0120070275
04-16-2009
Gary Powell, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Gary Powell,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120070275
Hearing No. 560-2006-00064X
Agency No. ARLWOOD05MAR07537
DECISION
Complainant appeals to the Commission from the agency's decision dated
September 15, 2006, finding no discrimination. In his complaint, dated
May 11, 2005, complainant, a Work Management Programs Specialist, GS-09,
Work Management Branch, Operations Division, Directorate of Public Works,
Fort Leonard Wood, Missouri, alleged discrimination based on disability
(post traumatic stress disorder) when on February 23, 2005, his request
for a reasonable accommodation was not granted. After completion of the
investigation of the complaint, complainant requested a hearing but later
withdrew the request. The agency then issued its decision concluding
that it asserted legitimate, nondiscriminatory reasons for its action,
which complainant failed to rebut.
Complainant claimed that his medical condition did not affect him until
his female coworker1 continuously filed sexual harassment charges (6
charges) against him. Complainant indicated that these charges were
investigated by the agency and "no contact rule" was placed between
him and the female employee. Complainant claimed that he was denied
his request for a non-violent or non-hostile work environment and the
harassment to be ceased.
Complainant's supervisor stated that during the relevant time, complainant
informed him that complainant would provide him with medical documents
that list appropriate reasonable accommodations. The supervisor indicated
that complainant, however, did not provide management with any medical
documentation. The supervisor further indicated that later in August
2005, complainant requested and was provided a hand held tape recorder
for him to use when he noticed signs around the installation that were
in need of repair, since he would forget about it by the time he returned
to his office.
After a review of the record, we agree with the agency that under the
circumstances in the instant case, complainant's request for a non-hostile
work environment or a stress-free work environment may not, in this
case, be a request for reasonable accommodation for his disability.
It is noted that under the regulations, the agency has a duty to
investigate its employee's sexual harassment complaint. Even if the
request for a non-hostile work environment could be considered to be a
request for a reasonable accommodation in this case, complainant did not
specifically explain to the agency how he could be accommodated or why
such accommodation was necessary. Therefore, assuming (without deciding)
that complainant was an individual with a disability, we find that
complainant failed to show that he was denied a reasonable accommodation
or that any agency actions were motivated by discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
4/16/09
__________________
Date
1 The agency noted that this employee subsequently retired from employment
on February 28, 2006.
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0120070275
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013