0120110775
04-26-2011
Kenneth R. Barr, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Kenneth R. Barr,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120110775
Agency No. 1H337002710
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 15, 2010, 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Clerk at the Agency's Processing & Distribution Center (P&DC)
facility in St. Petersburg, Florida.
On October 4, 2010, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the basis of reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when, on August 7, 2010, management allowed him to be humiliated
and harassed by a co-worker. Specifically, Complainant clamed that
on the date in question, a co-worker yelled out, in Complainant's
presence, that another co-worker was a "faggot." Complainant, who in
his pleadings describes himself as a gay male, also claimed that he
reported this incident to his supervisor, and his supervisor did nothing.
Throughout his pleadings, Complainant explains that he is constantly
subjected to harassment involving his sexual orientation, and management
has continuously allowed it to occur because of Complainant's prior
EEO activity.
On October 15, 2010, the Agency issued a final decision dismissing the
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. In its final decision, the Agency determined that Complainant
is not aggrieved, finding that his claims amount to no more than "petty
workplace disputes." In his appeal, Complainant proffers various letters,
consisting of physician statements, detailing Complainant's psychological
trauma as a result of the purported hostile work environment.
ANALYSIS AND FINDINGS
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether the harassment claims, when considered
together and assumed to be true, were sufficient to state a hostile
or abusive work environment claim. See Estate of Routson v. Nat'l
Aeronautics and Space Admin., EEOC Request No. 05970388 (Feb. 26, 1999).
Even if harassing conduct produces no tangible effects, such as
psychological injury, a complainant may assert a Title VII cause of action
if the discriminatory conduct was so severe or pervasive that it created
a work environment abusive to employees because of a discriminatory
factor. Rideout v. Dep't of the Army, EEOC Appeal No. 01933866 (Nov. 22,
1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
req. for reconsideration denied EEOC Request No. 05970995 (May 20, 1999).
The trier of fact must consider all of the circumstances, including the
following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
In addition, the anti-retaliation provisions of the employment
discrimination statutes seek to prevent an employer from interfering
with an employee's efforts to secure or advance enforcement of the
statutes' basic guarantees, and are not limited to actions affecting
employment terms and conditions. Burlington Northern & Santa Fe Railroad,
Co. v. White, 548 U. S. ____, 126 S. Ct. 2405 (2006). To state a viable
claim of retaliation, complainant must allege that: 1) he was subjected
to an action which a reasonable employee would have found materially
adverse, and 2) the action could dissuade a reasonable employee from
making or supporting a charge of discrimination. Id. While trivial harms
would not satisfy the initial prong of this inquiry, the significance
of the act of alleged retaliation will often depend upon the particular
circumstances. See also, EEOC Compliance Manual, No. 915.003 (May 20,
1998) (any adverse treatment that is based upon a retaliatory motive and
is reasonably likely to deter the charging party or others from engaging
in protected activity states a claim).
Applying these principles, the Commission finds that Complainant has
alleged a viable hostile work environment claim that requires further
investigaiton. Complainant's claims detail repeated non-action by Agency
management when notified of alleged harassment. This purportedly has
allowed a hostile work environment to develop in the Agency's P&DC
facility, where Complainant is employed. Therefore, the Agency's
dismissal of Complainant's complaint was improper.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED and the complaint is REMANDED to the Agency for
further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (ongoing hostile
work environment) 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 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
April 26, 2011
__________________
Date
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0120110775
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110775