01974524
02-09-2000
Carol L. Morris, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carol L. Morris v. United States Postal Service
01974524
February 9, 2000
Carol L. Morris, )
Complainant, )
)
v. ) Appeal No. 01974524
) Agency No. 4B-060-0129-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainants filed the instant appeal from the agency's decision dated
April 17, 1997 dismissing complainant's complaint for failing to state
a claim.<1>
In her complaint complainant alleged that she was discriminated against on
the basis of sex (female) when: (1) she was issued a Letter of Warning
on January 14, 1997 for failing to report an accident; (2) she was
required to sign off on a statement concerning productivity standards;
and (3) she was ordered off of agency premises on February 8, 1997.
In her complaint complainant stated:
In the late summer of 1989, [Person A (female) - complainant's supervisor]
and myself were involved together in a sexual relationship. A short
time later, for personal reasons, I estranged myself from her. I really
never talked about why I was avoiding her, I just began to rebuff her
invitations. It became apparent that I wanted nothing to do with her.
She now carries a grudge.
In the April 17, 1997 decision the agency found:
Because your complaint is based on your sexual orientation, you do not
link your complaint on a basis covered by EEOC Regulation 1614.103.
Discrimination on the basis of sexual orientation is not actionable
under Title VII. Therefore . . . your complaint is being dismissed for
failure to state a claim.
On appeal the agency cited the Commission's decisions in Johnson v. United
States Postal Serv., EEOC Request No. 05910858 (Dec. 19, 1991) and
Morrison v. Department of the Navy, EEOC Request No. 05930964 (June 16,
1994) for the proposition that Title VII's prohibition of discrimination
based on sex does not include discrimination based on sexual preference
or orientation. In Johnson the Commission found that the agency correctly
rejected the portion of complainant's complaint alleging that she was not
reinstated to employment based on her sexual preference. Johnson, EEOC
Appeal No. 05910858. The Commission found that "Title VII's prohibition
of discrimination based on sex does not include sexual preference or
sexual orientation." Id. (citations omitted). The Commission also found
that complainant's claim in Johnson that complainant was not reinstated
based on her sex stated a claim of discrimination. Id. In Morrison the
Commission found that the derogatory statements at issue in the complaint
were directed at complainant based on his coworker's perception that
complainant was a homosexual. Morrison, EEOC Request No. 05930964.
The Commission found that such a complaint was not within the purview
of Title VII. Id.
Subsequent to the agency's April 17, 1997 decision the United States
Supreme Court issued a decision in Oncale v. Sundowner Offshore Services,
Inc., 118 S. Ct. 998 (1998) addressing the question of whether workplace
harassment can violate Title VII's prohibition against discrimination
because of sex when the harasser and the harassed employee are of the
same sex. In Oncale the Supreme Court found that "sex discrimination
consisting of same-sex sexual harassment is actionable under Title VII
. . ." Oncale, 118 S. Ct. at 1003.
Although the instant matter does not concern sexual harassment, the
instant matter does concern alleged sex based discrimination by a
management official of the same sex as complainant. The agency has
mischaracterized the complaint as concerning discrimination based on
complainant's sexual orientation. Complainant has not claimed that she
was discriminated against because she is, or is perceived as, homosexual.
Nor has complainant claimed that she was discriminated against because
of her sexual preference or perceived sexual preference. Therefore,
the Commission's holdings in Johnson and Morrison that discrimination on
the basis of a person's sexual preference or orientation is not covered
under Title VII are not relevant to the instant matter. In the instant
matter complainant is alleging that her supervisor took actions against
complainant because of complainant's sex. The Commission finds that
the instant claim which is based on sex alone is sufficient to state
a claim of sex discrimination under Title VII. Because the agency did
not dismiss any portion of the complaint on the grounds that complainant
was not aggrieved, the Commission shall not address whether the claims
in the complaint have rendered complainant aggrieved.
The agency's decision dismissing the complaint is REVERSED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
February 9, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.