[Redacted], Olin M., 1 Complainant,v.Katy Kale, Acting Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2021000937 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Olin M.,1 Complainant, v. Katy Kale, Acting Administrator, General Services Administration, Agency. Appeal No. 2021000937 Agency No. GSA-20-CO-Q-0097 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 23, 2020, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was a former Supervisory Contract Specialist, GS-1102-15, who had previously been employed at the Agency’s facility in Auburn, Washington. On September 17, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability2 when: 1. on March 20, 2020, he received notification that his electronic official personnel file may be annotated to include an adverse finding as a result of an Office of Inspector General (OIG) audit; 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. 2 On his formal complaint, Complainant indicated his alleged bases were disability, age, and sex. However, he subsequently clarified that his only alleged basis was disability. 2021000937 2 2. on May 5, 2020, he received a letter from the Agency’s Office of General Counsel (OGC) requesting that he send multiple documents via electronic mail; and; 3. on May 29, 2020, he became aware that the OIG sent a letter to Congress informing them of the adverse filing against him. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that the claims were a collateral attack on another proceeding. The instant appeal followed. 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). 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 sufficient to constitute a violation of the Rehabilitation Act. In claim (1), he alleges that he was notified that the Agency may annotate his personnel file to include findings of the OIG investigation. However, under these circumstances, a “proposed” personnel action does not cause a direct and personal deprivation sufficient to render Complainant “aggrieved” under our regulations. See Martin v. Dep't of the Treasury, EEOC Appeal No. 01AU050 (Feb. 27, 2001). We also find the Agency’s request for Complainant to send documents by email, as alleged in claim (2), simply does not allege a change in Complainant’s terms and conditions of employment. 2021000937 3 And finally, Complainant’s allegations in claim (3) regarding the actions of the OIG also are insufficient to support a viable claim as the EEO process is not the appropriate forum for such allegations. See Mattocks v. Department of the Navy, EEOC Request No. 05950549 (Aug. 29, 1996) (finding that, since the Commission’s authority is limited to addressed acts of discrimination by a complainant’s employer, and the OIG is considered legally separate from the Agency, Complainant may not maintain an EEO complaint against the Agency concerning the actions of an OIG agent in the course of an investigation). Therefore, we find Complainant’s allegations are insufficient to support a claim of discriminatory harassment. 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 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). 2021000937 4 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. 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 22, 2021 Date