EEOC How To File A Claim

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Timeliness

Extension of Time for Contacting EEO Counselor Warranted. Complainant initially contacted an EEO Counselor on April 19, 2011, alleging that the Agency discriminated against him on the bases of his race, color and disability. The Agency acknowledged Complainant's EEO contact and asked him to complete pre-complaint counseling forms. The Agency indicated that Complainant's failure to complete the forms within 10 days could result in the closing of his complaint for failure to proceed. Complainant e-mailed the Agency on May 1, 2011, stating that he received the forms on April 21, 2012, but did not have sufficient time to complete them due to work obligations and pending leave. Complainant indicated that he intended to continue to pursue his allegations and requested an extension of time in which to complete the required forms. There is no indication in the record that the Agency responded to Complainant's request. Complainant made an additional request for an extension, but the Agency advised him that his request for counseling had been closed. The Agency noted that Complainant should submit a written allegation or the completed forms if he believed it should reconsider the decision to cancel his counseling request. Complainant contacted the Agency several times thereafter, but there was no indication in the record that the Agency ever replied to Complainant's requests for an extension. Complainant submitted the forms, and the Agency ultimately dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found sufficient evidence in the record to warrant an extension of the time limit for initiating EEO contact. The Commission noted that the Agency failed to respond to any of Complainant's repeated requests to extend the counseling period. Therefore, the dismissal was improper and the complaint was remanded for further processing. Michael v. U.S. Postal Serv., EEOC Appeal No. 0120130329 (March 22, 2013).

EEO Counselor Contact Deemed Timely. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it terminated her from her position in November 2011. The Agency dismissed the complaint, stating that Complainant's contact with the EEO Counselor in August 2012 was beyond the 45-day limitation period. On appeal, the Commission found that the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness. Complainant, on appeal, stated that she initially contacted EEO personnel in November 2011, and was told that she could pursue the matter first with the Office of Professional Responsibility Board (OPRB) then subsequently file an EEO complaint. Complainant noted that an EEO Specialist contacted her in August 2012, and she told the Specialist that she had filed a claim with OPRB first on the advice of EEO personnel. The Commission noted that the Agency failed to respond to Complainant's assertion that she was provided with inaccurate information when she initially contacted EEO staff in November 2011. Thus, the matter was remanded for processing. Gaines v. Dep't of Homeland Sec., EEOC Appeal No. 0120130405 (March 19, 2013).

EEO Counselor Contact Timely. Complainant, an applicant for employment with the Agency, contacted an EEO Counselor on November 17, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against him when it rescinded a job offer in August 2011. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that the Agency improperly dismissed the complaint. The record did not clearly support the Agency's claim that Complainant reasonably suspected discrimination on August 5, 2011. Complainant informed the Counselor that he believed he was discriminated against on the basis of a perceived disability due to a statement made by a former co-worker during the background investigation. Complainant stated that he learned of the statement on October 11, 2011, and had no prior knowledge of a perceived disability. Complainant denied telling the Agency that he suspected discrimination in August. The record contained evidence of an e-mail exchange between Complainant and the Counselor in which Complainant indicated that he learned of the discrimination on October 11, 2011. Thus, the Commission determined that Complainant timely contacted the EEO Counselor upon learning of the alleged discrimination. Michel v. Dep't of Justice, EEOC Appeal No. 0120123297 (January 18, 2013).

Dismissal of Complaint for Failure to Timely Contact EEO Counselor Improper. Complainant contacted an EEO Counselor on April 11, 2011, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it issued her a Notice of Removal in August 2010. Complainant stated that, during a March 2011 arbitration hearing, she learned for the first time that comparable employees did not receive similar Notices. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that the Agency's dismissal was improper. The record contained no evidence rebutting Complainant's assertion that she first learned that similarly situated co-workers received less harsh discipline for the same infraction in March 2011. In fact, Complainant's assertion was corroborated by an Agency Supervisor. The Agency failed to present any evidence to support its assertion that Complainant should have developed a reasonable suspicion of discrimination at an earlier date. Thus, the Agency failed to meet its burden of obtaining sufficient information to support a reasoned determination as to timeliness. Schroeder v. U.S. Postal Serv., EEOC Appeal No. 0120113585 (January 11, 2013).

Complaint Improperly Dismissed as Untimely. Complainant contacted an EEO Counselor in May 2010, alleging that the Agency discriminated against him when it subjected him to a hostile work environment. On June 8, 2010, the EEO Counselor sent Complainant an e-mail "Notice of Rights-Extension of Time," asking Complainant to agree to a 60-day extension of time for informal processing. The e-mail stated that Complainant had five days to respond to the request. The EEO Counselor then sent Complainant a Notice of Right to File a Formal Complaint on June 10. Complainant responded to the EEO Counselor on June 12, 2010, questioning the two Notices, and signed an Extension of Time form on that date. Complainant subsequently amended his complaint to include the issue of his termination, and filed a formal EEO complaint on August 22, 2012. The Agency dismissed the complaint as untimely. On appeal, the Commission stated that the Agency provided unclear information to Complainant, and Complainant reasonably believed that the informal counseling period had been extended. Complainant responded to the request for an extension of time within the five day period specified by the EEO Counselor, and agreed to extend the informal processing. The record was devoid of evidence that the Agency communicated to Complainant that it would not extend the counseling period. Instead, the record suggested that the Agency was continuing to process the complaint at the informal stage. The EEO Counselor's report indicated that an extension request was granted on June 12, 2010, and that the Counselor was still processing the matter at the informal level subsequent to the Notice being issued on June 10. Therefore, the Commission stated that the Agency should have issued Complainant a valid Notice of Right to File subsequent to the extension of the counseling period. The Commission rejected the Agency's assertion that the doctrine of laches should bar Complainant's claim, stating that the Agency's actions contributed to Complainant's belief that it was continuing to process the complaint at the informal level. Thus, the Commission concluded that the dismissal was improper. Williams v. Dep't of Def., EEOC Appeal No. 0120130153 (February 11, 2013).

Formal Complaint Timely Filed. Complainant filed a formal complaint on June 9, 2011, alleging that the Agency subjected her to discrimination on the basis of her disability and in reprisal for prior EEO activity. The Agency dismissed the complaint as untimely, stating that Complainant received the notice of right to file a formal complaint by e-mail on May 16, 2011. On appeal, the Commission found that the dismissal was improper. While the e-mail expressly requested that Complainant confirm receipt of the notice, the Agency did not submit any evidence showing that Complainant received the notice on May 16, and Complainant did not acknowledge receipt of the e-mail on that date. Thus, the Commission concluded that the Agency failed to meet its burden of obtaining sufficient information to support a determination as to timeliness, and the Commission was not persuaded that the complaint was not timely filed. Miller v. Dep't of the Army, EEOC Appeal Nol. 0120113549 (January 31, 2013).

Extension of Time for Filing Formal Complaint Warranted. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it subjected him to two drug tests, placed him on emergency off-duty non-pay status, and revealed his medical information to his co-workers. The Agency dismissed the complaint as untimely. The record showed that Complainant received the notice of right to file a formal complaint on May 23, 2012, and the Agency received the formal complaint in an envelope without a postmark on June 15, 2012. Complainant was assumed to have filed his complaint within five days of the Agency's receipt, which was eight days beyond the applicable 15-day limitation period. On appeal, Complainant presented a letter from his psychologist indicating that, during the period in question, he was diagnosed with a major depressive disorder and anxiety and was taking a number of different medications. The psychologist stated that Complainant's symptoms included significant concentration and memory deficits which would have "severely limited his ability" to navigate the EEO process. Thus, the Commission found that an extension of the time limit for filing a complaint was warranted in this case. Hambrick v. U.S. Postal Serv., EEOC Appeal No. 0120123246 (January 15, 2013).

Formal Complaint Timely Filed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it failed to reasonably accommodate her and issued her a notice of separation. The Agency dismissed the complaint as untimely. On appeal, the Commission found that the Agency's dismissal was improper. According to the record, Complainant received the notice of right to file a formal complaint on June 4, 2012. Complainant dated her complaint on June 18, 2012, and the complaint was mailed to the Agency by Priority Mail in an envelope containing a mailing label issued by the Postal Service on that date. The Agency asserted that Complainant did not actually mail her complaint until June 27, 2012, as evidenced by its Track and Confirm system which indicated that the envelope was not "Enroute/processed" until that date. The Commission found, however, that the Track and Confirm system was not adequate proof that Complainant did not mail the envelope containing the complaint on June 18, the date she purchased the label. The Commission noted that there were many potential reasons for the delay and no affirmative proof that Complainant delayed mailing her complaint. Sullivan v. U.S. Postal Serv., EEOC Appeal No. 0120123247 (January 15, 2013).

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Retaliation

Retaliation Found with Regard to Performance Appraisal. Complainant worked for the Agency as an Intern or trainee, Human Resources Specialist, and had engaged in prior EEO activity of which her managers were aware. In 2009, Complainant's Supervisor rated her as Level 4 "Exceeds Expectations" on her annual performance appraisal. The Chief of Staff, however, returned the appraisal to the Supervisor, stating that he wanted further justification for the high score. Complainant's Supervisor believed that Complainant's rating was reduced because of her prior EEO activity. Ultimately, the Supervisor reduced the rating because the Chief would not move the appraisal along otherwise. Complainant filed a formal EEO complaint alleging that the Agency retaliated against her with regard to the appraisal. An AJ ultimately granted the Agency's motion for summary judgment and issued a decision finding no discrimination.

On appeal, the Commission initially found that the AJ's issuance of a decision without a hearing was appropriate because there were no genuine issues of material fact. The Commission found, however, that the AJ erred in finding in favor of the Agency, as the record showed that Complainant was in fact subjected to retaliation. The Commission stated that the AJ erred in finding that Complainant did not establish a prima facie case because she did not show that she was treated differently than similarly situated comparative employees. The Commission noted that was not the proper analysis for a claim of retaliation, and the AJ, instead, should have examined how Complainant was adversely treated and whether or not the treatment was based on prior protected activity. In this case, all management officials were aware that Complainant engaged in protected activity, and she was subjected to adverse treatment when the Chief of Staff ordered the Supervisor to lower her performance rating. The evidence of record also established that there was a nexus between the protected activity and the lower rating. The claim for damages in Complainant's prior complaint was pending at the time the Chief of Staff ordered Complainant's appraisal to be lowered. Further, the testimony of Complainant's Supervisor established that the Chief was motivated by reprisal. The Supervisor described an ongoing bias from upper management against Complainant since she engaged in prior EEO activity.

While the Chief stated that he returned the appraisal for revision because it was poorly written, the score was not justified, and the rating was too high given Complainant's few years of service, the Commission found the reasons to be pretextual. The record showed that three of the five appraisals returned by the Chief were for employees who had engaged in protected activity. In addition, the Supervisor stated that she was the only person who observed Complainant's performance on a daily basis, and believed Complainant deserved a Level 4 rating, describing her work as "well above" what was required. The Supervisor also noted that the Chief never discussed Complainant's performance with her. The Commission noted that the Agency conducted a fact finding conference and had the opportunity to question the Supervisor about her statements but did not do so. Thus, a hearing was not necessary to further examine the Supervisor, and the Commission concluded that the Agency retaliated against Complainant. The Agency was ordered, among other things, to change Complainant's performance appraisal, and investigate her claim for damages. Coffee v. Dep't of the Army, EEOC Appeal No. 0120120117 (March 15, 2013).

Retaliation Found. Complainant, an Education Technician, filed a formal EEO complaint alleging, among other things, that the Agency retaliated against her when her overall annual performance rating was reduced from "outstanding" to "exceeds," and she was refused entrance to the facility prior to her start time. Following a hearing, the AJ found discrimination with regard to those matters, and the Commission affirmed the findings on appeal. Complainant's first and second level supervisors, who were the rater and reviewer for her appraisal, were aware that she had filed a prior EEO complaint. The Agency asserted that Complainant's ratings had been inflated and that she was "borderline" between an overall rating of outstanding and exceeds. In addition, the Agency stated that Complainant was denied access to the facility on the days in question because it was Agency policy that no one was allowed to enter before their start time.

The AJ found that the Agency's explanations for its actions were a pretext to mask reprisal discrimination. Complainant received an overall rating of "outstanding" in the previous year based upon the same ratings on six job elements. Complainant also received "outstanding" ratings in the two years prior. All three appraisals had the same rating and reviewing officials. The Agency admitted that Complainant's performance did not decline, and her second level Supervisor acknowledged that her prior appraisal rating of "outstanding" was deserved. The AJ found that the Agency's explanation that the rating was lowered because the first level Supervisor inflated his ratings was not credible. The responsible officials sought advice from Human Resources on what overall rating to give Complainant, but did not do this for other employees. With regard to Complainant's entry into the facility, the AJ noted that Complainant and her supervisor testified that another employee was allowed admittance prior to his start time. The Commission rejected the Agency's assertion that the matters did not constitute adverse actions. Complainant testified that she could have received a monetary or time off award if she had gotten an "outstanding" rating. Further, the Commission noted that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation.

The Agency noted that management feared that Complainant would file an EEO complaint if she did not receive an overall "outstanding" rating, and, therefore, discussed the matter with Human Resources. The AJ expressed concern that Complainant's first and second level supervisors would discuss Complainant's EEO complainant and potential to file another while completing her performance appraisal. Further, the Commission noted that the two employees cited by the Agency as having their overall ratings decreased received ratings of "exceeds" in three of five elements, and four of five elements, respectively. Thus, there was no discretion but to give those employees an overall rating of "exceeds." The Commission concluded that the AJ's finding of discrimination was supported by substantial evidence. The Commission also affirmed the AJ's finding of no discrimination with regard to three other matters. The Agency was ordered, among other things, to change Complainant's overall rating to "outstanding" for the year in question and provide her with any benefits she would have received as a result thereof, as well as pay her $10,000 in proven compensatory damages and attorney's fees. Renner v. Dep't of Justice, EEOC Appeal No. 0720130004 (January 29, 2013).

Retaliatory Non-selection and Harassment Found. Complainant, a temporary Housekeeping Aid, filed a formal EEO complaint alleging that the Agency retaliated against him when it did not select him for a permanent position, and his Supervisor harassed him. Following a hearing, the AJ found that Complainant was discriminated against as alleged. The Commission affirmed the AJ's findings on appeal. Complainant applied for a permanent position and his application was referred to his Supervisor for an interview. The Supervisor, however, sent a memorandum to Human Resources stating that Complainant would not be interviewed for the position noting that he had been excessively late and missing from work. Complainant stated that his absences had been for medical treatment or hospitalization for a serious medical condition, and he believed his absences had been excused. Complainant's Supervisor confirmed that he received medical documentation from Complainant, but indicated that he did not submit it to his Manager and did not save the documentation. Further, Complainant had previously initiated an EEO complaint after he was issued a Notice of Termination for absenteeism. The AJ noted that Complainant entered on duty with the Agency as a disabled veteran with a 100 percent disability rating. Thus, the Agency should have reasonably anticipated that he would be absent due to illness or to seek medical treatment. Further, the AJ stated that, despite its assertion that Complainant was not selected because of excessive absenteeism, Complainant's Supervisor failed to keep an accurate accounting of medical documentation provided by Complainant. The AJ found that Complainant's Supervisor independently provided a negative reference to Human Resources in an effort to thwart Complainant from being selected for a permanent position.

With regard to the issue of harassment, the record showed that Complainant's Supervisor confronted Complainant as he left the Agency's Employee Health Clinic. The confrontation occurred in front of other patients and employees and an Agency physician and the Chief of Human Resources had to assist in quieting the disturbance created by the Supervisor. The physician provided a letter to Human Resources detailing the Supervisor's conduct, describing it as "overbearing…undignified and belittling." While the Supervisor stated that Complainant subsequently acted in a threatening manner toward him, the AJ noted that he failed to report any of the incidents and Complainant denied engaging in threatening conduct or making threatening statements. Therefore, the AJ did not find the Supervisor's assertion to be credible. The Agency was ordered, among other things, to reinstate Complainant into a permanent Housekeeping Aid position if he was able to return to work, with appropriate back pay and benefits, and pay Complainant $32,500 in proven compensatory damages. Johnson v. Dep't of Veterans Affairs, EEOC Appeal No. 0720120023 (January 16, 2013).

Remedies

(See also "Findings on the Merits" in this issue. - Ed.)

Remedies Discussed. In a prior decision, the Commission found that the Agency subjected Petitioner to a discriminatory hostile work environment and retaliation. The Agency was ordered, among other things, to pay Petitioner $65,000 in non-pecuniary compensatory damages, retroactively promote her to a GS-12 position, determine the appropriate amount of back pay, interest and other benefits, remove two named individuals from their supervisory roles over Petitioner, and provide 40 hours of EEO training to all management officials at Petitioner's facility. The Agency was also directed to submit a Report of Compliance to the Commission and Petitioner. Petitioner subsequently filed a petition for enforcement and clarification, stating that she was unable to determine from the redacted Report of Compliance whether compliance had been achieved. Petitioner also indicated the Internal Revenue Service (IRS) informed her that the damage award was considered taxable and was subjected to interest and penalties. The Agency stated that it did not send Petitioner an un-redacted Report of Compliance because it contained information regarding other employees that was protected under the Privacy Act.

The Commission noted that redaction of information protected under the Privacy Act, such as specific information concerning disciplinary action taken against another employee, is appropriate in an EEO Report of Compliance sent to a complainant. In the instant case, however, the Agency noted that it would not provide Petitioner with the Report, "redacted or not." The Commission stated that the Agency was required to disclose non-disciplinary information to Petitioner in the Report. The Commission set forth only four specific items that should be redacted, and instructed the Agency to re-issue the Report to Petitioner. The Commission further found that the Agency did not provide Petitioner with adequate information to demonstrate how it calculated the amount of back pay to which she was entitled. The Commission stated that the Agency must provide detailed documentation regarding its back pay calculations and use clear and concise "plain language" as to the methods of calculation. The Commission also noted that the Agency had not provided appropriate training to all management officials at the facility.

With regard to damages, the Commission noted that the IRS excluded damages from gross income only to the extent that they are compensation for emotional distress caused by physical injury or sickness, and considered damages taxable unless they are reimbursement for medical or other out-of-pocket costs. The Commission has held that it is beyond the Commission's purview to categorize an award of damages in terms of its potential federal income tax ramifications. The Commission noted that, in the underlying decision on appeal, it found that Petitioner's non-pecuniary compensatory damages were partially based on physical injuries she suffered as a result of the Agency's discrimination. Specifically, the Commission stated that Petitioner experienced mental anguish and physical injuries because of the harassment. Nevertheless, the Commission stated that it was beyond its purview to determine how much, if any of the damages awarded Petitioner should be considered taxable gross income. The Agency was ordered to re-issue the Report of Compliance with only the four redactions specified, send all information regarding back pay calculations to Petitioner, and provide training to all management officials at Petitioner's facility. Kessel v. Dep't of Commerce, EEOC Petition No. 0420110014 (January 31, 2013).

Sanctions

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