Complainant,v.Daniel M. Tangherlini, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Jul 3, 2014

0120141474 (E.E.O.C. Jul. 3, 2014)

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

Complainant,

v.

Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120141474

Agency No. GSA-14-R9-P-0024

DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated
February 5, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency’s dismissal.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Financial
Management Specialist, GS-12, in the Agency’s Budget and Financial Management unit in San
Francisco, California. On January 17, 2014, Complainant filed a formal complaint alleging
that he was discriminated against and harassed on the bases of race (Caucasian), color (white),
religion (Christian), sex (male), national origin (American), age (51), and in reprisal for prior
protected EEO activity when on November 26, 2013, he received an email from his supervisor
counseling him about his conduct. The conduct concerned his unprofessional interactions with
employees who assist with the administration of the Agency’s transit subsidy benefits program.

On February 5, 2014, the Agency dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(1) for failure to state a claim. The Agency reasoned that Complainant was not
aggrieved by the counseling and that the alleged incident was not sufficiently severe or
pervasive to establish a claim of hostile work environment. The instant appeal followed.

ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that an agency shall dismiss a
complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved
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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. The Commission’s federal sector case precedent has long defined an “aggrieved
employee” as an individual 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). 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).
Upon review of the record, we agree with the Agency that Complainant was not aggrieved by
the counseling email, nor were its contents sufficiently severe or pervasive to state a claim of
harassment. We further conclude that his supervisor’s action was not reasonably likely to
deter Complainant or others from engaging in protected activity. Accordingly, the Agency's
final decision dismissing Complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). 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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 3, 2014