Cheryl A. Joseph-Oyebisi, Complainant,v.Gale A. Norton, Secretary, Department of the Interior, (National Park Service), Agency.

Equal Employment Opportunity CommissionOct 17, 2002
01A14321 (E.E.O.C. Oct. 17, 2002)

01A14321

10-17-2002

Cheryl A. Joseph-Oyebisi, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (National Park Service), Agency.


Cheryl A. Joseph-Oyebisi v. Department of the Interior (National Park

Service)

01A14321

October 17, 2002

.

Cheryl A. Joseph-Oyebisi,

Complainant,

v.

Gale A. Norton,

Secretary,

Department of the Interior,

(National Park Service),

Agency.

Appeal No. 01A14321

Agency No. FNP-00-084

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 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

affirms the agency's final decision.

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

as a Budget Analyst, GS-0560-11, at the agency's National Park Service,

Manhattan Sites Administrative Support Office, in New York. Complainant

sought EEO counseling and subsequently filed a formal complaint on June

18, 2000, alleging that she was subject to hostile work environment

discrimination on the basis of sex (female) when she was terminated as

a probationary employee, effective February 5, 2000.

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. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued a final decision.

In its FAD, the agency concluded that complainant failed to establish that

she was subject to a hostile work environment in that she failed to show

that the actions alleged rise to the level of actionable hostile work

environment discrimination under Title VII. The FAD further found that

as to her termination, the agency articulated legitimate nondiscriminatory

reasons which complainant failed to show were mere pretext. Specifically,

the FAD found that complainant failed to perform the responsibilities of

her position. The FAD found that complainant's supervisors stated that

she failed to pay bills on time, repeatedly reported late to work, failed

to call in absences, failed to document deposits, and generally exhibited

inappropriate behavior in the workplace. (Report of Investigation,

Exhibit 7, page 54-5; Exhibit 6, page 35-53).

On appeal, complainant reiterates her contention that she was subject

to hostile work environment harassment because of her sex. Complainant

further contends that she was subject to sexual harassment in that

her Supervisor (S1) and the Administrative Officer (AO) had a prior

history together and that their personal relationship disadvantaged her

and contributed to the alleged hostile work environment. The agency

requests that we affirm its FAD.

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, religion or

prior EEO activity is unlawful, if it is sufficiently patterned or

pervasive. Wibstad v. United States Postal Service, EEOC No. 01972699

(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39

(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift

Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working

environment is hostile, factors to consider are the frequency of the

alleged discriminatory conduct, its severity, whether it is physically

threatening or humiliating, and if it unreasonably interferes with

an employee's work performance. See Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has

stated that: �Conduct that is not severe or pervasive enough to create an

objectively hostile work environment - an environment that a reasonable

person would find hostile or abusive - is beyond Title VII's purview.�

Harris, 510 U.S. at 22 (1993).

Here, though complainant belongs to a statutorily protected class,

we find that complainant has not shown that the alleged harassment she

was purportedly subjected to concerned her sex or was based on any other

protected bases. Nor has she shown that the alleged harassment had the

purpose or effect of unreasonably interfering with the work environment

and/or creating an intimidating, hostile, or offensive work environment.

The record reflects that complainant had difficulty getting along with

her co-workers and performing the tasks that were assigned to her.

The record contains numerous statements and exhibits which attest to

complainant's poor work performance, and that despite being counseled

on several occasions about her poor performance, her work failed to

improve. (R.O.I., Affidavit 2, Ex. 2, 3, 4, 5, 8, 11; Affidavit 3, page

1). We find that complainant has failed to establish that the agency's

legitimate, nondiscriminatory reasons for her termination were mere

pretext for sex discrimination, nor that she was subjected to unlawful

discrimination in the form of hostile work environment harassment.

With respect to complainant's sexual harassment claim, we find that the

record contains no persuasive evidence to support complainant's contention

that S1 and AO had a prior history or a personal relationship. Both S1

and AO state that they did not meet until AO applied for the position

of Administrative Officer, and that there relationship was a strictly

professional one. (R.O.I., Affidavit 2, page 3; Affidavit 3, page 1).

Complainant also failed to establish that the alleged relationship

between AO and S1 was related to her termination.

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 (M0701)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 17, 2002

__________________

Date