01A30885_r
08-06-2003
Brian Clark, Complainant, v. Kay Coles James Director, Office of Personnel Management, Agency.
Brian Clark v. Office of Personnel Management
01A30885
August 6, 2003
.
Brian Clark,
Complainant,
v.
Kay Coles James
Director,
Office of Personnel Management,
Agency.
Appeal No. 01A30885
Agency No. 01-21
Hearing No. 100-A2-7425X
DECISION
Complainant filed an appeal with this Commission from the agency's final
action pertaining to 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. The appeal is accepted for the
Commission's de novo review pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final action.
On June 20, 2001, complainant contacted the EEO office regarding a claim
of sex-based harassment. Informal efforts to resolve complainant's
concerns were unsuccessful. On August 1, 2001, complainant filed a
formal complaint, alleging that he was the victim of unlawful employment
discrimination. Complainant claimed that as he walked past two-coworkers
on or about April 19, 2001, one of the co-workers said "You know what
I think of him. He's a queer." Complainant claimed that the co-worker
then stated that he "would like to get him outside." Complainant further
stated that since he started work with the agency on November 20, 2000,
"the queer comments started almost immediately because I wore nice clothes
to work and did not sit in a chair the way some in the office though[t]
a man should." Complainant stated that his senior team leader has also
made similar comments. Finally, complainant alleged that the continued
verbal abuse led him to resign his position on April 30, 2001.
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing. On September 13, 2002, the AJ issued a decision
without a hearing in favor of the agency. Specifically, the AJ determined
that complainant failed to establish a prima facie case of discrimination
or harassment because his claim is based on sexual orientation, which
is not protected under Title VII. After the agency failed to issue a
final order within forty days of the AJ's decision, complainant appealed
this matter to the Commission, pursuant to 29 C.F.R. �� 1614.109(3)(i),
.402(a). On appeal, complainant argues that he "did not file [a]
discrimination [complaint] based on sexual orientation." Rather, he
contends that he is alleging sex-based harassment.
The Commission has repeatedly held that discrimination based on sexual
orientation does not constitute discrimination based on sex actionable
under Title VII. See, e.g., Morrison v. Department of the Navy, EEOC
Request No. 05930964 (June 16, 1994) (claim that harasser told co-workers
that complainant was gay and had been seen kissing another man was based
on complainant's perceived sexual orientation, not his sex, and therefore
was not actionable as sex discrimination under Title VII). Moreover,
while the Supreme Court has found that same-sex sexual harassment is
actionable under Title VII, it must be based on complainant's sex.
See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).
The Supreme Court made it clear that in all sexual or sex-based
harassment cases, whether same-sex or opposite sex, the statutory
requirement that the conduct at issue be "because of" complainant's
sex is not automatically satisfied "merely because the words used have
sexual content or sexual connotations. 'The critical issue ... is whether
members of one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed.'" Oncale,
523 U.S. at 80 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 1725
(1993) (Ginsburg, J., concurring)). The court explained that while
"harassing conduct need not be motivated by sexual desire to support
an inference of discrimination on the basis of sex," a complainant
"must always prove that the conduct at issue was not merely tinged with
offensive sexual connotations, but actually constituted discrimination
because of sex." Id.
Thus, same-sex or opposite-sex harassment is actionable as sex
discrimination under Title VII when it is motivated by the complainant's
sex, whether the harassment at issue is sexual or sex-based. However,
where harassment was motivated by complainant's perceived sexual
orientation, rather than his or her sex, the harassment is not actionable.
In the instant case, we are not persuaded by complainant's arguments that
the alleged harassment was motivated by his sex rather than his perceived
sexual orientation. The Counselor's Report and formal complaint reveal
that complainant contends that a co-worker and supervisor constantly
referred to complainant as "gay" and "queer." Moreover, the counselor's
report noted that complainant's complaint involves "sexual harassment
on sexual orientation." The record further contains counselor's notes
from a teleconference conducted June 27, 2001 with complainant and his
attorney. The notes state that complainant contends that from November
20 through May 1, 2001, he "was verbally abuse[d] by [ a coworker]
and [supervisor], accused of being gay, when not gay." Finally, in
his investigative affidavit, complainant stated "for the record, I am
not gay." We determine that the alleged comments reflect animus against
complainant's perceived sexual orientation.<1> Therefore, based on a
review of the record, the Commission finds that complainant has failed
to establish that the alleged harassment was "because of" his sex.<2>
Accordingly, the Commission AFFIRMS the agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 6, 2003_________________
Date
1In so finding, we note the comments in this
matter are not the type of overtly sex-based comments that stem directly
from gender stereotypes, rather than perceptions about sexual orientation.
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
2As noted above, claims of �sexual orientation� currently fail to state a
claim under EEO Regulations. Johnson v. USPS, EEOC Request No. 05910858
(December 19, 1991); Yost v. USPS, EEOC Request No. 05970940 (October
2, 1997). However, we note that Executive Order 13987 (May 28, 1998)
requires federal agencies to establish an internal redress procedure for
complaints of sexual orientation discrimination by civilian employees.
Such complaints are investigated by the Office of Special Counsel.
See 5 U.S.C. � 1214, et seq.