0120161560
06-23-2016
Ambrose M.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ambrose M.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120161560
Agency No. DON160026400288
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 27, 2016, dismissing 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Utilities Materials Controller and Planner at the Agency's facility Maintenance, Marine Corps Base Quantico Installation and Environment Division facility in Quantico, Virginia. Complainant has since retired. On February 17, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), and color (Black) when:
1. On or around December 1, 2015, management told Complaint to order chemicals electronically which is against Regional Contracting Office (RCO) guidance;
2. On or around November 2, 2015, Complainant's supervisor refused to fund any of his purchase requisitions;
3. On October 21, 2015, Complainant was hospitalized due to incidents encountered with Complainant's supervisor;
4. On or around October 20, 2015, Complainant requested funding for two purchase requisitions and Complainant's supervisor demanded that he go against current process and submit the requisitions electronically;
5. On several occasions from September 15, 2015 to November 2, 2015, Complainant's supervisor questioned Complainant's ability and knowledge, making it difficult for him to perform the duties of his position, and "demonstrated an overly aggressive stance in an effort to obtain respect of her male predecessors."
The record shows that Complainant was assigned a new Budget director (Caucasian female). On or around October 20, 2015, Complainant requested funding for two purchase requisitions. The Budget Director demanded that the request be provided electronically. When Complainant attempted to explain that this was not the process, the supervisor ignored him. She later accepted the same comments from another employee who is not African-American, but the comparator was another male employee. Complainant also maintained that the supervisor "demonstrates an overly aggressive stance in an effort to obtain the respect of her male predecessors." Complainant states that these incidents caused him a tremendous amount of stress and that his worry about work caused him to have a chronic asthma attack. He was taken to the Hospital and seeks reimbursement for his hospitalization costs.
The Agency Decision
The Agency dismissed for failure to state a claim. The Agency reasoned that Complainant "failed to state how the alleged acts were associated with any personnel action for which [Complainant] could claim harm or loss with respect to a term, condition or privilege of employment for which there is a remedy." The Agency concluded that the claims (that he was directed to submit his purchase requisition requests electronically, and his supervisor questioned his ability and utilized an aggressive stance) do not show there was an impact to a term, condition or privilege of employment. This appeal followed.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, 1614.106(a). 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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a) (1).
On appeal, Complainant asserts that he was aggrieved due to the Budget Director's attitude towards him. Complainant retired, but he seeks an apology from the Budget Director, sensitivity training for management, the reimbursement for his hospital stay, and $58,333 in relief.
We find that Complainant's allegations are not sufficient to state a claim of a disparate treatment. He has not identified any adverse personnel action that was taken against him because of his race, color or sex. The gist of his challenge is that his supervisor required all employees to submit their requests electronically, which was different than the practice that had been in place prior to the time the new Budget Director assumed her position. Here, he is challenging the Budget Director's imposition of a policy that Complainant believed was not required, contending that the requirement for electronic submissions was not mandatory and the Budget Director refused to listen to him. Although he challenges this requirement and his supervisor's alleged "aggressive stance," there is no allegation that this requirement was imposed only on Complainant. All employees were told to submit their requests electronically. Complainant acknowledges that he and the Budget Director "have had a few unsatisfactory or uncomfortable exchanges" and that she would pass him in the hall and roll her eyes or rudely ask "May I help you?" Although Complainant felt uncomfortable around this supervisor, that alone is not sufficient to show that Complainant suffered a tangible harm or was aggrieved by an Agency employment action.
The Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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
June 23, 2016
__________________
Date
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.
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