David Couch, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency. Appeal No. 0120131136 Agency No. 110086AL DECISION On November 6, 2012, Complainant filed an appeal from the Agency's August 2, 2012, final decision concerning his equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). 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 Federal Agent/ Courier, GS-084-10, with the Agency's Office of Secure Transportation, Agent Operations Central Command, in Amarillo, Texas. Complainant alleged that in May 2010 three of his coworkers (CW1, CW2, and CW31) directly and repeatedly called him a "fag", "faggot", and "gay," told him that everything he did was "gay," and spread rumors to the other agents that he was "gay." Report of Investigation (ROI), Exhibits A-1, F-1. Complainant alleged that CW1 and CW3 also told him that he was going to get fired because of his sexual orientation, that he was unwelcome at the organization, and that he should find another job. ROI, Exhibit A-1. Complainant stated that because of these rumors, other agents did not want to work with him. Id. On June 1, 2010, Complainant informed his supervisor (S1) about the coworkers' conduct. ROI, Exhibit A-1. S1 allegedly responded to Complainant by stating that he is not like the other agents and has an "unusual personality." Id. S1 spoke to the coworkers, and CW3 told the supervisor that he did not like Complainant. ROI, Exhibit F-6. CW3 stated in his affidavit that in this meeting S1 told the three coworkers to stay away from Complainant because he is "taking notes." ROI, Exhibit F-13. The next day on June 2, 2010, Complainant went out to eat with several agents after a training that he described as an all-day tension filled environment. Complainant alleged that CW1 and CW3 refused to come into the restaurant because he was there. ROI, Exhibit A-1. Complainant asserted that all through June 2010 he was harassed and retaliated against for reporting his coworkers' conduct, and he was called "faggot" and "gay" and told that he doesn't belong at the Agency. Id. Complainant alleged that on August 20, 2010, CW1, CW2, CW3, and two additional coworkers, CW5 and CW6, would purposefully work the words "rat" and "fag" into their statements when in Complainant's presence. ROI, Exhibit A-1. Additionally, Complainant alleged that on that same day the Convoy Commander (S2) called him a "dumb ass" and made it clear that he did not like Complainant. ROI, Exhibit A-1. S2 admits that he called Complainant this name. ROI, Exhibit F-5. Complainant also alleged that on that day S2 subjected him to strict scrutiny and treated him differently in comparison to his coworkers by pointing out minor mistakes he made during a trip, but S2 did not do the same when other coworkers made similar mistakes. ROI, Exhibit A-1. Complainant also alleged that S2 told him "I don't like you," and "We take care of our own, not you." Id. Also in August 2010, S2 told other agents that Complainant had filed an EEO Complaint. ROI, Exhibit A-1. A coworker, CW7, stated in his affidavit that S2 told all the agents in a briefing for an upcoming mission, "If you guys are calling people names, you need to cut it out because [Complainant] has already filed an EEO on several guys." ROI, Exhibit F-22. Additionally, Complainant was told that S2 allegedly encouraged the other agents to view Complainant as a "rat." ROI, Exhibit A-1. Complainant asserted that because of this, other agents and supervisors began to ignore him, gave him the cold shoulder, and harassed him as well. Id. S2 stated in his affidavit that he did not treat Complainant differently until he received Complainant's EEO notice. ROI, Exhibit F-5. S2 stated that after he received Complainant's EEO notice he did not go out of his way to talk to him or engage him in conversation. Id. While S2 denies encouraging other agents to view Complainant as a "rat", he admitted in his affidavit that he asked if Complainant routinely filed EEO Complaints and that they should look into Complainant's behavior to see if there was a pattern of the Complainant filling EEO complaints against the government. Id. On September 1, 2010, Complainant again reported these incidents to his supervisor, S1. ROI, Exhibit A-1. It does not appear from the record that anything was done. On October 25, 2010, Complainant alleged that S2 was rude, disrespectful, demeaning and threatening towards Complainant when he yelled at him and cursed at him in front of other agents for a piece of lost equipment which was not actually lost. ROI, Exhibit A-1. On October 29, 2010, Complainant spoke to his Unit Commander, S3, and told him about the ongoing harassment from S2 and that S2 allows the other agents to continue harassing him. ROI, Exhibit A-1. S3 allegedly told Complainant to talk to S2 about the problems and offered no other suggestions for resolution. ROI, Exhibit A-1. Complainant alleged that after he spoke with S3, from October 2010 through March 2011, his work environment continued to be hostile and unwelcoming. ROI, Exhibit A-1. Complainant stated that he was repeatedly treated differently and told that no one wanted to work with him. Id. Complainant also alleged that he was excluded from work assignments and trips because other agents did not like him. Id. On March 21, 2011, Complainant learned that the Acting Convoy Commander, S4, ordered Complainant's coworker, CW8, to observe Complainant during a mission and report his findings. ROI, Exhibit A-1. S4 wanted Complainant observed for "operational security reasons" due to the fact that Complainant wrote down routes to avoid missing turns and because of "other rumors." Id. CW8 allegedly said that he had strong reservations about observing Complainant and did not want to do the observation. ROI, Exhibit F-20. S4's orders were not appropriate because only the Vehicle Lead may monitor the team, not a peer agent. ROI, Exhibits F-20, F-24. The Deputy Director of Operations (S6) learned about the order and told S4 not to proceed with the ordered observation because writing down unclassified information, such as routes to avoid missed turns, is not a security violation, and that only a Vehicle Lead may observe agents. ROI, Exhibit F-24. The Vehicle Lead stated in his affidavit that despite S6's order for S4 to abandon the observation, S4 pursued it anyway. ROI, Exhibit F-20. Further, a Supervisory Courier, S8, noted that singling out an agent for an observation such as this could be discriminatory. ROI, Exhibit F-7. On April 13, 2011, Complainant spoke with his Unit Commander, S3, about S4 inappropriately ordering CW8 to observe him during a mission. ROI, Exhibit A-1. S3 stated that he would have a "sit-down talk" with S4 and S4's supervisor, S8, however, the meeting was never held. Id. The next day, on April 14, 2011, Complainant requested a meeting with S3 and S4 about the observation. ROI, Exhibit A-1. During the meeting, S4 told the Complainant "no one likes you or wants to work with you" because of rumors he and the other agents had heard. ROI, Exhibit A-1; Exhibit F-12; Exhibit F-8. S4 accused Complainant of "inappropriate handling of classified information" a year prior when he wrote down route information. ROI, Exhibit A-1. Additionally, Complainant asked S3 to sign a written statement Complainant had written about the harassment, but S3 refused and told Complainant to leave his office. Id. On April 18, 2011, Complainant received an email indicating that S3 contacted a training instructor to elicit feedback on how Complainant performed during a training session in which Complainant received a passing grade. ROI, Exhibit A-1. The instructor told S3 that Complainant received a certificate of completion because he met the minimum requirements for completing the course, but told S3 that Complainant needed more practice. ROI, Exhibit F-17. The Instructor does not recall S3 requesting feedback for any other agents who have attended training. Id. On April 28, 2011, Complainant contacted S6, S8, and the Section Chief, S10, about the issues he was having with the Convoy Commanders and his coworkers, and the rumors that were circulating that he was a homosexual, dumb, and that he is a threat to security because of inappropriate handling of classified information. ROI, Exhibit A-1. S10 indicated that he needed time to look into the matter; however he never contacted Complainant again. Id. In May 2011, Complainant met with an EEO Counselor and was ultimately told that counseling was not successful. Complainant filed his formal complaint on June 9, 2011. On June 28, 2011, while on a work related flight with his unit, S4 allegedly passed the EEO notification letter for Complainant's EEO complaint to other agents in the plane. ROI, Exhibit F-1. Complainant alleged that he saw two agents, CW9 and CW10, hold the letter out so Complainant could see it. Id. One of the agents allegedly said out loud "perceived sexual orientation?" Id. Complainant notified his Unit Commander on the flight, S9, who said "What do you want me to do about it?" ROI, Exhibits F-1, F-5. While most of the agents denied passing around anything related to EEO, one agent said that an EEO bulletin was passed around the airplane informing them of their EEO rights. ROI, Exhibit F-22. On July 7, 2011, Complainant reported for firearms training. While he was unloading equipment he discovered the words "RAT FAG" written on the front of his gun bag and "God Loves Rat Fags To[o]" written in pen on the tag of his gun bag. ROI, Exhibit F-1. A week and a half later, on July 17, 2011, while Complainant was on travel status, he found a sexually explicit gay and lesbian magazine was placed in all of the rental cars the team was using. ROI, Exhibit F-1. The agents responsible for this only received a verbal counseling from S2 and S9, who also told the agents that they need to be careful around Complainant because of his prior EEO complaints. ROI, Exhibit F-10. Subsequently Complainant was detailed to Albuquerque to "ease the stress associated with the... incidents." ROI, Exhibit F-9. On June 9, 2011, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment on the bases of national origin (Appalachian/Eastern Kentucky), sex (male, gender stereotyping), perceived sexual orientation,2 age (40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 the Age Discrimination in Employment Act of 1967 when: 1. In May 2010, he was called a "fag" and subjected to false rumors by members of his work team; 2. In May 2010, his co-workers informed him that would be fired due to his perceived sexual orientation status; 3. On June 2, 2010, members of his team refused to eat with him while on official duty; 4. On August 20, 2010, five members of his work team were frequently hostile towards him during a trip by making derogatory comments about him and referring to him as "fag" and "rat" in his presence; 5. On August 20, 2010, the Convoy Commander called him a dumb ass; 6. In August 2010, a Lead Agent told Complainant that the Convoy Commander told other Agents that Complainant had filed an EEO complaint, and encouraged them to view the Complainant as a "rat"; 7. On August 20, 2010, he was subjected to strict scrutiny by his Convoy Commander and was treated differently in comparison to his coworkers when the Convoy Commander pointed out minor mistakes he made during a trip but did not do the same for his coworkers; 8. On October 25, 2010, the Convoy Commander yelled and cursed at him in front of his coworkers, which made him feel threatened; 9. From October 2010 through March 2011, his work environment continued to be hostile and unwelcoming, he was treated differently, no one wanted to work with him, and he was excluded from work assignments and trips because other agents did not like him; 10. On March 21, 2011, he was told by the Unit Commander that he would be observed during a work assignment for operational security reasons because he writes things down. He was further informed that an Acting Convoy Commander requested a coworker to observe him during this mission and provided a written report of his findings. 11. On April 14, 2011, the Acting Convoy Commander told the Complainant "no one likes you or wants to work with you" because of rumors he has heard and addressed with other agents; 12. On April 14, 2011, he met with his Unit Commander regarding the recent events and he became angry, refused to sign a written complaint, and told Complainant to leave his office; 13. In April 2011, the Acting Convoy Commander accused him of "inappropriate handling of classified information in 2010"; 14. On April 18, 2011, he received an email that the Unit Commander contacted a training instructor to elicit feedback on how he performed during a training session; 15. On June 28, 2011, while on a work related flight with his unit, the Convoy Commander passed the EEO notification letter to other agents in the plane and one agent read it loudly to the other agent. Complainant notified his Unit Commander, who stated there was nothing he could do about it; 16. On July 7, 2011, he reported for firearms training and while unloading equipment he saw the words "RAT FAG" written on the front of his gun bag and "God Loves Rat Fags To[o]" written on the tag of his gun; and 17. On July 17, 2011, while he was on travel status, he found a gay and lesbian publication in his rental car and one of the other agents told him the publications were placed in all the rental cars. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant failed to establish a prima facie case of sex, perceived sexual orientation, age, national origin or reprisal discrimination. The Agency also found that S2's comments with regard to Complainant's EEO activity constituted a per se violation of Title VII because they may have a chilling effect and deter employees from exercising their EEO rights. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency's final decision was in error when it found that Complainant failed to establish that he was subjected to harassment. Complainant asserts that the record supports his allegations that he was subjected to a hostile work environment on the bases of his national origin (Appalachian/Eastern Kentucky), sex (male, gender stereotyping), perceived sexual orientation, age (40), and reprisal for prior protected EEO activity. In opposition to the appeal, the Agency contends that the appeal should be dismissed because it was untimely filed. The Agency contends that if the Commission finds that the appeal is timely filed, the final agency decision should be upheld because there is not sufficient evidence to establish that discriminatory animus existed in this case. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Timeliness of Appeal EEOC regulations require that appeals to the Commission be filed within 30 days of receipt of the Agency's final decision. 29 C.F.R. § 1614.402(a). Appeals that are filed beyond 30 days of receipt of the Agency's final decision shall be dismissed by the Commission as untimely. 29 C.F.R. § 1614.403(c). We note that "[a]n Agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). The Agency asserted that the appeal should be dismissed as untimely. The Agency stated that Complainant received its final decision on August 9, 2012, and was informed that he must file an appeal within 30 days of receipt of the final decision. The Agency contends that as a result, Complainant's November 6, 2012 appeal is untimely filed. We find that the record contains insufficient evidence to establish that Complainant received the final agency decision on August 9, 2012. The Agency provided a FedEx tracking slip that only contained a city and state of delivery, along with a note that the package was left at the front door. This generalized reference to a city and state, without any further details about the specific address of delivery, is insufficient evidence to establish when Complainant received the final agency decision. See Robertson v. U.S. Postal Service, EEOC Appeal No. 0120114064 (March 28, 2013) (A U.S. Postal Service "track and confirm" print out which only includes the city and state of delivery and not the address is not sufficient to establish the date that Complainant's representative received the Agency's final decision); Talarico v. Dep't of the Navy, EEOC Appeal No. 0120122550 (Oct. 15, 2012) (A FedEx tracking print out that only contains the city and state of delivery without any further details of the address is insufficient evidence to establish that Complainant received the Notice). As a result, we find that the Agency did not establish that Complainant's appeal is untimely. Jurisdiction The Agency accepted Complainant's claims as allegations of discrimination on the bases of national origin, age, sex (male, gender stereotyping), perceived sexual orientation, and reprisal. The Agency asserted in its final decision that the Commission does not have jurisdiction over claims of perceived sexual orientation discrimination. As an initial matter, we note that the Commission has previously found that as long as the allegations state a viable claim of sex discrimination, the fact that a Complainant has characterized the basis of discrimination as sexual orientation does not defeat an otherwise valid sex discrimination claim. See Baker v. Social Security Administration, EEOC Appeal No. 0120110008 (Jan. 11, 2013). Title VII does not explicitly include sexual orientation as a basis for protection under the law. Nevertheless, the law's broad prohibition of discrimination "on the basis of . . . sex" will offer coverage to gay individuals in certain circumstances. Baker, supra. As the Supreme Court has recognized, Title VII's prohibition on the basis of sex includes discrimination on the basis of "gender." Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). This includes discrimination because an individual fails to conform to gender-based expectations, stereotypical or otherwise. Id. Although we are not bound by federal circuit court precedent in Title VII for purposes of our adjudication of federal sector complaints, we note that, since Price Waterhouse, every court of appeals has recognized that disparate treatment for failing to conform to gender-based expectations is sex discrimination and has also concluded that this principle applies with equal force in cases involving plaintiffs who are gay, bisexual, heterosexual, or transgender. See Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009) (harassment of a gay man targeting his gender-nonconforming behavior and appearance is sex harassment); Miller v. City of New York, 177 Fed. App'x. 195 (2d. Cir 2006) (harassment based on heterosexual male employee's failure to conform to his employer's stereotypes for men can state claim of sex discrimination); Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (Employees who face adverse employment actions as a result of their employer's animus toward their exhibition of behavior considered to be stereotypically inappropriate for their gender may have a claim under Title VII); Smith v. City of Salem, Ohio, 378 F.3d 566, 572 (6th Cir. 2004) (allegation that plaintiff was harassed for "not being masculine enough" stated a claim of discrimination on the bases of sex stereotyping); Doe by Doe v. City of Belleville, Ill., 119 F.3d 563, 581 (7th Cir. 1997) vacated on other grounds by 523 U.S. 1001 (1998) (A man who is harassed by his male coworkers because he exhibits his masculinity in a way that does not meet his coworkers' idea of how men are to behave is harassed because of his sex). The Commission has also recognized the viability of such sex stereotyping claims. See Macy, supra; Veretto v. United States Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011); Baker, supra. Further, in Oncale v. Sundowner Offshore Services, Inc., the Supreme Court established that Title VII prohibits actionable sex-based harassment even when the perpetrator and the victim are the same sex. 523 U.S. 75, at 79 (1998) ("Nothing in Title VII necessarily bars a claim of discrimination 'because of ...sex' merely because the plaintiff and the [perpetrator] are of the same sex."). Complainant alleged that his male co-workers constantly referred to him as "fag" "faggot" and "gay," his personal gun bag and gun tag were defaced with the words "Rat Fag" and "God Loves Rat Fags To[o]," and sexually explicit gay magazines were left in Agency vehicles where Complainant would find them. We note that the words "fag" and "faggot" have been historically used in the United States as a highly offensive, insulting, and degrading sex-based epithet against gay men. Additionally, the words "fag" and "faggot" are offensive, insulting, and degrading sex-based epithets historically used when a person is displaying their belief that a male is not as masculine or as manly as they are. See, e.g., Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 870, 875 (9th Cir. 2001) (concluding that verbal abuse, including the use of the epithet "faggot," occurred because of sex). The Commission has previously taken this position in a brief docketed with the U.S. Court of Appeals for the Fifth Circuit on December 12, 2011, where it stated that words such as "faggot" are degrading sex-based epithets. EEOC Appellate Brief in EEOC v. Boh Brothers Construction Company, L.L.C., No. 11-30770, at 5 (5th Cir. Dec. 12, 2011).3 After a review of the record, we find that Complainant's claim of harassment based on his "perceived sexual orientation" is a claim of discrimination based on the perception that he does not conform to gender stereotypes of masculinity, and therefore states a viable claim under Title VII's sex discrimination prohibition.4 Harassment A hostile work environment claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice. National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 117 (2002). Unlike a claim which is based on discrete acts of discrimination, a hostile work environment claim is based upon the cumulative effect of individual acts that may not themselves be actionable. Id. at 115. To demonstrate a prima facie case of a hostile working environment Complainant must show: (1) that he belongs to a protected group; (2) that he was subjected to unwelcome harassment; (3) that the harassment complained of was based on his protected status; (4) that the harassment affected a term, condition or privilege of employment; and, (5) that the agency knew or should have known of the harassment. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). We find that Complainant established a prima facie case of a hostile work environment on the bases of sex and reprisal. With regard to sex based harassment, the record establishes that Complainant was subjected to harassment based on the perception that he does not conform to gender stereotypes of masculinity. Complainant established that he was repeatedly subjected to unwelcome harassment in the form of vulgar sex-based epithets such as "fag" and "faggot," and that he was repeatedly called "gay." While Complainant's coworkers denied in their affidavits that they called Complainant these sex-based epithets, the record supports Complainant's allegations. For example, a coworker (CW4) stated in his affidavit that CW3 told him that he called Complainant a "faggot." ROI, Exhibit F-10. Additionally, CW1 stated in his affidavit that he does not recall who, but that someone told him that they called Complainant a "fag." ROI, Exhibit F-21. Further, even though CW1 and CW3 deny telling Complainant that he would get fired because of his sexual orientation and that he doesn't belong with the Agency, CW2 stated in his affidavit that CW3 admitted to him that he told Complainant that he did not belong in this organization. ROI, Exhibit F-15. Additionally, the undisputed fact that Complainant's gun bag and gun tag were defaced with the offensive sex-based epithets "RAT FAG" and "God Loves Rat Fags To[o]" affords credibility to Complainant's claims that he had been subjected to these offensive sex-based epithets all along as he alleged. Further, the sexually explicit gay and lesbian magazines were left in the agency vehicles where Complainant would find them only a week and a half after Complainant discovered his gun bag and gun tag had been defaced. The close temporal proximity of these events makes it unlikely that the magazines in the vehicle were a coincidence and more likely than not that the magazines were further harassment against Complainant because of the agents' belief that he did not conform to their gender based stereotypes of masculinity. Finally, as further evidence of the perception amongst agents that Complainant does not conform to gender stereotypes of masculinity, one of Complainant's coworkers, CW11, stated in her affidavit in reference to the actions against Complainant, "I am the only female in the organization, and if I can take it anyone should be able to." ROI, Exhibit F-11. This statement implies that the agent believes that Complainant, as a man, should be more able than she is to take the harassment if he conformed to the gender stereotype of a man. The record also supports Complainant's allegation that he had been harassed in reprisal for his prior protected EEO activity. The record supports his allegation that he was called retaliatory names such as "rat." CW12 stated in his affidavit that he heard CW1 call Complainant a "rat" because Complainant "complained" and was being a "tattle tale." ROI, Exhibit F-2. Further, the record supports that Complainant was retaliated against by supervisors as well. For example, S2 stated in his affidavit that he treated Complainant differently after he received Complainant's EEO notice. ROI, Exhibit F-5. S2 stated that after he received the EEO notice he did not go out of his way to talk to Complainant or engage him in conversation. Id. Further, S2 admitted that he asked if Complainant routinely filed EEO Complaints and stated that they should look into Complainant's behavior to see if there was a pattern of the Complainant filling EEO complaints against the government. Id. Additionally, agents were warned by numerous supervisors to be careful around Complainant because of his EEO activity. ROI, Exhibits F-10, F-13, F-22. The retaliatory harassment ultimately culminated into the offensive words "RAT FAG" and "God Loves Rat Fags To[o]" being written on Complainant's gun bag and gun tag. The record establishes that the harassment based on sex and reprisal was not limited to sex-based epithets and retaliatory names. The record also established Complainant was ostracized by his supervisors and coworkers. S5 stated in his affidavit that agents would call in sick or cancel their trip if they were assigned to work with Complainant. ROI, Exhibit F-10. S1 stated that agents have expressed to him their feelings that they did not like Complainant and did not want to work with him. ROI, Exhibit F-14. S7 stated that agents kept their distance from Complainant because he filed an EEO complaint. ROI, Exhibit F-20. The record established that Complainant was subjected to more strict scrutiny by his supervisors than other employees. For example, CW12 stated that the Convoy Commanders (such as S2 and S4) singled out Complainant more than other agents. ROI, Exhibit F-2. CW12 stated that there have been instances where agents make big mistakes, such as running vehicles into buildings, and they just get a "slap on the wrist" and jokes are made about their mistakes. Id. Complainant, on the other hand, is continuously corrected for the slightest mistakes (such as making wrong turns) and is accused of always making the same mistakes. Id. Additionally, many agents stated in their affidavits that they thought that S4's observation of Complainant was harassment and that it went too far. ROI, Exhibits F-2, F-7, F-24. The record establishes that S4 was told that Complainant did not violate safety concerns when he wrote down unclassified information, such as routes, but S4 continued with the observation anyway and continued for months to accuse Complainant of the serious violation of improperly handling classified information. ROI, Exhibits F-7, F-20, F-24. Further, S3 never requested a statement about any other agents' performance during a training that the agents had passed. ROI, Exhibit F-17. The record established that Complainant was not fairly assigned work. For example, Complainant was never assigned to ride in the command vehicle on missions, despite his numerous years of experience. ROI, Exhibit F-12. S5 stated that agents with less experience than Complainant and lower seniority than Complainant have ridden in the main command vehicle. ROI, Exhibit F-10. S5 stated that "Complainant has been with the Agency for three years and should have been in the main command vehicle at least once." Id. S5 also stated that Complainant would have been capable of riding in the command vehicle. Id. After a review of the entire record, we find that Complainant established that he was subjected to a hostile work environment on the bases of sex and reprisal. Additionally, we find that the record does not establish by a preponderance of the evidence that Complainant was subjected to a hostile work environment on the bases of his age or his national origin. Once a hostile work environment is found, the fifth element of the prima facie case, showing that the Agency knew or should have known of the harassment, addresses the issue of whether the Agency should be held liable for the existence of a hostile working environment. When the harassment is perpetrated by a co-worker, liability is imputed to the employer if it knew or should have known of the misconduct and failed to take immediate and appropriate corrective action. Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999) ("Vicarious Liability Guidance"). What is appropriate action will necessarily depend on the facts of the particular case, the severity, and persistence of the harassment, and the effectiveness of any remedial step. Id. An employer is subject to vicarious liability for harassment when it is "created by a supervisor with immediate (or successively higher) authority over the employee." See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998); see also Vicarious Liability Guidance. The Agency can raise an affirmative defense when Complainant establishes a prima facie case, which is subject to proof by a preponderance of the evidence, by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and, (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Id., at Section V. Here, the harassment was perpetrated by both co-workers and supervisors. With regard to harassment by the co-workers, the record is replete with instances where Complainant complained about the harassment to supervisors throughout his entire chain of command, and in each instance the supervisors failed to address the harassment with immediate and appropriate corrective action. For example, in May 2010 Complainant told his Unit Commander, S3, who was also an EEO Counselor, that his co-workers were harassing him by calling him sex-based epithets. S3 did not take appropriate actions to end the harassment as the hostile work environment only escalated after this conversation. The record also establishes that Complainant complained about the harassment to the supervisors in his chain of command on September 9, 2010, October 29, 2010, April 13, 2011, April 14, 2011, and April 28, 2011. Despite these complaints, all of the supervisors failed to take appropriate action. Many times the supervisors did nothing, and other times the actions that were taken were insignificant and were not designed to ensure that the harassment would stop. As just one example, after the sexually explicit gay and lesbian magazines were left in the vehicles, the responsible agents were only given a verbal counseling and were warned to be careful around Complainant because he filed EEO complaints. ROI, Exhibit F-10. As a result, we find that the Agency is liable for the co-worker harassment. With regard to the harassment by supervisors, we find that the Agency is vicariously liable for the harassment. The Agency did not establish an affirmative defense, as it did not establish that it exercised reasonable care to prevent and correct the harassing behaviour, nor did it establish that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities. As a result, the Agency is liable for the supervisor harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision and find that a preponderance of the evidence in the record establishes that Complainant was subjected to a hostile work environment on the basis of his sex and in reprisal for prior protected EEO activity, and that the Agency is liable for the harassment. The Agency is ORDERED to comply with the ORDER below. ORDER There agency is hereby ORDERED to take the following remedial action: 1. The Agency shall immediately take meaningful and effective measures to ensure that coworkers and supervisors cease and desist from all discriminatory conduct directed at Complainant, and ensure that Complainant is no longer subjected to retaliation on the bases of his sex and for his participation in protected EEO activity. Further, the Agency shall ensure that others at the facility are not subjected to discrimination and/or retaliation. 2. Within one hundred and twenty (120) calendar days from the date this decision becomes final, Complainant shall be given the choice of whether he would like to stay in his position in the facility at issue in this complaint, or if he would like to be transferred to a similar position in another facility. If Complainant chooses to stay at the facility at issue in this complaint, he shall be placed on a team with co-workers and supervisors who were not involved in the discriminatory conduct described in this complaint. The Agency shall ensure that the supervisors involved in the harassment will never be in a supervisory position over Complainant again. 3. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall remove any notations from Complainant's personnel files regarding the charges of violations of operational security for mishandling classified information when he wrote down routes. 4. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford him an opportunity to establish a causal relationship between the hostile work environment he was subjected to and the pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110. A copy of the final decision must be submitted to the Compliance Officer, as referenced below. 5. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall provide a minimum of twenty four (24) hours of in-person EEO training to all management officials and employees at this facility, with a focus on sex discrimination under Title VII, reprisal, harassment, and management's responsibilities under Title VII. 6. The Agency shall strongly consider taking appropriate disciplinary action against the coworkers and supervisors involved in the discrimination and hostile work environment. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 7. The Agency shall post the notice discussed below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that all of the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Amarillo, Texas facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 8/13/2013 __________________ Date 1 We note that in this decision, the abbreviation "CW" connotes a coworker, while "S" connotes a supervisory official. 2 We note that while Complainant alleged that he was discriminated against based on his perceived sexual orientation, he did not identify his sexual orientation. 3 In that case, the Commission's expert testified that when there is a perception of the victim's non-conformance with stereotypical masculine behavior, a harasser may use sex-based epithets such as "faggot" or state that the victim is gay or feminine in order to bond with the other men around their shared masculinity while excluding the victim from this circle. Id. at 12-13. 4 The Agency's appeal rights at the end of the final decision were incorrect, as they informed Complainant that he could only appeal this claim through the Agency's internal process and could not appeal it to the Commission. Claims of sexual orientation discrimination may state a claim of sex discrimination under Title VII, such as in this case, and therefore Complainants should be told of their option to process these claims through the 29 C.F.R. § 1614 process, with appeal rights to the Commission pursuant to § 1614.401. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120131136 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120131136