01A22185
03-10-2003
Helen M. Payne, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Helen M. Payne v. Department of Veterans Affairs
01A22185
March 10, 2003
.
Helen M. Payne,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22185
Agency Nos. 200K-0555; 99-4024
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 Medical Clerk at the agency's Medical Center in Des Moines, Iowa.
Complainant sought EEO counseling and subsequently filed a formal
complaint on August 9, 1999, alleging that she was discriminated against
on the bases of race (African-American) and reprisal for prior EEO
activity when:
(1) she was accused by agency security and the police department of
being an accessory to a theft in the canteen and knowing information
about the theft;
agency security did not allow her to call her union representative;
police officers escorted her out of her work area like she was a �hard
criminal; and,
(4) agency security and the Des Moines Police Department did not
allow her a representative when she was questioned.
The agency dismissed the complaint for failure to state a claim.
The complainant appealed the dismissal to the Commission which reversed
the agency's decision and remanded her claim for investigation. Payne
v. Department of Veterans Affairs, EEOC Appeal No. 01A01038 (May 22,
2000), request to reconsider denied, EEOC Request No. 05A00948 (November
29, 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 found that complainant had been subjected
to harassment and the conduct was severe enough to alter her working
conditions and create an objectively hostile work environment. However,
the agency concluded that she failed to establish that she was harassed
due to her race or prior EEO activity. On appeal, complainant contends
that she had been subjected to harassment and a hostile work environment
because of her race. The agency requests that we affirm its FAD.
The record reveals that the complainant was employed as a Medical Clerk.
The complainant stated that on June 24, 1999, she was approached by an
agency police officer (white) who questioned her regarding a theft.
She stated that a white co-worker had told the agency police officer
that she had been seen talking to black male who was a possible suspect
in the theft. The complainant stated that she told the officer that she
did not know anything about the theft and did not want to get involved.
She stated that the officer threatened to charge her with being an
accessory to the theft, then left and returned with a Des Moines Police
officer. She contended that the Des Moines Police officer (white)
threatened to charge her with obstruction of justice as well when she
took a work-related call while being questioned. Complaint stated that
she was escorted outside of the building by the agency officer, the Des
Moines police officer and other police officers in order to question
her in another building. Complaint asserted that she was threatened
with being handcuffed and taken to jail because she had a conversation
with a patient in the hallway.
She stated that after being questioned, she was released because the
officers realized that they had misidentified the suspect. The record
also includes a letter from the agency security staff. The letter
expressed regret at not questioning complainant in a �private,
confidential manner.�
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). 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, EEOC Appeal
No. 01965238 (October16, 1998); 29 C.F.R. � 1604.11. The record
establishes, at a minimum, that the complaint was questioned by the
agency police officer and a Des Moines police officer in front of her
co-workers and then escorted with other officers to another building.
The Commission agrees with the agency's finding that the complainant
was harassed by the agency police officer along with the Des Moines
police officer creating a hostile work environment. However, there
is no evidence in the record showing that the harassment complained
of was based on her statutorily protected classes, an African-American
who had participated in the EEO process.
To prove harassment, complainant must demonstrate that agency officials
harassed her because of her race, or because she engaged in prior
protected EEO activity. See, EEOC Notice No. 915.002, Enforcement
Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors (June 18, 1999), at 4 (providing that "[h]arassment does
not violate federal law unless it involves discriminatory treatment on
the basis of race, color, sex, religion, national origin, age of 40 or
older, disability, or protected activity under the anti-discrimination
statutes"). The agency officer questioned the complainant because
she was seen talking to someone who was suspected of theft. The agency
police officer stated that he was unaware of complainant's participation
in the EEO process and there is no evidence showing that either of the
officers were aware of her participation. We are not convinced that
the agency police officer or the local police officer engaged in any
of the challenged actions because of complainant's race or prior EEO
activity. Accordingly, we cannot hold the agency liable.
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
March 10, 2003
__________________
Date