0120150930
05-19-2015
Complainant, v. Gina McCarthy, Administrator, Environmental Protection Agency, Agency.
Complainant,
v.
Gina McCarthy,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120150930
Agency No. 2014-0061-HQ
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 11, 2014, dismissing a formal 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
During the period at issue, Complainant worked as a Senior Environmental Scientist, Office of Research and Development at the Agency's National Center for Environmental Assessment (NCEA) in Washington, D.C.
On August 28, 2014, Complainant filed the instant formal complaint.1 Therein, Complainant alleged that he was subjected to harassment on the bases of religion and in reprisal for prior EEO activity when:
on or about June 6, 2014, he received a global Agency-wide email sent to all EPA employees from [Director, Office of Diversity], Advisory Committee Management and Outreach, that referenced National Lesbian, Gay, Bisexual and Transgender (LGBT) Pride month material despite his request not to receive such emails.
The Agency dismissed the instant formal complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency determined that Complainant failed to allege he suffered a personal loss or harm to a term, condition or privilege of his employment.
The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. 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, .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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In the instant case, we find that the Agency correctly concluded that Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of his employment. The initial email sent by the Director, Office of Diversity was sent to all employees and not just to Complainant, concerning the LGBT Pride month. The record reflects that in November 2010, Complainant expressed his objection to an email that was sent out to all employees announcing an on-site celebration of a same-sex marriage of an employee, and copied the NCEA global list-serve. The record reflects that approximately 15-20 congratulatory emails sent to the employee that followed were provoked by Complainant's email, none of them specifically mentioned Complainant or challenged his religious beliefs.2
We do not find that he was subjected to an adverse personnel action as a result of being the recipient of an email from the Director, Office of Diversity that was sent to all employees concerning the LGBT Pride month. Moreover, to the extent Complainant is claiming a discriminatory hostile work environment, we find that the events described, even viewed in the light most favorable to Complainant, would not indicate that he was subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the Agency's final decision dismissing the formal complaint for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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 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
May 19, 2015
__________________
Date
1 The record does not contain a copy of Complainant's formal complaint. However, given the manner in which the Agency has identified the subject claim, the EEO Counselor's Report, and Complainant's appellate statements, we find sufficient evidence of record to address this appeal, even in the absence of the formal complaint.
2 Complainant filed a formal complaint on this matter, which the Agency dismissed for failure to state a claim. On appeal, the Commission affirmed the Agency's final decision dismissing the formal complaint. Complainant v. Environmental Protection Agency, EEOC Appeal No. 0120112853 (October 6, 2011).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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