EEOC Appeal 2020001796

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jeanie P.,1
Complainant,
v.
Linda McMahon,
Administrator,
Small Business Administration,
Agency.
Appeal No. 2020001796
Agency No. 08-19-027
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated November 13, 2019, 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 for the Agency as a Visual Information Specialist,
GS-13 in Washington, DC.
On September 12, 2019, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination based on sex (female), disability, and in reprisal for filing a grievance through
the Agency’s negotiated grievance procedure when:
1. 	On July 30, 2019, an Agency official reported to Complainant that Complainant’s
union grievance had been discussed in the office and said, “I have heard things in
the office.”
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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2. 	On July 16, 2019, an Agency employee spoke to Complainant on the elevator,
telling 	Complainant 	that 	he 	had 	spoken 	to 	“Luckie” 	about 	Complainant’s
grievance.
3. 	On July 26, 2019, a security guard asked Complainant if the details surrounding her
grievance had improved.
4. 	On July 16, 2019, an Agency employee leered at Complainant and said, “you
should smile more.”
5. 	Complainant alleged dissatisfaction with the processing of the instant EEO
complaint from August 13, 2019 through her receipt of the Agency’s Notice of
Right to file on September 12, 2019.
In its final decision, the Agency determined that Complainant failed to demonstrate that she was
subjected to harm with respect to the terms, conditions and privileges of her employment with the
Agency. 	The Agency further found that the claims as stated by Complainant failed to alleged
conduct that was sufficiently severe and pervasive so as to alter the conditions of her employment.
The Agency dismissed Complainant’s complaint pursuant to EEOC Regulation 29 C.F.R.
§1614.107(a)(1) for failure to state a claim. The Agency further dismissed claim 5, which alleged
the processing of Complainant’s informal complaint was discriminatory, 	pursuant to EEOC
Regulation 29 C.F.R. § 1614.107(a)(8). This appeal followed.
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. § 1614.107(a)(1) provides 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. See Diaz v. Dep't of the Air Force. EEOC
Request No. 05931049 (Apr. 21, 1994).
An employee cannot use the EEO complaint process to lodge a collateral attack on another forum's
proceeding, and “A claim that can be characterized as a collateral attack, by definition, involves a
challenge to another forum's proceeding, such as the grievance process, the unemployment
compensation process, or the workers' compensation process.” See Lingad v. United States Postal
Serv., EEOC Request No. 05930106 (Jun. 23, 1994) (finding a challenge to evidentiary ruling in
grievance process fails to state a claim as an EEO complaint).

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An agency shall dismiss a complaint that fails to state a claim under 29 C.F.R § 1614.103 or §
1614.106(a). 	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.
29 C.F.R. § 1614.107(a)(8) provides that the Agency shall dismiss a complaint that alleges
dissatisfaction with the processing of a previously filed complaint. These types of complaints are
commonly referred to as “spin off” complaints, and they do not state an independent claim.
Here, the record reflects that in claims 1, 2 and 3, Complainant is raising a claim directly related
to the Agency's alleged conduct with respect to the confidentiality of Complainant’s grievance
filed through the Agency’s negotiated grievance process. Such claims are outside the purview of
the EEO process and will be dismissed for failure to state a claim pursuant to 29 C.F.R. §
1614.107(a)(1). See Perkins v. United States Postal Serv., EEOC Appeal No. 01A50151 (Apr. 13,
2005); Sorrell v. United States Postal Serv., EEOC Appeal No. 01A45910 (Dec. 22, 2004), request
for reconsideration denied, EEOC Request No. 05A50481 (Mar. 30, 2005).
Concerning claim 4, we find that Complainant has failed to allege that she was subjected to
discriminatory changes in the terms or conditions of her employment. As noted by the Supreme
Court, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the terms or conditions of employment”. Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998). An allegation of a single incident of a harasser coming
uncomfortably close to a complainant, even combined with other types of harassing behavior, is
insufficient to state a claim of harassment. See e.g. Bejar v. Department of Health and Human
Services, EEOC Appeal No. 01A20721 (May 10, 2002) (allegation of single incident of “[invasion
of] personal space” together with allegations of repeated hostile staring and gesturing insufficient
to state a claim of harassment).
Here, we concur with the Agency that Complainant failed to alleged facts, which if proven true
and considered together, would establish that she suffered harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
To the extent that Complainant is alleging that her informal complaint was improperly processed
by Agency EEO officials, we agree with the Agency that this matter was properly dismissed even
if the dissatisfaction is raised with the processing of the instant formal complaint, and not a prior
complaint. 	To wit, the essence of the instant complaint relates primarily to matters attendant
pursuit of a grievance. We determine that the Agency properly determined that Complainant was
indeed provided with EEO counseling, and that she has not described any meaningful claim
beyond a generalized dissatisfaction with advice about the relationship between union grievances
and EEO claims. 	We note and reject, Complainant’s assertion that the instant complaint was
improperly “investigated” as no investigation was initiated because of the Agency’s procedural
dismissal.

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Finally, we find that Complainant has not satisfactorily alleged that the Agency’s purported actions
were reasonably likely to deter her or other from pursuing the EEO complaint process.
The Agency’s final decision dismissing the formal complaint is AFFIRMED.
CONCLUSION
The Agency's final decision dismissing Complainant's complaint is AFFIRMED for the reasons
set forth herein.
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).

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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
September 10, 2020
Date