainant alleged a hostile work environment based on various incidents, including, but not limited to, being denied scheduled leave, not being properly compensated for overtime hours, not being compensated for closing the post office, being assigned a heavier workload, and not being paid consistently while on medical leave. The EEOC concluded that the Agency improperly dismissed the complaint, noting that because the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable as long as at least one incident occurred within the filing period. Here, Complainant’s allegation that she was brought back to work, placed in an unassigned status, and not provided with a regular assignment occurred within 45 days of Complainant’s EEO contact. Thus, Complainant timely initiated EEO contact regarding her entire hostile work environment claim. Livia C. v. U.S. Postal Serv., EEOC Appeal No. 2022000809 (Feb. 23, 2022).

Agency Failed to Meet Burden to Support Dismissal for Untimeliness. The Agency dismissed the complaint as untimely, reasoning that Complainant received the Notice of Right to File a Formal Complaint on December 2, 2021, but did not file her complaint until January 7, 2022. The EEOC reversed the dismissal on appeal. The EEOC found that the Agency had not satisfied its burden of establishing that the complaint was untimely filed. Specifically, the record did not contain adequate documentation reflecting when Complainant received the Notice. The documentation in the record noted only that the Notice was “delivered in/at mailbox.” Complainant stated that she did not receive or sign for the Notice on December 2. The Agency failed to rebut Complainant’s assertion that she did not receive the Notice more than 15 days prior to January 7. Glayds K. v. U.S. Postal Serv., EEOC Appeal No. 2022001604 (Apr. 26, 2022)

Formal Complaint Improperly Dismissed as Untimely. An AJ dismissed the formal complaint as untimely, finding that Complainant should have filed her complaint by June 13, 2018. The EEOC reversed the decision on appeal. The EEOC reversed the decision on appeal. The EEOC noted that the EEO Counselor specifically informed Complainant that her deadline to file her formal complaint was June 28, 2018. If that was not accurate, he misinformed Complainant. In addition, Complainant timely submitted her complaint at 3:34 a.m. Greenwich Mean Time (GMT) on June 29, 2018, which was 11:34 p.m. Eastern Standard Time (EST) on June 28, 2018. Joette R. v. Dep’t of Veterans Aff., EEOC Appeal No. 2020005002 (Mar. 2, 2022).

Agency Failed to Meet Burden of Proving Untimeliness. The Agency dismissed Complainant’s formal complaint of discrimination as untimely, determining that Complainant filed it one day beyond the 15-day deadline. On appeal, the EEOC noted that Complainant’s 15-day filing period ended on a Friday, and according to the Agency’s acknowledgment letter, the complaint had been received the following day, a Saturday. The record showed the EEO office had completed a page (“Part II”) on the back of the complaint form, indicating that the complaint was received on Saturday, but noting only “other” for the method of delivery. The notice of right to file provided Complainant with two methods for filing her complaint: in person or by mail. The EEOC deduced that, based on the page on the complaint form completed by the EEO office, the Agency conceded that the complaint was not delivered in person or by facsimile. Thus, the complaint must have been received by mail. The Agency’s record did not contain a copy of the envelope that contained the complaint. The EEOC noted that virtually all methods of mailing should be sent a minimum of one day before receipt. In this case, that meant the complaint should have to have been mailed no later than Friday (to be received on Saturday) to be timely. Furthermore, in the absence of a legible postmark, a mailed document is deemed timely if it is received within five days of the expiration of the applicable filing period. Accordingly, because the record was lacking evidence to establish exactly when Complainant filed her complaint, the Agency had not met its evidentiary burden of proving untimeliness. Meghann M. v. Dep’t of the Army, EEOC Appeal No. 2022000486 (Feb. 22, 2022).

Dismissal for Untimeliness Proper After Complainant Ignored E-mail Containing Notice of Right to File Formal Complaint. An EEOC AJ dismissed the complaint on the grounds that Complainant untimely filed it beyond the 15-day regulatory time limit. On appeal, Complainant did not deny that he did not initially open the email containing his notice of right to file, stating he believed the 15-day filing period would not commence until he affirmatively opened the email. Complainant further asserted that this belief was based on information he received from the EEO Counselor, who confirmed (in response to an email from Complainant) that the 15-day filing period began on the date Complainant opened/read/received the email containing his notice of right to file. The AJ found that the EEO Counselor’s response did not constitute a waiver of the applicable time limit, but rather constituted a restatement of the 15-day applicable time limit, and assumed Complainant had opened the email on the date it was delivered by the Agency. The EEOC observed that regulations concerning receipt of the notice of right to file were announced prior to such notices being sent by email. Since that time, the EEOC has addressed what constitutes “receipt” of an email on a case-by-case basis. Here, the record showed that, during EEO counseling, Complainant had been provided and signed numerous documents that all specified the 15-day time limit would begin when the Notice was “received.” None of these documents stated the limitation period would begin to run once the email was opened. Moreover, Complainant fully conceded he was aware of the email on the date it was delivered, knew that the email contained the Notice, and knew of the 15-day filing period. In addition, Complainant conceded that he affirmatively chose not to open the email for almost two weeks in an attempt to prevent the filing period from starting to run. The EEOC noted when Complainant finally opened the email, he still had two days left in the filing period. If he was confused by what constituted receipt, he could have sought clarification from the Agency at that time and still met the deadline. Instead, Complainant waited eight more days until after the 15-day period expired to seek such clarification. Thus, the EEOC concluded that Complainant’s reliance on the EEO Counselor’s information did not excuse the late filing. While Complainant submitted a copy of an Agency document on appeal purporting to state that the 15-day timeframe commenced when the “aggrieved party opens his/her email,” Complainant did not claim he reviewed or was even aware of this document prior to receiving his notice of right to file. Thus, the document did not support Complainant’s argument that he was misled by the Agency. The EEOC also rejected Complainant’s assertion that he was prevented by urgent matters from filing the complaint in a timely manner, finding that Complainant presented no persuasive arguments or evidence warranting an extension of the time limit for filing his formal complaint. Rodrigo C. v. Dep’t of Justice, EEOC Appeal No. 2021004964 (Feb. 28, 2022).

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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

Complaint Processing

Dismissals

Findings on the Merits

Under the Rehabilitation Act

Under Title VII

Under Multiple Bases

Retaliation

Relief

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness