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.