The DIGEST Of Equal Employment Opportunity Law

Fiscal Year 2023, Volume I

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

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

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

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

Findings on the Merits

Under the Rehabilitation Act

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness

Attorney’s Fees

Harlan P. v. Department of Veterans Affairs, EEOC Appeal No. 2021001693 (Aug. 22, 2022)
The EEOC previously affirmed an EEOC Administrative Judge’s (AJ) finding of no discrimination with regard to the issues raised in the complaint. The EEOC found, however, that the AJ failed to address an Agency supervisor’s reference to Complainant’s prior EEO activity and settlement. The EEOC concluded that the supervisor’s disclosures constituted unlawful reprisal. The Agency subsequently found that Complainant was not entitled to attorney’s fees because he only prevailed on a claim raised by the EEOC and not in his complaint. In the underlying decision, the EEOC disagreed and concluded that Complainant was in fact a prevailing party for purposes of attorney’s fees. Regardless of how the finding came about, the EEOC previously determined that Complainant was subjected to unlawful reprisal. While Complainant did not prevail on all his arguments in the prior appeal, he was successful on this issue and the Agency was ordered to investigate Complainant’s claim for compensatory damages. Thus, Complainant achieved some of the benefits he sought including the Agency’s ultimate award of damages. The EEOC affirmed the Agency’s award of $8,500 in nonpecuniary damages, and the Agency’s denial of pecuniary damages.

Lelah T. v. Department of Homeland Security, EEOC Appeal No. 2021001401 (Aug. 16, 2022)
The EEOC found that the Agency’s attorney’s fee award was insufficient in that it failed to consider the supplemental invoices submitted by Complainant’s counsel. Complainant’s counsel requested to submit documentation to the Agency regarding services rendered after the specified time due to the COVID-19 pandemic. The Agency denied the request, noting that the record was considered closed. The Agency then issued a final decision. Complainant’s counsel nevertheless submitted the additional invoices, requesting that the Agency reconsider, but the Agency would not allow the invoices into the record. The EEOC found that the Agency should have accepted the invoices into the record and remanded the matter to the Agency for the issuance of a new final decision.

Rigoberto A. v. Environmental Protection Agency, EEOC Appeal No. 2021002128 (July 27, 2022)
The EEOC previously found discrimination with respect to four of the 15 claims raised in Complainant’s four complaints. The Agency subsequently determined that Complainant was not entitled to payment for all 403.5 hours of requested attorney’s fees. The Agency asserted that Complainant did not prevail on all four of his formal complaints and that the documentation accompanying the expenditures was inadequate and redundant. The Agency applied an across-the-board reduction of 75% of the total hours billed. The Agency also did not award any costs, determining that Complainant’s attorney did not submit any documentation to support that claim. On appeal, the EEOC determined that the attorney’s hours were excessive. Furthermore, given that counsel did not provide adequate justification for his hourly rate, the EEOC found that an across-the-board reduction of 25% of the total hours was warranted in this case.

Debbi V. v. Department of Veterans Affairs, EEOC Appeal No. 2021000890 (July 25, 2022)
Following a hearing, an AJ issued a decision finding that the Agency discriminated against Complainant based on disability when it failed to provide her reasonable accommodation. This resulted in an unsatisfactory evaluation, the suspension of her clinical privileges, and her eventual termination. On appeal, the EEOC found that a request for 1.2 hours at the rate of $665 was sufficiently detailed and related to Complainant’s EEO matter. However, a second entry was not related to the EEO process but was related to an internal Agency decision, and therefore was not recoverable. The EEOC also denied attorney’s fees for work done after Complainant filed her EEO complaint but before she filed her motion to amend to add the termination as a claim. The EEOC awarded Complainant $665 in attorney’s fees for work done drafting the motion to amend. The remaining fees were denied as the attorney’s work was related to internal Agency processes outside of the EEO administrative process. Accordingly, the EEOC modified Complainant’s total award of attorney’s fees. The EEOC determined that Complainant’s request for additional pecuniary damages, which include moving and travel expenses, furniture storage, and job-search costs, were speculative in nature and not compensable.

Natalie S. v. U.S. Postal Service, EEOC Appeal No. 2021003486 (July 7, 2022)
An AJ found that the Agency violated the Rehabilitation Act when Complainant’s second-level supervisor disclosed Complainant’s protected medical information to her coworkers. The AJ awarded Complainant $3,500 in nonpecuniary compensatory damages to compensate her for the emotional distress that she suffered as a result of the Agency’s action. Additionally, the AJ ordered the Agency to provide EEO training to the second-level supervisor, and to post a notice of the discrimination at the facility. Complainant was also awarded attorney’s fees, as she was the prevailing party in the matter. She initially sought $22,295 in attorney’s fees, but the Agency objected as Complainant had not been successful on all three of her claims. The Agency sought a 66% reduction in the lodestar value that it had calculated to be $16,043. The AJ awarded $7,419.43 in attorney’s fees. Complainant appealed the Agency’s final decision. The EEOC found that the AJ did not abuse his discretion in reducing Complainant’s claimed hours, since Complainant’s successful claim was fractionable from the remaining two claims. Accordingly, the AJ’s award of $7,419.43 in attorney’s fees was affirmed. The complaint was remanded to the Agency for further processing.

Compensatory Damages

Mirta Z. v. U.S. Postal Service, EEOC Appeal No. 2021003272 (Aug. 31, 2022)
The EEOC previously found that the Agency denied Complainant reasonable accommodation and issued her a Notice of Separation. The Agency then investigated Complainant’s claim for damages and awarded her $17,500. On appeal, the EEOC increased the award to $100,000, finding that the Agency’s award was not supported by the evidence. Complainant’s daughter testified in support of Complainant’s claim, noting that after the Agency refused to change Complainant’s hours despite recommendations from her physician, Complainant suffered a grand mal seizure. The Agency continued to deny Complainant’s requests for a schedule change and ultimately separated Complainant for being unable to work the Agency’s preferred schedule. Complainant’s daughter stated that Complainant’s seizures increased in severity, resulting in falls and head injuries. Complainant had suffered seizures since childhood. Two physicians, however, stated that Complainant’s seizures worsened following the discrimination. Thus, the EEOC concluded that an award of $100,000 better compensated Complainant for the harm she suffered due to the Agency’s failure to accommodate her. The EEOC found that the record did not support an award of pecuniary damages.

Tessa G. v. Department of Health and Human Services, EEOC Appeal No. 2020004613 (Aug. 29, 2022)
An AJ issued a default judgment in favor of Complainant and awarded her, among other things, $42,500 in nonpecuniary compensatory damages. The EEOC increased the award to $75,000 on appeal finding that amount was more appropriate given the severity of the harm Complainant suffered and considering awards in similar cases. The record included emails from Complainant’s law professor in which he retracted his offer to speak with Complainant about her job search after he had spoken with an Agency official. Complainant stated that her former professor was not willing to help her with her job search after speaking with the Agency official. Complainant also stated that after her termination, she experienced panic attacks and physical pain due to severe stress, as well as depression and crying spells. She also stopped attending social events because she felt humiliated and embarrassed by the loss of her job. Complainant’s friend confirmed that Complainant experienced social withdrawal, and Complainant submitted a neuropsychological evaluation diagnosing her with mild anxiety and moderate depression due to her unemployment. The EEOC affirmed the AJ’s finding that Complainant was not entitled to reinstatement because the term contract she worked under had expired. The EEOC also affirmed the AJ’s award of back pay only for the months remaining on her employment contract at the time of her termination. The EEOC remanded the case to address other elements of relief sought by Complainant.

Thersa E. v. U.S. Postal Service, EEOC Appeal No. 2021005121 (June 29, 2022)
The EEOC previously found that the Agency failed to provide Complainant with an effective accommodation when it offered to allow Complainant to use leave or a personal monitoring device, which Complainant indicated would not alert her to her symptoms, rather than bring her medical alert dog to work. The Agency subsequently awarded Complainant $7,000 in nonpecuniary damages.

On appeal, the EEOC increased the award to $60,000, determining that the amount would better compensate Complainant based on the extended period of time Complainant was without her service dog. Complainant was at a higher risk of stroke due to the absence of her trained service dog, in addition to stress and mental symptoms. The EEOC found that the higher award was consistent with similar awards in provided cases. The EEOC also determined that Complainant was entitled to an additional $4,200 in pecuniary damages to compensate her for expenses incurred hiring a dog walker, an expense the EEOC noted was caused by the Agency’s discriminatory actions. Specifically, the EEOC reasoned that Complainant would not have had to employ a dog walker but for the Agency’s refusal to allow her service dog to accompany her to work. Finally, the EEOC held that Complainant was the prevailing party, and thus she was entitled to attorney’s fees.

Angelo P. v. Department of Homeland Security, EEOC Appeal No. 2020000286 (May 24, 2021)
The Agency found that Complainant was subjected to reprisal when he was not selected for a position. The Agency subsequently awarded Complainant $20,000 in nonpecuniary compensatory damages. The EEOC increased the award to $50,000 on appeal. Complainant provided his own statement, as well as that of his wife in support of his claim. Both indicated that Complainant experienced depression, stress, anger, frustration, and humiliation. Complainant also suffered sleep disturbance, migraines, panic attacks and suicidal ideations. The Agency correctly noted that many of Complainant’s symptoms were related to his overall work environment, the record showed that Complainant’s symptoms were exacerbated by his feeling trapped due to the discrimination. Complainant stated that he immediately sought medical treatment following his nonselection. Thus, the EEOC concluded that the discriminatory nonselection significantly exacerbated his symptoms such that the higher award was appropriate. The EEOC concluded that Complainant did not prove her claim for pecuniary damages or leave restoration.

Iris D. v. Department of Labor, EEOC Appeal No. 2021001028 (May 4, 2022)
An AJ found that the Agency subjected Complainant to a racially hostile work environment. As relief, the AJ awarded Complainant, among other things, $45,000 in nonpecuniary compensatory damages. The Agency fully implemented the AJ’s decision. On appeal, the EEOC affirmed the AJ’s award of damages. The EEOC concluded that the award was proper given the severity of the psychological harm experienced by Complainant, the duration of the harassment, and the fact that 50 percent of Complainant’s harm was not caused by the Agency’s discriminatory acts. Request for reconsideration denied EEOC Request No. 2022003461 (Sep. 29, 2022).

Michael G. v. Department of Veterans Affairs, EEOC Appeal No. 2021002218 (June 29, 2022)
The EEOC previously found that Complainant had been subjected to a hostile work environment on the basis of race in connection with multiple incidents involving a coworker and the Agency had failed to take immediate and appropriate remedial action. Following a supplemental investigation, the Agency awarded Complainant $30,000 in nonpecuniary compensatory damages. The EEOC increased the award to $35,000 on appeal. Complainant stated that over the 18 months of harassment, he experienced stress, moodiness, loss of appetite, weight loss, and strained relationships with his wife and daughter. Complainant acknowledged, however, that he was no longer experiencing emotional distress. Complainant’s wife and daughter submitted statements in support of his claim. The record contained three progress reports from a nurse practitioner, but none of the reports made any note of emotional distress, and two indicated that Complainant had stated he felt well. The EEOC noted that the size of a compensatory damages award is governed by the severity and duration of the harm suffered as well as the documentation of both the harm and the causal connection to the Agency’s acts of discrimination. The EEOC determined that a nonpecuniary award of $35,000 was more appropriate in this case.

Anna B. v. Department of Defense, EEOC Appeal No. 2021002342 (June 14, 2022)
The Agency found that Complainant’s supervisor delayed providing her with reasonable accommodation and subjected her to harassment. The Agency then awarded Complainant $10,700 in nonpecuniary damages. The EEOC increased the award to $15,000 on appeal given the severity, nature, and duration of Complainant’s harm. Complainant provided her own statement, her mother’s statement, and medical documentation from the Emergency Room. Complainant stated that Agency’s actions caused her emotional distress, humiliation, embarrassment, crying spells, and loss of sleep and appetite. Complainant went to the emergency room on one occasion because she experienced a severe headache, neck pain, and eye pain. However, the documentation showed that Complainant had a history of headaches, neck pain, and seizure disorder prior to the discrimination.

Maxima C. v. Department of the Air Force, EEOC Appeal No. 2020005241 (June 7, 2022)
AJ found that the Agency discriminated against Complainant based on disability when it failed to provide her with reasonable accommodation and awarded Complainant $10,000 in nonpecuniary compensatory damages. The EEOC affirmed the AJ’s award on appeal. Complainant stated that she suffered stress, anxiety, and fear of termination. Complainant also saw a psychiatrist due to various comments from a management official and the Agency’s failure to accommodate her. Complainant, however, did not provide any other evidence in support of her claim. Thus, the EEOC determined that the AJ’s award was consistent with awards in similar cases. The EEOC affirmed the AJ’s award of attorney’s fees and findings of no discrimination with regard to additional claims.

Lisa C. v. U.S. Postal Service, EEOC Appeal No. 2021002674 (July 28, 2022)
The EEOC previously determined that while Complainant was not subject to a hostile work environment, the Agency discriminated against her when it denied her reasonable accommodation. The Agency subsequently awarded Complainant $1,500 in nonpecuniary damages. The EEOC initially affirmed the Agency’s award of $576.57 in pecuniary damages, finding that Complainant failed to submit receipts to support an increase in the award. Regarding nonpecuniary damages however, the EEOC increased the award to $7,500 due to the severity and the duration of the harm suffered. Complainant stated that, during the 6 months without an accommodation, she began to take and continues to take anti-depressant and anti-anxiety medication. She also stated that she had been seeing a counselor, but discontinued treatment due to her stress and depression. Complainant did not provide medical documentation or statements from family to support her claim. The EEOC concluded that her ongoing symptoms of mental anguish supported the higher award.

Carlton T. v. U.S. Postal Service, EEOC Appeal No. 2021002194 (Aug. 24, 2022)
The EEOC previously found that Complainant was subjected to reprisal when his supervisor criticized his EEO activity. The Agency then awarded Complainant $600 in nonpecuniary compensatory damages. The EEOC increased the award to $3,000 on appeal based on the nature, severity, and duration of Complainant’s harm, and considering Complainant’s pre-existing condition. Complainant provided limited evidence to support his claim but indicated that the Agency’s retaliation caused him to experience high blood pressure, sleeplessness, loss of focus, and constant worrying. Complainant’s submissions focused primarily on actions unrelated to the retaliation.

Isaiah R. v. U.S. Postal Service, EEOC Appeal No. 2021001506 (July 27, 2022)
An AJ determined that Complainant was subjected to discriminatory harassment and awarded Complainant $1,000 in nonpecuniary compensatory damages. The AJ found that Complainant failed to prove his other claims. The EEOC affirmed the AJ’s findings regarding the merits of Complainant’s claims, as well as the award of damages on appeal. The AJ correctly determined that Complainant was only successful regarding one claim. Complainant stated that he was shocked and embarrassed by the way he was treated, and that he felt isolated and persecuted. The EEOC noted, however, that despite the hurtful nature of the comments, calling Complainant “devil,” “red-headed,” and other such insults are not the type of highly charged epithets that would dredge up histories of oppression. Furthermore, there was no evidence that Complainant sought medical treatment because of the incidents cited, and there were no statements from care providers, family members or friends to support Complainant’s contentions. The EEOC determined that $1,000 in nonpecuniary compensatory damages was adequate to compensate Complainant for the harm suffered in this case.

Complaint Processing

Nancy S. v. Department of Veterans Affairs, EEOC Request No. 2022001962 (Aug. 15, 2022)
Complainant alleged that she was subjected to discrimination when she was not selected for various human resources positions. On appeal, the EEOC found that the record did not contain sufficient documentation for each of the positions at issue. Specifically, that the record did not establish how many positions were filled for each announcement and whether the vacancies were advertised and filled competitively or non-competitively. The record also did not contain sufficient interview notes, scoring data, and/or ranking of candidates to determine how the Agency chose the selectees for each of the positions at issue. The EEOC reminded the Agency of its duty to keep all relevant documentation pertaining to nonselection claims once an EEO complaint has been filed. The EEOC warned the Agency that failure to produce such evidence could result in an adverse inference that such evidence would have been favorable to Complainant's claims. As a result, the EEOC ordered the Agency to conduct a supplemental investigation to obtain the relevant records related to the non-selections at issue.

Natalie H. v. Department of the Air Force, EEOC Appeal No. 2021002253 (Aug. 8, 2022)
Complainant filed a formal EEO complaint alleging discriminatory harassment, as well as a schedule change and the denial of a pay increase. The Agency dismissed a portion of the complaint and found no discrimination regarding the remaining allegations. The EEOC found that the Agency was 485 days late in issuing its final decision. The EEOC declined to sanction the Agency for the late decision but stated it would inform the Office of Federal Operations’ Federal Sector Programs of the Agency’s failure to comply with EEOC regulations on timely issuance of Agency decisions. The EEOC also found that the Agency improperly dismissed Complainant’s pay claim for untimely EEO Counselor contact. The EEOC found that the pay claim was timely pursuant to the Lilly Ledbetter Fair Pay Act. The Agency also failed to consider many additional claims of harassment which were raised by Complainant.

Alexandria P. v. Department of the Air Force & Department of the Army, EEOC Appeal No. 2022001614 (June 30, 2022)
Complainant worked at an Air Force (Agency) base and was assigned to a shift also staffed by employees of the Department of the Army. Complainant alleged that she was subjected to discrimination when her supervisor, a Senior Planner (SP) working for the Air Force, made unwelcome sexist and racist comments in Complainant’s presence. In addition, Complainant alleged that SP’s supervisor, an employee of the Department of the Army, made offensive comments. The Agency issued a final decision dismissing the complaint for failure to state a claim. The Agency argued that the management officials who allegedly discriminated against Complainant were civilian employees under control of the Army. On appeal, the EEOC determined that both the Army and the Agency must jointly process the EEO complaint. Accordingly, the EEOC found that the Agency improperly dismissed Complainant’s formal EEO complaint.

Leota F. v. U.S. Postal Service, EEOC Appeal No. 2022002024 (May 2, 2022)
Complainant received a notice of the right to request a hearing in 2021. When the Agency did not receive a hearing request from Complainant, the Agency issued a final decision finding no discrimination. Complainant then contacted the Agency, stating that she had filed a request for a hearing with the EEOC’s Washington Field Office and provided a copy of the hearing request to the Agency. The Agency forwarded the request to the EEOC. During a status conference, the AJ advised the Agency that Complainant’s hearing request appeared to be timely and asked the Agency to consider rescinding its final decision. The Agency then filed a motion to dismiss for lack of jurisdiction, which the AJ granted.

On appeal, the EEOC determined that the matter was improperly dismissed and remanded the claim for a hearing. The EEOC concluded that Complainant’s initial request for a hearing effectively transferred jurisdiction of the complaint to the EEOC, such that the Agency no longer had jurisdiction to issue a final decision. There was no dispute that the Agency knew that Complainant had filed a hearing request and responded by forwarding a copy of the request and the complaint file to the EEOC before the EEOC docketed the hearing request. The EEOC concluded that the Agency failed to identify any substantive prejudice it would suffer in defending the matter if Complainant's hearing request was honored. Furthermore, any delay was minimal and there was no evidence of harm to the Agency or the Federal sector EEO process. The EEOC found that in the interest of fairness, Complainant should have been afforded a hearing before an AJ and remanded the case for further processing.

Dismissals

Kristie O. v. U.S. Postal Service, EEOC Appeal No. 2022002885 (Aug. 17, 2022)
The EEOC found that the Agency improperly dismissed the complaint for raising the same claim as in prior complaints, since there was no evidence that Complainant actually received a Notice of Right to File regarding the previous complaints. Furthermore, the EEOC found that the Agency improperly dismissed the complaint for untimely EEO Counselor contact. The documentation concerning Complainant’s past EEO cases reflected that her EEO Counselor contact was timely. Complainant alleged ongoing discrimination when she was informed that the Agency was removing her from employment. The EEOC observed that the Agency did not respond when Complainant inquired about her prior EEO cases, which were not processed. Thus, the EEOC remanded the complaint for further processing.

Matt B. v. Department of Defense, EEOC Appeal No. 2022002901 (Aug. 16, 2022)
The EEOC found that the Agency improperly dismissed the complaint for untimely EEO Counselor contact and mootness. The Agency noted that there was no evidence that Complainant was unaware of the 45-day time limitation for contacting an EEO Counselor. The EEOC, however, found the Agency’s argument unpersuasive given that Complainant, an applicant for employment, was not a Federal employee and never received any training on the Federal sector EEO process. The record did not show that Complainant was sufficiently apprised of the time limitation. The EEOC further found that a portion of Complainant’s complaint was improperly dismissed as being moot, noting that Complainant was not referred for the vacancies at issue as the Agency maintained. On appeal, Complainant asserted that the essence of all his claims was that he was subjected to a discriminatory practice or policy resulting in a pattern of repeated determinations of ineligibility.

Melani F. v. Department of Veterans Affairs, EEOC Appeal No. 2022002288 (July 19, 2022)
The EEOC found that it had jurisdiction over Complainant’s hostile work environment harassment claims, and the Agency improperly dismissed these claims. The EEOC explained that finding EEO claims “inextricably intertwined” with matters before the Merit Systems Protection Board (MSPB) is no longer applicable in most circumstances because the MSPB generally does not have jurisdiction over non-appealable matters. This holds true even when the EEO claims are related to appealable matters. On appeal, the EEOC agreed with Complainant that the MSPB does not have jurisdiction over matters arising from her hostile work environment claim. Thus, Complainant's hostile work environment claim was properly part of the EEO process, even though the claims of a hostile work environment included incidents related to Complainant's ultimate removal from employment, which was appealable to the MSPB.

Zola R. v. U.S. Postal Service, EEOC Appeal No. 2022001802 (July 18, 2022)
The EEOC found the Agency improperly dismissed a portion of Complainant’s complaint for stating the same claim as a prior EEO informal complaint. The Agency asserted that it sent Complainant a notice of right to file regarding the prior informal complaint, but Complainant never responded to the notice thus abandoning the claims. Complainant, however, denied receiving any information about the processing of the prior informal complaint and believed it was still being processed. The EEOC found that the Agency improperly dismissed the instant complaint, observing that the Agency failed to provide a copy of the prior informal complaint and related materials to show that it was identical to the instant complaint. Therefore, the Agency did not meet its burden to submit evidence or proof in support of its final decision. The EEOC also found that the Agency improperly dismissed an additional claim for untimely EEO Counselor contact since Complainant alleged a pattern of harassment that should be considered as part of the evidence in support of Complainant’s broader claim of ongoing harassment.

Nathan S. v. U.S. Postal Service, EEOC Appeal No. 2022001051 (May 2, 2022)
The EEOC affirmed the Agency’s dismissal of Complainant’s complaint on grounds that it stated the same claim he raised in a prior complaint. The EEOC noted that Complainant was again recounting an instance where a manager declined to answer his inquiries about his status on a reinstatement list. The only difference was that Complainant made the instant inquiry by letter. The recent inquiry was made years after he retired and involved the same matter. The EEOC noted that identifying new evidence to support a prior claim or arguing a different theory of law does not create a new claim. Request for reconsideration denied EEOC Request No. 2022003631 (Oct. 24, 2022).

Findings on the Merits

Under the Rehabilitation Act

Britany C. v. U.S. Postal Service, EEOC Appeal No. 2021001940 (Aug. 30, 2022)
Complainant, who was working in a Limited Duty position, alleged she was subjected to discrimination based on her disability (long term bilateral leg and ankle sprains) when, from July 5 through July 31, 2019, the Agency did not allow her to work. The record showed that the Agency instructed Complainant to update her medical restrictions in June 2019 because her most recent ones were from 2011. Complainant’s second-line supervisor told her not to return to work until she submitted the updated documentation. However, when Complainant reported to work on July 5, 2019, with updated medical restrictions, she was sent home. According to second line supervisor, the medical restrictions were unclear. Complainant subsequently submitted a revised doctor’s note on July 31 and returned to work the next day. Neither Complainant’s first-line nor second-line supervisor explained why the July 2 medical documentation was inadequate. In addition, the Agency informed Complainant that it was reviewing her Limited Duty position to determine whether she had been working outside of her position in violation of the collective bargaining agreement. The Agency ultimately offered Complainant a Limited Duty position within her July 2, 2019, restrictions.

On appeal, the EEOC found that Complainant was an individual with a disability. Further, the EEOC has previously held that when an employee has performed a modified position for an extended period of time, that is the position which is considered for purposes of deciding whether the employee is a qualified individual with a disability. Therefore, the EEOC found Complainant was qualified because she had worked in her modified assignment for over eight years and could perform its essential functions. The EEOC noted that where an Agency has accommodated an employee’s disability with modified job offer(s) for several years but the position becomes unavailable, the Agency must continue to accommodate the employee with work absent an undue hardship. In this case, the Agency did not prove undue hardship. Thus, the EEOC found that the Agency denied Complainant reasonable accommodation. The Agency was ordered, among other things, to pay Complainant appropriate back pay and benefits, and investigate Complainant’s claim for damages.

Arturo B. v. Department of Defense, EEOC Appeal No. 2021003276 (Aug. 29, 2022)
Complainant was an external applicant for a Police Officer position. As part of the selection process, Complainant underwent a strenuous physical fitness test. Complainant had suffered a heart attack in the prior year and had been diagnosed with diabetes mellitus, but passed the physical fitness test with no issues. Complainant ultimately received a conditional offer of employment based on Complainant passing a medical examination. During the physical examination, Complainant disclosed that he had diabetes mellitus, coronary artery disease, a history of myocardial infarction, anxiety, and posttraumatic stress disorder. Though Complainant’s physical examination was unremarkable, the examining Contract Physician requested Complainant’s medical record. The Contract Physician was concerned that Complainant would have several limitations, and the Agency’s Medical Board medically disqualified Complainant for the position.

Complainant filed an EEO complaint alleging discrimination on the basis of disability when the Agency rescinded his conditional offer of employment. The Agency acknowledged that Complainant was an individual with a disability. On appeal, the EEOC concluded that Complainant was qualified for the position because all of Complainant’s treating physicians stated that his medical conditions were well controlled and would not impose any restrictions on Complainant’s ability to work in the position. The EEOC acknowledged that in some situations, diabetes could render a person medically unqualified. However, in this case, the Contract Physician’s assessment of Complainant’s condition was based on unwarranted assumptions about Complainant’s abilities in violation of the Rehabilitation Act. Thus, the EEOC concluded that the Agency discriminated against Complainant on the basis of his disability. The Agency was ordered, among other things, to offer Complainant the position that he sought, and investigate Complainant’s entitlement to compensatory damages.

Georgeann R. v. U.S. Postal Service, EEOC Appeal No. 2021003547 (Aug. 29, 2022)
Complainant worked as a Mail Processing Clerk. Due to the strenuous nature of the position, which exacerbated her knee disability, Complainant requested that she be reassigned to her previous duties as a Machine Operator with additional breaks. The Agency’s District Reasonable Accommodation Committee ultimately denied Complainant’s request, citing lack of vacant funded positions within Complainant’s medical restrictions. The Agency also denied Complainant’s request for additional breaks due to staffing concerns. Complainant then filed a complaint alleging discrimination on the basis of disability. At Complainant’s request, the Agency issue a final decision finding Complainant was not a qualified individual with a disability.

The EEOC previously found ample evidence that her knee condition substantially limited her ability to walk and work. The EEOC agreed with the Agency that Complainant could not perform the essential functions of the position that she held, but the record did not show whether there were other vacant funded positions that Complainant could perform. The Agency subsequently conducted a supplemental investigation, and again found no discrimination. On appeal, the EEOC found that Complainant was a qualified individual with a disability because the record showed that she could perform the duties of a Sales Service and Distribution Associate position. The EEOC had specifically ordered the Agency to conduct an Agency-wide search for vacant funded positions, but the Agency ultimately failed to do so and simply added the results of a prior search to the record. Two of the eight positions in the search were Sales and Distribution positions. The EEOC ultimately concluded that the Agency violated the Rehabilitation Act and did not act in good faith when it failed to reassign Complainant to one of those positions as a reasonable accommodation. The Agency was ordered, among other things, to accommodate Complainant by reassigning her to the Sales Service and Distribution Associate position and allowing her to take additional breaks, as well as investigate Complainant’s entitlement to compensatory damages and backpay.

Ollie L. v. U.S. Postal Service, EEOC Appeal No. 2021003374 (Aug. 29, 2022)
Complainant filed three EEO complaints alleging, among other things, that the Agency did not provide him with limited duty work within his medical restrictions and failed to provide him with reasonable accommodation. The EEOC previously determined that Complainant was an individual with a disability. In the underlying appeal, the EEOC concluded that the Agency failed to provide Complainant with reasonable accommodation because it did not conduct an Agency-wide search for vacant funded positions that Complainant could perform. Complainant provided lists of vacant funded clerk positions available during the time in question. Although a supervisor had stated that there was a 45-pound lifting requirement for the clerk position, the job description provided by the Agency had no such requirement listed. Furthermore, the EEOC held that the Agency failed to provide any reason or explanation for limiting Complainant to the carrier craft.

Thus, the EEOC concluded that the Agency violated the Rehabilitation Act when it failed to provide Complainant with a reasonable accommodation and required Complainant to perform work outside of his restrictions. The EEOC affirmed the finding of no disparate treatment discrimination with regard to additional allegations. The Agency was ordered, among other things, to accommodate Complainant by reassigning him, and investigate Complainant’s entitlement to compensatory damages and backpay with consideration of his tax liability.

Angelo P. v. U.S. Postal Service, EEOC Appeal Nos. 2022002880 & 2022003452 (Aug. 22, 2022)
Complainant, a Letter Carrier, alleged that the Agency discriminated against him on the basis of disability (obsessive compulsive disorder (OCD)) when he was issued a notice of proposed removal for unacceptable conduct. After a hearing, an AJ found that the Agency discriminated against Complainant as alleged. According to the record, Complainant was removed for making a large number of duplicate scans of bar-coded items during a mail count, which the Agency deemed unacceptable conduct. The AJ found that Complainant testified credibly as to his OCD and its effects and triggers. His testimony was corroborated by the credible testimony from Complainant’s psychiatrist who noted that Complainant’s OCD impacted his job duties, specifically with regard to his compulsive behavior with the mail scans. The AJ also found that neither the Postmaster nor the then-Acting Manager of Post Office Operations were credible concerning their conclusion that Complainant’s duplicate scans were the result of a deliberate attempt to inflate his mail count and not due to his disability.

The EEOC rejected the Agency’s argument that the AJ erred by finding Complainant established a prima facie case. The EEOC noted that none of the other rural letter carriers were disciplined for having duplicate scans of bar-coded mail, and the record showed that comparators were treated more favorably than Complainant. The EEOC found that the AJ’s credibility determinations were reasonable and supported by the evidence in the record. The EEOC also affirmed the AJ’s finding that Complainant established that the Agency’s reason was a pretext for discrimination because the Postmaster simply refused to believe Complainant’s statement that his duplicate scanning could be attributed to his disability, even after receiving confirmation from Complainant’s union representative that there was medical documentation of Complainant’s disorder on file. Thus, the EEOC affirmed the AJ’s finding of discrimination. The Agency was ordered, among other things, to reinstate Complainant and pay him appropriate back pay and benefits.

Jeremy C. v. Department of the Treasury, EEOC Appeal No. 2021001061 (May 3, 2022)
Complainant, an applicant for a Seasonal Tax Examining Technician position, filed a complaint alleging he was discriminated against on the basis of disability (hearing impaired). Complainant alleged that he was not provided a sign language interpreter during his new hire orientation and his offer of employment was revoked. An AJ issued a decision without a hearing finding no discrimination. On appeal, the EEOC found that the Agency violated the Rehabilitation Act by failing to provide Complainant with a sign language interpreter, as Complainant requested. Furthermore, the EEOC found that the Agency did not act in good faith regarding the reasonable accommodation request, so it was liable for proven compensatory damages.

Maxima R. v. U.S. Postal Service, EEOC Appeal No. 2020005074 (May 3, 2022)
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of her disability when Complainant was placed on Emergency Placement leave status and not permitted to return to work. During this period, she did not receive her pay. The Agency issued a final decision finding no discrimination. The EEOC reversed the decision, finding that the Agency discriminated against Complainant based on a perceived disability. The Postmaster stated that Complainant’s medical condition affected her ability to perform her duties due to her erratic behavior, and he placed Complainant on Emergency Placement because she was being aggressive and threatening towards others. The EEOC found the Agency’s stated reasons for the actions were a pretext for discrimination.

Specifically, the management official’s claim that she feared for her safety was not credible because she described no threats by Complainant. In addition, while the Postmaster asserted that Complainant failed to follow instructions, he did not provide any details or supporting evidence. Another management official provided contradictory testimony, stating that Complainant followed her instructions to leave. While the Postmaster also explained that Complainant was not allowed to return to work because she missed the fitness for duty (FFD) examinations, the Agency did not substantiate the need for a FFD examination. The EEOC concluded that the failure to pay Complainant was a direct result of the Agency’s improper actions of placing Complainant on Emergency Placement and failing to return her to work. The Agency was ordered, among other things, to return Complainant to work, restore any leave used, provide Complainant with back pay, and investigate Complainant’s claim for damages.

Ashely H. v. Department of Veterans Affairs, EEOC Appeal No. 2021002263 (May 3, 2022)
Complainant alleged discrimination on the basis of disability (asthma) when the Agency denied her a reasonable accommodation on multiple occasions. The Occupational Safety and Health Administration (OSHA) had directed the Agency to remove mold in the building where Complainant worked. Complainant requested an alternate work site, telework, or administrative leave as a reasonable accommodation during the cleanup. She also requested a permanent removal from the building due to continued asthma symptoms while working there. The Agency issued a final decision finding no discrimination.

On appeal, the EEOC found that the Agency failed to accommodate Complainant’s first request for an alternate work site, telework, or administrative leave. While the Agency promptly discussed the matter with Complainant and her union representative, a reasonable accommodation of an alternative work site was not communicated to Complainant until after she suffered an asthma attack at work. Therefore, the EEOC found that the Agency failed to reasonably accommodate Complainant following her first request. The EEOC affirmed the Agency’s final decision as it pertained to Complainant’s subsequent requests for accommodation. The Agency was ordered, among other things, to restore or compensate Complainant for leave used, begin a discussion regarding reasonable accommodation, and investigate Complainant’s claim for damages.

Under Multiple Bases

Clarine L. v. Department of Transportation, EEOC Appeal No. 2020005402 (July 28, 2022)
Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against her on the bases of her race and sex when it did not select her for a supervisory position. An AJ issued a decision finding that Complainant demonstrated that she was vastly superior to the selectee. In addition, the Agency failed to specifically explain the reasons why Complainant’s interview performance was inferior to that of the selectee. Thus, the AJ found that Complainant was discriminated against based on race and sex. On appeal, the EEOC affirmed the AJ’s finding of discrimination. However, the EEOC reversed the AJ’s finding with regard to entitlement to compensation for increased tax liability. The EEOC stated Complainant did not have to provide an estimate of her increased tax liability prior to receiving any payment. Instead, Complainant could submit detailed calculations showing her tax liability after back pay award.

Cynthia D. v. Department of the Navy, EEOC Appeal No. 2020002980 (July 21, 2022)
The EEOC affirmed the AJ’s finding that the Agency failed to take prompt, effective corrective action when it was notified of Complainant’s allegation that she had been harassed by her first-line supervisor. Complainant alleged that, on two occasions, her supervisor, while near Complainant, raised his voice and gestured in a manner that made Complainant fear for her personal safety. The AJ noted that the supervisor did not treat a male coworker who was working with Complainant in the same manner. The EEOC found there was no justification for the supervisor yelling and screaming at Complainant unprofessionally, while not acting the same toward her Caucasian, male coworker. The EEOC agreed with the AJ that the Agency failed to take immediate and corrective action, and therefore found the Agency liable for the harassing actions of the supervisor. In addressing remedies, the EEOC increased the AJ’s award of nonpecuniary compensatory damages from $11,000 to $12,000, noting that Complainant experienced insomnia, anxiety, weight gain, and familial withdrawal as a result of the harassment. The EEOC determined, however, that the AJ improperly awarded Complainant $42,530.64 in attorney’s fees given that Complainant's successful and unsuccessful claims of discrimination were sufficiently distinct. Thus, the EEOC reduced the requested attorneys' fees by 50 percent.

Melissa M. v. Department of Homeland Security, EEOC Appeal No. 2020001984 (Aug. 5, 2021)
Complainant, a Supervisory Transportation Security Inspector, filed an EEO complaint alleging, among other things, that the Agency subjected her to discrimination and harassment on the bases of national origin (Hispanic, Mexican) and sex (female) when she was issued a poor performance rating and a Notice of Proposed Demotion. On appeal, the EEOC found that Complainant established that she was subjected to discrimination. The EEOC noted that employees observed the supervisor holding Complainant accountable for things for which she was not responsible, and one employee observed that Mexican women were treated less favorably and given less opportunities than Caucasian women. As such, Complainant established that the Agency’s legitimate, nondiscriminatory reasons were pretextual based on her sex and national origin.

The EEOC also determined that the supervisor’s actions towards Complainant were sufficiently severe and pervasive to alter the conditions of Complainant's employment and create an abusive working environment. Complainant would become stressed, angry, and cry due to the supervisor’s constant threats to Complainant that she was failing her Performance Improvement Plan. The EEOC concluded that the Agency was liable for the harassment directed towards Complainant. However, the EEOC affirmed the Agency’s decision with regard to additional claims. The Agency was ordered, among other things, to investigate Complainant’s entitlement to compensatory damages, reinstate Complainant to her former position, and provide her with back pay. Request for reconsideration, EEOC Request No. 2021005014 (Oct. 4, 2022).

Lydia W. v. U.S. Postal Service, EEOC Appeal No. 2021004453 (May 18, 2022)
Complainant, a City Carrier Assistant, alleged discrimination based on sex (female) and reprisal when, she was put on Emergency Placement in an Off-Duty Status, and subsequently received a Notice of Removal. These events occurred after Complainant was accused of having alcohol on her breath. Complainant was sent to the local occupational health service facility where she received a negative breath alcohol test, and it was noted that there was no appearance of intoxication. An AJ held a hearing and issued a decision finding that the Agency discriminated against Complainant as alleged. The AJ found that Complainant demonstrated that the Agency’s reason for removing her was a pretext for discrimination. Specifically, the AJ concluded that the Agency’s stated reason in the notice of removal, that she was found to be under the influence of alcohol, was not worthy of credence. On appeal, the EEOC affirmed the AJ’s findings, noting that the Agency had not shown that the AJ erred or that the record did not support the AJ’s findings. The EEOC affirmed the AJ’s award of $85,000 in nonpecuniary compensatory damages and ordered the Agency to comply with the remedies provided by the AJ.

James T. v. Department of the Navy, EEOC Appeal No. 2021001460 (Feb. 22, 2022)
Complainant alleged, among other things, a hostile work environment on the bases of race and color when a coworker made offensive, racially disparaging comments about African Americans. On appeal, the EEOC found that Complainant established by a preponderance of the evidence that the offensive comments were made, after a disagreement with the coworker, though not said to Complainant’s face. Complainant also alleged that there were rumors that this coworker called Complainant the “N-word” in front of other coworkers. In addition, Complainant established that another coworker referred to him using an offensive term and an additional coworker made racially disparaging comments concerning African Americans on multiple occasions. The Agency acknowledged, in its final decision, that Complainant stated he asked a manager to stop another coworker (a contractor) from using offensive terms when referring to Complainant.

The EEOC concluded that the comments were sufficiently severe and pervasive to alter the terms and conditions of Complainant’s employment and to create an abusive work environment. Moreover, the EEOC found basis for attributing liability to the Agency given that Complainant’s first-line supervisor was aware of the harassment and merely instructed Complainant to “engage with EEO.” Although the Agency claimed that the coworkers were promptly disciplined for at least some of the incidents and no longer worked at the facility, the record did not indicate when the purported discipline occurred. Furthermore, the record contained no documentation showing that discipline was imposed on the coworkers for their conduct. Complainant also asserted that one or two of them were still employed by the Agency on a temporary assignment at another facility. The EEOC concluded that the Agency was liable for racial/color harassment because it failed to show that it took immediate and appropriate corrective action. The Agency was ordered, among other things, to provide appropriate training to the relevant employees. Request for reconsideration denied, EEOC Request No. 2022002209 (Sept. 19, 2022).

Retaliation

Opal V. v. Department of Defense, EEOC Appeal No. 2021000649 (Aug. 31, 2022)
Complainant alleged, among other things, that he was subjected to retaliation when an Agency supervisor commented on Complainant’s pending EEO complaint during a meeting to discuss her performance appraisal and expectations. On appeal, the EEOC found that Complainant was subjected to reprisal as alleged. The supervisor acknowledged that he did mention the EEO complaint once in a manner that could be perceived as assertive. Complainant stated that the supervisor’s comments made her very uncomfortable, and she was unable to end the conversation. The EEOC found that, regardless of the supervisor’s stated intent, his comment was reasonably likely to deter Complainant’s EEO activity and, therefore, constituted reprisal. Further, an Agency Director stated that the supervisor mentioned that he discussed Complainant’s EEO activity during the performance appraisal meeting, but the Agency Director failed to take any action. The EEOC affirmed the finding of no discrimination with regard to additional allegations in the complaint. The Agency was ordered, among other things, to investigate Complainant’s claim for damages.

Natalie F. v. Department. of Commerce, EEOC Appeal No. 2021002517 (Aug. 2, 2022)
On appeal, the EEOC found that Complainant was discriminated against on the basis of reprisal when she was told by a manager not to file an incident report about a comment the manager made concerning Complainant “being on her back.” Complainant stated that, afterwards, the manager treated Complainant with hostility. The EEOC rejected the Agency’s argument that the manager’s behavior towards Complainant was insufficiently severe or pervasive to constitute a claim of harassment and emphasized that the standard for establishing reprisal is different from that of showing a discriminatory hostile work environment on other bases. Adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. The EEOC found no discrimination with regard to the remaining claims. The Agency was ordered, among other things, to investigate Complainant’s claim for damages.

Neal O. v. U.S. Postal Service, EEOC Appeal No. 2021002681 (June 13, 2022)
Complainant, a union steward at his facility, filed multiple grievances in addition to 12 prior EEO complaints. The Agency placed Complainant in an off-duty, unpaid “emergency placement status” after a physical incident involving a supervisor, and subsequently issued Complainant a notice of removal. Complainant filed an EEO complaint alleging that the removal was in reprisal for his well-known history of EEO activity. On appeal, the EEOC concluded that the Agency’s articulated reason for the removal was undermined by inconsistencies in the record and comparator evidence. For example, the record showed that the Agency issued letters of warning in other incidents of physical contact at the facility, as opposed to notices of removal. Additionally, when management directed outside investigators to conduct a threat assessment into the matter involving Complainant and the supervisor, the resulting report declined to find that an assault occurred and did not make a disciplinary recommendation. Furthermore, the Agency’s labor relations manager recommended against Complainant’s removal because there was insufficient evidence. The only individual the Agency questioned in regard to the incident gave equivocal testimony and had been working at another facility on the date of the alleged assault. Thus, the EEOC found that the Agency retaliated against Complainant when it issued him a notice of removal. The Agency was ordered, among other things, to pay Complainant appropriate back pay and benefits and investigate Complainant’s claim for damages.

Mercedes A. v. U.S. Postal Service, EEOC Appeal No. 2021001289 (June 6, 2022)
Complainant filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when it conducted an investigative interview of her attendance record. On appeal, the EEOC noted that the day after Complainant’s supervisor completed her affidavit in Complainant’s EEO complaint, the supervisor contacted a union representative to arrange for representation during Complainant’s investigative interview. Complainant was told the interview could lead to discipline up to and including removal. Thus, the EEOC found that Complainant established a prima facie case of reprisal. The EEOC also found that the Agency failed to meet its burden of production because it did not provide a reason for the investigative interview. Furthermore, the Agency offered no explanation as to why a temporary acting manager was involved in the matter. Finally, no management official disputed Complainant’s description of her attendance record which, if correct, would not warrant disciplinary action. Thus, the EEOC concluded that the Agency retaliated against Complainant when it conducted the investigative interview. The EEOC affirmed the Agency’s finding of no discrimination regarding Complainant’s claims that the Agency denied her reasonable accommodation. The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages and to conduct appropriate training for the responsible management officials.

Larraine D. v. Department of Homeland Security, EEOC Appeal No. 2021001090 (May 5, 2022)
The EEOC found that a Supervisor’s inquiries into Complainant’s harassment claims were reasonably likely to deter Complainant from engaging in the EEO process. Complainant’s discussions with the Supervisor were not in the nature of official settlement discussions. Statements about a transfer, even if well intentioned and not meant to pressure Complainant, coupled with the Supervisor’s inquiry as to whether Complainant would file a formal EEO complaint were sufficiently likely to deter a person from engaging in the EEO process. Thus, Complainant established reprisal by a preponderance of the evidence. The EEOC affirmed findings of no discrimination or harassment with regard to additional claims. The Agency was ordered, among other things, to provide appropriate training for the named management official and investigate Complainant’s claim for damages. Request for reconsideration denied EEOC Request No. 2022003561 (Nov. 28, 2022).

Relief

Eve E. v. Department of the Interior, EEOC Appeal No. 2021003164 (Aug. 17, 2022)
The EEOC found that the Agency failed to make Complainant whole for the discrimination she suffered, which included incidents of harassment culminating in Complainant’s resignation, which constituted a constructive discharge. Therefore, the EEOC stated that the Agency should have offered Complainant reinstatement to her former position. Complainant was also entitled to back pay for the income she lost as a result of the discrimination, retroactive to the date her involuntary resignation became effective. The Agency was ordered, among other things, to engage with Complainant and determine the amount of back pay due to her. The EEOC also instructed the Agency to give Complainant the opportunity to provide evidence concerning her entitlement to compensation for any increased tax liability for the back pay award. The EEOC determined that the Agency’s award of $25,000 in nonpecuniary damages was insufficient to compensate Complainant for the emotional distress she suffered as a result of the Agency's actions. Specifically, Complainant suffered humiliation, panic attacks, arrythmia, weight gain, loss of confidence, and bouts of crying. Therefore, the EEOC increased the award to $100,000.

Michelle C. v. Department of Veterans Affairs, EEOC Appeal No. 2022000408 (July 26, 2022)
Following a finding of disability discrimination, an AJ awarded Complainant $110,000 in non-pecuniary compensatory damages. The Agency accepted the AJ’s finding of discrimination and agreed to implement all the relief ordered by the AJ. However, the Agency concluded that the AJ’s order failed to include equitable relief, such as reinstatement, back pay, and expunction of personnel records for the finding of disability discrimination and forced resignation (constructive discharge). On appeal, the EEOC noted that the parties agreed that Complainant was entitled to reinstatement with back pay. The EEOC also stated that Complainant was entitled to reimbursement for the higher tax consequences from the lump sum back payment. In the case of a lump sum back pay award, individuals are entitled to compensation for the extra tax that they are required to pay as opposed to the actual amount of taxes they would have paid if they had received the funds over time. The EEOC agreed with the Agency that Complainant should not be compensated for moving costs. Complainant did not provide any evidence showing that she attempted to remain in her prior location and find alternative employment.

Sanctions

Jane S. v. U.S. Postal Service, EEOC Appeal No. 2021000960 (July 14, 2022)
An AJ dismissed Complainant’s hearing request as a sanction for Complainant’s failure to respond to a discovery order. On appeal, the EEOC found no willful disobedience or an unjustifiable failure to respond, and therefore the AJ erred in sanctioning Complainant by dismissing her hearing request. There was no indication that Complainant engaged in a willful refusal to comply with the AJ’s discovery order that typified contumacious conduct. While there was a genuine dispute between the parties as to whether Complainant sufficiently complied with the Agency's discovery requests, the AJ could have allowed Complainant further opportunity to address any deficiencies by providing specific guidance. The AJ could also have crafted a less severe sanction that was specifically tailored to address the discovery matter. The EEOC therefore remanded the case for a hearing.

Barrett V. v. U.S. Postal Service, EEOC Appeal No. 2021003099 (June 6, 2022)
The EEOC affirmed the AJ’s decision to sanction Complainant by dismissing his request for a hearing. According to the record, the AJ issued an Acknowledgment Order instructing Complainant how to access the EEOC’s public portal and notify the parties to submit a Preliminary Conference Information (PCI) form. While Complainant was able to access the portal and submitted the PCI form, he failed to answer the necessary questions. Complainant and his representative also failed to appear at a Scheduling Conference without providing good cause. Furthermore, the EEOC was not persuaded by Complainant’s statement that he was waiting to receive notice of the Conference via mail, given that the AJ had been communicating with the parties by email and the record showed that Complainant was able to receive other email correspondence. Although Complainant responded to the AJ’s reminder call the day of the Conference indicating that he would join the teleconference, he failed to do so. The EEOC concluded that Complainant displayed a pattern of noncompliance that caused a negative effect on the integrity of the EEO process. Complainant limited his appeal to the AJ’s dismissal of his hearing request. As such, the Agency’s decision finding no discrimination remained the final decision in the matter.

Settlement Agreements

Cher C. v. Department of Veterans Affairs, EEOC Appeal No. 2022001809 (July 6, 2022)
Complainant and the Agency entered into a settlement agreement that resolved two complaints, all claims, and grievances with the Agency. Complainant subsequently alleged that the Agency breached the agreement when it placed her in a Clinical Assessor position instead of the position specified in the agreement. The Agency dismissed Complainant’s allegation for failure to state a claim, arguing that the matter was a collateral attack, and the breach allegation should have been raised with the Agency’s Office of Resolution Management as set forth in the agreement. The EEOC determined that Complainant attempted to actively pursue her breach claim and the Agency should have referred the breach allegation to the proper office for processing, rather than dismissing the matter. Accordingly, the EEOC found that the Agency improperly processed Complainant’s breach allegation and remanded the matter for further processing.

Tuan P. v. Department of Commerce, EEOC Appeal No. 2022001986 (July 5, 2022)
Complainant entered into a settlement agreement with the Agency that provided, in pertinent part, that the Agency would initiate the administrative process to reclassify Complainant’s service from June 17, 1991, to March 18, 1995, as creditable service for the purposes of calculating retirement eligibility. The Agency concluded that it could not comply with the provision at issue because of its legal inability to do so. Specifically, the Agency argued that a mutual mistake was made when the parties believed that the Agency would be able to reclassify Complainant’s creditable service. On appeal, the EEOC found that the mistake was made by the Agency itself. The settlement agreement was reviewed and signed by several Agency officials who should have been aware of the relevant policies, guidance, and regulations impacting its obligations under the agreement. Thus, the EEOC found that the Agency was in breach of the settlement agreement. Given that the Office of Personnel Management would not allow the Agency to comply, the EEOC ordered the Agency to reinstate the underlying EEO complaint. The EEOC also determined that Complainant was entitled to attorney’s fees.

Toshia F. v. U. S. Postal Service, EEOC Appeal No. 2022001183 (July 5, 2022)
The parties entered into a negotiated settlement agreement that provided, in pertinent part, that the Agency would give Complainant a formal light duty reassignment based upon proper medical documentation. In addition, Agency management agreed to “exhaust all possibilities of available work within Complainant’s limitations” before determining there was no work available. Complainant alleged that the Agency breached the latter provision of the agreement when management repeatedly denied her duty assignments despite work being available within her limitations.

On appeal, the EEOC noted that generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue as long as some legal detriment is incurred as part of the bargain. In the instant complaint, however, the EEOC found that the provision in question was void for lack of consideration. As the remaining provisions of the agreement reflected an exchange of consideration, the settlement agreement was reformed with the removal of the provision in question. Consequently, the EEOC found that no breach of settlement occurred. Given the nature of Complainant’s breach allegation, that she was denied work within her restrictions, the EEOC determined that the matter was more appropriately characterized as a new claim alleging the denial of a reasonable accommodation. Accordingly, the EEOC remanded that matter for further processing as a new complaint of discrimination.

Erich B. v. Department of Veterans Affairs, EEOC Appeal No. 2022001433 (June 16, 2022)
The parties entered into a settlement agreement in October 1998 that provided, among other things, that the Agency would reassign Complainant to the position of EEO Coordinator/Staff Assistant in one of two offices. In 2021, Complainant claimed that the Agency was in breach of the agreement when it planned to reassign him to a different office. On appeal, the EEOC noted that Complainant’s reassignment was in accordance with an Agency realignment. Furthermore, the EEOC has long held that it is not proper to interpret a settlement agreement as providing that a complainant will hold the exact same position indefinitely. In this case, Complainant had served in the specified position for more than 20 years. Thus, the EEOC concluded that the Agency did not breach the settlement agreement.

Jona R. v. U.S. Postal Service, EEOC Appeal No. 2022001236 (June 15, 2022)
As part of the pre-hearing process, Complainant and the Agency engaged in settlement discussions. The Agency’s counsel, in response to a letter from Complainant’s attorney asking for the Agency’s “current offer,” responded with an offer of $180,000. Complainant’s attorney replied that Complainant would accept the offer. The parties submitted a joint report to the AJ indicating that they entered “an agreement in principle,” but did not provide a copy of the agreement or describe its contents. The AJ subsequently reported that the parties did not submit a fully executed settlement agreement. After the Agency subsequently notified the AJ and Complainant that it was no longer willing to enter the “previously discussed” agreement, Complainant notified the AJ and the Agency that she believed the Agency was in breach of the “agreement in principle.”

On appeal, the EEOC noted that it was undisputed that the “agreement in principle” was never reduced to a written document signed by the parties. The EEOC has held that documentation of settlement negotiations such as drafts of proposed agreements, emails discussing terms of settlement agreements, or a settlement agreement that is not signed by all parties are unenforceable because they do not show a meeting of the minds. Further, oral agreements are also unenforceable. In this case, the “agreement in principle” was not formed during a hearing before an AJ and transcribed by a court reporter. Furthermore, the EEOC concluded that neither the doctrine of ratification nor the doctrine of detrimental reliance applied in this case. Thus, the EEOC affirmed the Agency’s finding of no breach of settlement.

Ken M. v. Department of the Army, EEOC Appeal No. 2022000861 (June 13, 2022)
Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that the Agency would remove a Letter of Removal and instead issue a Written Counseling and pay Complainant a lump sum of $5,000 for attorney’s fees. On appeal, the EEOC found that while the Agency failed to initially remove the Letter of Removal from Complainant’s electronic personnel file, it did remove the Letter within 35 days of being notified by Complainant. Therefore, the Agency cured the breach. However, the EEOC found no evidence that the Agency had made any effort to pay Complainant the lump sum for attorney’s fees approximately eight months after the execution of the settlement agreement. The EEOC noted that, a fair reading of the agreement reflected that Complainant’s representative would receive payment at some point, and, as such, the EEOC found that the Agency breached the settlement agreement. The Agency was ordered to reinstate the underlying EEO complaint if Complainant had still not been paid for attorney’s fees.

Stating a Claim

Cliff C. v. U.S. Postal Service, EEOC Appeal No. 2022002698 (Aug. 17, 2022)
The EEOC determined that the Agency improperly found that Complainant’s complaint was not within the purview of the EEO complaint process. The Agency dismissed the complaint reasoning that Complainant alleged he was subjected to adverse treatment by a non-Agency actor who was not working in concert with or under the direction of an Agency official. The EEOC disagreed with the Agency’s reasoning, noting that Complainant asserted that he was not hired due to discrimination. Therefore, the complaint was within the purview of the EEO process. The Agency’s references to an alleged “third-party agent,” addressed the merits of the complaint without a proper investigation. The reason for not hiring Complainant was irrelevant to the procedural issue of whether he stated a justiciable claim.

Erich A. v. Department of Transportation, EEOC Appeal No. 2022002678 (July 21, 2022)
Complainant alleged that he was subjected to discrimination based on disability when he was terminated after failing a drug test. The EEOC determined that matter stated a viable claim requiring further processing. The Agency’s drug testing program was not an adjudicatory proceeding but a medical test, and therefore the claim could not constitute an impermissible collateral attack. Complainant’s claim that his employment was terminated due to discrimination was a claim that clearly rendered him aggrieved. As such, the EEOC found that Complainant stated a viable claim. The EEOC noted, moreover, that Complainant clarified on appeal that he also alleged a denial of reasonable accommodation when the Agency failed to consider his medical condition and prescribed medication. Thus, the Agency improperly dismissed Complainant’s complaint for failure to state a claim.

Alene S. v. Department of the Air Force, EEOC Appeal No. 2022002205 (July 7, 2022)
Complainant, an IT Specialist in the Air National Guard, alleged that she was subjected to a discriminatory hostile workplace regarding five incidents. The Agency dismissed the complaint for failure to state a claim. The Agency argued that the issues involved a military complaint of discrimination that could not be adjudicated under the Federal EEO system. Complainant argued that she was a Federal civilian employee and the alleged incidents occurred while she was in her civilian capacity as a Dual Status Technician. The EEOC has long recognized the unique “dual-status” of technicians in the National Guard, noting that those individuals are considered both uniformed military personnel as well as Federal civilian employees. The EEOC found that the Agency failed to properly analyze whether Complainant’s claims fell under the dual status. Therefore, the EEOC determined that the Agency improperly dismissed the complaint and remanded the matter for further processing.

Sol W. v. Department of Homeland Security, EEOC Appeal No. 2021003419 (June 27, 2022)
Complainant alleged that the Agency subjected him to discrimination on the bases of national origin (Lebanese), and religion (Muslim), and in reprisal for protected EEO activity when it rescinded his computer access, government-issued firearm and credentials, then placed him on administrative duties. An AJ dismissed the complaint finding that the Agency’s decision was related to national security concerns and as such, the EEOC did not have jurisdiction over the complaint. On appeal, the EEOC noted that it generally does not have jurisdiction over matters of national security and will not review an agency’s determination concerning the substance of a security decision. However, the EEOC does have jurisdiction to review whether an agency has suspended a complainant’s security clearance in a discriminatory manner. The EEOC determined that, in the instant case, Complainant did not include claims challenging the Agency’s investigation or security clearance determination. Therefore, there was no need to review the Agency’s determination concerning the substance of a security decision. The EEOC concluded that the complaint was improperly dismissed.

Karma S. v. Small Business Administration, EEOC Request No. 2022001076 (June 15, 2022)
Complainant filed a formal EEO complaint claiming sex discrimination and reprisal. The Agency framed the issues in the complaint as concerning Complainant’s nonselection for a position, and derogatory comments by management officials concerning Complainant’s initial hire. The Agency dismissed Complainant’s harassment claim and found no discrimination with regard to the nonselection. Complainant appealed the Agency’s dismissal of her harassment claim but did not appeal the finding of no discrimination. While the EEOC initially affirmed the dismissal on appeal, the EEOC subsequently granted Complainant’s request for reconsideration and reversed the Agency’s dismissal of Complainant’s harassment claim. Complainant submitted a lengthy statement with her formal complaint, which included various allegations concerning her working conditions and treatment by management. These allegations, when taken together and assumed to be true, were sufficient to state a viable claim of sex discrimination and/or reprisal.

Carl Y. v. Department of the Army, EEOC Appeal No. 2022001075 (June 9, 2022)
The EEOC reversed the Agency’s dismissal of Complainant’s complaint, finding that Complainant stated a viable claim of discriminatory hostile work environment. The Agency treated Complainant’s three claims separately, noting that one claim concerned a proposed removal, the second an interview by the Agency’s Criminal Investigative Service, and the last claim concerning a comment by Complainant’s first-line supervisor. The Agency concluded that Complainant failed to state a viable claim. The EEOC, however, determined that the three allegations, when considered together and assumed to have occurred as alleged, were sufficiently severe to state a viable claim of discriminatory harassment. Additional Decisions Addressing Whether a Hostile Work Environment Complaint States a Claim Include: Arturo A. v. Department of Agriculture, EEOC Appeal No. 2022001872 (July 21, 2022) (finding that Complainant’s alleged incidents of discrimination, along with an ongoing pattern of conduct, amounted to a viable hostile work environment claim); Shenika B. v. Department of Veterans Affairs, EEOC Appeal No. 2022001571 (May 16, 2022) (finding that, when considering the alleged incidents collectively, the incidents, if proven true, were sufficiently severe or pervasive to state a claim of hostile work environment).

Lesley R. v. Department of the Army, EEOC Appeal No. 2022001967 (June 6, 2022)
Complainant filed a claim alleging disability discrimination when the Agency denied her request for reasonable accommodation. The EEOC found that the Agency improperly dismissed the complaint for failure to state a claim, stating that a denial of reasonable accommodation clearly stated a viable claim under the EEO process. The Agency stated that there were no acceptable positions to which Complainant could have been assigned, and that it was already providing Complainant with accommodation. The EEOC found, however, that those assertions addressed the merits of the disability discrimination claim without a proper investigation as required by the regulations. The Agency’s articulated reason for its actions is irrelevant to whether Complainant stated a viable claim.

Augustine P. v. U.S. Postal Service, EEOC Appeal No. 2022001767 (June 13, 2022)
The EEOC found that the Agency properly dismissed Complainant’s complaint concerning actions taken during an Office of Inspector General (OIG) investigation for failure to state a claim. Complainant did not dispute that he was challenging the OIG investigation which is outside of the EEOC’s jurisdiction. The proper forum for Complainant to have raised the actions that occurred during the investigation was with the OIG.

Summary Judgment

Art B. v. Department of Defense, EEOC Appeal No. 2021001321 (June 14, 2022)
Complainant filed a formal EEO complaint alleging that the Agency subjected him to a discriminatory hostile environment and disparate treatment. An AJ granted the Agency’s motion for a decision without a hearing in favor of the Agency. The EEOC affirmed the AJ’s decision on summary judgment. Complainant in this case failed to establish that there were material facts in dispute. The EEOC also stated that, even considering any inference raised by the undisputed facts in Complainant’s favor, a reasonable factfinder could not find in Complainant’s favor. The EEOC also affirmed the AJ’s findings that Complainant did not prove he was subjected to a discriminatory hostile work environment or disparate treatment.

Lacy R. v. Department of Veterans Affairs, EEOC Appeal No. 2021001454 (July 21, 2022)
The EEOC found that Complainant did not have an opportunity to respond to the Agency’s motion for summary judgment regarding his claims of harassment. The Agency did not include the harassment claims in its motion. Thus, the AJ was required to issue a notice of intent to issue a summary judgment decision regarding that claims which the AJ did not do. Moreover, there were genuine issues of material fact in dispute as to whether the Agency unreasonably delayed processing Complainant's reasonable accommodation request and interim accommodation requests related to his hernia surgery. The EEOC remanded the matter for a hearing.

Wilbur R. v. Department of Commerce, EEOC Appeal No. 2021002250 (June 16, 2022)
Complainant filed a formal EEO complaint alleging discrimination on multiple bases when he was terminated from his position. Complainant received a performance rating of “Meets or Exceeds” expectations but was terminated just two weeks prior to the expiration of his probationary period. An AJ granted the Agency’s motion for a decision without a hearing in favor of the Agency. On appeal, the EEOC reversed the AJ’s decision on summary judgement. The EEOC found that Complainant established that there were significant inconsistencies regarding the reasons for Complainant’s termination in the first-line supervisor’s (S1) statement, and in the statement of his second-line supervisor (S2). Therefore, testimony was required on those matters. In addition, S1 noted that S2 terminated Complainant due to discrimination. Further, Complainant was terminated less than four months after his performance was rated satisfactory. Thus, the EEOC concluded that the AJ erred when he found there were no genuine issues of material fact in this case. The matter was remanded for a hearing.

Mellissa F. v. Department of Housing and Urban Development, EEOC Appeal No. 2021003459 (June 8, 2022)
Complainant filed a formal EEO complaint alleging that she was subjected to sexual harassment and various claims of disparate treatment. An AJ issued a decision without a hearing in favor of the Agency. On appeal, the EEOC concluded that the AJ erred in issuing a decision on summary judgment. Specifically, the EEOC noted that the AJ apparently did not consider the evidence in the light most favorable to Complainant, specifically the allegations concerning numerous inappropriate remarks. The EEO investigation only inquired into a single incident of sexual harassment. The record, however, was clear Complainant was alleging repeated sexual advances and inappropriate comments. Further, the AJ failed to consider that the reprisal claim was not based solely on a single incident. The EEOC noted that there was no evidence as to the credibility, or lack thereof, of either party. Thus, the case can only be resolved by weighing conflicting evidence and assessing the credibility of Complainant, the responsible management official, and other witnesses. The matter was remanded for a hearing.

Keturah F. v. Department of Justice, EEOC Appeal No. 2021004046 (May 17, 2022)
Complainant, a Psychology Technician, alleged that the Agency discriminated against her on the basis of reprisal for her association with her husband who was also an Agency employee due to his protected EEO activity. Specifically, Complainant alleged the Agency harassed her by issuing her a minimally satisfactory log entry containing false and irrelevant information, revoked her access to the electronic inmate central file, denied her access to institution keys, delegated multiple jobs to her that were outside of her responsibility, and did not include her in department emails and meetings. An AJ issued a decision without a hearing finding no discrimination. On appeal, the EEOC found that there were material facts at issue, related to who knew what and when they knew of these incidents. There were also credibility issues that should have precluded the issuance of summary judgment. Therefore, as there were unresolved issues that required additional information, the EEOC determined that judgment as a matter of law for the Agency should not have been granted. Accordingly, the case was remanded for a hearing.

Clarine L. v. Department of Justice, EEOC Appeal No. 2020004971 (May 2, 2022)
The EEOC found that an AJ’s decision on summary judgment in favor of the Agency was improper and that the AJ erred when she concluded that there was no genuine issue of material fact. The record contained no evidence as to the credibility, or lack thereof, of either party concerning the events giving rise to the sexual harassment claim or whether some of the alleged statements were even made. The EEOC noted that the case could only be resolved by weighing conflicting evidence and assessing the credibility of Complainant and the RMO as well as hearing testimony of other relevant witnesses. In the absence of a hearing, the case became a "trial by affidavit" as to an issue involving a disputed material fact.

Timeliness

Erich A. v. Department of the Air Force, EEOC Appeal No. 2022002013 (Aug. 15, 2022)
The EEOC found that Complainant timely made EEO Counselor contact within the 45-day limitation period. In so finding, the EEOC observed that Complainant was assigned a second EEO Counselor after contacting the first EEO Counselor. The second EEO Counselor, however, made no mention of Complainant’s prior EEO contact on the Counselor Intake Sheet. The EEOC noted that Complainant’s email responses from the first EEO Counselor reflected that she timely made EEO Counselor contact. The first EEO Counselor also provided Complainant with inaccurate advice, which inhibited the processing of Complainant’s informal complaint. The EEOC found that Complainant diligently pursued the processing of her complaint, and the Agency did not meet its burden in establishing that Complainant’s EEO contact was untimely.

Wilburn R. v. Department of Veterans Affairs, EEOC Appeal No. 2022001491 (June 15, 2022)
The Agency dismissed Complainant’s complaint for failure to timely contact an EEO Counselor within the 45-day limitation period. Specifically, Complainant was removed from employment on March 16, 2021, but did not contact a Counselor until September 24, 2021. The EEOC affirmed the Agency’s dismissal on appeal. The EEO Counselor’s report showed that Complainant indicated that his EEO contact was untimely because the union told him he had no recourse due to a last chance agreement. The EEOC declined to waive the filing period in a similar case in which the complainant asserted he was not aware that he had a possible cause of action. The EEOC concluded that Complainant had a duty to make reasonable efforts to ascertain his legal rights. Thus, the EEOC affirmed the Agency’s dismissal of the complaint.

Willa B. v. Department of Health & Human Services, EEOC Appeal No. 2022001513 (July 12, 2022)
The EEOC found that the Agency improperly dismissed Complainant’s complaint as untimely, as neither the Notice of Right to File (Notice) nor the complaint form provided an address for filing the complaint. The Agency asserted that it left off the mailing address to encourage digital filing due to the COVID-19 pandemic. The EEOC, however, found this did not excuse the Agency’s failure to provide the proper mailing address on its notice. The preference for electronic communication was not explained in the Notice, and reference to mailing was instead included. The EEOC noted that a preference for a specific filing method does not preclude a complainant from filing by mail, as reflected in the EEOC’s regulations. Therefore, the Agency did not demonstrate that Complainant’s complaint was untimely filed.

Hae T. v. U.S. Postal Service, EEOC Appeal No. 2022002422 (June 15, 2022)
The EEOC reversed the Agency’s dismissal of Complainant’s formal EEO complaint on grounds it was not timely filed. The Agency asserted that the Notice of Right to File an Individual Complaint (Notice) was received at Complainant’s address of record on November 2, 2021. While the EEOC has previously held that receipt by a member of the complainant’s family or household at the address of record effectively constitutes receipt by the complaint, the Agency acknowledged that, in this case, the signature on the tracking form was that of the postal carrier and not a suitable member of Complainant’s household. Furthermore, the tracking form stated only that the Notice was “Delivered, Left with Individual.” Complainant stated that no one was at her house on November 2, 2021 to sign for the Notice. Thus, the EEOC concluded that the Agency failed to establish when Complainant received the Notice and did not meet its burden of proving Complainant’s complaint was untimely filed.

Erik S. v. Department of the Air Force, EEOC No. Appeal No. 2022000848 (May 4, 2022)
The EEOC affirmed the Agency’s dismissal of Complainant’s formal complaint on grounds it was untimely filed. The EEOC reiterated that in cases involving physical or mental health difficulties, that an extension is warranted only when an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. In this case, Complainant’s ability to care for his ailing parents and travel out of the country showed that he was not incapacitated.

The DIGEST Of Equal Employment Opportunity Law

Table of Contents

Attorney’s Fees

Compensatory Damages

Complaint Processing

Dismissals

Findings on the Merits

Under the Rehabilitation Act

Under Multiple Bases

Retaliation

Relief

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness

U.S. Equal Employment Opportunity Commission

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The DIGEST Of Equal Employment Opportunity Law

Table of Contents

Attorney’s Fees

Compensatory Damages

Complaint Processing

Dismissals

Findings on the Merits

Under the Rehabilitation Act

Under Multiple Bases

Retaliation

Relief

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness