[Redacted], Coleman H., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionFeb 24, 2022Appeal No. 2022000604 (E.E.O.C. Feb. 24, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Coleman H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000604 Agency No. ARPOM21AUG02789 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated September 30, 2021, dismissing a formal complaint alleging 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 of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Foreign Language Instructor at the Agency’s Middle East School II in Monterey, California. On September 22, 2021, Complainant filed a formal EEO complaint claiming that the Agency discriminated against his based on race, national origin, color, and age when: a. on July 28, 2021, Complainant’s supervisor (S1) rejected an academic counseling statement Complainant prepared for his mentee but then failed to show Complainant an example of what S1 meant but rather referred Complainant to a less experienced team member; b. on August 18, 2021, after observing Complainant’s teaching, S1 accused Complainant of not including a task in his lesson; 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. 2022000604 2 c. on August 20, 2021, S1 intimidated Complainant into canceling his request for Family Medical Leave Act (FMLA) leave and foreign travel plans to escort his pregnant wife from Sudan to California; d. on August 24, 2021, S1 threatened to give Complainant an “unsatisfactory” performance rating if Complainant did not re-write an academic counseling statement for his mentee; and e. on August 27, 2021, S1 repeated the threat to put Complainant on a Performance Improvement Plan (PIP) and accused Complainant of being “stubborn.” On September 30, 2021, the Agency issued a final decision dismissing the formal complaint on two grounds. First, the Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant was not an aggrieved individual. Second, the Agency dismissed claims d and e, pursuant to 29 C.F.R. § 1614.107(a)(5), finding that these alleged incidents were a preliminary step to taking a personnel action, and consequently, Complainant was never received a concrete disciplinary action. 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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Here, the Agency properly dismissed the formal complaint for failure to state a claim. A fair reading of Complainant’s allegations indicate they can be characterized as a claim of ongoing discriminatory harassment. 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. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’.” 2022000604 3 Following a review of the record, we conclude that viewing the allegations together and assuming they occurred as alleged, Complainant fails to state a viable claim of discriminatory harassment sufficient to amount to a violation of Title VII. The actions alleged, without more, are simply insufficiently severe or pervasive to state a valid claim. Although Complainant alleged that S1 was dissatisfied with his work performance on various occasions, there is no indication that Complainant was formally disciplined by S1. Additionally, there is no indication that Complainant actually requested FMLA leave or foreign travel and was subsequently denied. Rather, Complainant chose not to take leave. Given these circumstances, we find that Complainant has not alleged a present harm related to employment for which there is a remedy. Because we affirm the Agency’s dismissal for failure to state a claim, we need not address the Agency’s alternative grounds for the dismissal of claims d and e. CONCLUSION The Agency’s final decision dismissing the formal complaint for failure to state a claim is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2022000604 4 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022000604 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 February 24, 2022 Date Copy with citationCopy as parenthetical citation