[Redacted], Matt B., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal No. 2021005098 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matt B.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2021005098 Agency No. EU-FY19-141 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 29, 2019, dismissing a formal 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 During the relevant time, Complainant worked as a Transportation Assistant, GS-2102-07, at the Agency’s Grafenwoehr Elementary School in Grafenwoehr, Germany. On March 23, 2019, Complainant filed a formal EEO complaint alleging he was subjected to discrimination on the bases of race, color, and in reprisal for prior EEO activity when, on March 14, 2018, the Department of Defense (sub-components: the US Army and DoDEA) arrested him and failed to support him following his arrest, as well as allegedly stating that he must have “done something” to cause the incident. In his formal complaint, Complainant provided the following narrative in support of his claim. On March 14, 2018, he temporarily parked his car at the school in order to drop off a bus pass at the school’s front office. 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. 2021005098 2 Complainant stated that as he was returning to his car, a Military Police (MP) officer2 asked him if the BMW was his car. Complainant responded that it was indeed his car. Complainant then explained to the MP that he parked his car at the location in question so he could drop off a bus pass. Complainant stated that the MP then yelled at him stating, “I am not done talking to you.” Complainant stated MP pointed his finger at him and told him in an angry tone, “you need to do what I tell you.” Complainant stated he asked the MP why he was being yelled at if he did not do anything wrong. At that point, Complainant stated that the MP yelled at him saying, “do you want me to arrest you?” MP then handcuffed him and transported him to the Provost Marshall’s Office where he was illegally detained and issued a parking ticket. In its April 29, 2019 final decision, the Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency determined that Complainant’s allegations regarding his encounter with a military police officer, who was not employed by the Agency, concerning how he exercised his law enforcement responsibilities fell outside the purview of the EEO complaint process. The instant appeal followed. 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 Agency properly dismissed Complainant’s complaint for failure to state a claim. There is no remedy that can be provided by the administrative EEO complaint process for the alleged actions of the military police officer in this case. Complainant can challenge his arrest and any criminal citations, including the parking ticket, through the appropriate court proceeding for such matters. Moreover, the police officer was active duty military personnel. EEOC, through its 29 C.F.R. Part 1614 process, does not have jurisdiction over the uniformed military. 29 C.F.R. § 1614.103(d)((1). Complainant can pursue a civil rights complaint against the officer in court under statutes other than Title VII. 2 The record reflects that the MP was a military member of the U.S. Army. 2021005098 3 Finally, to the extent that Complainant is alleging that his own supervisors at DODEA were unsympathetic to the situation, we conclude that, at best, this is an allegation of discriminatory harassment which also does not state a viable claim. 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’.” Here, we conclude that the isolated incident alleged, without more, is simply insufficiently severe or pervasive to state a valid claim of a violation of Title VII. CONCLUSION The Agency’s final decision dismissing Complainant’s formal complaint for the reasons discussed above is AFFIRMED.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 3 Because we are affirming the Agency’s dismissal of Complainant’s complaint on the grounds of failure to state a claim, we will not address the Agency’s dismissal of the complaint for untimely EEO Counselor contact. 2021005098 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. 2021005098 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 September 27, 2021 Date