Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 11, 2013

0120110008 (E.E.O.C. Jan. 11, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120110008

Hearing No. 480-2008-00164X

Agency No. SF062135SSA

DECISION

On September 27, 2010, Complainant filed an appeal from the Agency’s September 1, 2010
final order concerning his equal employment opportunity (EEO) complaint alleging
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. The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission VACATES the Agency’s final order.

ISSUES PRESENTED

1. Whether the record supports the AJ’s issuance of a summary judgment decision on
Complainant’s hostile work environment claim?

2. Whether Complainant states a viable claim of hostile work environment harassment
based on sex?

3. Whether Complainant established a violation of medical confidentiality under the
Rehabilitation Act?
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BACKGROUND

Complainant’s Claims

At the time of events giving rise to this complaint, Complainant worked as a Claims
Representative at a Huntington Park, California office of the Agency. In February 2007,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (Caucasian), sex (sexual orientation (male)), and disability (severe asthma,
anxiety, hearing loss in left ear) when it subjected him to hostile work environment harassment
after he returned to work in February 2006 from a medical leave of absence. On February 18,
2009, Complainant amended his EEO complaint to add the basis of reprisal for prior EEO
activity, stating that his medical leave of absence constitutes prior EEO activity.

With regard to the basis of sex, Complainant alleged that, in August 2006, his immediate
supervisor (S1) was present during staff training when a coworker told an offensive gay joke.
He alleged that everyone laughed at the joke, and management failed to take action.
Complainant further alleged that on several occasions, S1 would snap her thumbs and fingers
or do limp-wristed stereotypically gay gestures which were “completely mimicking in nature”
and “mocking homosexuality.” Complainant asserted that when he told S1 that he was
offended by her gestures; her reply to him was “get over it.”

Complainant alleged that another Agency management official, the Area Director (S2), told
him that he “was too flamboyant for a bureaucratic environment and suggested that perhaps
[he] should work elsewhere where [he] could be flamboyant.”

Complainant alleged that further acts of harassment occurred when, on several occasions, S1
addressed him using terms such as “Honey,” “Sweetie” or “Baby.” He asserted that this was
done on one occasion in the presence of a coworker.

Complainant further alleged that S2 told him, on more than one occasion, that he should think
about leaving the Agency and going somewhere that he could be more “flamboyant.”

Complainant alleged that S1 and S2 subjected him to ongoing derogatory comments about his
sexual orientation and mannerisms.

Furthermore, Complainant alleged that the harassment was ongoing and evidenced in several
ways including how management unevenly distributed work assignments; limited him to
earning credit hours; interfered with Complainant’s work; berated him in front of the public;
reprimanded Complainant; and falsely accused him of making inappropriate comments about
religion and his sexual activities. Complainant alleged that two employees questioned his
“eternal life” in connection with his being gay. Complainant asserted that the harassment was
further evidenced through management chastising him for socializing with coworkers. He also
stated that he was instructed to not ask his co-workers for help and to direct all work-related
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questions to management. Complainant stated that despite his request to be removed from the
hostile work environment, the Agency failed to grant Complainant’s request.

Complainant also alleged that, due to a meeting he had with S1, he had a stress-related asthma
attack and collapsed at the Agency. He stated that he was found by a coworker. Complainant
stated that, while he was on medical leave following his asthma attack, a coworker sent him a
copy of the incident report detailing the asthma attack.

Complainant stated that the coworker indicated that the incident report was left on a copy
machine at the Agency and everyone saw it. Complainant alleged that he informed S2 that S1
had left his incident report on a copier. He asked that the matter be investigated, but S2 failed
to provide any assistance.

Finally, with regard to the basis of race, Complainant alleged that S2, when she heard that the
grandson of a Hispanic employee had an American name, made a comment about Hispanics
marrying “Gringos.” Complainant asserted that “Gringo” is a disparaging name typically used
to refer to an American or Caucasian person.

Investigation

The Agency conducted an investigation of Complainant’s claim that management subjected him
to harassment when it made snide remarks about his sexual orientation, it singled him out and
chastised him for socializing with co-workers, it unevenly distributed work assignments to
him, it instructed him not to ask his coworkers for help and to instead direct all work related
questions to management, it falsely accused him of making inappropriate comments about
religion and his sex life, it suggested numerous times that he leave the Agency and indicated
that he would never be promoted, it berated him about his work statistics, and it failed to
remove him from the hostile work environment.

In an affidavit provided by S1, she denied referring to Complainant with such terms as
“Honey,” “Sweetie” or “Baby.”

The Agency noted that since the time of the alleged discrimination, S2 died and it had no
affidavit from her. The record however does reflect that during the EEO Counseling, S2
provided a statement in which S2 claimed that Complainant disclosed that he was working on a
project with an entertainer, Dolly Parton. S2 stated that she mentioned to Complainant that he
seemed more creative than was required by the work at the Agency.

During the Agency investigation, in response to the other incidents accepted in Complainant’s
harassment claim, the Agency articulated the reasons that follow.

• S1 instructed Complainant to return to work duties when she overhead him gossiping
about another supervisor.
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• When Complainant was on a leave of absence, coworkers took over his case load so he
did not have a pending caseload when he returned to work. As a result, he was assigned
such other work as interviews and other tasks.

• Complainant was given offset work because he had not returned to a regular caseload.

• An employee complained that Complainant consistently asked her technical questions.
As a result, his managers found it was important to have Complainant ask managers or
technical experts for needed training.

• S1 found that Complainant gave incorrect information during an interview and informed
him of such. Subsequently, another management official instructed S1 to provide such
feedback to Complainant privately.

• Management held an informal counseling session with Complainant after an employee
accused Complainant of making inappropriate comments about religion and his sexual
orientation. The counseling did not result in a disciplinary action.

• S2 told Complainant that he “was not at the top of the list of good employees in the
office.”

• In December 2005, Complainant requested a health-related transfer but did not claim or
refer to harassment. Instead, he cited the need for a shortened commute to work.

At the conclusion of its investigation, the Agency provided Complainant with a copy of the
report of investigation. The Agency also provided Complainant with a notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a
hearing on December 18, 2007.

Hearing Stage

The AJ determined that the complaint did not warrant a hearing and issued a summary
judgment decision on June 21, 2010. The AJ dismissed the basis of sexual orientation, but
found the basis of sex appropriate to address the allegations of stereotypically gay gestures and
reference to Complainant as “flamboyant.” Further, the AJ found that Complainant was not a
qualified individual with a disability as he stated that he is not substantially limited in a major
life activity. The AJ also found that Complainant failed to establish a causal connection
between any prior EEO activity and the Agency’s actions. Finally, the AJ held that
Complainant failed to allege actions that rose to the level of a hostile work environment or
show that the actions alleged were based on discriminatory motives.
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Final Agency Action and Appeals

On September 1, 2010, the Agency issued a final order “adopt[ing] without modification” the
AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination
as alleged. The instant appeal from Complainant was timely filed.

CONTENTIONS ON APPEAL

On appeal, Complainant stated that the Agency failed to send him a Notice of Appeal (EEOC
Form 573), the AJ denied his requests for an extension to proceed after his attorney withdrew
from the instant case, and the Agency failed to add the issue of termination to the instant
complaint. Further, Complainant requested a hearing.

In opposition to Complainant’s appeal, the Agency argued that any failure to send EEOC Form
573 to Complainant’s counsel was in error. The Agency also asserted Complainant had
adequate legal counsel to make extension of discovery unnecessary. Moreover, the Agency
claimed Complainant’s removal is not part of the instant matter but rather part of v.
Social Security Administration, EEOC Appeal No. 0120082336 (April 15, 2011). In EEOC
Appeal No. 0120082336, the Commission AFFIRMED the Agency’s dismissal of
Complainant’s July 2007 termination claim and claim of harassment following his August 2006
to June 2007 medical leave of absence. The Commission AFFIRMED the dismissal pursuant
to 29 C.F.R. § 1614.107(a)(4), for raising the same matter in a negotiated grievance procedure
that permits allegations of discrimination.

Further, the Agency claimed that the time period at issue is March 3, 2006 through August 18,
2006. The Agency also argued that sexual orientation is not within the purview of the
administrative EEO process. The Agency asserted summary judgment was appropriate and
argued the Agency actions alleged by Complainant do not rise to the level of a hostile work
environment.

ANALYSIS AND FINDINGS

An appeal from an Agency decision where the AJ issued a decision without a hearing is subject
to de novo review by the Commission. 29 C.F.R. § 1614.405(a). An AJ may issue a decision
without a hearing when he or she finds that there is no genuine issue of material fact. 29
C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set
forth in Rule 56 of the Federal Rules of Civil Procedure.

The Supreme Court has held that summary judgment is appropriate where a court determines
that, given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgment, a court does not sit as a fact finder. Id. at 249.
The evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. A disputed
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issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in
favor of the non-moving party. Celotex v. Catreet, 477 U.S. 317, 322-323 (1986). A fact is
“material” if it has the potential to affect the outcome of a case.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without
holding a hearing is not appropriate. Stewart v. Dep’t of Homeland Security, EEOC Request
No. 0520070124 (November 14, 2011). When a party submits an affidavit and credibility is at
issue, “there is a need for strident cross-examination and summary judgment on such evidence
is improper.” Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (February 24,
1995). “Truncation of this process, while material facts are still in dispute and the credibility
of witnesses is still ripe for challenge, improperly deprives [Complainant] of a full and fair
investigation of [his] claims.” Mi S. Bang v. United States Postal Service, EEOC Appeal No.
01961575 (March 26, 1998); see also Bullard v. United States Postal Service, EEOC Appeal
No. 0720060045 (April 25, 2008), Zieff v. Department of Homeland Security, EEOC Appeal
No. 0720040139 (May 7, 2007).

Finally, an AJ may properly consider summary judgment only upon a determination that the
record has been adequately developed for summary disposition. See Petty v. Dep’t of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).

In this case, Complainant alleged that he was discriminated against on the bases of sexual
orientation, race, 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.

Title VII does not explicitly include sexual orientation as a basis for protection under the law.
Nevertheless, the law’s broad prohibition of discrimination “on the basis of . . . sex” will offer
coverage to gay individuals in certain circumstances.1

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. Although we are not bound by federal circuit
court precedent in Title VII for purposes of our adjudication of federal sector complaints, we

1 For this reason, the type of blanket statements that have appeared in prior Commission
decisions such as Morrison v. Dep't of the Navy, EEOC Request No. 05930964 (June 16,
1994) and Johnson v. U.S. Postal Serv., EEOC Request No. 05910858 (Dec. 19, 1991), no
longer reflect the state of law under Title VII. Summarily, to the extent any previous decisions
this Commission has issued are inconsistent with the instant decision as to “gender
stereotyping,” they are no longer good law on this issue.
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note that, since Price Waterhouse, every court of appeals has recognized that disparate
treatment for failing to conform to gender-based expectations is sex discrimination and has also
concluded that this principle applies with equal force in cases involving plaintiffs who are gay,
bisexual, heterosexual, or transgender. See Prowel v. Wise Business Forms, Inc., 579 F.3d
285, 290 (3d Cir. 2009) (harassment of a gay man targeting his gender-nonconforming
behavior and appearance is sex harassment); Miller v. City of New York, 177 Fed. App’x.
195 (2d. Cir 2006) (harassment based on heterosexual male employee’s failure to conform to
his employer’s stereotypes for men can state claim of sex discrimination); Smith v. City of
Salem, Ohio, 378 F.3d 566, 574 (6th Cir. 2004) (sex stereotyping based on a person’s gender
non-conforming behavior is impermissible discrimination, irrespective of the cause of that
behavior, and a label such as “transsexual,” is not fatal to such a claim of discrimination);
Nichols v. Azteca Restaurant Enterprises, Inc. 256 F.3d 864, 874 (9th Cir. 2001) (finding of
sex discrimination based on harassment by coworkers and supervisor “because [male
employee] was effeminate and did not meet their views of a male stereotype”); Higgins v. New
Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (“[J]ust as a woman can
ground an action on a claim that men discriminated against her because she did not meet
stereotyped expectations of femininity, ... a man can ground a claim on evidence that other
men discriminated against him because he did not meet stereotyped expectations of
masculinity”).

The Commission has also recognized the viability of such sex stereotyping claims. See Macy,
supra; Veretto v. United States Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011).

Here, Complainant alleged that he was mocked as effeminate and told that his “flamboyant”
mannerisms were unsuited to his work place. Such allegations are sufficient to state a claim
that Complainant was discriminated against for failure to match gender-conforming behavior
and thus state a claim based on sex discrimination.

The record also reveals that there are material facts in dispute regarding Complainant's
allegations that he was subjected to hostile work environment harassment based on sex. For
example, there is a dispute as to whether S1 used such terms as “Honey,” “Sweetie” or
“Baby” and “overtly gay” gestures, as Complainant alleged. Further, there is a dispute as to
whether S2 referred to Complainant as “flamboyant” to mock him based on his perceived
sexual orientation.

The Agency stated that S2 died since Complainant filed the instant EEO complaint. This is
precisely the type of situation in which a hearing is required to judge the credibility of
available witnesses and to make findings regarding the material issues in contention.
Assuming the incidents Complainant has alleged are true, these are actions that can rise to the
level of a hostile work environment on the basis of sex.

Complainant also alleged that management subjected him to harassment when it singled him
out and chastised him for socializing with co-workers, unevenly distributed work assignments
to him, instructed him not to ask his coworkers for help and to instead direct all work related
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questions to management, falsely accused him of making inappropriate comments about
religion and his sex life, suggested numerous times that he leave the Agency and indicated that
he would never be promoted, berated him about his work statistics, and failed to remove him
from the hostile work environment. The Agency responded by articulating legitimate,
nondiscriminatory reasons for the alleged incidents. However, Complainant disputes the
reasons articulated by the Agency and requests a hearing. We find that genuine issues of
material fact exist regarding the above-listed remaining incidents, including facts that go to
motivation based on race and reprisal. We find that it is appropriate for us to also remand
them as part of the hostile work environment claim.

With regard to disability as the basis for discrimination, Complainant alleges that the Agency
improperly disclosed his confidential medical information by leaving his 2005 asthma-attack
incident report on a work copy machine. Although the medical confidentiality requirements of
Section 501 of the Rehabilitation Act apply formally to medical exams or inquiries engaged in
by the agency itself, the Commission has consistently held that information obtained regarding
the medical condition or history of any employee shall be treated as a confidential medical
record with limited exceptions for disclosure. See EEOC Enforcement Guidance on Disability-
Related Inquiries and Medical Examinations of Employees under the Americans with
Disabilities Act (ADA), EEOC No. 915-002 (July 27, 2000); Young v. United States Postal
Service, EEOC Appeal No. 0120112626 (October 03, 2011) (citing Valle v. United States
Postal Service, EEOC Request No. 05960585 (September 5, 1997); 29 C.F.R. §
1630.14(c)(1).

This applies to confidential medical information obtained concerning “any employee;” it is not
limited to individuals with disabilities. See Hampton v. United States Postal Service, EEOC
Appeal No. 01A00132 (April 13, 2000). Information concerning an individual's diagnosis is
confidential medical information. Thus, we find it appropriate for the Agency to include this
incident for further fact-finding.

We conclude that the AJ here could not reach a finding of no discrimination except by
resolving significant conflicting evidence in the Agency's favor, which is inappropriate in a
grant of the Agency's motion for summary judgment. In light of the disputed issues of
material fact on the instant record, issuance of a decision without a hearing was not warranted
under 29 C.F.R. § 1614.109(g). We find it appropriate to remand the matter on all bases
alleged for a hearing and further consideration by an AJ.

CONCLUSION

The Commission VACATES the Agency's final action and REMANDS the matter to the
Agency for further processing consistent with this decision and the ORDER below.
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ORDER

The Agency shall submit to the Hearings Unit of the EEOC's Los Angeles District Office the
request for a hearing, as well as the complaint file, within thirty (30) 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 complaint file has been transmitted to the
Hearings Unit of the Los Angeles District Office. 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
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.
(K0610)
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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:
(M0610)
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.
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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
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
(Z0610)
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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 11, 2013
Date