01a23789_r
10-11-2002
Larry O. Kennedy, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Larry O. Kennedy v. Department of the Navy
01A23789
October 11, 2002
.
Larry O. Kennedy,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A23789
Agency No. 02-69214-004
DECISION
Upon review, the Commission finds that the agency's decision dated May 31,
2002, dismissing complainant's complaint for failure to state a claim
is proper pursuant to 29 C.F.R. � 1614.107(a)(1). In his complaint,
complainant alleged that: (1) on February 22, 2002, his immediate
supervisor requested that he provide medical information to determine
and clarify what medical limitations and restrictions he may have, when
he had not requested any accommodations; and (2) on February 22, 2002,
he initiated a conversation with the supervisor concerning a possible new
staff position, but the supervisor ended the conversation by stating that
he was �not comfortable discussing the new position with [complainant].�
With regard to claim (1), the agency indicated that although complainant
did not provide the requested medical documentation in support of his
leave request, his leave was approved. Complainant does not dispute
the agency's contentions.
With regard to claim (2), the Commission has consistently held that a
remark or comment unaccompanied by concrete action is not a direct and
personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. Henry v. USPS, EEOC Request No. 05940695
(February 9, 1995). Furthermore, there is no evidence in the record to
show that complainant was subjected to any adverse action as a result
of the supervisor's refusing to provide him with more information about
a possible new position. Although complainant claimed that the alleged
claims in the complaint constituted harassment, the Commission does not
find that the alleged actions were sufficiently severe or pervasive
to alter the conditions of his employment such as to state a claim
of harassment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Thus, the Commission finds that the complaint fails
to state a claim. Accordingly, the agency's decision is hereby AFFIRMED.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 11, 2002
__________________
Date