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Selected EEOC Decisions on:

 

Attorney's Fees

Class Complaints

Compensatory Damages

Dismissals

Findings on the Merits

Under ADEA

Under Rehabilitation Act

Under Title VII

Under Multiple Bases

Retaliation

Remedies

Sanctions

Settlement Agreements

Stating a Claim

Summary Judgment

Timeliness

SELECTED NOTABLE EEOC DECISIONS FROM FY 2014

 

The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO)

Carlton M. Hadden, Director, OFO
Robert Barnhart, Acting Director, OFO's Special Services Staff
Digest Staff
Editor: Robyn Dupont
Writers: Jessica Brittany Bingham, Michael Campbell, Kiara Carty, Nichole Davis, Robyn Dupont, Alieen Hwang, Wanda L. Jones, Joseph M. Kirchgessner, Melissa Perry, Stephanie Ross, Alisa Silverman, Jacob B. Workman, Ebbie Yazdani

The Digest is now available online through EEOC's homepage at www.eeoc.gov/federal/digest/index.cfm.

(The Fall 2014 edition of the Digest contains a sampling of summaries of decisions of note, some appearing in previous issues, selected by the staff of the Digest from among the volume of decisions the EEOC issues each fiscal year. The summaries are neither intended to be exhaustive or definitive as to the selected subject matter, nor are they to be given the legal weight of case law in citations. For summaries of decisions involving claims of harassment, see by statute as well as under multiple bases. The Commission will redact Complainants' names when it publishes decisions. There will be no change with regard to the way in which the Commission communicates its decisions to the parties. This change was made to address privacy concerns and to ensure consistency with the Commission's approach in the rest of its enforcement work and the investigations of complaints. - Ed.)

 

SELECTED EEOC DECISIONS

Attorney's Fees

Attorney's Fees Discussed.

 

An Administrative Judge (AJ) found that the Agency discriminated against Complainant on the basis of her disability and ordered the Agency to pay $22,827 in attorney's fees. Complainant's attorney subsequently submitted a supplemental fee request for services in the amount of $2,136. The Agency denied the fee request as "excessive in nature" and stated that it would only reimburse the attorney for an additional $525. On appeal, the Commission noted that that there was no dispute as to the hourly rate, and assessed the reasonableness of the hours claimed. The Commission found that a portion of the claimed hours was excessive. Specifically, the Commission found that the Agency properly denied the hours for "client updates" while Complainant was awaiting the AJ's decision. In addition, the attorney could not be reimbursed for time spent to "Receive Transcript Client Update" because it was administrative in nature. Finally, the Commission found that the Agency properly reduced the time claimed for reading the AJ's decision on damages, and preparing the supplemental fee petition. Therefore, the Commission agreed with the Agency that Complainant was entitled to an additional award of $525 in attorney's fees. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140798 (September 19, 2014).

 

Complainant Entitled to Attorney's Fees for Work to Obtain Compliance with Commission's Final Order.

 

In a prior decision, the Commission affirmed an AJ's finding of discrimination and ordered relief, including attorney's fees. The Agency paid attorney's fees in the amount ordered by the Commission, as well as fees claimed in a second fee petition for work related to Complainant's initial appeal. Complainant's counsel subsequently submitted a third request for $9,122.50 for additional services rendered, claiming that they were necessary to obtain compliance with the Commission's order. When the Agency declined to pay more than $2,000, Complainant appealed the matter to the Commission. The Agency contended that the request was wholly unreasonable and excessive because at the time legal services were rendered, the Agency was in compliance with the Commission's May 2012 Order. However, the record showed that a portion of the relief initially ordered by the Commission was not provided until December 2012 and January 2013, and the Agency did not report to the Commission that it was in compliance with the order until January 18, 2013. Therefore the Commission found that Counsel's efforts to bring the Agency into compliance from July 2012 until December 2012 constituted hours reasonably spent in processing Complainant's complaint and ordered the $9,122.50 in attorney's fees be paid in full by the Agency. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131744 (September 11, 2014).

 

Award of Attorney's Fees Modified.

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Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity. Complainant alleged that he was subjected to a hostile work environment after he participated in the Agency's internal investigation of a co-worker's sexual harassment allegations, and that management forced him to resign after he participated in the investigation. Following a hearing, the AJ found that Complainant was not subjected to a hostile work environment, but concluded that the Agency subjected the Complainant to retaliation when it forced him to resign in lieu of termination. Complainant requested $189,762.20 in attorney's fees and $12,811.66 in costs. The AJ ultimately awarded Complainant's attorneys $45,000.00 in combined fees and costs, which the Agency adopted in its final decision.

Complainant appealed the AJ's attorney fees calculation. On appeal, the Commission found that the Complainant was entitled to $103,476.51 in fees and $12,811.66 in costs. The Commission found that the AJ erred in determining the market rate for Complainant's attorney and improperly placed the burden on the Complainant instead of the Agency to show that the decision to retain out-of-town counsel was unreasonable. In this case, the Agency did not assert that Complainant's attorneys' hourly rates were unreasonable. Further, although, only one of Complainant's claims was successful, the Commission concluded that there should be no reduction in fees for the failed claim because it was intertwined with the successful claim. The Commission noted that attorney's fees may not be recovered for work on unsuccessful claims, and should exclude time spent on "truly fractionable" claims or issues on which they did not prevail. In this case, however, Complainant's retaliatory harassment claim encompassed his disparate treatment claim and the facts of the two claims were intertwined. Therefore, the claims were not fractionable. The Commission did concur with the AJ's finding that Complainant's claim was separate and distinct from the claims of two other employees that were consolidated with Complainant's claim for hearing. Therefore, the Commission found that those fees should be excluded from the award. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120111028 (May 15, 2014).

 

 

Attorney's Fees Discussed.

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The Commission previously found that the Agency discriminated against Complainant when it did not select her for a position, and ordered the Agency to, among other things, pay reasonable attorney's fees. In the underlying appeal, the Commission addressed the issue of attorney's fees. The Commission used the Laffey Matrix, a schedule of hourly rates for attorneys, paralegals, and law clerks based on experience level, to determine the prevailing market rate for the attorney. The Commission rejected Complainant's argument that it should use a higher hourly rate found in the "Adjusted Laffey Matrix," finding nothing in the record to warrant an adjustment above the rates found in the standard Matrix. The Commission also declined to award fees at the current market rate, stating that it was appropriate to apply the Laffey Matrix hourly rate for the year the work was performed. The Commission did find that the Agency erred in awarding only 33 percent of the requested fees for much of the work performed, noting that the fact that Complainant did not prevail on every aspect of her complaint did not, by itself, justify a reduction in the hours expended where the claims were intertwined. The majority of the work on the initial appeal concerned whether or not the Agency was liable for discrimination, an issue on which Complainant was a prevailing party. The fact that Complainant was not successful in her request to increase the compensatory damages award did not warrant her receiving only 33 percent of most of the requested fees, and some of the work performed on damages was intertwined with work performed on successful claims. Therefore, the Agency should have denied fees only where it was clear that the work was solely related to the issue of damages. The Commission did find that it was appropriate to deny claims for services by one attorney that were clearly only supervisory in nature and that much of the work performed by another attorney was duplicative. Therefore, the Commission denied the duplicative requests, and modified the award of attorney's fees. Complainant v. Hous. & Urban Dev., EEOC Appeal No. 0120113288 (March 14, 2014).

 

Attorney's Fees for Out-Of-Town Counsel Proper.

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Complainant was unable to find a local South Dakota attorney who practices federal employment law. As a result she found and hired an attorney in Washington, D.C. Complainant and the Agency entered into a settlement agreement which provided that the Agency was to pay reasonable attorney's fees. The Agency paid attorneys fees based on a lower prevailing market rate in South Dakota, alleging that it was unreasonable for Complainant to have hired out-of-town counsel. On appeal, the Commission modified the attorney's fees to reflect the prevailing rate in Washington D.C. The Commission found that if a party does not find counsel readily available in his or her locality with the reasonably required degree of skill, it is reasonable for the party to go elsewhere to find an attorney, even at a higher rate than the prevailing market rate in the location where the action arose. The burden is on the Agency to show the decision to use out-of-town counsel was unreasonable. The Commission found that Complainant's use of out-of-town counsel was reasonable given that she tried but was unable to find a competent local attorney who specialized in representing federal employees in EEO matters. Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120133329 (February 28, 2014).

 

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Class Complaints

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Finding of Discrimination in Class Complaint Upheld.

 

The Commission previously issued a decision certifying a class consisting of "female Special Agents [SAs] who were denied foreign assignments between 1990 and 1992." In April 2011, after a hearing, the AJ issued a "Class Action Interim Hearing Decision" which found liability against the Agency. In October 2011, the Agency filed a motion to decertify the class, in which it asserted that the AJ's decision was contrary to the new standards for class certification set forth in the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes. The AJ denied the Agency's motion and issued a report of findings and recommendations, which included the previously issued finding of liability and also included the recommended remedies. The Agency then issued a final decision rejecting the AJ's findings and recommendations. On appeal, the Commission affirmed the AJ's denial of the Agency's motion to decertify the class. In addition, the Commission found that there was substantial evidence in the record to support the AJ's findings of class-wide disparate impact and disparate treatment discrimination. The Commission ordered the Agency to create and implement a Gender Discrimination Remedy Plan; pay the Class Agent (CA) $150,000 in non-pecuniary compensatory damages; pay $1,060,354.50 in attorney's fees, which included a 20 percent fee enhancement; retroactively promote CA to a foreign position; and pay CA back pay, including benefits associated with overseas positions.

The Commission denied the Agency's request for reconsideration, but modified its previous order regarding remedies. The Commission noted that the Supreme Court has held that a class certification order may be amended before the decision is issued on the merits of the claim. In this case, the AJ issued a decision on the merits prior to the Supreme Court's decision in Wal-Mart. The Commission stated that it was clear the AJ's April 2011 decision, issued after a nine-day hearing, was a decision on the merits and it contained specific liability findings. Therefore, Wal-Mart was not applicable in this case as the issue of class certification had been previously decided. In addition, the Commission found that the AJ's determination of class-wide disparate impact and disparate treatment discrimination was supported by substantial statistical and testimonial evidence in the record. The Commission found that the orders regarding the Gender Discrimination Remedy Plan, and award of $150,000 in damages were not clearly erroneous. The Commission stated, however, that CA failed to carry her burden of producing specific evidence that the enhancement to the award of attorney's fees was necessary. The Commission modified the order to remove the enhancement. Finally, the Commission concluded that the retroactive promotion of CA to the foreign position with back pay and benefits associated with overseas positions was clearly erroneous because the foreign position was a lateral assignment and overseas differentials were not recoverable as part of back pay. The Commission modified the order to have the Agency retroactively assign CA to the foreign position. Complainant v. Dep't of Justice, EEOC Request No. 0520130561 (August 12, 2014).

 

Class Certification Denied.

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Complainant, an Aircraft Sheet Metal Worker, alleged discrimination on the basis of national origin on behalf of 23 putative class members. The AJ denied class certification, finding that Complainant did not meet the numerosity requirement. Complainant appealed to the Commission, which affirmed the AJ's decision. The Agency did not challenge the AJ's finding that Complainant met the requirements of commonality, typicality and adequacy of representation. With regard to the numerosity, requirement, the AJ found that four contractors included in the putative class were joint employees of the Agency, and the Agency specifically noted the AJ's finding of joint employment when it implemented the AJ's decision. Nevertheless, the Commission affirmed the AJ's finding that in this case, a putative class of 23 was still too small to satisfy the numerosity requirement. The Commission noted that the geographic proximity of the putative class members favored the consolidation of complaints and not class certification. In addition, Complainant alleged but failed to show that a fear of retaliation reduced the potential members of the class, or that putative class members would be unlikely to file individual claims due to fear of retaliation. The Commission remanded Complainant's complaint to be processed individually, and ordered the Agency to notify Vietnamese employees working for the Supervisor of the decision, and provide them with 30 days to file individual EEO complaints. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120131451 (July 16, 2014).

 

 

Class Certification Granted.

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Complainant (Class Agent) was an applicant for the Foreign Service who underwent the Agency's medical examination to determine if she could receive a Class 1 "Worldwide Availability" determination. The Agency defined "Worldwide Availability" as being medically qualified to work at one of more than 200 posts around the world including those with limited medical facilities. If candidates did not receive Class 1 classification they were forced to seek a waiver from a Foreign Service hiring agency directly. Class Agent was initially disqualified for medical reasons, but later applied for and received a waiver from the Agency. She was ultimately selected for a position in July 2008. Class Agent filed an individual complaint in January 2007, and filed a Motion for Class Certification on August 21, 2008, to convert her original complaint to a class complaint.

Class Agent alleged that the Agency's Worldwide Availability policy, as administered, disparately treated and disparately impacted qualified individuals with disabilities. She also claimed that the policy disparately impacted individuals over 40. The AJ denied the class claim of age discrimination but certified a class of applicants for career Foreign Service employment with a disability who "have been or will be" denied employment from October 7, 2006 until the present because the Agency's Office of Medical Services denied them Class 1 Worldwide Availability clearance. The Agency issued a final order which rejected the AJ's finding that the class should be certified.

 

On appeal, the Commission reversed the Agency's final order and remanded the matter for further processing. The Commission found that the AJ's decision regarding class certification based on age was correct due to lack of anecdotal or statistical evidence that the policy discriminated against applicants on that basis. The Commission also agreed with the AJ that Class Agent satisfied the requirement for class certification, although the Commission modified the class definition for clarity. The Commission found that Class Agent was an individual with a disability. In addition, Class Agent met the requirements of commonality and typicality. She alleged that the Worldwide Availability policy denied benefits of employment to those with disabilities without regard to accommodation, and without any individualized assessment into the individual's specific condition. The Commission rejected the Agency's assertion that the waiver process defeated commonality, stating that many did not take advantage of the process and were actually advised that waivers were rarely granted. The Commission also rejected the Agency's argument that the class should not be certified if all members had different disabilities. The Commission noted that other applicants with disabilities would have the same interest and suffer the same injury as Class Agent. Class Agent identified approximately 50 individuals denied employment because they were not granted a Class 1 Worldwide Availability clearance during the specified period a number which the Commission noted could grow each year the Agency continues to employ the policy in question. Thus, Class Agent met the requirement of numerosity. Finally, the class was adequately represented by attorneys with sufficient legal training and experience. Complainant v. Dep't of State, EEOC Appeal No. 0720110007 (June 6, 2014), request for reconsideration denied, EEOC Request No. 0520140506 (February 19, 2015).

 

 

Denial of Class Certification:

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The Commission affirmed the Agency's final order denying class certification. Complainant, the class agent, brought an EEO claim alleging, among other things, that female African-American Program Support Assistants at a specific Agency facility were discriminated against when male employees were hired or promoted outside of the competitive hiring process. The Commission found that Complainant established the elements of commonality and typicality. The Commission noted, however, that Complainant failed to meet the requirements to establish numerosity and adequacy of representation. With regard to numerosity, the Commission found that the proposed class of five was unlikely to grow based on facility size, and had in fact decreased from the original filing of eight. Although there is no specific number requirement, the Commission cited past claims where numerosity was not met when the proposed class encompassed 20 or more employees working in the same facility. Complainant, as class agent, presented no evidence showing that it would be impractical to consolidate the individual complaints. With regard to adequacy of representation, the Commission stated that Complainant lacked the experience, time and resources to fairly and adequately represent herself and fellow proposed class members. Complainant filed her original complaint and her appeal pro se and she was not an attorney or adequately trained in the complexities of EEO class actions to fairly represent other individuals. The Agency was ordered to process Complainant's claim and any other claims associated with it as individual complaints of discrimination. Complainant v. Dep't of Housing & Urban Dev., EEOC Appeal No. 0120113119 (June 6, 2014).

 

Class Certification Denied.

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Complainant, a Transitional Employee (TE) Carrier, filed a formal EEO complaint alleging that the Agency subjected him to a hostile work environment which included denying him an interview, refusing to hire him, denying him training, orientation and pay, and terminating him from employment. Complainant indicated that he wished to file a class action, and the matter was forwarded to an AJ who ultimately issued a decision denying class certification. The AJ determined that Complainant did not present any evidence of a policy or practice that affected the class members, nor did he allege that he was subjected to the same treatment as the class members. Further, the AJ found that a class of four individuals was not sufficiently large to constitute a class. On appeal, the Commission affirmed the AJ's decision. The Commission found that Complainant, by identifying only four members of the class, failed to meet the numerosity requirement. In addition, although Complainant provided a statement to the AJ, he failed to articulate any facts related to the selections, work locations, or supervisors in order to show that there was a common policy or practice of discrimination. Except for a general claim that the Agency's decisions, policies and practices were adverse to Hispanics and those who filed EEO complaints, Complainant did not identify any particular policies or practices that had the effect of discriminating against the class as a whole. The Commission has previously held that a claim of "across the board" discrimination without evidence of some common policy or practice does not support class certification. Therefore, Complainant failed to establish the criteria of commonality and typicality. Finally, Complainant was not an attorney and did not identify an attorney or law firm that would assist him, and, as such, did not show that the class was adequately represented. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120091759 (June 2, 2014); see also Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120091961 (June 2, 2014) (the AJ properly denied class certification where Complainant identified only four members of the class, and made only a general claim that the Agency's decisions, policies and practices were adverse to Hispanics and those who filed EEO complaints. Complainant did not identify any particular policies or practices that had the effect of discriminating against the class as a whole or identify any facts common to or typical of the four members of the class).

 

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Compensatory Damages

 

(The decisions below are a selected sampling of recent awards of compensatory damages. See, also, "Findings on the Merits," and "Remedies" this issue. - Ed.)

 

Commission Affirms $210,000 Compensatory Damages Award for Discriminatory Harassment and Reprisal.

 

Following a hearing, an administrative judge (AJ) found that Complainant was subjected to discriminatory harassment and reprisal which included offensive comments and numerous incidents of touching by her Supervisor. The AJ awarded Complainant, among other things, $210,000 in non-pecuniary compensatory damages. The Agency concurred with the AJ's findings of discrimination and harassment, but filed an appeal with regard to the issue of damages. On appeal, the Commission found substantial evidence regarding the mental and physical harm that Complainant endured as a result of the harassment. The record included testimony from Complainant, her husband and her psychologist showing that Complainant became deeply troubled, anxious, depressed, lonely, suspicious, mentally unfocused, and highly emotional. She experienced weight loss, hair loss, difficulty sleeping, suicidal thoughts and chest pain. This harm continued for at least two years. Complainant, who had anticipated being an Olympic runner, became dispassionate about competing. The Commission noted that management's behavior and actions were particularly egregious. It was well known by management that Complainant's Supervisor was harassing and assaulting her, yet no action was taken for some time, and management reported Complainant's allegations of harassment to other employees. The AJ's award was consistent with amounts awarded in similar cases, and was a reasonable amount to compensate Complainant for the harm caused by the Agency's actions. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720120027 (April 2, 2014).

 

Commission Affirms $200,000 Damages Award for Sex Discrimination.

 

The Commission affirmed the AJ's finding that Complainant was discriminated against on the basis of sex with regard to her working conditions and when she was terminated from her job. The Commission also found that the AJ's award of $200,000 in compensatory damages was proper. Witnesses described the deterioration of Complainant's physical appearance and the decline of her day-to-day happiness into a state of anxiety and desperation. Further, Complainant stated that she felt humiliated, angry, helpless, and hopeless, and her marriage ended. Complainant also experienced sleeplessness, weight loss, and damage to her skin and hair. The Commission also considered evidence regarding the emotional impact of Complainant's economic hardship caused by the discrimination. Complainant was the chief income earning parent for her children, and she faced difficulties locating work after she was terminated. Therefore, the Commission concluded that the AJ's award was reasonable. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720130039 (August 7, 2014).

 

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Commission Affirms $145,000 Damages Award for Disability Discrimination and Reprisal. Following a hearing, an AJ found that the Agency discriminated against and harassed Complainant on the basis of disability and prior EEO activity, and ordered the Agency to, among other things pay Complainant $145,000 in proven non-pecuniary compensatory damages. The Agency appealed to the Commission, arguing that the damage award was excessive. The Commission, however, found substantial evidence in the record to support the AJ's award on non-pecuniary damages, including testimony from Complainant and his treating psychiatrist. Complainant credibly testified that after the Agency denied him reasonable accommodation, his mental state and depression worsened, he felt isolated, and experienced increased stress and mental anguish. Complainant's psychiatrist testified that these conditions affected Complainant's chemical balance, and, as a result, Complainant went out on stress leave and then retired. At the time of the hearing, Complainant was still unable to perform certain activities that he performed before the harassment commenced at his workplace. The Commission concurred with the AJ that the Agency did not make a good faith effort to accommodate Complainant. The Commission found that Complainant was not entitled to pecuniary damages beyond what was awarded by the AJ. Complainant v. Dep't of the Navy, EEOC Appeal No. 0720120013 (March 12, 2014).

 

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Damages Award for National Origin Discrimination and Reprisal Reduced to $120,000. After the Commission found that the Agency discriminated against Complainant on the basis of national origin and retaliated against him when it involuntarily reassigned him and denied him higher-level pay, an AJ subsequently held a hearing on the issue of damages. The AJ awarded Complainant, among other things, $210,000 in non-pecuniary compensatory damages. The Agency appealed the damages award. On appeal, the Commission concurred with the AJ's finding that Complainant provided substantial evidence that the Agency's discriminatory conduct caused him physical and emotional harm. Complainant testified that he suffered anxiety attacks, difficulty sleeping, fatigue, loss of appetite and weight loss, and withdrew from personal interactions. Two former employees stated that Complainant's demeanor changed after the reassignment. The Commission, however, reduced the award to $120,000. While the AJ awarded Complainant differing amounts for various periods of time, the AJ did not explain in any detail how he arrived at the amounts awarded. He did not explain the reasoning for dividing the compensable period into separate timeframes, nor did he cite to specific evidence that he felt warranted the awards. The record showed that Complainant filed two additional EEO complaints during two of the periods and no discrimination was found in those matters. In addition, Complainant attributed the emotional distress he experienced during a period of time to the stress of his EEO hearing for which he could not recover damages. The Commission also determined that the AJ's finding that Complainant would likely have been transferred to other management positions was speculative and not supported by the record. The Commission noted that Complainant asserted that he was entitled to an award of $120,000, and supported his claim for that specific amount through the evidence and testimony introduced at the hearing. However, there was no evidence in the record to explain the AJ increasing Complainant's requested damages amount. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720100036 (May 13, 2014).

 

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Commission Increases Damages Award for Disability Discrimination. The Commission previously found that the Agency discriminated against Complainant when it failed to provide her with reasonable accommodation, and ordered the Agency, among other things, to investigate Complainant's claim for damages. The Agency conducted a supplemental investigation and awarded Complainant $50,000 in non-pecuniary damages. On appeal, the Commission found that the Agency's award was not sufficient in light of the length of time that the unlawful failure to accommodate continued and the extent of the harm caused. Complainant was denied reasonable accommodation for more than four years, and stated that the denial exacerbated her depression causing her to start taking antidepressants. The discrimination also resulted in anxiety, increased hair loss, sleep disturbances, and headaches. Complainant indicated that the symptoms required more frequent visits to her physician and therapist, and provided a letter from her physician to corroborate her assertions. The physician noted that Complainant had to be placed on additional medication due to the worsening of her medical conditions. Complainant did experience additional stress from other events which impacted her medical condition. The Commission stated, however, that the additional stress occurred only in the last six months of the period at issue, and both Complainant and her physician cited the Agency's failure to provide accommodation as the reason for the deterioration of Complainant's medical condition. Thus, the Commission concluded that the Agency's failure to accommodate Complainant caused greater harm to Complainant's well-being, and awarded her $100,000 in non-pecuniary compensatory damages. The Commission agreed with the Agency that Complainant failed to provide documentation to establish a nexus between her purported pecuniary losses and the discrimination. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120132400 (February 19, 2014).

 

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Commission Affirms Award of $100,000 in Damages for Sexual Harassment.

 

Following a hearing, an Administrative Judge (AJ) found that the Agency subjected Complainant to sexual harassment, and awarded Complainant, among other things, $100,000 in non-pecuniary compensatory damages. The Agency filed an appeal with regard to the award of damages. The Commission noted that the record included testimony from Complainant, two co-workers, and Complainant's doctor regarding the effects of the harassment. Complainant stated that the harassment adversely affected her health, her sleep, and her attitude, and caused her anxiety, stress, chest pain, shortness of breath, and heart palpitations. Although Complainant had previously been diagnosed with depression and heart disease, the record showed that the discrimination significantly worsened Complainant's symptoms. Complainant's doctor testified that he discussed stressors at work with Complainant and prescribed medication for anxiety and high blood pressure, and Complainant's co-workers confirmed the description of her symptoms. The Commission concluded that the AJ's award was not monstrously excessive and was consistent with awards in cases of involving similar duration and severity. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720130010 (October 31, 2013).

 

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Commission Increases Award for Retaliation.

 

The Agency found that Complainant was subjected to retaliation when her reassignment was canceled, and awarded her $40,000 in non-pecuniary compensatory damages. On appeal, the Commission found that the award was inadequate. While Complainant acknowledged that she experienced health problems prior to the discrimination, she provided documentation indicating that her health worsened after the cancellation of her reassignment. Complainant experienced anxiousness, depression, crying, headaches, insomnia, and high blood pressure. Complainant sought medical treatment and took medication. Complainant's psychiatrist noted that stressors at work negatively affected her blood pressure, and another physician treated Complainant on 25 occasions for job-related stress. Complainant's sister stated that Complainant suffered from severe depression due to the discrimination, and she stopped attending family functions and caring for her home. The Commission noted that a portion of Complainant's emotional harm related to her removal and other claims for which no discrimination was found. The Commission concluded that an award of $65,000 was warranted based upon the severity of the harm suffered and was consistent with awards made in similar cases. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113346 (March 21, 2014).

 

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Commission Increases Award for Retaliation.

 

An AJ awarded Complainant $15,000 in non-pecuniary compensatory damages after finding that the Agency retaliated against him with regard to his performance appraisal. On appeal, the Commission increased the award to $35,000. Complainant stated that he suffered headaches, insomnia, humiliation and marital problems after the retaliation. Complainant's wife and pastor testified as to the humiliation, job stress and depression that Complainant experienced, and Complainant stated that the retaliation affected his relationship with his wife to such a degree that she suggested he quit his job. The Commission found that an award of $35,000 was consistent with prior Commission precedent. Complainant v. Dep't of the Navy, EEOC Appeal No. 0720130020 (June 18, 2014).

Commission Affirmed Award of $30,000 for Discriminatory Non-selection. The Agency issued a final decision finding that Complainant proved that he was discriminated against when he was not selected for one of four Center Director positions, and subsequently awarded him $6,000 in non-pecuniary compensatory damages. On appeal, the Commission found that an award of $30,000 was appropriate given the nature and duration of the harm. Complainant adequately and sufficiently described his symptoms including weight gain, loss of enjoyment of life, and increased blood pressure. In addition, Complainant stated that the discrimination aggravated his existing medical conditions, and affected his relationship with his family. Complainant provided statements from his treating physician. The Commission noted that while Complainant attributed at least a portion of the exacerbation of his conditions to a long commute, it was speculative whether his commute would have been shorter if not for the discriminatory selection. Complainant v. Dep't of Argic., EEOC Appeal No. 0120131896 (May 22, 2014), request for reconsideration denied, EEOC Request No. 0520140443 (February 6, 2015).

 

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Commission Affirmed Award of $20,000 for Discriminatory Non-selection.

 

Complainant brought a successful claim of race and sex discrimination when the Agency did not select him for the position of Prosthetic Representative. Complainant asserted that he was entitled to $76,600 in compensatory damages. The Agency ultimately awarded Complainant $20,000.00 in nonpecuniary damages, and $540.00 in pecuniary damages to cover the cost of future counseling expenses. On appeal, the Commission affirmed both amounts, stressing that all compensatory damages are for harm that was directly or proximately caused by the agency's discriminatory conduct. Complainant stated that he suffered stress, depression, anxiety, headaches, loss of appetite and sleep, loss of enjoyment of life, and marital strain. His evidence consisted of affidavits and testimony from coworkers, his wife, family, and psychologist. Complainant acknowledged that he was diagnosed with depression prior to the Agency's discriminatory act and received treatment for ongoing depression. In addition, Complainant attributed his elevated stress to many factors. The Commission concluded that, taking into account evidence of Complainant's ongoing and apparently worsening depression, $20,000.00 was "reasonable." The Commission also affirmed the $540.00 in pecuniary damages, even though it only partially covered Complainant's counseling costs, because Complainant's ongoing counseling treatment was only partially related to the harm caused by the Agency. Complainant would have received this treatment anyway due to his preexisting condition, and the Agency was only responsible for the harm it inflicted due to its discriminatory acts. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120123309 (July 30, 2014).

 

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Commission Increased Award of Damages for Sexual Harassment.

 

An AJ found that Complainant was subjected to sexual harassment and awarded her $10,000 in non-pecuniary compensatory damages. On appeal, Complainant requested that the Commission award her $150,000 in non-pecuniary damages. The Commission raised the award to $15,000. Complainant testified that she became fearful of encountering the co-worker who was involved in the underlying action, and experienced nightmares. Two family members testified that, following the altercation, Complainant was jittery, had more frequent headaches, and was teary eyed, tired and short tempered. The Commission found that an award of $15,000 was not monstrously excessive considering the AJ's finding that while Complainant experienced anxiety, depression and insomnia as a result of the altercation, a portion of the distress resulted from alleged incidents for which no discrimination was found and on Complainant's removal which was not at issue. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112818 (May 14, 2014).

 

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Commission Increased Damage Award for Reprisal.

 

In a prior decision, the Commission affirmed the Agency's finding of reprisal discrimination with regard to a performance improvement notification (PIN), and ordered the Agency to investigate Complainant's claim for compensatory damages. Complainant requested $350,000 in damages. The Agency ultimately awarded Complainant $2,000 in non-pecuniary damages as well as $1,756.82 for a bonus he would have received had he not been placed on the PIN. On appeal, the Commission affirmed the Agency's award of the bonus, noting that Complainant did not present any evidence to support his claim for a higher amount. The Commission concluded, however, that the amount of damages awarded by the Agency was insufficient. Complainant described the retaliation as "devastating." The Commission noted that having the PIN in his file for three years would likely haunt Complainant and would cause the symptoms he described including anxiety, depression, and marital strain. The Commission stated that while Complainant did not provide affidavits or medical records concerning the harm he incurred, evidence from a medical provider and expert testimony were not mandatory prerequisites for recovery of compensatory damages. The Commission concluded that an award of $8,000 was appropriate in this case. Complainant v. Gen. Serv. Admin., EEOC Appeal No. 0120120310 (May 15, 2014).

 

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Commission Increased Award of Damages for Disability Discrimination and Reprisal.

 

Complainant successfully brought discrimination claims on the bases of physical disability and reprisal when the Agency did not provide her with work within her medical restrictions or reasonable accommodations. For over one year, Complainant did not receive any work assignments, and the Agency's only requirement of her was to sit in a chair, except for breaks, in an enclosed area on the workroom floor, visible to fellow employees. The AJ awarded Complainant $2,500 in non-pecuniary damages for emotional harm based on Complainant's testimony regarding her humiliation. In determining this amount, the AJ noted that Complainant had a preexisting stress-related condition and had been regularly seeing a psychiatrist well before the Agency's discriminatory actions began. In addition, Complainant did not provide evidence of her emotional harm beyond her own testimony. Complainant appealed and the Commission increased the award to $7,500. Although Complainant submitted additional evidence, the Commission limited itself to the existing record because Complainant failed to show that the evidence was not reasonably available prior to or during the hearing. Complainant, however, testified that the Agency's actions caused her humiliation and distress on a daily basis, and the AJ found that the Agency's discriminatory conduct continued for 17 months. The Commission stated that it was reasonable to infer that Complainant would suffer humiliation and emotional distress based on the "inherently degrading and publicly humiliating nature" of being required to simply sit in a chair in an enclosed area on the workroom floor, visible to other employees, without being given any assignments. The Commission addressed Complainant's preexisting condition by pointing to her testimony that she suffered additional stress than she otherwise would have felt due to the Agency's actions. Thus, the Commission found that an award of $7,500 was appropriate. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111711 (July 30, 2014).

 

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Commission Affirmed $6,000 Damage Award for Sexual Harassment.

 

The Commission previously found that Complainant was subjected to sexual harassment by a co-worker for a period of five to six months, and ordered the Agency to investigate her claim for damages. The Agency awarded Complainant $6,000 in non-pecuniary damages and the Commission affirmed the award on appeal. The Commission noted that much of Complainant's claimed pain and suffering stemmed from other incidents such as a reassignment and matters related to her retirement which were not part of the discrimination finding. While Complainant did not allege that the co-worker threatened her, she did say that she was fearful of him, and the Commission found that the co-worker's actions could fairly be perceived as intimidating. Further, the Commission stated that painful memories of sexual harassment, no matter the trigger, are proximately related to the discrimination and compensable. The Commission credited Complainant's statement that she experienced anxiety attacks, felt humiliated and betrayed, was fearful, and experienced nausea, but noted that Complainant did not submit any medical documentation to corroborate her claim that she saw healthcare professionals as a result of the harassment. The Commission also agreed with the Agency that most of the claimed medical expenses were not adequately documented. The Commission did, however, award Complainant $382.64 for past medical expenses for visits to her physician during the time of the alleged harassment, as well as $312.15 in costs incurred in prosecuting her EEO complaint. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141347 (July 24, 2014).

 

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Commission Affirmed $5,000 Damage Award for Retaliation. 

 

An AJ found that the Agency retaliated against Complainant, and awarded him $5,000 in compensatory damages. On appeal, the Commission found that the award was proper. Complainant presented evidence to show that following his receipt of the bill the symptoms of his rheumatoid arthritis became worse, causing him fatigue, stiffness and joint pain. In addition, the record showed that Complainant experienced depressed mood, anger, stress, difficulty sleeping and loss of interest in activities. While Complainant established that his arthritis was aggravated by the retaliation, the medical evidence showed that the events surrounding his termination, for which no discrimination was found, were contributing factors. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120536 (August 18, 2014).

 

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Commission Affirmed $5,000 Damage Award for Sex Discrimination and Retaliation.

 

An AJ found that the Agency discriminated against Complainant on the bases of sex and prior EEO activity when it gave him a "fully successful" performance rating and did not give him a time off award, but found no discrimination with regard to a work assignment or hostile work environment. As relief, the AJ awarded Complainant, among other things, $5,000 in non-pecuniary compensatory damages. On appeal, Complainant challenged only the award of damages. The Commission noted that Complainant was only entitled to damages resulting from the discriminatory performance appraisal and denial of an award. Complainant stated that he was upset about his appraisal because he felt that he performed as well as his co-workers and was the only employee who did not receive an award. Complainant also noted that he stopped working on weekends because he felt he was not appreciated. The Commission concluded that the Agency's award of $5,000 was adequate considering the severity of the harm suffered. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121222 (March 20, 2014).

 

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Commission Affirmed $4,000 Damage Award for Hostile Work Environment. An AJ previously found that Complainant was subjected to a hostile work environment based on her race when her Supervisor regularly yelled at her and invaded her space, counseled her regarding allegedly unnecessary credit card use, and intimidated her. Complainant appealed the AJ's award of $4,000 in compensatory damages. The Commission denied Complainant's appeal based on the AJ's analysis of the facts and cited past claims with similar fact patterns and similar damages awards. The AJ noted the stress Complainant was under during the hostile work environment, but pointed out that Complainant provided very little detail regarding the harm suffered due to the harassment during the hearing. Personal and witness testimony or medical records would all have been acceptable. The Commission found that the AJ's rationale was based on substantial evidence. Even though Complainant stated that she had medical evidence and documentation to support her assertions, she did not provide them on appeal. Finally, while Complainant stated that she was further harmed by the EEO complaint process, the Commission noted that compensatory damages are not available for stress from pursuing an EEO complaint. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140224 (May 30, 2014).

 

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Commission Affirmed $3,500 Damage Award for Discriminatory Termination.

 

An AJ granted Complainant's motion for sanctions and found that the Agency discriminated against Complainant when it terminated her from her position. The AJ awarded Complainant $3,500 in nonpecuniary, compensatory damages. On appeal, the Commission found that the AJ sufficiently considered the circumstances of the claim in comparison to similar claims and awarded a fair amount. Although Complainant submitted affidavits from her husband, daughter, sister, and friend indicating her stress and anxiety, much of the stress described related to an alleged hostile work environment for which there was no finding of discrimination. The AJ took into account that: the termination caused Complainant stress, anxiety and depression; her finances were unstable; she was taking care of two special needs children; she gained weight, felt humiliated, and embarrassed; and she began to isolate herself. Complainant was terminated from a temporary appointment and she did not document any financial difficulties or medical treatment for stress or depression. Upon appeal, no new or additional evidence was submitted that would have indicated a greater emotional harm than the AJ originally considered. Complainant v. Dep't of Commerce, EEOC Appeal No. 0120122955 (January 29, 2014).

 

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Complainant Entitled to $3,000 Damage Award for Disability Discrimination. The Commission previously ordered the Agency to investigate Complainant's claim for compensatory damages resulting from the disclosure of her medical condition in violation of the Rehabilitation Act. The Agency subsequently issued a decision finding that Complainant was not entitled to damages. On appeal, the Commission found that Complainant did, in fact, present evidence to support her claim of non-pecuniary damages. Complainant stated that her pre-existing conditions were exacerbated, and she isolated herself from family and friends. She experienced sleeplessness, anxiety, stress, depression, humiliation, shame, loss of self esteem, and weight fluctuations. She noted that, after her diagnosis was revealed, she suffered nausea and stomach pain for several weeks, and tried to avoid contact with her co-workers. The Commission concluded that Complainant was entitled to an award of $3,000 in non-pecuniary damages. Complainant v. Gen. Serv. Admin., EEOC Appeal No. 0120110397 (July 8, 2014).

 

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Commission Affirmed $250.00 Damage Award in Reprisal Claim.

 

The Commission previously found that Complainant was discriminated against based on reprisal when an Acting Supervisor openly discussed with Co-workers that Complainant had filed an EEO complaint. Complainant requested $289,000 for non-pecuniary losses as well as damages for past pecuniary losses. Following a supplemental investigation, the Agency awarded Complainant $250.00 for non-pecuniary losses and declined to award pecuniary damages. On appeal, the Commission noted that an award of non-pecuniary compensatory damages should reflect the extent to which the Agency's discriminatory action directly or proximately caused the harm as well as the extent to which other factors also caused the harm. It is the complainant's burden to provide objective evidence in support of the claim and proof linking the damages to the alleged discrimination. Here, the Commission found that $250.00 was reasonable given the fact that there was limited evidence provided by Complainant to establish harm suffered by the Supervisor's comments. Complainant attributed the harm to incidents for which no discrimination was found or which occurred after the Supervisor's comment. Complainant did not present any documentary evidence to show that she suffered either short or long term medical problems as a result of the reprisal. The Commission also found that Complainant was not entitled to pecuniary damages for past therapy sessions, and her emergency room visit, as the therapy took place before the discriminatory act and there was no evidence that the emergency room visit was related to the discrimination. As a result, the Commission affirmed the Agency's final decision. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133316 (September 4, 2014).

 

 

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Dismissals

(See also by category, this issue.-Ed.)

 

Dismissal of Complaint for Failing to Raise Issue with the EEO Counselor and for Raising the Matter in a Grievance Improper.

 

Complainant, a Registered Nurse, brought a claim of discrimination and hostile work environment against the Agency, alleging that her supervisor passed her over by promoting a less experienced white nurse to a supervisory position, falsely accused her of violating policies, and routinely disciplined her for minor infractions. The Agency dismissed the complaint on two procedural grounds. First, the Agency found that Complainant raised the proposed removal with the EEO Counselor but did not receive counseling regarding her hostile work environment claim. The Agency also asserted that Complainant's union brought a formal grievance on her behalf on the same grounds. The Commission found that both bases for dismissal lacked merit. First, the Commission noted that the claim of hostile work environment was related to the proposed removal and concerned allegations of harassment. In addition, the Commission noted that it is the Agency's burden to show that the collective bargaining agreement includes discrimination claims within its grievance process, and that Complainant elected to pursue a grievance in order to issue a dismissal on this ground. The record shows that even though Complainant consulted her union representative, Complainant only sought a resolution through the Agency's EEO process. While the union independently initiated a grievance against the Agency based on Complainant's experience, the record indicated that the Agency was on notice that she did not authorize this action. Most notably, the union president and its attorney provided a memorandum stating that Complainant did not request the grievance and the union filed the grievance "for its own purposes." The Commission therefore reversed and remanded Complainant's claim. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141346 (June 27, 2014).

 

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Complaint Properly Dismissed for Failure to Cooperate.

 

Complainant filed a formal EEO complaint in March 2013, alleging that the Agency discriminated against him when it issued him a notice of proposed removal and subjected him to a hostile work environment. The Agency initially accepted the complaint and began an investigation. After unsuccessfully attempting to get an affidavit from Complainant, however, the Agency notified Complainant that he risked dismissal of his complaint if he did not provide a date when he could be interviewed for his affidavit. Complainant replied that he was invoking his "Fifth Amendment right not to give a statement." The Agency then dismissed the complaint for failure to cooperate. On appeal, the Commission affirmed the dismissal, finding that Complainant was clearly refusing to be interviewed or to provide an affidavit. In addition, his response provided sufficient evidence to support a conclusion that he purposely engaged in contumacious conduct. Complainant did not provide specific dates of the incidents supporting his hostile work environment claim, and there was insufficient information in the record to have permitted the Agency to continue the investigation without Complainant's affidavit. Complainant v. Dep't of Energy, EEOC Appeal No. 0120140889 (June 10, 2014), request for reconsideration denied, EEOC Request No. 0520140466 (December 24, 2014).

 

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