Jason E. Veretto,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120110873
Agency No. 4B-060-0130-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency’s final decision dated October 20, 2010, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as a Rural Carrier at the Agency’s Farmington, Connecticut facility.
On July 22, 2010, Complainant initiated contact with an EEO counselor and, on September 28, 2010, filed a formal EEO complaint alleging he had been subjected to a hostile work environment because of his sex (male).
In his formal complaint, Complainant stated that, on March 9, 2010, an announcement appeared in the society section of the Hartford, Connecticut newspaper indicating that he was going to be married to his male partner. On March 12, 2010, Complainant alleged that a male coworker (CW1) approached another employee with the newspaper in his hand and asked him if he had seen Complainant’s wedding announcement. When the other employee answered in the affirmative, and also stated that he had been invited to and would be attending the wedding, CW1 “became extremely upset and began, at once, yelling about [Complainant] and the wedding and the fact that [Complainant] was marrying another man.”
On March 24, 2010, Complainant alleged he had a minor verbal disagreement with CW1’s wife, who worked next to him, over the placement of a cart. Complainant alleged that CW1 intervened, “charging” into Complainant’s work area, bumping his chest into Complainant’s chest, poking Complainant in the chest, backing him up and trapping him. Complainant contended that throughout this assault, CW1 continued to scream and swear, including threatening Complainant that, “I will beat you, you fucking queer.”
Complainant reported the incident to management and CW1 was immediately removed from the workplace. A postal inspector was called to conduct an investigation. As a result of the investigation, management took some sort of “administrative action”1 against CW1 and he remained away from Complainant’s work site for the next three months. However, on July 6, 2010, with no advance notice to Complainant, CW1 returned to the workplace. Complainant alleged that he asked that CW1 be reassigned to another location, but management did not act on the request. Complainant alleges that prior to his wedding announcement, CW1 had made a number of derogatory remarks about Complainant’s sexual orientation, but he believed that, “his attack on me on March 24 was as a result of being incensed at my upcoming wedding.”
On October 20, 2010, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, reasoning that Complainant was really alleging discrimination based on his sexual orientation, not his gender, and therefore had not asserted a claim under Title VII. The Agency also dismissed the March 2010 incidents as untimely raised with the EEO counselor, noting Complainant’s initial request for counseling was on July 22, 2010, more than 45 days from the latest March incident. The instant appeal followed.
On appeal, Complainant argues that he is, in fact, asserting a claim of sex discrimination under Title VII. He states that he believes CW1 subjected him to harassment sufficient to create a hostile work environment because CW1 learned that he was marrying a man. Complainant argues that if he had been a woman marrying a man, CW1 would not have been upset or motivated to take action against him. With regard to the timeliness issue, Complainant asserts that he thought that Agency management had taken appropriate action to protect him from CW1 until he reappeared in the workplace on July 6, and it was clear that management was not going keep them apart. Complainant claims that he initiated EEO counseling shortly thereafter, and well within 45 days.
ANALYSIS AND FINDINGS
As an initial matter, we find that the Agency improperly fragmented the claim in this case by asserting the complaint consisted of three separate claims of discrimination involving “discrete acts.” A fair reading of the complaint, in conjunction with the related EEO counseling report, indicates that Complainant is actually alleging a single claim of a pattern of harassment sufficient to create a discriminatory hostile work environment. In the case of coworker harassment, as alleged here, an agency is responsible for acts of harassment in the workplace by a complainant’s co-workers where the agency knew or should have known of the conduct and failed to take immediate and appropriate corrective action. See 29 C.F.R. § 1604.11(d).
In its final decision, the Agency dismissed the events which occurred in March 2010 as untimely raised with the EEO counselor because Complainant did not seek counseling until July 2010, more than 45 days later. Complainant explains that he did not seek counseling until July because he believed the Agency had taken immediate and appropriate corrective action based on his complaint to management about the actions of CW1. However, he asserted that he realized for the first time that that was not true when management returned CW1 to his workplace in July. Based on the correct characterization of Complainant’s complaint as a hostile work environment claim, we conclude that the Agency erred in dismissing the March incidents as untimely raised. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061 (June 10, 2002). In this case, the Agency’s decision to return CW1 to the workplace and deny Complainant’s request that he be transferred to another facility occurred in July 2010, well within the 45-day limitation period. This act created Complainant’s claim that the Agency should be liable for the acts of CW1 because it failed to take appropriate corrective action as required. Therefore, we find that Complainant’s entire claim, including the March 2010 incidents, was timely raised.
The Agency also dismissed the entire complaint for failure to state a claim, arguing that Complainant is really alleging discrimination because of his sexual orientation, which is not covered by Title VII. Complainant disputes this characterization of his claim, asserting instead that he is claiming sex (male) discrimination because CW1’s actions were motivated by his anger over the fact that Complainant was a man marrying a man, rather than a woman marrying a man.
The Agency is correct that Title VII’s prohibition of discrimination does not include sexual preference or orientation as a basis. See Morrison v. Department of the Navy, EEO Request No. 05930964 (June 16, 1994); Johnson v. United States Postal Service, EEOC Request No. 05910858 (December 19, 1991).
Title VII does, however, prohibit sex stereotyping discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989); 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); see also, Morin v. Department of Health and Human Services, EEOC Appeal No. 0120092626 (August 26, 2010). In Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997), the Commission made clear that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant can prove no set of facts in support of the claim which would entitle the complainant to relief. In this case, we find that Complainant has alleged a plausible sex stereotyping case which would entitle him to relief under Title VII if he were to prevail. He alleges that he was subjected to a hostile work environment because CW1 learned that he was marrying a man. He has essentially argued that CW1 was motivated by the sexual stereotype that marrying a woman is an essential part of being a man, and became enraged when Complainant did not adhere to this stereotype by announcing his marriage to a man in the society pages of the local newspaper. In other words, Complainant alleges that CW1’s actions were motivated by his attitudes about stereotypical gender roles in marriage. Complainant further alleges that the Agency should be held liable for CW1’s actions because it failed to take appropriate corrective action once the harassment was reported to management. These allegations are sufficient to state a viable hostile work environment claim under Title VII.
Accordingly, for the reasons stated above, the Agency’s dismissal decision is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the following Order.
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 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
July 1, 2011
__________________
Date
1 The record does not indicate whether any disciplinary action was taken against CW1 as a result of the incident with Complainant.
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0120110873
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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