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‘Summertime, and the livin’ is easy’ – A Brief Reminder on EEO Deadlines

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By Meghan Droste, July 17, 2019

Happy summer dear FELTG readers! By the time you read this, we will be firmly in the middle of July and, if you are in an area like DC, in the midst of plenty of heat and humidity. It’s the perfect time to take it easy, find some shade, and maybe indulge in a frozen treat or two. (I leave it to you to decide what form those treats will take. Personally, I’m sticking with some coffee cookie ice cream).

In the spirit of the lazy days of summer, I’m bringing you a pretty straight forward case that won’t require too much thought to digest. In Leisa C. v. Department of Agriculture, EEOC App. No. 2019001265 (April 3, 2019), the agency issued a Notice of Proposed Removal to the complainant on February 2, 2018.  Four months later, on June 20, 2018, the agency issued a decision on the proposal, removing the complainant effective June 23, 2018. The complainant received the decision letter on June 27, 2018, and she contacted an EEO counselor on July 16, 2018. The agency subsequently dismissed the complaint, finding the complainant contacted a counselor beyond the 45-day deadline.

If you are currently scratching your head, you’re not alone. I was a bit surprised when I read this one too. The complainant contacted a counselor less than a month after she received the decision, and only 23 days after the effective date of the removal. I am terrible at math, but it’s pretty clear even to me that 23 is less than 45, so there is no question that the complainant’s contact was timely. See, I told you this one would be pretty straight forward. No heavy lifting required.

The Commission didn’t offer any detail on the agency’s argument, but my best guess is that it based the deadline on the February 2, 2018 notice proposing the complainant’s removal (164 days before the complainant made EEO contact). If this was the theory of the agency’s case, it unfortunately doesn’t float.  As the Supreme Court has said, “[t]he claim accrues when the employee is fired,” and not a moment before.  See Green v. Brennan, 136 S. Ct. 1769, 1777 (2016).

And with that, I leave you all to find a pool to float in or a hammock to nap in; just be sure to wear lots of sunscreen. Droste@FELTG.com

 

Tips from the Other Side: July 2019

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By Meghan Droste, July 17, 2019

When I’m not litigating my own cases, I spend most of my work-related time out there teaching, bringing you case law and pointers to help in your own practice. Last month, I had the pleasure of being the student instead of the teacher, and I picked up a bunch of new and exciting info at a conference for employment lawyers. One of the panels I attended brought my attention to an EEOC decision from last year, Joseph B. v. Department of Veterans Affairs, EEOC App. No. 0120180746 (August 14, 2018), that is remarkable for the award of several years of front pay. Front pay is unusual and years of front pay is nearly unheard of. But that’s not the only takeaway from this decision, so this month’s tip comes from the procedural issues that led to the case being in front of OFO.

In Joseph B., the complainant filed a motion for summary judgment and the agency stipulated to liability in nearly all areas of the complaint.  After reviewing the pleadings, the administrative judge granted the complainant’s motion and entered summary judgment in his favor.  The administrative judge subsequently conducted a hearing on damages and issued a decision ordering several types of relief. As part of the order, the administrative judge ordered that the complainant “continue to receive full benefits in front pay status, including health insurance.” The agency fully implemented the administrative judge’s decision with some modifications to the language. It included in the final order a direction that, to receive the front pay, the complainant had to resign from his position. The agency did not file an appeal of the administrative judge’s decision.

The agency paid the complainant his salary and related benefits for more than a year after the final order, although the complainant did not resign. Fifteen months after the order, the agency separated the complainant from federal service and stopped paying the ordered relief.  Instead, the agency asserted that it would pay the complainant a lump sum of the front pay owed, with an offset for the salary he was earning from his part-time employment (which the complainant had engaged in while working for the agency with the agency’s knowledge and approval). The complainant filed a petition for enforcement with the Commission.

All of this brings us to the tip for this month: If an agency is going to take issue with an administrative judge’s award, it must file an appeal.  The agency did not do so, and instead issued a final order stating that it would fully implement the administrative judge’s decision. As a result, the Commission found that it could not modify the order and pay the complainant a lump sum — which would not allow the complainant to continue to receive the “full benefits,” including health insurance, provided for in the order — rather than keep him on the rolls in a non-duty status. The Commission also rejected the agency’s arguments regarding the complainant’s other income, and held that front pay is not subject to mitigation.

I recommend thinking of these final orders like a settlement agreement. While you might come to regret it later, once you agree to it (or fully implement it without appealing), you’re stuck with it. Droste@FELTG.com

Don’t Be Like Ben – The Perils of English-only Rules

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By Meghan Droste, June 12, 2019

Benjamin Franklin, one of my high school’s most famous dropouts, is generally praised in our history books as a founding father, an inventor, and a printer. Did you know that he was also one of the first prominent voices in the English-only movement? Yep, that’s right, our very own Ben Franklin had a serious problem with … German speakers. He apparently took issue with signs being printed in both English and German in Pennsylvania. He also stated publicly that German immigrants were “of the most ignorant Stupid Sort” and their refusal to learn English made it impossible to reach them. While Franklin’s anti-German sentiment may seem like an interesting footnote more than two centuries later, the animus underlying it unfortunately has not faded from our country, although it is generally focused on other languages and countries of origin now.

Due to the connection between language and national origin, English-only rules can be a violation of Title VII. The Commission addressed this issue earlier this year in Eric S. v. Dep’t of Defense, EEOC App. No. 0120171646 (Feb. 8, 2019). In that case, the complainant, who is from Puerto Rico, greeted a temporary supervisor who entered the work area in Spanish. The complainant and the temporary supervisor then engaged in a conversation in Spanish about their families, when the complainant’s supervisor approached them and loudly said “English, English!”

In his affidavit, the supervisor stated that he directed the two employees to use English because “he need[s] to know and understand what’s going on.” He also asserted that the agency had “a policy to speak English during duty hours” and that he believed all federal agencies had the same policy. The agency’s EEO office confirmed to the EEO investigator that there was no such agency policy. Despite this, the agency issued a Final Agency Decision finding no discrimination.

On its review of the appeal, the Commission noted that English-only rules are permissible only when there is a “business necessity.” Employers may be able to show a business necessity for communications with customers, collaborative assignments with coworkers who only speak English, and when there may be a safety issue, among other situations. The fact that some coworkers may be uncomfortable when employees speak other languages is not itself a business necessity.

The Commission found in the specific instance, there was no evidence that the exchange of pleasantries in Spanish impacted the safety or efficiency of the workplace. The agency’s attempt to argue that the visiting supervisor’s presence in the work area was a safety risk was unavailing, as the complainant’s supervisor admitted recognizing him from another part of the facility. As a result, the Commission remanded the complaint to the agency and ordered an investigation into the complainant’s damages.

The supervisor’s comment might not seem like much, but it can certainly have an impact on how welcome, or not welcome, an employee feels in the workplace. Effective training on these issues will prevent similar situations in your agency and avoid harm to your employees and the time and expense of litigation. Viel Glück out there! Droste@FELTG.com

Tips from the Other Side: June 2019

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By Meghan Droste, June 12, 2019

To close out our discussion of discovery tips, at least for now, I thought I would bring you a cautionary tale to illustrate just how important these points can be. As you know, any party that fails to meet its obligations in discovery — whether that’s the deadlines to initiate or respond to discovery, or the production of all relevant and responsive information — can find themselves on the receiving end of sanctions by an administrative judge (AJ). The sanctions will generally be relatively small, perhaps an adverse inference that someone said or did something that is at issue in the case. They can, however, be much more significant and result in the dismissal of the hearing request or the entry of default judgment.

In Dionne W. v. USAF, EEOC No. 0720150040 (Mar. 27, 2018) the AJ entered default judgment as a sanction against the agency. The Commission’s decision doesn’t list what the agency did, or did not do, in discovery, but it appears to have been significant. The complainant filed a motion for summary judgment based, at least on part, on the agency’s discovery failures and the AJ scheduled a status conference.

Prior to the status conference, the agency’s attorney withdrew his or her appearance due to leaving the agency, but the agency failed to notice the appearance of new counsel and no one appeared for the status conference on the agency’s behalf. Due to the issues with the agency’s discovery practice and its failure to appear for the conference, the administrative judge entered default judgment. As a result, the case moved directly to the damages phase, and the administrative judge awarded the complainant $185,000 in compensatory damages and $155,050 in attorney’s fees, and ordered the agency to place her in a new position.

The Commission upheld the administrative judge’s entry of default judgment on appeal and modified the award slightly. It appears from the Commission’s decision that the harassment and the resulting harm to the complainant were significant and severe, and as a result the agency might not have been able to prevail at a hearing on liability. Regardless, it lost out on that opportunity when it failed to meet its obligations. I may sound like a broken record on this, but be sure to take your discovery deadlines and obligations seriously.  If you don’t, you may end up having to explain why the agency did not have an opportunity to argue the merits of the case. Droste@FELTG.com

Amazon Versus the Sabbath: Religious Accommodations in the Workplace

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By Meghan Droste, May 15, 2019

When I think of a post office, there is one thing that definitely does not come to mind: a social gathering spot (unless you count standing in a long line because you waited far too long to mail a holiday package).

It turns out, however, that post offices use to be just that. Up until a combination of religious groups and the labor movement pushed to end Sunday mail delivery in the early 20th century, the post office was a Sunday gathering spot in many communities, acting as a substitute for the taverns that were closed. That all ended in 1921 when Congress declared that post offices would no longer be open for mail delivery on Sundays.

Other than helping out those of you who participate in trivia nights, why am I sharing this with you? Well, as you may have noticed, the U.S. Postal Service is back in the business of delivering packages on Sundays. USPS has a contract with Amazon to deliver our books, clothes, and whatever else we might order from the online retail giant seven days a week. This, of course, means someone has to work on Sundays to deliver all of things we order. That brings us to the Commission’s recent decision in Stanton S. v. U.S. Postal Serv., EEOC App. No. 0120172696 (Feb. 5, 2019), involving a request not to work on Sundays as an accommodation.

The complainant in Stanton S. worked as a PSE Sales and Services/Distribution Associate (PSE).  The Agency required all PSEs to receive training and to make themselves available for Amazon-related deliveries. The complainant submitted a written request for an exemption from working on Sundays as a religious accommodation. He explained that his religious beliefs prevented him from working on his sabbath. The complainant’s supervisor informed him that the scheduling portion would not be an issue because another employee volunteered to work on Sundays.  However, the complainant was required to receive the training on processing Amazon deliveries so that he could serve as a backup. The Agency then scheduled the complainant for training on a Sunday. The complainant did not attend the training. The Agency responded by scheduling the complainant for training on the following two Sundays. The complainant did not report on those days. The Agency then removed the complainant from his position, based on his failure to report on the three Sundays as well as on two days on which he used approved sick leave.

The complainant filed an EEO complaint regarding his removal and requested a Final Agency Decision. In the FAD, the Agency concluded that it accommodated the complainant because it did not schedule him to work on Sundays, and that the scheduled trainings were required because the complainant had to serve as a backup.

The Commission reversed the Agency’s decision and concluded that the Agency failed to accommodate the complainant. Requiring the complainant to be available as a backup on Sundays failed to accommodate his sincerely held religious beliefs. The Agency also failed to provide any indication that not scheduling the complainant as a backup was an undue hardship because there was no indication that other employees were not available.  The Commission ordered the Agency to reinstate the complainant with back pay, along with other remedies including training.

The next time you receive a package delivery on a Sunday, think about how much fun we miss out on by not getting to hang out at the post office and play cards like people did in 19th Century. Droste@FELTG.com

Tips from the Other Side: May 2019

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By Meghan Droste, May 15, 2019

I think it is fair to say that in a lot of ways, discovery is the heavy lifting portion of litigation. It is time-consuming and usually involves a lot of different moving pieces. It may also include some literal heavy lifting as you sort through, organize, and produce a significant number of documents. This installment of our discussion of discovery tips covers what to do (or not do) when responding to requests for production.

The first, and perhaps most important, tip is to actually produce documents and to do so on time.  I know that seems pretty obvious, but, unfortunately, I have had to remind agencies of this very basic point more times than I can count. All parties have an obligation to timely respond to discovery. The failure to do so, including the failure to produce responsive documents by the deadline, can result in a waiver of any objections to the requests.  See Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 619 (D. Kan. 2005). If you are unable to produce the documents by the deadline to respond to discovery, you must identify a specific date by which you will produce them.  (You should also check in with the other side and request their consent to informally extend the deadline or to file a motion to extend it if needed.)  Simply telling the complainant that you will produce the documents when possible is not enough, and may be considered a failure to respond.  See Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651, 656 (D. Md. 1997) (“[A] response to a request for production of documents which merely promises to produce the requested documents at some unidentified time in the future, without offering a specific time, place and manner, is not a complete answer as required by Rule 34(b) [of the Federal Rules of Civil Procedure] and, therefore, pursuant to Rule 37(a)(3) is treated as a failure to answer or respond.”).

Producing the documents also means actually producing them. In the federal sector, it is generally insufficient to offer to let the other side come to your location to inspect the documents. See EEOC Handbook for Administrative Judges, Ch. 4, § II(B) (“As a practical matter, parties typically provide copies of the requested documents in lieu of inspection.”). (Yes, I have had an agency try to do this.  No, it did not go well for them on the motion to compel.)

The second tip is to ensure that you have an adequate privilege log if you withhold any documents, or portions of documents, pursuant to any privilege. If you redact or withhold anything, you have the burden of proving that doing so is appropriate and necessary. See Apple Inc. v. Samsung Elecs. Co., 306 F.R.D. 234, 237 (N.D. Cal. 2015) (“The party asserting the privilege bears the burden of establishing all necessary elements.”). Your privilege log should state the privilege you are asserting, identify each document or portion of a document that you are withholding, identify the individuals who created or sent and received the document if it is an email, and provide a description of the information you are withholding. Failing to produce a privilege log, or producing an insufficient one may result in the judge finding that the agency waived all asserted privileges.  See McNabb v. City of Overland Park, No. 12-CV-2331, 2014 WL 1152958, at *6 (D. Kan. Mar. 21, 2014). Finally, if you are redacting, avoid the mistakes Paul Manafort’s attorneys made, and make sure the text is actually redacted. Droste@FELTG.com

When Per Se Violations Meet Eggshell Plaintiffs

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By Meghan Droste, April 10, 2019

Happy spring, everyone! As the weather turns nicer, at least in theory, my spring teaching schedule is picking up. I just finished teaching part of FELTG’s Absence, Leave Abuse & Medical Issues Week here in DC. The last day of the course focuses on medical documentation, including the confidentiality requirements and what happens when agencies fail to follow them.

The discussion of per se violations — when agencies are found liable for violations regardless of intent or excuse — and the resulting damages, is invariably an interesting one.

One thing I always remind my students is that although the damages awards are generally low in those cases, usually in the range of $1,000 to $2,500, there is a chance that they could be much higher depending on the circumstances.

The Commission’s relatively recent decision in Sanora S. v. Department of Health & Human Services, EEOC App. No. 0120171305 (Dec. 21, 2018), is an example of how per se violations can result in significant harm. In the underlying complaint, discussed in Zenia M. v. Department of Health & Human Services, EEOC App. No. 0120121845 (Dec. 18, 2015), the complainant alleged, in part, that the agency retaliated against her when an EEO Complaints Manager provided documents from her two pending EEO complaints to the Chief Executive Officer as part of an investigation into whether the complainant had violated the Privacy Act and HIPPA.

(Side note: If any of you work at the Commission, I implore you to use the same pseudonym for all the decisions regarding the same complainant. It will spare everyone a lot of confusion.)

The complainant also alleged retaliation when the agency accused her of violating the chain of command when she sent emails regarding her allegations of harassment and discrimination. The agency issued a Final Agency Decision (FAD) finding no discrimination or retaliation in any of the complainant’s allegations. In the Zenia M. decision, the Commission reversed with regard to the two allegations described above, finding them to be per se retaliatory, but affirmed the FAD with respect to the other allegations, and ordered the agency to conduct a supplemental investigation into the harm the complainant suffered as a result of the per se retaliation.

In its supplemental investigation and FAD, the agency awarded the complainant $1,500 in non-pecuniary compensatory damages and $50 in pecuniary damages. The complainant appealed, arguing that she was entitled to a higher award of non-pecuniary damages because of the significant harm she suffered as a result of the agency’s actions. As described in the Sanora S. decision, the complainant suffered from PTSD, anxiety disorder and major depressive disorder. In the supplemental investigation, she presented medical documentation, her own testimony, and statements from her sisters detailing the impact of the agency’s actions on her, including increased stress, and fear of further retaliation including losing her job. Her sisters’ statements described the complainant’s panic attacks, nightmares, and episodes of bed wetting.

The agency argued that these were all symptoms of pre-existing conditions and, as a result, could not be attributed to the per se retaliation.

In its decision, the Commission relied on the eggshell plaintiff theory, or “the principle that ‘a tortfeasor takes its victims as it finds them’” to find that the agency’s award of $1,500 was insufficient. Under this principle, an agency is only liable for the additional harm or aggravation of a pre-existing condition that its actions cause; this also means that it cannot escape liability by simply pointing to a pre-existing condition. After reviewing the significant harm outlined in the complainant’s evidence, the Commission increased the damages award to $20,000 — more than 13 times the amount in the agency’s FAD.

These decisions are an excellent illustration of the pitfalls of per se retaliation, and significant harm that can result. Be sure to also keep in mind that the eggshell plaintiff theory applies in other types of cases, so you should not discount potential liability based only on the employee’s prior health concerns. Droste@FELTG.com

Tips from the Other Side: April 2019

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By Meghan Droste, April 10, 2019

This month’s tip regarding discovery comes from both my experience as an employee-side attorney and also from my previous life when I occasionally represented federal agencies. As anyone who has had to engage in discovery can tell you, interrogatories are served in nearly every case and can take up a large amount of time to respond to. I know from both sides of the table that trying to ensure your client/witness is on top of drafting the responses, the inevitable follow-up emails and calls when they are not, and the reviewing and editing for comprehension can be incredibly time-consuming. Although I have never done it — more on why not in just a bit — I can somewhat understand the appeal of cutting out the middle man (and all of the related work) and just drafting the responses yourself. No follow ups, no explanations for why they really do have to respond, no editing needed; it’s all taken care of on time and done correctly.

Sounds great, right? Well…. no, sorry. You really shouldn’t respond to the interrogatories yourself, no matter how many headaches it might save you.

Why shouldn’t an attorney/non-attorney representative draft the responses to interrogatories?

For starters, you are not the witness/ complainant/responsible or responding management official (and if you are a witness or responsible management official you should speak with someone about having the case reassigned because you may run into some serious issues of privilege if you participated directly in the issues in the complaint).

As the representative, you do not have any direct, personal knowledge of the allegations or what occurred. Just as you cannot testify in a deposition or hearing about your understanding of the facts, you should not testify to them in the interrogatory responses. You need to ask the people who know about the events what happened, and they should be the ones drafting the responses.

When I was on the agency side of cases, I would identify everyone who might have relevant knowledge and then send each person the requests that applied to them. That might mean nearly all of them, or it might be just one or two, whatever was appropriate for each person. If more than one witness had knowledge responsive to a request, I would include all of their responses, clearly indicating what information was from each witness. I strongly encourage you to do the same.

If my advice isn’t enough to convince you, consider the case law on this issue. The Federal Rules of Civil Procedure, which are not binding but do provide guidance, contemplate an attorney signing discovery responses only as to the objections, and not to the substantive responses. See Fed. R. Civ. P. 33(b)(5) (“The person who makes the answers [to the interrogatories] must sign them, and the attorney who objects must sign any objections.”); see also Sorrell v. District of Columbia, 252 F.R.D. 37, 43 (D.D.C. 2008) (holding a paralegal signing discovery responses to be improper because he would be attesting to the veracity of the answers and also making objections).

As one court has noted, the requirements under Rule 33(b)(5) are “critical because interrogatories serve not only as a discovery device but as a means of producing admissible evidence.” See Walls v. Paulson, 250 F.R.D. 48, 52 (D.D.C. 2008).

Your responses as a representative are not evidence; but the responses of the people with personal knowledge are. I know it may seem like a lot more work, but in the end it will be better for the agency, and it’s just the right thing to do. Droste@FELTG.com

I Wanna Be in the Room Where It Happens

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By Meghan Droste, March 13, 2019

As someone who is, shall we say, mildly obsessed with the musical Hamilton, I have to admit that I’m amazed that it took me over a year of writing these articles to work in a reference. We had to wait for it (that’s my favorite song so you’ll have to forgive me) but now I can say that I’m not throwing away my shot (ok, I’ll admit, that one was a reach) and I’m satisfied (that’s the last one, I promise).  Now that I have that out of my system, we can get down to the real purpose of this article.  This month’s Commission decision summary is all about who gets to be in the room where it happens—i.e. the hearing—and who needs to wait outside.

In Katharine B. v. U.S. Postal Service, EEOC App. No. 0120170444 (December 7, 2018), the administrative judge held a two-day hearing and then issued a decision finding no liability.  During the hearing, the administrative judge allowed the complainant’s first line supervisor, who was also named as the harasser in the complaint, to remain in the hearing room as the agency’s representative (the person sitting in for the agency, not the person representing the agency by questioning witnesses or presenting arguments) during the testimony of other witnesses.  The complainant objected to the supervisor’s presence but the administrative judge overruled the objection. Rather than excluding the supervisor outright, the administrative judge asked each witness before the start of their testimony if they were comfortable with the supervisor being present. Four of the witnesses stated that they were not comfortable and the supervisor was excused during their testimony. The supervisor was present for the rest of the hearing.

The Commission reversed the finding of no liability and remanded the complaint for a new hearing based on the decision to allow the supervisor to be present during the testimony of other witnesses. Although, as the Commission noted, administrative judges have broad discretion in regulating what occurs during a hearing, that discretion is not without limits. The Commission found that the supervisor’s presence had the potential to chill the testimony of the complainant or the other witnesses.  As a result, allowing the supervisor to stay in the room “violate[d] the prohibition against interference with the with the EEO process.” The Commission also noted that there is a conflict of interest when the agency’s representative also serves as a witness in the complaint.

Hearings can be interesting; three of my colleagues just finished the first two weeks of a lengthy hearing and I wish I could have been there to just listen in.  The desire to be in the room where it happens is understandable (just ask Aaron Burr), but we can’t let that desire impact the outcome. Droste@FELTG.com

Affirmative Defenses 3: Too Little, Too Late

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By Meghan Droste, February 13, 2019

Although the movie theater closest to where I live features reserved seating, small theaters, and upscale snacks, I have to admit that I don’t see movies in the theaters all that often. So many of the big movies that come out every year are just the second, third or even seventh in a franchise.  Call me a snob, but I would appreciate some original ideas from time to time. I try to apply a similar standard for these articles, focusing on different topics, or at least a new spin on a topic, each time. As you can probably guess from the title of this month’s EEOC case update, I’m breaking my own rule.  A pair of decisions the Commission issued last fall involving the issue of affirmative defenses — a topic I covered in articles on the Jenna P. case last April  and November – were just too interesting to overlook.

In Sallie M. v. U.S. Postal Service, the complainant alleged that her supervisor subjected her to sexual harassment on a daily basis. See EEOC App. No. 0120172430 (Oct. 16, 2018). The harassment ultimately culminated with unwanted touching while the complainant was out on her postal delivery route. When the complainant reported the harassment, another supervisor told her that the harasser could be dangerous but apparently did not do anything else. After the complainant’s union steward got involved, the agency placed the harasser in non-duty status and initiated an investigation.  When the harasser then threatened to rape and kill her, the complainant asked the agency to move her to a different location for her safety.  She expressed her willingness to go to any location other than the post office near the harasser’s home. The agency then transferred her to that location in direct conflict with her request.

Although the agency placed the harasser in a non-duty status, investigated the allegations, and ultimately proposed the removal of the harasser, the Commission held that the agency could not successfully assert any affirmative defenses for several reasons.  First, the agency failed to take any action when the complainant initially reported the harassment and the management officials denied knowing about the report in their EEO affidavits. The Commission found these denials lacked credibility, in large part because the management officials’ responses to the EEO investigator were short and contained no details. Second, although the agency concluded its investigation within weeks of the union steward’s report of the harassment, the agency waited another two weeks to issue a report and then another month a half to propose the harasser’s removal. Finally, the Commission found that the agency failed to take proper action to prevent further harassment when it moved the complainant to a location closer to the harasser who had threatened her with physical harm.  As a result, the Commission found the agency liable for the sexual harassment as well as for retaliation.

The Commission issued its decision in Isidro A. v. U.S. Postal Service on the same day as the Sallie M. case.  See EEOC App. No. 0120182263 (Oct. 16, 2018).  In Isidro A., a manager used the n-word and the phrase “you people” during a staff meeting while referring to a group of African-American employees. The complainant and a union steward reported the comments within days of the meeting, but the agency did not initiate its investigation for another three weeks. The investigator issued a report less than two weeks later, finding that the manager admitted to making the statements. The agency waited another three months before issuing a proposed letter of warning in lieu of a 14-day suspension. Ultimately, the agency concluded that although the complainant had been harassed by the manager’s comments, it was not liable because it took prompt and effective corrective action. The Commission rejected the agency’s findings regarding the affirmative defenses. It found that the agency waited too long to initiate the investigation and too long to take any action after the investigator issued a report. The Commission also held that the proposed letter of warning was “a woefully inadequate response” to the harassment.  As a result, the Commission concluded that the agency was liable for the harassment.

The main takeaway from these cases is that any corrective action should be prompt — remember waiting for a week or two to start an investigation is not prompt — and effective in correcting what happened and preventing any further harassment. These are key points not just to avoid liability, but also to ensure a productive and safe work environment. Droste@FELTG.com