Chelsea Winters, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Bureau of Reclamation), Agency. Appeal No. 0120121354 Agency No. BOR-11-0291 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated December 20, 2011, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND Complainant was a student at the College of Southern Nevada, who had periodically worked for the Agency in a series of internships since January 2004. At the time of events giving rise to this complaint, she attempted to apply for an internship position as an Electric Power Control Aide at the Agency's Hoover Dam facility in Boulder City, Nevada. On June 1, 2011, Complainant filed a formal discrimination complaint alleging that she was subjected to discrimination on the basis of sex1 when Agency officials obstructed her ability to apply for the Electric Power Control Aide internship. In an attachment to her complaint, Complainant noted that the complaint was based on "sex stereotyping." Complainant further indicated in her narrative attached to her complaint, as well as in EEO counseling, that she also believed she was being retaliated against for prior EEO activity. She indicated on her complaint form that her prior EEO activity against the Agency was in 2005. Complainant said she learned of the internship position from her school. She said that one of the professors at the college put her in contact with the Apprentice Supervisor (Supervisor). Complainant called the Supervisor, who she alleged expressed some "issues and concerns," but told her that she needed to apply for the position on www.usajobs.gov. The Supervisor then emailed Complainant a hyperlink to the vacancy announcement to allow her to apply online. Complainant asserted that she was unable to apply online using the link or any other method she tried. Complainant contacted the Supervisor for assistance. The Supervisor informed Complainant that this was the only way to apply for the internship. Complainant then contacted the Agency's Human Resources department. She alleged that, although they seemed to be trying to assist her, she still was unable to submit an application onlline and the vacancy announcement closed. As a result, she was not considered for the position. Complainant alleged that there were eight other student applicants who were able to successfully apply for the position, and that there had been other "student announcements" that were made available to other applicants and not her. Complainant claims that she was the only student who was unable to apply for the position. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency noted that Complainant's complaint involved her inability to create an account with www.usajobs.com which is run by the Office of Personnel Management, not the Agency. The instant appeal followed. 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 (April 21, 1994). Complainant appealed explaining that her complaint alleged that Agency officials purposely obstructed her ability to apply for the internship opportunity based on sex discrimination and her prior EEO activity, resulting in her not be considered/selected for the position. Complainant claimed that the responsible Agency officials were familiar with her due to her prior internships and previous EEO activity. She believes they actively prevented her from being able to successfully apply for the position online. In explaining her sex discrimination claim, Complainant clarified that she was not claiming discrimination due to sexual orientation, but sex stereotyping. In support of this claim, she indicated that she had previously worked as an intern with the Agency and was assigned to the women's locker room initially. However, during a second internship, she was assigned to a locker area with a male student. At that time, she asserted that the Agency made assumptions that she was "working with a man's tool kit" and acted accordingly. In response to the appeal, the Agency argued for the first time that the complaint alleged discrimination based on sexual orientation and that the Commission does not have jurisdiction over such a complaint. Further, the Agency challenged Complainant's assertion that Agency officials blocked Complainant's application for the internship program. The Agency argued that several Agency officials attempted to help her, but Complainant could not set up an account on www.usajobs.gov. Therefore, the Agency contends that its dismissal of the complaint was appropriate. To the extent the Agency asserted that Agency officials helped, not hindered, Complainant in her attempts to apply for the internship, we find that such an argument addresses the merits of Complainant's complaint without a proper investigation as required by the regulations. We find that the Agency's articulated reason for the action in dispute - that Agency officials assisted Complainant - goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether she has stated a justiciable claim under Title VII. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). In addition, the Agency has argued on appeal for the first time that the Commission does not have jurisdiction over the claim of discrimination based on sexual orientation. 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. See Macy v. Dept. of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Baker v. Social Security Admin., EEOC Appeal No. 0120110008 (Jan. 11, 2013); Veretto v. U.S. Postal Serv., EEOC Appeal No. 0120110873 (July 1, 2011). Complainant indicated that during prior internships, management took actions based on their perception of her sex and whether she conformed to stereotypes based on her sex. Upon review, we find that Complainant has asserted a claim of sex stereotyping within the purview of Title VII. Based on a review of the complaint, we find that Complainant's claim of discrimination is properly raised with the Commission. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claims 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 August 13, 2013 __________________ Date 1 On her complaint form, Complainant wrote the word "orientation" next to the box she checked for sex discrimination. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120121354 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120121354