05970111
06-17-1999
John Sexton, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation,) Agency.
John Sexton v. Department of Transportation
05970111
June 17, 1999
John Sexton, )
Appellant, )
)
v. ) Request No. 05970111
) Appeal No. 01960453
Rodney E. Slater, ) Agency No. 95-0551
Secretary, )
Department of Transportation,)
Agency. )
)
GRANT OF REQUEST FOR RECONSIDERATION
On November 7, 1996, John Sexton (appellant) timely initiated a request
to the Equal Employment Opportunity Commission (EEOC or Commission) to
reconsider the decision in John Sexton v. Department of Transportation,
EEOC Appeal No. 01960453 (September 10, 1996). EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation, or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
or the previous decision is of such exceptional nature as to have
substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
For the reasons which follow, appellant's request is GRANTED.
BACKGROUND
The record reflects that appellant is employed in a GS-07 position<1>
at the agency's Miami Air Traffic Control Tower. Appellant stated
that commencing February 25, 1995, he found more than 10 "plastic
strip holders" left about the work place which contained derogatory
remarks about appellant phrased in vulgar language, and several which
contained appellant's operating initials and drawings of male genitalia.
Such commentary also appeared in the form of graffiti in an elevator.
Appellant stated that after the first incident, he alerted agency
officials. The response of one official was that if he spoke to the other
employees, the situation would probably get worse, but that if he did not
say anything, the conduct would probably stop. Appellant noted that the
conduct did not stop. Appellant stated that on May 21, 1995, while he
was working, a flight plan came over the printer which showed the call
sign "SEXTON" and an aircraft type of "H/DICK." Appellant stated that
he brought the matter to the attention of another agency official, who
directed supervisors to tell their employees that such conduct would no
longer be tolerated. Appellant stated that, nonetheless, he subsequently
found three more strip holders containing offensive comments.
The previous decision affirmed a final agency decision dismissing
appellant's complaint for failure to state a claim, in that appellant's
claim was premised on perceived sexual orientation, which is not a
protected basis under Title VII. Both on appeal and in his request
for reconsideration, appellant objected to this characterization of
his complaint, noting that he filed his complaint for discrimination
based on his sex, not his perceived sexual orientation. A review of
the record reflects that there are two references to sexual orientation:
(1) a single comment on a plastic strip holder which refers to appellant
as a "homo"; and (2) a notation in a report of counseling prepared by
the EEO Counselor and not signed by appellant which indicates that the
basis of the complaint is "sex -- allege [sic] sexual orientation." In
his complaint, however, appellant identified the basis of discrimination
by checking the line marked "sex" and annotating it "male."
ANALYSIS AND FINDINGS
The Commission finds that the previous decision erred when it determined
that appellant's complaint was based on his perceived sexual orientation
rather than his sex. The conduct of which appellant complained
consisted of far more than the one comment which alluded to perceived
sexual orientation.<2> Further, the record contains no statement by
appellant asserting perceived sexual orientation as a basis. Rather,
that basis was asserted by the EEO Counselor, and there is no indication
that appellant agreed with this assertion. Appellant has maintained
that the basis of his complaint is sex (male), a cognizable basis of
discrimination under Title VII. Based on the forgoing, the Commission
finds that the previous decision contained an error of material fact;
appellant's request for reconsideration therefore is GRANTED.
The Commission notes that during the pendency of these proceedings, the
United States Supreme Court issued its decision in Oncale v. Sundowner
Offshore Services, Inc., ___ U.S. ___, 118 S.Ct. 998 (1998), holding
that same-sex sexual harassment claims are cognizable under Title
VII. The Court noted, however, that work-place harassment does not
automatically constitute discrimination "merely because the words
used have sexual content or sexual connotations. The critical issue
... is whether members of one sex are exposed to disadvantageous terms
or conditions of employment to which members of the other sex are not
exposed." (citations, quotation marks omitted) ___ U.S. at ___, 118
S.Ct. at 1002 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17,
25 (1993)). The Court explained that while "harassing conduct need not
be motivated by sexual desire to support an inference of discrimination
on the basis of sex," a complainant "must always prove that the conduct
at issue was not merely tinged with offensive sexual connotations, but
actually constituted discrimination because of sex." (quotation marks
omitted) Id.
The Court further explained that the type of conduct prohibited by
Title VII is that which is "so objectively offensive as to alter
the �conditions' of the victim's employment" as evaluated "from the
perspective of a reasonable person" in the complainant's position, taking
into account "the social context in which particular behavior occurs
and is experienced by its target." ___ U.S. at ___, 118 S.Ct. at 1003.
Accordingly, the Commission finds that appellant has alleged a set
of facts which, if taken as true, are sufficient to state claim of
sex discrimination. See Cobb v. Dept. of the Treasury, EEOC Request
No. 05970077 (March 13, 1997) (complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt complainant can
prove no set of facts in support of claim which would entitle complainant
to relief). The Commission therefore will remand appellant's complaint
for investigation.
CONCLUSION
Upon review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request meets the criteria of 29 C.F.R. �1614.407(c). Accordingly,
it is the decision of the Commission to GRANT appellant's request for
reconsideration. The decision in Appeal No. 01960453 is REVERSED;
the final agency decision is REVERSED, and the case is REMANDED for
further proceedings consistent with this decision and the Order of the
Commission, below. There is no further right of administrative appeal
from the decision of the Commission on this request for reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request. A copy of the agency's
letter of acknowledgment to appellant 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 (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
appellant. If the agency does not comply with the Commission's order,
appellant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503 (a). Appellant 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. ��
1614.408, 1614.409, and 1614.503 (g). Alternatively, appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. �1614.410.
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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 17, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant's position is identified only by the initials "ATA."
2In this regard, the Commission distinguishes Morrison v. Department of
the Navy, EEOC Request No. 05930964 (June 16, 1994), in which all of the
conduct of the putative harasser reflected discriminatory animus based on
the complainant's perceived sexual orientation: telling co-workers the
complainant was gay; that the complainant had been seen kissing another
man in a parked car; and that the complainant was dying of AIDS.