0120171001
11-29-2016
Arnold C.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Arnold C.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120171001
Agency No. DON-16-62306-03476
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 29, 2016, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Material Handler (Forklift Operator) with the Agency's Naval Oceanographic Office at the Stennis Space Center, Mississippi.
On November 9, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (hearing impairment and shoulder injury).
On November 29, 2016, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following two claims:
1. On August 26, 2016, Complainant's second-line supervisor (S2) provided Complainant with the organization's written policy instruction related to leave;
2. On August 26, S2 made the comment "Can you hear now?"2
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency acknowledged that S2's comments may have been inappropriate, however the Agency reasoned that such remarks were insufficient to render Complainant aggrieved.
This appeal followed.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that the Agency improperly dismissed Complainant's complaint for failure to state a claim under to 29 C.F.R. � 1614.107(a)(1). In Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), the Supreme Court of the United States reaffirmed Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that an objectively hostile work environment is created when a reasonable person would find it hostile or abusive and a complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. The trier of fact must consider all of the alleged harassing together in the light most favorable to a complainant, determine whether they are sufficient to state a claim. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar.13, 1997). In order to state a cognizable claim under the EEOC regulations, it is sufficient for a complainant to have alleged a pattern of harassment. See Cervantes v. U.S. Postal Svc., EEOC Request No. 05930303 (Nov. 12, 1993).
We find that a fair reading of the pre-complaint documentation reflects that Complainant has, in essence raised a claim of harassment. We note, for example, that the record contains the following account from Complainant regarding insults from Agency supervisors:
This not the first time that someone in the Command has made comments towards me and my Service-Connected issue. On July 10, 2012, my Supervisor at the time made a remark that I needed to wear a shirt that said I was deaf on it. She also made a statement that I needed to get my ears fixed. She made this Statement in the company of my coworker (emphasis added).
Though the above matter relates to an exchange with another supervisor, we considered all of the alleged harassment together and in the light most favorable to Complainant. According to Complainant, he reported the 2012 incident and human resources had "handled it." But later, in late 2016, upon Complainant's return from pre-approved sick leave to receive medical care for his service-connected disability, his then-acting supervisor (S2) issued Complainant a hard copy of Agency leave policy. Thereafter, S2 commented "Can you hear now?"
Here, the record shows that Complainant has provided sufficient articulation of his claim to state a cognizable claim that the Agency created a hostile work environment on the basis of disability.
We REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, unless the matter is otherwise resolved prior to that time. If 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 Complainant. If the Agency does not comply with the Commission's order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). 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, 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 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 (M0416)
The Commission may, in its discretion, reconsider the decision in this case if 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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 25, 2017
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 S2 admitted that he was well-aware of Complainant's hearing limitations and on-going disability accommodation.
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