01996651
09-26-2001
Aretha M. Johnson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Aretha M. Johnson v. Department of Veterans Affairs
01996651
September 26, 2001
.
Aretha M. Johnson,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996651
Agency No. 98-3777
DECISION
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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the based on sex (female) when she was subjected to sex-based
harassment, consisting of the following incidents: (1) on October 8,
1998, her supervisor gave her a verbal warning for her handling of a radio
call from him; (2) on October 16, 1998, her supervisor made threatening
and hostile remarks to her; (3) on October 20, 1998, she received a letter
of counseling for failure to follow proper leave procedures; and (4) on
October 20, 1998, her supervisor issued a letter of counseling concerning
inappropriate behavior relating to the radio incident on October 8, 1998.
The record reveals that during the relevant time, complainant was
employed as a Police Officer, GS-5, step 1, at the agency's Chicago,
Illinois Health care System facility, Westside Division. Believing
she was a victim of discrimination, complainant sought EEO counseling
and subsequently filed a formal complaint on November 7, 1998. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. When complainant failed to
respond within the time period specified in 29 C.F.R. � 1614.108(f),
the agency issued a final decision.
In its FAD, the agency concluded that complainant had failed to establish
a claim of sex-based harassment because she had not demonstrated by
a preponderance of the evidence that the actions complained of were
severe or pervasive, and also because she had not demonstrated that
the actions complained of were based on her sex. Moreover, the FAD
found that alternatively analyzing the claim under a disparate treatment
theory, the agency articulated legitimate non-discriminatory reasons for
the discipline at issue, and complainant had not shown these reasons
to be a pretext for sex discrimination. In reaching this conclusion,
the FAD found that her supervisor denied making threatening or hostile
remarks to complainant as alleged, and that she had not demonstrated by
a preponderance of the evidence that this had occurred. Neither party
has filed any contentions on appeal.
After a review of the record in its entirety, it is the decision of the
Commission to AFFIRM the agency's final decision because the preponderance
of the evidence of record does not establish that discrimination based
on sex occurred.
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
September 26, 2001
__________________
Date