01a61597
07-21-2006
Michael Hardnett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael Hardnett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61597
Agency No. 1H-371-0001-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 12, 2005, dismissing his 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. and the
Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (not specified), sex (male), and reprisal for prior
protected EEO activity1 when:
1. On August 26, 2005 and August 28, 2005, complainant was harassed by
a co-worker who spoke vulgarities and pointed his finger at complainant.
Complainant also noted that management failed to take any action against
the co-worker; and
2. Complainant stated that the agency violated the Equal Pay Act.
The agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. The agency did not respond to complainant's
claim of a violation of the Equal Pay Act.
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. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993), the Supreme Court reaffirmed the holding of Meritor Savings
Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of
the complainant's employment. The Court explained that an "objectively
hostile or abusive work environment [is created when] a reasonable person
would find [it] hostile or abusive:" and the complainant subjectively
perceives it as such. Harris, supra at 21-22. Thus, not all claims
of harassment are actionable. Where a complaint does not challenge
an agency action or inaction regarding a specific term, condition or
privilege of employment, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
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).
Complainant indicated that on August 26, 2005, the co-worker got very
angry and began pointing his finger in his face. Complainant asserted
that the co-worker said "I need to get off the fucking high horse."
The co-worker then leaned over the supervisor and yell at complainant
and told him "I do not know shit about the mail and trying to get close
to me, but [the supervisor] was standing between us." Later, on August
28, 2005, the co-worker confronted complainant in the men's bathroom.
Complainant stated that he pointed his finger at him and stated the
same things he had said on the 26th. Complainant, who is 5'8", also
explained that the co-worker intimidated him based on his height (6'5").
Taking the two events as a whole, we find that complainant failed to show
that the co-worker's actions were severe or pervasive enough to state
a claim of harassment. Therefore, we find that the agency's dismissal
of the harassment claim was appropriate.
We note that the agency did not address claim (2) and that complainant
failed to provide any information regarding this claim. In particular,
complainant failed to assert that this event was connected to his claim
of harassment. Therefore, we find that complainant alleged a separate
claim and distinct claim of discrimination in claim (2). An agency
shall dismiss a complaint that raises a matter that has not been brought
to the attention of an EEO Counselor and is not like or related to
a matter that has been brought to the attention of an EEO Counselor.
29 C.F.R. � 1614.107(a)(2). We note that complainant failed to raise
the matter with the EEO Counselor and complainant has not provided any
information to show that the matter is like or related to the claim of
harassment raised with the EEO Counselor. As such, we find that claim
(2) should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
Accordingly, we affirm the agency's final decision dismissing the
complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 21, 2006
__________________
Date
1 The record indicates that complainant filed a previous EEO complaint,
however there is no information as to which statute he alleged was
violated.
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01A61597
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A61597