0120110145
10-23-2014
Complainant, v. Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110145
Agency No. 200H06892010101742
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 30, 2010, dismissing her 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. Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. For the reasons that follow, the Agency's dismissal is AFFIRMED on other grounds.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Safety Manager at the Agency's VACT Healthcare facility in West Haven, CT. On April 3, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to harassment and discrimination on the bases of sex (female), sex (sexual orientation) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. The Complainant was subjected to harassment and a hostile work environment based on sex (female) and sex (sexual orientation) when: On January 29, 2010, housekeeping supervisor (JB) told Complainant he heard from members of the Design Development group that she was a "lesbian" and overheard comments that the Complainant hates men. He later asked the Complainant whether she was "married to a woman?" - to which the Complainant responded "Just let it go;"
2. On February 5, 2010, Complainant requested that Associate Director, JD protect her "privacy;" however on March 4, 2010, Complainant learned that Site Manager, KM, was asking employees in her work unit whether they had said that Complainant was a lesbian.
Thereafter, on May 14 and May 25, 2010, Complainant requested that additional matters be added to her claim involving a hostile work environment. Complainant alleged that she was subjected to harassment and a hostile work environment based on sex (female), sex (sexual orientation), and reprisal (for the instant complaint) when:
1. During October, 2008 and continuing, the Design Development Team was openly hostile towards Complainant during meetings;
2. On January 13, 2009, and again on September 21, 2009, (BP) by-passed Complainant in her authority as the Safety Manager and instructed the FMS in-house construction team to conduct "selective demolition" which placed employees at risk;
3. Beginning during September, 2009 and continuing, (BP) and (RB) shouted at Complainant, were argumentative and made false statements during meetings;
4. On February 12, 2010, Complainant learned that BP was bypassing her in her role as the Safety Manager by excluding her from a project;
5. On March 12, 2010, new employee (WP), Engineer/Manager of Facilities at the Newington Division, told Complainant "Ho, you're the Safety woman; they told me I just had to meet you. So, you've shut down all the jobs up here;"
6. On April 2, 2010, when Complainant advised the Chief of FMS (OB), about a violation of the Key Control Policy, as of April 15, 2010, GB did not notify Complainant about any investigation into the matter;
7. During the week of April 15, 2010, and despite Complainant elevating her concerns to the Associate Hospital Director (JD), Complainant and her staff were moved to a different work area without resolution of installation issues;
8. During May of 2010, Complainant learned that BP was usurping her authority and purposely discrediting her when he reviewed safety plans without her input;
9. On May 7, 2010, Complainant overheard RB and (DF), in a loud tone and using foul language, disparaging Complainant about an email she had sent earlier in the day;
10. On May 7, 2010, and despite Complainant's contact with RB and DF about no power to a hot water heater in Complainant's new work area, as of May 10, 2010, the condition was not corrected nor did RB provide an action plan to the complainant;
11. On May 19, 2010, the hospital director, Mr. N, told Complainant that her work was "satisfactory" while advising Complainant that she needed to provide a detailed report regarding her activities with construction projects, and the new Emergency Manager would now report to the Associate Director, JD, Instead of to her as previously advised in February, 2010; and
12. On May 26, 2010, in response to Complainant elevating to GB her concerns about RP's unfounded attacks against her, GB told Complainant to stop attacking his employees.
On August 30, 2010, the Agency issued a final decision dismissing the complaint. The Agency explained that it was rescinding approval of Complainant's request to amend her complaint because upon review the incidents were not like or related to the original claims. Moreover, the Agency dismissed the complaint because it found that with the dismissed claims removed from the complaint, the remaining issues were not severe or pervasive enough to establish a hostile work environment. Further, the Agency explained that sexual orientation is not a basis covered by EEOC laws and regulations, and was therefore being dismissed as a basis for failure to state a claim in accordance with 29 CFR 1614.107 (a)(1). The Agency maintained that the two incidents identified in Complainant's claim of harassment are related to matters of her sexual orientation and when viewed individually or together were not severe or pervasive in nature. Finally, the Agency determined the matters were isolated in nature - and therefore not pervasive.
CONTENTIONS ON APPEAL
On appeal, Complainant contends among other things that she was subjected to discrimination and harassment on the basis of her sex when management undermined her authority with her employees, questioned her sexuality, interviewed coworkers regarding her sexuality, required employees that used to report to her to report to upper management, and made safety decisions without consulting her. Complainant maintains that this was done because of her sex and then in reprisal for the current complaint. Complainant indicated that the harassment that she experienced because of her sex became progressively worse and therefore she states a claim.
In response, the Agency maintains that Complainant's appeal offers nothing new to counter its findings. The Agency requests that the dismissal be affirmed.
ANALYSIS AND FINDINGS
Dismissal of Sex (Sexual Orientation) Claim
Title VII prohibits discrimination on the basis of sex. This prohibition extends to acts of discrimination based on "gender." Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (Apr. 20, 2012) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)).
As the Commission and the courts have recognized, a complainant can state a claim of discrimination on the basis of sex or gender by alleging that an agency acted on the basis of stereotypes rooted in sex or gender. See e.g., Price Waterhouse, 490 U.S. at 251 ("[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.").
Although Title VII does not explicitly include sexual orientation as a basis for protection under the law, Title VII's broad prohibition of discrimination "on the basis of . . . sex" the Commission has found that Title VII's sex discrimination provision, particularly the sex stereotyping theory, will offer protections to gay and lesbian individuals in certain circumstances. See e.g., Veretto v. U.S. Postal Serv., 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); Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0120110576 (August 20, 2014). For example, in Couch v. Dep't of Energy, EEOC Appeal No. 0120131136 (Aug. 14, 2013), we found that Complainant's claim of harassment based on his "perceived sexual orientation" was a viable claim under Title VII as he was ultimately alleging that he did not conform to his employer's gender stereotypes of masculinity.
The Agency erred by dismissing outright Complainant's claims of discrimination based on sexual orientation when, among other things, she maintained that she was harassed when a supervisor told her he heard from members of the Design Development group that she was a "lesbian," overheard comments that she hates men, and later asked Complainant whether she was married to a woman. The Complainant is alleging that the Agency discriminated against her because she failed to conform with the sex stereotypes of her fellow employees, namely that women who date women must hate men or that women who marry other women are not "normal." That is sufficient to state a sex discrimination claim under Title VII.
Hostile Work Environment
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails 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).
In determining whether a harassment complaint states a claim in cases where a complainant has not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission has repeatedly examined whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. See Estate of Routson v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (February 26, 1999).
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions that can be challenged are not restricted to those which affect a term, condition, or privilege of employment. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Rather, a Complainant is protected from any discrimination that is reasonably likely to deter protected EEO activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra.
Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (February 16, 1995).
Upon review, we find that even considering the allegations contained in Complainant's May 2010 amendment request and her sex (sexual orientation) claims, the actions complained of, assuming that they are all true, are neither sufficiently severe nor pervasive to create a discriminatory hostile or abusive working environment. This takes into consideration the frequency of the alleged discriminatory conduct, its severity, whether it was physically threatening or humiliating as opposed to a mere offensive utterance, and whether it interfered with Complainant's work performance. We further find that the alleged activity was not reasonably likely to deter protected EEO activity. With the exception of the original two allegations, the majority of these matters constitute workplace interactions which often include the expression of professional disagreements, different work styles, and personality conflicts. See Day-Hill v. Dep't of Justice, EEOC Appeal No. 0120101307 (Aug. 28, 2012).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
__10/23/14________________
Date
2
0120110145
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013