01a00557
02-28-2000
Temple Davis, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Temple Davis, )
Complainant, )
)
v. ) Appeal No. 01A00557
) Agency No. 98-3307
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from a final
decision, dated September 30, 1999, which the agency issued pursuant
to 29 C.F.R. �1614.110.<1> The Commission accepts the complainant's
appeal pursuant to 64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified
at 29 C.F.R. � 1614.405).
After a review of the entire record, including the complainant's appeal
submission, the Commission finds that the complaint failed to prove the
agency subjected her to a hostile work environment based on her race
(White) and/or age (DOB: 6-16-37).
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. When a workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim's employment
and create an abusive working environment, Title VII is violated. Id.
To determine whether a work environment is objectively hostile or abusive,
the trier of fact must consider all of the circumstances, including the
following: 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. Id at 23.
The complainant listed seven behaviors which she viewed as harassing due
to her race and age. However, the Commission finds that, to the extent
that the conduct occurred, it was neither so severe nor pervasive as
to alter the terms and conditions of her employment. There also is no
showing that the conduct was motivated by the complainant's race and/or
age.
For example, the complainant and her coworkers were required to submit
an annual leave schedule for 1998 in order to facilitate planning.
The employees still were required to submit specific requests for
leave approval in addition to the annual schedule. In what appears
to be a breakdown in communication between the complainant and the
newly-appointed supervisor, the complainant thought that the annual
submission was sufficient to constitute a leave request. Because of
the confusion, the complainant was unable to make travel arrangements
in time for a vacation she had planned for May 1998. However, there
is no evidence in the record which indicates that the complainant was
disadvantaged regarding her vacation plans due to her race and/or age.
The complainant also has not proven by a preponderance of the evidence
that the Chief and his secretary were rude to her, for example, by never
saying good morning. The record establishes that the complainant was
initially denied a personal identification number (PIN) for making
long distance telephone calls. The stated reason for the denial was
that she did not need a PIN because the only long distance calls that
were required in her GS-5 Budget and Fiscal Clerk position were to
vendors with toll-free 800 numbers. The complainant acknowledged
in her affidavit (page 10) that she only would need the number in
an emergency and characterized the matter as a �small thing.� In
addition, the complainant was granted a PIN number once she raised the
matter through the union. Similarly, she was allowed to see an Employee
Assistance Program ( EAP) counselor by contacting the union. However,
the complainant has not shown that she was treated differently than other
employees regarding EAP counseling. The union also intervened regarding
what the complainant viewed as threats that she would be downgraded.
The union informed the agency that any such action would be grieved
and no downgrade occurred. As to doing the work of another clerk, the
record establishes that the complainant was sometimes required to do
the scheduling for both outpatient and inpatient surgeries although
her official duties required only the inpatient scheduling except
in the absence of the other clerk. She also was asked to sort mail,
answer the telephone, and do filing work when stationed at the Operating
Room desk. However, the complainant has not shown that she was required
to perform any of these duties because of her race and/or age, or that
the performance of such other duties as assigned substantially changed
the terms and conditions of her employment. In addition, on one or two
occasions, she was told to move heavy boxes. She did not do so because of
a back condition without any repercussions. The remaining matter pertains
to what the complainant describes on appeal as her being placed under
�house arrest.� According to the affidavit of the union representative,
the complainant was required to report to the Chief or his secretary
any time she would be leaving her area or someone would be coming to
visit her. The Chief represented in his affidavit, however, that all
employees were required to keep others informed when they left the area so
that they could be contacted if necessary. The complainant has not shown
that the Chief was motivated by an unlawful motive regarding this matter.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's finding
that the complainant failed to prove that the agency subjected her to
a discriminatory hostile work environment.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 28, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________ ___________________________
DATE Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all Federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.