0120112975
07-15-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120112975
Agency No. 1H-337-0023-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 25, 2011, final decision concerning his equal employment opportunity (EEO) complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the final Agency decision (FAD) is AFFIRMED in part and REVERSED in part.
ISSUES PRESENTED
Whether the record established that Complainant was subjected to harassment based on sex by a male co-worker when the male co-worker made references to Complainant's sexuality, and touched his shoulders; and whether Complainant was discriminated against because of his race, sex, age, and prior EEO activity when, on June 22 and 23, 2010, he was subjected to Investigative Interviews and on June 25, 2010, was issued a Letter of Warning (LOW).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-time Electronic Technician, PS-10 at the Agency's Processing and Distribution Center in St. Petersburg, Florida. Complainant alleged that the Agency failed to act regarding his complaints that he was subjected to sexual harassment and a hostile work environment by a coworker (C-1). Complainant, during the Agency's harassment investigation, indicated that his problems with C-1 began in 1995 when, among other things, Complainant provided a statement against C-1 concerning his observing C-1 taking a hard-drive and placing it in another coworker's locker. C-1 was placed on administrative leave pending his removal. He returned to work 18 months later as a result of arbitration. Complainant maintains that C-1 labeled him a "snitch" and told him that he should be made to feel what it was like to be fired.
In 1997, Complainant maintains that C-1 created a derogatory and malicious cartoon about him and hung it on his locker. The cartoon had derogatory comments involving both racial and sexual connotations. Complainant stated that he turned the cartoon over to his supervisor, but nothing was done. Not long after, Complainant stated that C-1 tried to get him removed from his Shop Steward position. C-1 created a petition, and took it on to the workroom floor and persuaded a number of employees to sign it, even though their involvement was unnecessary. Complainant opined that this action was done maliciously and in an attempt to defame his good character. Complainant even accused C-1 of spraying a noxious chemical near the machine of a friend of Complainant's because, according to Complainant, he knew that Complainant was near and that the smell would have caused Complainant to have an asthma attack.
Complainant stated that, in 2001, C-1 began making comments of a sexual nature by implying that there was a sexual relationship between him (Complainant) and the President of the Union, B-1. According to Complainant, it was well known that he and B-1 were good friends and "fishing buddies." On February 8, 2001, when C-1 heard Complainant discussing the fact that he and some of his coworkers were going on a fishing trip, C-1 asked Complainant if he and B-1, "are going fishing so you can fuck each other in the ass."1 C-1 also asked if B-1 was Complainant's wife, and repeated his earlier comment. According to Complainant, C-1 had made similar comments at various times in the past and that he had tried to ignore them because he knew that C-1 was trying to provoke him. This time, however, Complainant went to management and a meeting was held between him, C-1, and Acting Supervisor A-1. During the meeting, Complainant stated that he told C-1 that his comments were "no longer funny," and "tried to explain how it would feel if I was to say[ ] these same comments to him about his golf buddies." Complainant stated that he told A-1, he would no longer tolerate "these sexual comments." Later that day, Complainant stated that C-1 asked him why he had "turned him in."
Complainant stated that on February 12, 2001, he was summoned to the office of the Maintenance Manager (MM) by A-2, the Craft Director. According to Complainant, MM admonished him for mishandling the incident on February 8th. MM stated that he had spoken to C-1, but kept referring to the question Complainant had raised about C-1's golf buddies. MM insisted that Complainant should have warned C-1 that he was harassing him, and that he would now have to put on another tour talk on sexual harassment in the workplace. Following this meeting, Complainant stated that he took leave for stress and started therapy, because he was made to feel like he was the harasser.
There was also an incident where Complainant and another employee were discussing firearms and C-1 reported the conversation to management. Complainant maintained that C-1 changed the nature of the conversation and, as a result, he had to undergo a threat assessment, a fitness for duty exam, and counseling. According to Complainant, he ended up using 400 hours of sick leave and had to file a workman's compensation claim that was later denied.
Complainant stated that in 2006 he purchased a new car. After completing his tour of duty, he noticed that someone had spit on the car. After complaining about this matter, a stake-out was conducted by management and it was determined that C-1 was spitting on the car. C-1 received a seven-day suspension which was later reduced to a paper suspension. Following this incident, MM had Complainant and C-1 come to his office and shake hands. Complainant was assured that there would be no further problems.
On May 18, 2010, Complainant alleged he was both physically and verbally accosted by C-1 when he made references to Complainant's sexuality and touched Complainant's shoulders. Complainant stated that C-1 also mentioned MM, "Broke Back Lake," and "homosexual items." Complainant further stated that, on May 20, 2010, C-1 came up to him and touched him again. This occurred in front of four witnesses. Complainant reported these incidents on May 22, 2010, and was interviewed by the new Maintenance Manager (MM2).
Complainant told MM2 that C-1 had bullied and sexually harassed him since February 2001. Complainant indicated that he was afraid of C-1, and felt threatened by his presence. He asked that C-1 be kept away from him. MM2, believing that this was part of the ongoing disagreement between Complainant and C-1, told Complainant that he could change his schedule and come in early to avoid contact with C-1. The record indicates that Complainant filed three requests to change his schedule for personal convenience. On May 24 - 29, 2010, Complainant changed his regular schedule of 0650 - 1500 hours to 0550 - 1400 hours; on June 10 - 18, 2010, Complainant changed his hours to 0575 - 1415 hours; and on June 19 - 25, 2010, his hours were changed to 0575 - 1425 hours.
On May 25, 2010, C-1 was again in Complainant's work area. C-1 had been allowed to come in two hours early for overtime work. Complainant immediately went to MM2 to ask why C-1 was being allowed to have access to him. Complainant was told by MM2 to just avoid C-1. Complainant also came into contact with C-1 on June 9, 2010. On that occasion, Complainant found C-1 and another employee standing behind him. Complainant reported this to management and an investigation was started on June 25, 2010.
Following Complainant's last report of harassment on June 25, 2010, MM2 submitted an investigative request to the Acting Manager of Human Resources. Upon receipt of the request, Agency officials came to the workplace and conducted an internal investigation into Complainant's allegations. Complainant along with C-1 and four other witnesses were interviewed. As a result of the internal investigation, a report was issued that found that a concern existed; and that prior incidents involving Complainant and C-1 were not handled impartially and effectively and had escalated to the point where the employees required separation. It was recommended that the report be officially submitted to the Plant Manager for immediate action as deemed appropriate under the District's Zero Tolerance Policy, and it was also recommended that Complainant and C-1 be returned to their bid positions.
During the internal investigation, MM2 testified that it was his intent to have the incident investigated "impartially" and that the two employees had a "history of animus."
C-1 testified that he and Complainant have had "difficulty working together since 1992." He stated that Complaint was "excitable, paranoid and difficult to work with," and that he was "easily upset" and that it was "hard to determine what upsets [him]." C-1 acknowledged that "Broke Back Lake" refers to the movie "Broke Back Mountain," and maintained he had not seen the movie, but had an idea what it was about. According to C-1, he believed the phrase "Broke Back Lake" referred to a fishing trip that several employees attended. He stated that he was not sure Complainant was there, but stated that he probably was. C-1 insisted that "Broke Back Lake" did not refer to Complainant personally, but was a "running joke, it was shop talk."2 C-1 stated that Complainant never asked him not to touch him, but acknowledged being told by MM to avoid Complainant and by MM2 not to touch Complainant. Finally, C-1 stated that he "never called [Complainant] homosexual," and that in the past Complainant has approached him to discuss his new car, which they talked about for 20 minutes, and Complainant's wife, who had lost her job.
B-1 testified that, as a Union official, he had been made aware of the various incidents between the two employees and feels that the situation had not been resolved and comes around in cycles. B-1 stated that he feels C-1 is an intimidator. He also stated that Complainant's personality type is non-confrontation which makes him the target of C-1's actions because it upset's Complainant. B-1 stated that he felt C-1 enjoys manipulation and tries to intimidate others but they have the ability to tell him to stop and it is effective. B-1 stated that Complainant's statements to C-1 asking him to stop touching him or talking to him have been ineffective and that the unwanted contact has persisted. Finally, B-1 stated that, prior to 2010, management was ineffective in dealing with this problem.
A-2 testified that he is friends with both C-1 and Complainant and that he serves as "a peacemaker." A-2 maintained that the problems between Complainant and C-1 are ongoing "with random spikes." He maintained that he does not get involved with comments and rumors and that C-1's personality type is "intimidating and can be perceived as bullying ...." He felt that Complainant was unable to deal with C-1's personality type and stop the behavior, therefore the behavior persists.
C-2, an employee, stated that he saw C-1 touch Complainant by patting him on the back sometime in May. He remembered Complainant being upset and saying, "I don't know why he's touching me. He is not to be touching me." C-2 stated that he is not involved in the office rumors and makes it a point to stay out of it.
Complainant also asserted that on June 22 and 23, 2010, he was improperly subjected to an Investigative Interview that resulted in a LOW for violation of the Employee and Labor Relations Manual. The LOW, dated June 25, 2010, was issued for Failure to Follow Instructions. Specifically, on June 18, 2010, Complainant was assigned to perform daily and monthly maintenance routes. He was told that the weekly route needed to be completed because it would expire that day. Complainant failed to complete the route, failed to be available by phone, and failed to notify his supervisor. An investigative interview was conducted on June 22, 2010, and it was determined that Complainant failed to provide a satisfactory explanation for his conduct. Complainant maintained that he was discriminated against with regard to this issue because the Agency failed to follow its own disciplinary policy with respect to escalating forms of discipline. Complainant contends that this was the supervisor's opportunity to retaliate against him.
On September 4, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), national origin (Northern European), sex (male), age (58), and reprisal for prior protected EEO activity when: (1) on June 4, 2010, his allegations of sexual harassment were not handled like those of female employees who alleged sexual harassment; and (2) on June 22 and 23, 2010, he was subjected to Investigative Interviews and on June 25, 2010, he was issued a Letter of Warning.3
Complainant argued that management did not take his complaints of sexual harassment seriously and failed to act according to federal law and Agency regulations. He maintained that the Agency repeatedly ignored his complaints that C-1, for years, sexually harassed him and created a hostile work environment, which included teasing, touching, humiliating, and intimidating him based on his sex. In contrast, Complainant maintained, complaints from female coworkers are taken seriously and acted upon immediately. According to Complainant, there have been six females who have alleged that they were sexually harassed, and their claims were taken seriously. In each case, the male employee was dealt with in a swift and severe manner, which Complainant maintained was in stark contrast to his situation. Complainant also pointed out that the Agency's inaction was a clear violation of the Zero Tolerance policy.
Complainant maintained that he reported to work every day in fear of being verbally, mentally, and physically attacked, and that this hostile work environment affected his health and family life. For example, Complainant contends that he has suffered severe stress and panic attacks over the years, and that he had to seek medical attention on numerous occasions for the stress he experienced. These incidents caused him to hate coming to work.
Following an investigation by the Agency, Complainant was offered either a final agency decision (FAD) or a hearing before an EEOC Administrative Judge. When he did not respond to the request, a FAD was issued. The FAD found that Complainant failed to establish a prima facie case of sex discrimination because he did not show that he was similarly situated to the female comparators that he provided because they had different supervisors and did not work in the same position. The FAD also found that Complainant failed to demonstrate that he was subjected to harassment based on sex. The FAD determined that Complainant did not show that he was subjected to a hostile work environment because the incidents complained of where not sufficiently severe or pervasive to establish a hostile work environment. According to the Agency, Complainant and C1- simply did not get along.
With respect to claim 2, the FAD explained that Complainant was subjected to an investigative interview and issued a LOW because he did not complete his assignments, did not respond to calls, and he could not be found.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that he no longer disputes the finding of no discrimination regarding the LOW that was issued to him. Complainant does, however, dispute the finding of no discrimination regarding his claim of a hostile work environment and sexual harassment. He argues that his request for protection from C-1 had not been taken seriously by the Agency. Complainant contends that after the Agency finally initiated an investigation regarding his claims, the investigator referred the matter to the Plant Manager to be treated in accordance with the Zero Tolerance Policy. Complainant asserts that the Agency did nothing to ensure that the harassment would cease and desist. The only recommendation offered by the Plant Manager was for Complainant and C-1 to stay away from each other. The investigative team also recommended that both employees be placed back in their bid positions which allowed both of them to come into contact with each other, and gave C-1 a daily opportunity to harass him.
In response, the Agency requests that its FAD be affirmed.
ANALYSIS AND FINDINGS
At the outset, we take note of Complainant's indication that he is not contesting the Agency's determination regarding Claim 2. We therefore AFFIRM the Agency's finding of no discrimination regarding this matter.
With respect to Claim 1, we find that, notwithstanding Complainant's characterization of this matter as an allegation of disparate treatment, i.e., whether he was treated differently than his female co-workers, this claim should more properly be analyzed as a claim of whether Complainant was subjected to a hostile work environment because of his sex.
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 2). (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
With respect to element 5, an Agency is liable for co-worker harassment when it "knows or should have known of the conduct, unless the Agency can show that it took immediate and appropriate corrective action." See 29 C.F.R. � 1604.11(d). Whether the Agency's action is appropriate depends upon "the severity and persistence of the harassment and the effectiveness of any initial remedial steps." Taylor v. Dep't of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992). The appropriateness of the Agency's conduct in response to harassment depends upon "the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps." Owens v. Dep't of Transp., EEOC Appeal No. 05940824 (Sept. 5, 1996). Appropriate corrective action is a response that is reasonably calculated to stop the harassment.
Upon review, we find that the preponderance of the evidence and the totality of the circumstances indicate that Complainant was subjected to a hostile work environment on the basis of his sex.
I. Elements 1, 2 and 3 - Unwelcome Conduct based on Sex
Regarding element 1, the record is undisputed that Complainant, a male, is a member of a statutorily protected class. Regarding elements 2 and 3, the undisputed record indicates that on May 18, 2010, Complainant was physically and verbally accosted by C-1 when he made references to Complainant's sexuality, touched Complainant's shoulders and mentioned, among other things, "Broke Back Lake." The record indicates that C-1, as early as 2001, mentioned the phrase "Broke Back Lake" when referring to Complainant's sexuality. C-1, himself, indicated that it was a "running joke." Therefore, we find that the record indicates that Complainant was subjected to unwelcome verbal and non-verbal conduct based on his sex. Based on the record, we find it reasonable to conclude that but for Complainant being a male, C-1 would not have made the "Broke Back Lake" comments. We note that sex-based harassment - that is, harassment not involving sexual activity or language -- may give rise to Title VII liability if it is "sufficiently patterned or pervasive" and directed at employees because of their sex. See EEOC Policy Guidance on Current Issues of Sexual Harassment, No. N-915-050, at Guidance, � C. (Mar. 19, 1990).
II. Element 4 - Unwelcome Conduct Sufficiently Severe or Pervasive
Regarding element 4, the record supports a determination that, as the result of his conduct on May 18, 2010, C-1's harassment unreasonably interfered with his work performance. In determining whether an objectively hostile or abusive environment existed, the trier of fact should consider whether a reasonable person in the complainant's circumstances would have found the alleged behavior to be hostile or abusive. Harris, 510 U.S. at 21. Also, the trier of fact must consider all of the circumstances, including the following: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Id. at 23.
Although the Agency argued that the alleged conduct was insufficient, as a matter of law, to establish a claim of hostile work environment harassment, we find that C-1's actions were sufficiently severe to create an abusive working environment. We emphasize that the relevant question is whether the harassing conduct was "sufficiently severe or pervasive" [emphasis added]. In evaluating the severity of C-1's conduct here, we must consider all the circumstances; the totality of the record. What happened on May 18, 2010 was not a mere isolated incident. It was the result of a "running joke" that had been going on for almost 10 years, conduct that C-1 had repeatedly been told was unwelcome. Moreover, we find that there is no question that this behavior unreasonably interfered with Complainant's work performance. The record indicates that Complainant changed his work schedule three times in May and June 2010 to come in early in order to avoid contact with C-1 after the May 18th incident. The internal investigation revealed that the situation between Complainant and C-1 had escalated to the point where the employees required separation.4
III. Element 5 - Liability
We find that the Agency failed to take immediate and appropriate corrective action in this case and, therefore, the Agency is liable for C-1's conduct. On May 22, 2010, Complainant reported the May 18th and 20th incidents to MM2. Although MM2 allowed Complainant to change his work schedule in order to avoid contact with C-1, there were two incidents where Complainant and C-1 came into contact, i.e., May 25 and June 9, 2010. After the May 25, 2010 contact, Complainant was told by MM2 to just avoid C-1. Sixteen days after the June 9th contact, an internal investigation finally was launched, but left Complainant in an arguably worse position. After years of similar conduct by C-1, we cannot find that the Agency took immediate and appropriate corrective action after MM2 was informed about the May 18th incident.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM IN PART and REVERSE IN PART the Agency's final decision and to REMAND that portion of the Agency's decision pertaining to Complainant's allegation that he was subjected to discrimination based on sex to the Agency to take remedial actions in accordance with this decision and the Order below.
ORDER
The Agency is ordered to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision becomes final, unless otherwise stated:
1. The Agency shall give Complainant notice of his right to submit evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall issue a final decision on compensatory damages pursuant to 29 C.F.R. � 1614.110(b).
2. The Agency shall provide training for MM2 regarding his obligations under Title VII with special emphasis on management responsibilities with regard to claims of discriminatory harassment/hostile work environment. The Agency shall provide training for C-1 regarding employees' rights and responsibilities under Title VII, with an emphasis on discriminatory harassment.
3. The Agency shall consider taking disciplinary action against C-1 and MM2. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If either C-1 or MM2 has left the Agency's employ, the Agency shall provide proof of the date(s) of departure.
POSTING ORDER (G0914)
The Agency is ordered to post at its Processing and Distribution Center in St. Petersburg, Florida copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501 (e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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
_7/15/15_________________
Date
1 At some point during this time, C-1 also began referring to this fishing trip as "Broke Back Lake," a reference to the movie "Broke Back Mountain." The movie website IMDb.com describes the movie as "[t]he story of a forbidden and secretive relationship between two cowboys and their lives over the years."
2 C-1 defined "shop talk," as "[V]ets using profanity and no wife would allow it at dinner."
3 The record reveals that Complainant also alleged the following issues: on May 3, 2010, he received his quarterly review by his supervisor; on June 25, 2010, he was not provided safety equipment necessary to do his job; and on July 21, 2010, he was apprised of the findings of his sexual harassment allegations. These issues however were dismissed procedurally for failure to state a claim. Complainant did not contest their dismissal on appeal. Therefore, they will not be addressed further in this decision.
4 Oddly, however, the investigators recommended that Complainant and C-1 be returned to their bid positions, which would have put them in greater contact with each other.
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0120112975
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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