[Redacted], Serena L., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022004951 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Serena L.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2022004951 Agency No. DIA-2022-00042 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated September 15, 2022, 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 former Budget Analyst, Grade GG-10, for the Agency’s Pentagon Joint Staff in Arlington, Virginia. Effective November 2, 2021, the Agency terminated Complainant’s employment during her probationary period. On June 2, 2022, Complainant initiated contact with an Agency EEO Counselor. The parties could not resolve the matter thought the informal EEO counseling process. On July 28, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex (female), religion (Buddhist), and in reprisal for prior protected EEO activity when, between December 2, 2021, and June 1, 2022, Complainant’s former co- worker sent her threatening, vulgar and intimidating (text) messages. 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 2022004951 On September 15, 2022, the Agency dismissed Complainant’s claim for failure to state a claim pursuant to 29 C.F.R. 1614.107(a)(1). The instant appeal followed. ANALYSIS AND FINDINGS Under the Commission’s regulations at 29 C.F.R. §§ 1614.103, 1614.106(a), the Agency must accept a justiciable claim that an aggrieved employee has been subjected to discrimination based on EEO-protected characteristics or because of EEO-protected activities. EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss a complaint that fails to state a claim. Here, the Agency properly dismissed Complainant’s formal EEO complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Commission makes this finding because Complainant did not allege that she had suffered present harm or loss with respect to a term, condition, or privilege of her employment for which there is a remedy under EEOC Regulations. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In other words, Complainant failed to claim that Agency acted in a manner that caused her to suffer direct personal deprivation in terms of employment status. Quinones v. Dep’t of Def., EEOC Request No. 05920051 (Mar. 12, 1992). The record reflects that, beginning in November 2021, Complainant and a co-worker from the Agency began what appeared to be an amicable exchange of texts. In early December 2021, the co-worker purportedly began texting Complainant that he did not trust her and that she was “fluff” (as in, lacking substance). Complainant responded by requesting the co-worker not contact her again. The co-worker apparently resumed friendly texting with Complainant thereafter, but by May 2022, the co-worker purportedly called Complainant “bitch” and “cunt.” In June 2022, Complainant obtained a restraining order against her former co-worker. Even so, we concur with the Agency’s assessment that, Complainant received the coworker’s threatening, vulgar and intimidating text messages only after she was no longer an employee of the Agency. The exchange between both parties, as offense as perceived by Complainant, nevertheless does not reflect a claim of a personal loss or harm to a term, condition, or privilege of her prior Agency employment. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint for failing to state a claim under 29 C.F.R. 1614.107(a)(1) is AFFIRMED. 3 2022004951 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). 4 2022004951 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 January 26, 2023 Date