01973562
09-07-1999
Fary O. Watkins, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Fary O. Watkins, )
Appellant, )
) Appeal No. 01973562
v. ) Agency No. 95-1917
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) 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.
Appellant alleges that she was harassed on the basis of reprisal for
prior EEO activity when: (1) she was detailed to a clerical position;
and (2) she was assigned to an office known as the �xerox room� with
neither a telephone nor a key. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED as CLARIFIED.
The record reveals that in July 1994, appellant took extended sick leave
from her position as a Medical Instrument Technician at the agency's
Medical Center in Oklahoma City, Oklahoma in order to have ankle surgery.
When she returned to work in November 1994, she was detailed to a clerical
position.<1> Appellant again took leave from December 1994 through
January 1995 in order to have knee surgery. When she returned to work
in February 1995, she continued to perform clerical duties. However,
her mental health deteriorated as did her ability to perform clerical
tasks. In May 1995, she stopped working and was placed on LWOP status.
Believing she was discriminated against as referenced above, appellant
sought EEO counseling and subsequently filed a complaint on August 10,
1995. At the conclusion of the investigation, appellant did not request
a hearing, and the agency issued a final decision.
In framing this complaint, the agency ignored the EEO counselor's intake
and final action reports which clearly indicate that appellant alleged
retaliatory harassment. Rather, the agency considered the allegations
under the theory of disparate treatment. In so doing, the FAD found,
without explanation, that appellant established a prima facie case
of retaliation; but that she failed to establish that the agency's
legitimate, nondiscriminatory reasons for its actions were a pretext for
unlawful retaliation. As a result, the FAD failed to consider whether
appellant's allegations were sufficient to state a prima facie case of
retaliatory harassment. It is from this decision appellant now appeals.
Neither party submitted a statement in support of, or in response to,
the appeal.
The Commission notes that an appellant 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 retaliation. See Harris v. Forklift Systems, Inc 510 U.S. 17 (1993);
EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). The Supreme Court stated:
"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).
In determining whether or not a hostile environment violative of Title
VII has been created, our regulations require that " ... the challenged
conduct must not only be sufficiently severe or pervasive objectively
to offend a reasonable person, but also must be subjectively perceived
as abusive by the charging party." EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 7.
In evaluating the degree to which a work environment is sufficiently
severe or pervasive to constitute a hostile environment, the Commission
has noted that "A 'hostile environment' claim generally requires a
showing of a pattern of offensive conduct." See EEOC Policy Guidance on
Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990).
Applying the law to appellant's allegations, we find that appellant
has failed to establish a prima facie case of retaliatory harassment.
In so finding, we note that appellant had prior EEO activity of which
the responsible management officials named in this complaint were aware.
However, we find that the agency's decision to reassign appellant was
primarily a result of her own representations concerning her inability
to perform her job and her refusal to communicate with the facility
concerning her physical condition and prognosis. Moreover, appellant
eventually submitted a physician's report of her post surgery medical
restrictions which would not permit her to immediately return to her
former position at full capacity. We also find that a new phone system
was being installed, and the xerox room was a low priority compared to
the facility's surgery service and critical care departments. Management
testified that appellant was only without a key to the xerox room for
approximately three days. Moreover, there is no evidence from which we
can infer that these agency actions were motivated by retaliatory animus.
In sum, we find that the agency's actions did not comprise a pattern of
offensive conduct, sufficiently severe or pervasive enough to constitute
harassment on the basis of reprisal. Accordingly, we find that appellant
was not adversely affected and thus fails to sustain her prima facie
burden.<2>
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
FAD as CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
September 7, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 There is no evidence in the record
that the agency intended this detail to become a permanent
reassignment.
2 Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), we
similarly find that appellant is unable to establish a prima facie case
of retaliatory discrimination under the theory of disparate treatment
because she fails to establish that she was adversely affected by the
agency's actions.