0120121017
04-24-2012
Leon Brooker, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Leon Brooker,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120121017
Agency No. 4K-300-0150-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 23, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Bulk Mail Technician at the Agency's Business Mail Entry Unit facility in Duluth, Georgia. On October 27, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) when he was subjected to harassment. In support of his claim of harassment, Complainant alleged the following events:
1. On or about October 4, 2011, Complainant was informed that he had a call waiting while at work. When he entered the customer lobby area, he heard a customer say to another customer, "Watch out for that faggot." Complainant indicated that this was an example of a common occurrence in the workplace. Complainant stated that coworkers and customers would make comments like this about Complainant.
2. On September 12, 2011, Complainant heard Clerks discussing with customers and themselves that he was gay and that Complainant did not want anyone to know about it. Complainant was in the adjacent room while this conversation took place. The individuals were wondering if Complainant could hear, a customer said, "don't worry about it, he'll be okay tomorrow" with sarcasm. When Complainant entered into the room and asked what they were talking about, they denied making the negative comments.
3. On September 8, 2011, a Clerk was heard telling coworkers that, "he does not want anyone to know he is a faggot." Complainant over heard the same Clerk tell another Clerk, "he is trying to fool the new guys," and "watch out for that faggot."
4. Complainant asserted that his coworkers were manipulating other coworkers and customers to spread the lies and innuendos about Complainant.
5. These events occur on a daily basis that Clerks would convince customers to participate in the harassment of Complainant. Complainant indicated that the Agency employees would actively spread gossip and rumors about Complainant without regard to whether the statements were true or not.
6. Complainant has spoken to Agency Supervisors about the situation but there has been no change. Complainant indicated that the actions by his coworkers have made it difficult for him to function effectively in this type of environment.
7. The coworkers are recruiting others to support them in their efforts and justify their behavior.
The Agency defined Complainant's claim of harassment with only events (1) - (3) listed above. The Agency then dismissed claim of harassment pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency found that there were three events in which Complainant overheard comments made by his coworkers referring to him as a "faggot" among other things. The Agency determined that the events are clearly disrespectful and offensive. However, Complainant had not shown that he suffered a loss or harm with respect a term, condition or privilege of employment. Further, the events alleged by Complainant were not sufficient to state a claim of harassment.
In addition, the Agency noted that Complainant indicated that the alleged harassment dated back to November 2000. The Agency stated that Complainant had a prior EEO complaint which was dismissed in January 31, 2011. As such, the Agency believed that Complainant has previously raised such a claim which was previously dismissed by the Agency and affirmed by the Commission. Therefore, the Agency dismissed the instant complaint.
This appeal followed. The Agency asked that the Commission affirm its dismissal action.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. 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 a complainant's 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. National Aeronautics and Space Admin., EEOC Request No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, 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. Dept. of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Serv., EEOC Request No. 05940481 (February 16, 1995). Moreover, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv., EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment existed, the trier of fact should consider whether a reasonable person in the complainant's circumstances would have found the alleged behavior to be hostile or abusive. 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 their race, gender, religion, or national origin. Rideout v. Dept. of the Army, EEOC Appeal No. 01933866 (November 22, 1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration denied EEOC Request No. 05970995 (May 20, 1999). Also, 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.
As an initial matter, the Commission notes that Complainant previously filed a formal complaint alleging he was subjected to harassment. In support of his claim of harassment, Complainant provided one event on November 24, 2010. The Agency dismissed the complaint and it was appealed to the Commission. In EEOC Appeal No. 0120112085, the Commission affirmed the dismissal. Brooker v. U.S. Postal Serv., EEOC Appeal No. 0120112085 (Jul. 26, 2011). In that case, Complainant only provided a single event on November 24, 2010. In the instant case, Complainant raised several events and noted that these events occurred on a daily basis. The dates provided by Complainant in the instant complaint are different than the date provided in his prior complaint. As such, we cannot find that the instant complaint is the same events as those alleged in his prior complaint.
Furthermore, in the instant case, Complainant has provided more information regarding the alleged harassment by his coworkers. Complainant indicated that the coworkers not only engaged in the alleged harassment but convinced customers and other employees to engage in the conduct. Based on the extent of the daily nature of the alleged harassment, we find Complainant has provided enough information to establish that the alleged harassment was sufficiently pervasive to state a claim of harassment. As such, we find that the Agency's dismissal was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the complaint for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 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 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 24, 2012
__________________
Date
2
0120121017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121017