[Redacted], Chairman, Railroad Retirement Board, Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2021004726 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jenny Fultz a/k/a Almeda B.,1 Complainant, v. Chairman, Railroad Retirement Board, Agency. Appeal No. 2021004726 Agency No. 210804 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 16, 2021, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Accountant, GS- 12, at the Bureau of Fiscal Operations within Agency’s Headquarters in Chicago, Illinois. On August 4, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Asian), national origin (Chinese), and sex (female) when: 1. On July 9, 2021, Complainant received four separate emails all within one minute with the subject line titled “Performance Exception” regarding the May 2021 Cash Flow Reconciliation for three accounts, thus making false claims about her performance. 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. 2021004726 2 Complainant noted that American Caucasian male employees who failed to accurately perform the same project in the past were not issued write ups for their inability to accurately work on the project. She also noted that the write ups and harassment she received created significant stress, making it hard for her to continue working at her high level of performance, and caused her to take sick leave. On August 16, 2021, the Agency dismissed the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency contended that Complainant’s allegations failed to demonstrate that she was subjected to a harm and were insufficiently severe or pervasive to rise to the level of harassment. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant clarifies that she believes that the emails were sent to her because of her race and sex. Prior to the email writeups on July 9, 2021, Complainant maintains that she never had any performance issues. She also explains that prior to beginning the project in March 2020, she requested training because part of the project was new, and no one had done it correctly since fiscal year 2016. She did not receive the requested training. She alleges that the email writeups were harassment because her work was fully approved by her supervisor. Complainant also argues on appeal that her manager often ignored her requests for assistance, which was requested due to the lack of accurately completed reports by her predecessors. In addition, Complainant reports that her manager exhibited hostile behavior towards another female Asian employee. Specifically, her supervisor referred to this employee as Complainant’s “sister” because they were both Chinese. In opposition to Complainant’s appeal, the Agency argues that Complainant’s original claim was properly dismissed and there are no new claims on appeal for which relief may be sought. The Agency contends that Complainant’s original claim does not entail any adverse employment actions. According to the Agency, the emails reported by Complainant are not adverse employment actions. Rather, they argue that the emails represent preliminary steps taken by the Agency but are not adverse employment actions in and of themselves. The Agency also argues for the first time on appeal that any events reported by Complainant in March 2020, are time- barred under 29 C.F.R. § 1614.105(a)(1). In regard to Complainant’s allegation on appeal that she was harassed and that a fellow employee was also harassed, the Agency argues that this claim is undated and was not included in her informal complaint, her formal complaint, nor the additional information she provided the Agency’s EEO Office in August 2021. Moreover, the Agency argues that Complainant’s harassment allegations on the whole do not rise to the level of severe or pervasive incidents establishing a hostile working environment. 2021004726 3 ANALYSIS AND FINDINGS 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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, such as the complaint at issue here, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Following a review of the record, we find that the actions alleged by Complainant do not rise to this level. We note that Complainant has not shown that the three emails taken as a whole constituted a harm or loss with respect to a term, condition, or privilege of employment. Furthermore, the emails were not sufficiently severe or pervasive to state a claim of harassment. While Complainant alleges that the actions caused stress, we note that the Commission has long held that where an allegation fails to render an individual aggrieved, the complaint is not converted into a cognizable claim merely because complainant alleges physical and/or emotional injury. See Larotonda v. U.S. Postal Serv., EEOC Appeal No. 01933846 (Mar. 11, 1994). Therefore, the Agency properly dismissed the claim for failure to state a claim. On appeal, Complainant raises a new and separate allegation of harassment regarding another female Asian employee. If Complainant wishes to pursue this new claim in an EEO complaint, she must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. U.S. Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). CONCLUSION Accordingly, we AFFIRM the Agency’s final decision. 2021004726 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021004726 5 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 22, 2021 Date