FAD – Settlement Breach

In your formal complaint, you also allege that you were subjected to discrimination and harassment (nonsexual) on the basis of reprisal when, on an unspecified date, FS breached its July 16, 2012 Settlement Agreement (Agreement) with you regarding your prior EEO cases, by leaking information about the Agreement, including the amount of money you received in settlement of your claims.[1]

 

A key concept in civil rights law is the requirement that a complainant be aggrieved by an action of the employer. An aggrieved employee or applicant is one who believes that he has been discriminated against because of membership in a protected class and who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Miller v. United States Postal Service, EEOC Appeal No. 01A54558 at *1 (October 19, 2005), citing Diaz v. Department of the Air Force, EEOC Appeal No. 01932839 (April 21, 1994).

 

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. See Gutkowski v. United States Postal Service, EEOC Appeal No. 01A53985 at *1 (September 13, 2005).

 

Your claim regarding breach of the Agreement is therefore dismissed. The EEOC has held that allegations of agency noncompliance with the terms of a settlement agreement fail to state a claim. See Vetter v. Department of Veterans Affairs, EEOC Appeal No. 01990924 (February 15, 2000). Instead, such allegations must be processed in accordance with § 1614.504(a), which requires a complainant “to notify [the agency’s] EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance.” See 29 C.F.R. § 1614.504(a); Vetter, EEOC Appeal No. 01990924 (agency properly dismissed breach of settlement agreement claim for failure to state a claim, and correctly determined that such allegations must be processed pursuant to 29 C.F.R. § 1614.504); see also Gatewood v. Department of Veterans Affairs, EEOC Appeal No. 01985595 (March 1, 2001) (agency properly dismissed allegations that must be processed pursuant to 29 C.F.R. § 1614.503, regarding noncompliance with EEOC decisions, for failure to state a claim).

 

 

 

Accordingly, your claim of agency noncompliance with the terms of the July 16, 2012 Agreement is dismissed.[2] The regulatory bases for this decision are 29 C.F.R. §§ 1614.107(a)(1) and 1614.504(a).

[1] The Agreement resolved your two prior EEO complaints, and provided that, with limited exceptions, its terms shall remain confidential. See USDA Complaint Nos. FS-2007-00ooo and FS-2009-00000, Agreement, ¶ 3(a) (confidentiality clause).

[2] By copy of this letter, we are referring your claim to the appropriate official. In accordance with 29 C.F.R. § 1614.504(a), any allegation regarding breach of the Agreement should be sent to USDA’s Employment Adjudication Division, 1400 Independence Avenue, S.W., Stop Code 9406, Washington, D.C. 20250. The Agreement also requires you to notify “the Employment Complaints and Adjudication Staff.” See Agreement, ¶ 3(h).

Grievances and Other Forums

If an employee files a grievance – or an MSPB appeal- and he/she has referenced the same issues that they are referencing in their EEO complaint, they can  only have the EEO compliants addressed in one forum, and typically it is the forum that they were able to get to first.

If they get to the grievance process first and raise the same issues that have been raised in the EEO complaint,  the employee cannot then elect to have the issue addressed in the EEO forum also, but only the grievance forum. (See Hadley, Chapter 19 EEO Alternatives I. Negotiated Grievance procedures) for more clarification. “the

Therefore, if an employee checks on their EEO complaint form. “I filed a grievance through the negotiated grievance procedure” you will need to go back to the EEO counselor and find out:

1. When was a grievance filed and

2. What were the issues raised in the grievance.

Ask the Counselor something like this:

Good Afternoon Counselor:

I need to know if any grievances have been filed with regard to the issues raised FS-2014-00ooo. In his formal complint, the Complainant has indicated that he has filed a grievance, (I am assuming with  the Forest Service Council National Federation of Federal Employees.)   At this point we need to determine whether he has filed this grievance on the specific issues that he has raised in his formal EEO complaint.

This is important because it determines an election of forum issue.  An employee may not pursue an allegation of discrimination through both the negotatied grieaven procedure and the EEO complaint process. The employee must shoose one or the other.

If the Complainant did file a grievance, I will need for the file copies of his grievances and any response issued by management, to ensure his election of the alternative forum was accepted. ( I am assuming that you will be able to upload this information into i-complaints, and I will retrieve it from there.)

 

 

 

 

Style Guidelines for Acceptances/Partials

Style Guidelines for Acceptances/Partials

1. Salutations – To whom the letter is addressed is going to change based upon whether or not the Complainant has a representative. If they don’t have a representative, the letter will be addressed to the Complainant directly. If they do, the letter is going to be addressed to the Complainant’s representative and many references to “you” in the letter which typically would be referencing the Complainant are going to change to “you and your client.”

 

2. Pronouns – Pronouns that are used throughout the letter are going to change based upon whether the Complainant is a male or female.

 

3. The Re: – The re: references the complaint number, however if the CP has an attorney then the re: will also provide the CP’s name. Example:

 

 

Re: USDA Complaint No.: FSIS-2015-00000

                                Complainant: Leasea A. Gerewd

 

4. The complaint dates: well first off you have to identify how the complaint got here, was it faxed emailed or snail mailed? If it was snail mailed, your sentence about complaint dates will read:

If it was faxed, your sentence will read: Based on the facsimile transmission date, the complaint is considered filed on September 29, 2014.

 

 

5. Number of claims – Plurality or Singularity of Claim/Claims is going to change based on how many allegations are contained in the Acceptance. If there is only one allegation, you will have to search and find “claims” and change it to claim.

 

6. Classification of Letter – Sometimes put the type of document that it is in all CAPS centered at the top of the letter, please note you do not have to do this for acceptances, but you do have to do this for Mixed CASE COMPLAINT or PARTIAL ACCEPTANCE or AMENDMENT.

 

7. Name of Agency – Spell out the Agency name in the initial paragraph and then next to the agency name, put the initial of the agency in parenthesis next to the agency name, and refer to the agency by initials from there on.
   2014. Example: This letter accepts your formal Equal Employment Opportunity (EEO) complaint of discrimination against the Rural Development (RD), dated October 29, 2014. The RD discriminated against the Complainant when it, blah, blah, blah….

 

8. Bases – List all bases in parentheses, capitalize race, but don’t capitalize anything else.
   1. Example: Whether the Complainant was subjected to discrimination, harassment^[1] (nonsexual)based on race (Black), color (unspecified) and reprisal (prior EEO activity)^[2] when:
   2. Always put a footnote explaining what the prior EEO activity was
9. Capitalization – Capitalize the Complainant when you are referring to a specific person, but not when you are referring to complainants generally.

 

10. Footnotes – footnotes are used to describe particular legal terms that require explanation and/or any special set of circumstances that need to be explained due to some legal issue that is going to arise because of compromised facts, or when certain facts need to be made evident because of a legal issue. For example, something may not be timely, or it can’t be determined if it is timely. That is going to require a footnote. When someone files a complaint on the basis of reprisal, the footnote details exactly what the prior EEO activity was. A lot of times they include some EEOC case law explains why something is being accepted or rejected in a claim. Footnotes speak to the particular facts of a case that need to be mentioned, but can’t be mentioned in the body of the letter because the letter has a pretty strict, concise format.

 

 

[1] The phrase “hostile work environment” is a finding that harassment occurred, and that the harassment was severe or pervasive enough to alter a condition or privilege of employment. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002); Cobb v. Department of Treasury, EEOC Appeal No. 01960215 at *7 (Mar. 13, 1997). The phrase is not an issue or incident but the identification of the result of harassment.

[2] The Complainant’s prior EEO activity consists of the filing of former EEO complaints RD-2012-00307 (informal) and RD-2013-00795 (formal).

 

USDA Agencies

USDA Agencies Agricultural Marketing Service (AMS) AMS facilitates the strategic marketing of agricultural products in domestic and international markets while ensuring fair trading practices and promoting a competitive and efficient marketplace. AMS constantly works to develop new marketing services to increase customer satisfaction. Agricultural Research Service (ARS) ARS is USDA’s principal in-house research agency. ARS leads America towards a better future through agricultural research and information. Animal and Plant Health Inspection Service (APHIS) APHIS provides leadership in ensuring the health and care of animals and plants. The agency improves agricultural productivity and competitiveness and contributes to the national economy and the public health. Center for Nutrition Policy and Promotion (CNPP) CNPP works to improve the health and well-being of Americans by developing and promoting dietary guidance that links scientific research to the nutrition needs of consumers. Economic Research Service (ERS) ERS is USDA’s principal social science research agency. Each year, ERS communicates research results and socioeconomic indicators via briefings, analyses for policymakers and their staffs, market analysis updates, and major reports. Farm Service Agency (FSA) The Farm Service Agency implements agricultural policy, administers credit and loan programs, and manages conservation, commodity, disaster and farm marketing programs through a national network of offices. Food and Nutrition Service (FNS) FNS increases food security and reduces hunger in partnership with cooperating organizations by providing children and low-income people access to food, a healthy diet, and nutrition education in a manner that supports American agriculture and inspires public confidence. Food Safety and Inspection Service (FSIS) FSIS enhances public health and well-being by protecting the public from foodborne illness and ensuring that the nation’s meat, poultry and egg products are safe, wholesome, and correctly packaged. Foreign Agricultural Service (FAS) FAS works to improve foreign market access for U.S. products. This USDA agency operates programs designed to build new markets and improve the competitive position of U.S. agriculture in the global marketplace. Forest Service (FS) FS sustains the health, diversity and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations. Grain Inspection, Packers and Stockyards Administration (GIPSA) GIPSA facilitates the marketing of livestock, poultry, meat, cereals, oilseeds, and related agricultural products. It also promotes fair and competitive trading practices for the overall benefit of consumers and American agriculture. GIPSA ensures open and competitive markets for livestock, poultry, and meat by investigating and monitoring industry trade practices. National Agricultural Library (NAL) NAL ensures and enhances access to agricultural information for a better quality of life. National Agricultural Statistics Service (NASS) NASS serves the basic agricultural and rural data needs of the country by providing objective, important and accurate statistical information and services to farmers, ranchers, agribusinesses and public officials. This data is vital to monitoring the ever-changing agricultural sector and carrying out farm policy. National Institute of Food and Agriculture (NIFA) NIFA’s unique mission is to advance knowledge for agriculture, the environment, human health and well-being, and communities by supporting research, education, and extension programs in the Land-Grant University System and other partner organizations. NIFA doesn’t perform actual research, education, and extension but rather helps fund it at the state and local level and provides program leadership in these areas. Natural Resources Conservation Service (NRCS) NRCS provides leadership in a partnership effort to help people conserve, maintain and improve our natural resources and environment. Risk Management Agency (RMA) RMA helps to ensure that farmers have the financial tools necessary to manage their agricultural risks. RMA provides coverage through the Federal Crop Insurance Corporation, which promotes national welfare by improving the economic stability of agriculture. Rural Development (RD) RD helps rural areas to develop and grow by offering Federal assistance that improves quality of life. RD targets communities in need and then empowers them with financial and technical resources. USDA Offices Departmental Management (DM) DM provides central administrative management support to Department officials and coordinates administrative programs and services. National Appeals Division (NAD) NAD conducts impartial administrative appeal hearings of adverse program decisions made by USDA and reviews of determinations issued by NAD hearing officers when requested by a party to the appeal. Office of Advocacy and Outreach (OAO) The Office of Advocacy and Outreach (OAO) was established by the 2008 Farm bill to improve access to USDA programs and to improve the viability and profitability of small farms and ranches; beginning farmers and ranchers and socially disadvantaged farmers or ranchers. OAO develops and implements plans to coordinate outreach activities and services provided by the Department through working collaboratively with the field base agencies, and continually assessing the effectiveness of its outreach programs. Office of the Assistant Secretary for Civil Rights (OASCR) OASCR’s mission is to facilitate the fair and equitable treatment of USDA customers and employees, while ensuring the delivery and enforcement of civil rights programs and activities. ASCR ensures compliance with applicable laws, regulations, and policies for USDA customers and employees regardless of race, color, national origin, sex (including gender identity and expression), religion, age, disability, sexual orientation, marital or familial status, political beliefs, parental status, protected genetic information, or because all or part of an individual’s income is derived from any public assistance program. (Not all bases apply to all programs.) Office of Budget and Program Analysis (OBPA) OBPA provides centralized coordination and direction for the Department’s budget, legislative and regulatory functions. It also provides analysis and evaluation to support the implementation of critical policies. OBPA administers the Department’s budgetary functions and develops and presents budget-related matters to Congress, the news media, and the public. Office of the Chief Economist (OCE) OCE advises the Secretary on the economic situation in agricultural markets and the economic implications of policies and programs affecting American agriculture and rural communities. OCE serves as the focal point for economic intelligence and analysis related to agricultural markets and for risk assessment and cost-benefit analysis related to Departmental regulations affecting food and agriculture. Office of the Chief Financial Officer (OCFO) OCFO shapes an environment for USDA officials eliciting the high-quality financial performance needed to make and implement effective policy, management, stewardship, and program decisions. Office of the Chief Information Officer (OCIO) OCIO has the primary responsibility for the supervision and coordination of the design, acquisition, maintenance, use, and disposal of information technology by USDA agencies. OCIO’s strategically acquires and uses information technology resources to improve the quality, timeliness and cost-effectiveness of USDA services. Office of the Chief Scientist (OCS) OCS provides scientific leadership to the Department by ensuring that research supported by and scientific advice provided to the Department and its stakeholders is held to the highest standards of intellectual rigor and scientific integrity. It also identifies and prioritizes Department-wide agricultural research, education, and extension needs. Office of Communications (OC) OC is USDA’s central source of public information. The office provides centralized information services using the latest, most effective and efficient technology and standards for communication. It also provides the leadership, coordination, expertise, and counsel needed to develop the strategies, products, and services that are used to describe USDA initiatives, programs, and functions to the public. Office of Congressional Relations (OCR) OCR serves as the USDA’s liaison with Congress. OCR works closely with members and staffs of various House and Senate Committees to communicate the USDA’s legislative agenda and budget proposals. Office of Environmental Markets (OEM) OEM supports the development of emerging markets for carbon, water quality, wetlands, and biodiversity. Office of the Executive Secretariat (OES) OES ensures that all Department officials are included in the correspondence drafting and policy-making process through a managed clearance and control system. Keeping policy officials informed of executive documents enhances the Secretary’s ability to review sound and thought out policy recommendations before making final decisions. Faith-Based and Neighborhood Partnerships (FBNP) USDA has a long history of working with faith-based and community organizations to help those in need, by providing federal assistance through domestic nutrition assistance programs, international food aid, rural development opportunities, and natural resource conservation. Office of the Inspector General (OIG) OIG investigates allegations of crime against the Department’s program, and promotes the economy and efficiency of its operations. Office of the General Counsel (OGC) The Office of the General Counsel (OGC) is an independent legal agency that provides legal advice and services to the Secretary of Agriculture and to all other officials and agencies of the Department with respect to all USDA programs and activities. Office of Tribal Relations (OTR) The Office of Tribal Relations is located in the Office of the Secretary, and is responsible for government-to-government relations between USDA and tribal governments.

Last Date Modified: 05/06/2013

Footnote – Former Allegations Included as Background

In her formal EEO complaint, the Complainant restated numerous allegations from a separate but closely related EEO complaint, FS-2012-00413. Presumably, the Complainant restated the allegations as background for the subject EEO complaint rather than to have them redundantly processed. Otherwise, the allegations would necessarily be dismissed pursuant to 29 C.F.R § 1614.107(a)(I) for stating claims identical to those currently pending before the Department of Agriculture (the Department).

Footnote- Reprisal Because of Spousal EEO Activity

The formal complaint form lists both the Complainant’s request for reasonable accommodation and his wife’s prior EEO activity. See Boyd v. United States Postal Service, EEOC Appeal No. 01A42998 (November 10, 2004) (“unlawful for an agency to retaliate against an employee because his or her spouse, who is also an employee, pursued the EEO complaint process”).

5 Reasons Why Everyone Should Go See Selma

hessianwithteeth

1) It’s historically accurate
The events in the film actually happened. Martin Luther King Jr. did go to Selma and he did lead a march there. History is important, but it is often ignored. This film does a great job of showing history in an accurate yet entertaining light. It is a film that people of all ages can learn from.

2) It teaches about racism and social justice
The Selma march was caused by people being denied their rights. Both African Americans and women had had the right to vote for over 40 years. African American men had actually had the right to vote for nearly a hundred years by the time the Selma march happened. But they were denied that right as a result of continuing racism. Selma teaches about the affects racism can have on people and it shows the importance of standing up for what is…

View original post 264 more words

FAD-Reasonable Suspicion

A key concept in civil rights regulations is the requirement that a complainant raise concerns about employment conditions or decisions in a timely manner. This permits the agency to quickly address problems before liabilities accrue, and while investigation of the facts may be accomplished. After the passage of time, documents may be destroyed, witnesses may retire or die, and memories may fade.

 

The EEOC regulation, 29 C.F.R. § 1614.105(a)(1), states that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or in the case of a personnel action, within 45 days of the effective date of the action. Furthermore, 29 C.F.R. § 1614.107(a)(2) indicates that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits. See Delong v. U.S. Postal Service, EEOC Appeal No. 01A41031 (March 3, 2004) and Kelly v. U.S. Postal Service, EEOC Request No. 05A00985 (September 26, 2002).

 

Here, the Complainant did not contact an EEO Counselor until September 16, 2013, after he was notified for a second time that he was not cleared to wear a SCBA. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered. See Howard v. Department of Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See McLoughlin v. Department of Treasury, EEOC Request No. 05A01093 (April 24, 2003).

 

After careful review of the record and his statement, we believe the Complainant should have reasonably suspected the action to be discriminatory well before September 16, 2013. The Complainant has failed to establish what aspect of the August 6, 2013 letter created any more of a reasonable suspicion of discrimination than the initial June 16, 2013 denial of his clearance. See Brown v. Department of Transportation, EEOC Appeal No. 0120110269 (March 30, 2011) (employee’s receipt of documents after Freedom of Information Act request was insufficient to trigger reasonable suspicion of discrimination). A complainant must act with due diligence in pursuit of his claims. See Sieler v. U.S. Postal Service, EEOC Appeal No. 01A32901 (February 10, 2004). Moreover, to the extent that the Complainant requested reconsideration of the initial denial, the EEOC has consistently held that the utilization of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. Crutches v. Department of Army, EEOC Appeal No. 0120092790 (September 15, 2009), citing Hosford v. Department of Veteran Affairs, EEOC Request No. 05890038 (June 9, 1989).

 

Under 29 C.F.R. § 1614.105(a)(2), an agency shall extend the 45-day time limit when the employee shows that he was not notified of the time limit, was not otherwise aware of it, or there existed circumstances beyond the complainant’s control that prevented timely contact with an EEO Counselor.

 

There is sufficient evidence that the Complainant knew, or reasonably should have known, of the 45-day time limit concerning EEO counseling. Including the subject complaint, the Complainant has been counseled on and filed, whether informally or formally, at least two EEO complaints.[1] Given that his previous complaint included issues related to the terms and conditions of his employment, the Complainant should have reasonably suspected the act alleged in this claim to be discriminatory long before September 16, 2013. Accordingly, no basis for extending the statutory time period exists. This claim is dismissed for untimely EEO Counselor contact. The regulatory basis for this decision is 29 C.F.R. § 1614.107(a)(2).

 

[1] The Complainant’s prior matter was complaint number APHIS-2012-00000.

FAD – 15 Day Time Limit

Untimely Filing

 

In the alternative, the complaint is dismissed for untimely filing. See 29 C.F.R. § 1614.107(a)(2). Another key concept in civil rights regulations is the requirement that a complainant raise concerns about employment conditions or decisions in a timely manner. This permits the agency to quickly address problems before liabilities accrue, and while investigation of the facts may be accomplished. After the passage of time, documents may be destroyed, witnesses may retire or die, and memories may fade.

 

The EEOC regulation at 29 C.F.R. § 1614.106(b) states that a formal EEO complaint must be filed within 15 days of receipt of the NRF. The date a complaint is postmarked or received, as appropriate, by the Department is the filing date. Under 29 C.F.R. § 1614.604(a), all time periods are stated in terms of calendar days unless otherwise noted. The fact that an employee interprets the 15-day period to mean working days will not toll the time for filing a complaint. See Padilla v. Department of the Air Force, EEOC Appeal No. 01A10141 (January 3, 2001); Tate v. Department of Navy, EEOC Appeal No. 01842218 (January 28, 1985).

 

The first day counted shall be the day after the event from which the time period begins to run and the last day of the period shall be included, unless it falls on a Saturday, Sunday or Federal holiday, in which case the period shall be extended to include the next business day. See 29 C.F.R. § 1614.604(d); Skrypka v. United States Postal Service, EEOC Appeal No. 01983041 (June 7, 2000); Root v. Equal Employment Opportunity Commission, EEOC Appeal No. 01861382 (January 5, 1986). Under 29 C.F.R. § 1614.107(a)(2), an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits.

 

The subject EEO complaint is alternatively dismissed because it was not formally filed within 15 calendar days of September 1, 2014, the date the Complainant admits that she first received the NRF. In order to meet the time limit, the complaint should have been filed on or before Tuesday, September 16, 2014. The filing of the formal complaint on September 17, 2014, was one day beyond the regulatory time limit. Therefore, pursuant to 29 C.F.R. §§ 1614.106(b) and 1614.107(a)(2), the complaint is dismissed as untimely. See Tate, EEOC Appeal No. 01842218 (affirming agency dismissal of complaint for untimely filing where complainant filed one day after the 15-day time limitation).

 

FAD – Failure to State a Claim

Claim 2 (Failure to State a Claim)

 

A key concept in civil rights law is the requirement that a complainant be aggrieved by an action of the employer. An aggrieved employee or applicant is one who believes that he has been discriminated against because of membership in a protected class and who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Miller v. United States Postal Service, EEOC Appeal No. 01A54558 at *1 (October 19, 2005), citing Diaz v. Department of the Air Force, EEOC Appeal No. 01932839 (April 21, 1994).

 

To state a claim, a complainant must allege a present harm inflicted on the basis of race, color, religion, sex, national origin, age, disability, genetic information, or prior protected activity. See 29 C.F.R. § 1614.103(a); Diaz, EEOC Appeal No. 01932839 at *2. Specifically, a complainant must assert “a direct, personal deprivation at the hands of the employer.” See Diaz, EEOC Appeal No. 01932839 at *2 (internal quotation marks omitted).

 

Former employees generally cannot state a claim of discrimination based on events that occurred after their employment ended. See Complainant v. Department of Transportation, EEOC Appeal No. 0120132354 (October 29, 2013) (complainant’s allegations regarding “events that [] occurred long after his employment ended” did not relate to any “agency action or inaction regarding a specific term, condition, or privilege of employment nor rais[e] a viable claim of a hostile work environment”); Boandl v. Department of the Treasury, EEOC Appeal No. 0120083588 (January 9, 2009) (“[c]oncerning complainant’s claimed bases[,] with the exception of reprisal, complainant fails to state a claim because th[e] alleged events occurred after he was no longer an employee of the agency” and therefore “the agency’s dismissal of complainant’s claim based on sex, age and disability was proper for lack of standing”). Reprisal is an exception to this general rule. “A former employee may state a viable retaliation claim for protected activity that arose from his or her employment with the agency even if the disputed agency action occurred after the termination of the employment relationship.” See Khatami v. Department of Health and Human Services, EEOC Appeal No. 0120110001 (February 4, 2011). “Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter protected activity.” See Padda v. Department of Justice, EEOC Appeal No. 0120120979 (December 20, 2012) (claim by former employee).  The EEOC has found that allegations by former employees stated a reprisal claim where, after federal employment ended, the employee was not selected for contract work with the agency, see Complainant v. Department of Justice, EEOC Appeal No. 0120064115 (October 12, 2007); Machlin v. United States Postal Service, EEOC Appeal No. 0120070788 (March 29, 2007), where an agency did not include the former employee in a group it solicited to do contract work, see Cernosek v. United States Postal Service, EEOC Appeal No. 0120083075 (September 11, 2008), where an agency requested that a former employee be removed from his contract position, see Complainant v. Department of the Army, EEOC Appeal No. 0120103411 (December 14, 2010), where the agency attempted to damage the professional reputation of the former employee, see Padda, EEOC Appeal No. 0120120979, where an “agency’s actions were designed to intimidate [complainant] and interfere with her pursuit of [] pending EEO matters,” see McCoy v. Department of the Army, EEOC Appeal No. 0120120122 (March 25, 2010), where an “Agency’s actions were designed to intimidate [complainant] and interfere with her right to attend professional conferences held on Agency grounds and open to the public,” see Khatami, EEOC Appeal No. 0120110001, where an agency’s negative feedback delayed the former employee’s certification to practice before the agency, see Boandl, EEOC Appeal No. 0120083588, where an agency provided a negative reference, see Saracino v. Nuclear Regulatory Commission, EEOC Appeal No. 0120111365 (June 16, 2011), and where an agency refused to provide a former employee with an employment reference at all. See Bimes v. Department of Defense, EEOC Appeal No. 01990373 (April 13, 1999).  In contrast, “trivial harms” are not reasonably likely to deter protected activity, and do not state a claim. See McCoy, EEOC Appeal No. 0120100122 (“trivial harms would not satisfy the initial prong of [the retaliation] inquiry”). The EEOC has found that former employees failed to state a reprisal claim where the agency instructed a former employee to return an ergonomic chair, and then took the chair a few days later, see Pleasant v. Department of Housing and Urban Development, EEOC Appeal No. 0120091197 (January 23, 2012), and where the agency made false statements and allegations about a former employee, refused to correct them, and issued memoranda directing that he not be admitted to agency property. See Department of Transportation, EEOC Appeal No. 0120132354.

 

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. See Gutkowski v. United States Postal Service, EEOC Appeal No. 01A53985 at *1 (September 13, 2005).

 

Claim 2 of the subject EEO complaint is dismissed pursuant to 29 C.F.R. § 1614.107(a)(1), because it fails to state a claim. In Claim 2, the Complainant alleges that, over two years after his employment ended, FS allowed an employee with whom it settled an EEO complaint to be unruly and to complete her timesheets in a fraudulent manner. Since the events at issue occurred after the Complainant’s October 2011 separation from FS, he cannot claim any “agency action or inaction regarding a specific term, condition, or privilege of [his] employment,” nor can he “rais[e] a viable claim of a hostile work environment.” See Department of Transportation, EEOC Appeal No. 0120132354. Accordingly, to the extent Claim 2 is based solely on race, sex, or familial status, it is dismissed. See Boandl, EEOC Appeal No. 0120083588.

 

Even if Claim 2 is based on reprisal for the Complainant’s (or his wife’s) prior EEO activity, it still fails to state a claim. Under the circumstances in this case, management’s refusal to appropriately discipline another employee for unruly behavior and time sheet fraud is not the type of agency action that is “reasonably likely to deter protected activity.” See Padda, EEOC Appeal No. 0120120979. There is no suggestion in the record that management’s actions in this regard had the intention or effect of intimidating the Complainant, interfering with EEO activity, or damaging the Complainant’s reputation or job prospects. See, e.g., Khatami, EEOC Appeal No. 0120110001 (intimidation); McCoy, EEOC Appeal No. 0120120122 (interference with EEO activity); Padda, EEOC Appeal No. 0120120979 (damage to professional reputation); Saracino, EEOC Appeal No. 0120111365 (damage to job prospects). Indeed, there is no allegation that the incidents described in Claim 2 were adverse to the Complainant in any way. Instead, it is apparent that, even viewing the facts in the light most favorable to the Complainant, the allegations in Claim 2 amount to no more than the type of “trivial harms” that the EEOC has said are insufficient to state a claim for reprisal. See McCoy, EEOC Appeal No. 0120100122; see also Pleasant, EEOC Appeal No. 0120091197 (instruction to return an ergonomic chair followed by seizure of same); Department of Transportation, EEOC Appeal No. 0120132354 (refusing admittance to agency property or to correct false allegations). The Complainant’s complaint is therefore dismissed for failure to state a claim. See 29 C.F.R. § 1614.107(a)(1).