01a03239
06-30-2000
Dustin R. Heath, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dustin R. Heath v. United States Postal Service
01A03239
June 30, 2000
Dustin R. Heath, )
Complainant, )
)
v. ) Appeal No. 01A03239
) Agency No. 1E-853-0011-00
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that the complainant's complaint
was properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.107(a)(1)).<1> The complainant alleged that he was
discriminated against on the basis of his sexual orientation (gay)
when he was harassed and reassigned. For example, he alleged that a
supervisor told the complainant he would be removed if he discussed his
sexual orientation on the workroom floor, not to carry trays like a
"pizza boy," and not to wear tank tops. The complainant averred that
he was the only male prohibited from wearing tank tops. He also alleged
that gay harassment graffiti was written on the optical character reader
machine where he worked.
The Commission concludes that the agency was correct in dismissing the
complainant's complaint of discrimination for failure to state a claim.
The Commission has authority, in pertinent part, to enforce Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as EEOC Regulation
29 C.F.R. � 1614.103). The prohibition of discrimination based on sex
in Title VII does not include sexual orientation. Johnson v. United
States Postal Service, EEOC Request No. 05910858 (December 19, 1991);
Yost v. United States Postal Service, EEOC Request No. 05970940 (October
2, 1997). Accordingly, the agency's final decision is AFFIRMED.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
June 30, 2000
________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.
2The agency's final decision correctly noted that federal agencies are
barred from discriminating on the basis of sexual orientation under
Executive Order 11478, as amended by Executive Order 13807 (May 28,
1998). Further, the Postmaster General issued a policy statement that
harassment and disparate treatment based on actual or perceived sexual
orientation will not be permitted or condoned in the Postal Service,
and that employees are encouraged to report any variance from this
policy to a management official at the earliest opportunity. PB 21901
(August 31, 1995).