[Redacted], Erik S., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2021004343 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erik S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004343 Agency No. ARMEPCOM21JUN01975 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 30, 2021, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND During the relevant time, Complainant worked as a Human Resources Assistant, GS 5, at the Agency’s Louisville Military Entrance Processing Station in Louisville, Kentucky. On June 21, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) when: 1. On June 2, 2021, a higher-ranking officer (S1) said to another co-worker (C1) that “[Complainant] sucks. Oh, he is listening to us, and he swallows.” 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. 2021004343 2 On June 30, 2021, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, finding that Complainant had not stated a claim of harassment. The instant appeal followed. On appeal, Complainant reiterates his belief that he was subjected to sexual harassment that created a hostile work environment. In support, he contends that his request for a reassignment as a reasonable accommodation was denied and that comments were made about his being terminated before the end of his probationary period. Complainant argues that the EEO Manager “failed to include these comments in his report” and “influenced me to exclude them….” In Complainant’s view, the EEO office “manipulated and bullied” him to exclude items that would bolster his case. The Agency opposes Complainant’s appeal. 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 matter, Complainant alleges that he was subjected to sexual harassment when a higher-ranking officer stated, “[Complainant] sucks. Oh, he is listening to us, and he swallows.” We find the Agency properly dismissed the complaint for failure to state a claim. Complainant has failed to demonstrate that he suffered a harm or loss with respect to a term, condition, or privilege of his employment. The record does not contain any evidence that the comment made by S1 was anything more than an isolated incident or that it was accompanied by any concrete action. Similarly, even if we were to consider Complainant’s assertion on appeal, that “comments” about his possible termination were made, there is no indication that this remark was followed by any adverse action. 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). In addition, claims of a few isolated incidents of alleged harassment usually are not sufficient to state a claim of a hostile work environment. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Obas v. Dep’t of Justice, EEOC Appeal No. 01A04389 (May 16, 2002). To the extent Complainant alleges the conduct was subjectively offensive to him, we note the standard is whether the conduct is objectively offensive. EEO laws are not a general civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” 2021004343 3 Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). For the foregoing reasons, Complainant has not stated a claim of harassment. Lastly, we note that on appeal Complainant also alleges a request for reassignment as a reasonable accommodation was denied. A review of his EEO complaint, reflects that Complainant requested reassignment as a remedy for the instant complaint. In response, on June 21, 2021, the Agency requested clarification from Complainant by June 25, 2021. There is no indication that Complainant provided a reply. To the extent Complainant intended to request a reasonable accommodation for his mental disability, by requesting reassignment as a remedy in his complaint, he is advised to contact the Agency to pursue his reasonable accommodation request. CONCLUSION The Agency’s final decision dismissing the formal complaint for failure to state a claim is AFFIRMED. 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. 2021004343 4 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). 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. 2021004343 5 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 4, 2021 Date