Haywood C., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120132452 Agency No. 1K-301-0061-12 DECISION On June 8, 2013, Complainant filed an appeal from the Agency's May 6, 2013 final decision concerning an equal employment opportunity (EEO) complaint claiming 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). BACKGROUND During the period at issue, Complainant worked as a Parcel Post Distribution-Machine Clerk at the Agency's Processing & Distribution Center facility in Atlanta, Georgia. On October 11, 2012, Complainant filed a formal EEO complaint claiming that he had been subjected to an ongoing hostile work environment based on his sex (male) that included the following events: 1. on June 5, 25, and 27, 2012, and October 3 and 4, 2012, and continuing, Complainant's co-workers made numerous negative comments and innuendoes concerning their perception that he is a gay; and 2. on June 27, 2012, Complainant's supervisor ("Supervisor"), referring to Complainant, said that some "folks" should not watch other "folks get undressed." The Agency accepted the complaint and conducted an investigation. A review of the record reflects the following pertinent matters. Complainant specifically claimed that, on June 5, 2012, two co-workers (Co-Worker 1 - male, and Co-Worker 2 - female) told other Agency employees that Complainant "watches guys" and was gay. Complainant stated that he informed Supervisor (male) of the comments, and that he had filed a previous complaint regarding the same problems. Supervisor told Complainant he was unaware of the problem and he would immediately put a stop to it. On June 25, 2012, a third co-worker (Co-Worker 3 - female) told another Agency employee, "I saw him watching [Co-Worker 4]." Later that day, Co-Worker 4 (male) said, in reference to Complainant, "he licks his lips, that's some kind of gay shit," and later "he's either a faggot or a mason." Co-Worker 5 (male) said "watch out for that gay guy, faggot" in reference to Complainant. And Co-Worker 6 (male) also said, "I ain't working with that gay guy," also in reference to Complainant. On June 27, 2012, Supervisor gave a stand-up safety talk to Complainant's work group on the issue of heat stroke and heat exhaustion. During this talk, Complainant asserted that Supervisor looked directly at him and said that "some folks shouldn't watch other folks get undress[ed]." As a result, Complainant alleged his co-workers made further comments regarding his perceived sexual orientation that day. Complainant also alleges that, on October 3 and 4, 2012, Co-Worker 4 said he believed Complainant was sexually interested in him. Subsequent to this comment, other co-workers began making statements such as, "watch out for the faggot." In his affidavit, Complainant avers that he has "spoken with [his] immediate supervisor on several occasions to no avail." Complainant further avers that Co-Workers 1, 3, and 4 witnessed Supervisor's statement on June 27, 2012. The record contains affidavits from Co-Workers 2, 3, and 4. Each denied ever making any statement regarding Complainant's sexual orientation. The EEO investigator requested affidavits from Co-Worker 1 and two other co-workers, but these employees did not complete an affidavit for the record. In addition, none of Complainant's co-workers were asked whether Supervisor made a statement regarding people watching other people undress. In his affidavit, Supervisor denied making any derogatory statements during the stand-up talk on June 27, 2012. Supervisor also denied being aware that Complainant felt he was subjected to a hostile work environment until September 2012, when he received an email from a member of the Agency's EEO staff indicating Complainant's concerns. Supervisor stated that he immediately met with Complainant to obtain the details of his allegations, and then interviewed all the named employees, who all denied Complainant's allegations. Supervisor said he offered Complainant the opportunity to meet with the Manager of Distribution Operations (MDO) regarding his concerns, but he declined to do so. Supervisor stated that sometime in December 2012, Complainant came to him again and said that his coworkers had "started again" making derogatory comments concerning his sexual orientation. He said that he again urged Complainant to speak with the MDO, but Complainant refused. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. First, the Agency found Complainant did not establish that he was subjected to a hostile work environment because he did not show that any of the comments were directed toward his status as a male. The Agency found that the comments appeared to be directed toward his sexual orientation, which it found to be not covered by EEOC regulations. Second, the Agency determined that the conduct complained of was not severe or pervasive enough to rise to the level of a discriminatory hostile work environment. The instant appeal followed. On appeal, Complainant maintains that he has had numerous conversations with Supervisor regarding his allegations of harassment. 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"). Jurisdiction We first address the Agency's conclusion that Complainant failed to establish a prima facie claim of harassment because sexual orientation is not a basis covered by our regulations. We note that the Agency previously dismissed without an investigation similar allegations set forth by Complainant in an earlier EEO complaint, finding Complainant did not allege events with sufficient frequency to state a viable hostile work environment claim. Complainant appealed the dismissal and we reversed. In our decision, we briefly discussed the sex-based nature of Complainant's allegation that co-workers and customers were claiming he was gay and frequented gay bars and found that such allegations did state a claim of a hostile work environment based on Complainant's sex. See Brooker v. United States Postal Service, EEOC Request No. 0520110680 (May 20, 2013) (circulated). 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 lesbian, gay and bisexual individuals in certain circumstances. Complainant v. Department of Homeland Security, EEOC Appeal No. 0120110576 (August 20, 2014) ("sex discrimination claims may intersect with claims of sexual orientation discrimination."). Moreover, 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 (January 11, 2013). As the Supreme Court has recognized, Title VII's prohibition on the basis of sex includes discrimination on the basis of "gender." Macy v. Department 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 EEOC v. Boh Brothers, 732 F.3d 444 (5th Cir. 2013) (en banc) (evidence of harassment for failure to conform to harasser's subjective perception of appropriate "masculine" behavior or status is evidence of sex harassment); 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). Moreover, we also note that a number of federal district courts have recognized that allegations of discrimination on the basis of stereotypes related to sexual orientation are often, if not always, claims of discrimination on the basis of sex. See Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) ("Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotype about the proper roles of men and women."); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002) ("[A] jury could find that Cagle repeatedly harassed (and ultimately discharged) Heller because Heller did not conform to Cagle's stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men."); Terveer v. Billington, 2014 WL 1280301 (D.D.C. 2014) (Plaintiff stated a claim of discrimination on the basis of sex when he "alleged that he is 'a homosexual male whose sexual orientation is not consistent with the Defendant's perception of acceptable gender roles,' Am. Compl. ¶ 55, that his 'status as a homosexual male did not conform to the Defendant's gender stereotypes associated with men under Mech's supervision or at the LOC,' id. ¶ 59, and that 'his orientation as homosexual had removed him from Mech's preconceived definition of male,' id. ¶ 13"). 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. United States Postal Service, EEOC Request No. 0520110649 (December 20, 2011); Baker, supra.; Complainant v. Department of Homeland Security, 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."). In the EEO complaint at issue, Complainant has alleged that his co-workers constantly referred to him as "faggot" and "gay," and made numerous other derogatory references to his sexual orientation. He further asserts that he complained to management to no avail. In fact, he asserts that the coworkers were further emboldened by the Supervisor's veiled reference to his sexual orientation during the June 2012 stand-up talk. 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).1 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. Adequacy of the Record An agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. 29 C.F.R. § 1614.108(b). An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Id. Upon review, we find the record to be insufficiently developed for us to determine if the Agency discriminated against Complainant on the basis of sex. Specifically, we find that, despite Complainant's identification of witnesses to the ongoing harassment, as well as Supervisor's statement on June 27, 2012, the record does not indicate an adequate effort during the investigation to determine whether these witnesses could corroborate Complainant's allegations. Of the six named co-workers, affidavits were requested from only four co-workers. Moreover, three co-workers did not return their affidavits. We note that the Agency has an affirmative obligation to ensure that its employees cooperate with the investigation into the complaint. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 6, § IV.A (November 9, 1999) ("The Director of Equal Employment Opportunity shall ensure that . . . all employees of the agency cooperate in the investigation"). MD-110 further provides that "[i]n § 1614.108(c)(3), a party - the complainant as well as the agency - may be subject to sanction where it fails to comply with a request of the investigator for documents, records, comparative data, statistics, affidavits, or the attendance of witnesses." Id. § XII. Moreover, the instant complaint needs to be adjudicated within the larger context of Complainant's claims of ongoing harassment spanning several years. As already noted, two weeks after the Agency issued its final decision on this complaint, the Commission remanded an earlier complaint from Complainant alleging similar harassment in the same work area for an investigation and further processing. Clearly, these two complaints should be consolidated and adjudicated together. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we VACATE the Agency's May 6, 2013 final decision. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ORDERED to take the following actions: 1. The Agency shall consolidate this complaint (Agency No. 1K-301-0061-12) with Complainant's earlier complaint (Agency No. 4H-300-0059-11) raising similar hostile work environment claims that was also remanded, in EEOC Request No. 0520110680, for investigation and further processing. If the earlier complaint has already been decided, the evidence gathered during its investigation shall be used as background evidence in adjudicating the instant complaint (Agency No. 1K-301-0061-12). 2. The Agency shall conduct a supplemental investigation on the consolidated complaints to develop an adequate factual record regarding Complainant's allegations of an ongoing discriminatory hostile work environment based on sex. The Agency shall obtain all pertinent evidence including, but not limited to: a. sworn affidavits from all employees who failed to cooperate with the investigation, as well as any witnesses identified by Complainant in his earlier complaint; b. sworn affidavits from all parties who attended the stand-up talk presented by Supervisor on June 27, 2012. c. a rebuttal statement from Complainant after he has had an opportunity to review the requested documents and the sworn affidavits. 3. The Agency shall complete its supplemental investigation on the consolidated complaints and issue a new final decision, together with the appropriate appeal rights, within ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. A copy of the Agency's new final decision 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 andthe 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 18, 2014 __________________ Date 1 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132452 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132452