0120160471
02-23-2016
Foster W.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Foster W.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120160471
Agency No. 2015FMD040
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 30, 2015, 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
At the time of events giving rise to this complaint, Complainant worked as a Supervisor Budget Analyst (GS-0343-11) at the Financial Management Directorate ("FMD") of the Agency's Washington Headquarters Services in Arlington, Virginia.
Complainant supervised approximately fifteen employees and contractors in FMD's Budget Execution Division. Complainant, his supervisor, and the Assistant Director of Budget Execution ("D1") were responsible for collaborating with the FMD's Accounting Division to manage the office budget. Complainant was the only African American, and only individual with a dark complexion among his coworkers on the budget collaboration. The instant complaint arose from interactions between Complainant and the Assistant Director of the Accounting Division ("D2") along with two of his subordinates ("C1" and "C2").
On September 30, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discriminatory harassment on the bases of race (African-American) and color (Black/Brown) when:
1. On September 22, 2015, C1 bypassed him and assigned tasks directly to his staff, despite previous instructions to consult Complainant first;
2. On September 4, 2015, C1 insulted and demeaned him in front of other employees at a meeting by saying "don't interrupt me;"
3. On September 1, 2015, C1 would not respond to Complainant's email;
4. On August 12, 2015, Complainant and C1 were in a meeting with a number of other employees, when Complainant expressed disagreement with C1 about an assignment, she spoke angrily, left while he was speaking and slammed the office door; and D2 never reprimanded or counseled C1 about the matter;
5. On August 12, 2015, D2 failed to reprimand C2 for sending a condescending and disrespectful email to Complainant (in which she cc'd D2) which stated "Your email appears incomprehensible. I think you may have missed some typos? Please rephrase and resend;"
The Agency dismissed the complaint pursuant to C.F.R. � 1614.107(a)(1) for failure to state a claim. Complainant did not challenge the Agency's articulation of his claims on appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 CF.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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 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). Although it may be frustrating for Complainant, in this instance we find no harm to a specific term, condition or privilege of employment where individuals contact Complainant's supervisor instead of Complainant.
We also note that none of the alleged harassers are in Complainant's division or within his chain of command, and he makes no reference to his own supervisor's action or inaction to resolve the conflicts from which his complaint arises. We find Complainant's allegations are insufficient to state a claim of a hostile work environment.
CONCLUSION
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 23, 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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