Thomas C.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Nov 28, 2018

20190000253 (E.E.O.C. Nov. 28, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Thomas C.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 20190000253

Agency No. GSA-18-R2-P-0086

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's final decision dated August 27, 2018, dismissing a formal
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

During the period at issue, Complainant worked as a Contracting Officer at the Agency’s Northeast
and Caribbean Region office in New York, New York.

On August 1, 2018, Complainant filed a formal EEO complaint alleging the Agency subjected him
to discrimination based on race, national origin, sex, color, age, and in reprisal for prior protected
EEO activity when:

1. Complainant's Acquisition Director allowed staff to hinder his work process by
overloading him with requisitions that were incomplete and deficient; and

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.
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2. Complainant's immediate supervisor tried to put words in Complainant's mouth and
wrote false statements about him.

The Agency dismissed the formal complaint for failure to state a claim under 29 C.F.R.
1614.107(a)(1).

The instant appeal followed. On appeal, Complainant attached emails that were dated May and
September of 2018. Complainant wrote that “management has also lowered my rating due to union
activities.”2

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which fails
to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially
under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for
employment of the agency against which the allegations of discrimination are raised. In addition,
the claims must concern an employment policy or practice which affects the individual in his or
her capacity as an employee or applicant for employment. 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.
Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).

Both subject claims fail to state a claim, as they do not address a personal loss or harm to a term,
condition, or privilege of employment. Moreover, even if proven to be true and viewed in a light
most favorable to Complainant, the matters raised would not state a viable claim that Complainant
has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions
of his employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Finally, the alleged Agency actions were not of a type reasonably likely to deter
Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request
No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20,
1998).

The Agency’s final decision dismissing the formal complaint for failure to state a claim is
AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

2 To the extent that Complainant is contesting his performance evaluation for the first time on
appeal, he may contact an EEO Counselor to pursue that matter as a new claim. We will not
discuss this claim further in this decision.
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RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.

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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

November 28, 2018
Date