Jimmy Lee Pomier, Complainant,v.Hansford T. Johnson, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 10, 2004
01A33644_r (E.E.O.C. Feb. 10, 2004)

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