0120112066
11-23-2011
Robert L. Ward, Jr.,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112066
Agency No. ARECUFCRM10NOV05452
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final action dated February 7, 2011, dismissing his 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. Upon review, the Commission finds that
Complainant's complaint was properly dismissed pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Accounting Technician in the TDY/PCS Travel Audit Division of the
Agency’s Corps of Engineers Finance Center in Millington, Tennessee.
On January 6, 2011, Complainant filed a formal complaint wherein he
claimed that the Agency discriminated against him on the bases of
race (African-American), sex (male), color (black), age (51), and in
reprisal for his prior protected EEO activity under Title VII and the Age
Discrimination in Employment Act when on November 19, 2010, Complainant
became aware that hard copy faxes (TDY receipt transmittal forms) were
stacked on his chair while he was absent from work, but his coworkers
did not receive any such hard copy faxes when they were absent from work.
Complainant also claimed that this action constituted harassment.
The Agency dismissed the complaint on the grounds of failure to state
a claim. The Agency stated that in light of the fact that processing
faxes is a required function of Complainant’s position, Complainant
was not rendered aggrieved by the placement of faxes on his chair on
days when he was absent. The Agency determined that Complainant has not
shown how his supervisor’s action adversely affected his employment.
The Agency further determined that the alleged action was not severe or
pervasive enough to alter the conditions of Complainant’s employment
so as to constitute harassment. Finally, the Agency determined that the
complaint failed to state a claim of reprisal. The Agency reasoned that
Complainant failed to allege any adverse effect of the relevant action
on his employment. Thereafter, Complainant filed the instant appeal.
In response, the Agency asserts that even if Complainant’s supervisor
did place faxes on his chair when he was absent, the supervisor was
merely distributing work that Complainant was already required to do.
The Agency notes that Complainant acknowledged that the alleged unequal
distribution of faxes did not manifest in a backlog of receipts to be
processed. The Agency maintains that Complainant’s contention that he
received faxes on days that others did not does not indicate any harm or
loss relating to Complainant’s employment. The Agency asserts that
Complainant’s claim that he suffered stress-related elevated blood
pressure due to the alleged incident does not convert this matter into
a processable claim. The Agency argues that the matter at issue did
not give rise to a materially adverse action. The Agency states that
Complainant has not alleged that he was treated less favorably than his
coworkers or that the unequal distribution of faxes negatively impacted
his performance.
ANALYSIS AND FINDINGS
We find that the alleged incident of hard copy faxes being stacked on
Complainant’s chair while he was absent is of insufficient severity
or pervasiveness to constitute harassment. We further find that the
complaint fails to state a claim under the EEOC regulations because
Complainant failed to show that he suffered harm or loss with respect to a
term, condition, or privilege of employment for which there is a remedy.
See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Furthermore, there is no indication that the alleged Agency
action would have reasonably deterred an individual from pursuing the
EEO process.
CONCLUSION
The Agency’s dismissal of the complaint on the grounds of failure to
state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 23, 2011
__________________
Date
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0120112066
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112066