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