[Redacted], Pearl B., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Nov 30, 2021

Appeal No. 2021004576 (E.E.O.C. Nov. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Pearl B.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2021004576 Agency No. 2021-0037-HQ DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 15, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Environmental Protection Specialist, GS- 13 at the Agency’s Office of Air Quality Planning and Standards/Geographic Studies Group in Research Triangle, North Carolina. On April 27, 2021, Complainant filed a formal EEO complaint claiming that she was discriminated against based on race, national origin, sex, color, disability and in reprisal for prior protected EEO activity when, on February 24, 2021, Complainant’s immediate supervisor improperly asked Complainant if she would like potential training and detail opportunities to another division. knowing that she had negative experiences with previous details. In its July 15, 2021 decision, the Agency dismissed the instant formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant was not 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. 2021004576 2 aggrieved, and the claim was not sufficiently severe or pervasive enough to state an actionable harassment claim. The instant appeal followed. On appeal, Complainant asserts that her formal complaint does state a claim. Complainant identifies several complaints she has previously filed or are currently pending before the Commission.2 ANALYSIS AND FINDINGS 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. Here, the Agency dismissed Complainant’s harassment complaint finding that it was not sufficient to support a hostile or abusive work environment 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 her supervisor asked her about potential training and detail opportunities even though the supervisor allegedly knew that Complainant had previous difficulties with the mentioned details. However, there is no indication that Complainant was required to take the detail. Additionally, while Complainant may have felt offend by her supervisor’s inquiry, we do not find that this isolated incident is sufficiently severe or pervasive to set forth an actionable claim of harassment. We have held that claims of isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995). Additionally, this claim 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 matter raised herein would not indicate that she has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). 2 While Complainant has included these prior and current complaints in her appeal brief, the instant complaint is the only complaint at issue. 2021004576 3 CONCLUSION The Agency’s final decision dismissing the formal complaint for failure to state a claim 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). 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. 2021004576 4 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 November 30, 2021 Date