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.
Employment Complaints Are Us 