Temple Davis, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 28, 2000
01a00557 (E.E.O.C. Feb. 28, 2000)

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.