EEOC Appeal No. 0120133382
02-11-2015
Complainant v. U.S. Postal Serv.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120133382
Agency No. 4E-980-0069-13
DECISION
Complainant filed a timely appeal with this Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 26, 2013, 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
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Regal Post Office facility in Spokane, Washington.
On July 22, 2013, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) when management failed to investigate and properly deal with an incident of harassment that occurred on May 10, 2013. Specifically, Complainant alleged that a coworker, who was angry with him over a work-related matter, called Complainant a "homo," and said that he was "living in sin, and that he would be going to hell." Complainant alleged that he immediately reported the incident to his supervisor, who he said essentially did nothing other than tell both employees to stay away from each other and criticize Complainant for responding to the coworker by questioning whether he was a good Christian for saying such things. In his July 2013 complaint, Complainant also alleged that since he reported this incident, management and the coworker have engaged in a continuing pattern of retaliatory harassment. In his complaint, however, he did not provide specific details of the alleged retaliation.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency found that the incident on May 10, 2013, while inappropriate, did not rise to the level of a hostile work environment. As for Complainant's claim of retaliatory harassment by management, the Agency noted that Complainant did not provide any support for this "vague" assertion.
Complainant filed the instant appeal. In his statement on appeal, Complainant provided additional information regarding his claim of retaliatory harassment following his reporting the May 10 incident. Complainant provided the following examples of the alleged retaliatory harassment:
1. On May 18, 2013, comments were made to Complainant about the postal inspectors heading his way because of his complaint, which he believed was intended to intimidate him.
2. On May 31, 2013, the supervisor complimented the coworker in front of other employees and Complainant for finishing Complainant's route in two hours. Complainant believed this was designed to humiliate him.
3. On June 3, 2013, Complainant believed someone hid the key from the "accountable cart" from him.
4. On June 5, 2013, Complainant received a call at home from the coworker asking Complainant where he was and asked several questions of Complainant about leaving his route. When Complainant returned to the facility, he asked the coworker why he was calling him. The coworker pulled up the GPS on the computer and it had Complainant in places that were off his route. However, Complainant indicated that this was contradicted by the mileage on his car and his clock rings. When Complainant informed the supervisor of the coworker's call, the supervisor stated, "did he hurt your feelings?" Complainant was shocked by the supervisor's response.
5. On June 21, 2013, the supervisor told Complainant that he had to stop "rubber banding" his sorts as it was taking too long. He has never been told before to stop using rubber bands.
In response to the appeal, the Agency requested that EEOC affirm its decision dismissing the complaint.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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 or disabling condition. 29 C.F.R. �� 1614.103, .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 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
Sex-Based Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings 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 the complainant's employment.
Title VII does not explicitly include sexual orientation as a basis for protection under the law. Nevertheless, the law's broad prohibition of discrimination "on the basis of . . . sex" will offer coverage to lesbian, gay and bisexual individuals in certain circumstances. Complainant v. Department of Homeland Security, EEOC Appeal No. 0120110576 (August 20, 2014) ("sex discrimination claims may intersect with claims of sexual orientation discrimination."). Moreover, the Commission has previously found that as long as the allegations state a viable claim of sex discrimination, the fact that a complainant has characterized the basis of discrimination as sexual orientation does not defeat an otherwise valid sex discrimination claim. See Baker v. Social Security Administration, EEOC Appeal No. 0120110008 (January 11, 2013).
In Oncale v. Sundowner Offshore Services, Inc., the Supreme Court further established that Title VII prohibits actionable sex-based harassment even when the perpetrator and the victim are the same sex. 523 U.S. 75, at 79 (1998) ("Nothing in Title VII necessarily bars a claim of discrimination 'because of ... sex' merely because the plaintiff and the [perpetrator] are of the same sex.").
Not all claims of harassment are actionable. However, the Commission has held that, under certain circumstances, a limited number of highly offensive slurs or comments may in fact state a claim or support a finding of discrimination under Title VII. See Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996). In this case, we find that the hateful nature of the alleged comments made on May 10, 2013, coupled with the alleged lack of adequate response on the part of management, was sufficiently severe to state a viable claim of harassment due to gender-based stereotyping that requires further investigation and processing. See Couch v. Department of Energy, EEOC Appeal No. 0120131136 (August 13, 2013); (noting that certain terms applied to homosexual individuals such as "fag" or "faggot" have been historically used in the United States as highly offensive, insulting and degrading sex-based epithets against gay men or lesbian women who are perceived as failing to conform to gender stereotypes); Complainant v. United States Postal Service, EEOC Appeal No 0120132452 (November 18, 2014) (same).
Retaliation Claim
In addition, Complainant claimed that he has been subjected to unlawful retaliation following his complaint of harassment. Only on appeal did Complainant provide a list of events in support of this claim. The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). 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 actions that are 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. On appeal, Complainant has alleged a series of incidents immediately following his reporting of the May 10 incident as examples of the alleged ongoing retaliatory harassment. By alleging such a pattern of ongoing harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. United States Postal Service, EEOC Request No. 05930303 (November 12, 1993). Since we are remanding the complaint for further investigation on claim 1, we will require the Agency to also investigate the retaliation claim, including asking Complainant to provide greater detail in support of his retaliation claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision dismissing the matter for failure to state a claim and REMAND the complaint for further processing in accordance with the following Order.
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 tends 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
February 11, 1015
__________________
Date
2
0120133382
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120133382