Florencev.Hobson, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 10, 2000
01980810 (E.E.O.C. Mar. 10, 2000)

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.