U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations

FREDERICK
 MORRIS
, COMPLAINANT,
v.
JOHN M. MCHUGH, SECRETARY. 
DEPARTMENT OF THE ARMY, AGENCY.

Appeal No. 0120130749
Agency No. ARCEUFCRM12AUG3468

May 23, 2013

DECISION

Complainant filed an appeal with this Commission from the Agency's final decision, dated November 13, 2012, dismissing a formal complaint of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. 1614.405.

BACKGROUND

Complainant worked as the Regional Logistics Liaison, North Atlantic Division for the U.S. Army Corp of Engineers Logistics Facility at Fort Hamilton, in New York.

In January 2012, near the end of his tenure of service at Fort Hamilton, Complainant contacted the EEO office regarding discrimination based on religion, sex (including sexual orientation), and disability. According to Complainant, he learned that his colonel had called the Logistics Facility he would be moving to and defamed his character, his management style, and made reference to Complainant being gay. In March 2012, Complainant moved to Millington, Tennessee, where he worked as the Supervisory Building Management Specialist for the Agency's Logistics Facility.

Upon his arrival in Millington, Complainant alleged he observed the Human Resources Liaison and the General Counsel improperly discussing and disseminating information regarding personnel, EEO complaints, and personal information of employees. Months later, in August 2012, Complainant learned that personal information he had shared with the General Counsel, regarding his sexual orientation and religion, was widely known throughout the facility. He said he was told, "you are in the South now, you and [your partner] might find you are not as safe or accepted here as you were in New York. This is the Bible Belt."Complainant was also questioned about the prayer shawl he kept in his office. Believing that these individuals created a hostile work environment, by discussing minority employees in a derogatory and bigoted manner, spreading rumors about other employees, and treating him as a lesser individual, Complainant contacted the EEO Counselor in Millington.

Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, Complainant filed a formal EEO complaint on September 26, 2012.

The Agency framed the formal complaint as follows:
Complainant was subjected to a hostile work environment on the bases of religion (Jewish), sex (male-gender stereotyping), [FN1] and disability when:
(1) On August 23, 2012, a named General Counsel and Safety Officer informed employees at the Logistics Activity Center about Complainant's prior EEO participation.
(2) On August 23, 2012, the General Counsel, Program Analyst, and the Workforce Management Specialist discussed openly Complainant's sexual orientation with other employees creating a stressful working environment by targeting him for continuous harassment.
(3) Whenever Complainant was in a named management official's presence, the management official would look Complainant up and down with an expression as if the management official was getting his hands dirty. In addition, Complainant claims that the management official treated him differently from other similarly situated employees by relating work issues to Complainant's subordinate, the Building Management Specialist, and not communicating with Complainant as the supervisor. Complainant further alleges that this caused a breakdown in the chain of command and a negative impact on Complainant's working relationship with team members.
(4) The General Counsel made a derogatory comment stating, "you are in the South now, you and [Complainant's partner] might find that you are not as safe, or accepted here as you were in New York. This is the Bible Belt."
(5) The General Counsel informed Complainant that "No Fear" scheduled training was a joke and that management always knows who is complaining. Complainant was informed further that once management has the name of that person, he/she is in trouble, and they will make sure the problem disappears; i.e. the aggrieved individual will lose his or her job.
(6) Complainant was intentionally provided misleading instructions on the preparation of his Request/Authorization for DOD Civilian Permanent Duty of Temporary Change of Duty Station Travel (DOD Form 1614) which resulted in Complainant not receiving payment for his dependent's move from Colorado to New York.
(7) Based on false information, management intentionally misled Complainant by providing information that the Regional Liaison Managers would not be upgraded to GS-14s and that Complainant should look elsewhere to get a promotion. Upon Complainant arrival in Millington, the General Counsel provided a document, which highlighted that Complainant would not be promoted. The General Counsel stated that Complainant was the only GS-13 manager in Millington, and Complainant's position was a GS-14 when a non-white male held the position. The General Counsel further stated that all the other GS-14s were non-whites.
(8) The General Counsel and another individual informed Complainant that if Complainant had not moved to Millington, Complainant would have been fired because of his sexual orientation. The General Counsel stated that a named Colonel from Fort Hamilton did not have a problem with Complainant being Jewish, but had a problem with Complainant being gay.
(9) False information was intentionally provided in order to misguide Complainant so that he would not receive an award/medal from the Office of the AG-1, CP Program Support Division.
(10) On multiple occasions, with the latest occurrence being in March 2012, four named individuals discussed and shared Complainant's personal information regarding Complainant's prior EEO activity, disability and sexual orientation among his co-workers.
(11) On multiple occasions, with the latest occurrence being in March 2012, four named individuals had discussions that were derogatory, bigoted and spread rumors when Complainant was present regarding minority employees.
(12) On July 30, 2012, an individual came to Complainant's office seeking Complainant's subordinate. When Complainant asked what she wanted, the individual replied, "It's a secret."
(13) In the month of August 2012, after Complainant's daily prayer (in his office behind closed doors), Complainant had his prayer cloth with the Star of David clearly emblazoned in the fabric on the coat rack with his coat. The Acting Chief Administrative Branch entered Complainant's office and asked, "what's that?' Complainant responded that it was his prayer cloth, at which point the Acting Chief replied, "Oh, we are not supposed to have religious materials in the office". However, there are Christian and Mormon Bibles throughout the entire building.

On November 13, 2012, the Agency issued a final decision dismissing the formal complaint for failure to state a claim. With respect to many of the incidents, such as allegations (2), (4), and (11), the Agency reasoned that a remark or comment without a concrete action is not sufficient to render Complainant an aggrieved employee. Regarding allegation (1), the Agency noted that Complainant was not entitled to confidentiality once a formal complaint was filed. The Agency reasoned, with respect to allegation (3), that Title VII is not a general civility code and further that Complainant could have remedied the situation by "very simply directing [his] subordinate to keep you informed...."The Agency stated that the comment in allegation (5) was "nothing more than an opinion on certain training" and that the identified individual was not in Complainant's chain of command. As to Complainant's prayer cloth, allegation (13), the Agency reasoned that regardless of what was said, Complainant did not claim that he was asked or directed to remove the cloth from his office. Further, considering all the allegations together and assuming them to be true, the Agency found they were not sufficiently severe or pervasive to state a hostile work environment claim. The Agency also noted that while Complainant claims his sexual orientation was openly discussed, he "failed to state context or specifics".

Alternatively, allegations (6), (9), and (11) were also dismissed on the grounds of untimely EEO counselor contact. In allegation (6), regarding Complainant's move from Colorado to New York, the Agency estimated that the event must have occurred before 2010 and years beyond the forty-five day time limit. The Agency also found that the only records regarding allegation (9), indicate that the incident occurred in February 2011. The Agency therefore determined that Complainant's August 2012 contact was past the 45-day time limitation. Similarly, the Agency found that discussions in allegation (11) are reflected in February 2012 emails. The Agency found, in summary, Complainant waited more than forty-five days to contact an EEO Counselor regarding these matters.

Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment, and dismissed the individual allegations proffered by Complainant to support that claim on various procedural grounds. In determining whether a harassment/hostile work environment complaint states a claim, 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 Administration, EEOC Request No. 05970388 (February 26, 1999). 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 his/her race, gender, religion, or national origin. Rideout v. Department 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).

We find that a fair reading of the complaint reflects a comprehensive and detailed claim of a hostile work environment. The formal complaint includes ten typed pages describing the harassing environment to which Complainant believes he was subjected. However, the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment and instead defined the events as thirteen separate claims. The formal complaint describes an atmosphere of discrimination, not only targeting Complainant's religion, sexual orientation, and disabilities, but his opposition to racial discrimination as well. Even before the time of his arrival at the Tennessee facility, individuals at the facility were purportedly aware of his prior EEO activity and his sexual orientation, although Complainant only shared the information with a few Agency officials.

We reject the Agency's assessment that many of the incidents consist of simply remarks or opinions without concrete action. Instead, we find that the alleged matters, if proven true, could be sufficient to unreasonably interfere with Complainant's work performance. Complainant believes one individual deals with Complainant's staff members, instead of him, due to discriminatory animus. Instead of considering whether this may create a hostile work environment the Agency, in its decision, simply advises Complainant on how to handle the situation (i.e. tell your subordinates to report the contacts to him). As noted above. Complainant described being warned that "you are in the South now, you and [your partner] might find you are not as safe or accepted here . . . ." Moreover, Complainant notes incidents were negative comments are made about African Americans and the EEO process. Complainant perceives such ongoing events to create an abusive working environment. On appeal, Complainant asserts that the hostilities continue, noting that he has found threatening notes on his desk ("Jew boy faggot, we're watching, you are in the south now"). In response, the Agency simply claims the matters are new claims with no apparent nexus to the claims raised in the formal complaint, and finds that such matters have been addressed by the Naval Police. An investigation into the hostile work environment claim raised herein, may reveal that these later incidents are part of the same broad claim of harassment. Complainant has presented sufficient claims to have alleged a cognizable complaint of harassment.

As noted above, the Agency also dismissed some of the events are untimely pursuant to 29 C.F.R. § 1614.107(a)(2). The Supreme Court of the United States 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 Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). These claims were improperly dismissed on the grounds of untimely EEO Counselor contact. A fair reading of these events reflects that they are part of a broader harassment claim as identified above. As some of the harassment incidents were timely raised with an EEO Counselor, we find that all incidents in the harassment claim were timely raised as well.

CONCLUSION

Accordingly, the Agency's final decision regarding Complainant's claim as a hostile work environment, as defined herein, is REVERSED. The matter is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below.

ORDER (E0610)

The Agency is ordered to process the remanded ongoing discriminatory hostile work environment claim 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 COMMISSIONS 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. See29 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). AH 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. See29 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. See29 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

[FN1]. The Commission has found that lesbian, gay, bisexual, and transgender individuals may bring claims of discrimination under Title VII in certain circumstances, including sex stereotyping. SeeMacy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012)citingPrice Waterhouse v. Hopkins, 490 U.S. 228 (1989); Baker v. Social Security Administration, EEOC Appeal No. 0120110008 (January 11, 2013); Veretto v. United States Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011).



 

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