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.