[Redacted], Christopher J., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2021002100 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christopher J.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002100 Agency No. 200P-0593-2021100273 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 27, 2021, dismissing his complaint alleging 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 a Housekeeper, WG- 3566-2, at the Agency’s Veteran's Administration Medical Center in Las Vegas, NV. On November 25, 2020, Complainant filed a formal complaint indicating the Agency subjected him to discrimination on the bases of race when, on when on May 20, 2020, coworkers made up stories to get him wrongfully terminated him in the future.2 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 We noticed Complainant raised additional claims during the pre-complaint counseling period including: (1) a fact-finding inquiry that was conducted against him on June 12, 2020, (2) a reprimand on September 9, 2020, for inappropriate conduct, and (3) an admonishment on October 15, 2020, for inappropriate conduct. The Agency dismissed these claims in its Final Agency Decision pursuant to 29 C.F.R. §§ 1614.107(a)(1) for failure to state a claim, and for not following timelines delineated in 29 C.F.R. §§ 1614.105, 1614.106. Upon review we find that 2021002100 2 The Agency dismissed Complainant’s complaint in its entirety for failure to state a claim under 29 C.F.R. § 1614.107(a)(1). The Agency also dismissed the complaint pursuant 29 C.F.R. § 1614.107(a)(5), which permits dismissal of a complaint that alleges a proposal to take a personnel action. The instant appeal followed. Complainant has not addressed the Agency’s dismissal on appeal. The Agency has submitted a statement in response to the appeal, arguing that it properly dismissed the complaint. ANALYSIS AND FINDINGS Noting that Complainant alleged harm from a proposal to take a disciplinary action and had suffered no actionable injury, the Agency dismissed his complaint pursuant to 29 C.F.R. §§ 1614.107(a)(1), 1614.107(a)(5). 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. Riden v. Department of the Treasury, EEOC Request No. 05970314 (October 2, 1998). In the case at hand, Complainant does not claim that he was terminated or even that any formal steps to effectuate a termination had occurred. Rather, Complainant speculates that he will be “wrongfully terminate[d] . . . in the future.” The Commission finds that Complainant has failed to state a claim because he has not shown the Agency caused present harm to a term, condition, or privilege of his employment. The Agency properly dismissed the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), as well as under 29 C.F.R. § 1614.107(a)(5). In addition, the Agency dismissed Complainant’s complaint for not following timelines delineated in 29 C.F.R. §§ 1614.105, 1614.106. Because we find that the complaint was properly dismissed for other reasons, we do not need to consider alternative grounds for dismissal. CONCLUSION Accordingly, the Agency's decision to dismiss the complaint was proper and is hereby AFFIRMED. Complainant did not raise these additional claims in his formal complaint. Consequently, we find that these additional issues are not before the Commission at this time. 2021002100 3 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). 2021002100 4 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 June 14, 2021 Date