Zenobia K., Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency. Appeal No. 0120123000 Agency No. HHS-CDC-0103-2012 DECISION Complainant filed an appeal with this Commission from the Agency's decision 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. For the following reasons, the Commission MODIFIES the Agency's final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Service Fellow, GS-14, at the Agency's National Institute for Occupational Safety and Health (NIOSH), National Personal Protective Technology Laboratory, located in Pittsburgh, Pennsylvania. Complainant filed a formal complaint dated April 13, 2012. The Agency defined Complainant's complaint as alleging that the Agency subjected her to discrimination on the basis of sex (female) and sexual orientation (not identified) when: On January 9, 2012, Complainant's coworker [Coworker 1] advised her that another coworker [Coworker 2] made the statement, "[Complainant] is a lesbian, she is lazy, she will use you, do not help her" to Coworker 1. On April 26, 2012, the Agency issued a final decision finding that Complainant's complaint did not state a claim. The last paragraph of the decision also stated that Complainant failed to timely file her formal complaint. The final decision listed an outdated Commission address as the place for Complainant to file her appeal. Subsequently, on July 10, 2012, the Agency issued a revised final decision. The Agency noted that the revised decision replaced the original April 26, 2012 decision, which incorrectly cited the wrong dismissal authority in the final paragraph. In the revised decision, the Agency dismissed Complainant's claim pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency determined that Complainant did not show that she suffered a loss with respect to a term, condition, or privilege of employment. Additionally, the Agency noted that Complainant's claim of sexual orientation was being addressed under a separate notice which would be appealable to the Director, EEO Programs, and not EEOC. The final decision again listed an outdated Commission address as the place for Complainant to file her appeal. The Agency issued another decision on July 10, 2012, dismissing Complainant's sexual orientation claim for failure to state a claim. This decision afforded Complainant appeal rights to the Agency's Director, EEO Compliance and Operations. On appeal, Complainant states she was subjected to the following adverse employment actions: (1) In November 2010, when Complainant needed to borrow some exhibit materials, Coworker 2 sent her twice in the same day to the storage room with the wrong key. After two incorrect keys, Complainant had to call a security officer to let her in the room and the security officer verified that the key did not work. (2) In February 2011, Coworker 2 and her protégé (Coworker 3) tried to delay and/or avoid providing Complainant with the stakeholder contact information from outreach to support Complainant's project. (3) In March 2011, Coworker 2 would not respond to Complainant's questions and electronic mail messages on logistical issues needed to prepare for a meeting in which Complainant was the agricultural lead. During the meeting, Coworker 2 interrupted the speaker during the morning training session and rudely ordered one of the key program stakeholder's to eat lunch in the general assembly session, which tarnished the relationship between Complainant, NIOSH, and the key program stakeholder. After the meeting, Coworker 2 reprimanded Complainant in front of the stakeholders for not having yet cleaned up the meeting room, even though the meeting had just finished and Complainant was saying goodbye to the stakeholders. Complainant noted the incident was brought to the lab's attention in their meeting evaluations. (4) Coworker 2 and the Team Leader (Complainant's first level supervisor) were Complainant's point of contacts for all postings on the lab's website. Complainant submitted a Total Concept Memo (TCM) to the Team Leader to update items on the website. Complainant followed up many months later and was told the TCM must have gotten lost. Complainant asked the Team Leader to resubmit it before he retired; however, he never responded. (5) In October 2011, with the authority from her Team Leader, Complainant wrote a protocol for the seminar series to establish the roles and responsibilities for five of Complainant's coworkers. After Complainant established the protocol, the Team Leader said that the five coworkers would determine what the team would do. In front of coworkers, the Team Leader threatened to cancel the seminars altogether which left Complainant confused and under strain as to how she could maintain the seminar series without the internal support of her team and no resources. (6) In September 2011, after Coworker 2 made the statement "[Complainant] is a lesbian, she is lazy, she will use you, do not help her" to Coworker 1, other coworkers tried to persuade Coworker 1 when: a. Coworker 1 was asked by an Information Technology person at the end of Complainant's seminar, if he had come to bring Complainant her vibrator; b. Coworker 1 was told by someone else that Coworker 2 did not want him helping Complainant; and c. Coworker 1 told Complainant that another coworker told him that she liked him and that he should watch out for Complainant since the coworker did not want Complainant abusing him. (7) In October 2011, Complainant's colleague, Coworker 4, was responsible for helping Complainant keep her contacts log updated on a monthly basis and to assist her in preparing for her seminar series. Just prior to the second seminar, Coworker 4 told complainant that he was no longer permitted to help Complainant because he had to work for Coworker 2. Complainant asked the Team Leader for Coworker 4's continued help with the contacts log and he told her to do it herself. (8) In November 2011, several months prior to his retirement, Complainant's Team Leader began denying Complainant's requests to earn credit time; whereas, in the past, it was never an issue. (9) In March 2012, Complainant ordered markers from the Administrative Assistant for a project for national stakeholders and a couple of days before the meeting, the Administrative Assistant informed Complainant that she had given the markers away. (10) In March 2012, Complainant's Team Leader advised the team that he was going to "have some talks" with the new Acting Team Leader before he retired on March 31, 2012. Complainant stated that thereafter, the Acting Team Leader began sending Complainant multiple condescending electronic mail messages stating, "I repeat...," rather than addressing Complainant's questions and accused Complainant of sending too many electronic mail messages. (11) In April 2012, for trivial reasons (such as Complainant's signature was where someone else needed to sign and was dated using the wrong year), the Administrative Assistant rejected several time-sensitive purchase orders Complainant had submitted. Once the requests were finally placed, Complainant was asked to be notified when the time-sensitive materials arrived, yet, the materials delivered to the Administrative Assistant were left to sit. Complainant stated this left multiple hurdles that took Complainant away from her other projects. On appeal, Complainant acknowledges that some of the above identified incidents were not included in her complaint because the EEO Counselor advised her that she would have an opportunity to provide details later and told her that at the time all that was needed was the basics. Complainant claims that the Agency's actions unreasonably interfered with her ability to do her work and created an intimidating work environment. In addition, Complainant states that as a result of the Agency's actions, her own team denied her support at work. She states that as a result of having been denied support, she worked extremely long hours, including weekends, during paid leave, and even holidays, just to meet her deadlines. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, 1614.106(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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). At the outset, to the extent that Complainant may be appealing the dismissal of her claim of discrimination on the basis of sexual orientation, we find that such a claim is not within the EEOC's purview. See Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (December 20, 2011). The Commission has held that Title VII does prohibit sex stereotyping discrimination. Id. (citations omitted). In the present case, however, we note that there is no indication in the record and Complainant has not claimed that she was subjected to any sex stereotyping discrimination. Next, we address the dismissal of Complainant's complaint alleging discrimination based on sex. According to the EEO Counselor's Report, Complainant raised a claim of sexual harassment during counseling. The Counselor's Report states that "In order to resolve this alleged discrimination [Complainant] is requesting that harassment from [Coworker 2] stop. [Complainant] reserves the right to add more later." The Counselor's Report stated that Complainant believes Coworker 2 is trying to ruin her image and her ability to work by trying to get people not to help her. In her formal complaint, Complainant identified the alleged incident of discrimination as: on January 9, 2012, Complainant's coworker (Coworker 1) advised her that another coworker (Coworker 2) made the statement, "[Complainant] is a lesbian, she is lazy, she will use you, do not help her" to Coworker 1. However, in her formal complaint she stated that she wanted "this incident and related incidents to be investigated." Upon review, we find Complainant is alleging that because of her sex, Coworker 2 and others unreasonably interfered with her ability to do her work and created a hostile work environment on the basis of her sex. Complainant states that as a result of the Agency's actions, her own team denied her support at work. She states that as a result of having been denied support, she worked extremely long hours, including weekends, during paid leave, and even holidays, just to meet her deadlines. Thus, we find Complainant's complaint is properly defined as including the comment that Coworker 2 made to Coworker 1 that "[Complainant] is a lesbian, she is lazy, she will use you, do not help her" and the additional like or related incidents identified on appeal. In the present case, we find considering these incidents together and assuming them to have occurred as alleged by Complainant, she has stated a viable claim of discriminatory harassment based on sex. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's claim of sexual orientation discrimination is AFFIRMED. The Agency's final decision dismissing Complainant's complaint of sex discrimination is REVERSED and this claim is REMANDED to the Agency for further processing in accordance with this decision and the Order herein. 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. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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 November 14, 2013 Date 2 01-2012-3000 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120123000