Donny F.,1 Complainant,v.Penny Pritzker, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Apr 1, 2016

0120141907 (E.E.O.C. Apr. 1, 2016)

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

Donny F.,1
Complainant,

v.

Penny Pritzker,
Secretary,
Department of Commerce,
Agency.

Appeal No. 0120141907

Agency No. 67-2014-00043

DECISION

Complainant filed an appeal with this Commission from the Agency's decision dated March 5,
2014, 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. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

At the time of events giving rise to this complaint, Complainant worked as a Special Agent,
GS-1811-14, with the Office of Export Enforcement (OEE), National Security Division,
Chicago Field Office, Bureau of Industry and Security (BIS). During the relevant time the
Deputy Director, OEE, National Security Division, BIS was Complainant’s first level
supervisor.

On February 18, 2014, Complainant filed a formal complaint alleging that the Agency
subjected him to discrimination on the bases of race (Hispanic) and in reprisal for prior
protected EEO activity when:

Complainant’s former supervisor, the Assistant Special Agent in Charge,
Chicago Field Office, complained to Complainant's current first-line supervisor,
about Complainant's use of the Chicago Field Office's BECCI 2 printer.

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 Agency noted that Complainant claimed that on November 19, 2013, he received a
telephone call from his supervisor advising that his former supervisor had complained that
Complainant was printing “reams of paper” at a time, which allegedly interfered with the
Chicago Field Office’s printing capabilities and caused the Chicago Field Office to use their
budget on paper used by a non-Chicago Field Office employee. The Agency noted that
Complainant stated since the former supervisor’s complaint, he has had difficulty locating his
print jobs and sometimes “they are nowhere to be found.” The Agency notes Complainant
contends that the former supervisor is trying to cause friction between Complainant and his
new supervisor and that the former supervisor monitors his visits to the Chicago Field Office
and his use of OEE equipment.

The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for
failure to state a claim. The Agency noted that Complainant has not alleged that he has been
actually denied the use of Agency equipment, and has identified no tangible employment action
as a result of the cited conduct. The Agency also determined the alleged conduct is not
sufficiently severe or pervasive to constitute actionable harassment. The Agency also stated
that the complained of conduct is not likely to deter a reasonable individual from engaging in
protected EEO activity.

On appeal, Complainant states that his former supervisor is aware he does not have a
printer/scanner at his current assignment at the Chicago Field Office. Complainant states the
printer/scanner is an important and necessary tool for all OEE agents. Complainant claims that
the former supervisor does not restrict the use of any Agency equipment to individuals not
physically located at the Chicago Field Office or non-Chicago Field Office employees co-
located at the Chicago Field Office. Complainant claims that the former supervisor
exaggerated the amount of paper Complainant used.

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 (April 21, 1994). The
Commission has repeatedly found that remarks or comments unaccompanied by a concrete
agency action are not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. U.S. Postal Service, EEOC Request No. 05940695
(February 9, 1995).

In the present case, we find the Agency properly dismissed Complainant’s complaint. We note
that on appeal Complainant does not dispute the Agency’s definition of his complaint. Upon
review, we find Complainant failed to show that he suffered a harm or loss to a term,

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condition, or privilege of employment for which there is a remedy. We note Complainant does
not allege that he was subjected to any discipline with regard to his claim that his former
supervisor complained to his current supervisor regarding his use of the printer. Moreover,
even if proven to be true and viewed in a light most favorable to Complainant, the record does
not indicate that the alleged incidents were sufficiently severe or pervasive to alter the
conditions of employment and constitute a hostile work environment. Finally, we find the
alleged Agency actions were not of a type reasonably likely to deter Complainant or others
from engaging in protected activity.

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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).

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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. 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 1, 2016
Date