01A23891_r
03-17-2003
Kim R. Joseph, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Kim R. Joseph v. Department of Veterans Affairs
01A23891
March 17, 2003
.
Kim R. Joseph,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23891
Agency No. 200L-2116
DECISION
Complainant timely initiated an appeal from a final agency decision
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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The record reveals that during the relevant time, complainant was
employed as a Food Service Worker at the agency's Veterans Canteen
Service, VA Medical Center, New Orleans, Louisiana. Complainant sought
EEO counseling and subsequently filed a formal complaint on April 19,
2001, alleging that she was subjected to harassment on the bases of race,
age, and in reprisal for prior protected activity when:
(a) complainant was required to work by herself, and was not able to go
to the washroom without calling for someone to relieve her;
(b) her area was subjected to �white glove� inspections accomplished
by the Chief of the Service, and discrepancies were recorded on a
daily basis;
(c) she was issued an unsatisfactory performance evaluation on or about
March 6, 2001. This evaluation was reversed after complainant filed an
EEO complaint of discrimination on or about March 30, 2001; and
(d) on or about April 13, 2001, complainant's day off, her assigned area
was covered by two Canteen Service employees, whereas she was required
to work the area alone.
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 final decision, the agency found that complainant was not
harassed as a result of the four claims identified above. The agency
determined that complainant did not show that the conduct in question was
sufficiently severe or pervasive so as to alter her working conditions,
or create an objectively hostile work environment.
To establish a claim of harassment based on race, age, and reprisal,
a complainant must show that (1) she is a member of the statutorily
protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Humphrey v. USPS, EEOC Appeal No. 01965238 (October
16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be
evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.003 (March 8, 1994). Further,
the incidents must have been �sufficiently severe and pervasive to
alter the conditions of complainant's employment and create an abusive
working environment.� Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Our review of the evidence in its entirety leads us to conclude that
complainant has not shown by a preponderance of the evidence that she
was subjected to unlawful harassment.
Regarding claim (a), the record contains an affidavit from the Chief
Canteen Services (Chief), wherein he stated that most stations including
complainant's station, are one-person operations and that complainant has
access to a telephone to call for someone to relieve her on a daily basis.
The Chief further stated that an employee was routinely assigned to work
with complainant during the lunch rush unless there was not enough staff.
Regarding claim (b) the record reflects that the agency pizza shop, where
complainant worked, was written up by the infection control department on
several occasions as being unsatisfactory; and at one point, the pizza
shop was photographed . The record reflects that the Chief stated that
the pictures were taken �just to see where we needed to be from there.�
The record also reflects that the Chief conducts weekly inspections, but
not �white glove� inspections, of complainant's work area. The record
reflects that such steps were taken by agency officials because at one
point, complainant's work was considered �really bad.�
Regarding claim (c), the record reflects that complainant's supervisor
had initially prepared a performance evaluation, but had not presented
mid-year appraisals. The agency Chief indicated that he was not going
to hold employees accountable when they had not been previously informed
that their performance was unacceptable; that the performance evaluations
should be changed, and that an Assistant Chief be considered responsible
for any deficiencies. The record indicates that the Chief reversed
his decision on complainant's unsatisfactory performance appraisal to
fully successful, due to absence of specific documentation concerning
complainant's performance and training.
Finally, regarding claim (d), the Chief stated that on April 13, 2001,
complainant's assigned area was covered by two supervisors, and not
two employees as alleged by complainant.
The Commission determines that the events cited by complainant do not
rise to the level of discriminatory harassment. Therefore, the agency's
finding of no discrimination is AFFIRMED.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
March 17, 2003
__________________
Date