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 son 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 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 the 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. FOR THE COMMISSION: Carlton M. Hadden Director Office of Federal Operations 1 The record does not indicate whether any disciplinary action was taken against CW1 as a result of the incident with Complainant. July 1, 2011