01A33401_r
12-16-2003
Beverly B. Johnson v. Department of the Navy
01A33401
December 16, 2003
.
Beverly B. Johnson,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A33401
Agency No. DON-03-65886-016
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated April 7, 2003, dismissing her 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of race and sex when:
Complainant was subjected to the following incidents of harassment from
2000 to September 2002:
In 2000, complainant's supervisor (S1) made daily, unnecessary visits
to complainant's office, micro-managed her work, and repeatedly insisted
that complainant not comply with written, established guidelines;
In July 2002, S1 resumed daily, unnecessary visits to her office;
In August 2002, S1 assigned work already assigned to complainant to
someone else without complainant's knowledge, in order to discredit her;
On August 13, 2002, S1 spoke to complainant in a loud, threatening manner.
When complainant tried to leave her office, he grabbed her arm to keep
her from leaving;
On August 14, 2002, S1 came to complainant's office, blocking the
doorway, after attempting to continue his conversation with her from
the previous day;
In August 2002, the agency's lead attorney attempted to coerce complainant
into waiving her rights;
In August or early September 2002, S1 insisted that complainant serve
on his team and listed her as a member of his team the following week,
after she had repeatedly informed him she did not wish to serve under
his direction.
In September 2002, the agency offered to reassign complainant in an
attempt to coverup the earlier incident of workplace violence with S1.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4)
on the grounds that complainant had raised the same claim in a prior
grievance filed in accordance with a negotiated grievance procedure that
permits claims of discrimination. The Commission agrees with the agency
that the instant complaint was the subject matter of the grievance filed
dated August 27, 2002, and that the complaint was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(4).
Furthermore, to the extent that claims 7 and 8 were not ultimately made
part of the grievance, we find that claims 7 and 8 are properly dismissed
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant has failed to show how she was aggrieved in claims 7 and 8.
Additionally, claims 7 and 8 are insufficiently severe or pervasive so
as to state a claim of harassment.
The agency's decision dismissing the complaint is 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
December 16, 2003
__________________
Date