The DIGEST Of Equal Employment Opportunity Law

Fiscal Year 2023, Volume III

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The Equal Employment Opportunity (EEO) Digest compiles and summarizes 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.

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. Untimely Filing of the Formal Complaint – 29 C.F.R. § 1614.107(a)(2)

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

II. Decisions on the Merits

a. Title VII of the Civil Rights Act of 1964

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

c. Reprisal

III. Remands for a Hearing with an EEOC Administrative Judge

IV. Remedies

a. Compensatory Damages

b. Attorney’s Fees

V. Sanctions

I. Procedural Dismissal Decisions

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

❖ Meghann M. v. U.S. Postal Service, EEOC Appeal No. 2023000887 (Feb. 28, 2023)

The Agency issued a decision concluding that the Complainant’s claim was limited to two separate incidents in June and August of 2022 and dismissed her complaint for failure to state a claim. The record revealed that the Complainant alleged that she had been subjected to a hostile work environment, specifically ongoing harassment and criticism from her supervisor in front of her co-workers. On appeal, the EEOC concluded that the Agency had framed the complaint too narrowly and that an objective reading of the EEO Counselor’s Report indicated that the two referenced incidents were only examples of a claim of an ongoing pattern of discriminatory harassing actions. The EEOC reversed the decision and remanded the complaint to the Agency for further processing.

❖ Felicidad S. v. Department of Defense, EEOC Appeal No. 2023001011 (Mar. 2, 2023)

Complainant alleged that she had been subjected to retaliation for prior EEO activity. The Agency dismissed her complaint for failure to state a claim and failure to cooperate. The record showed that the Complainant alleged that the Agency discriminated against her because she served as a witness on behalf of a former employee. Complainant further alleged that the Agency’s EEO Office breached its duty of confidentiality by sharing her complaint information with the Agency’s Office of General Counsel, which subsequently issued a letter threatening her with termination. The EEOC concluded that the Agency’s actions represented a conflict of interest and that the Complainant stated a viable retaliation claim. Furthermore, the EEOC found insufficient evidence to support the Agency’s dismissal because of failure to cooperate, as the record did not show that the Complainant engaged in delay or contumacious conduct. The EEOC remanded the case back to the Agency for further processing.

❖ Kendra W. v. U.S. Postal Service, EEOC Appeal No. 2023000801 (Mar. 6, 2023)

Complainant alleged that the responsible management official invaded her space, yelled at her, and pointed a finger at her. The Agency framed the formal complaint as a single occurrence that was not sufficiently severe or pervasive and dismissed the complaint for failure to state a claim. The record revealed that the Complainant alleged that she had been subjected to frequent abusive language and actions on the part of the responsible official over three years. The EEOC concluded that there was sufficient evidence in the record to support the claim of a hostile work environment. The EEOC reversed the decision and remanded the complaint to the Agency for further processing.

❖ Harriet M. v. U.S. Postal Service, EEOC Appeal No. 2022004903 (Feb. 28, 2023)

In its final decision, the Agency dismissed the complaint for failure to state a claim. The Agency concluded that the claims were isolated incidents, the circumstances were neither sufficiently severe nor pervasive, and all three claims amounted to a generalized grievance. In one of the claims, the Complainant alleged that the responsible manager violated her rights under the Health Insurance Portability and Accountability Act (HIPAA) when he revealed her medical diagnosis and the status of her Office of Workers’ Compensation Programs claim during a shift meeting. The EEOC concluded that this HIPAA claim did not fall under its jurisdiction. However, the EEOC found that disclosing the Complainant’s medical information represented a violation of the Rehabilitation Act and, as such, represented an actionable claim. The EEOC remanded the case to the Agency to process this claim.

❖ Adam D. v. U.S. Postal Service, EEOC Appeal No. 2022004793 (Feb. 28, 2023)

The Agency dismissed the formal complaint for failure to state a claim. The EEOC found that a fair reading of the record revealed that the Complainant alleged numerous instances of hostile work environment harassment based on race, color, and sex. The alleged incidents included being singled out and followed, yelled at, and accused of poor performance by a supervisor. Further, when Complainant reported the supervisor’s behavior to Agency management, he received no response. The EEOC concluded that, taken together, these alleged incidents were sufficiently severe or pervasive enough to state a claim of a hostile work environment. Therefore, the EEOC reversed the Agency’s dismissal and remanded the complaint for further processing.

❖ Dewey R. v. Department of Veterans Affairs, EEOC Appeal No. 2022004466 (Feb. 6, 2023)

The Final Agency Decision dismissed the complaint for failure to state a claim, asserting that the Complainant failed to show that he was aggrieved when verbal counseling was written down in a Report of Contact. On appeal, the EEOC reasoned that, although events unaccompanied by a concrete agency action are generally insufficient to render a party aggrieved, written counseling reports are typically not dismissed for failure to state a claim. The EEOC noted that a letter of counseling issued to the Complainant could be considered an adverse action if placed in the Complainant’s personnel file. Here, the Agency failed to show that the letter of counseling would not be placed in the Complainant’s personnel file or that it was not a disciplinary action. Since the Agency bears the burden of proof to support its final decision, the EEOC reversed the Agency’s dismissal and remanded the claim for further processing.

❖ Teddy D. v. Department of Navy, EEOC Appeal No. 2023000367 (Feb. 7, 2023)

The Agency dismissed a complaint of discrimination for failure to state a claim. The Agency asserted that its full provision of Complainant’s reasonable accommodation request for telework rendered his complaint moot. The record showed that the full grant of the request was delayed for four months after the initial request. On appeal, the EEOC found that this delay could establish a violation of the Rehabilitation Act, making the Agency liable for compensatory damages. Without certainty that the subsequent telework accommodation eradicated the possible effects of the alleged discrimination, the EEOC found that the complaint was not rendered moot. The EEOC reversed the dismissal and remanded the claim for further processing.

❖ Michael G. v. Department of Justice, EEOC Appeal No. 2021004320 (Feb. 16, 2023)

An EEOC Administrative Judge (AJ) issued a decision dismissing the complaint for failure to state a claim, concluding that the Agency was not a joint employer of Complainant. The evidence on record revealed that an Agency employee was in charge of directing Complainant’s day-to-day activities and another Agency employee was responsible for overseeing Complainant’s hours and leave. Moreover, the Agency’s contract with the contracting company noted that an Agency employee was responsible for monitoring the employee’s day-to-day performance and communicating any inadequacies. Therefore, the EEOC found that the Agency exercised sufficient control over Complainant in the performance and exercise of his duties to qualify as a joint employer for EEO purposes. The EEOC reversed the dismissal and remanded to the Agency for the AJ to issue a final decision on the merits of the complaint.

❖ Judi S. v. Department of Agriculture, EEOC Appeal No. 2022004964 (Feb. 15, 2023)

The Agency dismissed the complaint for failure to state a claim, concluding that the Complainant was not a joint employee and, therefore, was not entitled to the Federal sector EEO complaint process. On appeal, the EEOC determined that the evidence on record was insufficient to properly assess the day-to-day actions and level of Agency control over the Complainant’s employment. The EEOC found that the Agency’s brief analysis and inadequate record fell short of a comprehensive consideration of the nature of its employment relationship with the Complainant. The EEOC vacated the Agency’s decision and remanded the case for supplemental investigation.

❖ Laquita H. v. Department of Transportation, EEOC Appeal No. 2022003399 (Jan. 4, 2023)

The Agency dismissed the Complainant’s entire complaint for failure to state a claim, concluding that she was not an Agency employee. On appeal, the EEOC found that the record revealed, among several factors, that the Agency gave Complainant at least some of her assignments. Furthermore, the Complainant worked on-site at the Agency and used Agency equipment while employed by five different staffing firms for nearly 17 years. After considering the circumstances of the Complainant’s relationship with the Agency, the EEOC concluded that the Agency exercised sufficient control over the Complainant to qualify as a joint employer. Accordingly, the EEOC reversed the Final Agency Decision and remanded the case to the Agency for further processing.

❖ Lloyd B. v. Social Security Administration, EEOC Appeal No. 2022004336 (Jan. 4, 2023)

The Agency dismissed Complainant’s formal complaint for failure to state a claim, reasoning that the allegations were collateral attacks on the Agency’s internal investigative process. The investigative process, however, included a Final Agency Decision made by the same Director that the Complainant alleged as the responsible party in his complaint of discrimination. On appeal, the EEOC found that the Complainant sufficiently alleged a conflict of interest in the Agency’s review process. The EEOC also determined that the Complainant’s retaliation claim was viable and warranted investigation. Thus, the EEOC reversed the Agency’s dismissal and remanded the matter for further processing.

❖ Gena C. v. Department of Defense, Appeal No. 2022004380 (Jan. 31, 2023)

The Agency dismissed the complaint for failure to state the claim, finding that the Complainant was not an Agency employee but a contractor. On appeal, the EEOC found that the record showed that the Complainant worked full-time on Agency matters and primarily performed all of her duties on Agency property. Furthermore, an Agency administrator acted as her supervisor, directly assigning her work duties, monitoring her time and attendance, and approving her work schedule. The EEOC concluded that the evidence supported a finding that the Agency exerted sufficient control over the Complainant to be considered a joint employer for EEO purposes. Thus, the EEOC reversed the Agency’s dismissal and remanded the matter to the Agency for further processing.

❖ Stetson D. v. Department of Homeland Security, EEOC Appeal No. 2023000323 (Jan. 31, 2023)

The Agency’s final decision dismissed the complaint for failure to state a claim, finding that the Agency was not a joint employer when Complainant was terminated. On appeal, the EEOC found that the record showed that Complainant was hired as a subcontractor by private entities that held a contract with the Agency to provide consultants for Lean Six Sigma training. While the Agency provided equipment and working space, the contractor exercised primary control of Complainant’s work. The Agency did not provide Complainant with pay, benefits, performance evaluations, or attendance tracking. Furthermore, Complainant’s supervisor was a Program Manager for the prime contractor. The prime contractor stated that it made a business decision to terminate Complainant because his work proved to be too expensive. The EEOC determined that the prime contractor, not the Agency, controlled the scope of the Complainant’s work and had directly paid him. Thus, the EEOC affirmed the Agency’s final decision.

❖ Garland C. v. Department of the Navy, EEOC Appeal No. 2023000256 (Mar. 23, 2023)

The Agency issued a decision dismissing the complaint for failure to state a claim, finding that Complainant did not meet the definition of an aggrieved employee. The record revealed that the complaint alleged discrimination on the basis of reprisal for prior EEO activity. On appeal, Complainant argued that the several acts listed were not isolated incidents but a continued pattern of harassment. At the time of the alleged discriminatory events, Complaint had an active harassment complaint pending an EEOC hearing. The EEOC concluded that the instant matter should properly be considered as evidence of an ongoing harassment claim. Thus, the EEOC vacated and remanded the matter to the Agency for further processing.

❖ Danita S. v. Department of the Army, EEOC Appeal No. 2022004997 (Feb. 21, 2023)

The Agency dismissed the complaint for failure to state a claim, concluding that she failed to allege direct harm. On appeal, the EEOC found that the record showed that the complaint alleged discrimination and a hostile work environment based on reprisal. Specifically, the Complainant alleged that she was subjected to retaliation for a prior EEO complaint involving sexual harassment by a coworker when the Agency assigned her training at the facility where the harasser from that prior EEO complaint worked and instructed training courses. The EEOC concluded that this could discourage a reasonable person from making a charge of discrimination. Thus, the EEOC reversed the dismissal and remanded the matter to the Agency for further processing.

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

❖ Henry W. v. Department of Navy, EEOC Appeal No. 2022005119 (Jan. 4, 2023)

The Agency dismissed Complainant’s discrimination claims for untimely EEO Counselor contact. The record showed that Complainant initiated EEO Counselor contact six days after the 45-day statutory time limit. On appeal, the EEOC determined that, while the 45-day time limit was violated, the delay was justified because there was no evidence that Complainant received constructive notice of the 45-day time limit. Based on these circumstances, the EEOC used its discretion to justify the delay in EEO Counselor contact. Thus, the EEOC reversed the Agency’s dismissal and remanded it for further processing.

c. Untimely Filing of the Formal Complaint – 29 C.F.R. § 1614.107(a)(2)

❖ Dixie K. v. U.S. Postal Service, EEOC Appeal No. 2022004776 (Feb. 28, 2023)

The Agency dismissed the formal complaint on the grounds that the formal complaint was untimely filed. Furthermore, the Agency determined that the complaint was barred by the doctrine of laches because Complainant did not show due diligence in the pursuit of her claims. The Agency sent a Notice of Right to File (Notice) to Complainant on January 28, 2021, but Complainant did not file her complaint until 18 months after initially contacting the EEO Counselor. Although the record did not establish that Complainant received that Notice, the record did establish that the Agency sent a new Notice on July 15, 2022, and that someone at Complainant’s address of record signed upon its receipt on July 19, 2022. The EEOC noted that Complainant’s formal complaint was filed on July 27, 2022, within the required 15-day period of the new Notice. Complainant stated that she had continued to speak to the EEO representative on a number of occasions since the initial contact and was told that the process had encountered delays. She had also attempted to look up her complaint after the EEO representative stopped responding to her but found no information. Based on these circumstances, the EEOC concluded that Complainant’s formal complaint was timely filed and that she had acted with due diligence in pursuing her claims. The EEOC reversed the Agency’s dismissal and remanded the matter for further processing.

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

❖ Sherill S. v. Department of Veterans Affairs, EEOC Appeal No. 2022004810 (Feb. 21, 2023)

The Agency dismissed Complainant’s EEO complaint because she filed an appeal with the U.S. Merit Systems Protection Board (MSPB) prior to filing her EEO complaint. Complainant argued that her appeal to the MSPB regarded a violation of the Veterans Employment Opportunities Act in the hiring process for the same position at issue and not discrimination based on race/color, disability, and age. The EEOC concluded that Complainant raised allegations of discrimination based on race/color, disability, and age when she was not selected for the position at issue in her appeal to the MSPB, although, Complainant suggested that she did not intend to raise it there as an active claim. The EEOC found that nonetheless the MSPB did not address or accept jurisdiction, in effect denying jurisdiction over the claims. As such, the EEOC remanded Complainant’s EEO complaint to the Agency for further processing.

II. Decisions on the Merits

a. Title VII of the Civil Rights Act of 1964

❖ Clarine L. v. Department Transportation, EEOC Request No. 2022005084 (Feb. 23, 2023)

In a prior decision, the EEOC reversed the Agency’s final order, which rejected the finding of discrimination from an EEOC Administrative Judge (AJ). The AJ specifically found that the Agency had preselected the Selectee for the position in question, even though Complainant’s objective qualifications were vastly superior. Furthermore, the AJ held that the Agency’s interview process was suspicious and subjective because the Agency failed to explain why Complainant’s interview performance was inferior to that of the Selectee. Given the absence of the score sheets and notes from the panel interview, the AJ found the Agency’s reliance on the subjective interview as the sole basis for Complainant’s non-selection was pretextual. In its request for reconsideration, the Agency re-argued that the Complainant failed to establish that her race or sex were behind the non-selection. However, the EEOC found that nothing submitted by the Agency supported a determination that the prior decision was in error. Thus, the EEOC denied the Agency’s request for reconsideration.

❖ Anne G. v. Department of Veterans Affairs, EEOC Appeal No. 2022003036 (Jan. 31, 2023)

The Agency issued a final decision finding that Complainant failed to prove that she was subjected to a hostile work environment. However, the record revealed that: (1) a responsible management official repeatedly referred to her as girl, (2) she was subjected to comments related to lynching and ropes, (3) she was subjected to racially insensitive epithets at a work meeting, (4) she was forced to act as a slave in a Juneteenth program, and (5) she was subjected to comments based on racial stereotypes related to the Juneteenth celebration. Based on the evidence, the EEOC determined that the workplace was saturated with discriminatory ridicule, insults, and microaggressions. The EEOC determined that, when taken together, the severe and pervasive conditions supported a finding that the Complainant was subjected to a hostile work environment based on race and color. Thus, the EEOC reversed the Agency’s decision and remanded this matter for appropriate remedial action. The EEOC affirmed the Agency’s final decision on other claims.

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

❖ Arturo B. v. Department of Defense, EEOC Request No. 2022005150 (Feb. 16, 2023)

In a prior decision, the EEOC determined that the Agency had discriminated against Complainant by rescinding its conditional offer of employment due to concerns raised by its Contract Physician. The EEOC found that all of Complainant’s physicians found Complainant's conditions, including his diabetes, to be well controlled and imposed no restrictions on his ability to perform the essential functions of a Police Officer. The EEOC declined to defer to the Agency’s Contract Physician over Complainant’s own treating physicians—who, unlike the Contract Physician, were specialists in their respective fields. In its request for reconsideration, the Agency argued that Complainant’s physicians did not evaluate how diabetes and anxiety could affect his heart condition or how the stress of the police profession could exacerbate his other conditions. The EEOC found that all three of the Complainant’s physicians stated that his conditions were stable and that he posed no risk to himself or others based on their assessment. Thus, the EEOC denied the Agency’s request for reconsideration.

❖ Tania O. v. Department of the Army, EEOC Appeal No. 2022001333 (Jan. 31, 2023)

The Agency issued a final decision concluding that Complainant did not show that the provided reasonable accommodation was ineffective. On appeal, the EEOC found that the record showed that Complainant presented medical documentation that a reasonable accommodation of working remotely could be “very helpful” in affording her comfort and reducing embarrassment from her inflammatory skin condition. While the Agency agreed to provide Complainant telework on Tuesdays and Thursdays, along with a sit-stand desk at work, these accommodations were ineffective because Complainant could experience painful flare-ups of her condition on the remaining days of the week and had no way of predicting them. The EEOC concluded that the Agency failed to show that permitting Complainant to telework on a situational basis during flare-ups would amount to an undue hardship. Thus, the EEOC found that the Agency did not engage in a good faith effort to accommodate Complainant. With respect to the Agency finding of no discrimination on the reasonable accommodation claim, the EEOC reversed the decision and remanded the matter to the Agency. The EEOC affirmed an additional claim in part and remanded the remainder for a supplemental investigation.

❖ Levi P. v. Department of Homeland Security, EEOC Appeal No. 2021004021 (Jan.26, 2023)

The Agency issued a decision finding that Complainant was not discriminated against on the basis of disability and national origin. The Agency determined that the Complainant was at risk of sudden incapacitation while performing the duties of the position and, therefore, posed a direct threat to himself and others. On appeal, the EEOC concluded that the Agency failed to show that Complainant’s disability presented a significant risk of substantial harm to the health and safety of himself or others. The EEOC determined that the Agency had engaged in speculation on what might occur because of Complainant’s condition. Thus, the EEOC reversed the Agency’s decision regarding the disability claim and remanded for remedial action. The EEOC affirmed the Agency’s finding of no discrimination on the basis of national origin.

❖ Charles B. v. Department of Homeland Security, EEOC Appeal No. 2022001239 (Jan. 26, 2023)

The final agency decision (FAD) determined that Complainant had not been discriminated against when his request to be reinstated to his former position was denied. The record revealed that the former position provided telework as a reasonable accommodation for Complainant’s post-traumatic stress disorder. On appeal, the EEOC noted that Federal regulations allow the responsible management official to reject a reinstatement request, if the rejection is non-discriminatory. The EEOC found that the Agency’s contention—that Complainant was unable to perform all the essential functions in the former position with the same telework accommodation—was unpersuasive. Complainant held the former position for over two years, receiving “exceeded expectation” performance ratings. In addition, Complainant asked to be reinstated just over two weeks after he left the former position. Thus, the EEOC reversed the FAD and ordered reinstatement and other relief.

❖ Gaynell A. v. Department of Defense, Appeal No. 2021005236 (Feb. 8, 2023)

The Agency’s final order adopted the summary judgment from an EEOC Administrative Judge (AJ) that Complainant failed to show that she was subjected to discrimination when the Agency denied her reasonable accommodation request. Complainant filed an EEO complaint alleging discrimination based on physical disability after Complainant was required to attend a meeting in person rather than via streaming video. On appeal, the EEOC found that, while there were no material facts in dispute, the AJ incorrectly determined that Complainant was not denied a reasonable accommodation because she did not make her request until the evening before the live stream meeting. The record revealed that Agency officials were fully aware of Complainant’s need for specialized seating. Additionally, the Disability Program Manager understood that Complainant’s ability to participate in meetings was one of her existing accommodations. The EEOC noted that the meeting was already being live streamed for employees located outside of the area, so providing Complainant access to that live stream would not have constituted undue hardship. The EEOC also determined that the Agency failed to establish that it had made a good faith effort to reasonably accommodate Complainant. Thus, the EEOC reversed the Agency’s final order implementing the AJ’s decision and remanded for remedial action.

❖ Krysten M. v. U.S. Postal Service, EEOC Appeal No. 2021005238 (Feb. 8, 2023)

The Agency issued a decision finding that it had not discriminated against Complainant when it did not accommodate her request for a proper area to lactate. On appeal, the record revealed that the Agency had designated and set up an office as a lactation room, but the Complainant could not access it as needed because it was locked. The Postal Police did not have a key to open the lock, and management could not provide an alternate location. The Complainant stated that she experienced pain in her breasts when she was unable to express the milk. As a result, she had to go home to express milk, and the Agency then charged her Leave Without Pay. The EEOC considered Complainant’s protected status as a nursing mother and determined that the Agency denied her a pregnancy-related accommodation. Therefore, the EEOC reversed the Agency’s final decision and remanded for remedial action.

❖ Del V. v United States Postal Service, EEOC Appeal No. 2023001622 (Apr. 3, 2023)

Complainant alleged discrimination when his unredacted medical information was sent by the Agency’s Occupational Health Claims Manager to his local union. The Agency dismissed the Complaint for failure to state a claim, asserting that it was an impermissible collateral attack against the process for the Office of Workers’ Compensation Programs. On appeal, the record showed that Complainant specifically requested that his confidential medical information be redacted before being sent. The EEOC concluded that the Complainant had, in fact, stated a viable claim under the Rehabilitation Act regarding medical confidentiality. Thus, the EEOC reversed the Agency’s decision and remanded the complaint for further processing.

c. Reprisal

❖ Karen B. v. Department of the Air Force, EEOC Appeal No. 2022002645 (Mar. 2, 2023)

Following a hearing where the EEOC Administrative Judge (AJ) consolidated five complaints, the AJ issued a decision finding that Complainant had been subjected to unlawful retaliation for her non-selection in only one of the complaints. The AJ’s decision ordered that the Agency make an offer of placement into the position and back pay to Complainant, including a detailed calculation of benefits owed to Complainant. The Agency issued a final order adopting the AJ’s decision. On appeal, Complainant stated that, while the Agency placed her in the position as ordered, it failed to offer the back pay and detailed statement of pay and benefits due to Complainant. The EEOC concluded that the Agency provided no evidence to support its position that it was making efforts to comply with the AJ’s order. Thus, the EEOC ordered the Agency to fully comply with the AJ’s decision and report directly to an EEOC Compliance Officer. The EEOC also granted Complainant the right to file a Petition for Enforcement, if necessary.

❖ Emerson P. v. U.S. Postal Service, EEOC Appeal No. 2022000787 (Feb. 14, 2023)

In its final decision, the Agency found that Complainant failed to establish a prima facie case of retaliation. Specifically, the Agency concluded that Complainant failed to establish a connection between his prior EEO activity and his later suspension and emergency placement. The Agency noted that the prior EEO case had closed 17 months before Complainant’s emergency placement. On appeal, the record revealed that the Postmaster was identified as the discriminating official in Complainant’s prior EEO complaint and was involved in the instant disciplinary actions. The EEOC also noted that Complainant’s prior EEO complaint was still active when the Agency issued the Letter of Emergency Placement and Notice of Suspension. The EEOC determined that the admissions by the Postmaster as well as the erroneous statements in the Notice of Suspension supported a finding that Complainant was subjected to unlawful retaliatory animus. Thus, the EEOC found that the Agency’s stated reasons were pretextual and reversed the final order.

❖ Lenny W. v. U.S. Postal Service, EEOC Appeal No. 2021003766 (Feb. 22, 2023)

In its final decision, the Agency concluded that Complainant failed to establish that its legitimate, nondiscriminatory reasons were pretext for discriminatory reprisal. On appeal, the record revealed that the Agency disciplined Complainant and reassigned him during the investigation of his EEO complaint. The EEOC found that Complainant had established that his protected EEO activity was a motivating factor for the Agency’s actions against him. The EEOC noted that management listed Complainant’s protected activity as a reason for its actions on at least two occasions. The EEOC noted that in cases involving mixed motives, the burden shifts to the Agency to show that it would have taken the same actions without considering discrimination. However, the EEOC determined that the Agency failed to meet this burden. Although the EEOC acknowledged that some intermediate actions may be taken pending the investigation of a claim, those actions should not include involuntarily transfers or imposing other burdens on Complainant as those actions could constitute retaliation. Therefore, the EEOC reversed the Agency’s final decision with respect to the retaliation claims and remanded the complaint for corrective action.

❖ Minh W. v. Department of Veterans Affairs, EEOC Appeal No. 2021004892 (Jan. 31, 2023)

The Agency issued a final decision finding that Complainant had not been subjected to retaliatory harassment. On appeal, the EEOC found that Complainant was subjected to retaliatory harassment by two management officials when he was excluded from meetings and publicly attacked. Contrary to the Agency’s assertions, the record revealed that Agency officials were aware of Complainant’s prior involvement as a supporting witness in other EEO complaints. The EEOC found the Agency liable for the harassment because it did not take reasonable care to prevent or correct the harassment. Thus, the EEOC reversed the Agency’s finding on retaliatory harassment and remanded the claim for remedial action.

III. Remands for a Hearing with an EEOC Administrative Judge

❖ Tommy R. v. Department of the Army, EEOC Appeal No. 2022001001 (Mar. 6, 2023)

On her own accord, an EEOC Administrative Judge (AJ) issued summary judgment in favor of the Agency, concluding that Complainant had not been subjected to unlawful discrimination. On appeal, Complainant stated that there were material facts in dispute and that he was not given the opportunity for a hearing or discovery to take place in support of his position. The EEOC concluded that the record supported a finding that the AJ’s summary judgment was improper because she failed to provide Complainant the opportunity to file written objections to the issuance of a decision without a hearing. Thus, the EEOC vacated the AJ’s decision, along with the Agency’s final order implementing that decision. The EEOC remanded the complaint to the Agency with direction to resubmit Complainant’s request for a hearing.

❖ Oliver M. v. Department of the Army, EEOC Appeal No. 2022000598 (Feb. 8, 2023)

An EEOC Administrative Judge (AJ) granted the Agency’s Motion for Summary Judgment on Complainant’s claim that the Agency had subjected him to a hostile work environment and constructively discharged him. The AJ concluded that Complainant failed to identify any genuine issue of material fact, as he failed to show that he was treated differently than similarly situated employees. On appeal, the EEOC found that the record was not adequately developed to warrant a decision without a hearing. The EEOC noted the record lacked testimony from relevant witnesses, a complete timeline of the Agency’s investigation, and the basis for the disciplinary action against Complainant. The EEOC determined that the AJ erred in finding that Complainant’s comparators were not similarly situated, as the different characteristics of the comparators were not relevant because the Agency did not rely upon those characteristics for its actions. Thus, the EEOC vacated the Agency’s final decision and remanded the complaint back to the Agency for further action in accordance with the EEOC’s decision.

❖ Pamela W. v. Department of Homeland Security, EEOC Appeal No. 2022003075 (Feb. 7, 2023)

The Agency issued a final order implementing the summary judgment decision from an EEOC Administrative Judge (AJ) that Complainant had not been subjected to unlawful discrimination. On appeal, the record revealed that crucial information was missing regarding Complainant’s non-selection for the positions at issue, which raised genuine issues of material fact concerning the selection process. In this regard, the record was devoid of notes and scores from the interviewers, who only provided vague and conflicting testimony about Complainant’s interview performance. The EEOC determined that there were too many unresolved issues requiring additional evidence and an assessment as to the credibility of the various management officials. Thus, the EEOC remanded the complaint to the Agency for appropriate processing and transmission of the case file to the relevant EEOC Hearings Unit.

❖ Mellissa F. v. Department of Housing and Urban Development, EEOC Request No. 2022003871 (Feb. 8, 2023)

In a previous decision, the EEOC found that an Administrative Judge made an error in favor of the Agency by granting summary judgment. The EEO investigation conducted by the Agency only looked into a single incident of sexual harassment, while the Complainant had clearly alleged multiple instances of harassment that led to a hostile work environment. Therefore, the EEOC found that the record was incomplete, and there were genuine issues of material fact in dispute. The Agency requested reconsideration, arguing that the EEOC's previous decision improperly noted that the Agency did not file a response to Complainant's appeal and that none of the alleged events were reported to management, so the incidents were not material to its liability. However, the EEOC rejected the Agency's contentions, indicating that they had previously considered the Agency's arguments in rendering the prior decision. The EEOC also rejected the Agency's arguments that the prior decision failed to consider liability, as that position prematurely addressed the merits of the case, where the record was incomplete. The EEOC remanded the case to the appropriate EEOC Hearings Unit for a hearing.

IV. Remedies

a. Compensatory Damages

❖ Randolph A. v. Department of Defense, Appeal No. 2022002664 (Feb. 23, 2023)

The Agency’s final order implemented the decision from an EEOC Administrative Judge (AJ) finding discrimination and awarding Complainant $18,000 in compensatory damages. Complainant appealed the nonpecuniary damages award and requested an award of $80,000, contending that the AJ failed to properly assess the severity and duration of the harm he suffered. The EEOC noted that Complainant did not provide any statements from relatives or friends or any medical evidence in support of his compensatory damages claim. In this regard, the EEOC concluded that an increase to $22,500 in nonpecuniary compensatory damages was appropriate based on the duration and the severity of the harm suffered. This award was consistent with amounts awarded in similar circumstances. Thus, the EEOC affirmed the finding of discrimination and adjusted the compensatory damages award.

❖ Judy D. v. Department of Veterans Affairs, EEOC Appeal No. 2022002202 (Jan. 5, 2023)

After finding that the Complainant had been subjected to a hostile work environment, the EEOC sent the case back to the Agency to determine the amount of compensatory damages owed to the Complainant. The Agency awarded nonpecuniary compensatory damages in the amount of $60,000. However, the Complainant appealed the decision, stating that an award of at least $300,000 was necessary to compensate for the severe emotional distress she suffered due to the discriminatory actions against her. The EEOC agreed that $60,000 was insufficient given the severity of the harm suffered by the Complainant, but determined that an award of $75,000 would better compensate her and be consistent with similar cases. As a result, the EEOC adjusted the award and sent the case back to the Agency for further processing.

❖ Nakesha D. v. General Service Administration, EEOC Appeal No. 2022003095 (Feb. 2, 2023)

An EEOC Administrative Judge (AJ) issued a decision granting adverse inferences in Complainant’s favor based on the Agency’s failure to maintain and produce relevant documents, such as interview documents and notes taken during a panel interview for a position Complaint sought. The AJ awarded $170,000 in nonpecuniary compensatory damages to Complainant. The Agency subsequently issued a final order rejecting the AJ’s finding of discrimination and the damages award. On appeal, the Agency challenged the AJ’s award as excessive. The record revealed that the AJ found the selecting official not credible, while the other officials could not provide sufficient details and specifics concerning the selection process. The Complainant provided testimony about the physical and emotional harm she suffered as a result of the non-selection. In addition, a coworker provided corroborating testimony. While the AJ’s damage award was primarily based on Complainant’s testimony, the AJ supported his award determination on a number of cases with similar harm that awarded between $150,000 and $200,000. The EEOC determined that the Agency failed to show that the AJ erred in the award amount or that the award was “monstrously excessive” or punitive. Thus, the EEOC reversed the Agency’s final order and ordered it to take remedial action.

❖ Randolph A. v. Department of Defense, Appeal No. 2022002664 (Feb. 23, 2023)

The Agency's final order was in response to a finding of discrimination by an EEOC Administrative Judge (AJ). The Complainant had alleged that he was discriminated against and retaliated against for engaging in previously protected EEO activity. The Complainant claimed that the school’s Superintendent had prevented him from working as a Substitute Teacher and put him on leave without pay. In his pleadings, the Complainant had requested between $125,000 and $175,000 in damages, but the AJ awarded $18,000. The Complainant appealed and requested an award of $80,000, arguing that the AJ had not properly assessed the severity and duration of the harm. The EEOC found that the Complainant was not entitled to the requested damages award because he did not provide any statements or medical evidence to support his claim for compensatory damages. The EEOC concluded that $22,500 in nonpecuniary compensatory damages was appropriate based on the duration and severity of the harm suffered. This was consistent with the amounts awarded in similar circumstances. Therefore, the EEOC affirmed the final order with respect to liability, modified the award, and remanded the case to the Agency for remedial action.

b. Attorney’s Fees

❖ Joshua M. v. Department of Veterans Affairs, EEOC Appeal No. 2022002575 (Feb. 8, 2023)

Following the Agency’s finding of discrimination, the Agency determined that the Complainant was not entitled to an award of attorney’s fees. Complainant requested $19,662.50 in calculated fees, but the Agency only acknowledged $1,250 in costs. Specifically, the Agency concluded that the Complainant and his Attorney failed to provide a verified statement of fees in conjunction with a statement regarding the Attorney’s hourly rate. On appeal, the EEOC determined that, despite technical difficulties and miscommunications between the parties, Complainant’s Attorney correctly submitted the petition for attorney’s fees via an affidavit and itemized listing of the hours worked on the case. The record revealed that the Agency had satisfactory documentation to support Complainant’s attorney’s fee request but focused on the format of the information provided as opposed to its sufficiency. Thus, the EEOC modified the Agency’s decision and awarded Complainant the full amount of attorney’s fees requested.

V. Sanctions

❖ Delphia F. v. U.S. Postal Service, EEOC Appeal No. 2022001600 (Feb. 27, 2023)

The Agency issued a final decision finding no discrimination after an EEOC Administrative Judge (AJ) dismissed the matter based on the Agency’s Motion for Sanctions. Specifically, the AJ identified several non-compliance issues on the part of the Complainant: (1) failure to submit a Preliminary Case Information Report in response to an Acknowledgement Order, (2) failure to appear at the Initial Conference, and (3) failure to respond to the Order to Show Cause. However, the record did not indicate whether the Complainant had received the AJ’s orders. The Acknowledgement Order did not contain a certificate of service. In addition, the Order Scheduling Initial Conference and Order to Show Cause were sent through the EEOC’s Federal Sector EEO Portal (FedSEP), which the Complainant did not have access to. Therefore, the EEOC vacated the Agency’s final decision and remanded the matter to the Agency for further action in accordance with the EEOC’s decision.