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