[Redacted], Rich P, 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal No. 2021003273 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rich P,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021003273 Agency No. 200406882021102621 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's April 26, 2021 dismissal of his complaint alleging 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 was employed by the Agency as a Health System Specialist, GS-14, Office of the Chief of Staff, at the Washington VAMC in Washington, D.C. On April 8, 2021, Complainant filed a formal EEO complaint alleging that the Agency subjected him to a hostile work environment/harassment on the basis of sex (male, LGBTQ+) when, on March 4, 2021, the Associate Director said, “ladies first and that does not include you, [Complainant]. ” Complainant further asserted that his supervisor and other management officials did not respond appropriately to the harassment. 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. 2021003273 2 According to Complainant, the Associate Director (“AD”) (male) made the “ladies first” comment in a public manner during a mid-day birthday celebration for the Chief Fiscal Officer. Complainant alleges that AD’s comment was an inappropriate and offensive reference to his gender and sexual orientation. He recalls that the Chief Nurse Executive and Assistant Medical Center Director both expressed that they found AD’s comment inappropriate and inquired about Complainant’s emotional wellbeing when they encountered him later that day. Complainant states that he felt “intimidated, humiliated, degraded and offended” by AD’s comment, particularly given AD’s senior-level position. He said he felt AD’s comment implied that male members of the LGBTQ+ community are not real “men.” Complainant stated that the comment had the effect of making Complainant feel publicly “outed,” and triggered memories of being bullied and called a “faggot” as teenager. During his commute home, Complainant called his first level supervisor (“S1”), the Chief of Staff. Complainant explained to S1 that AD’s “ladies first” comment was analogous to the bullying he experienced as a teenager. According to Complainant, in the evening of March 4, 2021, he received a text message from AD, explaining, “I've been made aware that I may have hurt your feelings today by something that I said… it was [not] my intention to cause you any grief or pain.” AD apologized for the “miscommunication” and offered to apologize in person as well. The next day, on March 5, 2021, AD walked into Complainant’s office and verbally apologized for making the “ladies first” comment. By Complainant’s account, S1 told him that the comment was not meant in a discriminatory manner and he had not intended to upset Complainant. However, AD rationalizing his comment as just “banter.” Complainant alleges that AD disregarded his attempts to explain why singling him out in this manner was offensive. Afterward, Complainant met with S1 and the Chief Nurse Executive. According to Complainant, “both alluded to the fact that they had conversations [with AD] and he didn’t recognize [the] inappropriateness of the statement or how it could appear as a homophobic statement.” The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS 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 they have 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 Supreme Court has held that employment discrimination based on sexual orientation is discrimination “because of sex,” and is therefore unlawful under Title VII. See Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731 (2020). 2021003273 3 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 (Apr. 21, 1994). If the complainant cannot establish that they are 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 discriminatory 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 are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’.” While we have generally found that allegations of isolated incidents of alleged harassment are not sufficient to state a viable harassment claim, we have concluded that a limited number of highly offensive slurs or comments may in fact state a claim or support a finding of discrimination under Title VII. See Couch v. Dep’t of Energy, EEOC Appeal No. 0120131136 (Aug. 13, 2013) (the term "fag" or "faggot" is sufficiently severe to state a claim of harassment because it was historically used in the United States as a highly offensive, insulting and degrading sex-based epithet against LGBTQ+ individuals or individuals who are perceived as failing to conform to gender stereotypes); Bryon F. v. United States Postal Serv., EEOC Appeal No. 0120133382 (Feb. 11, 2015) (allegation that complainant’s coworker called him a “homo” and told him that he was "living in sin and would be going to hell" sufficiently severe to state a claim of sex-based harassment because of the “hateful nature” of the comments, coupled with the lack of management response). Complainant contends that AD’s comment was tantamount to calling him a “faggot” by publicly singling him out based on his sexual orientation in front of others in a manner that caused him emotional harm. Complainant also alleged that AD subjected him to additional harassment when he couched his apologies with explanations that attempted to validate the comment and indications that Complainant was offended because of Complainant’s own misunderstanding of the intent, rather than the comment itself. While we do not question that Complainant was deeply offended by the “ladies first” comment and subsequent apologies, this was an isolated event with no allegations of impropriety by AD prior to the comment. We conclude that Complainant’s claim lacks the requisite severity necessary to state a viable claim involving a single incident. Unlike past cases, where complainants were subjected to denigrating language specific to LGBTQ+ status and gender, the comment in this instance was a single fleeting remark without an overt reference to Complainant’s sexual orientation or gender identity. As inadequate as Complainant may have found AD’s apologies, he does not allege any further harassing or offending incident. 2021003273 4 CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2021003273 5 Any supporting documentation must be submitted together with the 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 September 27, 2021 Date