01994574
04-26-2000
Vicki M. Solomon, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Vicki M. Solomon, )
Complainant, )
) Appeal No. 01994574
v. ) Agency No. 950751
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Vicki M. Solomon (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405). Complainant alleged that she was discriminated against on
the bases of race (White) and reprisal (prior EEO activity) when her
supervisors harassed her and showed a lack of concern for her working
environment since November 1993. Complainant provided specific examples
of the alleged harassment and/or discrimination. Namely, she was accused
of theft in November 1993 and management never told her that she was
not suspected; she was harassed by the Lead Cashier (White) in December
1993 after she reported that the Lead Cashier was causing racial tension;
she was not provided with sufficient support staff or overtime in August
1994; and she was not provided with a bulletproof vest in November 1994.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as an Agent Cashier, Fiscal Service, GS-5, at the agency's Long Beach,
California facility. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on December 2, 1994. The agency procedurally dismissed
certain issues raised by complainant and accepted the above issue
for investigation. Complainant did not appeal the partial dismissal.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision by the agency.
Complainant initially requested a hearing before an AJ, but subsequently
requested a final agency decision.
In its FAD, the agency concluded that complainant failed to establish
that she was subjected to discrimination. The agency first found that
complainant failed to establish that the allegedly harassing actions
were related to her race or prior EEO activity.
The agency then noted that complainant failed to establish a prima
facie case of race discrimination in regard to the accusation of theft
because all agent cashiers were jointly told that money was missing.
The agency concluded that complainant failed to establish a prima facie
case of reprisal discrimination with regard to the failure to assign
staff support and the denial of overtime because management had not been
aware that complainant had engaged in protected EEO activity.
The agency acknowledged that complainant had established a prima facie
case of reprisal discrimination in regard to the bulletproof vest
incident, noting that it occurred within a few weeks of her contact
with an EEO Counselor. The agency went on, however, to articulate
legitimate nondiscriminatory reasons for this and its other allegedly
discriminatory actions. The agency noted that management officials
did inform complainant that she was not suspected of being a thief.
The agency then found that staff support and overtime were denied in
August 1994 because help was provided only when it was available and
overtime was given only when necessary to ensure that the required work
was completed. Finally, the agency noted that complainant was on leave
when the bulletproof vests were issued and that when it was determined
that Security Service did not have a vest in complainant's size, one
was ordered for her.
In conclusion, the agency found that complainant did not prove that the
agency's articulations were pretextual or that the true reason for the
actions taken was discriminatory.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency intentionally delayed the
processing of her complaint and discriminated against her in other ways
during the processing of her complaint. She contends that her identity
was revealed to her immediate supervisor before she met with a counselor
and waived anonymity. She also relates the complicated procedural
history of her complaint, indicating that she revoked her request for
a hearing only after waiting three years for a hearing to take place.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Harassment
Turning first to complainant's claim that the incidents described above
constitute racial and/or retaliatory harassment, we find that complainant
has failed to establish a claim of harassment based on race or prior
EEO activity.
Complainant may assert a Title VII cause of action based on harassment
if the discriminatory conduct was so severe or pervasive that it
created a hostile work environment on the basis of her race, color,
gender, religion, national origin, or prior EEO activity. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). In the case
at hand, complainant has not established that the actions taken against
her were motivated by her race or prior EEO activity.
In terms of retaliatory harassment, although complainant indicated
that she had no EEO activity until October 7, 1994, she also alleged
that in December 1993 she confronted the Lead Cashier (LC) about LC's
racial harassment of a Black cashier. Complainant alleged that after
she spoke with LC, LC began to harass her. Complainant's opposition
to what she reasonably believed was discrimination on the part of
LC qualifies as prior protected activity. See EEO Compliance Manual,
Section 8: Retaliation, EEOC No. 915.003 at 8-4, 8-7 (May 20, 1998).
However, complainant provided no evidence that any action taken by the
agency was based on this opposition. Complainant's supervisor testified
without rebuttal that she was not aware that complainant had alleged any
discriminatory treatment by LC. Moreover, complainant did not contend
that any agency officials took action against her in retaliation for
her opposition to LC's behavior, but instead noted that soon after she
reported the situation, LC's discriminatory behavior ceased. The only
retaliation complainant alleged was at the hands of LC who allegedly
made rude comments and was very critical and hostile to complainant after
complainant confronted her. We note, however, that a group of isolated
incidents, such as a few rude comments by a coworker that cease upon
complaint to a management official, will not be regarded as creating
a discriminatory work environment. See Walker v. Ford Motor Company,
684 F.2d 1355, 1358-9 (11th Cir. 1982); Johnson v. Bunny Bread Co.,
646 F.2d 1250, 1257 (8th Cir. 1981).
The record establishes that complainant had no other EEO activity until
she contacted an EEO Counselor on October 7, 1994 with regard to the
current complaint. The only incident she described which took place
after this point was the failure to provide her with a bulletproof vest
in November 1994. Complainant offered no evidence to show that this
failure was based on her prior EEO activity, rather than on the fact
that she was on leave when the vests were issued and, upon her return,
a vest in her size had to be ordered.
Complainant's claim of racial harassment based on the described incidents
is equally flawed. Complainant's statements established that her work
environment between November 1993 and November 1994 was very stressful.
Concerns about embezzlement and misuse of patient funds plagued
the agency and no doubt created an unpleasant working environment.
Complainant has offered no evidence, however, that any of the actions
she described were taken against her due to her race. On the contrary,
it appears that all employees within Financial Services, not just those
of a certain race, were faced with an extremely stressful environment.
Complainant's only evidence that race had anything to do with any of the
incidents she described suggests that non-White employees were treated
less favorably than White employees. Complainant alleged that after
the agent cashiers were told that money was missing, the two non-White
cashiers were transferred whereas she and the other White cashier remained
in their positions. Complainant also alleged that due to the stressful
environment, LC made discriminatory remarks about a Black cashier and that
when complainant complained, LC harassed her. Even if true, neither of
these incidents establish that complainant was harassed due to her race.
Accordingly, complainant has not established that she was harassed
because of her race or prior EEO activity.
Disparate Treatment
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411,
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the
Commission agrees with the agency that complainant failed to establish
that she was subjected to discrimination.
We first note that complainant did not establish a prima facie case of
retaliation in regard to the accusation of theft, the denial of support
staff, or the denial of overtime. Complainant engaged in no protected
EEO activity prior to the November 1993 accusation of theft. The only EEO
activity complainant engaged in prior to the other two incidents was her
opposition to LC's behavior, discussed in detail above. As noted above,
the only adverse action alleged by complainant to have come from this
activity, was rude treatment at the hands of LC.
Turning to the claims of race discrimination, complainant did not
establish a prima facie case of race discrimination with regard to the
accusation of theft because she failed to show that similarly situated
employees outside her protected groups were treated more favorably than
she. Indeed, complainant acknowledged that all the agent cashiers�White,
Black, and Hispanic--were told jointly of the missing money and that
only the Black and Hispanic cashiers were thereafter transferred.
Complainant failed to establish a prima facie case of race discrimination
in relation to her allegation that she was discriminated against in
August 1994 when support staff was not assigned to assist her and her
request for overtime was denied. Complainant failed to establish that
any similarly situated employee outside her protected class was treated
more favorably than she. The employee whom she alleged was given support
staff in a similar situation is also White. Moreover, complainant has
offered no other evidence to indicate that the agency's actions were
motivated by her race.
In regard to the bulletproof vest incident, complainant established
a prima facie case of race and reprisal discrimination. Complainant
established that she is within a protected group and that she was not
given a bulletproof vest when other cashiers were. She also established
that this failure occurred within a few weeks of her initial EEO contact,
of which the relevant management officials were aware.
The agency articulated a legitimate nondiscriminatory issue for this
action; namely, that complainant was on leave when employees were measured
and issued bulletproof vests and that when it was determined that the
Security Service did not have a jacket in complainant's size, one was
ordered for her. Complainant failed to present any evidence that more
likely than not, the agency's articulated reason for this incident was
a pretext for discrimination.
Accordingly, complainant has failed to establish that she was subjected
to disparate treatment because of her race or prior EEO activity.
Complaint Processing
On appeal and throughout the processing of this complaint, complainant
alleged that the agency purposefully delayed and confused the processing
of her complaint and that her identity was revealed without her permission
before she met with the EEO counselor. After a thorough review of the
file, we find no evidence that the delays complainant described were
motivated by her race or prior EEO activity. Moreover, while there
were delays in processing, they appear to have been caused by the AJ's
desire to consolidate two related complaints, which is a legitimate goal.
Finally, complainant herself decided that she would prefer to receive a
FAD than to wait longer for a hearing. While we agree that the processing
of complainant's allegations was fraught with delay and complexity,
we find no evidence that this was the intention of the agency.
Furthermore, we note that at this point in the processing of
complainant's present complaint, the EEO officials' purported failure
to maintain complainant's anonymity constitutes harmless error because
complainant's complaint has reached the formal stage and anonymity
is no longer available. The agency is hereby advised, however, to
ensure that its EEO officials are aware of the regulations and the EEO
rights of its employees. We refer the agency to the Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110),
as revised November 9, 1999, at Chapter 2 and Appendix A, which deal
with the pre-complaint process.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
4/26/00
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant 1 On 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.