Bertha Christopher, Complainant,v.Togo D. West, Jr., Secretary, Department of Veteran's Affairs, Agency.

Equal Employment Opportunity CommissionMay 23, 2000
01973226 (E.E.O.C. May. 23, 2000)

01973226

05-23-2000

Bertha Christopher, Complainant, v. Togo D. West, Jr., Secretary, Department of Veteran's Affairs, Agency.


Bertha Christopher v. Department of Veteran's Affairs

01973226

May 23, 2000

Bertha Christopher, )

Complainant, )

) Appeal No. 01973226

v. ) Agency No. 96-1112

)

Togo D. West, Jr., )

Secretary, )

Department of Veteran's Affairs, )

Agency. )

____________________________________)

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, as amended,

42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

Complainant alleged that she was discriminated against on the basis of

reprisal (prior EEO activity) when she was subjected to harassment.

The record reveals that during the relevant time, complainant was employed

as a Medical Transcriptionist at the agency's Allen Park, Michigan

VA Medical Center. Believing she was a victim of discrimination,

complainant sought EEO counseling and subsequently filed a formal

complaint on February 21, 1996. 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. Complainant requested that the agency issue a final decision.

Complainant alleged in her affidavit that her supervisor harassed her

ever since she provided testimony in October 1995 for a co-worker's

EEO complaint. Complainant alleged that soon after her testimony,

the supervisor retaliated against her by counseling her for failing

to achieve the required transcription average of 750 lines per week.

Complainant alleged in her affidavit that on February 1, 1996, her

supervisor intentionally withheld x-rays that needed transcription so that

complainant would not achieve her average line count. Complainant also

alleged that she performed other duties in the office, which may have

reduced her transcription average. However, the supervisor failed to

take this fact into consideration when she determined whether complainant

satisfied her weekly line quota. Complainant states that she has suffered

a lot of stress due to the agency's actions, and has therefore needed

time off from work.

In its FAD, the agency concluded that complainant established a prima

facie case of disparate treatment because the supervisor was aware of

complainant's prior EEO activity when she took the actions alleged herein.

The agency also found, however, that complainant failed to establish that

the agency's reasons for its actions were a pretext for discrimination.

Specifically, the agency maintained that complainant had problems meeting

her line quota as far back as December 1994, well before she testified

at the EEO hearing. The agency also found no evidence to support

complainant's contention that her supervisor intentionally withheld

work so that she would not meet her line quota. Rather, when the x-rays

in question arrived at the office, the supervisor determined there was

already sufficient work that could be done, and therefore, she did not

immediately assign the x-rays. As complainant failed to establish the

agency's reasons for its actions were pretext for discrimination, the

agency found complainant was not subjected to reprisal discrimination.

On appeal, complainant contends that she has since resigned from the

agency due to the agency's treatment. Additionally, she has since filed

another EEO complaint. The agency requests that we affirm its FAD.

As the instant complaint represents a claim of harassment, the

Commission finds that the FAD did not apply the appropriate analysis.

Complainant may assert a Title VII cause of action based on harassment

if the discriminatory conduct was so severe or pervasive that it

created a hostile work environment on the basis of her race, color,

gender, religion, national origin, or prior EEO activity. See Harris

v. Forklift Systems, Inc., 510 U.S. 17, 21, (1993); Cobb v. Department of

the Treasury, EEOC Request No. 05970077 (March 13, 1997). The harasser's

conduct should be evaluated from the objective viewpoint of a reasonable

person in the victim's circumstances. Enforcement Guidance on Harris

v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

Upon review of the record, the Commission concludes that complainant

failed to demonstrate that she was subjected to discriminatory harassment

based on her prior EEO activity. Although complainant established that

her supervisor was aware of her prior EEO activity when she counseled

complainant about her failure to meet the line quota, complainant

failed to establish the requisite causal connection between her prior

EEO activity and the counseling. Specifically, the record reveals

complainant had problems related to her line quota well before she

engaged in protected activity, and received written counseling for

such in December 1994. Furthermore, complainant failed to provide

any persuasive documentary or testimonial evidence to establish that

the supervisor intentionally withheld work so that complainant would

not achieve her line quota. Finally, complainant has not presented any

evidence tending to show that the actions alleged herein rose to the

level of discriminatory harassment.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 23, 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.