01982670
03-31-1999
George W. Dawson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
George W. Dawson, )
Appellant, )
)
v. ) Appeal No. 01982670
) Agency No. 4A105018397
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim; and also pursuant to 29
C.F.R. �1614.107(b), for failure to bring an allegation to the attention
of an EEO counselor. Appellant alleged that he was discriminated against
on the bases of reprisal (prior EEO activity), when: (1) he was called
a �fair weather carrier� by his supervisor; (2) his sort case was moved
next to the supervisor's desk; and (3) he was issued a 7-day suspension
on September 20, 1997.
On appeal, with respect to allegations (1) and (2), appellant contends
that as a result of the supervisor's remark and the location of his
sort case, he has been the subject of jokes from co-workers and other
supervisors, constituting harassment and a hostile work environment.
It is well-settled that, unless the conduct is very severe, a single
incident or a group of isolated incidents will not be regarded as
creating a discriminatory work environment. See James v. Department
of Health and Human Services, EEOC Request No. 05940327 (September 20,
1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982). The
trier of fact must consider all of the alleged harassing incidents and
remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
The Commission finds that the incidents alleged in the appellant's
complaint are not sufficient, when examined in their entirety, to state
a claim or harassment or hostile work environment, under the law and
regulations cited above. The two incidents in question simply do not
reflect the degree of severity required to sustain an actionable claim
of harassment or hostile work environment. Therefore, we find that the
agency's dismissal of allegations (1) and (2) was proper.
With respect to allegation (3), a note in the EEO counselor's report
indicates that appellant did not inform her about his September 1997,
7-day suspension, mentioning it for the first time in his formal
complaint. A thorough review of the record shows that the appellant was
not counseled on this matter. On appeal, the appellant confirms that
he did not discuss this allegation with the EEO counselor, but argues
that it was improper for the agency to dismiss an allegation which he
did not place in issue.
29 C.F.R. �1614.107(b), clearly states that allegations in a complaint
which were not brought to the attention of an EEO counselor shall be
dismissed by the agency. Here, there is no dispute that allegation
(3) was not brought to the attention of the EEO counselor. Therefore,
we find that the agency's dismissal of allegation (3) was proper.
Accordingly, we AFFRIM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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.
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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.F.R.).
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:
March 31, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations