0120130899
06-05-2013
Carpio Casares, Complainant, v. Seth D. Harris, Acting Secretary, Department of Labor, Agency.
Carpio Casares,
Complainant,
v.
Seth D. Harris,
Acting Secretary,
Department of Labor,
Agency.
Appeal No. 0120130899
Agency No. CRC 12-08-092
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 14, 2012, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Workers' Compensation Assistant at the Agency's Office of Workers Compensation Programs (OWCP) facility in Denver, Colorado.
On June 15, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to a discriminatory hostile work environment on the bases of national origin (Hispanic), sex (male), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. in September 2011, Complainant's HIPPA rights were violated;
2. in November 2011, he received an unfavorable rating;
3. on an ongoing basis, Complainant's supervisor treated him unfairly and subjected him to less favorable terms and conditions of employment and delayed his work and service requests;
4. Complainant was told that his speaking Spanish in the office made his coworkers uncomfortable;
5. management refused to provide Complainant with feedback or process his work as quickly as his coworkers who were not Hispanic and who had not raised EEO concerns;
6. management encouraged Complainant's coworkers to harass and yell at Complainant and did not stop the harassment, despite Complainant's raising his concerns; and
7. Complainant was told to take down his mirror in his office.
The record shows that Complainant is the only Hispanic among the government (non-contract) employees and the only Spanish speaker among the employees in the Black Lung Division. Sometimes, Complainant would talk with the janitor of the facility at his cubicle or out in the hallway. He alleges that his co-workers approached him and told Complainant that, "it really bothers [them] when you speak Spanish to someone else, because [we] don't know what you're saying." Complainant also states that management sent all of the Spanish speaking claimants to him for assistance, even though management had formally assigned the claimants to other employees.
Of the eight employees in the unit, three are male employees. Complainant states that, from the third month after being hired, on February 16, 2010, he felt that he was not wanted in the office. Complainant reported to a female and had replaced a female. He alleges he was told by his supervisor and trainers, "you might want to find another job." He said that he filed complaint about his treatment by others and was reprimanded due to his complaints. Complainant is also the only disabled veteran in the unit. He alleges that the two other males in the unit perceive him as a threat because he is "new" and "because of the other factors, Hispanic, Disabled Veteran, etc." Complainant also states that he has a social disorder and is impacted by loud sounds and troubled by people who whisper around him.
Complainant averred that his "HIPPA" rights were violated on September 16, 2011, when his acting supervisor told other employees about his therapy sessions.
He also claims that after a co-worker entered his work space and yelled at him, he filed a complaint. He was then told to "act professional;" and on April 4, 2012, he was "put on notice." On May 9, 2012, he made contact with the EEO counselor.
Two days later, on May 11, 2012, he received his mid-year performance appraisal review, which he viewed as unfair. On May 17, 2012, his supervisor questioned him about the processing of a Direct Express form that was dated January 4, 2012, and processed on May 5, 2012. On May 25, 2012, Complainant was told to take down a mirror that he placed in his cubicle wall. Complainant states that his case load decreased after he filed his complaint.
On November 14, 2012, the Agency issued a final decision dismissing the claims regarding the violation of Complainant's HIPPA rights and his November 2011 performance evaluation for untimely EEO counseling.
Next, the Agency dismissed the remaining claims for failure to state a claim finding that the complaint failed to state a claim of actionable harassment. The Agency reasoned that "assuming arguendo that Complainant's co-workers have whispered or spoken noisily around him, and his supervisor has permitted this to happen, such conduct was neither severe nor pervasive enough to alter the conditions of his employment." The Agency relied on case law that concluded that Complainant's coworker actions were insufficient to support a claim of harassment, despite complainant's anxiety and psychological fears. The Agency found that "because his co-workers' conduct did not rise to the level of actionable harassment, the Agency's failure to make it stop likewise cannot be found to create a hostile work environment."
This appeal followed.
ANALYSIS AND FINDINGS
On appeal, Complainant maintains that the Agency erred when it addressed his claims individually and it failed to take effective action to promptly address the alleged harassment. The Agency states that the actions, taken collectively, are insufficient to state a claim and asks that its decision be affirmed.
Failure to State a Claim
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, 1614.106(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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that he or she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
In this case, Complainant alleges that the Agency subjected Complainant to an ongoing pattern of harassment, unfair treatment and an intimidating work environment, that included Complainant being yelled at, given unfavorable reviews, having his work delayed, being told not to speak Spanish in the workplace; and, after raising EEO claims with management, he was "put on notice," ridiculed, and his supervisor reduced his case load. We find that Complainant's allegations are sufficient to state a claim of a hostile work environment.
Upon review, therefore, we find that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Untimely EEO Contact
EEOC Regulation 29 C.F.R �1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
The Agency has improperly fragmented Complainant's claim of ongoing discriminatory harassment and dismissed some of the incidents offered in support of that claim on timeliness grounds. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). As many of Complainant's allegations were timely raised with the EEO counselor, and all his allegations are part of a single hostile work environment claim, we find the Agency erred in dismissing some allegations on timeliness grounds.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint to the Agency for further processing in accordance with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded hostile work environment claim in accordance with 29 C.F.R. � 1614.108 et seq. 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 tends 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
June 5, 2013
__________________
Date
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0120130899
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130899