0120150425
04-21-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120150425
Agency No. ARFTHUA14SEP03203
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated October 9, 2014, dismissing her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Exceptional Family Member Coordinator at the Agency's Army Community Services facility in Fort Huachuca, Arizona.
On September 30, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to a discriminatory hostile work environment on the bases of race (Caucasian), sex (female), disability and reprisal for prior protected EEO activity when:
1. on August 7, 2014, a male co-worker, made the following statements in the presence of Complainant and her supervisor: "I thought about it [going to mediation with Complainant] but I can't because you were a Marine" and "you look like a man in a women's body"; and
2. since May 2014 to the present, the only two ACS employees who have not been assigned extra duties are both African American.
The Agency dismissed the claims for failure to state a claim. The instant 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, .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). 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).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Following a review of the record we find that the two alleged isolated comments from a coworker are insufficiently severe or pervasive to alter the conditions of Complainant's employment and hence fail to state a claim of harassment.
On appeal, Complainant argues that the comments caused her emotional harm. We note however, that the Commission has long held that where an allegation fails to render an individual aggrieved, the complaint is not converted into a cognizable claim merely because complainant alleges physical and/or emotional injury. See Larotonda v. United States Postal Service, EEOC Appeal No. 01933846 (March 11, 1994).
With regard to claim 2, Complainant failed to identify a specific harm that she sustained. Complainant cannot pursue a generalized grievance that members of one protected group are afforded benefits not offered to other protected groups, unless she further alleges some specific injury to herself as a result of the alleged discriminatory practice. See Warth v. Seldin. 422 U.S. 490, 499 (1975). Such an allegation constitutes a generalized complaint and hence fails to state a claim. See id. See also Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508 (September 11, 1997); Henderson v. Department of Homeland Security, EEOC Appeal No. 01A42129 (October 24, 2004).
We note that on appeal, Complainant raises questions about the impartiality of the EEO Counselor. Even assuming, arguendo, that the EEO Counselor was biased in favor of the Agency, that does not change the fact that Complainant fails to state valid claims of discrimination. Finally, we note that in her Informal Complaint, Complainant raises the issue of denial of reasonable accommodation and again on appeal, Complainant raises similar issues. Complainant, however, did not raise such issues in her Formal Complaint. Complainant's Formal Complaint Form does not contain a recitation by Complainant of the issues she wished to raise in her complaint. Instead, in box 10, marked "Explain when and how you were discriminated against" Complainant wrote "See Notice of Right to File a Discrimination Complaint." The attached Notice of Right to File lists the two incidents listed under claims 1 and 2, above but makes no mention of a denial of reasonable accommodation. Because Complainant did not include the denial of reasonable accommodation claim in her Formal Complaint, that issue is not before us on appeal. See 29 C.F.R. � 1614.106(c) (the complaint form must be sufficiently precise to identify the aggrieved individual and the agency and to describe generally the actions or practices that form the basis of the complaint.)
CONCLUSION
The Dismissal 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
April 21, 2015
__________________
Date
2
0120150425
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120150425