Kerry B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Aug 28, 2019

2019003506 (E.E.O.C. Aug. 28, 2019)

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

Kerry B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 2019003506

Agency No. 200H06302019101704

DECISION

Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's April 17, 2019, dismissal of 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 was employed as a Food Service
Worker, WG-2, with the Agency’s New York Harbor Health Care System (“HCS”) in New
York, New York.

On March 4, 2019, Complainant filed a Formal EEO Complaint alleging that the Agency
subjected him to sexual harassment/hostile work environment based on sex (male) when, from
June 2018 through January 2019, supervisory personnel failed to take remedial administrative
action against one of his coworkers, despite Complainant’s continuous complaints of being

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.

2019003506

2
subjected to the coworker’s constant staring, comments to other coworkers regarding
Complainant’s style of dress, and engaging in obsessive discussions about him.2

The Agency dismissed Complainant’s complaint for failure to state a claim pursuant to 29
C.F.R. § 1614.107(a)(1), citing lack of specificity. The instant appeal followed.

ANALYSIS AND FINDINGS

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from
an 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. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot
establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim.
29 C.F.R. § 1614.107(a)(1).

In order to state a claim, the complainant must specify when the events occurred, what happened,
how he or she was directly disadvantaged, or how these matters altered the terms, conditions, or
privileges of his or her employment. See Carlan v. Dep’t of the Treasury, EEOC Appeal No.
01A32447 (Aug. 1, 2003).

Where, as here, the complaint concerns harassment, which does not challenge an agency action
or inaction regarding a specific term, condition, or privilege of employment, the complainant can
still establish that he or she is “aggrieved” so long as the alleged harassing conduct is sufficiently
severe or pervasive to alter the conditions of the complainant’s employment. See Harris v.
Forklift Systems, Inc., 510 U.S. 17, 23 (1993).

The Agency dismissed Complainant’s complaint for failure to state a claim, citing lack of
specificity. The record reflects that the Case Manager assigned to Complainant’s complaint
called Complainant on April 12, 2019, and Complainant clarified that he had been discriminated
based on sex. On April 15, 16 and 17, 2019 the EEO Counselor attempted to reach Complainant
by phone again for clarification on the “comments” about his style of dress, “obsessive
discussions” and “constant staring”, but Complainant did not respond before the Final Decision
was issued on April 17, 2019.

On appeal, Complainant argues that the Commission must reverse the Agency’s Final Decision
because it erred in its framing of his complaint. Specifically, the Final Decision stated that
Complainant alleged “a hostile work environment based on sex (male) when from June 2018 to
January 2019, the Site Manager, and the Chief of Nutrition and Food Service [responding
management officials, or, “RMOs”], subjected Complainant to staring, comments regarding

2 Complaint framed using Complainant’s language in his March 4, 2019 Formal Complaint.
2019003506

3
Complainant’s style of dress, and discussions about complainant by coworkers despite
Complainant’s complaints to management.”

The record supports Complainant’s contention that “at no time did he make this claim.” The
language of Complainant’s Formal Complaint, reflected in this Decision, identifies
Complainant’s coworker, not the RMOs, as the perpetrator of the harassment. Likewise, the EEO
Counselor’s Report summary, which we reviewed for clarification purposes only, frames the
issue as “[Complainant] reported sexual harassment to both [RMOs] regarding another employee
harassing him.”

Regardless of the Agency’s error in framing, its decision to dismiss Complainant’s complaint for
lack of specificity still applies because the undisputed elements of the claim (i.e. the alleged
harassing conduct) still lack specificity. The Commission has long held that when a harassment
claim contains little beyond generalized assertions that are not severe or pervasive enough to
constitute harassment, the claim will fail. See Michell B. v. United States Postal Serv., EEOC
Appeal No. 0120140033 (Mar. 4, 2016) (finding lack of specificity as to the frequency and
duration of alleged incidents of harassment requires dismissal for failure to state a claim) citing
Monreal v. United States Postal Serv., EEOC Appeal No. 01A43828 (Jul. 28, 2005) (noting that
the complainant's claim of harassment failed because she had not adduced evidence of specific
harassing conduct).

On appeal, Complainant does not dispute that the Case Manager left voicemails requesting that
he contact her to provide clarification regarding his harassment claims. The email Complainant
provides on appeal references prior events and indicates that he reported the matters to the
RMOs, yet he offers no evidence or additional details in response to the Case Manager’s request.
As written in his Formal Complaint, the allegations are insufficient to state a claim of
harassment.

Accordingly, the Agency’s Final Decision dismissing Complainant’s complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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.
2019003506

4
A party shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
2019003506

5
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

August 28, 2019
Date