Avis Peters, Complainant,v.John W. Carlin, Archivist of the United States National Archives and Records Administration, Agency.

Equal Employment Opportunity CommissionApr 14, 2000
01990103 (E.E.O.C. Apr. 14, 2000)

01990103

04-14-2000

Avis Peters, Complainant, v. John W. Carlin, Archivist of the United States National Archives and Records Administration, Agency.


Avis Peters v. National Archives and Records Administration

01990103

April 14, 2000

Avis Peters, )

Complainant, )

) Appeal No. 01990103

v. ) Agency No. NARA9634

)

John W. Carlin, )

Archivist of the United States )

National Archives and )

Records Administration, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination

on the bases of race (Black), color (Black), and religion (Baptist),

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> Complainant alleges that the agency

discriminated against her when her supervisor created a hostile work

environment by throwing thick files at her and subsequently injuring her.

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405). For the following reasons, the

Commission AFFIRMS the FAD.

The record reveals that during the relevant time, complainant was

employed as an Archivist Aid (GS-03) at the agency's St. Louis, Missouri

facility. Complainant alleged that on June 19, 1996 she was assaulted

by her second-line supervisor (the Supervisor). On this day, the

Supervisor requested complainant to make corrections to a set of files.

Complainant did not make the corrections, and the records were returned

to the Supervisor. The Supervisor brought the files back to complainant,

and a heated discussion took place. At the end of this discussion,

complainant alleged the Supervisor threw a set of files across the

work area at her. Complainant did not notice any physical injury

or tell anyone about the assault for a few days. On June 22, 1996,

complainant reported the tooth injury to her dentist. According to the

dentist, complainant said she received a forceful blow to the mouth and

was injured at work. Since the dentist was unable to save the tooth,

she highly recommended a tooth extraction and extensive bridgework for

complainant. Complainant submitted a claim for workman's compensation

to pay for the dental repairs.

Believing she was a victim of discrimination, complainant sought

EEO counseling, and she filed a complaint on August 7, 1996. At the

conclusion of the investigation, complainant requested a hearing with an

EEOC Administrative Judge (AJ). The AJ scheduled the case for a hearing;

however, the complainant withdrew her request and asked the agency to

issue a final agency decision.

The FAD concluded that complainant failed to establish a prima facie case

establishing a discriminatory hostile work environment because she did

not present any evidence that she was physically assaulted or otherwise

subjected to harassment.

Complainant does not make any additional arguments on appeal. The agency

requests that we affirm its FAD.

ANALYSIS AND FINDINGS

After a careful review of the record, the Commission agrees with the

agency that complainant failed to establish a prima facie case of

harassment.

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. Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997). 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.

The Commission finds that complainant failed to prove that the Supervisor

threw the files at her on June 19, 1996 and caused her dental injury.

No one witnessed the actual assault. The only eye witnesses to the entire

altercation were complainant and the Supervisor. Complainant alleged

that Supervisor threw the files at her and that the files made contact

with her mouth; as a result, she experienced a tooth injury. In direct

contrast, the Supervisor stated that he merely returned the files to

her and that he never threw the files at complainant. In addition,

complainant's co-worker stated that the only thing she witnessed was the

Supervisor slamming the folders down on complainant's desk. This witness

did not see the files make contact with complainant's mouth. (Exhibit 8).

If complainant had continued with a hearing before an AJ, she would

have had an opportunity to challenge the credibility of the Supervisor

and the co-worker. Since she did not allow a hearing to proceed, the

Commission must evaluate the evidence as presented. Complainant has

not provided any evidence that the Supervisor assaulted her. We do

not find that an assault occurred. Therefore, she does not allege

matters sufficiently severe or pervasive to state a claim of hostile

work environment harassment.

Assuming that the assault did occur, complainant did not carry her burden

of proof that the assault was motivated by race. During this time, the

Supervisor and complainant both stated that Supervisor was upset about

complainant's work with the files. The Supervisor further stated that

complainant demonstrated poor job performance and submitted"sloppy work."

(Exhibit 11). As a result, he counseled her on June 18, 1996 for poor

job performance, and he attempted to counsel her again on June 19, 1996.

Complainant has not shown the Supervisor had any other motivation for

the altercation other than her poor job performance.

CONCLUSION

Therefore, after a careful review of the record, 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

April 14, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.