Charles G.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Aug 30, 2019

2019003565 (E.E.O.C. Aug. 30, 2019)

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

Charles G.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 2019003565

Agency No. GSA-19-CO-Q-0018

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated April 19, 2019, 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.

BACKGROUND

During the period at issue, Complainant worked as a Management and Program Analyst at the
Agency’s General Supplies and Services facility in Washington D.C.

On November 14 ,2018, Complainant initiated EEO Counselor contact. Informal efforts to
resolve his concerns were not successful.

On February 26, 2019, Complainant filed the instant formal complaint. Complainant claimed
that the Agency subjected him to unlawful reprisal when:

1. on March 6, 2018, he was forced to “water down” information to senior leadership;

2. on June 5, 2018, he was yelled at during a meeting;

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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3. between June 5, 2018 and December 10, 2018, all his bimonthly meetings were
cancelled;

4. on November 14, 2018, he received a level 4 rating on his annual performance
appraisal for fiscal year 2018; and

5. on November 30, 2018, he was denied a temporary promotion.

On April 19, 2019, the Agency issued a final decision. The Agency first noted that during the
EEO counseling process, Complainant had explained that he had been retaliated against by a
second level supervisor after Complainant had complaint to upper management about being
subjected to a hostile work environment. The Agency next noted that on March 15, 2019, it
sought clarification from Complainant as to whether the aforementioned claim of a hostile work
environment was “due to an EEO protected basis or the result of opposing an unlawful
discriminatory practice.” The Agency found that Complainant has responded that there was no
EEO basis, and that the reprisal stemmed from reporting a hostile work environment to senior
leadership.”

The Agency dismissed the formal complaint for failure to state a claim pursuant to 29 C.F.R. §
1614.107(a)(1), by determining that all of the subject reprisal claims were not based on any prior
activity protected by the anti-discrimination statutes.

The instant appeal followed. On appeal, Complainant asserts that it “was obvious that [a named
Agency official] was retaliating against me. . .because I had pointed out agency deficiencies
regarding the AAR [After Action Report] and how not filing FTEs was putting GSA in a position
to not be able to respond properly.”

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).

The Agency properly dismissed the formal complaint for failure to state a claim. Reprisal was
the sole basis identified in the instant formal complaint, and a review of Complainant’s
statements do not reflect that the nature of his reprisal claim is a covered basis under the EEO
statutes. As noted above, Complainant expressly indicated that he was retaliated against because
of his pointing out agency deficiencies (whistleblowing).
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EEOC Regulation 29 C.F.R. § 1614.101(b) provides that no person shall be subject to retaliation
for opposing any practice made unlawful by Title VII, the Agency Discrimination in
Employment Act, the Equal Pay Act or the Rehabilitation Act, for participating in any stage of
administrative or judicial proceedings under those statutes. In order to use the EEO complaint
process under 29 C.F.R. Part 1614 with a claim of unlawful retaliation, an individual must
initially have alleged that he or she engaged in prior protected activity as defined by 29 C.F.R §
1614.101(b). Given the circumstances of this case, we determine that Complainant has not
raised a reprisal basis viable under the EEO complaint process.

The Agency’s final decision dismissing the formal complaint for the reason discussed above is
AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.

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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).
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

August 30, 2019
Date