01A12340
07-08-2002
Kathleen M. Azzarone, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Kathleen M. Azzarone v. Department of Veterans Affairs
01A12340
July 8, 2002
.
Kathleen M. Azzarone,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A12340
Agency No. 99-3883
DECISION
Complainant timely initiated an appeal from a final agency decision
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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted for the Commission's de novo review 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 held a
term appointment as a Program Support Assistant at the agency's Veterans
Center in Worcester, Massachusetts. Complainant had begun working for
the facility in 1992, and her term appointment was scheduled to expire
in 1999. In June 1998, the agency requested that complainant submit
a statement in writing concerning her interaction with a veteran who
had come in for counseling with her supervisor and who had subsequently
filed a complaint (presumably with the appropriate office at the agency's
headquarters) concerning the supervisor's conduct. This conduct involved
the supervisor running a private business selling herbal pills to,
inter alia, veterans who came in for counseling.<2>
Complainant alleges that after she submitted this statement, her
supervisor began to harass her by putting her down, making jokes about
dumb blondes, and stating that she could not do her job. Complainant
became increasingly anxious that her supervisor would not recommend
that she become a full-time employee. He did not recommend her, and
in 1999, complainant competed unsuccessfully for her position which was
awarded to a female selectee. When the selectee declined the position,
it was re-announced. Complainant reapplied but was again not selected
in favor of a female.
Complainant sought EEO counseling and subsequently filed a formal
complaint on July 26, 1999, alleging that she was discriminated against
on the bases of sex (female) and disability (anxiety, depression, post
traumatic stress disorder) when her supervisor harassed her and she was
not selected for the position she had held for so long. 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. Complainant requested that the agency
issue a final decision. The agency concluded that complainant failed
to prove her claims and found no discrimination. On appeal, complainant
states that her arguments were not addressed and that the decision only
supported the agency's defense.
Upon review of the record, we find that the agency's decision did
address all of complainant's claims in detail and candidly admitted that
while complainant's supervisor may have been a tremendous advocate for
veterans, he was a very poor manager and treated complainant egregiously.
However, we agree with the agency's finding that its actions were not
in violation of Title VII or the Rehabilitation Act. For the purposes
of this analysis, we assume arguendo that complainant is a qualified
individual with a disability.
Turning first to complainant's claim of harassment, we find that
the majority of the harassment consisted of complainant's supervisor
constantly crushing her sense of self worth, disparaging her in front of
her colleagues, and generally humiliating her. While the record supports
complainant's contentions, we find the evidence insufficient to establish
that the supervisor's conduct was based on complainant being female or
having a disability. We note that to the extent complainant alleged her
supervisor put her down because she had trouble remembering things, we
find that the medical evidence in the record is insufficient to establish
a nexus between her impairments and her forgetfulness. We further note
that while the supervisor's inappropriate fondness for �dumb blonde�
jokes in the work place was more likely than not directed at complainant,
we decline to find that the jokes themselves were sufficiently severe or
pervasive to render the work environment objectively hostile and abusive.
Accordingly, under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993) and Fox v. General Motors, 247 F.3d 169 (4th
Cir. 2001), we decline to find that complainant established harassment
on the bases of her sex or disability.
Turning to complainant's non-selection claims, we find that in both
instances, a female was selected, thereby defeating complainant's claim of
sex discrimination. Even assuming that complainant established a prima
facie case of disability discrimination in regard to the selections,
in spite of her many years of service in the position, the agency found
that she was not as well qualified for the position as the Selectees,
and complainant failed to present evidence that this explanation was
unworthy of belief.<3>
While we do not condone any of the conduct complainant was subjected
to by the agency, we conclude that complainant failed to prove, by a
preponderance of the evidence, that the agency violated Title VII or the
Rehabilitation Act. Accordingly, we affirm the agency's final decision.
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
July 8, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants
for employment.
2 The record indicates that the supervisor took early retirement in
lieu of receiving a reprimand for his conduct and refused to cooperate
in the investigation of this complaint.
3 We do note that an error was made in tallying complainant's score on
her interview in the first selection. However, even in recalculating
complainant's score from the 16 to the 30 that she actually earned,
she was still not competitive with the Selectee who earned a score of 54.