Johnny L. Miller, Appellant,v.Togo D. West, Jr., Secretary, Department of Veteran Affairs,) Agency.

Equal Employment Opportunity CommissionApr 2, 1999
01982322 (E.E.O.C. Apr. 2, 1999)

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.