Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency. Appeal No. 0120150322 Agency No. GSA14R5AK0128 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated October 15, 2014, 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 a Contract Specialist at the Agency's facility in New York, New York. On September 22, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On or about August 21, 2014, Complainant, while serving as the representative for another employee, was not given an extension by the Agency EEO Officer to review a Draft Report of Investigation; and 2. On or about June 14, 2014, the Agency EEO Officer intimidated an employee being represented by Complainant to change representative in order to process the employee's case. The Agency dismissed the claims for failure to state a claim. The Agency further found that claim 2 had not been brought before the attention of an EEO Counselor and was not like or related to claims brought before the EEO Counselor. ANALYSIS AND FINDINGS The Agency found that Complainant was in fact granted the extension requested in claim 1, making the matter moot. We find, however, that the Agency correctly found that Complainant failed to state a claim. We further find that claim 2 similarly should be dismissed for failure to state a claim. 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). In the instant case any harm from the Agency's alleged actions would be incurred by the employee or employees being represented by Complainant, and not Complainant himself. As such Complainant fails to state a claim. On appeal, Complainant argues that it is the taxpayers who suffered a harm from the Agency's actions because as an employee and union member, Complainant knows and understands how the Agency operates, while attorney representatives have to spend time and money learning basic background information about the work environment. As such, Complainant essentially argues, if the Agency is successful in frustrating him from representing employees in their claims, those employees are more likely to use attorneys instead of Union representatives, thus resulting in higher costs which ultimately are borne by the taxpayer. Even assuming Complainant is correct that employees will switch to using attorneys instead of union representatives, such alleged "harm" to the taxpayer is not the type of harm or loss "with respect to a term, condition or privilege of employment" envisioned by Diaz because the harm is not incurred by Complainant. CONCLUSION The Dismissal 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 April 16, 2015 __________________ Date 2 0120150322 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120150322