Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Jun 20, 2013

0120122328 (E.E.O.C. Jun. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120122328

Agency No. 4F-926-0135-12

DECISION

Complainant filed an appeal1

with this Commission from the Agency's June 29, 2012 decision
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., the Genetic
Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. 2000f et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
Upon review, the Commission finds that Complainant's complaint was improperly dismissed
pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at
the Agency’s Post Office in Upland, California. On May 26, 2012, Complainant filed a
formal complaint alleging that the Agency subjected him to a hostile work environment on the
bases of sex (male), age (65), genetic information and in reprisal for prior protected EEO
activity when on March 13, 2012, his supervisor urinated in the postal vehicle in front of him
and commented “I got it on ice.”2

1 The record reveals that on May 9, 2012, Complainant filed an appeal with the Commission
prior to the Agency’s issuance of its final decision. Subsequently, the Agency issued its final
decision dismissing the complaint on June 29, 2012. Therefore, Complainant’s initial appeal
was premature, but the issuance of the decision has cured the defect.

2 The Agency dismissed genetic information (male) as a basis of discrimination. Title II of the
Genetic Information Non-Discrimination Act of 2008 (GINA) prohibits employers from
discriminating against any employee because of genetic information with respect to the
0120122328

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On June 29, 2012, the Agency issued a final decision dismissing the complaint pursuant to 29
C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency reasoned that the alleged
incident was an isolated incident and not sufficiently severe or pervasive to state a claim of a
hostile work environment. As a result, the Agency dismissed the complaint for failure to state
a claim.

ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee or applicant for employment
who believes that he or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age, disabling condition, genetic information, or in
reprisal for prior protected EEO activity. 29 C.F.R. §1614.103; §1614.106(a). The
Commission's federal sector case precedent has long defined an “aggrieved employee” as one
who suffers a present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No.
05931049 (Apr. 21, 1994).

In the instant complaint, Complainant claims that his supervisor exposed himself, urinated in a
postal vehicle in front of him, and made the comment “I got it on ice.” Complainant stated
that he felt intimidated and suffered anxiety as a result. The Commission has held that where,
as here, a complaint does not challenge an agency action or inaction regarding a specific term,
condition, or privilege of employment, the claim of harassment may survive if it alleges
conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Consistent with
the Commission's policy and practice of determining whether a complainant's harassment
claims are sufficient to state a hostile or abusive work environment claim, the Commission has
repeatedly found that claims of a few isolated incidents of alleged harassment are usually not
sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC
Request No. 05960030 (July 12, 1996); Banks v. Dep’t of Health and Human Servs., EEOC
Request No. 05940481 (February 16, 1995).

However, the Commission has held that under certain circumstances the alleged conduct,
especially that of a supervisor, is sufficiently egregious so that a single incident may in fact
state a hostile work environment claim. This is one of those cases, and the Commission finds
that Complainant has a stated a viable claim of harassment that warrants further investigation.
In addition, the Commission has a policy of considering reprisal claims with a broad view of
coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000).

employee. 29 C.F.R. § 1635.1. Genetic information means information about (i) an
individual's genetic tests; (ii) the genetic tests of that individual's family members; and (iii) the
manifestation of a disease or disorder in family members of such individual (family medical
history). 29 C.F.R. § 1635.3(c). Complainant's complaint is devoid of any allegations or
facts regarding genetic tests, the genetic tests of his family members, or his family medical
history. As a result, the Commission finds that the Agency’s dismissal of this basis was
proper.
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Under Commission policy, claimed retaliatory actions which can be challenged are not
restricted to those which affect a term or condition of employment. Rather, a complainant is
protected from any discrimination that is reasonably likely to deter protected activity. See
EEOC Compliance Manual Section 8, “Retaliation,” No. 915.003 (May 20. 1998), at 8-15;
see also Carroll.

Consequently, the Commission finds that Complainant has set forth an actionable claim of
harassment that requires investigation and further processing. Accordingly, the Agency's final
decision dismissing Complainant's complaint is REVERSED. The complaint is hereby
REMANDED to the Agency for further processing in accordance with this decision and the
ORDER below.

ORDER (E0610)

The Agency is ordered to process the remanded claim in accordance with 29 C.F.R.
§ 1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claim 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
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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 (Nov. 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
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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

June 20, 2013
Date