[Redacted], McKinley P., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Mar 24, 2022

Appeal No. 2022000884 (E.E.O.C. Mar. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 McKinley P.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2022000884 Agency Nos. 2021-0047-R05 and 2021-0056-R05 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 8, 2021, 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 period at issue, Complainant worked as a Financial Analyst, GS-13, at the Agency’s Water Division, State and Tribal Program and Support Branch in Chicago, Illinois. On June 10, 2021 and August 2, 2021, Complainant filed two formal EEO complaint which the Agency consolidated. Complainant’s two complaints consisted of the following matters: Complaint 1 (Agency No. 2021-0056-R05): Whether the Agency subjected Complainant to unlawful retaliation for prior protected EEO activity when: 1. On or about May 6, 2021, Agency Counsel engaged in one-sided discussions with an EEOC Administrative Judge concerning EEOC Case No. 440-2021-00182X (EEO Complaint No. 2020-0066-R05); and 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. 2022000884 2 2. Agency Counsel requested the EEOC to dismiss the case from hearing before the Agency complied with the related provisions of the settlement agreement on EEO Complaint No. 2020-0066-R05. Complaint 2 (Agency No. 2021-0047-R05): Whether the Agency subjected Complainant to discrimination based on reprisal for prior protected EEO activity when: 1. Unidentified staff members from the Regional Comptroller Branch failed to advise Complainant to turn off his camera for the virtual conference calls on April 2 and 20, 2021; 2. Unidentified Agency officials may have spread “demeaning and/or disparaging” information about Complainant to other employees; and 3. From April 26, 2021 to May 27, 2021, EEO officials improperly processed Complainant’s informal complaint on the subject EEO complaint. In its November 8, 2021 final decision, the Agency dismissed the formal complaints on several procedural grounds. First, the Agency dismissed Complaint 1, pursuant to 29 C.F.R. § 1614.107(a)(8), finding that the complaint alleges dissatisfaction with the processing of a prior EEO complaint. Additionally, the Agency dismissed Complaint 1, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Second, the Agency dismissed Complaint 2, claims 1 and 2, pursuant to 29 C.F.R. §1614.107(a)(1), for failure to state a claim. The Agency determined that Complainant was not an aggrieved individual. Finally, the Agency determined that Complaint 2, claim 3, concerned dissatisfaction with the processing of the instant complaint. The Agency asserted that an inquiry was conducted by its Office of Civil Rights found that the quality of the EEO counseling process neither had an adverse impact upon the processing of Complainant’s complaint nor had an adverse impact upon Complainant’s ability to participate in the EEO process. The instant complaint followed. ANALYSIS AND FINDINGS Dissatisfaction with EEO Process (Complaint 1) The regulation at 29 C.F.R. § 1614.107(a)(8) states that an agency shall dismiss a formal complaint that alleges dissatisfaction with processing of a previously filed complaint. Here, Complainant is alleging that the Agency engaged in inappropriate conduct during the EEO process in his prior complaint, Complaint No. 2020-0066-R05. Therefore, we find that the Agency properly dismissed Complaint 1. Because we affirmed the Agency’s dismissal of this complaint on this procedural ground, we need not address the Agency’s alternative grounds for dismissal. 2022000884 3 Failure to State a Claim (Complaint 2, claims 1 and 2) 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). Here, Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of his employment. Complainant asserts that management failed to instruct him to turn his camera off during two Microsoft Teams (virtual) meetings, and consequently, Complainant was the only non-management participant with his camera on. However, aside from embarrassment, Complainant has not indicated how he was harmed by having his camera on during these meetings. Additionally, Complainant asserts that unidentified management officials made disparaging comments about him. However, Complainant failed to indicate the nature of these comments or how or if these comments negatively impacted his employment. As a result, the nature of Complainant’s claims is of a type that typically arises out of workplace communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even if proven to be true and viewed in a light most favorable to Complainant, the matters raised would not indicate that he has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment in violation of Title VII. See Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Additionally, there is no indication that these allegations would reasonably deter an employee from pursing the EEO process. Therefore, the Agency properly dismissed these claims for failure to state a claim. Dissatisfaction with EEO Process (Complaint 2, claim 3) Again, allegations of dissatisfaction do not give rise to an independent claim of discrimination or unlawful retaliation. We note on appeal, Complainant does not dispute the Agency’s determination in its final decision that the Office of Civil Rights found that the quality of the EEO counseling, in the instant complaint, did not adversely impact the processing of Complainant’s complaint, and as a result, Complainant was afforded the opportunity participate in the EEO process. Therefore, we need not address this matter further in our decision. CONCLUSION The Agency’s final decision dismissing the formal complaints for the procedural grounds discussed above is AFFIRMED. 2022000884 4 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). 2022000884 5 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 March 24, 2022 Date