Alex Raney, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 29, 2000
01976936 (E.E.O.C. Feb. 29, 2000)

01976936

02-29-2000

Alex Raney, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Alex Raney v. Department of Veterans Affairs

01976936

February 29, 2000

)

Alex Raney, )

Complainant, )

) Appeal No. 01976936

v. ) Agency No. 96-0831

) Hearing No. 170-96-8358X

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

Complainant filed a timely appeal from a final agency decision

concerning his complaint of unlawful employment discrimination on

the bases of national origin (Iranian), religion (Muslim), reprisal

(prior EEO activity) in violation of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges

he was discriminated against when: (1) he was denied Geographic pay of

$10,000.00; (2) he was denied Scarce Specialty pay of $10,000.00; (3)

he was denied equal allocation of hospital equipment and resources; (4)

his employer failed to stop harassment against him by a male registered

nurse. The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, we Reverse and Remand the agency's final

decision in part.

The record reveals that during the relevant time, Complainant was employed

as the Chief of Urology Service at the VA Medical and Regional Office

Center in Wilmington, Delaware.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a formal complaint on May 24, 1995.

At the conclusion of the investigation, complainant was provided a

copy of the investigative file and requested a hearing before an EEOC

administrative judge (AJ). The AJ granted summary judgment for the

agency without a hearing finding no discrimination.

The AJ concluded that the complainant failed to establish a prima facie

case on many of his issues and bases, thus warranting granting summary

judgment for the agency. She concluded that no prima facie case of

religious discrimination was established because the complainant

was not aware of the religious association of the two comparative

employees he named on the issues of pay disparity. The complainant also

failed, in her view, to establish that a thoracic surgeon was similarly

situated to him such that he should be treated the same in terms of pay.

She also concluded there was no prima facie case of reprisal because the

complainant did no suffer an adverse employment action close in time to

his protected activity.

In a similar vein, the AJ decided there was no prima facie case on the

issue of unequal allocation of hospital resources because no comparative

employees were identified and the hospital had already replaced

malfunctioning equipment the complainant had complained about. Finally,

the AJ concluded there was no prima facie case of harassment because the

complainant was not clear about the facts of the particular incidents

and he failed to allege a continuous, prolonged pattern of behavior.

Assuming a prima facie case had been established, the AJ concluded that

the agency proffered legitimate, nondiscriminatory reasons for denying

the complainant geographic and scarce specialty pay. In this regard,

she determined that the complainant failed to demonstrate the hospital

experienced difficulty in recruiting and retaining urologists in his

geographic area or that he possessed extraordinary qualifications,

thereby meriting a special pay increase.

The AJ further concluded that the agency articulated legitimate reasons

for its allocation of hospital resources. She concluded that the lack

of adequate funding explained why the complainant's request for supplies

was denied and that the delay in getting a new examination table was

due to the need for reconstruction of the room.

The AJ found that the agency had adequately investigated the alleged

harassment. She further found that the alleged harassing employee had

valid reasons for being near the complainant on the occasions in question.

The agency had done enough in ordering each of them to stay away from

each other and was justified in their conclusion that it could not

guaranteed their paths would not cross according to the AJ.

The agency's final decision adopted the AJ's Recommended Decision.<2>

Complainant, through his counsel, challenged the AJ's issuance of summary

judgment because she had allegedly improperly weighed conflicting evidence

and drew inferences from facts favorable to the agency when other evidence

was available favoring the complainant.

The agency submitted no comments on appeal.

Review of Summary Judgment

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. 29 C.F.R. � 1614.109(e). This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules of

Civil Procedure. Our review of the grant of summary judgment is de novo.

See 64 Fed.Reg. 37659 (to be codified at 29 C.F.R. � 1614.405)).

The United States Supreme Court has stated that summary judgment is

appropriate where the trier of fact determines that, given applicable

substantive law, no genuine issue of material fact exists. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine"

if the evidence is such that a reasonable fact-finder could find in

favor of the non-moving party. Oliver v. Digital Equip. Corp., 846

F.2d 103, 105 (1st Cir. 1988). In the context of an administrative

proceeding under Title VII, summary judgment is appropriate if, after

adequate investigation, complainant has failed to establish the essential

elements of his or her case. Spangle v. Valley Forge Sewer Authority,

839 F.2d 171, 173 (3d Cir. 1988). When determining whether to grant

summary judgment, the trier of fact's function is not to weigh the

evidence and render a determination as to the truth of the matter,

but only to determine whether there exists a genuine factual dispute.

Anderson, 477 U.S. at 248-49.

The courts have been clear that summary judgment is not to be used as a

"trial by affidavit." See e.g., Redmand v. Warrener, 516 F.2d 766, 768

(1st Cir. 1975). Furthermore, the Commission has noted that when a

party submits an affidavit and credibility is at issue, "there is a need

for strident cross-examination and summary judgment on such evidence is

improper." Pedersen v. Department of Justice, EEOC Request No. 05940339

(February 24, 1995).

Disparate Pay Claims

Our review of the complainant's claims that he was illegally denied

geographic pay of $10,000.00 and scarce specialty pay of an additional

$10,000.00<3> is twofold. First, as with the other issues discussed

below, we must determine whether the AJ's grant of summary judgment to

the agency was proper and second, if it was not, whether the issue should

be remanded for further hearing or is ripe for a decision on the merits.

The record reflects that the complainant produced enough testimony

and documentation to raise an inference that he was entitled to both

geographic and scarce specialty pay. That is, he demonstrated that

his specialty had been designated by the agency and by law as a scarce

specialty, and that he had such outstanding credentials that he could

qualify for both. Based on these factors, it appears the AJ engaged

in a balancing of the evidence which is not proper on summary judgment.

Nevertheless, the agency raised legitimate non-discriminatory reasons why

other physicians were granted geographic or scarce specialty pay when the

complainant was not. The record reflected that one of the two general

surgeons was being recruited by the hospital and was offered geographic

pay as an extra incentive to come to work for the VA. The other general

surgeon was Iranian and, as such, dispelled the inference that the denial

of geographic pay to the complainant was due to his national origin.

In addition, the complainant received other incentive pay such as length

of service pay and specialty pay, that the comparative employees did not.

The thoracic physician (American, religion unknown) who received more in

scarce specialty pay ($30,000.00) than the complainant, was recruited

from outside the hospital, but was not offered geographic pay and was

not eligible for length of service pay.

The complainant was unable to overcome the agency's legitimate

non-discriminatory reasons by showing that they were a pretext for

discrimination and therefore, we find no discrimination as to this issue.

Unequal Hospital Resources

Complainant claims he was denied an equal allocation of hospital

resources when compared to other services at the hospital. The AJ

concluded that the complainant failed to refute the agency's evidence

that it lacked adequate funding to respond quickly to his requests for

equipment, instruments and personnel. Once again, we observed that the

AJ improperly weighed the evidence and made a finding that the agency

lacked financial resources. She apparently discounted the complainant's

testimony that other services received staff during alleged times of

shortage even though his service saw more patients and had greater needs.

We find however, that the Chief of Staff gave credible testimony that the

ENT service, with a similar level of patient care as the complainant's

service, had a similar level of staffing. He also testified that overall

staffing had been decreased from 680 full time employees to 590.

With respect to the complainant's claims that he was denied equipment,

it appears from the record that the purchase of equipment for the

complainant's service was approved even before he filed his complaint

in this case. The approval also came after the complainant had filed

his first two EEO complaints in April 1993 and in July 1994 thereby

laying to rest his claim of reprisal as to this issue. We therefore,

find no discrimination on this issue as well.

Harassment

After a careful review of the record, we find that the AJ erred when

she concluded that there was no genuine issue of material fact on the

issue of harassment in this case. In granting summary judgment, the

AJ relied solely on the record of alleged harassing incidents in this

case without considering the previous two complaints of the complainant

about the same employee dating back to 1993.<4> Even in this record,

there was testimony from the complainant of weekly encounters with the

RN employee and that of a former resident about the threatening nature of

the employees' actions in the past. The AJ had before her the testimony

of the Chief of Staff that the offending employee was not authorized

to be in the surgical area for the purpose of using the xerox machine.

This raised the inference that he was there to harass the complainant

and that the hospital had not addressed the issue seriously enough.

This evidence was enough to create two genuine issues - (1) whether

the complainant was subjected to unlawful harassment on a continuing

basis and, (2) whether the agency adequately addressed the harassment.

Consequently, summary judgment was not appropriate on this issue.

We note too, that the record alludes to the employee's dislike of "foreign

doctors" indicating the possibility that his harassment was motivated by

the complainant's national origin. See, Cooper v. U.S. P.S., EEOC No.

01954737 (February 27, 1998). We conclude that the AJ incorrectly

rejected this inference in favor of evidence to the contrary.

Our consideration of the complainant's claim of harassment, however,

is not limited solely to whether the harassment was motivated by

discriminatory animus but includes a consideration of whether the agency

discriminated in its handling of the harassment. In other words, the

record is silent on the question of how the agency handled other claims

of harassment, insubordination and inappropriate workplace behavior when

an employee in a similar position but of another national origin and/or

religion was the target. The record should be supplemented further on

this issue on the basis of religious, national origin discrimination and

reprisal. See EEOC Management Directive (MD) 110, as revised, November

9, 1999, Chapter 6, page 6-1; see also 64 Fed. Reg 37,644, 37,657 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. �� 1614.109);

EEOC Policy Guidance on Current Issues of Sexual Harassment dated March

19, 1990.

For these reasons, and because the record is insufficiently developed on

the employer's record on addressing similar claims of insubordination,

harassment and employee misconduct involving a chief of a service,

we remand for further supplementation of the record and a hearing on

this issue.

We also find that a hearing is necessary to assess the credibility of

the witnesses on the issue of harassment and whether it was based on

the complainant's national origin.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, and arguments and evidence

not specifically discussed in this decision, the Commission reverses

the agency's final decision and remands the matter to the administrative

judge in accordance with this decision and the ORDER below.

ORDER (D1092)

The Commission remands this complaint to the Hearings Unit of the

Commission's Philadelphia District Office to be assigned and scheduled

for a hearing.

The agency shall send a copy of the complaint record to the Hearings Unit

of the Commission's Philadelphia District Office within thirty days of

receipt of this decision.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (R1199)

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:

2/29/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 Equal Employment Assistant

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 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at WWW.EEOC.GOV.

2The AJ's decision was issued before the new regulations and as such is

referred to as a Recommended Decision.

3The complainant received $20,000.00 in scarce specialty pay but did

not receive an increase of an additional $10,000.00 after the ceiling

on specialty pay for was raised in 1994.

4Our new regulations were enacted to eliminate fragmentation of claims

especially where as here, evidence over a relevant time period is needed

to properly evaluate a claim. See, 64 Fed. Reg. 37648, July 12, 1999.