Kim R. Joseph, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 17, 2003
01A23891_r (E.E.O.C. Mar. 17, 2003)

01A23891_r

03-17-2003

Kim R. Joseph, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Kim R. Joseph v. Department of Veterans Affairs

01A23891

March 17, 2003

.

Kim R. Joseph,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A23891

Agency No. 200L-2116

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 the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The record reveals that during the relevant time, complainant was

employed as a Food Service Worker at the agency's Veterans Canteen

Service, VA Medical Center, New Orleans, Louisiana. Complainant sought

EEO counseling and subsequently filed a formal complaint on April 19,

2001, alleging that she was subjected to harassment on the bases of race,

age, and in reprisal for prior protected activity when:

(a) complainant was required to work by herself, and was not able to go

to the washroom without calling for someone to relieve her;

(b) her area was subjected to �white glove� inspections accomplished

by the Chief of the Service, and discrepancies were recorded on a

daily basis;

(c) she was issued an unsatisfactory performance evaluation on or about

March 6, 2001. This evaluation was reversed after complainant filed an

EEO complaint of discrimination on or about March 30, 2001; and

(d) on or about April 13, 2001, complainant's day off, her assigned area

was covered by two Canteen Service employees, whereas she was required

to work the area alone.

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 final decision, the agency found that complainant was not

harassed as a result of the four claims identified above. The agency

determined that complainant did not show that the conduct in question was

sufficiently severe or pervasive so as to alter her working conditions,

or create an objectively hostile work environment.

To establish a claim of harassment based on race, age, and reprisal,

a complainant must show that (1) she is a member of the 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. USPS, EEOC Appeal No. 01965238 (October

16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be

evaluated from the objective viewpoint of a reasonable person in the

victim's circumstances. Enforcement Guidance on Harris v. Forklift

Systems, Inc., EEOC Notice No. 915.003 (March 8, 1994). Further,

the incidents must have been �sufficiently severe and pervasive to

alter the conditions of complainant's employment and create an abusive

working environment.� Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75

(1998). In the case of harassment by a supervisor, complainant must

also show that there is a basis for imputing liability to the employer.

See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Our review of the evidence in its entirety leads us to conclude that

complainant has not shown by a preponderance of the evidence that she

was subjected to unlawful harassment.

Regarding claim (a), the record contains an affidavit from the Chief

Canteen Services (Chief), wherein he stated that most stations including

complainant's station, are one-person operations and that complainant has

access to a telephone to call for someone to relieve her on a daily basis.

The Chief further stated that an employee was routinely assigned to work

with complainant during the lunch rush unless there was not enough staff.

Regarding claim (b) the record reflects that the agency pizza shop, where

complainant worked, was written up by the infection control department on

several occasions as being unsatisfactory; and at one point, the pizza

shop was photographed . The record reflects that the Chief stated that

the pictures were taken �just to see where we needed to be from there.�

The record also reflects that the Chief conducts weekly inspections, but

not �white glove� inspections, of complainant's work area. The record

reflects that such steps were taken by agency officials because at one

point, complainant's work was considered �really bad.�

Regarding claim (c), the record reflects that complainant's supervisor

had initially prepared a performance evaluation, but had not presented

mid-year appraisals. The agency Chief indicated that he was not going

to hold employees accountable when they had not been previously informed

that their performance was unacceptable; that the performance evaluations

should be changed, and that an Assistant Chief be considered responsible

for any deficiencies. The record indicates that the Chief reversed

his decision on complainant's unsatisfactory performance appraisal to

fully successful, due to absence of specific documentation concerning

complainant's performance and training.

Finally, regarding claim (d), the Chief stated that on April 13, 2001,

complainant's assigned area was covered by two supervisors, and not

two employees as alleged by complainant.

The Commission determines that the events cited by complainant do not

rise to the level of discriminatory harassment. Therefore, the agency's

finding of no discrimination is AFFIRMED.

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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 17, 2003

__________________

Date