Hal T., Complainant v. Richard Cordray, Director, Consumer Financial Protection Bureau, Agency. Appeal No. 0120141108 Agency No. CFPB-2013-0006-F DECISION On January 10, 2014, Complainant filed an appeal from the Agency's January 10, 2014, 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 accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency properly found that Complainant failed to prove that he was subjected to unlawful discrimination and harassment. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Examiner, CN-0570-51, at the Agency's facility in Jacksonville, Florida. Complainant had worked with the Agency since August 28, 2011. On March 2, 2014, Complainant filed an EEO complaint in which he alleged that the Agency harassed and discriminated against him on the bases of sex (sex stereotypying and sexual orientation), religion (none), and in reprisal for prior EEO activity when: 1. The Office of Human Capital investigated Complainant; 2. The Agency offered Complainant a lower salary than other employees were offered; 3. The Agency did not select Complainant for internal positions; 4. The Agency did not assign Complainant to projects, including to an assignment for which U.S. Senator Bill Nelson told the Agency that Complainant was "well-suited;" and 5. The Agency gave Complainant a performance rating of "3" out of "5" for fiscal year 2012. The Investigation In an investigative statement, Complainant stated that he is a "homosexual male," and that he believes management became aware of his sexual orientation when he signed up for domestic partnership benefits in 2011. Complainant further stated that he does not identify himself as having a religion, and that management did not know about his religious beliefs because he did not discuss his personal religious beliefs at work. Complainant also stated that he had filed a previous EEO complaint against the Federal Deposit Insurance Corporation (FDIC) in 2011, which was still being processed at the time he gave his statement. Complainant stated that he was unsure if Agency officials at Consumer Financial Protection Board (CFPB) were aware of his previous EEO activity. Complainant stated that he was subjected to harassment when he was investigated because an employee reported that Complainant had said that he did not want to eat at Chick-fil-A restaurant, and because Complainant's "openly gay lifestyle" created a hostile work environment for the heterosexual employee. Complainant stated that the accuser was anonymous, and the investigation concluded that he had not engaged in any wrongdoing. Complainant also alleged that he was not given proper pay and grade, and assignments commensurate with his experience, despite having received a letter of reference from Senator Bill Nelson (D-FL) for a job. Complainant stated that he requested to work at large banks instead of credit unions, but that he was still assigned work with credit unions. Complainant also stated that he requested to work on the Credit Bureau Team, but this request was denied. Complainant further stated that he was placed on a manager's (S1's) team that had multiple complaints from minorities in an attempt (according to Complainant) to try to get Complainant to "rein his open [sic] gay in." Complainant stated that a Labor Relations official (LR official) told him that some people are just not comfortable with openly gay people, and he should adjust to suit their discriminatory attitudes. Complainant further stated that he reported the harassment to the Assistant Regional Director (Assistant Director) and the LR official. He stated that no employment actions were taken against him because of the investigations, but he heard that management wanted to write him up because he talked about being gay. Complainant stated that all examiners talk about their families, and his family is no different than their families. Complainant also stated that he was offered a lower salary than other Examiners, and other employees with less regulatory experience were paid much higher wages than he was paid. Complainant stated that the Agency originally offered him a $46,000 per year salary, but he successfully negotiated a $71,000 per year salary. Complainant stated that he accepted the $71,000 salary because he was told that promotions and travel would offset the lower salary, and he wanted to get away from the FDIC. The LR official stated that, on or about October 24, 2012, Employee Relations received an e-mail from an examiner assigned to the same examination site as Complainant. She stated that the examiner (C1) alleged that Complainant had harassed coworkers, and that employees were uncomfortable because of Complainant's behavior. The LR official further stated that an investigation was conducted, and there was a determination that Complainant had not engaged in wrongdoing. She stated that some employees reported that Complainant discussed personal topics during work hours and talked a lot, which could be distracting while they were working, but the majority of employees said that there was nothing inappropriate in the content of Complainant's comments. The LR official stated that the investigation was closed without any action taken against Complainant. The LR official stated that she did not advise Complainant that he needed to protect heterosexual employees from being offended, nor did she say anything similar. The LR official further stated that another investigation of Complainant was conducted because Employee Relations received a complaint from an employee who alleged that Complainant had pointed to his "private areas" to demonstrate the location of places in Florida. She stated that the investigation concluded that Complainant had acted inappropriately and unprofessionally, and that Complainant was counseled by management in that instance. A Human Resources Specialist (HR Specialist) stated that Complainant initially was investigated because, in October 2012, C1 alleged that Complainant engaged in inappropriate conduct during an examination. The HR Specialist stated that she conducted the investigation, and found no evidence that Complainant had engaged in wrongdoing. She stated that no action was taken against Complainant because of this investigation. Regarding the second investigation, the HR Specialist stated that it was conducted because Human Capital received an e-mail from the Regional Director on May 9, 2013, that contained a complaint about Complainant. She stated that an investigation concluded that Complainant responded to a question about the location of Jacksonville, Florida by "demonstrating with his body." The HR Specialist stated that Complainant was not subjected to any adverse action because of the investigation. The Regional Director stated that Complainant was given some of the assignments he requested, including working on an examination in Arkansas and two other examinations in the Jacksonville area. He further stated that Credit Bureau examinations are a specialty area managed at Headquarters, not at the regional offices. He also stated that Senator Nelson's letter did not state that Complainant was well-suited for particular assignments, only that Complainant had an interest in working with credit bureaus and debt collectors. The Assistant Regional Director stated that he rated Complainant a "3" out of "5" for fiscal year 2012 because Complainant had performed at the fully-satisfactory level but did not perform any substantial work above and beyond the scope of his duties. Regarding Complainant's salary, the Consumer Financial Protection Analyst (CFPA) stated that Complainant entered on duty with the Agency as a Consumer Protection Compliance Associate, CN-1101-40, for which the Agency had offered him a salary of $60,023. The CFPA stated that Complainant ultimately negotiated a salary of $71,070. The CFPA further stated that Complainant's salary was in the higher quartile for a CN-40 position, but Complainant accepted a position that was three pay grades lower than his previous GS-13 position with FDIC. CFPA stated that Complainant submitted an inquiry to Human Resources regarding a promotion, and that she encouraged Complainant to speak to his supervisor about promotions. She stated that, on September 23, 2012, Complainant received his career-ladder promotion to the position of Examiner, CN-0570-51, at the same time that everyone else in the Southeast Region received their career-ladder promotions. The CFPA stated that Complainant received a new promotion salary of $76,400, which is a 7.5 percent increase from his previous base salary. She stated that she explained to Complainant that the Agency applied a standard 7.5 percent salary increase to calculate Complainant's promotion salary to the CN-51 level, and that his original base salary at the CN-40 level was $69,000.1 The CFPA stated that Complainant's salary is in the middle of the pay band for his geographic area, and that he is the fourth-highest-paid CN-51 in the Southeast Region. She stated that the higher-paid CN-51 employees came to the Agency under the Dodd-Frank Wall Street Reform and Consumer Protection Act, unlike Complainant. The CFPA further stated that Complainant applied for positions in November 2012, including CN-60 Field Manager; CN-60 Supervisory Examiner, Field Examination Manager; CN-60 Examiner; and CN-52 Examiner. The CFPA stated that she created the vacancy announcements for the positions and the qualification standards. The CFPB stated that Complainant was not selected because he was found not to meet minimum qualifications for any of the positions at issue. She stated that Complainant had just become a CN-51; therefore, he did not have the time-in-grade to be minimally-qualified for any position at or above the CN-52 level. The CFPB further stated that Complainant did not have any relevant prior experience for the positions from his career at FDIC and, although he was a Resolutions and Receivership Specialist at FDIC, such experience is only minimally qualifying for a CN-40 position. The Final Decision 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 decision dismissed claims 3 and 5 on the basis that they were initiated by untimely EEO Counselor contact. Nevertheless, the Agency also addressed the merits of claims 3 and 5 because these matters were investigated. Regarding Complainant's claim that he was subjected to sexual orientation discrimination, the Agency determined that sexual orientation is not a basis of discrimination prohibited by Title VII, noting, however, that Executive Order 13087 provides protection. The Agency noted that it has a parallel EEO complaint procedure that allows employees to file complaints based on sexual orientation, and that Complainant failed to prove that the alleged actions occurred because of his sexual orientation. With regard to Complainant's claim of sex stereotyping, the decision concluded that Complainant had not shown any "evidence of the agency's suggestion that he conform to stereotypic behavior associated with his sex nor has he shown that the Agency demonstrated animus toward him because of his failure to conform to stereotypic behavior based on his sex." The decision further found that the alleged actions were not severe or pervasive enough to constitute a hostile work environment on any basis, that Complainant failed to show that the alleged actions occurred because of a protected basis, and that Complainant did not prove that the Agency's legitimate, non-discriminatory reasons for its actions were pretext for unlawful discrimination. CONTENTIONS ON APPEAL On appeal, Complainant reiterates his claim that the Agency discriminated against him because he is openly gay, as well as because of his sex and religion. Complainant maintains that there is no dispute that the Agency investigated him because he is gay. The Agency requests that we affirm its final decision. STANDARD OF REVIEW 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 Chap. 9, § VI.A. (Nov. 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"). ANALYSIS AND FINDINGS Sexual Orientation Discrimination As an initial matter, we note that Complainant alleges that the Agency subjected him to discrimination and harassment because he is gay. 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); see Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (Apr. 20, 2012). The term "gender" encompasses not only a person's biological sex, but also the cultural and social aspects associated with masculinity and femininity. Id. Moreover, we have held that sex discrimination claims may intersect with claims of sexual orientation discrimination. See Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0120110576 (Aug. 20, 2014); Culp v. Dep't of Homeland Security, EEOC Appeal 0720130012 (May 7, 2013) (complaint stated a claim of sex discrimination under Title VII where supervisor counseled complainant that associating with lesbian colleague created an improper perception); Baker v. Social Security Administration, EEOC Appeal No. 0120110008 (Jan. 11, 2013) (that complainant characterized his complaint as alleging sexual orientation discrimination does not defeat an otherwise valid sex discrimination claim under Title VII); Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011) (complaint stated a claim of harassment involving sex stereotypes under Title VII where complainant alleged harassment because he married someone of the same sex); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011) (complainant alleged sex stereotyping under Title VII by asserting that a manager made offensive comments about her having relationships with women). In this case, Complainant contends that he was harassed and discriminated against because he is openly gay at work and appropriately shared details about his family life in the same manner as heterosexual co-workers. As such, Complainant's claim alleges that he was treated differently because he did not conform to the sex stereotype that a man should not be romantically partnered with a man, or should not acknowledge he is gay to coworkers. Complainant's claims are akin to the allegations in Veretto and Castello. See also Baker, EEOC Appeal No. 0120110008 (complainant's allegation of sexual orientation discrimination was a claim of sex discrimination because it was based on his gender non-conforming behavior, and the fact that a Complainant characterized the basis of discrimination as sexual orientation does not defeat an otherwise valid sex discrimination claim); Culp v. Dep't of Homeland Security, EEOC Appeal No. 0720130012 (May 7, 2013) (allegation of sexual orientation discrimination was claim of sex discrimination because supervisor was motivated by his attitudes about sex stereotypes that women should only have relationships with men). Hence, we find that Complainant's allegations state cognizable claims in the EEO process. Nevertheless, the Agency concluded that Complainant's claims of sexual orientation discrimination could not be processed under EEO regulations and could only be processed under a parallel internal Agency procedure. This is incorrect. Lesbian, gay, and bisexual employees who believe they have been discriminated against because of their sexual orientation should be counseled that they have a right to file a complaint under the 1614 process because they may have experienced sex discrimination, as described above. Processing Complaints of Discrimination by Lesbian, Gay, Bisexual, and Transgender (LGBT) Federal Employees.2 The Agency should henceforth take steps to ensure that it properly processes sexual orientation claims in accordance with Commission guidance and precedent. Despite the Agency's erroneous conclusion that Complainant's claims could not be adjudicated through the EEO process insofar as they pertained to sexual orientation discrimination, the Agency nonetheless investigated all of the claims contained in the complaint. Consequently, the record is adequately developed for us to make a determination on the merits of all of Complainant's claims, including sex discrimination under Title VII. Disparate Treatment and Hostile Work Environment Complainant's complaint can be analyzed under both disparate treatment and hostile work environment analyses. In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). In order to establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an environment, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee. 682 F.2d 897 (11th Cir. 1982). In this case, we assume, for the sake of analysis and without so finding, that the Agency established a prima facie case of discrimination. Nonetheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, regarding the investigations, the Agency stated that it investigated Complainant on two occasions in response to coworker claims that he had subjected them to a hostile work environment. Regarding Complainant's salary, management stated that Complainant entered duty with the Agency as a Consumer Protection Compliance Associate, CN-1101-40, and that the Agency had offered him a salary of $60,023. Management also stated that Complainant ultimately negotiated a salary of $71,070, and that Complainant received a new promotion salary of $76,400, which is a 7.5 percent increase from his previous base salary. With respect to the non-selections, the Agency stated that Complainant was not selected because he did not meet the minimum qualifications for any of the positions based on the fact that he had just become a CN-51; therefore, he did not have the time-in-grade to be minimally qualified for any position at or above the CN-52 level. With respect to assignments, management stated that Complainant was given some of the assignments he requested, including working on an examination in Arkansas and two other examinations in the Jacksonville, Florida area. Management further stated that Credit Bureau examinations are a specialty area managed at Headquarters, not at the regional offices, and that Senator Nelson's letter did not state that Complainant was well-suited for particular assignments, only that Complainant had an interest in working with credit bureaus and debt collectors. Regarding Complainant's performance evaluation, management stated that Complainant received a "3" rating because he performed at the fully satisfactory level but did not perform any substantial work above and beyond the scope of his duties. Upon review, we find that Complainant has not shown that the Agency's legitimate, non-discriminatory explanations for its actions were pretext for unlawful discrimination. In so finding, we note that, after an Agency becomes aware of harassment allegations, it has a duty to investigate such charges promptly and thoroughly. See Rodriguez v. Dep't. of Veterans Affairs, EEOC Appeal No. 01953850 (Aug. 29, 1996). The Agency could not ignore or prejudge the harassment allegations against Complainant, even if the allegations appeared to be unfounded.3 With respect to Complainant's salary, we note that the record reveals that, out of 71 Examiners nationwide, Complainant had a higher salary than 51 of them in May 2013. Further, of the 12 Examiners or Compliance Associates selected in Complainant's region during the relevant time period, only two had salaries higher than Complainant. Complainant has not shown that he was treated less favorably than similarly-situated employees with respect to any of these matters. Additionally, we note that Complainant acknowledged that management did not know about his religious beliefs, which greatly undermines his religious discrimination claim. Thus, we find that the Agency properly found that Complainant did not prove that he was subjected to disparate treatment because of his sex, previous EEO activity, or religion. Further, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Max. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant did not establish that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Consequently, we also find that the Agency properly found that Complainant did not prove that he was subjected to unlawful harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision for the reasons set forth in this decision. 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 (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations December 18, 2014 Date 1 The CFPA noted that a locality rate of 1.03 percent was also added to Complainant's salary. 2 Available at http://www.eeoc.gov/federal/directives/lgbt_complaint_processing.cfm. 3 We note that, although agencies have a duty to promptly investigate and respond to claims of harassment, an agency should not conclude that an employee's conduct is inappropriate merely because the employee is gay, lesbian, or bisexual; the appropriateness or offensiveness of the conduct must be judged without regard to the employee's sexual orientation. For instance, if heterosexual employees may discuss their family lives and relationships in the workplace, gay employees must be allowed to do the same without being subjected to adverse actions or harassment. In the interest of preventing future misunderstanding, we strongly recommend that this Agency provide updated training to all employees and management on Title VII's prohibition of discrimination based on sexual orientation and gender stereotyping, that is consistent with the Commission's current guidance, training materials, and current case law. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141108 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120141108