[Redacted], Regina M., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 22, 2021

Appeal No. 2022000574 (E.E.O.C. Dec. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Regina M.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000574 Agency No. ARFTWAIN21AUG02779 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 21, 2021, dismissing her complaint of 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Library Technician at the Fort Wainwright Library in Fort Wainwright, Alaska. On September 21, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination in the form of a hostile work environment when: A. On August 26, 2021, she was asked by the Supervisory Librarian (SL) to provide a doctor’s note when she told the SL she was going to the emergency room for a breathing treatment; B. On August 25, 2021, the SL denied her annual leave that she applied for on 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. 2022000574 2 March 31, 2021, for August 28, 2021 to September 6, 2021; C. On August 3, 2021, the SL stated “No! We don’t do that. Soldiers swear, get used to it. We are not the language police,” in response to her asking soldiers not to say “fuck” in the library; D. On August 6, 2021, when the SL denied the annual leave which she applied for on May 7, 2021, for the time frame of September 17-31, 2021. The Agency dismissed all four claims for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency found that Complainant had not alleged that she suffered a harm or loss with respect to a term, condition, or privilege of employment. The instant appeal followed. On appeal, Complainant takes issue with the Agency’s refusal to supply her with copies of the information gathered or properly investigate her claim2. In response, the Agency argues that the complaint was properly dismissed for failure to state a claim because Complainant did not allege that she was subjected to discrimination due to any protected basis under EEO laws. 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. 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). As an initial matter, we note several errors and internal inconsistencies in the Agency’s September 21, 2021 decision. For example, the subject line reads: “Acceptance/Dismissal of Formal EEO Complaint … (emphasis added).” The decision proceeds by stating: “I have dismissed claims A through D in their entirety . . .” However, in the next paragraph, the text reads “I am dismissing the claims A and D for failure to state a claim (emphasis added).” The Agency reasons that Complainant has not identified any changes to his working conditions and notes that remarks without concrete action are insufficient to render one “aggrieved”. 2 EEOC Regulation 29 C.F.R. 1614.107(a) provides agencies with the authority to dismiss a complaint prior to a request for a hearing. In fact, the Commission advises that agencies “process dismissals expeditiously”. EEOC Management Directive 110 (EEO MD-110), at Chapter 5, § IV (August 5, 2015). Consequently, as the Agency was not required to investigate the complaint at this stage of the EEO process, Complainant’s contentions are without merit. 2022000574 3 While the latter reasoning may apply to claim D, Complainant has also raised the issue of leave (claims B and C), which clearly relates to a term, condition or privilege of employment and states a claim. Moreover, in closing, the decision returns to addressing only a portion of the complaint, finding that “dismissal of claims A and B is appropriate.” Additionally, we note that the decision makes no reference to the alleged basis, or lack thereof. Nevertheless, our review of the record reflects that Complainant has not identified a protected basis in her allegation of a hostile work environment. We find that Complainant did not allege, in either her contact with the EEO counselor or in her formal complaint, that any of the alleged incidents were due to a protected basis under any of the statutes enforced by the Commission. Because Complainant has not identified a protected basis, she has failed to state a claim within the meaning of 29 C.F.R. §1614.103. See Smart v. U.S. Postal Serv., EEOC Appeal No. 0120070713 (March 29, 2007). On appeal, Complainant questions whether claim A occurred because she is a female over the age of 40. However, to the extent Complainant intended the question to be an identification of bases, we note that it was not raised before the Agency and, absent a compelling reason, a complainant may not add a new basis on appeal. See Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000). The Agency therefore properly dismissed the complaint for failure to state a claim. CONCLUSION Accordingly, the Agency’s decision dismissing the 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). 2022000574 4 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). 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. 2022000574 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 December 22, 2021 Date