0120152762
02-03-2016
Chi E.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chi E.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120152762
Agency No. 150024301685
DECISION
Complainant filed a timely appeal with this Commission from the Agency's July 28, 2015 dismissal of 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Recreation Aide NF-0189-01 at the Agency's Marine Corps Community Services (MCCS) Marine facility in San Diego, California.
On June 29, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of sex (male), disability (back and neck pain, depression), age (40), and reprisal for prior protected EEO activity when:
1. On March 31, 2015, Complainant was not allowed to use the office computers even though his female co-workers were allowed to use them.
2. In August 2014, his job was changed from NF-02 to NF-01 and his hours were reduced from 40 hours to 32 hours.
3. In August 2014, Complainant's first level supervisor ("S1") stated "I don't know why they sent you back if you can't do anything."
4. In August 2014, S1 told Complainant to "go back to work and pretend like nothing happened" in reference to Complainant's initiation of an EEO Hostile Work Environment claim against management.
On March 26, 2014, Complainant sustained a neck and back injury while on the job. Complainant alleges that at the time he was injured, he was working 40 hours per week as a RV Lot Manager (Level NF-02). Due to the severity of his injury, Complainant qualified for workers compensation, and was on leave to recuperate until August 2014.
Complainant alleges that upon returning to work, his hours were reduced from 40 to 32 hours per week and he was placed in a lower level position, Recreation Aide (level NF-1). He also alleges that his supervisors harassed him because he was limited to light duty assignments due to his injuries. In mid-August 2014 Complainant initiated contact with an EEO counselor, bringing claims 2 through 4, but never filed a formal complaint. In March and April 2015, Complainant initiated EEO counseling again. He raised a number of allegations with the counselor concerning instances of alleged discrimination and harassment, including Claims 1 through 4. He also alleged retaliation for his protected EEO Activity in August 2014.
The Agency dismissed Claim 1 for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1) on the grounds that Complainant failed to establish that he was an "aggrieved" employee. The Agency found Claims 2, 3, and 4 also failed to state a claim, as the same allegations were already brought to an EEO counselor, and that they were untimely under 29 C.F.R. � 1614.107(a)(2).
ANALYSIS AND FINDINGS
Claim 1
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Complainant's allegation concerning computer privileges is insufficient to state a claim of a hostile work environment.
Claims 2, 3 and 4
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that an agency shall dismiss a complaint that "states the same claim that is pending before or has been decided by the agency or Commission." This provision applies only in situations when the claim was stated in a previous formal EEO complaint; it does not apply to claims previously raised at the informal stage of the EEO process. See Complainant v. U.S. Postal Serv., EEOC Request No. 0520140201 (June 10, 2014) (The Commission has held that it is error to dismiss a claim on the grounds that a claim was previously raised when it was raised in an informal complaint); Francis v. U.S. Postal Serv., EEOC Appeal No. 01A20240 (Dec. 9, 2002) (if not formal complaint filed, "not possible to have a prior complaint pending or decided" on the same matter).
The Commission has held that "a complainant who receives counseling on an allegation, but does not go forward with a formal complaint on the allegation is deemed to have abandoned it and consequently, cannot raise it in another complaint." Small v. U.S. Postal Serv., EEOC Request No. 05980289 (July 16, 1999).
The record reflects Complainant first raised the allegations in Claims 2, 3, and 4 with an EEO Counselor on August 15, 2014, and that he completed and signed an election form on August 22, 2015. There is no evidence that Complainant ever filed a formal complaint. As the deadline to file is long past, these allegations are considered abandoned. While Complainant can cite to his August EEO Activities as a basis for a reprisal claim, he cannot bring his allegations from August 2014 as new claims in in this complaint.
As we affirm the Agency's finding that Claims 2, 3, and 4 fail to state a claim, we decline to review the Agency's timeliness argument on this matter.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 request or opposition must also include proof of service on the other party.
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
February 3, 2016
__________________
Date
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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