U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leif S,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120161819 Agency No. 16-62204-00926 DECISION On March 29, 2016, Complainant filed a timely appeal with this Commission from the Agency's decision dated March 17, 2016, 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was retired. He was a volunteer with AFGE Local 1482, serving employees as a representative at the Agency's Marine Corps Logistics Base in Barstow, California. On February 24, 2016, Complainant filed a formal complaint alleging that on January 7, 2016, the Agency discriminated against him based on his race (Mexican-American), national origin (Mexico), sex (male), religion (Roman Catholic), color (Brown), disability (physical), age (71), and reprisal for prior protected EEO activity when at an alternative dispute resolution (ADR) session on his client's case, the Agency's attorney representative told Complainant "I don't care what you say, and I don't care what happened in Yermo repair division", and when Complainant told the Agency representative he was going to quote him, he replied "I don't care." Complainant wrote that after his client said he got his job through connections, and Complainant said there is a lot of preferential treatment and sexual favors in return for people getting promoted at Barstow and asked the representative if he heard that, the Agency's representative said the above things. The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee or applicant for employment with the Agency, and that statements made during mediation cannot be used as grounds for an actionable discrimination claim. On appeal, Complainant argues that the Agency's representative interfered with an equal employment opportunity (EEO) proceeding by being intimidating, and while doing so discriminated against him and his client. In opposition to the appeal, the Agency supports its final decision and adds that Complainant was not harmed. ANALYSIS AND FINDINGS Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 3, III.H (Spin-Off Complaints), 3-9 (Revised Aug. 5, 2015) provides that nothing said or done during attempts to resolve a complaint through EEO ADR can be made the subject of an EEO complaint. The Agency representative's alleged statements made in EEO ADR fall squarely within this protection. 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Complainant was not harmed by the Agency's representative's comments, nor would they reasonably likely deter EEO activity. Accordingly, the Agency's 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 July 7, 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 0120161819 2 0120161819