0120161563
08-12-2016
Demarcus I.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Demarcus I.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161563
Agency No. 1G351000816
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 10, 2016, dismissing a formal 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 Mail Handler for the Agency at the Birmingham Annex in Birmingham, Alabama.
On February 17, 2016, Complainant filed an EEO complaint alleging that he was subjected to discriminatory harassment on the bases of his sex (male) and in retaliation for protected EEO activity when:
(1) In November 2015, an acting supervisor made inappropriate comments about him in front of his coworkers in a public setting. Specifically, Complainant alleged that during a safety talk with the unit, the acting supervisor stated, in reference to Complainant, "what guy has another man's picture pop-up when he calls? Every time [a named employee] calls [Complainant], [the named employee's] picture pops up. I'm just saying, them boys are gay." In another instance, Complainant alleged that in a break area, the acting supervisor stated "[the named employee] calls [Complainant] and says "hey, baby, let's go to break and lunch together." Complainant stated that the acting supervisor stated that the named employee and Complainant "go make out in a car."
(2) On February 4, 2016, Complainant submitted two PS Form 1767 safety forms and management did not act on or provide Complainant copies of the forms.
On March 10, 2016, the Agency issued a final decision dismissing the complaint in its entirety, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. With regard to claim (1), the Agency reasoned that the acting supervisor's comments, even if made as alleged by Complainant, were not sufficiently severe or pervasive to create a viable hostile work environment claim. The Agency also dismissed claim (2), concluding Complainant was making an impermissible collateral attack on the proceeding of another forum - the Office of Safety and Health Administration (OSHA).
Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
Claim 1
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. 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 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 (Apr. 21, 1994).
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. Thus, not all claims of harassment are actionable.
Here, a fair reading of the complaint in conjunction with the EEO counseling report and statements submitted on appeal reveals that Complainant has alleged a pattern of harassment sufficient to state a cognizable claim under the EEOC regulations. See Cervantes v. United States Postal Service, EEOC Request No. 05930303 (November 12, 1993). In addition to the two incidents described on his complaint form, Complainant has alleged that "management has repeatedly discriminated and harassed" him since his arrival at the office and that such discrimination has happened "on more than one occasion." With regard to the acting supervisor responsible for the two November 2015 incidents, Complainant noted in his Pre-Complaint Counseling Form that S1 has made sexual jokes about Complainant "a lot."
The Agency, in its dismissal decision, also notes that the acting supervisor has been removed from supervision because of the harassment alleged by Complainant. While not altogether clear, the Agency appears to be claiming it cannot be held liable for the harassment because it took prompt and corrective action. However, whether or not this is the case cannot be determined without a proper investigation as required by our regulations. We find that the Agency's argument goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether he has stated a justiciable claim under Title VII. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991).
Claim 2
Although we determine that claim (1) was improperly dismissed for the reasons addressed above, we nevertheless determine that the Agency properly dismissed claim (2) for failure to state a claim. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 25, 1993). In claim 2, Complainant raised concerns about a workplace safety form under the jurisdiction of OSHA. The proper forum through which Complainant should raise his concerns is with OSHA.
CONCLUSION
The Agency's final decision dismissing Complainant's claim (2) was proper and is AFFIRMED. We REVERSE the Agency's final decision dismissing claim (1), defined as a harassment/hostile work environment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to process claim (1) (harassment/hostile work environment) in accordance with 29 C.F.R. � 1614.108 et seq. 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 of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (T0610)
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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 12, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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