01997225
08-27-2002
Alex M. Raney, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Alex M. Raney v. Department of Veterans Affairs
01997225
August 27, 2002
.
Alex M. Raney,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01997225
Agency No. 97-0769
Hearing No. 170-98-8320X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) 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.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges he was discriminated against on the bases of religion
(Muslim), national origin (Iranian), age (dob: 3/21/29) and reprisal
(prior EEO activity) when 1) he was unfairly required to respond to
numerous incidents and investigations which interfered with his regular
duties; 2) his surgeries were scheduled for less desirable times; 3)
the Chief of Staff yelled, refused to listen and threatened to shut down
the Urology Service, and 4) he was removed as Chairman of the Operating
Room Committee.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
The record reveals that complainant, the Chief of Urology at the agency's
Medical and Regional Office Center facility in Wilmington, Delaware,
filed a formal EEO complaint with the agency on September 26, 1996,
alleging that the agency had discriminated against him as referenced
above. At the conclusion of the investigation, complainant received
a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race, sex or age discrimination<1>. Specifically, the AJ
found that complainant failed to demonstrate that similarly situated
employees not in his protected classes were treated differently under
similar circumstances with respect to being subjected to investigations
and being required to respond to many incidents. She determined that
the complainant did not establish that he was subjected to harassment
or disparate treatment by the Chief of Staff whom he alleged yelled at
him during their conversations. In her view, the disputes between the
two resulted from personality conflicts. The AJ further found that the
complainant did not establish that he was treated less favorably in being
assigned operating room times and consequently, he did not establish by a
preponderance of the evidence that he was discriminated against. In fact,
the AJ concluded, the complainant did not dispute that his service had
just as many desirable morning times for surgeries as the other services.
With respect to the complainant being removed as chairman of the operating
room committee, the AJ found that complainant did not establish that the
agency's reasons were not credible or were a pretext for discrimination.
To the extent that the complainant alleged this action along with other
incidents constituted harassment, the AJ found that it was not shown
the conditions were so severe as to constitute harassment or a hostile
work environment. Further, the AJ concluded that there was no showing
that the complainant was subjected to disparate treatment with respect
to this issue or in the scheduling of the operating room.
The agency's final decision adopted the AJ's decision.
Complainant makes no new contentions on appeal, although we note that
he made an objection to the particular AJ assigned to hear the case.<2>
Most of the complainant's appeal reiterated the arguments made in his
case in chief except that he alleged he had been terminated from his
employment and had not been granted a lump sum payment as others had on
being separated. These issues will not be addressed herein as there is
no indication the complainant was counseled on them and they were not
accepted for investigation. The agency requests that we affirm its
final decision.
ANALYSIS AND FINDINGS
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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus directed at his religion, national origin,
or age. Specifically, the record indicates that the complainant was
directed to respond to a complaint initiated by a patient who had a
procedure performed by the complainant's urology team. Although the
complainant produced some supporting testimony that the investigation
was out of the ordinary, he failed to prove that the agency's handling
of the complaint was motivated by the complainant's religion, national
origin, age or in reprisal for his prior complaint activity. Rather,
the record reflected that the agency had investigated other hospital
services on more occasions than the urology service.
Similarly, the complainant failed to demonstrate that the agency's
scheduling of the operating room was based on discriminatory motives.
The record disclosed that decisions regarding the schedule were carried
out by the nursing staff and not the management officials whom the
complainant held responsible. Additionally, the complainant did not
refute the fact that his service had as many morning surgeries scheduled
as the general surgery service for at least one of the months preceding
the filing of his complaint. The complainant also did not dispute the
agency's contention that many of the urology procedures, as compared to
other types of surgery, are less complicated, shorter in terms of time
and are more like outpatient procedures. For these reasons they may be
scheduled in less desirable time slots.
The complainant's claim that the Chief of Staff (RMO1)( Jewish,
American, 6/16/37, EEO activity not specified) yelled at him during
their meetings and conversations is essentially a claim of harassment
or hostile work environment. To succeed in establishing his claim,
the complainant must show that the harassment would not have occurred
but for his religion, national origin, age. EEOC Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors
6/18/99, at p. 2 (Guidance); McKinney v. Dole, 765 F.2d 1129, 1138-1139
(D.C. Cir. 1985). A single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct is
severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
Whether the harassment is sufficiently severe to trigger a violation
of Title VII must be determined by looking at all the circumstances,
including the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interferes with an employee's
work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
Based on this standard and after a review of the record as a whole, the
AJ's finding that the incidents did not constitute illegal harassment
was supported by the evidence.
CONCLUSION
For the reasons stated herein, we discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, including
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
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
August 27, 2002
__________________
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
______________________________
1The AJ's reference to race, Muslim, was in error as the complainant
alleged religion (Muslim) in his complaint. The complainant did not
allege discrimination based on sex.
2The complainant's objections were also noted in correspondence to the
Commission but were more properly the subject of a motion before the
AJ. Without a written motion and response, the issue is not squarely
before the Commission and cannot be considered on appeal. See EEOC
Management Directive 110 (MD 110) Chapt. 7. 11/9/99.