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