[Redacted], Dominic S., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Feb 21, 2023

Appeal No. 2022004392 (E.E.O.C. Feb. 21, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominic S.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022004392 Agency No. 22-00019-00817 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated July 8, 2022, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked for the Agency as an Electronics Engineer for the Naval Air Systems Command in Maryland. On May 19, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Jamaican), religion (Christian), and in reprisal for prior protected EEO activity when: 1. From January 2, 2022 through January 5, 2022, [a former colleague] “had multiple text messages of racist and religious vulgar statements”. 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. 2022004392 2 2. From September 29, 2021 through March 13, 2022, [an Agency official] executed reprisal actions against him. 3. From 2017 through March 28, 2022, [another Agency official] reprised against him with corruption and “incorrect processing of his prior complaints.” On July 8, 2022, the Agency issued the instant final decision, dismissing the formal complaint for failure to state a claim, pursuant to 29 C.F.R. 1614.107(a)(1). The Agency reasoned that the claims lacked the specificity required by the EEO regulations. After reviewing the complaint and EEO Counselor’s Report, the Agency concluded that complainant did not articulate or demonstrate events or actions that rendered him “aggrieved”. Additionally, claim (3) was dismissed for alleging dissatisfaction with the processing of a previously filed complaint, pursuant to 29 C.F.R. § 1614.107(a)(8). Complainant filed the instant appeal. ANALYSIS AND FINDINGS EEOC Regulations 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). In his formal complaint, Complainant alleges that his former colleague “had multiple texts messages of racist/religious vulgar statements of my nation origin as a Jamaican and Christian”, and references attached copies of text messages. The numerous screen shots of text messages and photos include Bible scripture and photos of a hand holding a gun at different angles. The messages appear to be from March 2020. While a phone number is identified, an individual is not. In the “claims” portion of the complaint form, Complainant also identifies the two Agency officials noted in the final decision, but does not include any other information. The Counselor’s Report also is lacking in details with respect to the claims. Rather, it simple names the individuals that Complainant seeks to “file a complaint against.” A review of the record, reflects that the Agency’s dismissal was proper. The matters raised by Complainant are too vague to state a claim as they do not adequately indicate how he suffered a personal harm to a term, condition or privilege of his employment. For example, in claim 2, Complainant has not described how he was retaliated against, or what actions were allegedly taken by the Agency official. 2022004392 3 While he includes screen shots in support of claim 1, depicting Bible references and photos of guns, there is no indication this concerns a matter within the Commission’s jurisdiction.2 Finally, the record reflects that claim 3 was properly dismissed for alleging dissatisfaction with the processing of previously filed complaints. CONCLUSION Accordingly, the Agency’s final decision is AFFIRMED for the reasons discussed above. 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 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. 2 Additionally, the record reflects that these messages and photos were sent by Complainant, rather than received by him. 2022004392 4 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. 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 21, 2023 Date