0120150685
02-23-2016
Sherman K.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sherman K.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.
Appeal No. 0120150685
Agency No. FSA-2014-00604
DECISION
Complainant filed a timely appeal with this Commission from the Agency's November 6, 2014 decision, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Agricultural Marketing Specialist at the Agency's Farm Service Agency (FSA) Kansas City Management Office facility in Kansas City, Missouri.
On August 5, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and age (45) when:
1. On May 19, 2014, he was notified that an Order of Garnishment had been received by the FSA Human Resources Division (HRD) that directed the agency to pay a judgment creditor on his behalf;
2. From February 2014 to May 2014, FSA failed to properly process his garnishment orders, despite his repeated complaints and requests to do so, which resulted in overpayments to a judgment creditor; and
3. On unspecified dates, FSA HRD employees were hostile, offensive, and intimidating in their communications with him regarding his garnishment concerns.
The Agency dismissed the complaint for failure to state a claim. The Agency reasoned that the "crux of this formal complaint centers upon the Complainant's allegations that FSA prematurely instituted a garnishment order to a judgment creditor, and then failed to cease payments upon the expiration of the court order." The Agency concluded that the complaint constituted a collateral attack on another forum. With regard to the claim of harassment, the Agency found that the claims were not severe or pervasive enough to constitute a hostile or abusive work environment.
This appeal followed. On appeal, Complainant summarized his claims as age discrimination and harassment. He restated his allegation that discrimination against him occurred when the Chief Administrative Hearings and Conflict Management staff "conspired and withheld human resources services from [him] by refusing to correctly process garnishments requests which ultimately resulted in overpayments to the judgment creditor and an excessive loss of pay." In addition, he stated his belief that Chief's refusal to process the garnishment correctly, refusal to answer his phone calls, created an offensive work environment.
ANALYSIS AND FINDINGS
Failure to State a Claim
Under the regulations set forth at 29 C.F.R. Part 1614, 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, 1614.106(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). 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).
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). In this case, Complainant has alleged that "several Human Resource actions that were taken on a garnishment request against [him] appeared to be incorrect" and that Human Resources personnel made false statements to cover up illegal and unethical practices. He did not allege that anyone younger or not of his race was treated more favorably. He did not identify the dates of the alleged activities. We find that Complainant's allegations are insufficient to state a claim of age or race discrimination or a hostile work environment.
For these reasons, we find that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (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
February 23, 2016
__________________
Date
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
0120150685
2
0120150685