0120091318
08-03-2009
Luis J. Rosa, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Luis J. Rosa,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091318
Agency No. 200I03552008104114
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 23, 2008, dismissing his complaint of unlawful
employment discrimination. 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.
In a complaint dated October 2, 2008, complainant alleged that he was
subjected to hostile workplace discrimination on the basis of his sex
(male) when a co-worker made repeated sexual innuendos about complainant's
sexuality. According to complainant, the harassment was ongoing.
Informal efforts to resolve complainant's concerns were unsuccessful.
In its final decision and subsequent pleadings, the agency reasoned
that discrimination that is based on sexual orientation does not
constitute discrimination based on sex actionable under Title VII.
Here, the alleged harassment was motivated by complainant's perceived
sexual orientation as evidenced by complaints of "homophobic gestures,"
"homosexual mannerisms," and verbal mocking using "very feminine voices."
The agency concluded that because the alleged harassment was motivated
by complainant's perceived sexual orientation, rather than his sex or
any other cognizable basis, he has not presented an actionable claim.
On appeal, complainant argues that he did not file a discrimination
complaint based on sexual orientation. Rather, he contends that his
case is simply one of sexual harassment because of gender.
A fair reading of the complaint and related materials, as well as
complainant's statement on appeal, reveals that he is alleging that he
was harassed because he was male, not because of sexual orientation.
In this instance, we conclude that Title VII still protects the
gender basis. See Sexton v. Department of Transportation, EEOC Request
No. 05970111 (June 17, 1999) (claim is actionable under Title VII where
the harassment is based on gender, and not solely on sexual orientation);
see also, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)
(same-sex sexual harassment is actionable under Title VII if it is based
on complainant's sex).
Accordingly, the agency's dismissal for failure to state a claim
is reversed and the complaint is remanded for further processing in
accordance with the following Order.
ORDER (E0408)
The agency is ordered to process the remanded complaint 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 (K0408)
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 19848,
Washington, D.C. 20036. 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 (M1208)
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), 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 (R0408)
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 (Z1008)
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
August 3, 2009
__________________
Date
2
0120091318
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091318