Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120133123 Agency No. 2003-0667-2013102423 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated July 26, 2013, dismissing his complaint of unlawful employment discrimination alleging a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rating Specialist, GS-12, at the Agency's Veterans Benefit Administration facility in Shreveport, Louisiana. On May 3, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) when: 1. on April 4, 2012, Complainant requested that the Shreveport Information Security Officer change his name in the facility's VISTA computer system and it took over a year to make the correction; and 2. on April 19, 2013, he was threatened and his privacy was violated when the Information Security Officer accessed his background investigation. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. As to claim (1), the Agency indicated that while the matter was unfortunate, Complainant was not adversely affected by the inconvenience of the delay in changing his name in the VISTA system. As to claim (2), the Agency indicated that such a claim regards the violation of the Privacy Act and is not a claim within the purview of EEOC. The instant appeal followed. ANALYSIS AND FINDINGS 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). A fair reading of the complaint in this case, in conjunction with the EEO counseling report, reveals that Complainant has explained that he is undergoing treatment for gender identity disorder and, as part of this treatment, legally changed his name from system from "Cynthia M. Drew" to "Cyrus Ethan Drew." As part of his job duties, Complainant needs access to the Agency's VISTA computer system and has to enter his name in order to use the system. Therefore, in April 2012, he submitted a request to the Shreveport Information Security Officer (male) to change user name to his new legal name. Complainant alleges that his request was ignored even though a management official verified Complainant's identity and name change. In October 2012, Complainant states he made a follow-up contact the Information Security Officer to again request that his name be changed in the VISTA system. Complainant alleges that during this telephone conversation, the Information Security Officer reacted with a lot of hostility, refused to change his name, and threatened to terminate Complainant's access to all Agency computer systems. Complainant also states that he learned that the Information Security Officer improperly accessed Complainant's background investigation, which contained personal information that he had no legitimate reason to know. Complainant explained that it was important to him to change his name in the VISTA system because many people accessed the system, including veteran clients and other employees, which resulted in many questions about "Cynthia" (his unchanged user name in the system). Complainant said this put him in the position of having to divulge the reason for his name change, which he felt was a breach of his privacy. When he discussed the matter with his immediate supervisor, he was given permission to switch his Shreveport cases1 with coworkers so he did not have to explain the name change. However, Complainant stated that as time went on without his name being changed in the system, switching cases began to have a negative impact on his workload and created a problem for him to meet his case quota under his performance standards. It is undisputed in the record that Complainant's name was not changed in the Shreveport VISTA system until a year after he first made the request to do so, and only after he had initiated EEO counseling on the matter. In dismissing this complaint, we first find that the Agency improperly defined the complaint as consisting of two separate claims, rather than a claim of ongoing harassment. See Meaney v. Department of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). In doing so, the Agency dismissed each "claim" for separate reasons. When properly viewed as a claim of sex-based harassment, we find Complainant has stated a claim of a violation of Title VII. When viewing the cumulative effect of Complainant's allegations proffered in support of his harassment claim in the light most favorable to him, we find that Complainant has stated a claim of sex discrimination actionable under Title VII. Complainant has explained how he was harmed by the ongoing refusal to change his name in the VISTA system, as well as the alleged hostility and threats from the Information Security Officer. Complainant has alleged, in essence, that the Information Security Officer was hostile towards him because he changed his gender identity from female to male.2 Complainant has not alleged an isolated incident, but a situation that continued for over a year and purportedly impacted his ability to successfully meet the workload demands of his job without having to answer frequent personal questions about his gender identity. It further is asserted that no one in management effectively assisted Complainant in rectifying the situation until he sought EEO counseling. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we REVERSE the Agency's final decision dismissing the complaint, and REMAND the matter for further processing in accordance with the Order below. ORDER (E0610) The Agency is ordered to process the remanded complaint 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 tends 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 April 16, 2014 __________________ Date 1 It appears that Complainant was also assigned cases in other offices, where the computer system had been changed to reflect his new name. 2 We have found that a claim of gender identity discrimination is actionable under Title VII's prohibition against sex discrimination. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120133123 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120133123