EEOC Appeal 2020000889

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Emmett W., 1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020000889
Agency No. ARFTCAMP19JUN02171
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated July 31, 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 Recreation Supervisor
at the Agency’s Clarksville Base Physical Fitness Center facility in Fort Campbell, Kentucky.
On July 8, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to
discrimination on the basis of race (African-American) when, on June 11, 2019, Complainant was
subjected to harassment.
The Agency dismissed the claim for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
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.

2020000889	2
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an
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 (April 21, 1994). 	If complainant cannot
establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim.
29 C.F.R. § 1614.107(a)(1).
According to his formal complaint and related EEO counseling report, Complainant alleges that
on the date in question he was about to go into his office when he saw a group of soldiers
obstructing the entire hallway while taking an Army Physical Fitness Test. After telling the soldiers
that they could not block the hallway because the other patrons were not able to get to the spin
rooms, one of them said to others in the group, "Hey, guys, I'm doing an Interactive Customer
Evaluation (ICE) comment about this gym because they are always rude." Complainant asked the
soldier to come into his office so that they could talk. The soldier began to yell by saying that every
time he comes into the gym, "You guys are rude and yelling at us to put things back.” Complainant
then told the soldier that Complainant had been up front and had not seen the soldier in the gym.
When Complainant asked the soldier who was it who had been telling him this, the soldier pointed
to the Lead Recreation Assistant and said, "She does." Complainant asked the soldier to identify
the last time the Lead Recreation Assistant had said something to him, and the soldier responded,
“Last week.” Complainant then told him that the Lead Recreation Assistant has not been walking
the floor for about three weeks because Complainant had been up front overseeing the gym.
Complainant alleges that the soldier continued to get upset and said, "I'm a soldier in the Army
and to me you are nothing!" Complainant maintains the soldier made the same statement two
additional times and he threatened to write a negative ICE comment about Complainant.
Complainant then asked the soldier for his name, unit, and telephone number, and told him that
Complainant would be speaking to his commanding officers. Complainant maintains that the
soldier said in a sarcastic way, "Have them call me!" as he left Complainant’s office.
The Commission finds that the complaint fails to state a claim under the EEOC regulations because
complainant failed to show that he was subjected to unwelcome verbal or physical conduct that
was sufficiently severe or pervasive as to unreasonably interfere with his work performance and/or
create an intimidating, hostile, or offensive work environment. See McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982). Nor has he shown he suffered harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the Agency's final decision dismissing complainant's complaint is AFFIRMED.

2020000889	3
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. 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.

2020000889	4
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
August 31, 2020
Date