0120100568
04-07-2011
Paul R. Webster, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Paul R. Webster,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120100568
Agency No. 094523A02611
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated October 13, 2009, 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.
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
During the period at issue, Complainant worked as a Crane Operator at
the Agency's Puget Sound Naval Shipyard and Intermediate Maintenance
facility in Bremerton, Washington. On August 3, 2009, Complainant
filed an informal complaint. During the informal complaint period,
Complainant provided journal entries to the EEO Counselor assigned to
his case. The record reveals that when the EEO Counselor submitted
his report to Complainant on October 5, 2009, he was in possession of
journal entries dated between August 14, 2005 and September 3, 2009,
outlining allegations of discrimination during that period.
Informal efforts to resolve Complainant's concerns were unsuccessful.
On September 14, 2009, Complainant filed the instant formal complaint.
Therein, Complainant claimed that the Agency subjected him to
discrimination on the bases of religion (Christian) and in reprisal for
prior protected activity. Complainant made reference to the journal
entries attached to his informal complaint and submitted additional
entries regarding events that took place on or after September 14,
2009.
On October 13, 2009, the Agency issued a final decision dismissing the
formal complaint. In its decision, the Agency determined that the formal
complaint was comprised of one claim, identified as follows:
On June 26, 2009, Complainant was subjected to harassment when a co-worker
(CW1) angrily waved his arms and shouted at Complainant and Complainant's
supervisor in front of the remainder of the work crew.
The Agency dismissed the formal complaint for failure to state a claim.
The Agency found that the June 26, 2009, event, standing alone, failed to
sufficiently rise to the level of an unlawful hostile work environment.
CONTENTIONS ON APPEAL
Complainant argues that the Agency, in its decision, was "selective in
their facts [and] grossly play[ed] down the severity of [CW1's] behavior."
Complainant continues his argument that he has been subject to continuous
harassment.
The Agency did not submit arguments in response.
ANALYSIS AND FINDINGS
Complainant has shown an injury or harm to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Dep't of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). In its final
decision, the Agency distilled the matters raised in the instant formal
complaint into a single claim, relating to an incident that took place
on June 26, 2009. However, the complaint file reveals a chronological
annotation of a series of incidents of alleged discriminatory activities
stretching over a four-year period. A fair reading of the entire
record, including the formal complaint and Complainant's statement
on appeal, establishes the instant complaint was not comprised solely
of the single matter identified by the Agency in its final decision.
Instead, Complainant's complaint encompasses a variety of incidents
including, but not limited to, being subjected to foul and inappropriate
language on numerous occasions,1 being told by a co-worker in a sarcastic
tone, "this isn't church," being subject to unwanted cigarette smoke,
and other incidents. For example, on July 7, 2009, Complainant lists
several examples of alleged harassment, including being subject to sexual
comments, sexual pictures, offensive comments and other conduct.
The allegations taken as a whole, if true, sufficiently establish a
pattern of harassment that states a claim for which EEO regulations
allow a remedy.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED. The complaint, as defined herein, is 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 claims in accordance with
29 C.F.R. � 1614.108. 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 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 (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
April 7, 2011
__________________
Date
1 In a journal entry dated April 29, 2009, Complainant lists fourteen
specific examples of allegedly offensive language.
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0120100568
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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