Ken J. Johnson, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 11, 2007
0120072415 (E.E.O.C. Sep. 11, 2007)

0120072415

09-11-2007

Ken J. Johnson, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Ken J. Johnson,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120072415

Agency No. AREUSCHW06NOV04950

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated March 8, 2007, dismissing his complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. In his complaint, complainant alleged that he was subjected to

discrimination on the bases of disability (association-his children have

learning disabilities) and reprisal for unspecified prior activity when:

1. A Responsible Management Official (ROM: disability unknown)

issued complainant a letter of warning (LOW), hindering the ability of

complainant and his wife to advocate for their children's rights to a

free and appropriate education;

2. Under the influence of the principal of the elementary school

attended by complainant's children, RMO involved himself in the

educational needs of complainant' children, raised issues and problems

up through complainant's chain of command, and threatened the security

of complainant's employment;

3. RMO accused complainant of not following proper complaint procedures

and basic parameters; and

4. RMO stated that complainant's wife caused stress to the school and

her behavior was impacting the staff and faculty at the school.

The agency dismissed the claims for failure to state a claim. In its

Final Agency Decision (FAD), the agency addressed only retaliation as

a basis and did not address the disability claim. The FAD found that

complainant failed to state a claim of reprisal because complainant

was not alleging reprisal for engaging in prior EEO activity, but for

engaging in efforts to provide an appropriate education for his children.

The FAD noted that such activity was not covered by EEO regulations.

On appeal, the agency has submitted arguments addressing complainant's

claims of discrimination based on being associated with the disabilities

of his children. The agency argues that complainant's claims still fail

to state a claim because complainant cannot show he incurred a tangible

employment action, nor were the agency actions so severe or pervasive as

to create a hostile work environment. Complainant makes no new argument

on appeal.

After thorough review of the record, the Commission finds that, to the

extent complainant alleges that his efforts to ensure that his children's

educational needs were met led to retaliation by the agency, the agency

correctly dismissed complainant's reprisal claims for failure to state

a claim. Advocating for the educational needs of one's children does

not constitute protected activity under EEO laws and regulations.

Complainant also claimed discrimination based on associational disability,

namely the learning disability of his children. The agency on appeal

acknowledges that under 29 C.F.R � 1630.8 it is unlawful to deny "equal

jobs or benefits to, or otherwise discriminate against, a qualified

individual because of the known disability of an individual with whom

the qualified individual is known to have a family . . . relationship."

In other words, if complainant can establish that he was discriminated

against such that he incurred a harm or loss in employment, based on the

disability of his children, he states a claim. In this regard, we note

that in claim 1, complainant alleges that he was issued a LOW because of

the disability of his children. Contrary to the agency's finding, we find

that such an allegation states a claim of disability discrimination since

complainant is alleging a harm in employment based on a valid basis.

Regarding the remaining three claims, we find that complaint fails to

state a claim under the EEOC regulations because he failed to adequately

allege that he was subjected to unwelcome verbal or physical conduct

involving his protected class, that the harassment complained of was

based on his statutorily protected class and that the harassment had the

purpose or effect of unreasonably interfering with his work performance

and/or creating an intimidating, hostile, or offensive work environment.

See McCleod v. Social Security Administration, EEOC Appeal No. 01963810

(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th

Cir. 1982).

Therefore, we AFFIRM the FAD in part and REVERSE the FAD in part and

REMAND claim 1 for further processing in accordance with the Order set

forth below.

ORDER (E0900)

The agency is ordered to process the remanded claim (claim 1 - disability

claim only) in accordance with 29 C.F.R. � 1614.108 et seq. The agency

shall acknowledge to the complainant that it has received the remanded

claim within thirty (30) calendar days of the date this decision becomes

final. The agency shall issue to complainant a copy of the investigative

file and also shall notify complainant of the appropriate rights within

one hundred fifty (150) calendar days of the date this decision becomes

final, unless the matter is otherwise resolved prior to that time.

If the complainant requests a final decision without a hearing, the

agency shall issue a final decision within sixty (60) days of receipt

of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 11, 2007

__________________

Date

2

0120072415

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120072415