Melina K.,1 Complainant,v.David Bernhardt, Acting Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

2019003442 (E.E.O.C. Sep. 11, 2019)

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

Melina K.,1
Complainant,

v.

David Bernhardt,
Acting Secretary,
Department of the Interior,
Agency.

Appeal No. 2019003442

Agency No. DOI-OS-19-0043

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated March 8, 2019, dismissing her complaint. She
had alleged 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 the Age Discrimination in
Employment Act, as amended, 29 U.S.C. § 633(a).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Secretarial Assistant
at the Agency’s Office of Indian Energy and Economic Development (DOI) facility in
Washington, DC.

On November 15, 2018, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the bases of race (African-American), color (Brown), sex
(female), age (60), and reprisal for unspecified prior protected EEO activity. Specifically,
Complainant claimed that, on September 25, 2018 to September 26, 2018, the contract security
staff at the Reston, Virginia building subjected her to harassment and intimidation. She claimed
that, when she attempted to enter into the building for work purposes, the guards asked her
questions regarding the purpose of her visit, questions to which other employees were not
subjected.

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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The pertinent record reveals the following facts. Complainant worked as a Secretarial Assistant
and served as the administrative staffer for the Main Interior Building (MIB) and for the Reston
office. On September 25, 2018, she traveled to the Reston office because she was expecting four
new staff members and needed to ensure the supplies and offices were ready for them.
Complainant had inadvertently left her badge in the card reader at her desk at the MIB.

The security guards did not permit her to enter the building without government identification.
Because she was unable to obtain access, she stated that several hours of her day were wasted.
The next day, Complainant had her government badge and driver’s license with her when she
arrived at the Reston building. The security guards again asked her several questions, including
why she was there, before they escorted her to a work station. Complainant felt disrespected by
the security officers.

The Agency dismissed Complainant’s complaint for failure to state a claim. The Agency
reasoned that Complainant was not an aggrieved employee because she had not alleged any
present harm to any term, condition, or privilege of her employment with the Agency.

This appeal followed.

ANALYSIS AND FINDINGS

Initially, we note that Complainant stated on her notice of appeal that her appeal alleged a breach
of a settlement agreement.2 The record does not contain any settlement agreement.

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,
disability, genetic information, or retaliation. See 29 C.F.R. §§1614.103(a) and 1614.106(a). In
this case, Complainant is not alleging that she was harmed or that an unlawful adverse personnel
action occurred.

The Commission finds that the complaint fails to state a claim under the EEOC regulations
because Complainant failed to show that she 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, we find that Complainant's complaint was properly dismissed pursuant to 29
C.F.R. § 1614.107(a)(1) for failure to state a claim.

2 To the extent Complainant is raising a breach claim, she must first raise the breach claim with
the Agency. Our review does not show that the parties entered an agreement.
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CONCLUSION

Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.

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 tends 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. 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.
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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

September 11, 2019
Date