Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 0120140202 Agency No. 66-000-0004-13 DECISION On October 8, 2013, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 23, 2013, concerning her 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., and the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. § 206(d) et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postal Inspector, initially undergoing residential Basic Inspector Training at its Career Development Unit in Potomac, Maryland, known as the Agency's academy, and later working at its San Francisco Inspection Service Division in Richmond, California. On April 11, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her race (African American), color (light brown), sex (female), sex stereotyping due to her sexual orientation, and/or reprisal for prior protected EEO activity when: 1. she was paid at a lower rate than most of the male Postal Inspectors who trained with her at the academy; and 2. she was removed during her probationary period effective December 26, 2012. On May 16, 2013, the Agency accepted the complaint, with the exception of the basis of sex (sexual orientation). It advised Complainant that if she did not agree with the defined accepted issues, she must provide an explanatory written response within a week of her receipt of the above letter. The Agency dismissed the basis of sexual orientation on the grounds that the EEO process does not have jurisdiction over sexual orientation claims. In a May 20, 2013, letter to the Agency, which she entitled "Amendment," Complainant contended that gender identity, which includes sexual orientation, is covered by EEO regulations. She listed and referred to two such claims: a. In early October 2012, shortly after being posted in California, her first line supervisor (S1) disclosed her sexual orientation by talking to her about how she and her partner commuted in the presence of several staff members. b. On December 14, 2012, S1 directed her to take male co-worker 1 to her home to check her Verizon wireless coverage there, and this suggested to her that she perform sexual favors for co-worker 1. In reply to Complainant's proposed amendments, the Agency declined to accept the basis of sex (sexual orientation). Following the investigation into her complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued an immediate FAD pursuant to 29 C.F.R. § 1614.110(b). It found no discrimination. The instant appeal followed. On appeal, Complainant argues that the Agency improperly dismissed her basis of sex (sexual orientation) discrimination. She contends that the Agency engaged in unlawful sex-stereotyping with regard to incidents a and b. Complainant also argues the merits of her complaint.1 In opposition to the appeal the Agency argues that its FAD should be affirmed. ANALYSIS AND FINDINGS In addition to her claims of race, color, gender and reprisal discrimination, Complainant alleges that the Agency subjected her to unlawful sex stereotyping because she had a same sex partner. The Agency dismissed this claim, reasoning that EEO complaint process under 29 C.F.R. Part 1614 does not have jurisdiction over sexual orientation claims. While Title VII's prohibition of discrimination does not explicitly include sexual orientation as a protected basis, Title VII prohibits sex discrimination, including sex-stereotyping discrimination and gender discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989). The term "gender" encompasses not only a person's biological sex, but also the cultural and social aspects associated with masculinity and femininity. See Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). Sex discrimination claims may intersect with claims of sexual orientation discrimination. See Culp v. Dep't of Homeland Security, EEOC Appeal 0720130012 (May 7, 2013). In this case, Complainant contends that she was discriminated against because she revealed that she had a same sex partner to the Manager of Business Services. She contends that the Manager passed this information along to others in management, who took the various actions delineated in her complaint against her for this reason. Complainant's claim that management took action against her because she had a same sex partner, thus not conforming to her sex stereotype, states a claim within the purview of Title VII. See Veretto v. United States Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011) (claim of discrimination because of a same sex marriage states a claim under 29 C.F.R. Part 1614). Complainant's sex-stereotyping claim covers all the claims raised in her complaint as amended, and was not investigated pursuant to the EEO complaint process detailed in 29 C.F.R. Part 1614. Accordingly, we are remanding Complainant's case to the Agency for a supplemental investigation on her sex-stereotyping claims. Because the supplemental investigation could potentially uncover new facts, we will not rule on the merits of any of Complainant's claims at this point, and on remand the Agency shall provide Complainant the right to request a hearing (on all her remanded bases and claims). The FAD is VACATED. On remand, the Agency shall comply with the Order below. ORDER The Agency is ordered to conduct a supplemental investigation in accordance with this decision and 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 underlying and supplemental investigative files and also shall notify Complainant of the appropriate rights within ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. The appropriate rights include the right to request a hearing and decision from an EEOC AJ on all her remanded claims (all bases, not just sexual stereotyping), or to request an immediate final decision thereon. 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 supplemental 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. 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408) You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of whether you have pursued any administrative complaint processing. The filing of the 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 June 3, 2015 __________________ Date 1 On appeal, Complainant adds an additional incident. She contends that after being hired effective June 30, 2012, she requested posting in Southern California to preserve the continuity of her family life with her same sex partner and health care coverage for her partner, and was told by the Manager of Business Services (a human resources function) that the federal government does not provide medical coverage or posting accommodations for same sex couples. As Complainant did not raise this matter as an issue in her complaint, nor in response to the Agency's acceptance/dismissal letter where she clarified her sexual orientation claims, we will not address this matter. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140202 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120140202