0120081331
05-05-2008
Scott P. Sinkhorn, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Scott P. Sinkhorn,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120081331
Agency No. 2006-21092-FAA-04
Hearing No. 440-2007-00294X
DECISION
Complainant timely initiated an appeal from the agency's December 18, 2007 final order concerning his equal employment opportunity (EEO) 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
On February 20, 2007, complainant filed the instant formal complaint. Therein, complainant claimed that he was the victim of unlawful employment discrimination on the bases of sex, religion, and in reprisal for prior EEO activity when he was subjected to a hostile work environment from December 2001 to the present.
At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). On December 10, 2007, the AJ issued a decision dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The AJ determined that complainant did not sufficiently allege that he suffered a personal loss or harm regarding a term, condition or privilege of his employment. The AJ also dismissed the complaint on the alternative grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
The agency issued a final order dated December 18, 2007, implementing the AJ's dismissal decision. The instant appeal followed.
Dismissal for Failure to State a Claim
The regulations set forth at 29 C.F.R. �� 1614.103 and .106(a) provide that 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. 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). A fair reading of the record in this matter reflects that complainant is raising a discriminatory harassment/hostile work environment claim.
Where, a complainant has not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission will examine whether the complainant's allegations, when considered together and assumed to be true, are sufficient to state a hostile or abusive work environment claim. See Estate of Routson v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (February 26, 1999). Even if the alleged harassing conduct produced no tangible effects, a complainant may assert a cause of action if the discriminatory conduct was so severe or pervasive that it created a work environment abusive to complainant because of his race, gender, religion, national origin, age or disability. Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22, 1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration denied EEOC Request No. 05970995 (May 20, 1999).
Upon review of the record, the Commission finds that the AJ improperly fragmented complainant's harassment/hostile work environment claim, examining the factual allegations offered in support of the claim separately. In doing so, the AJ erred in dismissing complainant's hostile work environment claim for failure to state a claim. A review of the record reflects that complainant claimed that he has been harassed by agency officials and co-workers on an ongoing basis for a period of years, including being subjected to constant inappropriate language in the workplace by co-workers such as "cock, dick, shlong, pussy, cunt, twat, fuck, shit, asshole, bunghole, spic, nigger, bitch, jew-boy and other similar language." Complainant stated that he frequently reported the inappropriate language to management but no corrective action was taken. Complainant also alleged he was ordered by management to remove the earplugs he wore to muffle the inappropriate language in his workplace, and was retaliated against "for reporting and complaining about harassment; threats against his career; threats that his medical certificate would be revoked; threats of disciplinary actions; 1/20/04-received a letter accusing Complainant of sick leave abuse." Complainant also alleged he was repeatedly called the "holy one" by a coworker. Considering these allegations together and assuming them to be true, we conclude that these matters state an actionable claim of discriminatory harassment/hostile work environment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Dismissal for Untimely EEO Counselor Contact
The AJ also improperly dismissed the complaint on the alternative grounds of untimely EEO Counselor contact. The record reflects that at least one of the incidents comprising complainant's hostile work environment claim occurred within the 45-day time period preceding complainant's September 1, 2006 EEO Counselor contact. We note, for example, that complainant claimed that on July 31, 2006, and February 8, 2007, he continued to be subjected to the offensive language that was creating a hostile work environment, and his supervisor and the Area Manager refused to meet with him concerning his harassment claims. Because the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the complainant knew or should have known were actionable at the time of their occurrence. EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan 536 U.S. 101, 117 (2002)). Based on the foregoing, we find that the complaint was improperly dismissed on the alternative grounds of untimely EEO Counselor contact.
Accordingly, we REVERSE the agency's final order implementing the AJ's dismissal of the instant complaint, defined herein 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 shall submit to the Hearings Unit of the Chicago District Office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The agency is directed to submit a copy of the complaint file to the Hearings Unit of the Chicago District Office within fifteen (15) calendar days of the date this decision becomes final. The agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit of the Chicago District Office. Thereafter, the Administrative Judge in the Chicago District Office shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109, and the agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
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. 200e-16(c)(Supp. V 1993). 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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 5, 2008
__________________
Date
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0120081331
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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