[Redacted], Gerald K., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 22, 2021

Appeal No. 2021000844 (E.E.O.C. Apr. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gerald K.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021000844 Agency No. DON-20-76400-02148 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 15, 2020, dismissing his complaint alleging unlawful employment discrimination in violation of 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 IT Specialist (Internet), GS-2210-11, at the Agency’s Marine Corps Installations Pacific G-6 Division (MCIPAC G-6), Camp Smedley D. Butler in Okinawa, Japan. On September 16, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment on the basis of age. In so doing, Complainant named the Director, Systems Branch (Director) and Team Lead of MCIPAC G-6 as the responsible management officials and included 20 alleged incidents occurring from April 2019 through July 7, 2020. The Agency dismissed all the claims pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. In so doing, it found that all the claims except the most recent claim had been submitted in a prior complaint and subsequently withdrawn. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s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. 2021000844 2 The instant appeal followed. On appeal, Complainant asserts that he requests appeal for two reasons: (1) although he had requested ADR with an intent to resolve the issues, the Agency did not attend ADR “with an open mind, with the idea of being flexible, nor to help put this issue behind us,” which resulted in Complainant being “obliged to file a formal complaint;” and (2) Complainant was not informed about the specifics of not being able to file the same complaint at a later date. He also alleges that he followed the directions of EEOC personnel, naming the Deputy Director, EEO, MCIPAC, as having advised him to make corrections and then resubmit his formal complaint. He includes email correspondence from the Deputy Director, EEO, MCIPAC, dated September 2, 2020, advising him that he has 15 days to clarify his complaint. He also submits statements to rebut evidence of record. The Agency has not submitted a statement or brief in response to the appeal. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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 (April 21, 1994). If Complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Here, the record includes a Pre-Complaint Election Form containing a statement signed by Complainant, dated June 30, 2020, indicating that he was withdrawing his complaint. The record shows that the prior complaint included Complainant’s allegations in the instant complaint that had occurred up to that date. On appeal, Complainant acknowledges that he withdrew that complaint. The Commission has found that where a complainant “knowingly and voluntarily withdrew his complaint .... the Commission considers the matter to have been finally abandoned.” See Tellez v. Department of Transportation, EEOC Request No. 05930805 (February 25. 1994). That said, the dismissal of a complaint is improper if the agency's action in misleading or misinforming the complainant resulted in the dismissal. Perry v. United Stales Postal Service, EEOC Appeal No. 01A45685 (October 17, 2005). While Complainant asserts that he was not informed that he would not be able to refile his complaint, the record shows that he was advised as to his pre-complaint election of withdrawal of the complaint. Additionally, while Complainant alleges that he subsequently filed his complaint upon advice of an Agency’s EEO officer, this occurred after his withdrawal. Therefore, we find the record does not establish that his withdrawal was unknowing or involuntary or was due to the Agency’s having misled or misinformed him. 2021000844 3 Regarding the remaining claim that was not included in the withdrawn complaint, Complainant alleged that, on July 7, 2020, the Director harassed Complainant when (1) he required Complainant turn in his government equipment, approximately three and a half weeks prior to his separation date, because the Director was concerned that the government equipment could accidentally get packed with Complainant’s household good shipment; and (2) Complainant was told that he should telework rather than come into the office, requiring Complainant to use his personal equipment for government business, which included accessing emails that Complainant needed to continue his out-processing. 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. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’.” Following a review of the record, we find that in the instant case, viewing the allegations together and assuming they occurred as alleged, Complainant fails to state a viable claim of a discriminatory hostile work environment. The actions alleged, without more, concern the return of government equipment and employee out-processing and are simply insufficiently severe or pervasive to state a valid claim. Accordingly, the Agency's final decision dismissing Complainant's complaint 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 2021000844 4 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. The court has the sole discretion to grant or deny these types of requests. 2021000844 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 April 22, 2021 Date