01981243
01-08-1999
Brenda McIver-Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Brenda McIver-Smith v. United States Postal Service
01981243
January 8, 1999
Brenda McIver-Smith, )
Appellant, )
)
v. ) Appeal No. 01981243
) Agency No. 4-C-442-0223-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was received by
appellant on October 25, 1997. The appeal was postmarked November 22,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint.
BACKGROUND
Appellant contacted an EEO counselor on August 27, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when she was harassed and threatened with
disciplinary action when her manager told her he would inform the plant
manager that appellant no longer desired to be a supervisor. Informal
efforts to resolve appellant's concerns were unsuccessful. Accordingly,
on September 29, 1997, appellant filed a formal complaint alleging that
she was the victim of unlawful employment discrimination on the bases
of race (black), sex (female), and reprisal (prior EEO activity).
On October 21, 1997, the agency issued a final decision dismissing
appellant's complaint on the grounds that it alleged that a proposal to
take a personnel action or other preliminary step to take a personnel
action, is discriminatory.
In her statement on appeal, appellant alleges that she was subjected to
threats and intimidation by her manager. Appellant further alleged that
the conduct of her manager created a hostile work environment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(e) provides that the agency shall
dismiss a complaint or a portion of a complaint that alleges that a
proposal to take a personnel action, or other preliminary step to taking
a personnel action, is discriminatory.
Appellant alleges on appeal that the proposed action that is the
subject of the instant complaint was part of a pattern of harassment
and intimidation against her in retaliation for her pursuing the EEO
complaint process. The Commission notes that the Management Directive
(MD)specifically provides an exception to the dismissal of an allegation
concerning a proposed action when an appellant alleges that a proposed
action was part of a pattern of harassing the individual for a prohibited
reason. See EEOC MD 110, Chapter 4, III.B.6. Footnote2, page 4-7.
However, the record in this case reflects that in her formal complaint,
appellant solely addressed a single incident: her manager's threat
to take disciplinary action against appellant. 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). We find that appellant
failed to establish a claim of harassment and the dismissal of appellant's
complaint on the grounds of raising a proposed action was proper.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby, AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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(c).
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. 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 (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).
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:
January 8, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations