[Redacted], Farah S., 1 Complainant,v.Gordon Hartogensis, Director, Pension Benefit Guaranty Corporation, Agency.

Equal Employment Opportunity Commission

Feb 9, 2022

Appeal No. 2021004663 (E.E.O.C. Feb. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Farah S.,1 Complainant, v. Gordon Hartogensis, Director, Pension Benefit Guaranty Corporation, Agency. Appeal No. 2021004663 Agency No. 21-013 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 19, 2021, dismissing her 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Actuarial Technical Reviewer, GS-1510-14, at the Agency’s facility in Washington, DC. Complainant also serves as the President of the Independent Union of Pension Employees for Democracy and Justice (“IUPEDJ”). On June 24, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African American), sex (female), color (light brown), age (53), and reprisal for prior protected EEO activity when, on May 14, 2021, she received an email from her supervisor requesting she comply with IT management’s request to upgrade her computer or risk the loss of network access and having to use personal leave and possible discipline. 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. 2021004663 2 She alleges this was after receiving email notification on May 12, 2021, from IT Management, instructing her to upgrade her computer hardware and network or her access would be deactivated and using personal leave would be necessary. The Agency dismissed this claim pursuant to 29 CFR § 1614.107(a)(1) for failure to state a claim under 29 CFR § 1614.103. Complainant filed the instant appeal. On appeal, Complainant contends the Agency’s Labor Management Staff interfered with her work and her supervisor to make her change computers in the middle of a busy time for work and in the middle of litigation for EEO cases and other protected activity work. She contends that she and her supervisor were working together to handle the transition from a desktop computer to a laptop computer. However, Labor Management personnel had Complainant’s supervisor send her an email threatening discipline even though no mandate had officially gone out to say that Complainant had to receive a new laptop. She contends this was done because she had recently filed an EEO complaint concerning their interference with her performance. Complainant requests that the Commission review the decision and find that a hearing is warranted. The Agency contends on appeal that Complainant has put forth no argument or evidence that dismissal of her formal complaint was improper. The Agency states Complainant did not experience any materially adverse consequences as a result of the emails, nor has she alleged that any action occurred as a result of these emails. The Agency contends the complaint was appropriately dismissed because Complainant is not an aggrieved employee. However, the Agency avers that even if the emails could be construed as an adverse action, Complainant has not and cannot produce evidence showing a causal relationship between her protected classes and receipt of the emails, nor has she identified other employees outside her protected classes who were treated differently. 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. Department of the Air Force, EEOC Request No. 05931049 (April 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). The anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee’s efforts to secure or advance enforcement of the statutes’ basic guarantees and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2021004663 3 2405 (2006). However, to state a viable claim of unlawful retaliation, a complainant must allege that: 1) he was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. See also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016); Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Here, although Complainant contends she was targeted because of her prior EEO activity and her Union activity, the record reflects the Agency was undergoing widespread hardware and software upgrades which began in December 2020. Emails were initially sent to numerous non- compliant employees in April 2021 requesting they schedule times to upgrade by April 23, 2021 (although the appointment to upgrade could be later than April 23, 2021), and that failure to do so would result in escalation to their supervisors. Complainant’s failure to schedule an upgrade appointment was then escalated to her supervisor, resulting in the May 14, 2021 email referenced in her complaint. Even taking Complainant’s allegations as true, she has failed to show she was subjected to an action which a reasonable employee would have found materially adverse and that the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Therefore, we find the Agency properly dismissed Complainant’s complaint for failure to state a claim because even taking the facts she has alleged as true, she has not alleged facts sufficient to state either that she is an aggrieved employee or that she was subjected to unlawful retaliation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision. 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. 2021004663 4 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). 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. 2021004663 5 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 February 9, 2022 Date