01a42028
05-31-2005
Janice S. Bradley, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Janice S. Bradley v. Department of Veterans Affairs
01A42028
May 31, 2005
.
Janice S. Bradley,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A42028
Agency No. 200L-0586-2002105024
Hearing
No. 130-2003-08243-X
DECISION
Complainant is employed as a Medical Supply Technician, GS-6. She filed
a formal EEO complaint in which she claimed that the agency discriminated
against her on the bases of her sex (female) and race (African-American)
when: (1) On September 4, 2002, a coworker (male, African-American)
cursed her, called her obscene names, and threatened her; and (2)
on October 1, 2002, although previously scheduled to work overtime,
she was denied the opportunity to work overtime.
The record reveals that complainant claimed that the coworker at
issue shouted at her: �I told you not to say anything else to me, you
mother-fucker. You're fucking with the wrong one, with your stupid ass.�
According to complainant, the coworker also told her that he would �kick
her ass.� With regard to the claim concerning overtime, complainant
stated that she was not permitted to work overtime on October 1, 2002,
because the coworker was scheduled to work.
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request for
a hearing. Without holding a hearing, the AJ issued a decision finding
that no discrimination occurred. The AJ found that complainant failed
to establish a prima facie case of hostile work environment harassment
on each of the alleged bases. The AJ found that the alleged incidents
of harassment were isolated incidents. The AJ further found that the
evidence did not demonstrate that complainant was subjected to harassment
which was pervasive or severe enough to alter the terms, conditions,
or privileges of her employment, and which stemmed from a discriminatory
animus. The AJ noted that the agency took appropriate corrective action
by implementing a shift change and by installing cameras and monitors.
By final action dated January 6, 2004, the agency fully implemented the
AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
A single incident or group of incidents will not be regarded as
discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982.). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
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
(October 16, 1998).
Upon review of the record, we find that the alleged harassment was an
isolated event that occurred on one day and by itself was not severe or
pervasive enough to constitute a hostile work environment. See Harris,
510 U.S. 17, 21-22. We therefore find that complainant has failed to
establish a prima facie case of harassment. Moreover, it is clear that
the agency promptly and reasonably addressed the alleged incident when
it reassigned the coworker to a different shift and installed cameras
and monitors.
With regard to not allowing complainant to work overtime on the day in
question, we will assume for purposes of analysis that complainant has
set forth a prima facie case of discrimination on the alleged bases.
The agency stated that complainant was not permitted to work overtime
since the alleged harasser was working that day and complainant had
previously stated she did not want to work with him. We find that
the agency articulated legitimate, nondiscriminatory reasons for not
allowing complainant to work overtime on the day at issue. We find that
complainant has not established by a preponderance of the evidence that
the agency's stated reasons for its decision are pretext intended to
mask discriminatory motivation.
After a review of the record in its entirety, it is the decision of
the Equal Employment Opportunity Commission to AFFIRM the agency's final
action finding no discrimination as a preponderance of the record evidence
does not establish that sex or race discrimination occurred.
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
May 31, 2005
__________________
Date