01A22810_r
07-31-2003
Charles F. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles F. Johnson v. United States Postal Service
01A22810
July 31, 2003
.
Charles F. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22810
Agency No. 1-F-908-0026-01
DECISION
Complainant timely appealed to this Commission from the agency's March 26,
2002 dismissal of his employment discrimination complaint for failure to
state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of race (Caucasian), national origin (American), sex (male), religion
(Lutheran), color (white), disability (stress/anxiety), age, and reprisal
for prior EEO activity when on July 7, 2001, complainant observed
a coworker away from his assigned work area creating unnecessary and
intentional intimidation and stalking behavior which complainant reported
to management by certified letters on July 18, 2001. Management failed
to adequately investigate the incident.
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). To state a claim, complainant must allege present harm inflicted
on the basis of race, sex, religion, national origin, age, disability,
or prior protected activity. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Where complainant alleges
a hostile work environment, his claim is actionable if it sufficiently
severe or pervasive to alter the conditions of complainant's employment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
In its dismissal, the agency found that complainant suffered no harm to a
term, condition, or privilege of employment as a result of the July 18,
2001 incident. Further, the agency concluded that this single incident
was neither severe or pervasive enough to state a claim of hostile work
environment harassment.
A review of the record reveals that complainant believes the coworker has
engaged in a pattern of harassment since 1998. The agency's review of
the claim as a single incident occurring on July 18, 2001 was improper.
Nonetheless, complainant still fails to state a claim.
Complainant provides no information regarding exactly what the coworker
did on July 18, 2001, but the record contains descriptions of other
incidents. In a March 5, 1999 letter, complainant asserts that while
he was walking through the coworker's work area to attend to his next
assignment, the coworker �suddenly� looked-up from his work and stared
at complainant �with the body language of a bully.� On March 4, 2001,
complainant describes another incident where he was proceeding down aisle
4 to his work unit, and the coworker also was in the aisle, but made no
attempt to avoid complainant. Complainant claims that the worker stared
directly at him, and gave complainant a �taunting� smile.
In response to questions from the EEO Counselor, complainant's manager
described other the altercations between complainant and the coworker.
He notes that the coworker also complained that complainant was
stalking him. He claimed the two were engaged in a �childish game� of
�observing� each other throughout the work day. The manager explains
that these �stalking� incidents consist of things like the March 4,
2001 incident, and one of the two making �noises to get [the other's]
attention� while both were clocking-in. These matters are not severe or
pervasive enough to state a claim of hostile work environment harassment,
even when considered together.
CONCLUSION
Accordingly, the agency's dismissal 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
July 31, 2003
__________________
Date