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

Equal Employment Opportunity Commission

Sep 26, 2022

Appeal No. 2022003723 (E.E.O.C. Sep. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fletcher E.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022003723 Agency No. ARARL22MAY02307 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 15, 2022, dismissing his 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 At the time of events giving rise to this complaint, Complainant worked as a Mechanical Engineer, DB-0830-03, for the U.S. Army Research Laboratory in Aberdeen Proving Ground, Maryland. On June 2, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American), color (Black), and reprisal for prior protected EEO activity when: 1. On May 10, 2022, after Complainant responded to an email in the morning from the Armor Branch Mechanisms Secretary to attend an afternoon Microsoft Teams Midpoint Performance Review meeting with the Armor Mechanisms Branch Chief on short notice asking for the Review meeting to be rescheduled, Armor 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. 2022003723 2 Mechanisms Branch Chief chose not to reschedule the Review meeting, and wrote on Complainant’s Midpoint Performance Review in the Rater Remarks section “Not conducted. Refer to email from [Complainant], titled ‘Inequitable Process - RE: Midpoint’ dated 5 May 22”; 2. On May 10, 2022, Complainant noticed his FY22 Performance Objectives in the Army Research Laboratory’s Performance Interface for Managers and Employees (PRIME) appraisal system was changed without his knowledge, which did not reflect his FY 22 Performance Objectives that he submitted on or about October 2021; and 3. Armor Mechanisms Branch Chief wrongfully modified Complainant’s FY2021 performance objectives without mutual discussion and agreement, after Complainant submitted his FY2021 Accomplishments resulting in the inequitable process of evaluating Complainant’s FY2021 Accomplishments, in the FY2021 Appraisal Process. The Agency framed the complaint as alleging discrimination on the basis of race (African American), color (Black) and reprisal (Prior EEO Activity) in the following action(s) when: a. On May 10, 2022, you were contacted by email in the morning from the Armor Branch Mechanisms Secretary to attend an afternoon Microsoft (MS) Teams Midpoint Performance Review meeting with the Armor Mechanisms Branch Chief, Patrick Swoboda on short notice. b. On May 10, 2022, you noticed your FY22 Performance Objectives in the Army Research Laboratory’s Performance Interface for Managers and Employees (PRIME) appraisal system were changed without your knowledge, which did not reflect your FY 22 Performance Objectives that you submitted on or about October 2021. The Agency then proceeded to dismiss the complaint in its entirety pursuant to 29 C.F.R § 1614.107(a)(1) for failure to state a claim, finding that in “both parts” of Complainant’s claim for discrimination, he failed to allege a present harm or loss suffered in respect to a term, condition, or privilege of employment for which there is a remedy. Complainant filed the instant appeal of the Agency’s dismissal. On appeal, Complainant argues the Agency: tampered with the date of the Notice of Dismissal; improperly framed his complaint, omitting one of his claims, despite the fact that the claims were explicitly stated in his formal complaint; and erroneously interpreted 29 C.F.R. § 1614.103 regarding “aggrieved” employees. Complainant asserts that he was harmed by the alleged incidents and requests that his complaint continue to be processed. 2022003723 3 In response to the appeal, the Agency asserts that even if Complainant’s allegations regarding his Midpoint Performance Review and his FY 22 Performance Objectives are true, Complainant failed to allege that these actions resulted in a harm or loss with respect to a term, condition, or privilege of employment. The complaint, argues the Agency, does not allege any employment harm or adverse action, such as a negative performance evaluation, as a result these actions. Further, the Agency states that although Complainant’s third claim was not addressed in its decision, the claim should also have been dismissed for untimeliness and failure to state a claim. According to the Agency, Complainant’s EEO counselor contact was more than 45 days after culmination of the FY2021 evaluation, and that while Complainant stated the process was “inequitable”, he did not describe how this alleged inequity resulted in a harm or loss with respect to a term, condition, or privilege of employment. Complainant counters, in response to the Agency’s brief, that the Agency is disingenuously attempting to manipulate the purpose of his appeal. Complainant states his complaint was unlawfully dismissed “based on the Due Process Clause of United States Constitutional law and Federal EEO law 29 C.F.R. §§ 1614.103” and that the Agency EEO office engaged in disingenuous communication and documentation during the intake process to usurp EEO laws and undermine the EEO process. He contends there have been similar issues with his previously filed EEO complaints. Complainant notes he specifically stated the psychological, mental, emotional, and physical damage to him as a consequence of the actions in his complaint. Lastly, Complainant argues his third claim was timely raised, as it was filed within 45 days of his learning his FY2021 Performance Objections had been modified. ANALYSIS AND FINDINGS An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that 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). When the complainant does not allege he is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). We agree with Complainant that the Agency decision omitted one of the claims contained in his formal complaint. However, we also find that Complainant’s formal complaint fails to state a claim under EEO regulations. The events presented by Complainant do not allege a personal loss or harm to a term, condition, or privilege of employment. Therefore, we find that Complainant is not an “aggrieved” employee within the meaning of our regulations. Here, Complainant contends he suffered psychological, mental, emotional, and physical harm as a consequence of the actions in his complaint. 2022003723 4 While we are sympathetic to Complainant’s plight, this type of harm is not connected to a term, condition, or privilege of his employment. The Commission has long held that where an allegation fails to render an individual aggrieved, the complaint is not converted into a cognizable claim merely because complainant alleges physical and/or emotional injury. See Larotonda v. U.S. Postal Serv., EEOC Appeal No. 01933846 (Mar. 11, 1994). Complainant has not alleged the actions complained of resulted in lower performance appraisal scores or ratings, an inability to meet the revised objectives, or any other present harm to a term, condition, or privilege of his employment. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint 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). 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. 2022003723 5 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 September 26, 2022 Date