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

Equal Employment Opportunity Commission

Dec 13, 2022

Appeal No. 2022004464 (E.E.O.C. Dec. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Billy L.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022004464 Hearing No. 541-2022-00055X Agency No. ARCARSON22OCT00136 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated August 2, 2022, regarding the dismissal of 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. BACKGROUND During the period at issue, Complainant worked as a Federal Police Officer, GS-0083-7, at the 50th Security Forces Squadron, Schriever Space Force Air Base, Colorado. On November 8, 2021, Complainant filed a formal EEO complaint claiming that the Agency subjected him to unlawful retaliation for engaging in prior protected EEO activity when, on October 4, 2021, an Agency Labor Attorney from the Pueblo, Colorado, Chemical Depot contacted Complainant’s management at First Space Command Air Force Base to report a possible security violation during Complainant’s previous employment with the Pueblo Chemical Depot, and requested that his current management take adverse action against him. 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. 2022004464 2 After its investigation of the accepted claim, the Agency provided Complainant with copies of the reports of investigation and notices of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On June 30, 2022, the Agency issued a motion to dismiss the formal complaint. The Agency reasoned that Complainant had amended his formal complaint to state that the Agency Labor Attorney reported a security violation, not a “possible security violation” at Complainant’s prior place of employment. The Agency noted that this amended language indicated that it was no longer a disputed fact that the Agency had in fact reported that Complainant had committed a violation. The Agency determined that Complainant lacked standing to bring the formal complaint because: (1) at no point did he ever work for the Agency and (2) the Agency never took any adverse action against Complainant, and therefore, Complainant was not an aggrieved individual. On July 12, 2022, the AJ, after receiving Complainant’s opposition response and the Agency’s reply, summarily adopted and incorporated by reference Agency’s motion and reply and dismissed the formal complaint with prejudice. On August 2, 2022, the Agency issued a final order implementing the AJ’s dismissal. The instant appeal followed. On appeal, Complainant argues that the AJ improperly instructed the Agency to file a motion to dismiss. Complainant further argues that the Agency Labor Attorney claimed that he committed a security violation when he took pictures in a restricted area while he was working as a Security Officer at the Pueblo Chemical Depot. However, Complainant disputed that the pictures he constituted a violation of the security policy. Complainant also acknowledges that the Agency Labor Attorney “did not articulate in her memorandum to the Air Force that adverse action be taken.” Rather, she verbally requested that adverse action be taken against Complainant. Complainant alleges that the Agency Labor Attorney “sought to affect [his] security clearance with [his] new employer, and even threatened criminal prosecution.” ANALYSIS AND FINDINGS 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). 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. Additionally, regulation 29 C.F.R. § 1614.109(b) provides that AJs have the authority to dismiss complaints for failure to state a claim. 2022004464 3 Here, the AJ properly dismissed the formal complaint for failure to state a claim. The record does not indicate that the Complainant’s current employer (the United States Air Force) disciplined, or otherwise penalized Complainant after the Agency Labor Attorney allegedly reported that Complainant had committed a security violation. While Complainant asserts that a security violation could have jeopardized his security clearance with the Air Force, there is no indication that Complainant’s security clearance was revoked or reevaluated. Consequently, Complainant has not alleged that he suffered a personal harm regarding his current employment that would render him “aggrieved.” We also address Complainant’s allegation that the AJ instructed the Agency to file a motion to dismiss. The record indicates that the Agency attempted to make an oral motion to dismiss the formal complaint during the initial conference before the AJ. However, the AJ advised the Agency that it could file a written motion to dismiss, and Complainant would have an opportunity to respond. Thereafter, the Agency filed its motion to dismiss, Complainant filed an opposition, and the Agency filed a response. Therefore, contrary to Complainant’s assertion, the record fails to indicate that the AJ improperly encouraged or otherwise requested that the Agency issue a motion to dismiss. CONCLUSION The Agency’s final order implementing the AJ’s dismissal of 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). 2022004464 4 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. 2022004464 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 December 13, 2022 Date