[Redacted], Garret W., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2021000725 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Garret W.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2021000725 Agency No. ARCEMEMP20AUG02465 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 16, 2020, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Pumping Plant Supervisor at the Agency’s U.S. Army Corps of Engineers, Memphis District in Marianna, Arkansas. On October 9, 2020, Complainant filed a formal EEO complaint alleging the Agency subjected him to discrimination on the bases of race (Caucasian), color (white), age (63), and in reprisal for prior EEO activity when: a. on June 30, 2020, inflammatory, unsubstantiated claims and statements were made in Complainant’s 2020 Defense Performance Management and Appraisal (DPMAP) in an attempt to lay the groundwork to remove him; and 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. 2021000725 2 b. on October 5, 2020, the Chief, Physical Support Branch, also Complainant’s supervisor, counseled [a named Administrative Assistant, also Complainant’s subordinate employee] on January 10, 2020 and February 26, 2020, without Complainant’s knowledge. In its October 16, 2020 final decision, the Agency dismissed the complaint in its entirety for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding Complainant was not aggrieved. The Agency also determined that Complainant raised claim (b) for the first time when he filed his formal complaint and it should also be dismissed, pursuant to 29 C.F.R. § 1614.107(a)(2), because it had not been previously raised with the EEO counselor and was not like or related to matters for which Complainant underwent EEO counseling. The instant appeal followed. ANALYSIS AND FINDINGS 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). In claim (a), Complainant alleges statements were made in his performance appraisal, with a speculative assertion that the groundwork was being established for his employment termination. There is, however, no allegation that an Agency action was taken based on this appraisal. The record shows that Complainant received a “fully successful” rating for four elements and an “outstanding” rating for two elements, resulting in an overall “fully successful” rating on the appraisal in question. Moreover, Complainant does not allege that he should have received a higher rating or that his current rating was lower than his ratings in past performance appraisals. He also does not allege that other similarly situated comparators were treated more favorably. Based on Complainant’s allegations, we concur with the Agency’s determination that he has not sufficiently alleged that he was aggrieved within the meaning of our regulations. In reaching this conclusion, we have also considered claim (b) where Complainant alleges his supervisor counseled one of Complainant’s subordinate employees without Complainant’s knowledge. Both allegations, considered together, are simply insufficient to raise a viable claim of harm to a term, condition or privilege of his employment for which there is a remedy. We also recognize that Complainant has raised a claim of reprisal for his prior EEO activity. The anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee’s efforts to secure or advance enforcement of the statutes’ basic guarantees and are not limited to actions affecting employment terms and conditions. Burlington 2021000725 3 Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation, Complainant must allege that: 1) he was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. See also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016); Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Here, however, we conclude that Complainant has not sufficiently alleged matters which are likely to deter Complainant or others from pursuing the EEO complaint process. Because we affirm the dismissal of the subject claims for the reason discussed above, we find it unnecessary to address alternative dismissal grounds. CONCLUSION For the reasons set forth above, 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. 2021000725 4 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. 2021000725 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 February 9, 2021 Date