Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency. Request No. 0520110680 Appeal No. 0120112085 Agency No. 4H-300059-11 GRANT Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120112085 (July 26, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b). After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to grant the request. BACKGROUND On January 7, 2011, Complainant filed a formal EEO complaint alleging that the Agency subjected him to sexual harassment discrimination on the basis of sex (male). On January 31, 2011, the Agency issued a final decision. Therein, the Agency framed Complainant's complaint as follows: On or around November 24, 2010, coworkers and customers made allegations regarding Complainant's sexual preference, including that he is gay and frequents gay clubs and bars. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim of harassment. The Agency noted that Complainant was not aggrieved by the alleged event. Although the Agency did not condone "teasing" of this nature, the Agency found that the incident was not sufficiently severe or pervasive to state a viable claim of harassment. In our previous decision, we affirmed the Agency's dismissal of Complainant's claim. We found that Complainant's complaint failed to state a claim of hostile work environment harassment. We noted that a fair reading of Complainant's complaint reflected that he was complaining about a one-day isolated incident that was not severe or pervasive enough to alter the conditions of his employment. In his request for reconsideration, Complainant contends, in pertinent part, that the harassment was not an isolated incident. Complainant contends that he has been harassed on a daily basis for 11 years. Complainant contends that in 2005 he attempted to speak with an EEO pre-complaint office about the harassment. Complainant also contends that management disciplined him for his use of sick leave that he had to take due to the ongoing harassment. ANALYSIS AND FINDINGS In order to merit the reconsideration of a prior Commission decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.405(b) is met. The Commission's scope of review on a request for reconsideration is narrow. Lopez v. Dep't of the Air Force, EEOC Request No. 05890749 (Sep. 28, 1989). A request to reconsider is not merely a form of a second appeal. Regensberg v. U.S. Postal Serv., EEOC Request No. 05900850 (Sep. 7, 1990). Instead, it is an opportunity to submit newly discovered evidence, not previously available; to establish substantive error in a previous decision; or to explain why the previous decision will have effects beyond the case at hand. Lyke v. U.S. Postal Serv., EEOC Request No. 05900769 (Sep. 27, 1990). After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. § 1614.405(b). Specifically, the record reflects that Complainant actually alleged ongoing harassment rather than a one-day occurrence as our previous decision found. The record reflects that Complainant alleged that he was subjected to a pattern of harassment that occurred over a substantial period time, including on November 24, 2010. We note that in his complaint, Complainant noted, "I have endured this behavior for a long time and would like justice under the law." Also in his appeal brief dated April 3, 2011, for Appeal No. 0120112085, Complainant noted: These type of harassing comments have been going on for several years at this particular Detached Mail Unit and even longer in the BMEU office. This is not an isolated incident by any means. It was and is a recurring theme almost on a daily basis while I was working at the Detached Mail Unit and since I became a clerk at the BMEU office as well. Id. at 4. As such, we find that Complainant actually alleged that he was subjected to a pattern of ongoing harassment instead of a one-day occurrence as our previous decision found. We note that the Commission has held that an ongoing pattern of comments and rumors referring to a complainant as being gay can be severe and pervasive enough to rise to the level of sexual harassment. See, e.g., Brown v. Dep't of Veteran's Affairs, EEOC Appeal No. 0120090291 (Feb. 19, 2009) (allegations of harassment, including coworkers spreading rumors that the complainant was gay stated a claim of harassment); Hatcher v. Dep't of the Army, EEOC Appeal 0120064647 (Mar. 6, 2008) (employees referring to the complainant as a "faggot" and telling coworkers that they should watch their "meat" stated a claim of harassment on the basis of sex); Cano v. Dep't of Homeland Security, EEOC Appeal No. 07A40081 (Aug. 2, 2006) (finding that calling the complainant a queer and jokingly referring to the complainant as being gay constituted sexual harassment). We note that in Sexton v. Dep't of Transportation, EEOC Request No. 05970111 (June 17, 1999), the Commission reversed the Agency's dismissal of a complaint, finding that Complainant's allegation of sexual harassment stated a claim. The complainant in Sexton alleged that the agency subjected him to sexual harassment by leaving remarks on items, which referred to him as being a homosexual. The Commission in Sexton determined that the complainant's allegations were sufficient to state a claim of sex-based discrimination. In the instant case, similar to Sexton and the cases cited above, Complainant is alleging sexual harassment when he was subjected to a pattern of comments from coworkers claiming that he was gay. Therefore, we find that Complainant has sufficiently stated a claim of sexual hostile work environment harassment.1 CONCLUSION After reconsidering the previous decision and the entire record, the Commission finds that Complainant's request meets the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to grant the request. The decision of the Commission in Appeal No. 0120112085 and the Agency's final decision are reversed. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. 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. 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: ______________________________ Bernadette B. Wilson Acting Executive Officer Executive Secretariat May 20, 2013 Date 1 We note that Complainant is alleging discrimination based on his sex rather than sexual orientation. The record reflects that Complaint is alleging that coworkers were spreading false rumors about him. As such, based on a review of the record, we find that Complainant is alleging discrimination based on his sex, which is a covered basis under Title VII. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0520110680 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 2 0520110680