0120151170
08-14-2015
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120151170
Agency No. SEA-15-0003-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 2, 2015, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as a Lead Legal Assistant at the Agency's facility in Seattle, Washington.
On December 5, 2014, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of sex. In its final decision dated February 2, 2015, the Agency determined that Complainant's complaint was comprised of the following claim:
on or around May 20, 2014, [Complainant] became aware that a co-worker, sometime in 2012-2013, had told other employees that he was gay and that he frequented gay bars. Complainant sent an email to management regarding this alleged behavior of his coworker, but management failed to respond to him in a timely manner.
The Agency dismissed Complainant's complaint for failure to state a claim, reasoning that the alleged incident was not sufficiently severe or pervasive to set forth an actionable claim of harassment. Specifically, the Agency stated, "[y]our allegation consists of information that your co-worker engaged in behavior two or three years ago to harass and embarrass you related to your sexual orientation. You provided no information that this practice is ongoing and continuous from the incident that allegedly occurred two or three years ago."
The instant appeal followed. Complainant requests that we reverse the Agency's final decision dismissing his complaint and asserts that the Agency failed to address why it delayed the processing of his complaint.
ANALYSIS AND FINDINGS
We find that the Agency improperly dismissed Complainant's complaint. A review of the record reflects that Complainant is alleging that he became aware that a co-worker (C1) was telling other employees that he is gay, frequents gay bars and shared pictures of Complainant in a gay bar.1 Complainant alleges he became aware of C1's behavior when he met with two agency attorneys who were preparing him for a deposition for an EEO case filed by C1. In addition, a review of the formal complaint and EEO Counselor's Report reflects that Complainant is alleging that C1 continued to say such words as "gross" and "disgusting" when she passed by Complainant in the hallways.2
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. However, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
In the instant matter, we note that Complainant is alleging that C1 made comments to other employees that Complainant is gay, frequents gay bars, and showed pictures of Complainant in a gay bar. In addition, Complainant is alleging that C1 continues to make derogatory comments to Complainant when she passes him at work such as "gross" and "disgusting" which Complainant alleges is related to C1's other behavior. When viewing the incidents collectively, in a light most favorable to Complainant, we find that Complainant has set forth an actionable claim of harassment.3
Regarding Complainant's claim that the Agency delayed the processing of his complaint, when a complainant is dissatisfied with the quality of the processing of her complaint, he should be referred to the Agency official responsible for the quality of complaints processing and the Agency should attempt to resolve the dissatisfaction.4 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, IV.D (Nov. 9, 1999). When Complainant's concerns have not been resolved by the Agency, a complainant may present her concerns, if she requested a hearing, to the EEOC AJ, or if she has not requested a hearing to the EEOC on appeal. Id. Thus, in this matter, if Complainant is not satisfied with the Agency's response regarding its delay in the processing of his complaint, he may raise these concerns to an EEOC AJ if he requests a hearing or if he does not request a hearing, he may raises these concerns with the Commission's Office of Federal Operations on appeal, once final action has been taken on the merits of his complaint.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request
and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 14, 2015
__________________
Date
1 The Commission has held that claims of discrimination based on sexual orientation are valid claims of sex discrimination under Title VII and should be processed, as in the instant case, in the 29 C.F.R. Part 1614 EEO complaint process. Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).
2 The record also contains a copy of an email from Complainant to the Agency's Hearing Office Director dated May 20, 2014. Therein, Complainant asserted "[C1] has now started to utter words like "gross" whenever she passes me...given the fact that she has been telling people that I am "gay", [I] can see a nexus in this new behavior."
3 We note that the Agency failed to address in its final decision Complainant's claim that C1 made these derogatory comments to him.
4 We note that the Civil Rights and Equal Opportunity Manager (M1) responded to Complainant's concerns regarding the delay in processing his claims. M1 in an email to Complainant dated October 20, 2014, asserts, "I am new to the Seattle Region as of May 2014. During the months of May and June 2014, due to the transferring of my profile from the New York region to the Seattle region, something happened to my electronic profile that negatively affected my email, resulting in me not receiving many emails...Your email dated [June 18, 2014] seems to be one of the casualties, and I can't locate ever receiving it. However, I did receive your email dated [September 26, 2014], and quickly informed [a named EEO Counselor] to contact you to initiate informal EEO counseling, backdating your initial contact date as [June 18, 2104.]"
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0120151170
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120151170