The DIGEST Of Equal Employment Opportunity Law

Fiscal Year 2024, 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 Commission (EEOC) redacts the 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 the complainant’s actual name. This protects the complainant’s 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 decisions, 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.

Table of Contents

I. Procedural Dismissal Decisions

a. Failure to State a Claim – 29 C.F.R. § 1614.107(a)(1)

b. Untimely Counseling Contact – 29 C.F.R. § 1614.107(a)(2)

c. Appeal Made to the MSPB – 29 C.F.R. § 1614.107(a)(4)

d. Complaint is Moot – 29 C.F.R. § 1614.107(a)(5)

II. Decisions on the Merits

a. Title VII of the Civil Rights Act of 1964

b. Age Discrimination in Employment Act of 1967

c. Sections 501 and 505 of the Rehabilitation Act of 1973

d. Pregnancy Discrimination Act

III. Remands for a Hearing with an EEOC Administrative Judge

IV. Remedies

a. Compensatory Damages

b. Attorney’s Fees

V. Sanctions

VI. Compliance

I.  Procedural Dismissal Decisions

a. Failure to State a Claim – 29 C.F.R. § 1614.107(a)(1)

❖ Anglea Y. v. Department of Defense, EEOC Appeal No. 2023001599 (July 18, 2023)

The agency dismissed the complaint for failure to state a claim and untimely EEO counselor contact. On appeal, the record shows that the complainant filed a complaint alleging that her director suggested that her Family Medical Leave Act (FMLA) request was a “sham” and falsely claimed that she was making mistakes due to her disability. The complainant also alleged that her director contacted her doctor and improperly documented her opinions about the complainant’s medical condition in a record. The complainant further alleged that her director continued to be “toxic” when she returned from FMLA, including reprimanding her for alleged gossip. The complainant stated that she could no longer work in the hostile work environment and, therefore, retired early. The EEOC considered that the complainant alleged that she was subjected to harassment over the course of five months due to her disability. As such, the EEOC found that the complainant was aggrieved and her complaint stated a claim upon which relief could be granted. In addition, the EEOC determined that the complaint should not have been dismissed for untimeliness, as the complainant alleged a series of incidents linked by a pattern of conduct that constituted a hostile work environment. Thus, the EEOC reversed the agency’s dismissal of the complainant’s complaint.

❖ Diane Y. v. Department of Defense, EEOC Appeal No. 2023002976 (July 24, 2023)

Agency 1 dismissed the complaint for failure to state a claim. On appeal, the record showed that the complainant, as well as agency 1 management officials, attended a conference with employees from other agencies in attendance. The complainant alleged that, during the conference, she was sexually assaulted and raped by an employee of agency 2. The complainant filed a complaint with agency 1, which dismissed it for failure to state a claim, reasoning that the accused responsible employee was not an employee of the agency 1 and the assault did not occur on agency 1 property. The complainant, through counsel, maintained that agency 1 management officials observed events leading up to the alleged assault and took no action. The complainant therefore alleged that agency 1 failed to protect her from sexual harassment by a third party. In reversing the agency’s dismissal, the EEOC reasoned that agencies may be liable for harassment perpetuated by individuals other than its own employees when the agency knew or should have known of the conduct and failed to take immediate and appropriate corrective action. The EEOC found that the actions of the management officials at both Agencies should be examined, and therefore remanded for both agencies to jointly process the complaint.

❖ Evelyn S. v. Central Intelligence Agency, EEOC Appeal No. 2022003678 (June 21, 2023)

The complainant alleged that she was subjected to harassment and/or discrimination on the bases of perceived disability and religion when multiple workplace incidents occurred, including a change to the requirements for reasonable accommodation and the denial of training. The agency placed the majority of the complainant’s claims in abeyance pending a class certification determination. The agency also maintained that, with respect to her remaining claims, the complainant did not establish that she was aggrieved and therefore failed to state a claim. The agency maintained that her training requests were merely delayed because of her requests for religious accommodation. On appeal, with regard to the two remaining claims before it, the EEOC found that the agency erred in its dismissal because the denial of training set forth an actionable claim. Accordingly, the EEOC affirmed the agency’s final decision in part and reversed in part.

❖ Glynda S. v. Department of Army, EEOC Appeal No. 2023001848 (August 8, 2023)

The agency issued a final decision dismissing the complaint for failure to state a claim, finding that the agency was not a joint employer of the the complainant, a contractor. The agency noted that the contracting company determined the complainant’s work assignments and the agency’s oversight of the complainant was minimal. However, the record showed that the agency’s analysis did not reflect a holistic consideration of all aspects of the complainant’s relationship with the agency. Both contracted employees and agency employees were working on a project funded by the same grant issued by the U.S. Department of Defense. This grant dictated budget, reporting, and timeframe requirements for the complainant’s position. Therefore, the EEOC concluded that the means and manner of the complainant’s work was determined by both the agency and the contracting company. In addition, the agency’s director had control over the termination of the complainant’s contract with the agency. As such, the EEOC determined that the agency improperly dismissed the complainant’s complaint. The EEOC reversed the agency’s final decision and remanded for further processing.      

❖ Alba H. v. Department of Defense, EEOC Appeal No. 2023001417 (July 11, 2023)

The prime contractor hired the complainant as a sub-contractor to serve as an inventory reconciliation analyst, which had a contract with the agency. The complainant filed an EEO complaint against the agency alleging discrimination based on her race. The complainant alleged she was removed from her position at the behest of the agency after she complained about discovering a “poop emoji” in an agency database next to her name and the names of two other coworkers of the same race. The agency dismissed the complaint, reasoning the complainant had no standing to file because she was not an agency employee. The EEOC noted that the agency’s abbreviated analysis in its dismissal decision and lack of response on appeal fell short of the required holistic consideration of the nature of the employment relationship and was, therefore, insufficient to substantiate its dismissal of the complaint. Thus, the EEOC reversed the dismissal and remanded the complaint back to the agency for continued processing.

❖ Sharolyn S. v. Department of Veterans Affairs, EEOC Appeal No. 2023002032 (June 20, 2023)

The final agency decision (FAD) dismissed the complaint for failure to state a claim, reasoning that the complainant was an employee of the staffing contractor rather than the agency. The record on appeal contained an unsigned statement purportedly from an agency manager indicating that the complainant had a severe allergy and the decision to cancel her contract came from a concern for her safety. However, the record did not contain documentation from officials at the agency nor the staffing contractor detailing who was involved in the complainant’s removal from her position at the agency’s facility. The record was also unclear as to whether the staffing contractor continued to employ the complainant on other contracts, subsequent to her removal from the contract at the agency’s facility. Accordingly, the EEOC found that the record was not sufficiently developed to determine whether the agency was a joint employer for EEO purposes. The EEOC vacated the FAD and remanded the complaint for a supplemental investigation and decision on acceptance or dismissal.

b. Untimely Counseling Contact – 29 C.F.R. § 1614.107(a)(2)

❖ Emiko S. v. Department of Homeland Security, EEOC Appeal No. 2023001635 (June 28, 2023)

The agency dismissed the complaint for untimely EEO counselor contact. The record on appeal showed that the agency acknowledged receipt of the formal complaint, but failed to submit a copy of the complaint as proof for its dismissal. As a result, the EEOC could not determine the allegations raised in the complaint because the record did not include that information. Thus, the EEOC determined that the agency improperly dismissed the complaint. The EEOC reversed the agency’s decision and remanded the complaint for further processing.

c. Appeal Made to the MSPB – 29 C.F.R. § 1614.107(a)(4)

❖ Augustine V. v. Department of Justice, EEOC Request No. 2023001244 (July 25, 2023)

The complainant filed an EEO complaint alleging discrimination when the agency issued him a three-day suspension and notified him that it would not extend his temporary appointment. The complainant timely requested a hearing, but the agency submitted a motion to dismiss arguing that the EEOC lacked jurisdiction because the complainant elected to pursue his claims with the Merit Systems Protection Board (MSPB). Meanwhile, an MSPB administrative judge (AJ) issued an order explaining that the expiration of the temporary appointment was not appealable to the MSPB and was not within its jurisdiction. Thereafter, an EEOC AJ dismissed the complainant’s complaint, noting that the expiration of the complainant’s term appointment was not an action appealable to the MSPB and that the agency had erroneously advised the complainant that it was. Furthermore, the EEOC AJ found that the complainant and his attorney fully appreciated what would happen if the complainant elected to pursue his claims before the MSPB, and therefore the complainant could not return to the EEO process.

On appeal, the EEOC determined that the claim regarding the termination of the complainant’s temporary appointment was properly dismissed. However, the EEOC noted it was not apparent that the suspension claim was properly addressed and remanded this claim for further processing. The agency subsequently filed a request for reconsideration of the EEOC’s decision, reiterating its argument that the dismissal of the suspension claim was proper. The EEOC denied the agency’s request, finding again that the agency had improperly dismissed the complainant’s suspension claim because it was not addressed in the MSPB forum or in the EEO process.

❖ Jazmine F. v. Department of Defense, EEOC Petition No. 0320170007 (July 5, 2023)

After the agency removed the petitioner for lack of candor, she filed a mixed-case complaint. The agency issued a decision finding no discrimination, which she appealed to the Merit Systems Protection Board (MSPB). The MSPB administrative judge (AJ) issued an initial decision finding no discrimination or retaliation and finding that the petitioner’s misconduct was so egregious that its significance overwhelmed any possible motive of retaliation. The petitioner sought full review by the MSPB, but the two Board members could not agree and the initial decision became the MSPB’s final decision. The petitioner filed a petition with the EEOC, which found that the supervisor’s comments revealed a retaliatory motive and would likely deter protected activity. Further, the agency’s use of the petitioner’s EEO discovery responses violated EEOC regulations, which provide that false or bad faith statements should be considered by a factfinder and that an employer can be liable for retaliation if it takes it upon itself to impose consequences for an employee’s actions during the EEO process. A mixed-motive analysis concluded that the record did not show that the agency would have taken the same action absent the retaliatory motivation. The EEOC returned the reprisal claim to the MSPB for further processing. The MSPB issued a final order to concur and adopt the EEOC’s finding that the petitioner’s removal was retaliatory. Thus, the MSPB ordered the cancellation of the petitioner’s removal and retroactive restoration to duty with appropriate remedies.

❖ Jarvis M. v. Department of Health and Human Services, Petition No. 0320170006 (July 5, 2023)

The EEOC found that the Merit Systems Protection Board (MSPB) erred in finding that the petitioner did not establish a claim of reprisal with regard to his removal. The EEOC determined that the removal was motivated by retaliation for engaging in protected EEO activity. Further, the agency had not demonstrated that it would have removed the petitioner from employment in the absence of this retaliatory motivation. Thus, the EEOC found that the petitioner was entitled to full, make-whole relief and returned the complaint to the MSPB for further processing.

d. Complaint is Moot – 29 C.F.R. § 1614.107(a)(5)

❖ Reginald C. v. Department of Army, EEOC Appeal No. 2023002234 (July 26, 2023)

The agency dismissed the complainant’s EEO complaint as moot. The record on appeal showed that the complainant alleged discrimination after the agency withdrew a tentative offer of employment over concerns about his ability to meet the physical demands of the motor vehicle operator position to which he applied. The complainant suffers from a medical condition that affects his ability to stand and work on uneven surfaces. In his complaint, complainant requested a job placement of comparable pay and work hours as relief. The agency attempted to settle the complaint, but the complainant rejected the agency’s multiple offers. The agency thereafter dismissed the complainant’s complaint as moot. On appeal, the complainant contended that the settlement job offer was not comparable in terms of pay and work hours. The EEOC found that the the complaint was not moot because the proposed relief would not completely and irrevocably erase the alleged discrimination. Although the agency offered the complainant a full-time position as a motor vehicle operator, the agency’s offer was materially different than the original offer. Therefore, the EEOC found that the agency improperly dismissed the complaint as moot and remanded it for further processing.

II.  Decisions on the Merits

a. Title VII of the Civil Rights Act of 1964

❖ Arthur J. v. Department of Veterans Affairs, EEOC Appeal No. 2021004758 (June 26, 2023)

The complainant alleged that the agency discriminated against him on the basis of race when he was not selected for an administrative officer position. The agency issued a final decision which concluded that the complainant failed to prove that the agency subjected him to discrimination as alleged. On appeal, the record revealed that the agency did not provide a specific, clear, and individualized explanation why the complainant was not selected for the position. Thus, the EEOC determined that the complainant was subjected to discrimination. The EEOC reversed the agency’s decision and ordered the agency to offer the complainant the position, determine any benefits owed to him, investigate his entitlement to compensatory damages, provide training to the selecting official, and consider discipline.

❖ Susan M. v. Department of the Navy, EEOC Appeal No. 2022001003 (June 12, 2023)

In its final decision, the agency concluded that the complainant proved her allegations of sexual harassment but failed to show a basis for attributing liability to the agency. The agency determined that, per its anti-harassment policy, it immediately responded to the complainant’s claims and took corrective action against the responsible management official by removing him from his command position. The record on appeal showed that the agency failed to establish the second prong of its affirmative defense, which required the agency to show that the complainant “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” In the instant matter, there was no evidence that the complainant failed to take action to avoid the management official’s actions or failed to report the harassing conduct. Thus, the EEOC reversed the agency’s decision and remanded the complaint for further processing.

❖ Marine V. v. Department of Justice, EEOC Appeal No. 2022003965 (August 9, 2023)

An EEOC administrative judge (AJ) determined that the complainant established that she was subjected to sex discrimination when the agency failed to take immediate corrective action to address her verbal altercation with the unit manager. The record showed that the AJ held a hearing where the complainant and three agency witnesses testified. In finding sex discrimination, the AJ noted that the agency took immediate corrective action to address similar reports of verbal altercations made by the complainant’s two male coworkers against the same management official. The AJ awarded the complainant $6,500 in non-pecuniary compensatory damages and $4,400 in attorney's fees, among other things. The agency filed a timely appeal with the EEOC rejecting the AJ’s finding of discrimination. On appeal, the EEOC determined that the AJ’s finding of discrimination was supported by substantial evidence in the record. The EEOC found that agency officials failed to articulate any sufficient reason for its lack of response to the complainant’s complaints against the unit manager in comparison to the agency's quick response to complaints from her male coworkers. Thus, the EEOC remanded the matter for the agency to provide the complainant with the ordered remedies.

b. The Age Discrimination in Employment Act of 1967 (ADEA)

❖ Ayesha W. v. Social Security Administration, EEOC Appeal No. 2022002856 (May 16, 2023)

The complainant alleged age discrimination when she was not selected for a collateral duty instructor assignment. An EEOC administrative judge (AJ) issued a decision without a hearing, finding that the complainant failed to show that she was subjected to disparate treatment on the basis of age when, in relevant part, she became aware that she was not selected for a collateral duty instructor assignment. The agency adopted the AJ’s decision, which concluded that the complainant did not provide evidence that a person outside her protected class received preferential treatment. However, the record on appeal showed that the selectees’ ages ranged between 26 and 45 years old and that the selecting official was aware that the complainant was 63 years old. Hence, the complainant had established a prima facie case of disparate treatment. The EEOC found that the agency failed to present a specific, clear, and individualized explanation why the complainant was not selected. The branch manager indicated that he provided recommendations based on the feedback he received in his division regarding job knowledge, interpersonal skills, and presentation experience. However, the record contained no evidence or explanation of such assessments and feedback concerning the complainant or any of the five selectees. Thus, the EEOC determined that the agency failed to articulate a legitimate, non-discriminatory reason for its decision. The EEOC modified the final decision, reversed the AJ’s finding with respect to the collateral duty instructor position, and remanded the case to the agency for remedial action. 

c. Sections 501 and 505 of the Rehabilitation Act of 1973

❖ Zachery V. v. Department of Transportation, EEOC Appeal No. 2021003929 (June 26, 2023)

The complainant alleged that the agency discriminated against him on the basis of disability when his supervisors shared his confidential medical information with employees who did not have a need to know. In its final decision, the agency found that the complainant was not subjected to discrimination. The appeal record showed that Complainant’s supervisors did, in fact, share the complainant’s medical information with several people who did not have a need to know. Thus, the EEOC found that the agency failed in its obligation to safeguard the complainant’s medical information and failed to provide sufficient rationale for why it shared the information. The EEOC reversed the agency’s final decision with respect to the disclosure of Complainant’s confidential medical information and remanded the matter for further processing.

❖ Joanna G. v. U.S. Postal Service, EEOC Appeal No. 2021004968 (July 24, 2023)

An EEOC administrative judge (AJ) determined that the complainant was not a qualified individual with a disability. The AJ found that, due to her learning disability, the complainant could not perform the essential functions of her position as a sales/services distribution associate with or without a reasonable accommodation. The record on appeal revealed that the AJ limited the analysis to essential functions of the position to conclude that the complainant was not qualified. The record further showed that the complainant held many positions over the course of her career, performing the essential functions of these positions within the same agency. As such, the agency had an obligation to search for a vacant funded position to which the complainant was qualified. However, the agency only offered the complainant a part-time mail handler position, and there was no evidence that reassigning the complainant into a full-time vacant funded position would have resulted in an undue hardship to the agency. The EEOC therefore concluded that the agency violated the Rehabilitation Act when it terminated the complainant’s employment instead of offering her reassignment to a full-time position. The EEOC noted that, when determining whether an employee is qualified, an agency must look beyond the position the employee presently encumbers. Thus, the EEOC modified the AJ’s decision, finding that the agency failed to offer the complainant an effective reasonable accommodation and terminated her employment in violation of the Rehabilitation Act. The EEOC awarded the complainant compensatory damages for the denial of accommodation.

❖ Marjorie F. v. Department of Veterans Affairs, EEOC Appeal No. 2022001439 (June 14, 2023)

The agency issued a final decision concluding that the complainant had not been subjected to a hostile work environment based on her disability. The complainant alleged that the agency denied her reasonable accommodation request, subjected her to harassment, and constructively discharged her when she resigned in lieu of the supervisor’s threat of termination. The record on appeal showed that the complainant was diagnosed with depression and a number of conditions which impaired her reliability and productivity due to depressed mood, anxiety, and mild memory loss. Nevertheless, the complainant established that she could effectively work and perform the duties of her position so long as she worked in a quiet office space, as she had effectively done for eight years at another agency facility. Thus, the EEOC found that the agency violated the Rehabilitation Act when it unreasonably delayed processing the complainant’s accommodation request, failed to consider an interim accommodation, and ultimately denied her request—despite such an accommodation previously proving effective. The EEOC further concluded that the complainant had established that she was constructively discharged from the agency. The EEOC remanded the case to the agency for remedial action.       

❖ Vicky R. v. Department of Navy, EEOC Appeal No. 2021003873 (August 4, 2023)

In its final decision, the agency found that the complainant failed to establish the existence of a hostile work environment when the agency delayed processing her reasonable accommodation request for four months. The evidence on the record revealed that the complainant was diagnosed with major depression, anxiety, and hyperactivity. Her conditions made it difficult to concentrate in a cubicle located in the middle of a noisy, highly trafficked work area. The complainant therefore requested a reasonable accommodation for a quiet, distraction-free workspace away from her coworkers. The complainant’s supervisor initially granted the complainant’s request and moved her to a small, vacant office. However, management later retracted the accommodation and moved the complainant back to her former workspace for four months. On appeal, the EEOC determined that the issue was not whether a hostile work environment existed, but whether the agency demonstrated a lack of good faith in processing the complainant’s accommodation request. The EEOC found that, while the agency ultimately granted the complainant’s accommodation, the four-month delay in providing the accommodation violated the Rehabilitation Act. Further, the agency failed to show that the delay was due to an undue hardship. Thus, the EEOC found that the complainant was entitled to an award of compensatory damages, reversed the agency’s decision, and remanded for further processing.

❖ Nubia H. v. Department of Veterans Affairs, EEOC Appeal No. 2021005092 (May 1, 2023)

The agency issued a final decision concluding that the complainant failed to show that she was subjected to disability discrimination when it delayed her request for reassignment as a reasonable accommodation and ultimately failed to grant her request. The complainant worked as a supervisory police officer. The agency acknowledged that the complainant’s disabilities limited her ability to lift, carry, bend, pull, walk, focus, concentrate, and remember. Based on medical documentation supporting a need for reassignment, the agency temporarily reassigned the complainant to an interim position while it searched for permanent vacant, funded positions. However, the agency could not find a suitable permanent position for the complainant due to the severity of her disabilities. Accordingly, the agency concluded that the interim accommodation provided by the agency effectively mitigated any delay in finding a permanent position. On appeal, the EEOC agreed with the agency’s determination that it was not legally obligated to immediately grant her request for a reassignment. The EEOC has long held that reassignment is an accommodation of last resort. Thus, the EEOC determined that the agency did not violate the Rehabilitation Act and affirmed the agency’s final decision.

❖ Levi P. v. Department of Homeland Security, EEOC Request No. 2023001817 (August 7, 2023)

The complainant filed an EEO complaint alleging discrimination when the agency withdrew his tentative selection for a customs and border protection officer (CBPO) position due to medical ineligibility related to his myasthenia gravis condition. The agency found that the complainant failed to show that he was a qualified individual with a disability and that he would pose a direct threat to himself or others in the position. On appeal, the EEOC noted that the agency initially found the complainant to be qualified and made a tentative job offer after an interview. As such, the EEOC determined there was insufficient evidence to support the agency’s claim that the complainant could not perform the essential functions of the CBPO position. In addition, the EEOC concluded that the agency did not establish that the complainant posed a direct threat to himself or others in that position. The EEOC noted that the complainant’s medical documentation showed that his condition was stable and that he had no limitations using a firearm or otherwise performing the listed duties of a CBPO position. The EEOC therefore found that the complainant established disability discrimination and remanded the matter for the agency to take corrective action, including retroactively placing the complainant into the CBPO position.

The agency subsequently filed a request for reconsideration, arguing that retroactively placing the complainant into a CBPO position would have a substantial impact on its policies, practices, and operations. The EEOC still found that the complainant must be awarded full relief by being retroactively placed into the position, unless he would not have been selected even in the absence of discrimination. The EEOC concluded that the agency presented no evidence showing that the complainant would not have been selected absent the discrimination. Thus, the EEOC exercised its discretion to grant reconsideration on its own motion to modify the order in its previous decision and added more terms, including that the agency offer a position in a location that is agreeable to the complainant and provide the complainant with any adverse tax consequences for back pay and/or compensatory damages.

❖ Adina P. v. Department of Veterans Affairs., EEOC Appeal No. 2021004593 (June 26, 2023)

The agency made a finding of no discrimination after the complainant alleged that the agency violated the Rehabilitation Act when it denied her request for reasonable accommodation. The complainant had requested a waiver for a basic life support (BLS) certificate and 60 days of full-time telework. On appeal, the record revealed that the agency failed to engage in the interactive EEO process with the complainant. As a result, agency management officials did not learn that the complainant could not do compressions on a plastic mannequin without violating her medical restrictions. In addition, they did not learn that the complainant could take an alternative BLS course and perform all her duties from home. Although the agency offered the complainant reassignment as a reasonable accommodation, the offer was not appropriate in this case. Thus, the EEOC reversed the agency’s final decision and found that the agency failed to provide her a reasonable accommodation in violation of the Rehabilitation Act. The EEOC remanded to the  agency for further processing.

❖ Wes L. v. Department of State, EEOC Appeal No. 2021005122 (May 15, 2023)

The agency issued a final decision concluding that the complainant failed to prove that he was subjected to discrimination on the bases of age, disability, and reprisal. The complainant alleged that the agency terminated him from his contract position and subjected him to a hostile work environment, which included heightened scrutiny and disapproval of his reasonable accommodation. On appeal, the record revealed that, despite the complainant’s good work history, a manager started removal actions because he saw the complainant sleeping—which was an approved reasonable accommodation. Thus, the EEOC found that the agency subjected the complainant to harassment, including the removal action, due to his protected EEO activity. The EEOC reversed the agency’s decision and remanded for further processing to consider compensatory damages as well as training and discipline of the relevant management officials.

d. Pregnancy Discrimination Act

❖ Delphia F. v. U.S. Postal Service, Appeal No. 2021004356 (June 29, 2023)

The agency found that the complainant was not subjected to discrimination when she requested temporary light duty to accommodate her pregnancy-related medical restrictions. The complainant alleged difficulty operating one of the machines. The agency also asked her to work the overnight shift to avoid accumulating absences and late arrivals. The agency asserted that it could not find any work within the complainant’s restrictions. Although the complainant did not identify any similarly situated employees who were not pregnant but had been accommodated, the EEOC assumed that the complainant established a prima facie case of pregnancy discrimination under the Pregnancy Discrimination Act. However, the EEOC found that the complainant did not establish that the agency’s legitimate, nondiscriminatory reason—that no work was available within her restrictions—was a pretext for discrimination. Thus, the EEOC affirmed the agency’s decision finding no discrimination.

III.  Remands for a Hearing with an EEOC Administrative Judge

❖ Demetria G. v. Department of Veterans Affairs, EEOC Appeal No. 2022000562 (July 18, 2023)

An EEOC administrative judge (AJ) determined on her own accord that, based on the evidence developed during the investigation, a hearing was not warranted. Therefore, the AJ issued a summary judgment decision in favor of the agency, and the agency subsequently issued a final order adopting the AJ’s finding of no discrimination. On appeal, the complainant asserted that the AJ violated EEOC regulations by failing to give notice of her intent to dismiss the complaint, which denied complainant an opportunity to file a brief. The record supported the complainant’s contention that the AJ improperly issued a decision by summary judgment without first notifying the parties of this intent. The EEOC found that the AJ should have submitted a statement of the undisputed material facts, allowing the parties to respond. Thus, the EEOC vacated the agency’s final order adopting the AJ’s decision and remanded the matter for the agency to submit a renewed request for a hearing on the complainant’s behalf to the hearings unit.

❖ Charles B. v. U.S. Postal Service, EEOC Appeal No. 2022003160 (July 19, 2023)

After its investigation into the complainant’s claims, the agency provided the complainant with a copy of the report of the investigation and notice of his right to request a hearing before an EEOC administrative judge (AJ). However, the agency determined that the complainant did not timely request a hearing and, therefore, issued its final decision finding no discrimination. On appeal, the complainant maintained that he timely submitted his hearing request. The record showed that the complainant submitted tracking confirmation showing that he timely mailed his hearing request to the EEOC’s New York office within the required 30 days. The record further showed that the agency did not dispute the complainant’s assertion that he submitted his hearing request. In the interest of fairness, the EEOC vacated the agency’s final decision and ordered the agency to submit a renewed request for a hearing on the complainant’s behalf to the EEOC hearings unit.

❖ Rosena J. v. Department of Veterans Affairs, EEOC Appeal No. 2022001174 (August 7, 2023)

An EEOC administrative judge (AJ) issued a decision without a hearing finding that the complainant was not subjected to discrimination. On appeal, the complainant argued that the AJ’s decision did not address the genuine issues of material fact regarding the reasons surrounding the agency’s decision to rescind its job offer for a certified registered nurse position. The record showed that the complainant received an email from human resources, notifying her that the job offer was rescinded. This email did not specify who made the decision to rescind the job offer or the reason for the decision. Further, the EEOC found that the record contained conflicting statements by management officials on who made the decision to rescind the offer. The EEOC considered that witnesses did not discuss the agency’s rescission process or point to a policy that justified the rescission. Thus, the EEOC found that the AJ improperly granted summary judgment in the agency’s favor and that a discussion on the agency’s rescission process was needed. The EEOC remanded the case for proper consideration by the EEOC hearings unit.

❖ Marina A. v. Department of Veterans Affairs, EEOC Appeal Nos. 2022003347 and 2023001051 (August 7, 2023)

Over the complainant’s objections, an EEOC administrative judge (AJ) granted the agency’s motions for a decision without a hearing and issued a decision for two complaints, concluding that the complainant did not establish discrimination or harassment as alleged. The complainant alleged that her supervisor subjected her to a hostile work environment due to her pregnancy. The complainant’s harassment claims included allegations that the supervisor lowered her performance rating, refused to provide her time off, and made discriminatory comments about her. On appeal, the EEOC noted that the the complainant alleged that her supervisor made discriminatory comments mocking her pregnancy. The EEOC determined that the supervisor’s denial of making the alleged comments raised the need for credibility determinations to be made by an AJ at a hearing. In addition, the EEOC found that a witness stated that the supervisor “harassed [the complainant] throughout her difficult pregnancy.” Thus, the EEOC found that the AJ erred in issuing summary judgment in the agency’s favor because the record was not adequately developed. The EEOC remanded the cases for appropriate consideration by the EEOC hearings unit.

IV.  Remedies

a. Compensatory Damages

❖ Everette C. v. Social Security Admininstration, EEOC Request No. 2022004905 (August 10, 2023)

In a previous decision, the EEOC reversed the agency’s final order and affirmed the administrative judge’s (AJ) finding that the agency denied the complainant reasonable accommodation for his disability. The record showed that the AJ awarded the complainant back wages as well as $100,000 in non-pecuniary compensatory damages, $281,866 in attorney’s fees, and $6,165 in costs. In addition, the AJ ordered the agency to cancel any debt resulting from the complainant taking advanced leave and to restore his sick leave and annual leave. The AJ also ordered the agency to offer reinstatement to the complainant for his termination. The agency issued its final order declining to implement the AJ’s findings as to liability and damages and filed an appeal with the EEOC. On appeal, the EEOC reversed the agency’s final order. The EEOC rejected the agency’s argument that the complainant failed to establish a connection between the agency’s failure to accommodate him and the damages that he suffered. The EEOC found that the agency did not present persuasive evidence to support reconsideration of the remedies awarded by the EEOC’s previous decision. In addition, the EEOC denied the agency’s request for reconsideration, finding that the agency raised contentions that were either already considered or could have been previously raised. However, in light of the complainant’s death, the EEOC slightly modified its previous order because reinstatement as a remedy was rendered moot.

❖ Betsy W. v. Department of Defense, EEOC Appeal No. 2022001325 (June 13, 2023)

An EEOC administrative judge (AJ) granted the agency’s directed verdict motion on all claims as to discrimination based on race, color, and disability. However, the AJ found that the complainant did establish discrimination on the basis of reprisal regarding her hostile work environment claim and several of her disparate treatment claims. The complainant alleged that agency management  took 30 days to grant a telework request, denied her a cash bonus, gave her a poor performance rating, and issued a suspension. The agency filed an appeal. The EEOC affirmed the AJ’s relief and ordered the agency to pay the complainant monies she lost due to discrimination, including the cash bonus, lost pay during the suspension, lost pay during her absence without leave, loss of her step increase, gas expenses due to lost opportunity to telework, fitness expenses, and copay for medical expenses. In addition, the EEOC awarded $25,000 in non-pecuniary, compensatory damages and $13,187 in attorney’s fees. Further, the EEOC ordered the agency to restore leave taken, expunge adverse materials, provide EEO training, consider disciplining the responsible agency officials, and post a notice of the finding of discrimination.

b. Attorney’s Fees

❖ Blake H. v. Department of Homeland Security, EEOC Appeal No. 2022001533 (August 10, 2023)

The EEOC found that the complainant was entitled to an award of attorney’s fees for prevailing on a previously filed appeal. The record showed that the complainant submitted a fee petition to the agency requesting attorney’s fees of $7,672 for the work associated with the appeal. The fee petition encompassed work performed by two attorneys and four paralegals. In its decision on fees, the agency reduced the hourly rates for the two attorneys and two paralegals. The agency found that the two attorneys and two paralegals should be awarded amounts at their previously awarded rates, which the EEOC found reasonable in an earlier decision. In addition, the agency excluded the work from the two other paralegals as there were no resumes or other documentation presented to support the hourly requests for these individuals. The agency also took a 75% across-the-board reduction of the fee petition because the complainant was only successful on one of five issues in the appeal. Thus, the agency awarded $1,408.25 in attorney’s fees and $56.15 in costs.

On appeal, the EEOC determined that the agency erred in reducing the hourly rates. The EEOC found that the complainant’s counsel charged reduced rates to Federal employees in discrimination cases and, based on public interest motives, were entitled to the higher prevailing market rate. However, the EEOC agreed with the agency in excluding the work performed by the two additional paralegals, as the record did not contain documentation about their experience. The EEOC also found that the agency’s 75% across-the-board reduction was excessive because most of the work was not fractionable from the unsuccessful issues in the appeal. Therefore, the EEOC determined that a 25% reduction was more appropriate and awarded attorney’s fees and costs in the amount of $5,720.15.

V.  Sanctions

❖ Joel P. v. Social Security Administration, EEOC Appeal No. 2021004761 (June 28, 2023)

On appeal, the complainant argued that the EEOC administrative judge (AJ) erred and abused her authority when she dismissed one of the two accepted claims and dismissed his hearing request. The complainant asserted that his legal counsel received the agency’s motion for sanctions at 4:10 p.m. on November 23, 2020, and that this was clearly premature as the counsel was still working on his part of a joint statement, which he submitted shortly after. Additionally, the complainant argued that if the AJ was going to sanction him, then the agency should have been equally sanctioned since neither party submitted a joint statement. The EEOC found that the AJ’s sanctions were too harsh under the specific circumstances. The EEOC vacated the agency’s decision and remanded the case to the agency for further processing.

❖ Michael L. v. Department of Homeland Security, EEOC Appeal No. 2021004712 (July 17, 2023)

An EEOC administrative judge (AJ) dismissed the hearing request because the complainant emailed the AJ stating his intention to withdraw his complaint for health reasons. However, less than one hour later, the complainant’s attorney emailed the AJ apologizing for the complainant’s earlier email and stating that they did not wish to withdraw. Citing the complainant’s voluntary withdrawal, the AJ still dismissed the hearing request and ordered the agency to issue a final decision. On appeal, the complainant maintained that his attorney’s email—submitted within 40 minutes after the request to withdraw—supported the contention that the AJ improperly dismissed the hearing request. The EEOC agreed and found minimal prejudicial effects, minimal delay in justice, and minimal impact upon the EEO complaint process. As the complainant provided sufficient evidence that he did not intend to withdraw his hearing request, the EEOC found that the AJ’s dismissal of the complainant’s hearing request was too harsh a sanction. Thus, the EEOC vacated the agency’s final decision and remanded the complaint to the agency for further processing.

❖ Irvin C. v. Department of Homeland Security, EEOC Appeal No. 0720180024 (July 25, 2023)

An EEOC administrative judge (AJ) issued a default judgment against the agency for its failure to timely complete the EEO investigation. The agency subsequently issued its final order rejecting the AJ’s decision. In its final order, the agency asserted that the case involved rejecting the complainant’s security clearance, which was outside of the EEOC’s jurisdiction. The agency also maintained that its actions were not due to discrimination. On appeal, the record revealed that the complaint was not challenging the validity of the requirement for a security clearance or its rejection. The EEOC found that the agency’s internal investigation and “interrogation” of the complainant was sufficient to dissuade a reasonable employee from participating in the EEO process. Moreover, the agency placed the complainant on extended administrative leave and revoked his security clearance solely for his alleged failure to cooperate in the investigation. The EEOC found that this constituted retaliatory harassment. However, the EEOC determined that the AJ erred when she issued a default judgment as a sanction for the agency’s failure to conduct the EEO investigation. Thus, the EEOC modified the AJ’s decision issuing default judgment, finding it more appropriate to draw an adverse inference against the agency. The EEOC awarded the complainant $60,000 in non-pecuniary compensatory damages for depression, anger, sleep issues, stomach problems, heart palpitations, weight fluctuation, and familial withdrawal. The EEOC also awarded $58,153.20 in attorney’s fees and $1,635.49 in costs for one attorney as well as $16,511.50 in fees and $180 in costs for the second attorney who represented the complainant.

VI.  Compliance

❖ Stephany K. v. Department of Veterans Affairs, EEOC Appeal No. 2022002411 (June 20, 2023)

The complainant and the agency entered into a settlement agreement to resolve the complainant’s EEO complaints. As due consideration, the agency agreed to pay the complainant a total settlement sum of $150,000, which included the complainant’s reasonable attorney’s fees and costs. The agency agreed to provide the complainant with a 1099-MISC form to reflect her settlement payment. Instead, the agency provided a 1099-NEC form, meant for independent contractors. After several requests for the proper form, the complainant filed a breach of settlement agreement claim with the EEOC. The EEOC found that a breach had occurred, since the settlement agreement specifically stated that the agency would provide the complainant a 1099-MISC form to properly file her taxes. The EEOC determined that specific performance was the appropriate remedy and remanded the matter to the agency for compliance.