Alam E. Sher, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 17, 2000
01991930 (E.E.O.C. Nov. 17, 2000)

01991930

11-17-2000

Alam E. Sher, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Alam E. Sher v. Department of Veterans Affairs

01991930

11-17-00

.

Alam E. Sher,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01991930

Agency No. 96-0633

DECISION

INTRODUCTION

Complainant filed a timely appeal with the Equal Employment Opportunity

Commission (the Commission) from the final agency decision (FAD)

concerning his allegation that the agency discriminated against him in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq.<1> The appeal is accepted by the Commission in

accordance with 29 C.F.R. � 1614.405. For the reasons set forth below,

we AFFIRM the FAD.

ISSUE PRESENTED

The issue presented is whether complainant proved that he was subjected

to discriminatory harassment because of his race (Asian-American) and

national origin (Pakistani) when (1) on or about November 6 through

December 1, 1995, he was allegedly bypassed by the Associate Director

(AD); (2) on or about September 25, October 13 and 27, and December 1

and 7, 1995, the AD allegedly met with his subordinates and the Union,

without him; (3) on or about November 2, 1995, he was allegedly denied

permission to meet with the Station Director (Director); and (4) on or

about November 2, 1995, his hiring authority was allegedly taken away

from him.

BACKGROUND

Complainant filed a formal complaint against the agency. The complaint

took the form of a letter to the Secretary, dated December 27, 1995, and

a formal complaint dated February 7, 1996. Following an investigation, he

was provided a copy of the investigative file and notified of his right to

request a hearing before an EEOC Administrative Judge (AJ). Complainant

initially requested a hearing, but withdrew that request. Accordingly,

the AJ remanded the complaint file to the agency for a final decision.

The agency found that complainant had not been discriminated against.

It is from this decision that complainant now appeals. Complainant did

not offer any new contentions on appeal.

Complainant serves as the Chief, Pharmacy Service at the agency's

Medical Center in Grand Island, Nebraska. He has served in the position

since 1994. According to complainant, there were many problems in the

Pharmacy Service when he first arrived. Among other matters, he cited

excessive overtime usage, which he greatly reduced. The record also

indicates that there were serious problems with interpersonal relations

in the Pharmacy Service. The agency attributed these problems, in part,

to the changes complainant made. Complainant acknowledged that there were

numerous grievances and unfair labor practice charges filed against him.

The Director and the AD testified that the Pharmacy Service had a high

rate of these actions.

With respect to the AD bypassing him, complainant testified that,

after he ordered certain items of furniture, the AD changed the order.

The AD testified that complainant ordered new file cabinets, chairs,

etc. for the office, but there was a pressing need for �ergonomically

safe� furniture for lower level employees. According to the agency, the

AD changed the order from �niceties for private offices� to adjustable

stools and other working furniture. The AD admitted meeting with some of

complainant's subordinates without him being present. The AD indicated

that the employees requested that the meeting be held without complainant

being present.

The Director testified that he only declined to meet with complainant

on one occasion because the meeting concerned problems complainant was

having with the AD, his direct supervisor. According to the Director,

he wanted complainant to make more of an effort to work out matters

with the AD, before coming to him and bypassing the chain of command.

The agency maintained that complainant believed that anything less than

total agreement with his actions by the Director and the AD was evidence

that he was not being adequately supported. Both the Director and the

AD felt that complainant could have done more himself to resolve the

problems within the Pharmacy Service.

Finally, according to complainant, prior to November 1995, he had the

authority to hire employees for the Pharmacy Service. He indicated that

he had previously hired three pharmacists. In the Fall of 1995, however,

he was told that he did not have the authority to hire an individual

whom he had selected and who had moved to Nebraska from another state for

the job. The Chief of Human Resources (Chief) testified that complainant

never had the authority to actually hire anyone. According to her, he

only had the authority to select which applicant would be hired if the

decision was made to fill a vacancy. In the Fall of 1995, the Resource

Utilization Board determined that the vacancy in the Pharmacy Service

would not be filled because the station had to reduce its staffing levels.

According to the Chief, she was the only person who had the authority

to actually commit a vacancy to an applicant. The Chief stated that,

if complainant, in the past, told applicants that they were hired and

they came to work without any problems, then the decision to fill the

vacancy had to have been made elsewhere and the applicant notified by

Human Resources.

The agency, viewing complainant's complaint as a claim of disparate

treatment, found, in pertinent part, that even if he established a

prima facie case of race and national origin discrimination, there

were legitimate, nondiscriminatory reasons for the actions taken by

management officials. Complainant, according to the agency, failed to

establish pretext.

ANALYSIS AND FINDINGS

Although we agree with the agency's determination that complainant

failed to establish discrimination based on disparate treatment,

the record indicates that his actual claim was based on harassment,

not disparate treatment. Therefore, we will address the issue of

harassment below. Harassment of an employee that would not occur

but for the employee's race, color, sex, national origin, age,

disability or religion is unlawful if it is sufficiently patterned or

pervasive. Garretson v. Department of Veterans Affairs, EEOC Appeal

No. 01945351 (April 4, 1996); McKinney v. Dole, 765 F.2d 1129, 1138-39

(D.C. Cir. 1985). The Commission's Enforcement Guidance: Vicarious

Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice

No. 915.002 (June 18, 1999) identifies two types of such harassment:

(1) harassment that results in a tangible employment action; and (2)

harassment that creates a hostile work environment. Based on the facts

of this case, we will analyze this matter as an allegation of harassment

that creates a hostile work environment.

To establish a prima facie case of hostile environment harassment, the

complainant must show that: (1) he belongs to a statutorily protected

class; (2) he 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. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.

Evidence of the general work atmosphere, involving employees other than

the complainant, also is relevant to the issue of whether a hostile

environment existed in violation of Title VII. Vinson v. Taylor, 753

F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant part and rev'd in

part, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). We find that

complainant has not established a prima facie case of harassment based

on either race or national origin. We find no persuasive evidence that

management's actions were taken in order to harass complainant because of

his race or national origin. We note in this regard the testimony of one

of complainant's subordinates, C-1. C-1 stated that the problems with

complainant arose because of his imperialistic manner. According to

C-1, complainant made decisions without the input of his employees in

contrast to the way former chiefs had operated.

CONCLUSION

Accordingly, it is the decision of the Commission to AFFIRM the agency's

determination that complainant had not been discriminated against because

of his race and national origin.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

___11-17-00___________________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

______________________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.