01A33644_r
02-10-2004
Jimmy Lee Pomier, Complainant, v. Hansford T. Johnson, Secretary, Department of the Navy, Agency.
Jimmy Lee Pomier v. Department of the Navy
01A33644
February 10, 2004
.
Jimmy Lee Pomier,
Complainant,
v.
Hansford T. Johnson,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A33644
Agency No. 02-62381-022
DECISION
Complainant filed four formal EEO complaints. Complainant claimed that
he was subjected to discriminatory harassment on the bases of his race
(African-American) and in reprisal for his previous EEO activity under
Title VII when:
1. His supervisor informed him that he hung two Chief Cooks from a string
and threatened to hang him from the same string.
2. His supervisor said that complainant would stop smiling if he put
holes in a pillowcase and placed the pillowcase over his head.
3. His supervisor yelled at him for ten minutes claiming that he heated
pasta incorrectly.
4. His supervisor attempted to take his picture without his permission.
5. His supervisor changed schedules and assigned him to the grill during
breakfast hour.
6. His supervisor scheduled him to prepare Philly steak sandwiches
during lunch.
7. His supervisor quarreled with him because he cooked rice pilaf
incorrectly.
8. His supervisor videotaped and audiotaped a counseling session in
which he was involved.
9. His supervisor offended him when he said to an Oriental employee
�Don't come back up here unless you order the Oriental tenderloin.�
By final action dated April 24, 2003, the agency dismissed all of
complainant's claims. The agency dismissed claims 1-4 and 8-9 on
the grounds of mootness. The agency stated that complainant was
granted a permanent transfer from the east coast to the west coast
without losing rank and privileges. The agency further stated that
complainant's supervisor is permanently assigned to east coast ships and
he received a letter of reprimand. According to the agency, complainant's
supervisor was also ordered to attend Conflict Across Cultures training
and Leadership Communications: Confidence & Competence training. The
agency dismissed claims 4-9 on the grounds of failure to state a claim.
With regard to claims 4-9, the agency determined that the alleged actions
did not cause complainant to suffer a present harm or loss with respect to
terms, conditions, and privileges of his employment. As for claims 5-7,
the agency also determined that complainant's supervisor did not request
that complainant perform job duties outside of his position description.
On appeal, complainant contends that he felt humiliated by his
supervisor's actions. According to complainant, his supervisor's
racist conduct embarrassed him in front of the shipyard workers.
Complainant maintains that the agency improperly fragmented his claims.
Complainant argues that the claims reflect the harassment he was subjected
to by his supervisor.
In response, the agency asserts that it was complainant and not the
EEO Counselor who identified his complaints separately, rather than as
one continued complaint. The agency argues that complainant has failed
to show that he suffered a present harm or loss with respect to terms,
conditions, or privileges of his employment.
Upon review of the instant complaints, we find that they should be
analyzed as one claim of harassment against complainant rather than
separate claims. In analyzing the nine alleged incidents, we find that
the alleged incidents are not of sufficient severity or pervasiveness
to constitute a claim of harassment. We further find that complainant
has not established that the alleged incidents caused him to suffer an
injury or harm to a term, condition, or privilege of his employment.
Accordingly, the agency's decision dismissing the complaint on the
grounds of failure to state a claim is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 10, 2004
__________________
Date