Millicent H.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Nov 9, 2018

2019000174 (E.E.O.C. Nov. 9, 2018)

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

Millicent H.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.

Appeal No. 2019000174

Agency No. DECA-00099-2018

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated July 11, 2018, dismissing a formal
complaint of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Teller in the Cash Office of the Peterson Air
Force Base Commissary in Colorado. Believing that she was subjected to discriminatory
harassment by the Assistant Customer Services Manager (hereinafter “Assistant Manager”),
Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant’s concerns
were unsuccessful. On June 7, 2018, Complainant filed a formal complaint based on age,
disability, and reprisal for prior protected EEO activity.

In the instant final decision, the Agency framed the claims as follows:

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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a. On February 1 and 2, 2018, [Assistant Manager] would not assist Complainant as
previously instructed by [Supervisory Store Associate] and responded with angry
grunts and groans.

b. On February 22, 2018, Complainant was given a verbal warning by [Assistant
Manager].

The Agency dismissed the formal complaint for failure to state a claim. The Agency reasoned
that Complainant did not show that she was subjected to a personal loss or harm to a term,
condition, or privilege of her employment. Moreover, the Agency found that the subject claims
were not sufficiently severe to create a hostile work environment. Additionally, the Agency
dismissed the complaint as having been previously raised in a negotiated grievance proceeding
that permits allegations of discrimination. Specifically, Complainant filed a Step 1 grievance,
regarding Assistant Manager, on January 23, 2018.

Complainant filed the instant appeal. She did not provide a brief or any contentions.

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, Complainant contends she is harassed by Assistant Manager. She describes a
few interactions, noting in one instance that Assistant Manager “was very indifferent to us during
the entire shift” and in another, that Assistant Manager does not respond to her when she says
‘Good Morning”. 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 Serv.,
EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv., EEOC Request No.
05940695 (Feb. 9, 1995). While Assistant Manager may be perceived as unfriendly, aloof, or
even rude or unprofessional, the instant record does not describe any events that are sufficiently
severe or pervasive to create a hostile work environment. Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993). Finally, the alleged Agency actions were not of a type reasonably likely to
deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC
Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003
(May 20, 1998).

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Because we affirm the Agency dismissal for the reason discussed above, we will not address
alternative dismissal grounds.

CONCLUSION

The Agency’s final decision to dismiss the formal complaint is AFFIRMED.

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).

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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 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

November 9, 2018
Date