01980810
03-10-2000
Florence V. Hobson, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Florence V. Hobson v. Department of Veterans Affairs
01980810
March 10, 2000
Florence V. Hobson, )
Complainant, )
) Appeal No. 01980810
v. ) Agency No. 96-0686
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of race (African American) in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant
alleges she was discriminated against when she was told that she was not
Nurse Manager material. The appeal is accepted in accordance with 64
Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the FAD.
ISSUE PRESENTED
The issue herein presented is whether the complainant has established
that she was harassed based on race when the RMO told her that she was
not Nurse Manager material.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Nurse Manager, Ward 206D, at the agency's West Los Angeles,
California facility. Complainant alleged that on December 6, 1995,
she was told by her second level supervisor, the Associate Chief Nurse
for Psychiatry (RMO), in the presence of her immediate supervisor,
the Assistant Chief Nurse for Unit 2 (White: S1), that she was not Nurse
Manager material, and that she would like her to step down so that she
could be reassigned.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on March 6, 1996. At
the conclusion of the investigation, complainant did not request
a hearing. Thereafter, the agency issued an FAD, from which the
complainant now appeals. During the EEO investigation, the complainant
filed an official agency grievance concerning the same issue. The
Grievance Examiner found that the RMO's statements were unsubstantiated.
The Grievance Examiner recommended that complainant remain a Nurse
Manager. The record reveals that during the pendency of the grievance
investigation, the complainant was unofficially reassigned or detailed
for approximately ten (10) weeks to a Case Manager position, without a
loss of pay. Complainant returned to her Nurse Manager position upon
completion of the grievance investigation. The record further reveals
that both the RMO and S1 have been replaced. The RMO resigned on August
16, 1996.
The FAD concluded that complainant's appeal is moot and that the conduct
complained of is not severe and perversive enough to constitute harassment
within the meaning of the Commission's regulations. The agency contends
that the instant appeal is moot because there is no relief that could
be offered complainant since both RMO and S1 were replaced and since
complainant's position as Nurse Manager was restored.
On appeal, complainant contends that her complaint was not rendered
moot as a result of prevailing in her grievance or the resignation of
RMO. Complainant further contends that she met her burden of proving
discrimination. Complainant also demands compensatory damages and
attorney's fees.
ANALYSIS AND FINDINGS
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing
McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). The Supreme
Court has stated that, "[c]onduct 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 v. Forklift Systems, Inc., 510 U.S. 17, 22
(1993). 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,
510 U.S. at 21; EEOC Notice No. 915.002 (March 8, 1994), Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
To establish a prima facie case of hostile environment harassment, a
complainant must show that: (1) she belongs to a statutorily protected
class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class;
and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with
the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11. Evidence
of the general work atmosphere, involving employees other than the
complainant, also is relevant to the issue of whether a hostile
environment existed in violation of Title VII. Vinson v. Taylor, 753
F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant part and rev'd in part,
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
After a careful review of the record in its entirety, we find that
complainant failed to establish a case of harassment based on race.<2>
While she presents evidence that she encountered unwelcome conduct
from RMO and S1, nothing proffered by complainant demonstrates that
either individual's conduct involved her race. The agency attributes the
conduct to nonracial factors such as complainant's outspokenness, her
questioning of RMO's authority, and her insistence on doing things "by
the book." Whatever the reason, complainant has failed to prove that the
harassment was tied to her race. Unless complainant ties the harassment
to a protected basis, she cannot succeed in her EEO claim. See Jackson
v. City of Kileen, 654 F.2d 1181, 1186 (5th Cir. 1981) ("Title VII is
not a shield against harsh treatment at the workplace"). Complainant
supports her claim of racial animus by relying on a coworker's affidavit.
The affiant believes that the comments attributed to RMO were racial
because everyone in the office believes there is racial tension between
complainant, RMO and S1. We find such evidence an insufficient basis
upon which to rest a finding of discrimination. Accordingly complainant
fails to establish element three (3) above.
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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
3/10/2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________________ _____________
Equal Employment Assistant Date
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.
2 In finding that complainant failed to establish race-based harassment,
we reach no decision on the agency's allegation that the complaint is
moot, nor do we reach a decision on whether RMO's conduct was severe
and pervasive enough to constitute harassment within the meaning of the
Commission's regulations.