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).
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