Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120120387 Hearing No. 451-2011-00140X Agency No. 2003-0674-2010102693 DECISION Complainant filed an appeal with this Commission from the Agency's final order dated September 22, 2011, concerning 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission VACATES the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant, a Social Worker, worked as a Suicide Prevention Case manager in the Agency's Temple, Texas facility from October 27, 2008, to October 29, 2010. Complainant counseled veterans believed to be at risk for suicide. On June 4, 2010, Complainant filed an EEO complaint, which was subsequently amended, alleging that he was subjected to discrimination on the bases of sexual orientation, disability (perceived), and in reprisal (for the current complaint) when: A1 On June 4, 2010, Complainant was ordered to submit to a mental fitness-for-duty (FFD) examination. A2 On June 4, 2010, Complainant was denied union representation. B Complainant alleged that he was subjected to a hostile work environment based on sexual orientation with regard to 27 incidents that allegedly occurred from November 2008, through June 4, 2010. B1 In November 2008, the Supervisory Social Worker denied Complainant's request to stay late; B2 In November 2008, the Supervisory Social Worker denied Complainant's request to work weekends; B3 In November 2008, after addressing the Complainant's concerns with the Chief of Social Work, Complainant was given the hotline consults for all three regions, five days a week; this was an increase in workload, which lasted until August 2009; B4 Shortly after the Christmas 2008 holiday, while in a staff meeting, Coworker 1, laughed at Complainant while looking at Coworker 2, as others present pretended not to see or hear anything; B5 On April 15, 2009, Coworker 1 proceeded to laugh at Complainant and Complainant told Coworker 1 he did not appreciate him laughing and snickering at him. Coworker 1 replied, "You should not be so sensitive." Complainant had previously alleged sexual harassment against Coworker 1; B6 On approximately April 15, 2009, Coworker 3, Complainant's office-mate, in a conversation with Complainant about a movie, said, "Sometimes a person does have doubt." According to Complainant, in context with their conversation, she was accusing Complainant of being a pedophile; B7 Sometime in July 2009, Coworker 3 and Coworker 4 were visiting each other. Coworker 4 commented "Look, Greg's here." Complainant asked Coworker 4 if Coworker 3 bothered to mention that he works through lunches and on the weekends. Coworker 3 replied, "See I told you he's paranoid;" B8 On August 3, 2009, the Chief of Clinical Support Service, walked over to Coworker 7's office, and they began gossiping about and laughing at Complainant. The Chief of Clinical Support Service commented, "He had that look on his face [Complainant]." Coworker 7 then commented about the smell in the office, and the Chief of Clinical Support Service said, "Yes, he caught a whiff of that;" B9 On August 7, 2009, in a V-Tel meeting with Coworker 3, the sound was distorted for approximately 15 minutes, which Complainant felt was done intentionally as a conspiracy to psychologically torment him; B10 On August 7, 2009, Complainant (who has an office by himself) was called by Coworker 5 with a general question. Minutes later the air vent began to rattle loudly and the air came out a lot harder than normal and Complainant suddenly became very sleepy. Complainant feared for his safety and left work early; B11 On December 4, 2009, the Hospital Operator, made the comment to Complainant and Coworker 3, that she was "trouble #1" and Complainant was "trouble #2;" B12 On December 4, 2009, Coworker 3 and Coworker 6 inquired if Complainant wanted to be in their play. Coworker 3 looked at Complainant and said, "You can play the slut;" B13 On December 7, 2009, in a condescending voice, the Chief of Social Work commented that Complainant looked depressed. Coworker 7 then proceeded to question Complainant in the manner that he questions suicidal veterans. Coworker 7 then ended the conversation with the sarcastic statement that Complainant knows "all the right things to say;" B14 On December 10, 2009, Coworker 3 and Coworker 1 in a conversation with Complainant discussed the comedy movie "Team America" commenting on a scene where the puppets "eat each other's shit." Coworker 1 then talked about a character on the television show South Park. Complainant felt that Coworker 3 and Coworker 1 were implying that he was into "scat." B15 Sometime in January 2010, the Director of the Domiciliary and a Clinical Psychologist, sent Complainant an electronic mail message reminding him about the monthly Suicide Flag List. Complainant asserts that the subject line read "Suicide Fag ist." B16 On February 2, 2010, Coworker 7 said something to Complainant like, "You should feel free to come in if you ever need to vent or to check anything out like the patients do, since I think of you like a patient;" B17 On April 6, 2010, Coworker 7 allegedly said loudly to Coworker 9, "This guy is crazy as hell," referring to Complainant; B18 On April 15, 2010, Coworker 7 was on the telephone, and allegedly said, regarding Complainant, "We're not buying him off. He's sitting over there right now;" B19 On April 15, 2010, Coworker 7 commented that if President Obama succeeds in changing the "Don't ask, don't tell" policy in the military that "there would end up being more accidents in the field that really aren't accidents." He then told the story of a tire jack slipping and crushing a military supervisor. Coworker 7 then said, to Complainant, "I'd hate for a tire to fall on you;" B20 On May 14, 2010, a medical social worker, called Complainant earlier in the day using a high pitched voice. Complainant asserts that it was clear that the medical social worker was trying to "push his buttons" about being gay; B21 On May 14, 2010, Coworker 7 allegedly said to Complainant, "Have a good weekend and go get a social life." After Complainant replied, Coworker 7 allegedly said, "But you can have double the fun" (meaning he could have sex with men or women or three-way sex)1; B22 On May 18, 2010, Coworker 8 said loudly to Complainant, "[Complainant] is here to say vicious things about people;" B23 On May 18, 2010, Coworker 9 asked, "So, we can kill him then (referring to Complainant);" B24 On May 19, 2010, Coworker 7 came into Complainant's office and said, "I have now learned that I have been accused of something else." Coworker 7 also said, "I sit over there being crazy and you sit here being crazy;" B25 On May 26, 2010, Coworker 7 said that the Chief of the Clinical Support Service gave him the go ahead, but said to wait until Friday. Complainant did not know if they were plotting to kill him. Complainant feared for his life and reported the incident; B26 On June 1, 2010, Coworker 7 was talking loudly on the phone and asked the person on the other end if he was wearing a dress and high heels that day. When the call ended he said, "So, you're having a good day even though you're not wearing a dress and high heels." He then said, "Talk to you later. Have a good day, guy;" B27 On June 4, 2010, Complainant was ordered and pressured by the Chief of Staff and the Chief of Mental Health, a Psychiatrist, to take a mental fitness-for-duty examination prompted by concerns raised by a Veterans Affairs Police detective. Complainant was denied union representation. 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). Complainant timely requested a hearing. On June 29, 2010, the AJ dismissed the following 14 issues: B 1-9, 11-12, 15, 18, and 19. The AJ noted that Complainant alleged sexual orientation as a basis for those claims and did not allege that he was subjected to disability or reprisal discrimination. Thus, the AJ dismissed those claims pursuant to 29 C.F.R. § 1614.107(a)(1). Complainant subsequently filed a Motion to Retain Certain Claims. Specifically, Complainant agreed that claims B 1 - 3 and 15 should be dismissed because they were based on sexual orientation. However, Complainant argued that the remaining 10 claims should not be dismissed because the basis was perceived disability. On July 1, 2011, the AJ denied Complainant's motion and noted that at the time Complainant was deposed, he indicated the basis for those claims was sexual orientation. The Agency's Office of Resolution Management referred Complainant's sexual orientation claim to the Office of Employment Discrimination Complaint Adjudication (OEDCA) for a final agency decision on the grounds the EEOC did not have jurisdiction of claims based on sexual orientation. OEDCA was instructed to issue a final decision on the sexual orientation claims in conjunction with OEDCA's final order on the AJ's decision. A hearing was held on the accepted claims on June 30, July 6 - July 8, and July 11, 2011. The AJ determined that Complainant articulated legitimate, nondiscriminatory reasons for its actions and that Complainant failed to show those reasons were a pretext for discrimination. The Agency issued a final order on September 22, 2011. The Agency fully implemented the AJ's decision finding no discrimination. On October 21, 2011, Complainant filed the present appeal. In a subsequent brief in support of his appeal, Complainant states he wants to add sex discrimination to his case. He states that his claim of sexual orientation should be re-worded and accepted by the Commission as a Title VII claim on the basis of sex discrimination via hostile work environment harassment motivated by sex-stereotyping. He notes that the Commission has been accepting sex stereotyping claims for adjudication since at least mid to late 2011. On October 31, 2011, the Agency issued a "final agency decision" (this is the non-EEO agency decision issued pursuant to Executive Order 13087) on Complainant's complaint of hostile work environment based on sexual orientation with regard to the 14 incidents that allegedly occurred from November 2008 through April 15, 2010. The Agency found Complainant failed to demonstrate that he was subjected to discrimination as alleged. Subsequently, Complainant filed a request for reconsideration with the Agency. Complainant claimed in his non-EEO request for reconsideration with the Agency that the Agency failed to adjudicate all of his sexual orientation claims. On January 12, 2012, the Agency rescinded its October 31, 2011 final agency decision (non-EEO decision) regarding sexual orientation. The Agency found that Complainant's disparate treatment claim (on the basis of sexual orientation) was not adjudicated and that all of the incidents he alleged in support of his sexual orientation harassment claim were not considered. In the new final agency decision (January 12, 2012), the Agency considered Complainant's disparate treatment claims (A1-A2) and his hostile work environment claim containing incidents B1-B27. The Agency concluded Complainant failed to demonstrate that he was discriminated against on the basis of sexual orientation as alleged. ANALYSIS AND FINDINGS The instant appeal is only from the Agency's EEO decision issued on September 22, 2011. There is no appeal, and no right to appeal, from the Agency's non-EEO decision on January 12, 2012. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. In this case, Complainant alleged that he was discriminated against on the bases of sexual orientation, disability, and reprisal. Specifically as to the first basis, sexual orientation, we find that Complainant's allegations state a claim for sex discrimination. We find 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. 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. The Commission has recognized the viability of such sex stereotyping claims. See Macy, supra; Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011); Baker v. Social Security Administration, EEOC Appeal No. 0120110008 (Jan. 11, 2013); Couch v. Dep't of Energy, EEOC Appeal No. 0120131136 (Aug. 13, 2012). In this case, we find that Complainant has alleged a plausible sex stereotyping case which would entitle him to relief under Title VII if he were to prevail. Complainant alleged that he was subjected to a hostile work environment when: a coworker made the comment that Complainant could "play the slut" in a play; two coworkers were discussing a movie in which puppets "eat each other's shit" and Complainant felt they were implying he was into "scat2"; a coworker told Complainant to "[h]ave a good weekend and go get a social life" and said to Complainant that he could "have double the fun" which Complainant thought meant he could have sex with men or women or three-way sex; an electronic mail message was sent to Complainant with the subject line "Suicide Fag ist;" a coworker called Complainant using a high-pitched voice; and a coworker asked a male coworker on the phone if the coworker was wearing a dress and high heels. Upon review of the record, we find that Complainant's claim of harassment based on his sexual orientation is a claim of discrimination based on the perception that he does not conform to gender stereotypes of masculinity, and therefore states a viable claim under Title VII's sex discrimination prohibition. As Complainant's sex stereotyping claim was not previously considered by the AJ,3 we vacate the Agency's final order. In order to avoid fragmentation of Complainant's complaint, we remand the whole matter to the Agency for processing. CONCLUSION The Commission VACATES the Agency's January 12, 2012 final order and REMANDS the complaint to the Agency for further processing consistent with this decision and the ORDER herein. ORDER The Agency shall submit to the Hearings Unit of the San Antonio Field Office a request for a hearing within 15 calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 15 calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint file have been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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 (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 (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 (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 January 28, 2015 __________________ Date 1 The parenthetical is original in the framing of the complaint. 2 Complainant describes "scat" as "a term for people who eat each other's feces as a sexual thing that they get into." 3 We note that both the AJ's and Agency's decision on the EEO complaint were issued after the Commission's decision in Macy, EEOC Appeal No. 0120120821. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120120387 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120120387