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).