01A10205
06-28-2001
Patricia Novak, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency Appeal No. 01A10205 Agency No. 20041853
Patricia Novak v. Department of Veterans Affairs
01A10205
Jun 28, 2001
.
Patricia Novak,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency
Appeal No. 01A10205
Agency No. 20041853
DECISION
Patricia Novak (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated September 12, 2000 dismissing
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. In her complaint,
complainant alleged that she was subjected to harassment on the bases
of sex (female) and age (64 at relevant time) when, on April 6, 2000,
a Site Team visited the cemetery of which she is the Director and made
inappropriate comments, ignored the lack of irrigation at the cemetery,
and pressured her to retire and, subsequently, on April 12, 2000, the
Area Director failed to respond to her concerns about the Site Team visit.
The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1), for failing to state a claim, noting that complainant
did not allege that she suffered a personal loss or harm with regard
to a term or condition of employment. The agency also held that the
incident described was an isolated occurrence that did not rise to the
level of harassment.
On appeal, complainant contends that she did not have the opportunity
to provide the investigator with additional information to validate her
claim and that several cemetery employees can confirm the incidents
of harassment and verbal abuse. She alleges that her competence as
the Director of the cemetery was questioned by the events of April 6,
2000 and continues to be questioned.
In response, the agency reiterates its position that complainant raised a
solitary incident that does not rise to the level of unlawful harassment.
The agency also notes that the incident was not related to a cognizable
basis of discrimination.
ANALYSIS AND FINDINGS
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive� and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable
to the complainant, determine whether they are sufficient to state a
claim. See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). However, it is well-settled that, unless the conduct
is very severe, a single incident or a group of isolated incidents will
not be regarded as creating a discriminatory work environment. See James
v. Department of Health and Human Services, EEOC Request No. 05940327
(September 20, 1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th
Cir. 1982).
Here, complainant alleged that she was subjected to harassment when the
cemetery of which she is the Director was inspected by a Site Team and
found to be lacking in several respects. She alleged that members of
this Site Team also gave her and another employee information about
buyouts which she felt amounted to pressure to retire and that when
she raised these concerns with the Area Director, he did not respond.
After a careful review of the record, we find that although the method
chosen to evaluate the cemetery may have been less than polite, the
events that occurred on April 6, 2000, and the Area Director's subsequent
failure to address complainant's concerns, are not sufficiently severe
or pervasive to create a discriminatory work environment.
Accordingly, the agency's final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 28, 2001
Date