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Stating a Claim
(In the following cases, the Commission found complainants' claims to be cognizable. -Ed.)
King v. Dep't of the Navy, EEOC Appeal No. 0120130101 (March 20, 2013) (the Agency improperly separated out Complainant's claim regarding a performance improvement plan (PIP) and dismissed that claim, as well as a claim of harassment for failure to state a claim. Complainant alleged a series of events which allegedly occurred for nearly one year, and clearly stated that the PIP and the actions surrounding the PIP were provided in support of her claim of hostile work environment. Further, while the Agency stated that Complainant had not engaged in protected activity, Complainant asserted that the Supervisor targeted her because of her previous contact with the EEO Office).
Williams v. U.S. Postal Serv., EEOC Appeal No. 0120130290 (March 7, 2013) (the Agency incorrectly concluded that the alleged harassment was related to Complainant's Family and Medical Leave Act (FMLA) approved condition and was within the jurisdiction of the U.S. Department of Labor. A fair reading of the complaint and EEO counseling report indicated that Complainant asserted that Agency managers harassed her by repeatedly asking for information about her medical condition, discussed her condition with other employees, did not communicate with her, forced her to take a position with split days off, required her to work on her non-scheduled day, denied her sick leave requests, and did not take action against a co-worker who made a racist remark).
Salazar v. U.S. Postal Serv., EEOC Appeal No. 0120130031 (February 22, 2013) (Complainant's claim that the Agency revealed his personal medical information to co-workers and told them he had "mental issues" stated a viable claim. The Commission's regulations implementing the Rehabilitation Act provide for the confidentiality of medical records, and documentation or information of an individual's diagnosis is without question medical information that must be treated as confidential except in certain circumstances. Therefore, Complainant's allegation of unlawful medical disclosure must be investigated before a decision can be made on the merits of the claim).
Day v. U.S. Postal Serv., EEOC Appeal No. 0120122376 (February 19, 2013) (Complainant's claim that the Agency dismissed her from new hire orientation and withdrew a job offer stated a viable claim of sex discrimination. Complaints of discrimination based on transgender status should be processed under Title VII and through the federal sector EEO process as claims of sex discrimination. Thus, Complainant's claim that she was discriminated against because of her transgender status stated a claim under Title VII).
Horowitz v. Dep't of Health & Human Serv., EEOC Appeal No. 0120114091 (February 5, 2013) (the Agency improperly dismissed Complainant's claim of discrimination for failure to state a claim on the grounds that he was not an Agency employee. Complainant stated that he was supervised on a daily basis by Agency managers, and that there was no difference between direct-hire and contractor anesthesiologists within the department. Further, the Agency provided Complainant with his assignments, conducted weekly case conferences, set the schedule, verified time sheets, and provided him with equipment and supplies. Complainant was paid on an hourly basis and worked for the Agency for nearly four years. While the Agency did not pay taxes for Complainant or provide him with benefits, the record showed that the Agency had sufficient control over Complainant's position to qualify as his employer or joint employer for purposes of the EEO complaint process); See also Lee v. Dep't of the Army, EEOC Appeal No. 0120112643 (January 24, 2013) (the Agency improperly dismissed Complainant's claim of discrimination on the grounds that he was not an Agency employee. Complainant was hired under a contract with a private contractor, and the Agency did not provide him with the materials to perform his job or any leave or benefits. The Agency, however, directly supervised Complainant, and controlled his work hours, duty responsibilities and leave requests; Complainant's position did not require a high level of skill or expertise; his relationship with the Agency lasted approximately one year; he was paid at an hourly rate; and the Agency had unfettered control over the decision to terminate Complainant. Thus, the Agency exercised sufficient control over Complainant's position to be rendered a joint employer).
Johnson v. U.S. Postal Serv., EEOC Appeal No. 0120113693 (February 7, 2013) (Complainant's allegation that the Agency discriminated against her when it did not provide her with continuation of pay, overcharged her for health insurance, and cancelled her life insurance stated a viable claim. Contrary to the Agency's assertions, the matters were not related to Complainant's OWCP Claim, and the alleged failure to provide Complainant with continuation of pay was an Agency action rather than a matter for the Department of Labor. In addition, the allegations regarding insurance related to an alleged failure by the Agency's Human Resources Office).
Muschler v. Envtl. Prot. Agency, EEOC Appeal No. 0120123476 (February 1, 2013) (Complainant's allegation that he was subjected to an investigation by the Agency's Inspector General stated a viable claim of retaliation. The action could dissuade a reasonable employee from making or supporting a charge of discrimination, and, if proven true, could have a chilling effect on EEO participation).
Rolfing v. Dep't of Health & Human Serv., EEOC Appeal No. 0120123230 (January 24, 2013) (Complainant's allegation that the Agency retaliated against her when it changed her assignment stated a viable claim of retaliation. Complainant stated that, following the implementation of a settlement in her prior EEO complaint, the Agency changed her performance expectations so that she would be expected to work in a different area, and such an action was reasonably likely to deter Complainant or others from engaging in protected activity).
Quintero v. Dep't of the Air Force, EEOC Appeal No. 0120123375 (January 24, 2013), request for reconsideration denied, EEOC Request No. 0520130309 (July 31, 2013) (Complainant's claim that the Agency discriminated against him on the basis of his disability when it denied him overtime stated a viable claim. The Agency's assertion that Complainant's injury did not warrant coverage under the Rehabilitation Act addressed the merits of the claim without a proper investigation and was irrelevant to the procedural issue of whether he stated a claim).
Sandifer v. Dep't of the Navy, EEOC Appeal No. 0120123349 (January 18, 2013) (Complainant's claim that her Supervisor and Agency managers intentionally delayed processing her application for disability retirement stated a viable claim of discrimination. Complainant clearly alleged a financial injury as well as a personal deprivation in the Agency's delay).
(In the following cases, the Commission affirmed the Agency's determination that the Complainant failed to state a claim. -Ed.)
Hooker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130289 (March 8, 2013), request for reconsideration denied, EEOC Request No. 0520130332 (July 26, 2013) (the Agency properly dismissed Complainant's complaint alleging that the Agency violated the Drivers Privacy Protection Act when it accessed his driver's license information. The Act provides the exclusive statutory framework governing the disclosure of personal information contained in state motor records, and jurisdiction rests exclusively in the U.S. District Courts).
Garvin v. U.S. Postal Serv., EEOC Appeal No. 0120130280 (March 8, 2013) (Complainant's allegation concerning problems with the delivery of her mail and the location of her mail box failed to state a claim within the meaning of the EEOC's regulations. Complainant last worked for the Agency approximately 10 years previously, and the matter related to her status as a customer of the Agency not an employee).
Harris v. U.S. Postal Serv., EEOC Appeal No. 0120130222 (February 25, 2013) (Complainant's claim that the Agency discriminated against him when it failed to enforce a grievance arbitration decision failed to state a claim pursuant to the EEOC's regulations. The Commission has consistently held that an employee cannot use the EEO complaint process to lodge a collateral attack on another forum's proceeding, and Complainant must seek enforcement of the arbitration decision within the negotiated grievance process).
Akanbi v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121972 (February 21, 2013) (the Agency properly dismissed Complainant's complaint for failure to state a claim on the grounds that Complainant was not an Agency employee or applicant for employment. Complainant was a senior nursing student at Loyola University. The agreement between the Agency and the University provided that the University would select trainees for the program, evaluate their performance and conduct. While the Agency provided supervision for the trainees and had the power to dismiss them, it did not provide Complainant with any monetary compensation, leave, or benefits, and Complainant did not receive any such compensation from the University. Therefore, Complainant failed to show that he was an employee of the Agency, and the Agency's intent was to train him as a student. Complainant did not indicate that he intended to create an employment relationship); see also, Hill-Keyes v. Soc. Sec. Admin., EEOC Appeal No. 0120123560 (February 19, 2013) (the Agency did not exercise sufficient control over Complainant's job to qualify as her employer for purposes of the EEO complaint process. Complainant, a psychologist worked as a Medical Consultant on Agency premises, and the Agency provided her with equipment. She worked for the Agency for a period of approximately seven years doing work central to the Agency's mission, and the Agency terminated the Blanket Purchase Agreement under which she was working. Nevertheless, Complainant worked independently, and the Agency did not routinely review her work or complete performance appraisals. Complainant set her own hours, and could have outside employment. Complainant was paid based upon the number of reports she submitted, and was not provided with leave or benefits); Garrett v. Tenn. Valley Auth., EEOC Appeal No. 0120123477 (February 19, 2013) (the Agency properly dismissed the complaint for failure to state a claim on the grounds that Complainant was not an employee or applicant for employment. The record showed that Complainant worked as a government contractor and the Agency did not control the means and manner of his daily work performance and did directly supervise his work. Complainant was assigned to the Agency as a "task managed" employee whereby he was hired, supervised, and directed by the contractor, and his work was not an integral part of the Agency's business. The contractor provided most of Complainant's initial training, and made the decision to suspend and subsequently terminate Complainant. The contractor was also responsible for Complainant's work schedule, salary, leave, benefits and tax documentation. Thus, the Agency did not exercise sufficient control over Complainant's position to establish a de facto employment relationship).
Garrett v. U.S. Postal Serv., EEOC Appeal No. 0120123384 (January 25, 2013) (the Agency properly dismissed Complainant's claim that she was discriminated against when she was subjected to a fact finding interview for failure to state a claim. Complainant was not disciplined as a result of the discussion and the discussion was not itself a disciplinary action).
Hall v. Dep't of Homeland Sec., EEOC Appeal No. 0120121561 (January 9, 2013) (Complainant's claim that the Agency discriminated against him on the bases of his race, sex and color when his Supervisor verbally counseled him and placed him on a list of "problem employees" did not state a viable claim under Title VII. Complainant did not allege that any adverse action was taken as a result of the verbal counseling, and provided no explanation concerning the nature of the purported list or how he was negatively impacted by it).
Summary Judgment
Summary Judgment Proper. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of her disability when it denied her request for reasonable accommodation. Following an investigation, Complainant requested a hearing before an AJ. The Agency submitted a motion for a decision without a hearing, and set forth a statement of facts, none of which were disputed by Complainant. The AJ granted the motion, over Complainant's objections, and issued a decision finding no discrimination. On appeal, the Commission found that the AJ properly issued a decision on summary judgment. The Commission determined that there were no disputed issues of material fact. The Commission was not persuaded by Complainant's argument that she did not receive notice of a proposed decision without a hearing or statement of undisputed facts. In this case, the AJ did not issue a sue sponte motion for summary judgment. Instead, the Agency set forth a statement of material facts it believed failed to raise any genuine issues, and Complainant did not dispute the facts as they pertained to her disability and restrictions. Further, the Commission found no evidence in the record to controvert the Agency's statement. According to the record, Complainant requested reasonable accommodation, and detailed a vast list of restrictions on her ability to walk at a distance, lift and carry objects heavier than five pounds. She also was unable to perform fine manipulation or key in codes for more than two hours daily. Complainant's position required her to key in zip code numbers, a function she was unable to perform 75 percent of her eight-hour day. The Agency submitted data showing a declining volume of mail, and a surplus of workers. It was unable to locate a vacant, unfunded position for Complainant. The Commission noted that Complainant's restrictions were so severe that she could not perform the duties of any of the vacant positions the Agency had available. Thus, the Commission affirmed the AJ's finding of no discrimination. Fain v. U.S. Postal Serv., EEOC Appeal No. 0120123487 (February 7, 2013).
Summary Judgment Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race, sex (sexual orientation), disability, and prior EEO activity when he was harassed when he returned to work following a leave of absence. Following an investigation, Complainant requested a hearing before an AJ. The AJ issued a decision on summary judgment. The AJ initially dismissed the basis of sexual orientation, but found the basis of sex appropriate to address Complainant's allegations concerning stereotypically gay gestures and references to Complainant as "flamboyant." The AJ ultimately stated that Complainant was not substantially limited in a major life activity, and did not establish a causal connection between his prior EEO activity and the actions at issue. Finally, the AJ concluded that Complainant failed to allege actions that rose to the level of a hostile work environment, or show that the actions were discriminatory.
On appeal, the Commission found that the AJ's issuance of a decision on summary judgment was improper. The Commission initially determined that Complainant's allegations stated a viable claim of sex discrimination and Complainant's characterization of the basis as sexual orientation did not defeat the otherwise valid sex discrimination claim. Complainant alleged that he was mocked as effeminate and told he had "flamboyant" mannerisms which were unsuited to the work place. These allegations were sufficient to state a claim of discrimination for failure to match gender-conforming behavior and, thus, stated a claim of sex discrimination. The record revealed that there were material facts in dispute regarding Complainant's allegation of hostile work environment harassment based on sex, such as whether a Supervisor used terms such as "honey," "sweetie," or "baby," or made "overtly gay" gestures. In addition, there was a dispute as to whether another Supervisor referred to Complainant as "flamboyant" to mock him based upon his perceived sexual orientation. The Commission noted that the second Supervisor had passed away since Complainant filed his complaint making this the type of situation in which a hearing was required to judge the credibility of available witnesses and make findings regarding the material issues in contention. The Commission also found that there were genuine issues of material fact regarding claims concerning Complainant's working conditions, including facts that went to the motivation based on race and reprisal. The Commission concluded that the AJ could not have reached a finding of no discrimination in this case except by resolving significant conflicting evidence in the Agency's favor, which was inappropriate in a grant of the Agency's motion for summary judgment. Therefore, the complaint was remanded for an administrative hearing. Baker v. Soc. Sec. Admin., EEOC Appeal No. 0120110008 (January 11, 2013).
