U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ike D.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120160980 Agency No. 20DR00102016100160 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated December 30, 2015, dismissing his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Dietician at the Agency's Hudson Valley Health Care System facility in Montrose, New York. On October 9, 2015, Complainant contacted an EEO Counselor with regard to the claims at issue. On November 16, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discrimination on the bases of sex (male) and religion (Orthodox Christian) when: 1. on or about March 6, 2013, Complainant was offended when he received an all-union member e-mail from the Union President announcing a meeting on March 7, 2013, to plan for a Lesbian, Gay, Bisexual and Transgender (LGBT) event; 2. on or about June 5, 2014, Complainant was offended by the "sexual related LGBT content" in the all employee mandatory training, entitled Equal Employment Opportunity, Alternative Dispute Resolution, Cultural Competency, and Service Recovery; 3. on or about September 22, 2014, Complainant's immediate supervisor took no action when Complainant told the supervisor that he was shocked and disturbed to see that the Agency's All Employee Survey asked questions dealing with sexual preferences and practices; and 4. on August 31, 2015, the Chief Clinical Dietitian took no action when Complainant informed her that he was offended by the All Employee Survey which asked employees questions regarding their sexual orientation. On December 30, 2015, the Agency issued a final decision dismissing the complaint. The Agency reasoned that Complainant's counselor contact for issues 1 through 3 were beyond the 45-day timeframe required by regulation. Next, the Agency dismissed issue 4 for failure to state a claim. The Agency determined that Complainant's "claim of harassment fails the severe or pervasive requirement for further processing." The Agency reasoned that Complainant "identified a single stand-alone event in which [Complainant] was offended by the questions in the "All Employee Survey" that pertained to sexual preference." The Agency stated that it did not believe that this single event could be considered severe or pervasive. The Agency concluded "when viewed as a whole, the event would not create an intimidating, hostile, or offensive working environment." This appeal followed. ANALYSIS AND FINDINGS Timeliness of EEO Counselor Contact EEOC's regulations require that complaints of discrimination be brought to the attention of an Equal Employment Opportunity Counselor "within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1). The Agency reasons that Complainant did not initiate contact with an EEO counselor until October 9, 2015, well beyond the 45-day limitation period from the incidents that occurred in issues 1 - 3 (March 2013 - September 2014). However, a fair reading of the complaint in this matter indicates that Complainant has raised a claim of being subjected to an ongoing hostile work environment that incorporates all four incidents. The 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, Complainant's contact with an EEO Counselor on August 31, 2015, fell within 45 days of issue 4, rendering his hostile work environment claim timely. Therefore, the Agency erred in dismissing the complaint for untimely EEO counseling. Failure to State a Claim Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, 1614.106(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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). 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. Thus, not all claims of harassment/hostile work environment are actionable. Complainant asserts he is a devout Orthodox Christian. He alleges that he requested that his management take action to stop his exposure to certain references to individuals' sexual preferences because he found it offensive, inappropriate in the workplace, and at odds with his religious beliefs. Specifically, he complained that he was prevented from completing the Agency's All Employee Survey (AES) because the survey, in both September 2014 and August 2015, contained the following question: "Do you consider yourself to be one or more of the following? Answer Choices: Heterosexual, or Straight; Gay; Lesbian; Bisexual; Transgender / Transsexual; or I prefer not to say." He maintains that, because of the "sexually related content that is included in the survey," he was prevented from participating in the survey. Complainant also stated that he was offended by an email he received from the union sent to all employees announcing an "LGBT" meeting, and by the references to sexual preference in the Agency's mandatory diversity training that was held in June 2014. Here, we conclude that, even assuming the four incidents occurred as alleged and are considered together, Complainant would not be able to establish a violation of Title VII because these incidents lacked the requisite pervasiveness or severity necessary to alter the conditions of his employment. Complainant has cited four incidents in a two-and-a-half year period of minor consequence to his work environment. We also note that while Complainant has alleged he was offended by the references to sexual preference in the email, survey and training, he has not made any allegation that these events created any burden on the exercise of his religion. In sum, we conclude that, in this complaint, Complainant has failed to state a claim upon which relief can be granted. Accordingly, we AFFIRM the Agency's dismissal of the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. 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 tends 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 (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 (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's signature Carlton M. Hadden, Director Office of Federal Operations June 10, 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 0120160980 5 0120160980