Roy Q. Friedman, Complainant,v.Stephen A. Perry, Administrator, General Services Administration, Agency.

Equal Employment Opportunity CommissionNov 17, 2004
01a43910 (E.E.O.C. Nov. 17, 2004)

01a43910

11-17-2004

Roy Q. Friedman, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.


Roy Q. Friedman v. General Services Administration

01A43910

November 17, 2004

.

Roy Q. Friedman,

Complainant,

v.

Stephen A. Perry,

Administrator,

General Services Administration,

Agency.

Appeal No. 01A43910

Agency No. 04-R10-PBS-RGF-02A<1>

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated May 13, 2004, dismissing his formal 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 a formal complaint filed on November 26, 2003, complainant alleged

that he was subjected to harassment and a hostile work environment on

the bases of sex (male) and in reprisal for prior EEO activity.

In its May 13, 2004 final decision, the agency initially determined that

complainant's complaint consisted solely of the following incident:

1. on September 11, 2003, complainant was approached by a co-worker who

was belligerent and challenged him about filing further EEO complaint

activity if the co-worker would accept an invitation to attend the

Oroville Border Station dedication.<2>

The agency however determined that after receiving complainant's e-mail

correspondences dated March 10, 16 and 17, 2004, stating that he was

subjected to harassment and a hostile work environment on unspecified

basis(es), that his claims also consisted of the following three

incidents:

2.a. on March 17, 2004, complainant's immediate Supervisor responded

directly to complainant's customer while he was pursuing the instructions

previously provided by him on how to handle the matter of the phone

lines conduit for Laurier, WA, POE;

2.b. on March 17, 2004, complainant's immediately Supervisor sent him

an e-mail stating, �Then you better update the calendar� regarding the

Border Station trip previously scheduled the week of March 22, 2004; and

2.c. between January 28, 2004, and March 10, 2004, numerous

e-mail messages were exchanged between complainant, his immediate

Supervisor and the Administrative Support staff related to his

enrollment/participation/attendance at the Project Management Training

Course.<3>

The agency dismissed claims (1) and (2)(a) - (c) pursuant to 29 C.F.R. �

1614.107(a)(1), for failure to state a claim, finding that complainant

was not aggrieved. Regarding claim (1), the agency determined that

this single isolated incident did not rise to the level of actionable

harassment or a hostile work environment.

The agency also dismissed claims (2) (a) - (c) on the alternative grounds

of failure to prosecute, pursuant to 29 C.F.R. � 1614.107(a)(7).

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. 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). The Commission's federal sector case precedent has

long defined an "aggrieved employee" as one who suffers a present harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

Here, the Commission finds that complainant has not established that

claims 1 and 2(a) - 2(c) resulted in a personal harm or loss to a term,

condition or privilege of his employment. Moreover, the Commission does

not find that the events described by complainant are sufficiently severe

or pervasive to state a claim of discriminatory harassment. See Cobb

v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

Accordingly, the agency's decision dismissing the complaint was proper

and is AFFIRMED for the reason set forth herein.

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

November 17, 2004

__________________

Date

1In its final decision, the agency

changed its case number from Agency No. PBS-10-SPOK-0402 to Agency

No. 04-R10-PBS-RGF-02A.

2The record contains a document wherein complainant stated that on

October 3, 2003 (and not on September 11, 2003, as noted by the agency),

the co-worker came into complainant's office and asked complainant if he

had anything to do with the co-worker's receipt of the invitation. After

complainant indicated that another party probably sent the invitation,

the co-worker purportedly informed complainant not to worry because he

(the co-worker) was not going to attend; that he was instead going to

spend some time with his family; and that he did not want complainant to

file another EEO complaint if he (the co-worker) attended the dedication.

3The agency inadvertently identified complainant's claims as (2)(a) -

(d), instead of as (2)(a) - (c).