U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emmett W.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020000889 Agency No. ARFTCAMP19JUN02171 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 31, 2019, dismissing 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 worked as a Recreation Supervisor at the Agency’s Clarksville Base Physical Fitness Center facility in Fort Campbell, Kentucky. On July 8, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American) when, on June 11, 2019, Complainant was subjected to harassment. The Agency dismissed the claim for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS 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. 20200008892 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). According to his formal complaint and related EEO counseling report, Complainant alleges that on the date in question he was about to go into his office when he saw a group of soldiers obstructing the entire hallway while taking an Army Physical Fitness Test. After telling the soldiers that they could not block the hallway because the other patrons were not able to get to the spin rooms, one of them said to others in the group, "Hey, guys, I'm doing an Interactive Customer Evaluation (ICE) comment about this gym because they are always rude." Complainant asked the soldier to come into his office so that they could talk. The soldier began to yell by saying that every time he comes into the gym, "You guys are rude and yelling at us to put things back.” Complainant then told the soldier that Complainant had been up front and had not seen the soldier in the gym. When Complainant asked the soldier who was it who had been telling him this, the soldier pointed to the Lead Recreation Assistant and said, "She does." Complainant asked the soldier to identify the last time the Lead Recreation Assistant had said something to him, and the soldier responded, “Last week.” Complainant then told him that the Lead Recreation Assistant has not been walking the floor for about three weeks because Complainant had been up front overseeing the gym. Complainant alleges that the soldier continued to get upset and said, "I'm a soldier in the Army and to me you are nothing!" Complainant maintains the soldier made the same statement two additional times and he threatened to write a negative ICE comment about Complainant. Complainant then asked the soldier for his name, unit, and telephone number, and told him that Complainant would be speaking to his commanding officers. Complainant maintains that the soldier said in a sarcastic way, "Have them call me!" as he left Complainant’s office. The Commission finds that the complaint fails to state a claim under the EEOC regulations because complainant failed to show that he was subjected to unwelcome verbal or physical conduct that was sufficiently severe or pervasive as to unreasonably interfere with his work performance and/or create an intimidating, hostile, or offensive work environment. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Nor has he shown he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly, the Agency's final decision dismissing complainant's complaint is AFFIRMED. 20200008893 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. 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. 20200008894 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 August 31, 2020 Date
