Alex Raney, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 29, 2000
01A22635 (E.E.O.C. Feb. 29, 2000)

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.