Aretha M. Johnson, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 26, 2001
01996651 (E.E.O.C. Sep. 26, 2001)

01996651

09-26-2001

Aretha M. Johnson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Aretha M. Johnson v. Department of Veterans Affairs

01996651

September 26, 2001

.

Aretha M. Johnson,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01996651

Agency No. 98-3777

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint 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. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated

against on the based on sex (female) when she was subjected to sex-based

harassment, consisting of the following incidents: (1) on October 8,

1998, her supervisor gave her a verbal warning for her handling of a radio

call from him; (2) on October 16, 1998, her supervisor made threatening

and hostile remarks to her; (3) on October 20, 1998, she received a letter

of counseling for failure to follow proper leave procedures; and (4) on

October 20, 1998, her supervisor issued a letter of counseling concerning

inappropriate behavior relating to the radio incident on October 8, 1998.

The record reveals that during the relevant time, complainant was

employed as a Police Officer, GS-5, step 1, at the agency's Chicago,

Illinois Health care System facility, Westside Division. Believing

she was a victim of discrimination, complainant sought EEO counseling

and subsequently filed a formal complaint on November 7, 1998. At the

conclusion of the investigation, complainant was informed of her 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. � 1614.108(f),

the agency issued a final decision.

In its FAD, the agency concluded that complainant had failed to establish

a claim of sex-based harassment because she had not demonstrated by

a preponderance of the evidence that the actions complained of were

severe or pervasive, and also because she had not demonstrated that

the actions complained of were based on her sex. Moreover, the FAD

found that alternatively analyzing the claim under a disparate treatment

theory, the agency articulated legitimate non-discriminatory reasons for

the discipline at issue, and complainant had not shown these reasons

to be a pretext for sex discrimination. In reaching this conclusion,

the FAD found that her supervisor denied making threatening or hostile

remarks to complainant as alleged, and that she had not demonstrated by

a preponderance of the evidence that this had occurred. Neither party

has filed any contentions on appeal.

After a review of the record in its entirety, it is the decision of the

Commission to AFFIRM the agency's final decision because the preponderance

of the evidence of record does not establish that discrimination based

on sex occurred.

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 (S0900)

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 26, 2001

__________________

Date