01A22635
02-29-2000
Alex Raney, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Alex Raney v. Department of Veterans Affairs
01A22635
January 7, 2003
.
Alex Raney,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22635
Agency No. 96-0831
Hearing No. 170-AO-8385X
DECISION
Complainant timely initiated an appeal from the agency's final order
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 appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission reverses the agency's final order.
The record reveals that complainant, a Physician and Chief of Urology at
the agency's Veterans Affairs Medical and Regional Center in Wilmington,
Delaware, filed a formal EEO complaint on May 24, 1995, alleging that
the agency had discriminated against him on the bases of national origin
(Iranian), religion (Muslim), and reprisal for prior EEO activity when
he was subjected to harassment from a subordinate employee.<1>
This case is before the Commission after we reversed the Administrative
Judge's issuance of summary judgment in part and remanded the case
for an evidentiary hearing on the issue of discriminatory harassment.
The record indicates that complainant signed a document withdrawing his
request for a hearing, although he now disputes that he intended to do so.
The AJ remanded the case to the agency to issue a final decision.
The agency issued its final decision finding no discrimination on any of
the alleged bases. Specifically, the agency found that although there
was evidence the employee (CB) had been in areas of the hospital in
violation of a Notice of Restricted Contact, there was no evidence that
CB's actions were based on complainant's national origin, religion or
prior EEO activity. The agency further concluded that even though CB had
no reason to be in the operating room surgical suite (OR) to use a copier,
there was no basis to take disciplinary action against him and that
his mere presence was not enough to create a hostile work environment.
The agency determined that CB had legitimate reasons to be in the OR
area on other occasions and that there was no evidence that management
officials had deliberately caused complainant and CB to cross paths.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that the
agency is liable for the actions of CB in tolerating his harassment
of complainant when he appeared in the OR on several occasions between
January and May 1995. We also conclude that complainant failed to prove
the harassment was based on his religion or that the agency's actions
were in reprisal for his prior EEO activity.
For harassment based on an employee's protected class to violate Title
VII, it must be "sufficiently severe or pervasive 'to alter the conditions
of employment and create an abusive working environment.'" Meritor
Savings Bank v. Vinson, 106 S. Ct. 2399 at 2406 (quoting Henson v. City
of Dundee, 682 F.2d at 904). Since "hostile environment� harassment
takes a variety of forms, many factors may affect this determination,
including: (1) whether the conduct was verbal or physical, or both; (2)
how frequently it was repeated; (3) whether the conduct was hostile and
patently offensive; (4) whether the alleged harasser was a co-worker or a
supervisor; (5) whether the others joined in perpetrating the harassment;
and (6) whether the harassment was directed at more than one individual.
In determining whether unwelcome conduct rises to the level of a
"hostile environment" in violation of Title VII, the central inquiry
is whether the conduct "unreasonably interfer[es] with an individual's
work performance" or creates "an intimidating, hostile, or offensive
working environment." 29 C.F.R. � 1604.11(a)(3). See also EEOC Policy
Guidance on Current Issues of Sexual Harassment, N 915-050 (3/1/90).
In order to avoid liability, the remedial action taken by the agency
must be prompt and reasonably calculated to end the harassment.
See Fiandaca v. Department of the Navy, 05960069 (January 24, 1997).
As we have previously observed, "what is appropriate remedial conduct
will necessarily depend on the particular facts of the case, the severity
and persistence of the harassment, and the effectiveness of any initial
remedial steps." Id.
By our decisions on two prior complaints (Raney v. Department of
Veterans Affairs, EEOC Appeal No. 01962665, July 17, 2000 and EEOC
Appeal No. 01A130309 (August 27, 2002)) we noted the history of CB
(also referred to as CW) in repeatedly disregarding the instructions
of hospital management not to enter certain areas of the hospital and
to avoid contact with complainant. We further noted that the agency's
Board of Investigation concluded in 1994 that CB purposely fueled the
conflict with complainant once he became aware that complainant was
afraid of him. The Board further concluded that the Chief of Nursing
Service and the Chief of Surgery took no concrete action to address or
resolve the conflict between them.
Our previous decisions stated that the conflict between complainant and
CB dated back to 1989 and that CB's actions were based on complainant's
national origin. We noted evidence that CB disliked �foreign doctors�
and made several statements regarding his dislike of foreign doctors.
In addition, the record in this case contained the testimony of a resident
physician who confirmed complainant's account that CB made numerous
references to his expertise as a marksman, and as an archer and that
his actions were threatening to him and other residents. He testified
that in the past, CB often bristled at taking criticism about clinical
issues from complainant and himself by getting angry, slamming doors
and making hand gestures towards them in the shape of a pistol or gun.
With this history of the threatening nature of CB's interactions
with complainant, we conclude the agency erred in concluding that
CB's presence in areas near complainant's work areas, did not create a
hostile work environment. We also find that this case presents strikingly
similar actions of CB that the agency has failed to adequately address.
Complainant testified that CB appeared in the OR surgical suite three or
four times where he regularly performs surgery and speaks with patients'
families. Complainant stated that CB sometimes used the copier but other
times was there to socialize with other nurses and on one occasion blocked
his path to the OR. On at least one occasion, complainant stated that CB
was singing, gesturing with his hands and making noises to disturb him.
We find this testimony to be credible because it describes behavior
closely similar to past actions of CB in ignoring the agency's order to
stay away from complainant and in fueling his conflict with complainant.
In addition, the evidence established that CB was reassigned to the
outpatient clinic where complainant treated patients two times a week.
We find that agency officials improperly permitted CB to work in proximity
to complainant despite CB's history of hostility towards complainant's
national origin. We further find that the agency's failure to take more
stringent action led to these additional instances of harassment for
which the agency is liable. The agency's rationale for concluding that
no harassment occurred and that no action was necessary is unfounded.
For instance, the Chief of Nursing's (CN) conclusion that CB had a
legitimate reason to use the copier in the OR was unjustified as it was
based solely on CB's representation that the copiers on his own floor
and several others were �unavailable�. Likewise, CN's conclusion that CB
legitimately needed to obtain surgical instruments from the OR, failed to
account for the availability of instruments from other sources. In sum, it
is clear the agency failed to take appropriate measures to prevent further
instances of harassment and that it is liable for the actions of CB.
Therefore, based on the foregoing, we reverse the agency's final decision
finding no discrimination. We conclude that complainant established by
a preponderance of the evidence he was subjected to harassment based
on his national origin and that the agency failed to take appropriate
measures to prevent the harassment from re-occurring. The agency is
directed to take action as outlined in the order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. The issues of compensatory damages, attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant,
through counsel, shall submit a request for attorney's fees and costs
if appropriate, in accordance with the Attorney's Fees paragraph set
forth below. No later than sixty (60) days after the agency's receipt of
the attorney's fees statement and supporting affidavit, the agency shall
issue a final agency decision addressing the issues of attorney's fees,
costs, and compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
2. The agency will require the agency officials responsible for
enforcement of its harassment policy in this specific case to take 8 hours
training on the provisions of Title VII and associated EEOC Enforcement
Guidance governing workplace harassment.
3. The agency will post notice in accordance with the Order below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its VA Medical and Regional Center
in Wilmington, Delaware facility copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
January 7
__________________
Date
1In our previous decision (Raney v. Department
of Veterans Affairs, EEOC Appeal No. 01976936, February 29, 2000) we
affirmed summary judgment on the issue of denial of scarce specialty and
geographic pay and allocation of hospital resources. Those issues will
not be revisited in this decision.