Amicus Curiae Brief — Gerald Lynn Bostock, Petitioner v. Clayton County, Georgia

Nos. 17-1618, 17-1623

In the

Supreme Court of the United States

GERALD LYNN BOSTOCK,

Petitioner,

v.

CLAYTON COUNTY, GEORGIA,

Respondent.

ALTITUDE EXPRESS, INC. AND RAY MAYNARD,

Petitioners,

v.

MELISSA ZARDA AND WILLIAM MOORE, JR.,

CO-INDEPENDENT EXECUTORS OF

THE ESTATE OF DONALD ZARDA,

Respondents.

On Writs of Certiorari to the United States Courts of

A ppeals for the Eleventh and Second Circuits

BRIEF OF AMICUS CURIAE Karl Olson IN

SUPPORT OF PETITIONER GERALD LYNN

BOSTOCK AND RESPONDENT MELISSA ZARDA

Janine M. Brookner

Counsel of Record

Law Office of

Janine M. Brookner

3645 Saint Mary’s Place, NW

Washington, DC 20007

(202) 338-5743

jmbrookner@gmail.com

Counsel for Amicus Curiae

June 27, 2019

288914

i

TaBlE OF COnTEnTs

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

THIS COURT SHOULD FOLLOW THE

PRECEDENT OF THE DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

A N D T HE COU RT OF A PPEA LS

FOR THE DISTRICT OF COLUMBIA

CIRCUIT AND HOLD THAT TITLE VII

PROHIBITS SEXUAL ORIENTATION

DISCRIMINATION. . . . . . . . . . . . . . . . . . . . . . . . 5

A. Mr. Olson Filed Suit Under The APA,

Because, As A Gay Male, Legal Precedent

to File A Title VII Complaint Was

Presumed Not To Be An Option In 1999 . . 5

B. Mr. Olson’s Suit Was Based On The

Consular Promotion Board’s Violation

Of DOS Precepts Against Sexual

St ereoty ping In Not P romoting

Him. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ii

Table of Contents

Page

C. Defenda nt s F i led A Mot ion To

Dismiss The Olson Claim As Untimely

Under Title VII. . . . . . . . . . . . . . . . . . . . . . . 7

D. The District Court for the District of

Columbia Agreed With Defendants’

Argument that Mr. Olson’s Grievance

Was Based A Theory Of Gender

Discrimination, Under Title VII, and,

Therefore, Dismissed The Grievance

As Untimely. . . . . . . . . . . . . . . . . . . . . . . . . . . 8

E. The United States Court of Appeals for the

District of Columbia Circuit Affirmed the

Lower Court’s Decision. . . . . . . . . . . . . . . . . 9

II. THE U.S. DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA AND

THE COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

C O R R E C T LY A S S U M E D T H A T

TITLE VII A PPLIED TO SEXUAL

ORIENTATION DISCRIMINATION. . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

iii

TaBlE OF aPPEnDICEs

Page

APPENDIX A — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

DI S T R IC T OF C OLU M BI A , F I L E D

OCTOBER 15, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBI A ,

FILED OCTOBER 15, 2001 . . . . . . . . . . . . . . . . . . . . 3a

iv

TaBlE OF CITED aUTHORITIEs

Page

Cases

Karl Olson v. Colin Powell, et al.,

Civil Action No. 99-2957 . . . . . . . . . . . . . . . . . . . . . . 4, 5

Nichols v. Azteca Restaurant Enterprises, Inc.,

256 F.3d 864 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . 8-9

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Statutes and Other Authorities

5 U.S.C. § 701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

22 U.S.C. § 4131(a)(1)(E) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

22 U.S.C. § 4131(a)(1)(H)(i) . . . . . . . . . . . . . . . . . . . . . . 2, 7

22 U.S.C. § 4131(a)(1)(H)(v) . . . . . . . . . . . . . . . . . . . . . . . . 7

22 U.S.C. § 4134(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

22 U.S.C. § 4140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

22 U.S.C. § 4140(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

22 U.S.C. § 4140(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 9

42 U.S.C. § 2000e-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

v

Cited Authorities

Page

42 U.S.C. § 2000e-16 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

42 U.S.C. § 2000e-16(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9

David K. Johnson, The Lavender Scare: The Cold War

Persecution of Gays and Lesbians in the Federal

Government (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1

INTEREST OF AMICUS CURIAE1

Mr. Karl Olson is a retired United States Department

of State (“DOS”) Foreign Service Officer who served in

the DOS for 30 years from 1985 to 2015, went through

mandatory retirement, and was reappointed for an

additional year to complete his final assignment in

September 2016. He is gay. He now resides in Tampa,

Florida.

His Foreign Service career included both consular

assignments, mostly in Latin America, and politicalmilitary affairs, working alongside our military in Iraq

and Afghanistan. His final assignment was as Foreign

Policy Advisor (POLAD) at U.S. Special Operations

Command South (SOCSOUTH), Homestead Air Reserve

Base, Florida.

Mr. Olson earned a Bachelor of Arts degree in Ancient

History and Mathematics from Columbia University, a

Master of Arts degree in National Security Studies from

Georgetown University, and a Master’s in Military Arts

and Sciences (M.M.A.S.) from the U.S. Army Command

and General Staff College at Fort Leavenworth, Kansas.

His foreign languages include Spanish and Portuguese,

1. Pursuant to Sup. Ct. R. 37.6, the amicus curiae and his

counsel state that none of the parties to this case nor their counsel

authored this brief in whole or part, and that no person, party,

party’s counsel or entity made a monetary contribution intended to

fund the preparation or submission of this brief; and no one other

than the amicus curiae and his counsel have contributed money

for this brief. The amicus curiae files this brief with the written

consent of all parties. All parties received timely notice of amicus

curiae’s intention to file this brief.

2

with limited French and German. He has also studied

Pashto.

On Apr i l 2 2 , 19 9 4 , then S ecret a r y of St at e

Warren Christopher issued a clear prohibition against

discrimination in the State Department, including

discrimination based on sexual orientation. This policy of

barring discrimination based on sexual orientation was

the result of gay employees being hounded from their

offices at the DOS and forced to resign, resulting in a

number of suicides. 2

Despite this new prohibition, while Mr. Olson was

serving in Rio de Janeiro, Brazil, from 1993 to 1996,

he experienced sexual orientation discrimination and

consequently filed two grievances under non-Title VII

standard procedures of the Foreign Service Act, 22 U.S.C.

§ 4131(a)(1)(E). This section of the Foreign Service Act had

a deadline of three years (later reduced, prospectively,

to two years) per 22 U.S.C. § 4134(a), rather than a Title

VII grievance, 22 U.S.C. § 4131(a)(1)(H)(i), which was not

then available to Mr. Olson as a gay male alleging sexual

orientation discrimination.

The basis for his first grievance was the Foreign

Service promotion board’s erroneous assumption that he

was heterosexual. The Board accused him of lacking EEO

sensitivity because in his Employee Evaluation Report

(“EER”) he mentioned his enthusiasm for the beaches of

Rio and their “beautiful Cariocas,” a gender neutral term

2. See David K. Johnson, The Lavender Scare: The Cold War

Persecution of Gays and Lesbians in the Federal Government

(2006) (also a documentary film).

3

meaning inhabitants of Rio. Mr. Olson’s second grievance

featured allegations of a security investigation targeting

him for being a fan of entertainer RuPaul. He also suffered

embarrassment and humiliation in the workplace in Rio

when his supervisor mocked and joked about him and

even presented him with a $3.00 “Queer Reserve Note,”

featuring a picture of then President Clinton.

On May 12, 1999, the Foreign Service Grievance

Board (“FSGB”) ruled against Mr. Olson, dismissing his

first grievance. Mr. Olson sought judicial review under

22 U.S.C. § 4140(a), within 180 days of the final FSGB

action. The United States District Court for the District

of Columbia ruled that his grievance, alleging sexual

orientation discrimination, was actually Title VII sex

discrimination, and dismissed his Complaint as untimely

under 22 U.S.C. § 4140(b)(2). The U.S. Court of Appeals

for the District of Columbia Circuit affirmed. 3

Mr. Olson is filing this Amicus Curiae brief to ensure

that the Supreme Court and the parties on both sides of

the issue are aware of the lower courts’ prior rulings in

his case that sexual orientation discrimination is, in fact,

prohibited under Title VII. He believes that Title VII and

its strict deadlines should not be used to disadvantage a

person who has suffered the harms of sexual orientation

discrimination in the workplace. The judicial rulings

applying Title VII to his case and causing him to lose his

3. Mr. Olson timely sought judicial review of his second

grievance, also alleging sexual orientation discrimination. The

District Court this time ruled that the second grievance was

not covered under Title VII, another example of conflicting and

uneven application of Title VII regarding sexual orientation

discrimination.

4

grievance because of timeliness should be used to benefit

people who have been subjected to such discrimination

rather than to harm them.

SUMMARY OF THE ARGUMENT

The U.S. District Court for the District of Columbia

decided as early as 2001 that the prohibition in Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2

against an employee “because of such individual’s sex”

included discrimination based on an individual’s sexual

orientation. In a Memorandum Opinion (“Mem Op”),

filed October 15, 2001, the U.S. District Court for the

District of Columbia in Karl Olson v. Colin Powell, et

al., Civil Action No. 99- 2957, determined that sexual

orientation discrimination pursuant to Title VII was a

form of gender stereotyping. Appendix B at 10a, 11a. See

Appendix A and B - Order and Memorandum Opinion.

Mr. Olson appealed this decision the United States Court

of Appeals for the District of Columbia Circuit, case no.

01-5441. On February 25, 2003, the Court of Appeals for

the D.C. Circuit granted Defendants’ motion for summary

affirmance and dismissed the case.

Mr. Olson had followed the requirements under the

Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et

seq. and filed his case 176 days after the issuance of the

Final Agency Decision, instead of meeting the 90-day

statute of limitations for a Title VII complaint against

the federal government. At that time, there was no

other option open to him. No legal precedent existed for

him to have filed a Title VII complaint because sexual

orientation was not considered by the courts at the time

to be a protected category under Title VII’s ban on sex

discrimination.

5

The Supreme Court should now follow the precedent

of these two courts, agree with the prior position of the

Federal Government, specifically the State and Justice

Departments, and decide that Title VII rightfully

protects those who have been discriminated against in

the workplace based on their sexual orientation.

ARGUMENT

I.

T H I S C O U R T S H O U L D F O LL OW T H E

PRECEDENT OF THE DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA AND THE

COURT OF APPEALS FOR THE DISTRICT

OF COLUMBIA CIRCUIT AND HOLD THAT

TITLE VII PROHIBITS SEXUAL ORIENTATION

DISCRIMINATION.

A.

Mr. Olson Filed Suit Under The APA, Because,

As A Gay Male, Legal Precedent to File A Title

VII Complaint Was Presumed Not To Be An

Option In 1999.

After exhausting his internal administrative remedies

both within the DOS and the Foreign Service Grievance

Board (“FSGB”), Mr. Olson filed a civil suit in the U.S.

District Court for the District of Columbia against the

then Secretary of State under the APA, 5 U.S.C. § 701

et seq., Olson v, Colin Powell, et al., Civil Action No. 992957. Pursuant to 22 U.S.C. § 4140(a), he timely requested

judicial review within 180 days of the FSGB final decision

against him. Indeed, there was no legal precedent for him

to file a Title VII complaint because sexual orientation

discrimination was not considered prohibited under Title

VII at that time. Mr. Olson’s claim was, therefore, not

6

filed, accepted, investigated, adjudicated, or decided by

the DOS or the FSGB as a sex discrimination complaint

and neither the DOS nor the FSGB ever provided him

with the mandatory notifications and requirements under

Title VII, 42 U.S.C. § 2000e-16(c).

B. Mr. Olson’s Suit Was Based On The Consular

Promotion Board’s Violation Of DOS Precepts

Against Sexual Stereotyping In Not Promoting

Him.

Mr. Olson’s grievances were based on events that

occurred when he served as Chief of the Non-Immigrant

Visa Section at the U.S. Consulate in Rio de Janeiro, Brazil

between September 1993 and August 1996. His grievance

concerned an enthusiastic statement he made in this 199394 EER about “watching the beautiful Cariocas on the

beach” of Rio. The Consular Promotion Board (“CPB”)

reviewed the EER containing Mr. Olson’s statement and

erroneously concluded that he presented “an outmoded

stereotype of women as objects to be ogled” that was

“certain to offend most women.” It criticized the remark as

being “inappropriate and sexist,” ranked him below other

candidates, recommended EEO sensitivity training, and

did not promote him. Mr. Olson explained that the CPB

thought his comment was sexist only because it incorrectly

assumed he was a heterosexual male, when in fact he is

gay. The FSGB initially agreed with Mr. Olson and issued

an “Interim Decision,” concluding that the CPB erred

and violated its own precepts, prohibiting stereotyping

and group assumptions. Another CPB was convened, but

ranked Mr. Olson last of eight candidates. Mr. Olson was

consequently not promoted. 4

4. This was the first of two sexual orientation discrimination

cases that Mr. Olson filed in the District Court. The court ruled that

7

C.

Defendants Filed A Motion To Dismiss The

Olson Claim As Untimely Under Title VII.

Even though Mr. Olson’s claim was not filed, accepted,

investigated, adjudicated, or decided by the DOS or the

FSGB as a sex discrimination complaint, on April 10, 2000,

Defendants countered with a motion to dismiss, arguing

that Mr. Olson’s grievance was actually based on a violation

of DOS rules or policies in furtherance of the purpose of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e16. His Complaint was, therefore, untimely in that it should

have been filed within 90 days from the date of his receipt

of the final agency action. Defendants provided no case

law to support their argument. Defendants’ Memorandum

In Support of Motion to Dismiss (“Defs’ Mem”) at pp. 4-5.

In order to have the Olson case dismissed, Defendants

asserted that 22 U.S.C. § 4131(a)(1(H) refers to “any

discrimination prohibited by – (i) section 2000e-16 of

Title 42” or “(v) any rule, regulation, or policy directive

prescribed under” that section, 22 U.S.C. § 4131(a)(1(H)

(i, v). They stated further that Section 2000e of Title 42

prohibits discriminatory practices in employment by the

federal government and requires that “[a]ll personnel

actions affecting employees . . shall be made free from

any discrimination based on race, color, religion, sex,

or national origin.” 42 U.S.C. § 2000e-16. Defs’ Mem at

p.5. Defendants argued that Mr. Olson’s first grievance

the grievance underlying the other claim, CA 02-1371 and later 061205, affirmed by the Court of Appeals in 09-5295, timely filed under

the restrictive standard in 22 U.S.C. § 4140(b)(2), was nevertheless

sexual orientation discrimination and, therefore, not covered under

Title VII. Neither court explained its conflicting decisions in Mr.

Olson’s two sexual orientation discrimination cases.

8

rested on his allegation that DOS policies and FSGB

precepts relating to non-discrimination with regard to

sex and sexual stereotyping were not followed during

his promotion board review. They said DOS policies and

FSGB precepts furthered the purpose of Section 2000e-16

of Title 42. Since the final decision in his first grievance

was issued on May 12, 1999, Defendants said that Mr.

Olson should have filed his Complaint on or before August

11, 1999, instead of November 8, 1999. Defs’ Mem at p. 6.

D.

The District Court for the District of Columbia

Agreed With Defendants’ Argument that

Mr. Olson’s Grievance Was Based A Theory

Of Gender Discrimination, Under Title VII,

and, Therefore, Dismissed The Grievance As

Untimely.

In the District Court’s Mem Op, dated October 15,

2001, the court agreed with Defendants that Mr. Olson’s

grievance was based on a theory of gender discrimination

under Title VII and, therefore, untimely. It noted that

“[u]nder the Foreign Service Act (“FSA”), 22 U.S.C. § 4140

et seq., judicial review of any decision by the FSGB may

be obtained by filing a district court action within 90 or

180 days from the date of notice of final agency action,

depending on the nature of the underlying grievance.

Actions that must be filed within 90 days are those involving

grievances alleging violations of rights that are protected

under Title VII, namely the right to be ‘free from any

discrimination based on race, color, religion, sex, or national

origin.’” 42 U.S.C. § 2000e-16. Appenidx B at 7a-8a.

Citing Price Waterhouse v. Hopkins, 490 U.S. 228,

250-51, (1989) (plurality opinion) and Nichols v. Azteca

9

Restaurant Enterprises, Inc., 256 F.3d 864, 874 (9 th Cir.

2001), the court concluded that Mr. Olson’s grievance was

essentially a challenge to gender stereotyping. Appendix

B at 10a. It quoted Nichols v. Azteca that “Waterhouse

sets a rule that bars discrimination on the basis of

sex stereotypes.” It said “claims challenging gender

stereotyping in employment decisions are exactly the sort

of claim contemplated under Title VII.” Appendix B at 10a.

The court, therefore, decided that Mr. Olson’s grievance

was based on a theory of gender discrimination and that

consequently, a 90 day statute of limitations period for

filing judicial actions under 22 U.S.C. § 4140(b)(2) applied

and dismissed Mr. Olson’s case. Appendix B at 11a.

The Court did not address the fact that the lack of

notice, as required in statute 42 U.S.C. § 2000e-16(c)

for filing a civil action not later than 90 days after

receiving a final decision kept Mr. Olson from knowing

or discovering that his Complaint was actually one of sex

discrimination covered under Title VII. Nor did it address

the fact that Mr. Olson’s claim, because it was a claim of

sexual orientation discrimination, was not filed, accepted,

investigated, adjudicated, or decided by the DOS or the

FSGB as a sex discrimination complaint.

E. The United States Court of Appeals for the

District of Columbia Circuit Affirmed the

Lower Court’s Decision.

Mr. Olson appealed the decision of the U.S. District

Court for the District of Columbia. On February 25, 2003,

the United States Court of Appeals for the District of

Columbia Circuit, case no. 01-5441, granted Defendants’

motion for summary affirmance and dismissed the case.

10

Although Mr. Olson’s Complaint had not actually claimed

sexual orientation discrimination under Title VII, the

Court of Appeals for the DC Circuit assumed his was a

Title VII case and, therefore, focused only on the issue

that Mr. Olson filed his Complaint more than the 90 days

after receiving the FSGB’s final notice.

II. THE U.S. DISTRICT COURT FOR THE DISTRICT

OF COLUMBIA AND THE COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CORRECTLY ASSUMED THAT TITLE VII

A P P L I E D T O S E X UAL O R I E N TAT I O N

DISCRIMINATION.

The lower courts correctly assumed that Mr. Olson’s

case was based on sexual orientation discrimination in

the workplace. The problem was, however, that Title VII

has been unevenly applied and misapplied over the years,

including to Mr. Olson himself, resulting in conflicting

decisions across the United States and various Circuits.

Mr. Olson, therefore, he had no way of knowing in 1999

that the prohibition against sex discrimination in Title VII

also applied to sexual orientation discrimination.

11

CONCLUSION

It is now time now to settle the existing conflicts. It

is time to acknowledge, as the lower courts did in Olson,

that Title VII prohibits discrimination based upon sex,

which includes sexual orientation.

Respectfully submitted,

Janine M. Brookner

Counsel of Record

Law Office of

Janine M. Brookner

3645 Saint Mary’s Place, NW

Washington, DC 20007

(202) 338-5743

jmbrookner@gmail.com

Counsel for Amicus Curiae

APPENDIX

1a

A THE UnITED

aPPEnDIX a —Appendix

ORDER OF

sTaTEs DIsTRICT COURT FOR THE DIsTRICT

OF COlUMBIa, FIlED OCTOBER 15, 2001

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No.

99-2957 (GK)

KARL OLSON,

Plaintiff,

v.

COLIN POWELL, SECRETARY OF STATE,

et. al.,

Defendants.

October 15, 2001, Filed

ORDER

Plaintiff, Karl Olson, an employee with the Department

of State, brings this action under the Administrative

Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and the

Fifth Amendment, against the Secretary of State, Colin

L. Powell, and against several members of the Foreign

Service Grievance Board (“FSGB”). The matter is

before the Court upon Defendants’ Motion to Dismiss

the Complaint [#19]. Upon consideration of the motion,

2a

Appendix A

opposition, reply, sur-reply, and the entire record herein,

for the reasons stated in the accompanying Memorandum

Opinion, it is hereby

ORDERED, that Defendants’ Motion to Dismiss [#19]

is granted; it is further

ORDERED, that this case is dismissed.

/s/ Gladys Kessler

October 15, 2001

DATE GLADYS KESSLER

UNITED STATES

DISTRICT COURT

3a

Appendix B

aPPEnDIX B — MEMORanDUM

OPInIOn OF

THE UnITED sTaTEs DIsTRICT COURT FOR

THE DIsTRICT OF COlUMBIa, FIlED

OCTOBER 15, 2001

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 99-2957 (GK)

KARL OLSON

Plaintiff,

v.

COLIN L. POWELL, SECRETARY OF STATE,

et. al.,

Defendants.

MEMORanDUM OPInIOn

Plaintiff, Karl Olson, an employee with the Department

of State, brings this action under the Administrative

Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and the

Fifth Amendment, against the Secretary of State,

Colin L. Powell, and against several employees with the

Department of State. The matter is before the Court upon

Defendants’ Motion to Dismiss [#19]. Upon consideration

of the motion, opposition, reply, sur-reply, and the entire

record herein, the Court grants Defendants’ Motion.

4a

Appendix B

I.

BaCKGROUnD

Plaintiff, Karl Olson, has been a tenured Foreign

Service Officer with the Department of State (“DOS”)

since 1985. He brings this action against DOS and several

of its employees who serve as members of the Foreign

Service Grievance Board (“FSGB”). Plaintiff seeks

judicial review of FSGB’s decision pertaining to three

grievances he filed to challenge various employment

actions, namely a non-promotion and several unfavorable

performance evaluations.

a.

Grievance One

The first of Plaintiff’s three grievances is based on

events that occurred when Plaintiff served as Chief of

the Non-Immigrant Visa Section at the United States

Consulate in Rio de Janeiro, Brazil, between September

1993 and August 1996. While serving there, Plaintiff

made a statement in his 1993-1994 Employee Evaluation

Report (“EER”) about enjoying the “beautiful Cariocas”

of Rio de Janeiro.1

The Consular Promotion Board (“CPB”), which was

evaluating Plaintiff for promotion, reviewed the EER

containing Plaintiff’s statement and concluded that he

presented “an outmoded stereotype of women as objects

to be ogled” that was “certain to offend most women.” It

criticized the remark as being “inappropriate and sexist

1. Plaintiff states that “Carioca” is a gender-neutral Portuguese

word meaning inhabitant of Rio de Janeiro.

5a

Appendix B

in today’s workplace.” Pl.’s Opp’n at 3. The CPB ranked

Plaintiff below that of other candidates, and recommended

that he attend EEO sensitivity training. Plaintiff did not

receive a promotion.

In August of 1997, Plaintiff filed a grievance with the

FSGB (“Grievance One”), contesting the CPB’s decision

to rank him below other candidates and require diversity

training on the basis of his comment. Plaintiff argued that

the CPB had unfairly stereotyped him and violated its own

precepts against “stereotypes” and “group assumptions” 2

when it concluded that Plaintiff’s remark about “beautiful

Cariocas” was sexist. Plaintiff explained that the CPB

thought his remark was sexist only because it incorrectly

assumed that he was a heterosexual male when, in fact,

he is gay.

On August 28, 1998 the FSGB issued an “Interim

Decision,” in which it concluded that the CPB had erred

and violated its own precepts prohibiting stereotyping and

group assumptions. The FSGB convened another CPB to

re-evaluate Plaintiffts application for promotion. The CPB

ranked Plaintiff last of eight candidates. On May 12, 1999,

the FSGB issued its final decision, concluding that Plaintiff

would not have been promoted, notwithstanding the CPB’s

error in stereotyping. Plaintiff appeals the FSGB’s final

decision ln this action.

2. The precept provides that: “Boards will compare all

members solely on merit with absolute fairness and justice . . . The

performance rating process must be insulated from irrelevant or

improper influences. Stereotypes, group assumptions, and sexist or

ethnic comments are inadmissible . . .” See Def.’s Mot. to Dismiss,

Ex. A. at 3.

6a

Appendix B

B. Grievance Two

In November of 1998 and before the FSGB rendered

its final decision on Plaintiff’s first grievance, Plaintiff

filed a second grievance with the FSGB (“Grievance

Two”) , claiming that his Employee Evaluation Reviews

{“Reviews”) for the periods from August 30, 1994,

through April 30, 1995, and from August 30, 1995,

through April 30, 1996, were “falsely prejudicial and

inaccurate.” Compl. at ¶ 31. Among other things, Plaintiff

alleges that the Reviews were completed by supervisors

with anti-gay bias. Plaintiff also alleges that the FSGB

panel members reviewing Grievance Two are biased

because some of them served on the FSGB panel that

reviewed Grievance One.

On June 23, 2000 the FSGB issued a decision on a

discovery matter relating to Plaintiff’s second grievance.

The Court is not aware of any other decision rendered

by FSGB with respect to Plaintiff’s second grievance,

including any decision on the merits of Plaintiff ’s

grievance.

C.

Grievance Three

In November 1999, Plaintiff filed a third grievance

(“Grievance Three”). In that grievance, Plaintiff alleged

that DOS and his supervisors failed to conduct an

Employment Evaluation Review as required for the period

from April 16, 1996, through August 30, 1996. Plaintiff

claimed that the failure to conduct a Review was, among

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Appendix B

other things, discriminatory and motivated by anti-gay

bias. See Compl. at ¶ 61; ¶¶ 33-35.

On March 16, 2000, the FSGB dismissed Plaintiff’s

third grievance on the grounds that the issues therein

were raised in Plaintiff’s second grievance and were

therefore already being considered by the FSGB.

II. sTanDaRD OF REVIEW

The matter is before the Court on Defendant’s Motion

to Dismiss the Complaint. “[A] complaint should not be

dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.”

Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Davis v.

Monroe County Bd. of Educ., 119 S. Ct. 1661, 1676 (1999).

III. analYsIs

a.

all Claims Regarding Grievance One are

Untimely

Under the Foreign Service Act (“FSA”) , 22 U.S.C.

§ 4140 et seq., judicial review of any decision by the FSGB

may be obtained by filing a district court action within

either 90 or 180 days from the date of notice of final

agency action, depending on the nature of the underlying

grievance. Actions that must be filed within 90 days are

those involving grievances alleging violations of rights

that are protected under Title VII, namely the right to

be “free from any discrimination based on race, color,

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Appendix B

religion, sex, or national origin.” 42 U.S.C. § 2000e-16.

Actions involving grievances of any other nature may be

filed within 180 days. 3

Plaintiff’s first grievance was that the CPB ranked

him below that of other candidates because he made a

comment about “beautiful Cariocas.” He claims that the

CPB unfairly stereotyped him by concluding that his

comment was sexist. In particular, Plaintiff explains

that the CPB assumed that he was a heterosexual male

and concluded therefrom that his comment must have

been sexual in nature and thus inappropriate and sexist.

Plaintiff argues that, in fact, he is gay, and that CPB’ s

conclusions and assumptions violated its own precepts

prohibiting “sexual stereotyping and group assumptions.”4

3. The FSA provides that: “Any aggrieved party may obtain

judicial review of a final action of the Secretary or the Board on

any grievance in the district courts of the United States . . . if the

request for judicial review is filed not later than 180 days after the

final action . . .” 22 U.S.C. § 4140(a).

The FSA further provides that “with respect to a grievance

based on an alleged violation of a law, rule, regulation, or policy

directive referred to in section 4141(a)(1)(H) of this title, judicial

review . . . may be obtained . . . if such party commences a civil

action, not later than 90 days after a party receives notice of the final

action . . .” 22 U.S.C. § 4140(b)(2).

Section 4141 (a) (1) (H), referred to in the above quoted provision,

refers to discrimination prohibited by Title VII: “any discrimination

prohibited by - (i) section 2000e-16 of Title 42” or “(v) any rule,

regulation, or policy directive prescribed under.” 22 U.S.C. § 4131(a)

(1)(H)(i), (v).

4. See note 2 supra for language of precept.

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Appendix B

Defendant argues that Plaintiff ’s grievance is

essentially one alleging gender discrimination under Title

VII and that therefore, he had 90 days within which to

file this action. Final agency action was rendered on May

12, 1999. Plaintiff filed this action on November 8, 1999,

176 days after final agency action on Plaintiff’s grievance.

Defendants argue that Plaintiff’s claims are therefore

untimely.

Plaintiff argues that his grievance does not allege

gender discrimination, but rather, sexual-orientation

discrimination, which is not protected under Title VII.

Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir.2000);

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252,

259 (1st Cir.1999); Williamson v. A.G. Edwards & Sons,

Inc., 876 F.2d 69, 70 (8th Cir.1989). Plaintiff therefore

asserts that he had 180, not 90 days, within which to file

this action.

For the reasons discussed below, the Court concludes

that Plaintiff’s grievance is based on a theory of gender

discrimination, 5 not sexual orientation discrimination,

and is therefore subject to a 90 day statute of limitations

applicable to Title VII type claims.

First, when CPB ranked Plaintiff below other

candidates based in part on his comment, it did not know

Plaintiff’s sexual orientation, and therefore could not

5. It should be noted that “sex” and “gender” are not distinct

concepts for Title VII purposes. See Price Waterhouse v. Hopkins,

490 U.S. 228, 250-51, (1989) (plurality opinion).

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Appendix B

possibly have discriminated against him on the basis of

his sexual orientation.

Second, Plaintiff ’s grievance was essentially a

challenge to gender stereotyping by CPB. Plaintiff’s

argument is that CPB: (1) imputed stereotypically

male personality traits to him, i.e., assumed that he

had chauvinistic attitudes about women because he is a

man; and then (2) made an employment decision based

on its stereotyping, i.e., chose to rank him below other

candidates for promotion.

Claims challenging gender stereotyping in employment

decisions are exactly the sort of claims contemplated by

Title VII. Price Waterhouse supra; Nichols v. Azteca

Restaurant Enterprises. Inc., 256 P.3d 864, 874 (9th Cir.

2001) (“Waterhouse sets a rule that bars discrimination

on the basis of sex stereotypes.”).

Therefore, an employer that makes employment

decisions based on assumptions about typical or atypical,

male or female behavior is engaging in sex discrimination

in violation of Title VII. Schwenk v. Hartford, 204 F.3d 1187,

1202 (9th Cir. 2000) (Title VII forbids “[d]iscrimination

because one fails to act in the way expected of a man

or woman.”); Pivirotto v. Innovative Systems, Inc. 191

F.3d 344, 355 (3rd Cir. 1999) (recognizing that employer’s

reliance on conformity or non-conformity to gender

stereotypes violates Title VII) Plaintiff’s grievance is

similar to these stereotyping cases, as Plaintiff is alleging

that CPB unfairly stereotyped him by assuming he was

expressing stereotypical male attitudes about women.

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Appendix B

Accordingly, in light of the foregoing, the Court

concludes that Plaintiff ’s grievance is based on a

theory of gender discrimination, not sexual orientation

discrimination, and that consequently, a 90 day statute of

limitations period for filing judicial actions applies. Given

that Plaintiff filed this action 176 days after final agency

action, his complaint with respect to his first grievance

is untimely.

B. The Court Does not Have Jurisdiction Over

Grievances Two and Three.

The FSA provides for judicial review of only final

actions of the FSGB. 22 U.S.C. 4140(a).

Plaintiff filed two subsequent grievances: one in

November 1998 (“Grievance Two” or “Second Grievance”)

and the other in November 1999 (“Grievance Three” or

“Third Grievance”). Grievance Two asserted, among

other things, that two Employment Evaluation Reviews

of Plaintiff completed between 1994-1996 were prejudicial

and inaccurate. Specifically, Plaintiff alleged that the

reviewing supervisors discriminated against him because

he is gay, and consequently, gave him poor evaluations.

The record does not disclose any decision yet rendered

by the FSGB with respect to the merits of Plaintiff’s

second grievance.6 In the absence of any “final action” by

the FSGB on the second grievance, the Court may not

6. The Court is aware that on June 23, 2000, the FSGB issued a

decision regarding a Motion to Compel filed by Plaintiff in connection

with his second grievance. The FSGB decision, however, did not

decide the merits of Plaintiff’s second grievance.

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Appendix B

exercise jurisdiction over any claim pertaining thereto

and therefore dismisses these claims. 22 U.S.C. 4140(a).

Grievance Three alleged that an Employment

Evaluation Review that should have been conducted

during the 1994-1996 period did not occur - also because

of discrimination based on sexual orientation, among other

reasons. The FSGB dismissed Plaintiff’s third grievance

as duplicative in that the issues therein were already

before the FSGB as part of Plaintiff’s second grievance,

the resolution of which is still pending. Thus, as the FSGB

has not yet reached a final decision on those issues, the

Court does not have jurisdiction over the subject matter

of the third grievance.

Accordingly, all claims relating to Plaintiff’s second

and third grievances are dismissed.

IV. COnClUsIOn

For the foregoing reasons, the Cour t grants

Defendant’s Motion to Dismiss. All claims with respect

to Plaintiff’s first grievance are dismissed as untimely.

The Court does not have jurisdiction to decide claims

regarding Plaintiff’s second and third grievances, and

therefore all claims pertaining thereto are dismissed.

This case is dismissed. An Order will issue with this

Opinion.

October 15, 2001

/s/

DATE GLADYS KESSLER

UNITED STATES

DISTRICT COURT