Mary Perry, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 16, 2005
01a45255r (E.E.O.C. Dec. 16, 2005)

01a45255r

12-16-2005

Mary Perry, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Mary Perry,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A45255

Hearing No. 150-2004-00219X

Agency No. 200I-0594-2003102289

DECISION

On July 27, 2004, complainant filed an appeal from the agency's June 23,

2004 final order concerning her equal employment opportunity (EEO)

complaint alleging 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. The appeal is deemed timely and is accepted pursuant to 29 C.F.R.

� 1614.405(a). For the following reasons, the Commission AFFIRMS the

agency's final order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

a Food Service Worker at the agency's Lake City, Florida Medical Center.

On April 2, 2003, complainant contacted an EEO Counselor, and on May 27,

2003, she filed a formal EEO complaint, alleging that she was discriminated

against on the basis of race (African-American) and in reprisal for prior

protected activity (arising under an EEO statute that was unspecified in

the record) when:

1. On March 11, 2003, complainant's supervisor verbally attacked her

in a loud voice and very rude manner. The supervisor asked

complainant about using specific canned goods for tube feeding and

told complainant in a loud tone that she was the supervisor and

complainant must do as she was told;

2. On March 11, 2003, while complainant was attending a mandatory

training class, complainant's supervisor came into the class and

yelled at her in a loud, unpleasant tone in the presence of other

employees. The supervisor came into auditorium and questioned

complainant about nourishment, although co-workers informed

complainant that the nourishment delivered had already been

completed that day; and

3. On March 11, 2003, complainant had to be hospitalized and was

placed in an intensive care unit for two days due to the meanness,

rudeness, and attack on her by her supervisor.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request a

hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing, and the AJ held a hearing on April 4, 2004 and issued

a decision on May 23, 2005. The agency subsequently issued a final order

adopting the AJ's finding that complainant failed to prove that she was

subjected to discrimination as alleged.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal Camera

Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation

omitted). A finding regarding whether or not discriminatory intent existed

is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293

(1982). An AJ's conclusions of law are subject to a de novo standard of

review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or on

the tone of voice of a witness will be accepted unless documents or other

objective evidence so contradicts the testimony or the testimony so lacks

in credibility that a reasonable fact finder would not credit it. See EEOC

Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS

Under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S.

17 (1993), in order to prevail on a claim of harassment, complainant must

prove that: (1) she was subjected to harassment that was sufficiently

severe or pervasive to alter the terms or conditions of employment and

create an abusive or hostile environment; and (2) the harassment was based

on her membership in a protected class. See EEOC Notice No. 915.002 (March

8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6;

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,

1997).

We find that complainant failed to present any evidence that the alleged

actions were motivated by her race or previous EEO activity. In so finding,

we note that complainant's supervisor was also African-American, and

complainant's previous EEO activity was in the year 2000, well before the

events that occurred in the instant complaint. Moreover, we note that

complainant acknowledged that her relationship with her supervisor suffered

after she married a co-worker in 1992 because her supervisor wanted her

goddaughter to marry the co-worker, and the supervisor openly talked about

the affair complainant's husband later had with a co-worker in front of

complainant. The testimony of several witnesses about the strained

relations between complainant and her supervisor further buttresses our

conclusion that the supervisor's actions were motivated by a personal

conflict with complainant, not race or reprisal. Consequently, we find

that substantial evidence supports the AJ's finding. Accordingly, the

Commission AFFIRMS the agency's final order.

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 (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

_December 16, 2005_____________

Date