01984712
07-05-2000
Berretdus Thompson-Morton, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Berretdus Thompson-Morton v. Department of Veterans Affairs
01984712
July 5, 2000
Berretdus Thompson-Morton, )
Complainant, )
)
) Appeal No. 01984712
) Agency No. 96-1575
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (EEOC) from the final decision of the agency
concerning complainant's claims that the agency
violated Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. The appeal is accepted in accordance with
64 Fed.Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).<1>
The issues on appeal are whether complainant was discriminated against
based on her race (African-American) when: (1) on September 6, 1995, she
was slapped on the hand by her supervisor (S-1); and (2) on October 4,
1995, she was reassigned to the VA Medical Center, West Side, Illinois.
At the time of her complaint, complainant was employed by the agency as
a Civilian Payroll Technician, GS-5, at the agency's Hines Hospital.
She filed a formal complaint raising the issues stated above and also
apparently claimed that for some time she has been subjected to a racially
hostile working environment. In addition to the incidents described
above, complainant claimed that for three years, she has been subjected
to a continuing pattern of harassment by S-1. Specifically, complainant
claimed that she has been subjected, by S-1, to continuous verbal
abuse and name-calling at staff meetings and in other circumstances.
By example, complainant stated that in 1992, S-1 told her that she
�wasn't part of the family.� Complainant also stated that she has been
discriminated against with regard to performance awards, performance
appraisals, and promotion delays, as have other Black employees.
Complainant noted that S-1 once disapproved her (complainant's) request
for a schedule change to accommodate her family needs. S-1 stated that
she was forced to consult higher ranked agency officials in order to
get the schedule change approved. According to complainant, S-1 has
made racially charged remarks to her and other Black employees and has
treated Black employees less favorably overall.
The agency investigated the complaint focusing its investigation on
Issues (1) and (2) but also examining complainant's claim that she was
subjected to a racially hostile working environment for the past three
years. Following the investigation, the complainant did not request an
EEOC hearing within the designated time period. Therefore, the agency
issued its final agency decision (FAD), which found no discrimination.
Complainant now appeals the FAD, but submits no specific contentions
on appeal.
The agency found that there was insufficient evidence to supports a claim
of harassment with regard to the two specific incidents cited above or
with respect to any other claimed mistreatment by S-1. Regarding the
claimed incident of September 6, 1995, the agency stated that S-1
gave a different version of the incident. According to the agency,
S-1 only pushed complainant's hand to the side because complainant was
wiggling her finger in S-1's face. The agency noted that there were no
witnesses in the room when the claimed altercation occurred. However,
the agency emphasized that an individual who overheard the conversation
between S-1 and complainant stated that she did not hear S-1 make any
racially derogatory remarks.
The agency found that complainant failed to establish that the
reassignment occurred in the manner she described. Rather, according
to the agency, when the Chief of Fiscal Service (the Chief) suggested
to complainant that she would be an asset to the West Side office,
complainant replied that since the Chief had no place for her at Hines
Hospital, maybe the reassignment might be a good idea. The agency
stated that complainant then initiated the transfer. The agency also
found that there was no evidence that complainant worked in a racially
hostile environment as she claimed. According to the agency, S-1 was
verbally abusive to Black and White employees alike.
As noted, complainant claimed that she had been subjected, for three
years, to a continuing pattern of discriminatory harassment by S-1,
which took the form of verbal abuse, lowered performance ratings,
discrimination with respect to performance awards, and delays in
promotions. Complainant particularly focused her complaint on the
alleged incidents in October 1995.
To establish a claim of a racially hostile environment, a complainant
must show that the conduct must be so objectively offensive as to alter
the conditions of her employment. The conditions of employment are
altered only if the harassment culminated in a tangible employment
action or was sufficiently severe or pervasive to create a hostile
work environment. Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors (June 21, 1999). In determining whether
a work environment is hostile, factors considered are the frequency
of the claimed discriminatory conduct, its severity, whether it is
physically threatening or humiliating, and if it reasonably interferes
with a employee's work performance. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); EEOC Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994).
We find that complainant has stated claims, which if true and based on
her race, would create a racially hostile working environment in that
she claimed verbal abuse and that she was physically assaulted by her
supervisor. However, after careful review of the record, particularly
the testimony of individuals who also worked with S-1, we find that
complainant has not proved that she was subjected to a racially hostile
working environment because of the September/October 1995 incidents or
because of other claimed incidents of mistreatment by S-1.
Regarding the incident of September 1995, the evidence shows that some
type of altercation occurred between complainant and S-1. However, after
carefully reviewing the testimony of complainant and S-1, and testimony
of a witness who overheard the incident, it appears that fault lay with
both parties and that the incident did not occur exactly as complainant
described. Information in the record indicates that complainant cursed her
supervisor and either bumped her or hit her in the shoulder in response
to the supervisor moving her hand away. Concerning the reassignment,
the record shows that complainant asked for it, although she admittedly
did so to get away from S-1.
Regarding S-1's overall treatment of complainant with regard to
assignments, promotions, and awards, we find that complainant simply
did not prove these claims with persuasive evidence. Regarding the
claimed verbal abuse, there is ample evidence that S-1 had a disagreeable
management style and could be quite volatile, as complainant claimed.
However, numerous witnesses, many of whom are Black, testified that they
did not believe that S-1's behavior was racially motivated. Most of
these witnesses stated that S-1 was equally offensive towards Black and
White employees alike.
With regard to the testimony of one witness (Black; W-1), who stated that
four or five years ago, S-1 called her a �Black n....� or �something to
that effect�, this statement, if said, would be strong evidence of S-1's
discriminatory animus towards Black employees. However, W-1 produced the
names of no corroborating witnesses to the remark, even though she stated
that the remark was made in a room full of people. W-1 was also unable
to produce corroborating documentation of the remark. According to W-1,
she thought the documentation was at her home but she could not find
it. In addition, W-1 stated that the incident was � about the only
thing that [S-1] said that could be considered racist.� Accordingly,
it is difficult to give the testimony of W-1 much weight.
In short, while complainant presented evidence that there were conflicts
between herself and S-1 and that S-1 was sometimes unnecessarily
volatile, we find that complainant did not show that she was subjected
to a hostile working environment and other mistreatment because of her
race. Accordingly, the Commission hereby AFFIRMS the agency's final
decision.
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:
07-05-00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________________ ___________________________
Date
1 On November 9, 1999, revised regulations governing 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.