Beverly B. Johnson, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 16, 2003
01A33401_r (E.E.O.C. Dec. 16, 2003)

01A33401_r

12-16-2003

Beverly B. Johnson, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.


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