EEOC Appeal 2020001334

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sang G., 1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020001334
Agency No. 200J-0506-2020100232
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated November 21, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the
Agency’s Ann Arbor Healthcare System facility in Ann Arbor, Michigan.
On November 10, 2019, Complainant filed a formal complaint alleging that the Agency subjected
him to unlawful retaliation for engaging in prior EEO activity when, on October 8, 2019, he was
subjected to a fact-finding investigation.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state
a claim. The instant appeal followed.
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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ANALYSIS AND FINDINGS
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). When the complainant does not allege he or she is aggrieved within the meaning
of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to
29 C.F.R. § 1614.107(a)(1).
The anti-retaliation provisions of the employment discrimination statutes seek to prevent an
employer from interfering with an employee’s efforts to secure or advance enforcement of the
statutes’ basic guarantees and are not limited to actions affecting employment terms and
conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405
(2006). To state a viable claim of retaliation, Complainant must allege that: 1) he was subjected
to an action which a reasonable employee would have found materially adverse, and 2) the action
could dissuade a reasonable employee from making or supporting a charge of discrimination. Id.
See also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August
25, 2016); Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000).
Here, we concur with the Agency that Complainant failed to allege sufficient facts, which if proven
true, were materially adverse and could have a chilling effect on engaging in protected EEO
activity. Complainant alleges that he was subjected to a fact-finding investigation. However,
Complainant has not explained how he was harmed. He does not allege that he was subjected to
discipline or other adverse personnel action or that this was part of a larger pattern of retaliatory
harassment. 	The complaint, as written, without more, simply does not state a viable claim of
unlawful retaliation.
Accordingly, the Agency's final decision dismissing Complainant's complaint 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.

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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. 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.

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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
August 24, 2020
Date