0120160853
05-26-2016
Wes L.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wes L.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160853
Agency No. 200JX0022015104374
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated November 13, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EEO Program Manager at the Agency's Office of General Counsel facility in Pittsburg, Pennsylvania. On October 5, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On February 3, 20152 an Agency Staff Attorney denied Complainant mediation for a prior EEO complaint; and
2. On June 2, 2015, Complainant became aware that the Associate Deputy Assistant Secretary (ADAS) provided false information to the Agency's Office of General and is maintaining and adding to this information in a system of record.
The Agency dismissed the claims for failure to state a claim. Specifically, the Agency found that with regard to claim 1, agencies have discretion regarding whether or not to offer mediation and the denial of mediation cannot form the basis of an EEO complaint. With regard to claim 2, the Agency found that part of that claim was identical to claim 1, in that Complainant is alleging that ADAS's alleged dissemination of false information caused the denial of mediation referred to in claim 1. With regard to the allegation that ADAS maintains a record system that contains false information, the Agency found that Complainant failed to show how he incurred harm by the alleged action, or that the alleged action was reasonably likely to deter Complainant or others from engaging in protected activity.
ANALYSIS AND FINDINGS
We note initially that, on appeal, Complainant contends, among other things, that the Agency has misconstrued claim 1. Complainant states:
[T]he dismissal of my complaint for failure to state a claim dealing with whether the Agency mediate [sic] or did not mediate, or the denial of mediation, is an issue that was never raised by me as a Basis or Claim and is not a focal point of my complaint. Regarding (ADAS) I am not saying that she provided false information to General Counsel. My issue with (ADAS) is that she maintains this false information in a system of record that can be accessed at any time for any purpose.
Appellate Brief, p.4.
We note that a review of Complainant's Formal Complaint shows that in box 9 of the Formal Complaint Form 4939, Complainant merely wrote "Harassment (non-sexual) Hostile Work environment."
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Where a complainant alleges retaliation, the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998).
To the extent Complainant is alleging that he was denied mediation, we note that the Agency correctly noted that the decision to offer Alternative Dispute Resolution (ADR) or mediation is discretionary. See EEOC Management Directive 110 (MD-110), 3-4. (Agencies have discretion to determine whether a given dispute is appropriate for ADR. Agencies may decide on a case-by-case basis whether it is appropriate to offer ADR). We do not find that the denial of mediation or ADR to be something that is reasonably likely to deter Complainant or others from engaging in protected activity and we find that such an allegation fails to state a claim of reprisal.
With regard to ADAS allegedly maintaining "false information in a system of record that can be accessed at any time for any purpose" we similarly find that Complainant fails to state a claim because he has not shown he was subjected to adverse treatment.
In claim alleging harassment, we note that in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, such as the complaint at issue here, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Whether claim 1 is included or not, we find that Complainant has not shown that the action, or actions, complained of is/are sufficiently severe to state a claim of harassment.
CONCLUSION
The Dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
May 26, 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 The Dismissal states that Complainant gave the date as July 1, 2015 but that the record showed the correct date was February 3, 2015.
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