0120112767
11-18-2011
Frank Watson, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Frank Watson, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120112767
Agency No. 1G701003111
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision (FAD) dated April 22, 2011, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Processor at the Agency’s Lafayette Main Post Office facility
in Lafayette, Louisiana. On March 24, 2011, Complainant filed a formal
complaint alleging1 that the Agency subjected him to discrimination on
the bases of race (African-American), sex (male), age (54 years at time
of incidents), and reprisal for prior protected EEO activity under an EEO
statute that was unspecified in the record when between February 18 and
March 11, 2011, Complainant was subjected to a hostile work environment
when the following occurred:
1. Complainant was subjected to Official Discussions, management failed
to take appropriate action after he complained about sexual harassment,
he was “hollered at," and Complainant was subsequently sent to work
outside of his work area.
The Agency dismissed the claims for failure to state a claim.
The Agency improperly fractured the claims and analyzed the incidents
separately, and with regard to the Agency’s alleged failure to take
appropriate action following his complainant of sexual harassment and
the allegation that Complainant was “hollered at,” the Agency found
that such allegations were vague and that Complainant was not aggrieved.
Furthermore, the Agency found that with regard to all of the claims,
the actions complained of were not so severe as to constitute harassment.
With regard to Complainant’s allegation that he was sent to work outside
of his work area, the Agency found that Complainant was alleging that
the action constituted a “contract violation” and that the allegation
was therefore a collateral attack on the collective bargaining agreement
with the Union.
Complainant presents no new argument on appeal and the Agency requests
that we AFFIRM the FAD.
ANALYSIS AND FINDINGS
We find that the agency improperly dismissed complainant's complaint
for failure to state a claim. In Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993), the Supreme Court found that harassment is actionable,
even absent a claim that an agency's action harmed complainant in a
specific term, condition or privilege of employment, as long as the
complainant can otherwise demonstrate that the conduct was engaged in
with the purpose of creating a hostile work environment, and that the
conduct is sufficiently severe or pervasive as to alter the conditions
of the complainant's employment. 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. The trier of fact must consider
all of the alleged harassing incidents and remarks, and considering them
together in the light most favorable to the complainant, determine whether
they are sufficient to sate a claim. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
After a careful review of the record, we find that Complainant states
a claim of hostile work environment harassment. The Commission has
repeatedly found that claims of a few isolated incidents of alleged
harassment usually are not sufficient to state a harassment claim. See
Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996); Banks v. Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995). Here, however, we note that Complainant
alleges that after complaining to management about sexual harassment,
management failed to take action but instead approximately two weeks
later they moved him to work outside his work area. If true, such
allegations describe behavior that would unreasonably interfere with
complainant's work performance and render the work environment hostile.
We are further unpersuaded by the Agency’s finding that Complainant’s
allegation that he was sent to work outside of his work area constitutes
a collateral attack on the grievance process merely because Complainant
alleges that the Union failed to file a grievance. Accordingly, we
REVERSE the agency's decision and REMAND the complaint to the agency,
as framed herein, for further processing as set forth in the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claim 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 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 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
November 18, 2011
__________________
Date
1 The record shows Complainant also included an allegation of breach of
a prior Settlement Agreement. The FAD states that this allegation is
being handled separately by the Agency.
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0120112767
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112767