U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ike D.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 0120160035 Agency No. DIA201500061 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 20, 2015, 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. BACKGROUND During the period at issue, Complainant worked as a Contracting Officer GG13/0301 at the Agency's facility in Washington, District of Columbia. On July 21, 2015, Complainant filed a formal complaint alleging that on several dates from April through July 2015, the Agency subjected him to a hostile work environment and discrimination in reprisal for prior protected EEO activity when: a. On April 24, 2015, Complainant requested justification as to why the Bethesda furniture installation must be pushed back and Complainant's Supervisor responded: "I asked the question!" b. On April 28, 2015, Complainant sent an email to his Supervisor requesting an opportunity to discuss the dispute he had with him, and he responded: "This is nonsense!" The Supervisor also stated that Complainant was taking matters personally and not being a professional. c. During the time leading up to April 27, 2015, Complainant was asked to provide his contractor's Statement of Work (SOW) to another contractor, and when he explained why he could not do that, the Supervisor's attitude began to change in retaliation toward him. d. On May 1, 2015, Complainant received his mid-term performance evaluation and a Letter of Counseling in which three items cited his behavior as a problem. e. During the counseling on May 1, 2015, Complainant continuously asked what behavior must change, and he received the response, "moving on." f. On May 12, 2015, when Complainant asked the Bethesda Chief Program Manager to be mindful of work being completed by multiple contractors, which also involved the contract Complainant managed, he was labeled "cynical." g. On June 23, 2015, during a contracting office meeting held with Complainant's Contracting Officer and with CFO/MS-3 Mission Services leadership, the MS-3 Branch Chief was providing a definition of proprietary information to which the Supervisor responded, "that's not the interpretation of proprietary information and that's why I have a rift with him." When the supervisor stated "him" he was referring to Complainant. h. On July 20, 2015, the Supervisor informed Complainant to speak with the Facilities and Services Deputy Director (F&SDD) for mentoring purposes. Later that morning, Complainant received an email indicating F&SDD's desire to conduct a Personal Management Interview (PMI) on July 22, 2015. i. On July 23, 2015, Complainant received a cancellation notice of future PMIs with F&SDD. j. On July 31, 2015, Complainant was informed by his Supervisor, the Division Chief, and Complainant's new Branch Chief, that Complainant was being removed as the Contracting Officer Representative (COR) and would be relocated to Reston under different leadership (FAC-1C) effective August 10, 2015. Additionally, the Agency determined that the below incidents were part of the hostile work environment claim, as listed above, but that because they were also discrete acts of discrimination, the Agency decided to re-list them separately in its final decision, as separate claims (Claims 2 and 3): 2. based on retaliation, Complainant was discriminated against on May 1, 2015, when Complainant received his mid-term evaluation and a Letter of Counseling with three items citing Complainant's behavior as a problem; and, 3. based on retaliation, Complainant was discriminated against on July 31, 2015, Complainant was informed by his Supervisor, the Division Chief, and Complainant's new Branch Chief, that Complainant was being removed as the Contracting Officer Representative (COR) and would be relocated to Reston [Virginia] under different leadership (FAC-1C) effective August 10, 2015. On August 20, 2015, the Agency issued a final decision. Therein, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.103(a) for failure to state a claim, finding that Complainant failed to state an EEO basis for his claims. The instant appeal followed. On appeal, Complainant contends that during his interview with the EEO Counselor, the definition of "protected activity" was not defined or discussed. Complainant contends that he did not understand the definition of "protected activity" and therefore failed to properly articulate protected activity as it pertained to his discrimination complaint. Complainant contends that his protected activity consisted of his "failure to participate in an illegal activity of sharing proprietary information." Complainant states that he was previously not granted the opportunity to provide witnesses to support his discrimination claim. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R.§ 1614.103(a) provides that individual and class complaints of employment discrimination and retaliation prohibited by Title VII (discrimination on the bases of race, color, religion, sex and national origin), the ADEA (discrimination on the basis of age when the aggrieved individual is at least forty years of age), the Rehabilitation Act (discrimination on the basis of disability), or the Equal Pay Act (sex-based wage discrimination) shall be processed in accordance with this part. EEOC Regulation 29 C.F.R. § 1614.101(b) provides that no person shall be subject to retaliation for opposing any practice made unlawful by Title VII of the Civil Rights Act (Title VII) (42 U.S.C. § 2000e et seq.), the Equal Pay Act (29 U.S.C. § 206(d)) or the Rehabilitation Act (29 U.S.C. § 791 et seq.) or for participating in any stage of administrative or judicial proceedings under these statutes. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. 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, .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). In this case, Complainant has alleged retaliation for of his "failure to participate in an illegal activity of sharing proprietary information." There is no indication, however, that the alleged retaliation was for engaging in activity protected by one of the anti-discrimination statutes over which the Commission has responsibility. The Commission's authority to address complaints only extends to those brought under those listed above. By failing to list a basis for his discrimination, Complainant has failed to state a claim within the Commission's jurisdiction. See Garzino v. Department of the Navy, EEOC Appeal No. 01963329 (November 19, 1996) (finding that claims based on political beliefs fail to state a claim); Stem v. United States Postal Service, EEOC Appeal No. 01951678 (March 1, 1996) (finding that a claim based on union membership was not within the purview of the EEO process). The Commission cannot address actions where there is no alleged EEO basis. The Agency's final decision dismissing the formal complaint for the reason addressed herein 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 (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, Director Office of Federal Operations January 14, 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 0120160035 2 0120160035