John Angle v. Department of Agriculture 01A32644 April 5, 2004 . John Angle, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency. Appeal No. 01A32644 Agency No. 000321 Hearing No. 100-A1-8008X DECISION Complainant timely initiated an appeal from the agency's final decision (FAD) concerning his equal employment opportunity (EEO) complaint of unlawful 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. For the following reasons, the Commission AFFIRMS the agency's FAD. The record reveals that complainant, a GS-12 Statistician, Food Assistance and Rural Economy Branch, in the agency's Economic Research Service in Washington, D.C. (“facility”), filed a formal EEO complaint on December 28, 1999, alleging that the agency had discriminated against him on the bases of disability (excessive flatulence), perceived sexual orientation and reprisal for prior EEO activity when: (1) his request to delay or cancel his yearly Economic Position Classification System (EPCS) review was denied and he was not allowed the required ninety (90) day preparation time; (2) he received a lower than expected mid-year performance appraisal; (3) the agency ignored his concerns that he was being administratively isolated; (4) he was directed to be visible from his internal window at all times; (5) the agency failed to take action to stop verbal and other harassment, such as door slamming; and (6) the agency applied different standards to him regarding the clearance of his publications. Complainant alleged that he has suffered from excessive flatulence since 1994. In 2000, he opined that he had celiac disease but this condition has never been diagnosed by a physician. The record indicates that complainant's physicians have stated that his flatulence problem is medically trivial and is physically normal. Believing he was the victim of discrimination, complainant sought EEO counseling and filed a formal complaint with the agency on December 28, 1999. At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing, finding no discrimination. The AJ concluded that complainant failed to establish a prima facie case of disability discrimination. Specifically, the AJ found that complainant failed to present any evidence that he is an individual with a disability under the Rehabilitation Act. Further, the AJ found that discrimination on the basis of sexual orientation is not “within the purview of the laws enforced by the [Commission] and cannot be considered here.” AJ's Decision at 3. Finally, the AJ found that complainant failed to establish a prima facie case of retaliation, as there is no evidence that he engaged in prior EEO activity or other protected activity. The AJ also found that considering complainant's allegations under a harassment violation, the allegations did not rise to the level of actionable hostile work environment. In so finding, the AJ noted that the alleged conduct by the agency was not sufficiently severe or pervasive to have altered the conditions of complainant's work environment. Further, the AJ found that complainant failed to proffer any evidence to infer that the alleged acts of harassment were based on his alleged disability or in retaliation for his alleged prior protected activity. As a result, the AJ found that complainant failed to establish that he was discriminated against as he alleged. The agency's FAD implemented the AJ's decision. On appeal, complainant restates arguments previously made in opposing the AJ's decision without a hearing. Complainant contends that he was prejudiced by the AJ's decision to issue a decision without a hearing, and that the AJ's decision was a “mockery of justice.” In response, the agency restates the position it took in its FAD, and requests that we affirm its final order. After a careful review of the record, the Commission finds that grant of summary judgment was appropriate, as no genuine dispute of material fact exists. Construing the evidence to be most favorable to complainant, we note that complainant failed to present evidence that any of the agency's actions were motivated by discriminatory animus toward his protected classes. Initially, the Commission finds that even assuming, arguendo, that complainant was an individual with a disability, there is no evidence to conclude that any of the agency alleged actions against complainant were done due to his alleged disability of excessive flatulence. In so finding, we note that the agency stated that complainant was directed to be visible at his internal office window as he failed to follow emergency evacuation procedures by remaining in his office during fire drills. Investigative Report (IR) at Exhibit 5. In addition, while complainant reported specific incidents of alleged harassment to his supervisor, he failed to provide the names of any facility employees involved in the incidents. Id. The agency also stated that complainant's request for a delay in his EPCS review was granted by the agency four (4) days after it was requested. IR at Exhibit 7. Further, we concur with the AJ's finding that complainant's claim of discrimination based on his perceived sexual orientation is not a valid claim under Title VII. The Commission has consistently held that discrimination based on sexual orientation is not actionable under Title VII. Barbagallo v. USPS, EEOC Appeal No. 01980167 (July 5, 2001); Marucci v. Dept. of the Army, EEOC Appeal No. 01982644 (October 27, 2000); Morrison v. Department of the Navy, EEOC Request No. 05930964 (June 16, 1994) (claim that harasser told co-workers that complainant was gay and had been seen kissing another man was based on complainant's perceived sexual orientation, not his sex, and therefore was not actionable as sex discrimination under Title VII). In addition, we find that complainant failed to establish a prima facie case of retaliation. The record establishes that complainant sought EEO counseling and pursued an informal complaint in April of 1998, and contacted an EEO Counselor in September of 1999 prior to filing his formal complaint. As stated by the agency, all of the agency's actions to which complainant refers to in his formal complaint occurred at least 15 months after he pursued his informal complaint, and occurred before his contact with the EEO Counselor in September of 1999. In addition, complainant has failed to proffer any evidence of a causal connection between the agency's actions and his prior EEO activity. The Commission also concurs with the AJ's finding that the totality of the agency's actions were not sufficiently severe or pervasive to constitute harassment due to a hostile work environment under Title VII. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Therefore, after a careful review of the record, including complainant's contentions on appeal, and arguments and evidence not specifically addressed in this decision, we AFFIRM the agency's FAD. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 5, 2004 __________________ Date