Felton S,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 14, 2019

2019002729 (E.E.O.C. Aug. 14, 2019)

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

Felton S,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 2019002729

Agency No. 196238100142

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's February 20, 2019, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Civil Service
Mariner assigned as a Utilityman, within the Agency’s Military Sealift Command (“MSC”),
aboard the USS Mount Whitney.

On January 21, 2019, Complainant filed a formal complaint alleging discrimination by the
Agency on the bases of race (African-American) and reprisal (prior protected activity) when, on
June 21, 2018, the Purser responded, "I am busy I will be there in a second" after Complainant
made several attempts for assistance, then the Purser assisted Complainant’s [Caucasian] co-
worker while Complainant was still waiting. 2

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.

2 The Agency’s Decision included two additional claims regarding events in March 2018, which
it properly dismissed for untimely EEO contact pursuant to 29 C.F.R. § 1614.107(a)(2). On
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The Agency dismissed the matter for failure to state a claim, pursuant to 29 C.F.R. §
1614.107(a)(1).

The instant appeal followed.

ANALYSIS AND FINDINGS

Under 29 C.F.R. § 1614.107(a)(1) 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). If the
complainant cannot establish that he or she is “aggrieved,” the agency shall dismiss a complaint
for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).

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. See 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, a 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).

The Commission has repeatedly found that allegations of a few isolated incidents of alleged
harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep’t of
Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (finding allegations that a
supervisor "verbally attacked" complainant on one occasion, attempted to charge him with
AWOL, and disagreed with the time the complainant entered into a sign-in log, were insufficient
to state a harassment claim); see also Banks v. Dep’t of Health and Human Services, EEOC
Request No. 05940481 (Feb. 16, 1995) (finding allegations that on one occasion a supervisor
threw a file on the complainant's desk and berated her in a loud voice in the presence of other
employees insufficient to state a harassment claim).

Likewise, we find the instant complaint, comprised an isolated incident of alleged harassment,
fails to state a claim.

CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

appeal, Complainant agrees that the March 2018 allegations were untimely, but specifies that the
only claim he intended to raise in the instant complaint was the June 21, 2018 allegation before
us.
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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.
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
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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 14, 2019
Date