EEOC Appeal 2020001819

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ivan V.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Logistics Agency (DLA)),
Agency.
Appeal No. 2020001819
Agency No. DLAN-19-0016
DECISION
On December 17, 2019, Complainant filed a timely appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated
November 18, 2019, 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Business Process Analyst, GS-0301-13, at DLA Distribution Headquarters in New Cumberland,
Pennsylvania.
On November 23, 2018, Complainant filed an equal employment opportunity (EEO) complaint
alleging that the Agency subjected him to discriminatory harassment based on race/sex (African-
American male) and reprisal for prior protected EEO activity when:
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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1. On or about July 18, 2018, during a presentation at a meeting in Fort Belvoir, Complainant
distributed handouts as requested by his supervisor, who was the presenter. When he got
to the table of the Chief, Inventory Management, the Chief angrily, loudly and rapidly
asked him, “what is this?!, “who gave you authority to do this?!”, “do you have enough
copies for everyone?!”, “did you email me a copy?!”, etc. As he responded, the Chief made
weird, loud, derisive, mocking laughter.
2. On August 23, 2018, at a large meeting in New Cumberland, Pennsylvania, after the Chief
tossed out a question to the attendees, Complainant gave an informed response, which
included an example about trash in the warehouse along with an email to the Chief’s
subordinate with source material. The Chief replied that she needed a real answer, not
“trash”, and after the subordinate seemingly forwarded his email to the Chief she slammed
her laptop closed and said something to the effect that, “this is exactly what I said I don’t
want.”
The Agency dismissed the complaint for failure to state a claim because Complainant’s
employment was not harmed by the Chief’s alleged rude behavior.
The instant appeal followed. On appeal, though his attorney, Complainant argues that he stated a
claim of harassment/hostile work environment on all his bases of discrimination and separately on
the basis of reprisal because the Chief’s behavior would deter a reasonable employee from
engaging in protected EEO activity.
ANALYSIS AND FINDINGS
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.
The Court explained that an "objectively hostile or abusive work environment [is created when] a
reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives
it as such. Harris, at 21-22. 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, 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.
The Commission has a policy of considering reprisal claims with a broad view of coverage. See
Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission
policy, claimed retaliatory actions which can be challenged are not restricted to those which affect
a term or condition of employment. Rather, a complainant is protected from any discrimination
that is reasonably likely to deter protected activity. See EEOC Enforcement Guidance on
Retaliation and Related Issues, Section B (Aug. 25, 2015) (available at eeoc.gov).

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Complainant does not contend that the Chief, who was located in a different state, perpetrated
other acts of harassment against him. We find issues 1 and 2, without more, even if proven true,
neither rise to the level of actionable harassment, nor would they reasonably likely deter protected
EEO activity.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. 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.

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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 27, 2020
Date