01982322
04-02-1999
Johnny L. Miller, Appellant, v. Togo D. West, Jr., Secretary, Department of Veteran Affairs,) Agency.
Johnny L. Miller v. Department of Veteran Affairs
01982322
April 2, 1999
Johnny L. Miller, )
Appellant, )
) Appeal No. 01982322
v. ) Agency No. 95-1807
)
Togo D. West, Jr., )
Secretary, )
Department of Veteran Affairs,)
Agency. )
______________________________)
DECISION
On February 9, 1998, Johnny Miller (appellant) timely appealed the
final decision of the Department of Veteran Affairs (agency), which he
received on February 2, 1998, that it had not discriminated against him in
violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791 et seq. Appellant alleged that he was discriminated against
on the basis of his physical and mental disability (Post Traumatic Stress
Disorder and shoulder injury) when a VFW officer relayed to appellant
that he had heard on May 20, 1995, that a Veterans Service Officer (VSO)
made a statement about trying to get appellant fired. The appeal is
accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
BACKGROUND
The record reveals that appellant filed a formal EEO complaint with
the agency on June 15, 1995, alleging that the agency discriminated
against him as referenced above. The agency accepted the complaint,
conducted an investigation, and issued appellant a copy of the Report of
Investigation. Appellant then requested a decision without a hearing.
On January 29, 1995, the agency issued its final decision (FAD) which
found no discrimination. Appellant now appeals the FAD.
The record reveals that some time prior to May 10, 1995, appellant and the
VSO worked together in the same division. As a result of an on-the-job
injury, appellant was transferred out of the division.<1> On May 10,
1995, while attending a funeral for an employee of the agency, appellant
was told by the State Senior Vice-Commander (SSVC) that he heard that the
VSO made a statement about getting appellant fired. The record reveals
that the VSO stated to the Past Commander, VFW (PCVFW) that he wanted
appellant out of the Division after appellant sustained an injury to
his shoulder.<2>
The agency found insufficient evidence to support the finding that the
statement actually occurred. The agency noted that the testimony in
support of the allegation was third-hand hearsay and that no one with
first-hand knowledge testified in support of appellant, but rather denied
appellant's allegations.
We disagree with the agency and find that sufficient evidence exists
to support the finding that the VSO told a third-party that he wanted
appellant out of the division. However, the undisputed record reveals
that the statement was not made to appellant directly or that appellant
received any adverse action as a result of the statement. Accordingly, we
find that appellant failed to state a claim of discrimination. See Zhang
v. United States Postal Service, EEOC Request No. 05970085 (July 17,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1977); Gens v. Department of Defense, EEOC Request No. 05910837
(January 31, 1992) (a remark or comment, unaccompanied by concrete action
(i.e. disciplinary action) is not a direct and personal deprivation
sufficient to render an individual aggrieved.
Assuming, arguendo, that appellant has stated a claim, we nevertheless
find that the one-time statement made by the VSO is not sufficiently
patterned or pervasive enough to alter appellant's work environment.
See Brucelas v. United States Postal Service, EEOC No. 01965994 (October
7, 1998), citing Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th
Cir. 1982) (a single incident or group of isolated incidents will not
be regarded as discriminatory harassment unless the conduct is severe).
"Whether the harassment is sufficiently severe to trigger a violation
of [the Rehabilitation Act] must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or a
mere offensive utterance, and whether it unreasonably interferes with an
employee's work performance." Brucelas v. United States Postal Service,
EEOC No. 01965994 (October 7, 1998). We find that the one-time statement
made by the VSO which was conveyed to appellant, third-hand, is not
sufficiently severe to trigger a violation of the Rehabilitation Act.
Accordingly, based on the foregoing, we find that appellant failed to
sufficiently prove disability discrimination.
In addition, as appellant offered no additional evidence in support of
his claim on appeal, we discern no legal basis to reverse the agency's
finding of no discrimination. Accordingly, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's decision
finding no discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
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:
April 2, 1999
_______________ _______________________
DATE Ronnie Blumenthal, Director
1Appellant does not contend that his transfer was discriminatory.
2The SSVC testified that the PCVFW told him that the VSO made the
statement that if appellant had not accepted a job transfer, the VSO
would have him fired. The SSVC further testified that he told appellant
about the information he received from the PCVFW. The PCVFW and the VSO,
however, categorically deny the allegation. In addition, one agency
employee (W1) testified that another agency employee (W2) told him
that he overheard the VSO say he wanted appellant out of the Division,
following appellant's shoulder injury. However, W2 testified that he
never heard such a statement.