0120072415
09-11-2007
Ken J. Johnson, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Ken J. Johnson,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120072415
Agency No. AREUSCHW06NOV04950
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 8, 2007, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected to
discrimination on the bases of disability (association-his children have
learning disabilities) and reprisal for unspecified prior activity when:
1. A Responsible Management Official (ROM: disability unknown)
issued complainant a letter of warning (LOW), hindering the ability of
complainant and his wife to advocate for their children's rights to a
free and appropriate education;
2. Under the influence of the principal of the elementary school
attended by complainant's children, RMO involved himself in the
educational needs of complainant' children, raised issues and problems
up through complainant's chain of command, and threatened the security
of complainant's employment;
3. RMO accused complainant of not following proper complaint procedures
and basic parameters; and
4. RMO stated that complainant's wife caused stress to the school and
her behavior was impacting the staff and faculty at the school.
The agency dismissed the claims for failure to state a claim. In its
Final Agency Decision (FAD), the agency addressed only retaliation as
a basis and did not address the disability claim. The FAD found that
complainant failed to state a claim of reprisal because complainant
was not alleging reprisal for engaging in prior EEO activity, but for
engaging in efforts to provide an appropriate education for his children.
The FAD noted that such activity was not covered by EEO regulations.
On appeal, the agency has submitted arguments addressing complainant's
claims of discrimination based on being associated with the disabilities
of his children. The agency argues that complainant's claims still fail
to state a claim because complainant cannot show he incurred a tangible
employment action, nor were the agency actions so severe or pervasive as
to create a hostile work environment. Complainant makes no new argument
on appeal.
After thorough review of the record, the Commission finds that, to the
extent complainant alleges that his efforts to ensure that his children's
educational needs were met led to retaliation by the agency, the agency
correctly dismissed complainant's reprisal claims for failure to state
a claim. Advocating for the educational needs of one's children does
not constitute protected activity under EEO laws and regulations.
Complainant also claimed discrimination based on associational disability,
namely the learning disability of his children. The agency on appeal
acknowledges that under 29 C.F.R � 1630.8 it is unlawful to deny "equal
jobs or benefits to, or otherwise discriminate against, a qualified
individual because of the known disability of an individual with whom
the qualified individual is known to have a family . . . relationship."
In other words, if complainant can establish that he was discriminated
against such that he incurred a harm or loss in employment, based on the
disability of his children, he states a claim. In this regard, we note
that in claim 1, complainant alleges that he was issued a LOW because of
the disability of his children. Contrary to the agency's finding, we find
that such an allegation states a claim of disability discrimination since
complainant is alleging a harm in employment based on a valid basis.
Regarding the remaining three claims, we find that complaint fails to
state a claim under the EEOC regulations because he failed to adequately
allege that he was subjected to unwelcome verbal or physical conduct
involving his protected class, that the harassment complained of was
based on his statutorily protected class and that the harassment had the
purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment.
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).
Therefore, we AFFIRM the FAD in part and REVERSE the FAD in part and
REMAND claim 1 for further processing in accordance with the Order set
forth below.
ORDER (E0900)
The agency is ordered to process the remanded claim (claim 1 - disability
claim only) in accordance with 29 C.F.R. � 1614.108 et seq. The agency
shall acknowledge to the complainant that it has received the remanded
claim within thirty (30) calendar days of the date this decision becomes
final. The agency shall issue to complainant a copy of the investigative
file and also shall notify complainant of the appropriate rights within
one hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
September 11, 2007
__________________
Date
2
0120072415
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120072415