01a40879
09-01-2005
Robert B. Rossow, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.
Robert B. Rossow v. Department of the Air Force
01A40879
September 1, 2005
.
Robert B. Rossow,
Complainant,
v.
Michael L. Dominguez,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A40879
Agency No. AR000030614
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether complainant established his claim
of harassment on the bases of disability and/or prior EEO activity.
BACKGROUND
The record revealed that during the relevant time, complainant was
employed as an Air Reserve Technician (ART) Support Operations Officer,
GS-0301-12, at the agency's Tinker Air Force Base in Oklahoma facility.
The record indicated that on May 6, 2002, complainant and his supervisor
(Supervisor) met to discuss his performance evaluation.<1> Complainant
was dissatisfied with the evaluation. During the meeting, the Supervisor
indicated that complainant became upset, stood up, and yelled using
inappropriate language. The Supervisor informed complainant to raise his
concerns with the Colonel who issued the evaluation. Complainant left
and returned requesting medical leave. Complainant then provided medical
documentation indicating that he needed time off and a reassignment.
The agency considered creating a Special Assistant position which did
not exist for complainant. When complainant returned, he was sent for
a fitness for duty examination in which it was determined that he could
return to his Support Operations Officer position without restriction.<2>
As a result the Supervisor determined that reassignment was inappropriate.
Complainant returned to work on June 25, 2002. Following his return,
he had several exchanges with the Supervisor which complainant believed
to be harassment on the part of the agency with the purpose of forcing
him to resign.
Complainant sought EEO counseling and subsequently filed a formal
complaint on September 11, 2002, alleging that he was subjected to
harassment on the bases of disability (mental and physical) and reprisal
for prior EEO activity when:
(1) on June 25, 2002, the Supervisor told him that the Special Assistant
to the 507 Commander, GS-0301-12, position that was offered to him did
not exist;
on June 25, 2002, the Supervisor angrily said that his problem with
complainant's medical conditions was that they all happened after the
complainant got �mad� and left on medical leave on May 6, 2002;
on June 25, 2002, the Supervisor told him that he was to remain in
the Operations Administrative Office without an assignment until his
medical evaluation was completed, and then he would be �processed out;�
on July 23, 2002, complainant learned that the Supervisor had not turned
in his Office of Workers' Compensation Program (OWCP) claim to Personnel,
although complainant had given it to him on June 24, 2002; and as of
August 12, 2002, his claim had still not been sent to Personnel;
on August 1, 2002, the Supervisor presented him with a resignation
letter, and a request for reassignment letter, and told complainant to
sign one of them immediately; and
on August 8, 2002, the Supervisor told him to stop �calling around�
to inquire about the status of his Individual Mobility Augmentee (IMA)
application and told complainant that he had not taken the application
to Personnel as promised.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish that
he is an individual with a disability covered by the Rehabilitation Act.
Complainant also alleged that he was harassed based on prior protected
activity. The record indicated that complainant filed a prior EEO
complaint alleging discrimination in which the Supervisor was the
reviewing official. Therefore, the agency determined that complainant
established that he participated in protected activity of which the agency
was aware. The agency then viewed each incident alleged in complainant's
claim of harassment and determined that only claims (2) and (4) could have
been considered patently offensive or objectively hostile. Therefore,
based on its review, the agency determined that the incidents as a whole
were not sufficiently severe or pervasive as to create a hostile work
environment for complainant.
This appeal was filed by complainant without comment. The agency requests
that we affirm its FAD.
ANALYSIS AND FINDINGS
It is well-settled that harassment based on an individual's disability
and prior EEO activity is actionable. In order to establish a claim
of harassment under those bases, the complainant must show that:
(1) he is a qualified individual with a disability covered under the
Rehabilitation Act or, for retaliatory harassment, that he engaged in
protected EEO activity; (2) he was subjected to unwelcome conduct;
(3) the harassment complained of was based on his disability and/or
prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a
basis for imputing liability to the employer. See Flowers v. Southern
Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox
v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
Disability-Based Harassment
As noted above, to establish a claim of disability-based harassment,
complainant must show that he is a qualified individual with a disability
covered under the Rehabilitation Act. An individual with a disability
is one who has, has a record of, or is regarded as having a physical
or mental impairment that substantially limits one or more of his major
life activities. 29 C.F.R. � 1630.2(g).
Major life activities include functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1630.2(i). The term "substantially
limits" means: unable to perform a major life activity that the average
person in the general population can perform; or significantly restricted
as to the condition, manner or duration under which an individual can
perform a particular major life activity as compared to the condition,
manner, or duration under which the average person in the general
population can perform that same major life activity. 29 C.F.R. �
1630.2(j)(1). Factors to be considered in determining whether an
individual is substantially limited in a major life activity include:
the nature and severity of the impairment; the duration or expected
duration of the impairment; and the permanent or long-term impact,
or the expected permanent or long-term impact of or resulting from the
impairment. 29 C.F.R. � 1630.2(j)(2).
The record indicates that complainant has Gastroesophageal Reflux
Disease, lower back pain, sinus, diverticulosis, irritable bowel
syndrome, acute stress disorder, dysthymic disorder with panic attacks,
and depression. Complainant averred that due to his conditions, he is
limited in sitting for long periods of time, in his range of motion due
to his lower back, and in lifting heavy objects. He also noted that
he has problems thinking, interacting with others, and concentrating.
Complainant provided medical documents to show how his conditions
limit him. They indicate that complainant has sleeping difficulties,
interpersonal conflicts, fatigue, difficulty concentrating. However,
none of the documents explain the extent of complainant's difficulties.
Based on the lack of specific evidence and information regarding the
extent of complainant's limitations, the Commission cannot conclude that
complainant is in fact an individual with a disability for purposes of
the Rehabilitation Act. Further, complainant has provided no evidence or
argument to suggest that he had a record of a disability or was regarded
as having a disability. Accordingly, we conclude that complainant failed
to establish the first element of a claim of disability-based harassment.
Reprisal Harassment
We find that the purported harassment occurred in connection with the
agency's processing of complainant's request for another reasonable
accommodation, in particular, his desire for a reassignment to the Special
Assistant position after he returned from his medical leave. As a result
of the agency's consideration and eventual denial of the reassignment, the
events alleged in claims (1) - (6) arose. Claims (1) and (3) involved the
agency's denial of the reassignment to the Special Assistant position.
The Supervisor indicated that when complainant was cleared for his
position as a Support Operations Officer, the agency determined that
they would not have to place him into another position. Therefore,
complainant was kept in his Support Operations Officer position unless
he provided the agency with other medical documentation. Further, the
Supervisor averred that the Special Assistant position would be created
for complainant if he had needed it as an accommodation. The Supervisor
also denied getting �mad� at complainant as alleged in claim (2).
As to claim (4), complainant alleged that the Supervisor delayed
processing of his OWCP claim by not turning in forms to Personnel.
The Supervisor's response seemed to imply that he provided the necessary
information in a timely manner. The Supervisor indicated that although
complainant provided a CA-2 form in June 2002, he received his package
from Personnel regarding complainant's OWCP claim after July 23, 2002.<3>
The Supervisor noted that he had to do much research regarding events
that predated his term as complainant's supervisor.
Therefore, the Supervisor stated that he did not complete the forms and
return them to Personnel on August 21, 2002. Personnel received the
package on August 23, 2002. The Supervisor was notified that changes
were needed which he completed and returned the same day.
We observe that in claim (5) and (6), complainant raised concerns with
the processing of his request for a reassignment to a military position.
The Commission's jurisdiction in the federal sector complaint process
arises from the Rehabilitation Act. This coverage is extended to most
executive agencies within the federal government, including "military
departments as defined in 5 U.S.C. � 102. See 29 C.F.R. � 1614.103(b)(1).
Nonetheless, "uniformed members of military departments" are not covered
by the federal sector process. 29 C.F.R. � 1614.103(d)(1). Therefore,
we note that our jurisdiction over the matter at hand only applies to
the civilian departments of the agency.
In claim (5), complainant indicated that he was found fit for military
and civilian duty by July 14, 2002. He requested reassignment on July
16, 2002, into a military position. The Supervisor provided the letter
to the Major General who found the request to be unacceptable for it
would have been a promotion to a GS-13 position. On July 31, 2002,
complainant then provided the Supervisor with an Application for a
Ready Reserve Assignment (RRA) and an IMA application. The Supervisor
indicated that he researched whether he could sign the transfer form
for complainant. After checking with Civilian and Military Personnel,
the Supervisor confirmed that he could not sign the transfer until
complainant resigned from his ART position. As such, on August 1, 2002,
the Supervisor informed complainant of the situation and provided him
with samples of both a resignation letter and the reassignment letter.
The Supervisor also wanted complainant to understand that he could not
take action on either the RRA or the IMA requests until either one of
the letters was signed.
Finally, in claim (6), complainant indicated that the Supervisor told
him to stop �calling around� on his IMA application and that he did
not take the application to Personnel. The Supervisor clarified the
situation and explained that on August 7, 2002, complainant requested to
be relieved as the ART Support Operations Officer so he could pursue the
IMA position. The Supervisor informed complainant that he would have
to clear the letter prior to signing the IMA transfer. The Supervisor
reviewed the letter and found that it did not conform to the sample
he provided. He contacted someone from Civilian Personnel seeking
further guidance, however the individual was on a temporary detail.
The Supervisor had left a message and was awaiting a call. On August
8, 2002, the Supervisor received three calls from Personnel stating
that complainant was calling to check on his request. After the third
call, the Supervisor contacted complainant and told him to stop calling
concerning his request. The Supervisor explained that he was waiting
on some information and would call complainant as soon as he forwarded
the request to Personnel. Later the same day, the Supervisor received
assistance from Personnel and was told it was legal for him to approve
the IMA request. The Supervisor signed the request and had someone
from Military Personnel pick up the form. The Supervisor then informed
complainant that the paperwork for his IMA request had been forwarded
to Military Personnel.
Therefore, looking at the totality of the circumstances, we find that
the alleged incidents were not severe or pervasive enough to establish
a claim of harassment. The events occurred due to clashes between
complainant and the Supervisor. Complainant believed that the denial of
the reassignment to the Special Assistant Position was a violation of the
Rehabilitation Act. As noted above, complainant has not shown that he is
an individual with a disability for coverage under the Rehabilitation Act.
Accordingly, we find no obligation on the part of the agency to provide
complainant with the requested reassignment.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
September 1, 2005
__________________
Date
1The Supervisor only recently became complainant's supervisor and
therefore was not involved in complainant's evaluation at that time.
2We note that the records show that by June/July 2002, complainant's
physicians indicated that complainant could return to his regular duties
without restriction.
3Complainant erroneously believed he provided a complete OWCP claim form
on June 24, 2002.