Jacqueline Alexander, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 3, 2001
01995260_r (E.E.O.C. Dec. 3, 2001)

01995260_r

12-03-2001

Jacqueline Alexander, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Jacqueline Alexander v. Department of Veterans Affairs

01995260

December 3, 2001

.

Jacqueline Alexander,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01995260

Agency No. 97-1192

DECISION

Pursuant to 29 C.F.R. �1614.405, the Commission accepts the complainant's

appeal from the agency's final order in the above-entitled matter.

Complainant, a Staff Chaplain, filed a formal EEO complaint in which

she claimed that the agency discriminated against her on the bases of

her sex (female), race (Black), and in reprisal for her previous EEO

activity under Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e, et seq. Complainant claimed that she was discriminated

against when she received a rating of �Fully Successful� on her 1995-1996

performance evaluation and was subjected to harassment during a meeting

on July 15, 1996, that was held to discuss that performance evaluation.

The agency accepted for investigation the claims concerning complainant's

performance evaluation and the meeting of July 15, 1996. Subsequent to

the completion of the investigation, complainant requested a hearing

before an EEOC Administrative Judge. Complainant, however, withdrew her

request for a hearing on November 12, 1998, and the complaint was remanded

to the agency. The agency reviewed the complaint and determined that a

supplemental investigation was warranted. Subsequent to the completion

of the supplemental investigation, the agency issued a final order

finding that no discrimination occurred. The agency determined that

it articulated legitimate, nondiscriminatory reasons for complainant's

overall �Fully Successful� rating. The agency referenced the Chief

Chaplain's statement that complainant failed to prepare satisfactory

spiritual assessments or do more than provide ministry of presence, the

basic level of service. The agency determined that complainant failed

to establish that the agency's reasons were pretextual. With regard

to complainant's claim of harassment, the agency determined that the

alleged conduct did not occur and that if it did occur, complainant was

the perpetrator rather than the victim. This appeal followed.

Applying the standards set forth in McDonnell Douglas Corp. v Green,

411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d

292, 310 (5th Cir. 1981); 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 by a preponderance of the evidence that the agency's

articulated reasons for rating complainant as �Fully Successful� were

a pretext for discrimination.

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether she has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

In this case, the Commission finds that the agency has articulated

legitimate, nondiscriminatory reasons for its action. Consequently,

we will dispense with an examination of whether complainant established

a prima facie case with respect to the above cited issues and review

below, the reasons articulated by the agency for its actions as well as

complainant's effort to prove pretext.

The agency explained with regard to complainant's overall performance

rating of �Fully Successful� that complainant received a �Fully

Successful� rating on all four elements, Pastoral Care, Program

Administration, Resource Utilization, and Customer Service. The Chief

Chaplain noted that complainant was deficient with respect to the content

of her patient spiritual assessments. The Chief Chaplain stated that

complainant received a �Fully Successful� rating on the Pastoral Care

element because the documentation that she provided was not documentation

that a multi-disciplinary team would use for holistic care of patients.

According to the Chief Chaplain, complainant provided the nursing home

patients with a ministry of presence, the basic level of service, but

she did not provide support groups or counseling. The Chaplain explained

that she had spoken to complainant about her deficiencies in the middle

of the evaluation period but no improvement occurred.

In support of her position, complainant submits three affidavits from

coworkers who provide favorable descriptions of complainant's work habits.

In one of these affidavits, a chaplain stated that the Chief Chaplain

unfairly singled out complainant for unduly burdensome assignments.

According to this chaplain, the Chief Chaplain showed preferential

treatment for chaplains that she had personally hired and complainant

was not among them. We find that the arguments presented by complainant

do not establish, by a preponderance of the evidence, that the agency's

stated reasons for her performance rating were pretextual.

With regard to complainant's claim of harassment, we note that in prior

decisions, the Commission has held that in order to establish a case of

harassment, a complainant must raise claims, that when considered together

and assumed to be true, are sufficient to state a hostile or abusive work

environment claim. See Estate of Routson v. National Aeronautics and

Space Administration, EEOC Request No. 05970388 (February 26, 1999).

Consistent with the Commission's policy and practice of determining

whether a complainant's harassment claims are sufficient to state a

hostile or abusive work environment claim, the Commission has repeatedly

found that claims of a few isolated incidents of alleged harassment

usually are not sufficient to state a harassment claim. See Phillips

v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,

1996); Banks v. Department of Health and Human Services, EEOC Request

No. 05940481 (February 16, 1995).

Moreover, the Commission has repeatedly found that remarks or comments

unaccompanied by a concrete agency action usually are not a direct and

personal deprivation sufficient to render an individual aggrieved for

the purposes of Title VII. See Backo v. United States Postal Service,

EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal

Service, EEOC Request No. 05940695 (February 9, 1995).

Complainant's claim of harassment concerns a meeting that occurred on

July 15, 1996, with regard to her performance appraisal. Complainant

maintains that during the meeting, the Chief Chaplain intimidated

her by yelling and shaking her finger. The Chief Chaplain stated

that complainant became agitated and slammed the door while leaving.

The Acting Assistant Chief Chaplain also attended the meeting and

he stated that complainant shouted at the Chief Chaplain �You little

Hitler, you! You don't scare me.� According to the Acting Assistant

Chief Chaplain, complainant repeatedly pounded the table and said �You

have messed with the wrong person this time,� and �You won't get away with

it!� Upon review of the evidence, we find that complainant failed to

establish that she was subjected to harassment at the relevant meeting.

Assuming arguendo that complainant's description of the meeting is

true, we find that the alleged actions were not sufficiently severe

enough to unreasonably interfere with complainant's work performance.

Harris v. Forklift Systems, Inc. 510 U.S. 17, 23 (1993).

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final order,

because a preponderance of the record evidence does not establish that

discrimination 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

December 3, 2001

__________________

Date