0120091522
07-22-2009
Michael L. Romero, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Michael L. Romero,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091522
Agency No. ARANAD08OCT04516
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) decision dated January 8, 2009, 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 basis of disability (cerebral palsy)
when his supervisor:
1. sometime between January 2008 to April 3, 2008, outside complainant's
presence, commented about him and another medically limited employee that
if all the employees were like them, the depot would have to shut down,
and generally or specifically commented "I can't get anything done with
all these handicapped employees, I'm not running a rehabilitation center
here";
2. told him on March 17, 2008, that he should be replaced in the shoe
store and put in a job he could handle;
3. told him in April 2008, that had a new job for him (he was not actually
moved);
4. in March 2008, outside complainant's presence, said things to agency
employees such as complainant is overweight; his wheelchair was too
small for him and he was going to keep falling out of it; she did not
have time to baby-sit him, and he was not capable of doing his job; and
5. on March 31, 2008, she asked two of complainant's co-workers if
complainant was having trouble handling things and if they thought he
was capable of performing his job.1
The FAD dismissed the complaint for failure to state a claim. It reasoned
that for the most part, the complaint set forth matters not heard directly
by complainant, and he was not aggrieved.
On appeal, complainant explained that following surgery and extended
leave, he returned to work on March 17, 2008. He argues that the comments
made to co-workers were derogatory about his ability to perform his job
and character, and were directly related to his disability. He argues
that statements don't have to be heard directly by him to be harmful.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable.
The Commission has repeatedly found that remarks or comments unaccompanied
by a concrete agency action are not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of Title
VII. See Backo v. United States Postal Service, EEOC Request No. 05960227
(June 10, 1996); Henry v. United States Postal Service, EEOC Request
No. 05940695 (February 9, 1995). To the extent that complainant is
alleging that the remarks constituted harassment, the Commission notes
that unless the conduct is severe, a single incident or group of isolated
incidents will not be regarded as a claim of discriminatory harassment.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
While the comments were offensive, we find the environment complainant
describes was not sufficiently severe or pervasive to state a claim of
actionable harassment. The statements were made over a few months, with
most being made near the time of complainant's return in March 2008.
Most of the comments were not made in complainant's presence, and the
record strongly suggests that at least some of the listeners found them
objectionable, and there is no allegation that any of the listeners in
turn made their own derogatory comments.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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
with the
Court 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
July 22, 2009
__________________
Date
1 After reviewing the record and complainant's comments on appeal,
we adjusted the FAD's characterization of complainant's complaint,
as outlined above.
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0120091522
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091522