Jennifer T. Culp, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0720130012 Hearing No. 520-2012-00182X Agency No. HSTSA006342011 DECISION Following its November 30, 2012, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) decision. For the following reasons, the Commission MODIFIES the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer, SV-1802-F, at the Syracuse-Hancock International Airport in Syracuse, New York. Complainant, who was publically "out" as a lesbian, was promoted on December 6, 2009, to the position of Supervisory Transportation Security Officer. The promotion was subject to the completion of a 52 week probationary period. Complainant stated that after her promotion she had several meetings with her supervisor who counseled her about taking her lunch and her breaks with a female Transportation Security Officer, which the record reveals was also a lesbian. Her supervisor said that Complainant had to stop taking breaks with the other female employee because she was creating an "improper perception." Complainant stated that she believed this was because of her sexual orientation. On January 7, 2010, Complainant was issued a Letter of Counseling. The Letter stated that Complainant gave a rude response over the radio to a fellow supervisor when she was unwilling to provide assistance and responded, "Yea whatever." On July 3, 2010, Complainant was issued another Letter of Counseling. The letter stated that Complainant is required to arrive to work on time. The letter noted that on July 1, 2010, Complainant was "scheduled to report for work at 0400 hours ....[but she] arrived at 0515 hours." A week later, on July 11, 2010, Complainant was issued her third Letter of Counseling. This letter stated that on July 7, 2010, she requested sick leave for July 8, 2010, because she was stuck in the Chicago airport. The letter stated that her request for sick leave was denied but she instead would be granted annual leave, and it informed her that sick leave is to be requested and used in accordance with MD 1100.63-1 only. On November 18, 2010, Complainant was issued a Letter of Reprimand from an August 29, 2010 incident where she allegedly walked behind an airline ticket counter, obtained the bag tag printed out of the kiosk, placed the tag on a bag, and screened the bag without any direction or assistance from the airline. The Letter stated that Complainant violated Agency policy and operator standards, and as a result, management lost confidence in her judgment and ability to conduct herself in an appropriate manner. This was subsequently reduced to a Letter of Counseling through a union grievance. Also on November 18, 2010, Complainant was issued a notice of "Removal from STSO Position During Trial Period." The letter cited Complainant's three Letters of Counseling and the Letter of Reprimand. Complainant was demoted to Lead Transportation Security Officer, which is a non-supervisory position. On April 18, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sexual orientation (lesbian) when: 1. On November 18, 2010, she was demoted from her Supervisory Transportation Security Officer position to Lead Transportation Security Officer and issued a Letter of Reprimand. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On June 18, 2012, the Agency submitted a Motion To Dismiss, asserting that the Commission lacked jurisdiction over allegations of discrimination based on sexual orientation. On September 6, 2012, the Agency submitted a Motion for a Decision Without a Hearing, and renewed its motion to dismiss for lack of jurisdiction. On October 23, 2012, the AJ issued a decision without a hearing. The AJ found that Complainant's claim was within the Commission's jurisdiction because it is a claim that Complainant does not conform to sexual stereotypes and therefore is cognizable under Title VII. The AJ also found that Complainant did not establish that she was subjected to discrimination, because a preponderance of the evidence does not establish that discrimination existed as alleged. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, and Complainant failed to establish that these reasons were pretext for discrimination. On November 30, 2012, the Agency subsequently issued a final order rejecting the AJ's decision. The Agency stated that the AJ lacked jurisdiction over the complaint and should not have rendered a decision because the Commission does not have jurisdiction over sexual orientation discrimination. Subsequently, on December 3, 2012, the Agency filed this appeal with the Commission. Additionally, on January 8, 2013, Complainant filed an appeal with the Commission. CONTENTIONS ON APPEAL On appeal, the Agency contends that the Commission does not have jurisdiction over a claim of discrimination based on sexual orientation, and requests that the Commission affirms the Agency's rejection of the AJ's decision and dismiss the complaint for lack of jurisdiction. In the alternative, the Agency contends that the Commission should affirm the finding of no discrimination based on gender. While Complainant also filed an appeal, she offered no new contentions on appeal. ANALYSIS AND FINDINGS Jurisdiction The Agency asserts that the Commission does not have jurisdiction over this complaint because the Commission does not enforce the protections that prohibit discrimination and harassment based on sexual orientation. To support its claim, the Agency asserts that Complainant characterized her allegations as a sexual orientation claim and she did not use the words "sex discrimination" when making her allegations of discrimination. As an initial matter, we note that 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 (Jan. 11, 2013). 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 gay individuals in certain circumstances.1 Baker, supra. As the Supreme Court has recognized, Title VII's prohibition on the basis of sex includes discrimination on the basis of "gender." Macy v. Dep't 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 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); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (involving a heterosexual female who alleged that her lesbian supervisor discriminated against her on the basis of sex, and finding that "a plaintiff may satisfy her evidentiary burden [under Title VII] by showing that the harasser was acting to punish the plaintiff's noncompliance with gender stereotypes"); Smith v. City of Salem, Ohio, 378 F.3d 566, 574 (6th Cir. 2004) (sex stereotyping based on a person's gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior, and a label such as "transsexual," is not fatal to such a claim of discrimination); Simonton v. Runyon, 232 F.3d 33, 37 (2d Cir. 2000) (indicating that a gay man would have a viable Title VII claim if "the abuse he suffered was discrimination based on sexual stereotypes, which may be cognizable as discrimination based on sex"). 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. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011); Baker, supra. As an example of sex stereotyping in this case, Complainant believes she was discriminated against when she was counseled numerous times for taking her breaks and her lunch with another female, who was also a lesbian, and was told by her supervisor that it was creating an "improper perception." In other words, Complainant is alleging that the supervisor was motivated by his attitudes about stereotypes that women should only have relationships with men, and that two lesbians seen together created an "improper perception" that goes against that gender stereotype.2 See Castello, supra (Complainant's allegation that she was discriminated against based on her sexual orientation states a claim of sex discrimination because Complainant essentially argued that her supervisor was motivated by the sexual stereotype that having relationships with men is an essential part of being a woman). This is sufficient to state a claim that Complainant was discriminated against for failure to match gender-conforming behavior and thus state a claim based on sex discrimination. We find that the Commission has jurisdiction over this complaint and the AJ was correct in denying the Agency's motion to dismiss the complaint. As a result, we will look at the merits of Complainant's claims below. Summary Judgment In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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"). We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). After a careful review of the record we find that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given an opportunity to respond to the motion, she was given a comprehensive statement of undisputed facts, and she had the opportunity to engage in discovery. Further, even if we assume all facts in favor of Complainant, a reasonable fact finder could not find in Complainant's favor, as discussed below. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Here, we will assume without so finding that Complainant established her prima facie case of sex discrimination. The Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency determined that Complainant was unable to perform at the level required of a supervisor based on her performance and conduct. In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail on her claim of discrimination, Complainant must show, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward her because of her sex. Complainant asserted as proof of pretext that another Supervisory Transportation Security Officer who began at the same time as Complainant and also received Letters of Counseling was not demoted. Complainant asserted that the only difference was that the other Supervisory Transportation Security Officer was not gay. However, a review of the record reveals that the other Supervisory Transportation Security Officer did not have a disciplinary record that was similar to Complainant's disciplinary record. The record establishes that the other employee never received a Letter of Counseling or any similar disciplinary action. Complainant also asserted as proof of pretext that she was discriminated against when she was counseled numerous times because she took her breaks with another female employee, who was also a lesbian, which her supervisor stated created an "improper perception." We note that there is no evidence in the record that the supervisor similarly counseled or had conversations with heterosexual employees when they were seen taking their breaks with members of the opposite sex. However, Complainant's supervisor stated that he counseled Complainant to prevent the perception that Complainant was showing favouritism towards a subordinate employee. Beyond Complainant's subjective beliefs, there is not sufficient evidence in the record to establish by a preponderance of the evidence that Complainant was counseled for failure to match gender-conforming behavior. The record reflects that during Complainant's probationary period she received numerous verbal counselings, three Letters of Counseling, and one Letter of Reprimand that was later reduced to a Letter of Counseling. The purpose of the probationary period is for Complainant to show that she could perform at the supervisory level. The evidence in the record supports the Agency's assertion that during Complainant's probationary period she was rude to another supervisor, late for work, improperly requested sick leave instead of annual leave, and violated Agency policy when she went behind an airline counter, grabbed a luggage tag from the kiosk, tagged luggage, and screened the luggage without the direction or assistance of the airline. We note that an Agency has broad discretion to carry out personnel decisions, such as disciplinary actions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Stiles v. Dep't of Transp., EEOC Request No. 05910577 (June 27, 1991). Beyond Complainant's subjective beliefs, there is nothing in the record that would establish that any of the Agency's actions were motivated by unlawful discrimination. Therefore, after a review of the entire record, we find that Complainant failed to establish by a preponderance of the evidence that the Agency's legitimate, nondiscriminatory reasons for its actions were pretext for sex discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final order and find that the complaint was improperly dismissed for lack of jurisdiction. However, we uphold the AJ's finding of no discrimination because Complainant did not establish by a preponderance of the evidence of the record that discrimination existed as alleged. 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 May 7, 2013 __________________ Date 1 For this reason, the type of blanket statements that have appeared in prior Commission decisions such as Morrison v. Dep't of the Navy, EEOC Request No. 05930964 (June 16, 1994) and Johnson v. U.S. Postal Serv., EEOC Request No. 05910858 (Dec. 19, 1991), no longer reflect the state of law under Title VII. The Commission has found that "Summarily, to the extent any previous decisions this Commission has issued are inconsistent with the instant decision as to 'gender stereotyping,' they are no longer good law on this issue." Baker, supra. 2 We note that the responsible management official's explanation of what he meant by this comment goes to the merits of the claim. At this juncture, when we are determining whether the Commission has jurisdiction over the complaint, we only look at what Complainant is alleging. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720130012 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720130012