01991832
09-14-2000
Mark Natalie, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Mark Natalie v. Department of Veterans Affairs
01991832
September 14, 2000
.
Mark Natalie,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01991832
Agency No. 97-1520, 97-1989
DECISION
Mark Natalie (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his complaints of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleged that he was subjected to harassment on the basis of
disability (vertigo) and reprisal (prior EEO activity) when:
(1) on January 6, 1997, he was called into a meeting with his supervisor
but was not allowed to bring his EEO representative; berated about his
physician's report dated December 16, 1996; and offered a Work Study
Coordinator position only if he would work in the office five days per
week;
in April and May 1997, the facility director made no attempt to resolve
his prior complaint.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Contact Representative at the agency's Denver, Colorado facility.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed formal complaints on April 28, 1997
(Agency Case No. 97-1520, claim 1) and July 11, 1997 (97-1989, claim 2).
The agency consolidated these complaints and then forwarded them to the
Denver District EEO office to be consolidated with an earlier filed case
already pending a hearing, Agency Case No. 97-1521.<2> Complainant,
however, requested that these cases not be consolidated for hearing,
stating that he wanted the agency to conduct an investigation into
the allegations raised in the instant complaints. The Denver District
EEO office therefore returned Agency Case Nos. 97-1520 and 97-1989 to
the agency for investigation. 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. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614, the agency issued a final decision.
In its FAD, the agency first noted that the question of whether the agency
failed to reasonably accommodate complainant was not at issue in the
instant complaints, but was raised in a complaint pending before an EEOC
Administrative Judge (AJ). The agency then concluded that complainant
failed to establish that he was discriminated against on the basis of
disability or reprisal. The agency found that complainant failed to
establish that he is a qualified individual with a disability within the
meaning of the Rehabilitation Act because he did not establish that his
condition substantially limited a major life activity.<3> The agency
went on to find that complainant failed to establish that the incidents
described constituted harassment.<4>
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency harassed him over
a two year period when he requested a reasonable accommodation for
his disability. He notes that the current complaints do involve the
reasonable accommodation issue, as he alleged a continuing violation
based on the agency's failure to accommodate him. He argues that the
agency's attack on his medical evidence exacerbated his illness and
increased his disability. In response to complainant's appeal, the
agency requests that we affirm its FAD.
FINDINGS AND ANALYSIS
As an initial matter, we note that the agency concluded that the issue
of whether complainant's supervisors failed to provide a reasonable
accommodation for his disability was not raised in the instant
complaints, but was raised in a separate complaint pending before an
EEOC AJ as Agency Case No. 97-1521. The record establishes that Agency
Case No. 97-1521 does involve the reasonable accommodation claim and
was pending before an AJ when the instant FAD was issued. We find,
however, that complainant also raised the claim in one of the instant
complaints and that the agency's decision not to address it in the
FAD is tantamount to a dismissal. See Kapp v. Department of the Navy,
EEOC Request No. 05940662 (January 23, 1995).
Commission regulations provide that the agency shall dismiss claims that
state the same claim that is pending before or has been decided by the
agency or the Commission. See 64 Fed. Reg. 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)).
In the case at hand, to the extent that the instant complaints raise
the reasonable accommodation claim, they are a mere elaboration of the
prior complaint. Accordingly, we find that the reasonable accommodation
claim was properly dismissed.
Turning to complainant's claim of harassment on the bases of reprisal
and disability, and assuming for the purposes of this decision that
complainant is an individual with a disability within the meaning of
the Rehabilitation Act, we find that complainant has failed to establish
a prima facie case of harassment. To establish a prima facie case of
harassment, complainant must show that the harassment complained of was
sufficiently severe or pervasive. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance
on Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). In the case
at hand, the harassment claims involves two incidents: a meeting to
address complainant's accommodation request and job concerns in which
S1 was allegedly rude to complainant; and an agency official's refusal
to discuss informal resolution of a complaint after the investigation.
The Commission has repeatedly found that unless the conduct is very
severe, a group of isolated incidents will not be regarded as creating
a hostile work environment. See Phillips v. Department of Veterans
Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Department
of Health and Human Services, EEOC Request No. 05940481 (February 16,
1995); James v. Department of Health and Human Services, EEOC Request
No. 05940327 (September 20, 1994); see also Harris v. Forklift Systems,
Inc., 510 U.S. 17, 22 (1993). A supervisor's remarks on several occasions
unaccompanied by any concrete action are usually not sufficient to
state a claim of harassment. Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996). The two incidents described
by complainant are not sufficiently severe or pervasive to establish a
prima facie case of harassment.
We also note that claim 2 is essentially a complaint about the
processing of a prior complaint. Such complaints are properly called
�spin-offs� and under Commission regulations, should be dismissed. See 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(8)). If a complainant is dissatisfied with
the processing of his pending complaint, he should be referred to the
agency official responsible for the quality of complaints processing.
Agency officials should earnestly attempt to resolve dissatisfaction
with the complaints process as early and expeditiously as possible.
See EEO Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110),
5-25 (as revised, November 9, 1999). Furthermore, given the nature
of complainant's allegations of improper processing, we find that the
proper method for addressing such matters would be within the continued
processing of the previously filed complaint or on appeal from the
final agency decision issued therein. Any remedial relief to which
complainant would be entitled would necessarily involve the processing
of the underlying complaint.
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 (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
September 14, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 At times this case is referred to as Agency Case No. 97-0521. It is
unclear which is the correct number and which is a typographical error.
This decision will refer to Case No. 97-1521.
3 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website at www.eeoc.gov.
4 The agency also provided a disparate treatment analysis of
complainant's claims. This decision, however, will only address the
harassment claim, as complainant did not allege that he was subjected
to disparate treatment.