[Redacted], Hettie T., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 13, 2022

Appeal No. 2022000554 (E.E.O.C. Apr. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hettie T.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000554 Agency No. ARIMCOMHQ21SEP02933 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 8, 2021, dismissing her 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. BACKGROUND Complainant was formerly employed by the Agency as a Physical Therapy Assistant, GS-07 at the Agency’s Soldier Recovery Unit in Fort Carson, Colorado. Her employment with the Agency ended on February 24, 2021. Thereafter, she volunteered at the American Federation of Government Employees (AFGE) Local 1345 as a Union Steward. On October 2, 2021, Complainant filed a formal complaint alleging that she was subjected to discrimination on the bases of national origin (Hispanic)2, sex (female), and reprisal for prior protected EEO activity (ARCARSON20FEB00559 and ARCARSON19AUG2960) under Title VII of the Civil Rights Act of 1964 when: 1. On September 10, 2021, an EEO Officer asked the AFGE Vice President to 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. 2 Complainant’s alleged bases of discrimination included race, which she noted as Hispanic, and national origin, which she noted as Hispanic Latina. 2022000554 2 remove Complainant from representing employees at Fort Carson while Complainant had two active EEO complaints. 2. On September 13, 2021, the EEO Officer emailed Complainant requesting to see Complainant’s credentials as a trained union representative despite her knowledge that Complainant attended AFGE District training. 3. On August 14, 2021 the AFGE Vice President stated an HR Employee Specialist had a “Dad bod” and referred to the HR Employee Specialist’s children as “fuck trophies.” The AFGE Vice President stated that Complainant and the Chief Steward had their own “fuck trophies.” 4. On August 17, 2021 the AFGE Vice President told Complainant that in order to increase Union membership, all the AFGE Vice President had to do was take off his shirt and show his tattoos. 5. On September 10, 2021, the AFGE Vice President stated that he would remove Complainant’s representational duties and case files until her pending EEO cases were completed, while he represented employees as the Chief Garrison Steward during an unfair labor practice investigation. 6. On September 27, 2021, the Chief Steward informed Complainant that she had been threatened with an Article 23 if she spoke with Complainant because Complainant had pending EEO cases. 7. On October 1, 2021, Complainant became aware that the AFGE Vice President stated that there was a union policy that stewards should not represent employees when they have an active EEO case, when there is no actual policy in place or being enforced. The Agency dismissed the complaint for failure to state a claim under 29 C.F.R. § 1614.107(a)(1). In so doing, the Agency noted that Complainant was not an Agency employee on the dates giving rise to her complaint, and that her allegations involved matters of the Union, rather than actions of the Agency. The instant appeal followed. Complainant submitted a brief in support of her appeal expressing her disagreement with the Agency’s finding. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure 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, § 1614.106(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). 2022000554 3 To state a claim under the Commission's regulations, an employee must allege and show an injury in fact. Specifically, an employee must allege and show a “direct, personal deprivation at the hands of the employer,” that is, a present and unresolved harm or loss affecting a term, condition, or privilege of his employment. Id. The Agency argues that Complainant has failed to state a claim because her allegations do not involve an Agency official, and she has not shown that the Agency caused harm to a term or condition of employment. On appeal, Complainant argues that her status as a former Agency employee makes her eligible for Title VII protection. Complainant submitted excerpts which appear to be taken from final decisions to support her argument. The excerpts indicate that former employees have standing to sue their previous employer for discriminatory acts committed by the employer. Here, Complainant has alleged that the actions taken to alter or remove her Union duties were taken by the Union, not the Agency. We note that in her brief, Complainant describes that she was issued a Notice of Removal and ultimately discharged from the Agency on February 24, 2021. However, she explicitly states that the Agency’s actions “are not part of this appeal.” Since Complainant has not alleged that the Agency engaged in actions that affected a term, condition, or privilege of her previous employment, we find that she has failed to state a claim.3 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 3 Complainant added new claims in her appeal brief. These claims were not included in her formal complaint or the Agency’s final decision and, therefore, they are not at issue before us and will not be adjudicated in this decision. 2022000554 4 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 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. 2022000554 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 April 13, 2022 Date