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.