Footnote – Other (Illegal) Non EEO Issues

The EEO Counselor’s report includes the Complainant’s assertion that her supervisor defamed her. To the extent the Complainant is asserting an independent claim of defamation, it is dismissed for failure to state a claim. See 29 C.F.R. § 1614.107(a)(1); Agnew v. U.S. Postal Service, EEOC Appeal No. at *1 (Jul. 26, 2005) (defamation claims “beyond the purview” of the EEO process).

COMMON ERRORS BY FEDERAL AGENCIES IN DISMISSING COMPLAINTS OF DISCRIMINATION ON PROCEDURAL GROUNDS

The EEOC has developed a five year strategic plan in which it has outlined five major priorities/strategic goals. One of the major strategic goals is “Access to Justice.”
To that end, the EEOC is concerned about, and decided to undertake a study of agencies’ procedural dismissals of EEO complaints because they believed this was one way in which access to justice was being denied.
FINDINGS OF EEOC STUDY ON PROCEDURAL DISMISSALS
The EEOC conducted a study where they examined 1500 decisions of procedural dismissals. They found that 33% to 40% of these dismissals were revised on appeal and remanded to the agency. Those numbers are only increasing. The EEOC concluded, based on this study, that there is a misunderstanding between the agencies and the EEOC with regard to what is required in order to procedurally dismiss a complaint.
The purpose of yesterday’s brown bag outreach event was to provide clarification and guidance to the agencies on when and on what basis a complaint can be procedural dismissed. One major takeaway for me was that the EEOC is advocating for a very liberal processing of the agencies’ EEO complaints, which is to say, the EEOC does not want these complaints dismissed for relatively minor reasons; and it would prefer that the benefit of the doubt be given to the Complainant, wherever possible.
FAILURE TO STATE A CLAIM
58% of the procedural dismissals that the EEOC studied were on the basis of failure to state a claim. Most of these dismissals are erroneous because of fragmentation of the complaint in hostile work environment type complaints. The EEOC stressed that you have to examine the totality of the circumstances in these cases. Specialist have to take care to review the complainant’s formal complaint as well as the EEO Counselor’s report to get an idea of what is occurring on the complainant’s work environment that would constitute a hostile work environment.
This lead to a very long, in depth and confusing discussion about the whole discrete and indiscrete thing…one of the EEOC panelist stated “there is no such thing as background evidence, it’s all just evidence” with regard to the issue of untimely discrete actions being “background evidence.” But the major takeaway from this discussion is that the EEOC wants to see all of the evidence with regard to these hostile environment cases. Labeling incidents and events as discrete or indiscrete, and determining their timeliness is only an issue with regard to what kind of remedy is available to the Complainant; and so at the accept/dismiss stage, one need not be to concerned about these issues.
Amber’s Personal Commentary: But the specialist asking the questions in the audience seemed to be very confused by exactly what is being required then. I too, felt like the panelist never really cleared up the major question which is how do you deal with determining what is timely and what is not, when you are dealing with a continuing violation that could go back for a number of years. I don’t feel like that question was ever really clearly answered. The overall response from the EEOC panelists was- we want to see everything that could be relevant with regard to these kinds of cases, and it has to be determined on a case by case basis.
Another specialist asked, “Isn’t allowing background evidence or discrete actions to go back years and years and years, unfair?”
The EEOC panelist response to that was, “Not if the events are all connected by a certain person and/or a certain theme.”
Then the specialist said, “But this is unfair because one timely discrete event will allow a complainant who otherwise would be barred from bringing these claims due to the timeliness issue, get all of these claims in by connecting them to the one discrete event. (And it’s true, it happens. I just wrote an acceptance letter that did just that.) Again, the EEOC said, it isn’t unfair because the remedy is going to be limited to whatever is timely….yeah, I guess.

TIMELINESS
25% of the procedural dismissals that the EEOC studied were on the basis of untimeliness. The EEOC explained that the burden is on the agency to ensure that the NRF is received by the complainant in a timely manner. They stated that they would not accept computer generated delivery receipts that just document that the certified item was delivered to a city or town. They must see the documentation that the NRF was signed for and received by the complainant.
Amber’s Personal Commentary: (Interesting because this can be an issue, a lot of times the EEO counselor’s do not include the green card, and don’t know where it is, I’ve found. Sometimes they don’t even send the NRF via certified mail.)
They stated that with constructive notice with regard to timeliness, the agency must have the NO Fear Act training certification or submit an affidavit from management that the EEO posters were up and visible.

PERSONNEL ACTIONS
The EEOC wanted to clarify that with regard to personnel actions, the clock does not begin running on the filing date for the EEO complaint until the effective date of the action, not the date of the proposal.
Beyond Failure to State a Claim and Timeliness, which constitute the basis for most of the dismissals, there were a few other areas were the EEOC expressed concern. They are explored below.

IMPROPER RETALIATION STANDARD
EEOC urges the agencies to remember that there is a lower standard for articulating a claim of retaliation. There does not have to be a personnel action, in order for a complainant to bring a valid retaliation claim but simply, something has to happen that creates a “chilling effect,” that would cause a reasonable person to think twice about coming forward with their EEO issues.
Amber’s Personal Commentary: blah, blah, blah, this was all a review for me since the EEOC pretty much says the same thing about retaliation in the private sector. I get it. The EEOC takes retaliation claims very seriously.

MERITS OF THE CASE
Agencies cannot touch on any of the merits of the claims before they are investigated. This means that you have to view all the facts at this preliminary stage in the light most favorable to the complainant.
Amber’s Personal Commentary: blah, blah, blah, this was all a review for me since we had already gone over this at the ECD retreat; but this is still a confusing area because sometimes you cannot get around the merits.

STANDING
CONTRACTORS
Whether or not a complainant has standing to use the federal EEO process comes up most often with contractors. The EEOC explained that the federal government workforce heavily relies upon contractors and if these contractors are treated as though they are employees, then they do have a right to use the federal EEO process.
What is at issue, primarily, is how much control federal management has over the contractors work experience and environment. Does the federal supervisor determine if the contractor is hired, fired, how their performance is rated, where they work, what kind of equipment they use? If the answers to those questions are yes, then the contractor is an employee with dual employers from the perspective of the EEOC.
They did note that the Supreme Court has taken a different view of this issue, with regard to other statutes and laws; yet the EEOC said, until the Supreme Courts specifically states that contractors are not to be viewed as employees with regard to EEO law, they believe their interpretation of the law on this point is sound.
What the EEOC wants agencies to do with contractors, which is apparently not being done to their satisfaction as the issue stands now, is to determined whether or not the contractor is like and employee, and if that determination is made (which is, they pointed out, fact-finding and a decision has to be reached that is technically on the merits, but that’s okay, because the issue is standing.) In order to determine the issue, a twelve point criteria taken from the Marshall A. Marik v. Department of the Army, EEOC Appeal No. 01A4339 (July 29, 2005) needs to be explored.
Amber’s personal commentary : This is one of those issues that comes up again in the private sector with so many places hiring contract and temporary employees; but it is really a tricky situation to deal with, when you have contractors complaining about fulltime employees. I’ve handled those kinds of complaints. It’s not so simple to deal with in practice, even if you (being in the position of an EEO counselor) try your very best to make sure that the contractors rights are respected.

GRIEVANCES V. THE AGENCIES’ INTERNAL EEO PROCESS
There was also a great deal of confusion around the whole election of forum issue. When can an agency say for sure, to the complainant, you have elected a different forum and you can’t bring your EEO complaint in this forum? The EEOC’s basic response was that if a complainant begins with an administrative grievance and EEO process and/or a negotiated Grievance EEO process, they will have to stay with that forum. However, if they began with the agencies internal EEO process, they will stay in that forum.
Then there was this whole discussion about (concurrent processing?) It was, quite honestly, very confusing to me. One specialist remarked, “It’s a very murky area as to when and whether a complainant can elect a grievance procedure over the EEO process.” I would tend to agree.

COLLATERAL ATTACK
The EEOC ‘s view of the collateral attack issue is that agencies’ use of it is overbroad. If someone references a collective bargaining agreement in their formal complaint, the agency cannot dismiss the complaint because of that reference. The EEOC stated that there was a rumor going around that if “IG” is mentioned in a complaint, it is automatically going to be dismissed on a collateral attack issue. But the EEOC said that is an incorrect assumption because if a complainant says,” my supervisor referred me to the IG in retaliation for filing complaint,” then that is a valid EEO complaint.
Amber’s personal commentary : This is one of those times when you are afraid to ask the question…umm what is the IG, because everyone else is acting like that is oh so obvious…..
In the end, I have to agree with Eleanore, the session with the EEOC confirmed that this group has a really firm handle on what is being required by the EEOC, as well as the rationale behind the requirements. I found most of this to be a review, however it did clarify for me, some of the odd things that I find confusing about this process. For example, I wasn’t clear on what role the EEO counselor is supposed to be serving in the federal sector complaint process, because these reports vary greatly from counselor to counselor. According to the EEOC, they are supposed to be assisting the complainant with clarifying what is or is not an EEO issue and helping them to frame their formal EEO complaint in terms that can be understood and investigated. Some of them did not get that memo…

Castello v. USPS, EEOC Appeal No. Appeal No. 0120111795

Cecile E. Castello,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.

Request No. 0520110649

Appeal No. 0120111795

Agency No. 1G-701-0071-10

DECISION TO RECONSIDER

The Equal Employment Opportunity Commission (EEOC or Commission),
on its own motion, reconsiders the decision in Cecile E. Castello
v. U.S. Postal Service, EEOC Appeal No. 0120111795 (July 22, 2011).
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision.  29 C.F.R. § 1614.405(b).

ISSUE PRESENTED

The issue presented is whether the Agency properly dismissed
Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for
failure to state a claim under 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 Mail Handler at the Agency’s Processing and Distribution Center
in New Orleans, Louisiana.  On December 28, 2010, Complainant filed an
EEO complaint alleging that the Agency subjected her to discriminatory
harassment when, on September 15, 2010, the Manager of Distribution
Operations (MDO) stated, “Cece [Complainant] gets more pussy than the
men in the building.”

On her Information for Pre-Complaint Counseling Form, Complainant listed
“sexual orientation / sex – female” as the discrimination factors.
In the EEO Counselor’s Report, the EEO Counselor wrote that Complainant
alleged discrimination based on sex.  In addition, the EEO Counselor
checked the “sex” box and specified “female.”  On her formal
complaint form, Complainant checked the “sex” box and wrote the term
“sexual orientation” next to the box.

The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim.  The Agency determined that
Complainant was alleging harassment on the basis of sexual orientation
and noted that sexual orientation was not a basis covered by the EEOC
Regulations.

On appeal, Complainant asserted that she was the victim of ongoing
workplace harassment.  Complainant argued that the Agency’s Policy on
Workplace Harassment prohibits, in pertinent part, “making offensive or
derogatory comments or engaging in physically threatening, intimidating
or humiliating behavior based upon … “sex (including gender identity
and gender stereotypes) … [and] sexual orientation.”  [emphasis
in original].  In response, the Agency requested that we affirm its
dismissal.

In Cecile E. Castello v. U.S. Postal Service, EEOC Appeal No. 0120111795
(July 22, 2011), the Commission affirmed the Agency’s dismissal of
Complainant’s complaint for failure to state a claim.  The previous
decision found that Complainant alleged harassment based on sexual
orientation, a basis not covered by Title VII.  The previous decision
acknowledged that Title VII prohibits sex stereotyping discrimination,
but determined that Complainant did not allege sex stereotyping in the
instant case.

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.  An agency shall accept a complaint from any 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, .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 (Apr. 21, 1994).

While Title VII’s prohibition of discrimination does not explicitly
include sexual orientation as a basis, Title VII does, however,
prohibit sex stereotyping discrimination.  Price Waterhouse v. Hopkins,
490 U.S. 228, 250 (1989); see Hitchcock v. Dep’t of Homeland Sec.,
EEOC Appeal No. 0120051461 (May 3, 2007) (affirming an AJ’s decision
to dismiss a claim of sexual orientation discrimination but remanding
Complainant’s sex stereotyping discrimination claim); see also
Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008) (finding that an
employer’s decision to withdraw a job offer from a transsexual applicant
constituted sex stereotyping discrimination in violation of Title VII).
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that a complainant can prove no set of facts
in support of the claim which would entitle the complainant to relief.
Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13,
1997).

In this case, based upon a fair reading of the record, we find that
Complainant has alleged a plausible sex stereotyping case which would
entitle her to relief under Title VII if she were to prevail.  Complainant
alleged that she was subjected to a hostile work environment when MDO
made an offensive and derogatory comment about her having relationships
with women.

Complainant has essentially argued that MDO was motivated by the sexual
stereotype that having relationships with men is an essential part
of being a woman, and made a negative comment based on Complainant’s
failure to adhere to this stereotype.  In other words, Complainant alleged
that MDO’s comment was motivated by his attitudes about stereotypical
gender roles in relationships.

In light of the Commission’s decision in Veretto v. U.S. Postal Service,
EEOC Appeal No. 0120110873 (July 1, 2011), which found that the Agency
erred in dismissing a claim of sex stereotyping discrimination under
Title VII (where a gay man alleged he was harassed because he intended to
marry a man rather than a woman), we find that Complainant’s allegation
is sufficient to state a viable hostile work environment claim under
Title VII.1

CONCLUSION

After reconsidering the previous decision and the entire record on its
own motion, the Commission VACATES the decision in Cecile E. Castello
v. U.S. Postal Service, EEOC Appeal No. 0120111795 (July 22, 2011),
REVERSES the Agency’s decision dismissing Complainant’s complaint,
and REMANDS the matter to the Agency for further processing in accordance
with the Order below.

ORDER (E0610)

The Agency is ordered to process the remanded claim (hostile work
environment based on sex stereotyping) 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.

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

_12/20/11_________________
Date

1 In her statement on appeal and in her comments on reconsideration,
Complainant alleged other incidents of discrimination.  If she has not
already done so, we advise Complainant to contact an EEO Counselor if
she wishes to pursue those matters.