Jocelyn R.,1 Complainant,v.Eric Fanning, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 4, 2016

0120160872 (E.E.O.C. May. 4, 2016)

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

Jocelyn R.,1
Complainant,

v.

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

Appeal No. 0120160872

Agency No. ARCCAD15JAN00226

DECISION

Complainant filed an appeal with this Commission from the Agency's decision dated February
23, 2015, dismissing her 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, the Commission AFFIRMS the Agency’s final decision

On February 11, 2015, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination and harassment. Specifically, the Agency noted Complainant
identified the following claims:

1. Complainant alleged she was discriminated against and harassed on the basis of
sex (female) when on May 16, 2014, Complainant’s Division Chief was focused
on holding her accountable for a damaged tool.

2. Complainant alleged she was discriminated against and harassed on the bases of
sex (female) and in reprisal for filing a sexual harassment complaint when on
December 23, 2014, her Division Chief tried to make an issue out of a “burr
tag”2 and a missing asset.

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 meaning of a “burr tag” is not explained in the record.

0120160872

2
The Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact. The Agency noted that on January 7, 2015, Complainant’s representative
contacted the EEO Office and initiated an informal complaint of discrimination on behalf of
Complainant. The Agency noted that Complainant thereafter met with the EEO Counselor and
raised claims (1) and (2) during informal counseling. The Agency explained that previously on
May 22, 2014, Complainant initiated a prior discrimination complaint alleging sexual
harassment by a supervisor (not in her chain of command) who was spreading rumors about
her. The Agency stated this was six days after the alleged incident with the damaged tool
(claim 1). The Agency determined Complainant had at that time the opportunity to include the
incident in the discrimination complaint if she believed it was discriminatory. The Agency
found that Complainant did not report the incident as discriminatory until January 7, 2014,
over 200 days after the incident occurred. Thus, the Agency dismissed claim (1) for untimely
counselor contact.

With regard to claim (2), the Agency dismissed this claim pursuant to 29 C.F.R.
§1614.107(a)(1), for failure to state a claim. The Agency noted that Complainant alleged her
Division Chief took an unusual involvement in an unattached “burr tag” when he asked her
about the missing asset. The Agency stated that no action was taken against Complainant as a
result of this incident. The Agency also noted that simply asking Complainant of her
knowledge regarding the whereabouts of a missing asset was not likely to deter employees
from filing EEO complaints.

The Agency also viewed Complainant’s claims as an allegation of harassment and found that
Complainant did not state a claim. The Agency determined the two incidents were not severe
enough to rise to the level of harassment. The Agency found that since Complainant failed to
show that the two incidents were severe enough to alter her work environment, she failed to
state a claim of harassment.

On appeal, Complainant states the examples in her complaint involved matters in retrospect
which caused her to later determine she may have been discriminated against by her Division
Chief. Complainant stated that over time, she came to believe she had been subjected to a
course of discriminatory action. Complainant states that when viewed in the larger context of
her previous sexual harassment complaint, the conduct of the Division Director became
apparent to her. Complainant states she should not be penalized because she only later came to
realize that earlier actions taken by the Division Director were not the product of sound
personnel actions, but were ways to retaliate against Complainant for her prior sexual
harassment complaint.

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

0120160872

3
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 her complaint. Upon
review, we find Complainant failed to show that she suffered a harm or loss to a term,
condition, or privilege of employment for which there is a remedy. With regard to her claim
that the Division Chief was focused on holding her accountable for a damaged tool, we note
Complainant does not allege that she had to pay for the damaged tool. Additionally, we note
Complainant does not claim that she was subjected to any discipline as a result of claims (1) or
(2). Moreover, even if proven to be true and viewed in a light most favorable to Complainant,
the record does not indicate that the alleged incidents were 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 incidents were reasonably likely to deter
Complainant or others from engaging in protected activity.

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

0120160872

4
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.
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

0120160872

5
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

May 4, 2016
Date