Dewey R.,1 Complainant,v.Thomas E. Perez, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Feb 17, 2016

0120141302 (E.E.O.C. Feb. 17, 2016)

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

Dewey R.,1
Complainant,

v.

Thomas E. Perez,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120141302

Agency No. CRC-14-01-013

DECISION

Upon review, we find that the Agency’s final decision dated January 15, 2014, dismissing
Complainant’s complaint for failure to state a claim is proper pursuant to 29 C.F.R.
§1614.107(a)(1).

In his complaint dated November 19, 2013, Complainant, a former Agency employee, alleged
discrimination based on sex (male) and in reprisal for prior EEO activity when on May 29,
2013, the Agency permitted a former coworker to attend a training session he conducted
personally for the Agency. The record indicates that Complainant resigned from the Agency’s
employment on August 16, 2012. Complainant indicated that he had negative interactions with
the coworker while he was employed at the Agency prior to his resignation. The Agency
indicated that after his resignation from the Agency, Complainant was hired by the Veterans
Administration to conduct training on electrical safety in Brockton, Massachusetts, on May 29,
2013. The Agency stated that when Complainant saw the coworker sitting at the front of the
training class, he called the coworker’s supervisor who asked the coworker to leave the
training. The coworker then left the training.

After a review of the record, while Complainant cited the incident threatening to his
livelihood, we find that EEO laws are not a civility code. Rather, they forbid “only behavior

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.
0120141302

2
so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v.
Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Complainant was not an employee
of the Agency at the time of the incident; nor did the incident concern his employment at the
Agency. On appeal, Complainant, for the first time, raises numerous new matters, i.e.,
harassment while he was employed at the Agency and his being constructively discharged on
August 16, 2012. Complainant is advised to contact an EEO Counselor regarding these
matters if he wishes to further pursue the matters. We do not address in this decision whether
such new claims would be considered timely raised with an EEO Counselor.

Accordingly, the Agency’s 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
0120141302

3
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 17, 2016
Date