0120064647
03-06-2008
Russell Hatcher, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Russell Hatcher,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200646471
Agency No. AREUSTST06APR01419
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 5, 2006, 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.
Upon review, the Commission reverses in part and affirms in part the
agency's decision, dismissing complainant's complaint.
At the time of the incidents giving rise to this complaint, complainant
was employed as a cook at the agency's U.S. Army Garrison-Stuttgart,
Directorate of Logistics, Supply and Services Division, Food Services
Branch, in Stuttgart, Germany. In his complaint, complainant alleged
that he was subjected to sexual harassment on the basis of his sex when:
1) On March 10, 2006, he was called by the Facility Manager (FM) to
watch a 15 second video clip in the presence of his coworkers of a
"woman giving the man oral sex;"
2) A sergeant (S1) told complaint's coworkers that they should watch their
"meat" and that there was a "gator" loose; and
3) From March 10 through March 30, 2006, he was subjected to comments
from coworkers regarding how much they hated working with faggots, "how
no faggots or [gatormen] worked [there] before they got new people."
Complainant further alleged he was subjected to retaliation when:
4) On or about April 4, 2006, he became aware that a Staff Sergeant (SS)
made a written reference to a verbal counseling that occurred March 11,
2006; however, he never received this verbal counseling; and
5) He was not questioned regarding an incident between him and a coworker
that occurred March 30, 2006, but other witnesses were questioned.
The agency, in its letter of dismissal dated July 5, 2006, dismissed
complainant's claims for failure to state a claim. The agency found that
with regard to claim (1), one incident of watching a 15 second clip was
not sufficiently severe to render him aggrieved and that the chain of
command took appropriate actions to stop the behavior. With regard to
the claims (2) and (3), the agency found that the name-calling during
the limited time frame of 13 days that complainant was employed by
the agency was not sufficiently pervasive to render him aggrieved.
With regard to complainant's retaliation claims, the agency found that
complainant failed to show that he suffered some tangible employment
action and that he failed to show that a nexus existed between any prior
EEO activity and any adverse employment action.
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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
With regard to complainant's claim of sexual harassment, we find
that complainant stated a claim. A complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that the
complainant cannot prove a set of facts in support of the claim which
would entitle the complainant to relief. We find that the claims,
taken together, are sufficiently severe such that he states a claim
of sexual harassment. We remind the agency that complainant alleges
three incidents in a single claim of sexual harassment; and therefore,
the incidents must be considered collectively. We note that the agency
stated in its decision that it took quick and appropriate action to
stop the behavior and it did not recur, however, these facts goes to
the merit of the case; namely whether the agency avoided liability.
As such, we find that the agency erred in dismissing claims (1)-(3).2
Title VII prohibits retaliation against employees and applicants for
employment for engaging in protected activity. 42 U.S.C. � 2000e-3(a).
Protected activity consists of the following: (1) opposing a practice
made unlawful by one of the employment discrimination statutes (the
"opposition" clause); or (2) filing a charge, testifying, assisting,
or participating in any manner in an investigation, proceeding, or
hearing under Title VII (the "participation" clause). EEOC Compliance
Manual Section 8 on Retaliation No. 915.003, 8-1 (May 20, 1998).
We find that complainant alleged in his complaint that he informed
the FM that he felt the video was inappropriate on March 13, 2006.
As such, complainant engaged in opposition when he complained about the
video clip. Claimed retaliatory actions which can be challenged are
not restricted to those which affect a term or condition of employment.
EEOC Compliance Manual Section 8, No. 915.003 (May 20, 1998), at 8- 15;
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. ___, 126
S.Ct. 2405, 2412-2413 (2006). The Commission's policy on retaliation
prohibits any adverse treatment that is based on a retaliatory motive
and is reasonably likely to deter the charging party or others from
engaging in a protected activity. See EEOC Compliance Manual Section 8,
"Retaliation" No.915.003 at pp. 8-13 (May 20, 1998).
We find that complainant failed to state a claim of retaliation
with regard to claim (4). Complainant appears to allege that he was
retaliated against when the SS referred to a verbal counseling the SS
stated occurred on March 11, 2006, however, complainant did not receive
any verbal counseling on that day. It is unclear from complainant's
allegation specifically how the SS's action would be reasonably likely
to deter him from engaging in protected activity. Therefore, we affirm
the agency's dismissal of claim (4), for failure to state a claim.
With regard to claim (5), in his formal complaint, complainant stated
that as a result of an incident between him and a co-worker, the agency
questioned all the people in the dining facility about the incident
except for complainant. As a result of those statements, complainant was
informed that he was the cause of the incident. We find that complainant
stated a claim of retaliation since the agency's failure to question
complainant about the incident and finding him at fault for the incident
is reasonably likely to deter complainant or others from engaging in
protected activity. As such, we find that the agency erred in finding
that complainant failed to state a claim of retaliation as to claim
(5).
We find that complainant has shown an injury or harm to a term, condition,
or privilege of employment for which there is a remedy with regard to
claims (1)-(3), and (5). See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Accordingly, the agency's
final decision dismissing complainant's complaint is reversed in part
and affirmed in part. The complaint is hereby remanded to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E0900)
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 (K0501)
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
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 (M0701)
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), 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 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 (R0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____03-06-2008_____________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 The Commission has no jurisdiction over claims of sexual orientation.
See Yost v. United States Postal Service, EEOC Request No. 05970940
(October 6, 1997). However, it is unclear from the record whether
complainant alleged he was subjected to discrimination due to sexual
orientation or for failure to conform to sexual stereotypes. In Price
Waterhouse v. Hopkins, 490 U.S. 228, 250, (1989), the Supreme Court held
that sex discrimination includes allegations involving sex stereotyping.
See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998).
Therefore, we find that an investigation is necessary to determine which
complainant is alleging.
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0120064647
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064647