U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mathew R.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120152376 Agency No. 158344700987 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission from the Agency's final decision dated May 7, 2015, dismissing a formal complaint of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the period at issue, Complainant worked as an Office Administrative Assistant, GS-08, at the Agency's Naval Air Station Joint Readiness Base (NASJRB) Fire and Emergency Services (F&ES) Department, in Fort Worth, Texas. On January 29, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On April 20, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to ongoing discriminatory harassment on the basis of sex (sexual orientation, male). Complainant alleged that the following incidents supported his claim: 2 1. On an unspecified date in 2009, a manager, Fire Chief 1 (FC1), handed Complainant a picture and said, "I just want to know if you are a homo?" 2. On an unspecified date in 2013, during a training on the repeal of the "Don't Ask, and Don't Tell," policy, FC1 stated Complainant could now come out of the closet since "the law was repealed." 3. On January 17, 2014, a manager, Fire Chief 2 (FC2), intimidated him and harassed Complainant during a meeting, that included FC1, who had previously made several anti-gay slurs and remarks. 4. On February 5, 2014, Complainant was on the telephone, when FC2 inquired about who Complainant was on the telephone with, and another manager, Supervisory Firefighter 1 (SF1) commented, "probably his boyfriend." 5. On December 11, 2014, FC2 informed SF1 that he would need to take Complainant to the post office, and Complainant states that SF1 stated that he "would take that big girl anywhere she wants to go." 6. On August 12, 2014, a coworker, Firefighter 1 (FF1), tickled and twisted Complainant's nipple. 7. On August 25, 2014, FF1 touched Complainant by flicking his nipple while he was talking to a manager, Supervisory Firefighter 2 (SF2). When Complainant commented on this to SF2, SF2 acknowledged the occurrence, but did nothing about it. 8. On January 8, 2015, a coworker, Firefighter 2 (FF2) made a gay slur, and then commented to the effect that "[Complainant] should not get angry with him because the state does not allow [Complainant] to get married." It was Complainant's understanding that FF2 was referring to same-sex marriage. Complainant later believed that FF2 was written up for this comment. On May 7, 2015, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, reasoning that Complainant was actually alleging discrimination based on his sexual orientation, not his gender, and therefore had not asserted an actionable claim under Title VII. In the alternative, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.105(a)(1), for untimely EEO Counselor contact. The Agency stated that the allegations took place from January 2014 through August 2014, but that Complainant did not contact an EEO Counselor until January 29, 2015. The instant appeal followed. On appeal, Complainant submitted several detailed statements describing the work environment surrounding his claims. Complainant contends that firefighters and management have repeatedly called him homophobic names, consistently called him fat, and made fun of his weight over the years. Complainant contends that management was aware of these actions, but did nothing to stop them. ANALYSIS AND FINDINGS Failure to State a Claim 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). In this case, the Agency dismissed the complaint for failure to state a claim because Complainant was alleging discrimination based on sexual orientation. However, the Commission has held that claims of discrimination based on sexual orientation are valid claims of sex discrimination under Title VII and should be processed in the 29 C.F.R. Part 1614 EEO complaint process. Complainant v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Here, Complainant, through his factual allegations, has asserted an ongoing pattern of harassment sufficient to state a viable hostile work environment claim. Therefore, the Agency erred in dismissing this complaint for failure to state a claim. Untimely EEO Counselor Contact EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. However, with respect to harassment claims, the United States Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). Here, we find that Complainant's hostile work environment claim was timely raised because Allegation 8 occurred within 45 days of January 29, 2015, the date he initiated EEO counselor contact.3 Moreover, we find that Allegations 1-7 are part of the same pattern of alleged discriminatory intimidation, homophonic comments and slurs, ridicule, and insult. Accordingly, the Agency also erred in dismissing the complaint for untimely EEO counselor contact. CONCLUSION Based on our thorough review of the record and the contentions on appeal, the Agency's dismissal is REVERSED. Complainant's hostile work environment claim is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claim (hostile work environment) 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations February 19, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 We have re-ordered the allegations chronologically. Additionally, we have replaced generalized titles such as "management" with specific position titles. 3 In its brief submitted on appeal, the Agency concedes that Allegation 8, occurring on January 8, 2015, should have been considered timely. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152376 2 0120152376