Jerold Y.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jun 28, 2016

0120151923 (E.E.O.C. Jun. 28, 2016)

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

Jerold Y.,1
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120151923

Agency No. NY-15-0313-SSA

DECISION

Complainant filed an appeal with this Commission from the Agency's decision dated April 14,
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. 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 final decision.

Complainant filed a formal complaint dated March 3, 2015, alleging that the Agency subjected
him to discrimination and a hostile work environment on the bases of age (65) and in reprisal
for prior protected EEO activity when:

On January 12, 2015, Complainant had a confrontation with an Operations Supervisor
and management did not correct the situation.
The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for
failure to state a claim. The Agency noted that Complainant claimed he was subjected to non-
sexual and sexual harassment and a hostile work environment when an Operations Supervisor
(OS) in his office began speaking loudly to a female employee that sits in front of
Complainant. The Agency noted that Complainant tapped the OS on the shoulder and told him
that he should not be having that conversation in the workplace. The Agency noted that
Complainant stated that the OS yelled at him for disrespecting him in front of the female

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.
0120151923

2
employee. Complainant further stated that the OS told him that he “better stay away from
him” and that “the Union doesn’t have sh[i]t on me. I don’t care what happens.”
The Agency determined the alleged incidents were not sufficiently severe or pervasive to state
a claim of a hostile work environment/discriminatory harassment. The Agency also found the
limited scenario involving a one-time incident is not of a type that is likely to deter a
reasonable person from engaging in protected activity. Further, the Agency stated there was
no evidence Complainant was subjected to any adverse action or that he was denied any
entitlement in relation to a term, condition, or privilege of employment, as a result of the
incident alleged.

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 (April 21, 1994). The
Commission has repeatedly found that remarks or comments unaccompanied by a concrete
agency action are not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. U.S. Postal Service, EEOC Request No. 05940695
(February 9, 1995). The Commission interprets the statutory retaliation clauses “to prohibit
any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the
charging party or others from engaging in protected activity.” EEOC Compliance Manual,
Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998).

In the present case, we find the Agency properly dismissed Complainant’s complaint. We note
that on appeal Complainant does not dispute the Agency’s definition of his complaint. Upon
review, we find Complainant failed to show that he suffered a harm or loss to a term,
condition, or privilege of employment for which there is a remedy. With regard to his claim
that he was involved in a confrontation with the OS, we note Complainant does not allege that
this action lead to any discipline. Moreover, even if proven to be true and viewed in a light
most favorable to Complainant, the record does not indicate that the alleged incident was
sufficiently severe or pervasive to alter the conditions of employment and constitute a hostile
work environment. Finally, we find that Complainant has not shown that the alleged incident
was reasonably likely to deter Complainant or others from engaging in protected activity.
0120151923

3

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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 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.
0120151923

4
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

June 28, 2016
Date