01a61143
05-24-2006
Rosendo A. Moreno, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rosendo A. Moreno, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61143
Agency No. 4J-600-0137-05
DECISION
The complainant filed a timely appeal with this Commission from the
agency's decision (FAD) dated October 31, 2005, 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
The complainant claimed that he was subjected to discrimination based
on his national origin (Mexico and Hispanic), sex (male), religion
(Catholic), age (born in 1957), and reprisal when starting in June
2005, his former supervisor's behavior toward him rose to the level
of harassment by, for example, repeatedly telling personnel that the
complainant was a liar, thief, lazy and no good, behaving aggressively
toward him with a hard look and actively ignoring him, hanging a voodoo
doll in an open area with a picture of his face on its head and a pin in
its eye, hanging a sign next to it about growing dope, and wishing him
ill by stating that she hoped his leg would fall off after he had knee
surgery. Complainant also asserted that prior to the above-described
incidents, in the period starting in June 2004, the former supervisor
allegedly engaged in the same or like harassing behavior of which the
complainant only had limited awareness since he worked in a different
facility at that time.1
The FAD dismissed the portion of the harassment claim starting in June
2005 for failure to state a claim. It reasoned that the alleged acts
did not rise to the level of harassment. On appeal, the agency adds
that it took appropriate action in response to the alleged harassment.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable.
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 state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
In the instant complaint, we find that complainant's allegations state
a viable harassment claim. The supervisor allegedly engaged in ongoing
efforts to turn people against the complainant, going so far as to
repeatedly tell personnel that the complainant was a liar, a thief and no
good, which got back to the complainant, hanging a voodoo doll with his
picture on its face and a pin in its eye, hanging a sign that could be
interpreted as the complainant being involved with drugs, and so forth.
She also allegedly ignored him and wished him ill will. The complainant
states all this was unwelcome, and caused him considerable distress.
This is sufficiently severe and pervasive to state a claim.
Further, the complainant timely sought EEO counseling regarding the
alleged harassment that occurred sometime after June 2004. A hostile
work environment claim is comprised of a series of separate acts that
collectively constitute one unlawful employment practice. National
Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 117 (2002).
Unlike a claim which is based on discrete acts of discrimination,
a hostile work environment claim is based upon the cumulative effect
of individual acts that may not themselves be actionable. Id. at 115.
A hostile work environment claim will not be time barred if all acts
constituting the claim are part of the same unlawful practice even
if some component acts of hostile work environment fall outside the
statutory time period so long as an act contributing to the claim falls
within the filing period. Id. at 117. Here, all the claimed harassment
was perpetrated by one individual was similar or the same in nature,
i.e., saying the same or like derogatory things about the complainant to
personnel, and possibly hanging the voodoo doll earlier than June 2005.
This is part of one allegedly unlawful employment practice.
Accordingly, FAD dismissing the complainant's complaint is reversed.
The complaint is hereby remanded to the agency for further processing
in accordance with this decision and the Order below.
ORDER
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108 et seq. The remanded claim is:
Whether the complainant was subjected to discrimination based on his
national origin (Mexico and Hispanic), sex (male), religion (Catholic),
age (born in 1957), and reprisal when starting sometime after June
2004 his former supervisor's behavior toward him rose to the level of
harassment by, for example (but not limited to), repeatedly telling
personnel that the complainant was a liar, thief, lazy and no good,
behaving aggressively toward him with a hard look and actively ignoring
him, hanging a voodoo doll in an open area with a picture of his face on
its head and a pin in its eye, hanging a sign next to it about growing
dope, and wishing him ill by stating that she hoped his leg would
fall off.
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 (K0501)
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 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 (M0701)
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), 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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 24, 2006
__________________
Date
1 The FAD defined separate harassment starting around June 2004 which
contributed to the complainant changing (around July 2004) from the
carrier to the custodial craft, and dismissed this matter for failure
to timely seek EEO counseling. On appeal, the complainant clarifies
that that switching crafts is not part of his claim.
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01A61143
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A61143