Mark Natalie, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 14, 2000
01991832 (E.E.O.C. Sep. 14, 2000)

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.