[Redacted], Tim H., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Mar 23, 2021

Appeal No. 2020001224 (E.E.O.C. Mar. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tim H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2020001224 Hearing No. 550-2018-00417X2 Agency No. HS-FEMA-26228-2016 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 5, 2019, dismissing his 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 At the time of events giving rise to this complaint, Complainant worked as an Electronics Technician at the Agency’s Mobile Emergency Response Support unit in Bothell, Washington. 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 It appears the EEOC Administrative Judge inadvertently used the wrong hearing number (551- 2013-00215X) in her dismissal, and this was picked up by the Agency. A review of the hearing records indicates that the hearing number in our heading is the correct number, especially since the incidents in question occurred in 2016. 2020001224 2 On June 8, 2016, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal when, on April 5, 2016, management failed to respond to Complainant’s request for advanced Leave Without Pay (LWOP) through the Family and Medical Leave Act (FMLA), which Complainant needed due to his disabling condition. The Agency accepted the complaint for investigation. Thereafter Complainant requested a hearing. On October 18, 2019, the EEOC Administrative Judge (AJ) dismissed the complaint for failure to state a claim. The AJ noted that Complainant’s requests for LWOP were generally granted and he was not denied pay or leave to which he was owed. The Agency issued a final order adopting the AJ’s dismissal. 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). Here, we concur with the AJ that Complainant failed to establish that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Unlike dismissals prior to an investigation into the claims, in this case the Agency accepted the complaint, conducted an investigation, and developed an appropriate factual record pursuant to the requirements of 29 C.F.R. § 1614.108. As such, the AJ had the benefit of the evidence developed during that investigation in order to assess the viability of Complainant’s claim. The essence of Complainant’s claim is that management did not respond to his request for LWOP, leave he said he needed due to his disabling condition. Regardless of the alleged silence on management’s part, the evidence gathered during the investigation shows that Complainant’s requests for leave were granted and any question of that on his timecard was corrected. If Complainant is also alleging that the Agency somehow violated the requirements of the FMLA, rather than the employment discrimination statutes, he must raise such claims within that process, not here. In sum, we conclude the AJ correctly determined that the evidence gathered during the Agency’s investigation did not establish that Complainant was sufficiently “aggrieved” to state a viable claim of discrimination. Accordingly, the Agency's final decision adopting the AJ’s dismissal of the complaint is AFFIRMED. 2020001224 3 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). 2020001224 4 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 23, 2021 Date