0120063504
05-07-2008
Eugene M. Mikel, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Eugene M. Mikel,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200635041
Agency No. 05-0705
DECISION
Complainant appeals to the Commission from the agency's decision dated
April 28, 2005, finding no discrimination. In his complaint, complainant,
a Physical Security Specialist (Instructor) with the Federal Protective
Service (FPS), Federal Law Enforcement Training Center (FLETC) in Glynco,
Georgia, alleged discrimination based on age (over 40), disability
(hearing loss) and in reprisal for prior EEO activity when:
(1) He did not receive a performance rating for the period that ended
September 30, 2003;
(2) Since August 2003, he has not been assigned regular duties because
management stated it is not sure he can handle the physical aspects
of the job, and that because of this, he was not given a uniform, work
station with a computer, or desk;
(3) On November 24, 2003, his supervisor made threatening remarks to him;
and
(4) In September 2003, he became aware that he had not been selected
for the Instructor position at National Training Academy under Vacancy
Announcement Number 030038712DE.
After completion of the investigation of the complaint, complainant
did not request a hearing in a timely manner. The agency thus issued
its decision concluding that it asserted legitimate, nondiscriminatory
reasons for its actions, which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination,
finds that the agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. Complainant's supervisor stated that
complainant was injured on February 26, 2001, while working at the FLETC
Firearms Division. Complainant slipped and injured his knee and elbow
and submitted a CA-1. On April 1, 2003, complainant was injured when
he was lifting large boxes and submitted another CA-1. Complainant was
on medical leave from April 29, 2003 to August 3, 2003. The supervisor
stated that complainant did not submit any medical documentation to him
during the relevant time period at issue.
With regard to claim (1), the supervisor stated that none of his
subordinate employees, including complainant, received their annual
performance evaluation at the regularly scheduled time because of FPS'
reorganization into U.S. Immigration and Customs Enforcement (ICE) on
March 9, 2003. The supervisor indicated that the employee rating system
was under review and he was waiting for directions on how to complete
the annual performance evaluations.
With regard to claim (2), the supervisor stated that due to the FPS
office's renovations, many employees, not just complainant, were assigned
to temporary workstations. With regard to a uniform, the supervisor
indicated that complainant was on medical leave when other employees were
fitted for uniforms and the order was placed. The supervisor explained
that a laptop computer was provided to complainant upon his request.
The supervisor also indicated that when FPS was transferred to ICE, all
instructional positions became law enforcement position. The supervisor
explained that he was concerned about complainant's ability to do
more physically demanding assignments because he had injured himself
performing light duty tasks in the past. The supervisor, undisputed by
complainant, stated that complainant never asked to be placed in a more
physically demanding position. Regarding complainant's ability to perform
training, the supervisor stated that all positions within his office
require employees to have minimal essential computer skills, including
the ability to open, create, and edit Microsoft Word documents; create
and edit simple spreadsheets; and utilize PowerPoint for presentations.
The supervisor, undisputed by complainant, indicated that complainant
could not perform these necessary job functions.
With regard to claim (3), the supervisor denied that he used abusive
language or conducted himself inappropriately. The agency stated and
we agree that despite complainant's claim, the alleged remarks were not
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).
With regard to claim (4), the supervisor stated that no selection was
made under the alleged vacancy announcement which he canceled because it
did not contain the proper job specifications. Complainant acknowledged
that when it was re-announced later, he did not apply for the position
at that time.
Upon review, the Commission finds that there is no evidence that any
agency action was motivated by discrimination. The Commission does not
address in this decision whether complainant is a qualified individual
with a disability. It is noted that complainant clearly has not claimed
in his complaint or shown that he was denied a reasonable accommodation;
nor has he claimed or shown that he was required to work beyond his
medical restrictions.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
5/7/08
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120063504
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036