Herb E.,1 Complainant,v.Eric Fanning, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 29, 2016

0120143122 (E.E.O.C. Jan. 29, 2016)

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

Herb E.,1
Complainant,

v.

Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 0120143122

Agency No. ARHQOSA14JUN02155

DECISION
Complainant filed an appeal with this Commission from the Agency's Final Decision dated
August 18, 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.
For the following reasons, we AFFIRM the Agency’s dismissal of Complainant’s complaint
pursuant to 29 C.F.R. § 1614.107(a)(1).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Deputy Chief
Information Officer at the Agency’s Arlington Cemetery facility in Arlington, Virginia. On
July 1, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to
discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when:

On May 1, 2014, Complainant was not selected for the position of Chief
Information Officer, GS-2210-15, at Arlington National Cemetery, Arlington,
Virginia.

The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. The Agency found that Complainant’s prior protected activity was

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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only that he had been identified as the responsible management official in an EEO complaint
filed by a subordinate employee. The Agency found that Complainant’s complaint failed to
state a claim based on reprisal where Complainant had no other history of participation in the
EEO process or opposition to any Agency action he believed to be discriminatory.

On appeal, Complainant states that in addition to being identified as an Agency official in a
complaint filed by another employee, Complainant also participated as a witness in that EEO
complaint and entered into a settlement agreement to resolve that matter.

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.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. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

In the instant case, we find the Agency properly dismissed Complainant’s complaint pursuant
to 29 C.F.R. § 1614.107(a)(1). We concur with the Agency that without more,
Complainant’s role as an identified responsible management official in the EEO complaint of
another employee is not enough to serve as a basis for a claim of reprisal in Complainant’s
complaint under the circumstances. We find nothing in the record indicates that
Complainant opposed a policy or practice he believed to be discriminatory. Complainant
only previously participated in the EEO complaints process as an employee accused of
discrimination by his subordinate employee. Accordingly, we find that Complainant’s
complaint fails to state a claim of reprisal. See Smith v. Dep’t of Veterans Affairs, EEOC
Appeal No. 01952836 (July 26, 1996).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s Final Decision, finding no discrimination.

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:

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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
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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

January 29, 2016
Date