01962665
07-17-2000
Alex Raney, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Alex Raney v. Department of Veterans Affairs
01962665
July 17, 2000
Alex Raney, )
Complainant, )
) Appeal No. 01962665
v. ) Agency No. 95-0260
) Hearing No. 170-95-8250X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
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, as amended, 42 U.S.C. � 2000e et seq. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).<1> Complainant
alleges he was discriminated against on the bases of national origin
(Iranian), religion (Muslim), age (65) and in reprisal for prior protected
activity when he received a �Notice of Restricted Contact with Another
Center Employee� (Notice) and was subjected to a hostile work environment
created by the harassing actions of a co-worker (CW).
During the relevant time, complainant was employed by the agency as a
Physician and Chief of Urology Services at the Veterans Affairs Medical
Center (VAMC) in Wilmington, Delaware. Following counseling, complainant
filed his first EEO formal complaint on May 10, 1993, alleging, inter
alia, that CW created a hostile environment for complainant by exhibiting
verbally abusive and belligerent behavior based on complainant's national
origin. Specifically, complainant alleged that since the beginning of
his tenure in the Urology Unit (GU), CW made the following statements
in complainant's presence:
(1) all foreigners should be incarcerated;
(2) foreigners were threats to American security;
(3) foreign VAMC doctors should go back to their country of origin;
(4) foreign doctors knew nothing about medicine; and
(5) foreign doctors had no right to tell Americans what to do.
Complainant also asserted that CW had a stockpile of weapons in his home
and that he would fight to defend himself against threats by foreigners.
In early 1993, following the World Trade Center bombing, complainant
alleged that CW's discriminatory comments escalated. Complainant
stated that, "[CW] made daily comments regarding �Arabs' and how they
should all be punished because of the World Trade bombing incident."
Complainant further asserted that he felt personally threatened by CW
when CW assumed a karate stance in an elevator and discussed hunting
and guns with other VAMC employees. Complainant further alleged that
agency management officials ignored his concerns.<2>
The agency dismissed the complaint for untimeliness, and complainant
did not appeal. It is clear from the record that management officials
were aware of this complaint and believed that complainant's allegations
regarding CW were unfounded and over-reactive. However, in an effort
to resolve the conflict, management reassigned CW to a different unit
in April 1993.
At the recommendation of the agency's Office of District Counsel,
management officials convened an official investigative board to
investigate complainant's allegation that he had been put at risk of
personal harm by CW. The board consisted of a VAMC physician, a nurse,
and a social work supervisor. The board submitted a report of its
investigation on March 18, 1994.
In its report, the board found that as early as 1989, there had been an
interpersonal conflict between CW and complainant and that management
officials, including the Surgery and Nursing Service Chiefs, did little to
attempt to resolve the conflict until 1993. Complainant documented to the
board three instances of CW's behavior, which he perceived as threatening
to his personal safety: (1) during late November or early December 1992,
an incident occurred on the elevator where CW assumed a karate stance;
(2) during December 1993, and incident occurred in the hallway or near
the elevator when CW is alleged to have said, �I'm going to break [your]
head;� and (3) during December 1993, complainant observed CW in the
GU Service area talking to a GU clinic clerk after being instructed by
his supervisors not to return to the GU Clinic area. The board found
that the incident (1) did take place, even though denied under oath
by CW. However, the board found that the behavior was not directed
at complainant and, therefore, did not constitute a direct threat to
complainant. The board also found that CW's behavior was inappropriate,
unprofessional, and was intended to intimidate complainant. The board
found no evidence to support incident (2). Finally, the board found
that there was evidence to support incident (3).
The board concluded that complainant overreacted to the perceived
threats and that once CW realized complainant was fearful of him, he
continued, purposefully, to do things to fuel the conflict. For example,
CW continuously returned to the GU clinic after he was reassigned out
of the unit, made passing comments to complainant, and kept a daily
log of complainant's activities. Regarding management's response,
the board made the following findings: (1) it was only when specific
clinical issues occurred between 1992 and 1993 that the Nursing Service
instituted corrective action for CW, and when the clinical problems
continued, he was reassigned; (2) the Chief of Nursing Service took no
concrete action to address or resolve the interpersonal conflict prior to
the introduction of clinical performance issues; (3) the Chief of Surgery
Service addressed the conflict in a manner which brought no resolution and
offered complainant little, if any, relief to his mounting frustration;
and (4) neither Chief managed their personnel in a manner that would
have brought this conflict to a more timely and constructive resolution.
Following the board's report, the Director issued the Notice dated May 4,
1994 to both complainant and CW. The Director stated in the Notice that
based upon evidence presented by the board, the ongoing �interpersonal
conflict� between complainant and CW had a serious and unacceptable effect
on the operations of the VAMC. The Director ordered both employees to
avoid any and all contact with each other personally and professionally
and directed them to attend training in communication and interpersonal
conflict resolution skills. Additionally, the Director ordered CW to
refrain from entering the GU Service/Clinic areas. Complainant and CW
were made responsible for communicating their restrictions to anyone who
might inadvertently make an assignment which conflicted with the Notice
and for notifying their immediate supervisors if any problems arose in
relation to their restrictions. They were also notified that failure
to comply with the restrictions might result in disciplinary action or
other charges.
Following receipt of the Notice, complainant contacted an EEO counselor
and filed the instant complaint on July 25, 1994. Complainant alleges
that since the issuance of the Notice, CW has continued to harass him and
that his supervisor threatened to fire him if he continued to complain
about his conflict with CW. The agency accepted the complaint and
conducted an investigation. After the agency completed its investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). On July 13, 1995, a hearing was held. The AJ declined to treat
the incidents of harassment against complainant which took place prior
to May 10, 1993 as background evidence for complainant's present hostile
environment claim and excluded the testimony of two foreign doctors who
would have testified about their direct knowledge of CW's discriminatory
treatment of foreign doctors, including complainant, prior to May 10,
1993.
On August 25, 1995, the AJ issued a recommended bench decision finding
no discrimination. Regarding the agency's issuance of the Notice,
the AJ found that complainant failed to prove a prima facie case of
disparate treatment on the bases of national origin, age, religion,
and reprisal. Assuming complainant had established an inference of
discrimination on all bases alleged, the AJ concluded that the agency
issued the Notice for a legitimate, nondiscriminatory reason, namely that
it was consistent with the board's recommendations. The AJ concluded
that complainant failed to show that more likely than not, the agency's
explanation was a pretext for unlawful discrimination.
Regarding complainant's hostile environment claim, the AJ noted that
there was no evidence that CW was assigned to work in the GU clinic
with complainant; that management officials testified that it was
impossible for complainant and CW to completely avoid each other at
the VAMC; and that by assigning CW to work in the outpatient service,
contact between the two was minimized. The AJ further noted that
complainant provided no evidence to support his assertion that on or
about February 10, 1995, CW yelled at him or spoke loudly stating, �we
can now see who gets screwed,� referring to CW's promotion at the VAMC.
Assuming complainant had proven that CW made such statements, the AJ found
that the yelling was not �connected to management or to complainant's
protected classes.� While noting the agency's unsuccessful attempts
to resolve the conflict between complainant and CW, the AJ concluded
that the agency's inability to resolve the conflict was not intended to
create a hostile work environment.
The agency adopted the AJ's decision in its entirety and requests that we
affirm its final decision. On appeal, complainant contends that the AJ's
exclusion of all evidence of harassment prior to May 10, 1993 unfairly
prejudiced complainant's claim and was improper. Complainant further
contends that prior to 1993, the agency failed to respond appropriately
to his claims of harassment by CW.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 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).
Disparate Treatment
Applying the law as established in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); Reeves v. Sanderson Plumbing Products,
Inc., U.S. , 2000 WL 743663 (June 12, 2000); and Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F. 2d 222 (1st Cir. 1976), we agree with the
AJ's determination that complainant failed to establish an inference
of discrimination on the bases of national origin, religion, reprisal
or age. Even assuming complainant did establish a prima facie case of
discrimination, we ultimately agree with the AJ's determination that
management issued the Notice for a legitimate, nondiscriminatory reason
and as complainant failed to establish that management was motivated by
some other unlawfully discriminatory reason, we conclude that complainant
failed to establish discrimination on this issue.
Hostile Environment
The Commission first considers whether the AJ appropriately excluded
evidence of prior harassment as background evidence to complainant's
present hostile work environment allegation. The Commission has
previously found that issues rejected as untimely by the agency for
liability purposes may nonetheless be relevant as background evidence on
issues accepted as timely. See Yonkers v. Department of Transportation,
EEOC Appeal No. 01964675 (July 28, 1998). We find that complainant's
prior hostile environment allegations are relevant to the instant
complaint and the AJ should have accepted evidence of previous harassing
incidents, occurring prior to May 10, 1993, as background information.
We note, however, that the agency cannot be held responsible for any
discriminatory actions prior to May 10, 1993 because complainant did
not appeal the agency's dismissal of those issues.
Complainant may assert a Title VII cause of action if the discriminatory
conduct was so severe or pervasive that it created a hostile work
environment on the basis of race, color, religion, sex, national origin,
or retaliation. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of Treasury,
EEOC Request No. 05970077 (March 13, 1997). In determining whether
or not a hostile environment violative of Title VII has been created,
our regulations require that �...the challenged conduct must not only
be sufficiently severe or pervasive objectively to offend a reasonable
person, but also must be subjectively perceived as abusive by the charging
party.� EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance
on Harris v. Forklift Systems, Inc. at 7.
The Supreme Court stated: �Conduct that is not severe or pervasive enough
to create an objectively hostile work environment - an environment
that a reasonable person would find hostile or abusive - is beyond
Title VII's purview.� Harris, 510 U.S. at 22 (1993). Additionally,
our guidelines state that: �In defining the hypothetical reasonable
person, the Commission has emphasized that the reasonable person standard
should consider the victim's perspective and not stereotyped notions
of acceptable behavior.� EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 6.
In evaluating the degree to which a work environment is sufficiently
severe or pervasive to constitute a hostile environment, the Commission
has noted that �a �hostile environment' claim generally requires a
showing of a pattern of offensive conduct.� See EEOC Policy Guidance on
Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990).
The Commission recognizes that a �mere utterance of an ethnic or racial
epithet which engenders offensive feelings in an employee would not
affect the conditions of employment to a sufficiently significant degree
to violate Title VII.� Meritor Savings Bank v. Vinson, 477 U.S. 57, 67
(1986). However, a limited number of highly offensive slurs or derogatory
comments may in fact state a claim or support a finding of discrimination
under Title VII. See, e.g. Yabuki v. Department of the Army, EEOC Request
No. 05920778 (June 4, 1993) (single incident of verbal abuse and negative
comment concerning Japanese people sufficient to constitute race and
national origin discrimination); Brooks v. Department of the Navy, EEOC
Request No. 05950484 (June 25, 1996) (three racially derogatory comments
over a two-month period by an individual with a history of making such
statements was sufficient to state a claim); McAllister v. Department
of Defense, EEOC Request No. 05960416 (May 22, 1997) (a supervisor's
disparaging and racist comments to complainant, in conjunction with
prior comments by the supervisor demeaning to other protected classes,
was sufficient to justify an AJ's finding of discrimination).
The AJ found that the agency did not intend to create or support such
an environment. However, the proper inquiry is whether CW's conduct was
sufficiently severe or pervasive to create a hostile work environment
based on complainant's membership in a protected class, and if so, whether
the agency took prompt and remedial action, reasonably calculated to end
the harassment. See Taylor v. Department of the Air Force, EEOC Request
No. 05920194 (July 8, 1992). Upon review, we find that complainant
demonstrated that subjectively, he perceived CW's behavior, following
the issuance of the Notice, as intimidating and hostile. Viewing these
facts as a whole, and bearing in mind the history between the parties,
we also find that a reasonable person in complainant's circumstances
would have found the CW's statements regarding foreign doctors to be
intimidating and hostile. Therefore, we hold that CW's behavior toward
complainant was sufficiently severe to constitute a hostile environment
on the basis of national origin. We do agree with the AJ that the record
does not support a finding that complainant has proven harassment on
the bases of his age, religion, or reprisal.
With respect to conduct between co-workers, an employer is responsible
for acts of harassment in the workplace that relate to race, color,
religion, sex, national origin, age or disability where the employer
or its agents or supervisory employees knew or should have known of
the conduct, and the employer failed to take immediate and appropriate
corrective action. See Rodriguez v. Department of Veterans Affairs,
EEOC Appeal No. 01953850 (August 29, 2000). In order to avoid liability,
the remedial action taken by the agency must be prompt and reasonably
calculated to end the harassment. Taylor, EEOC Request No. 05920194,
at 6-7. 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." Taylor, EEOC Request No. 05920194,
at 6-7. Complainant testified, without rebuttal, that he reported each
violation of the notice to the Chief of Surgery. Once complainant
informed management officials that CW had violated the notice of
restrictive contact, management had an obligation to take further action
to remedy CW's conduct. The AJ found that management officials did not
act aggressively enough to resolve the conflict. Rather, the agency
essentially ignored complainant's complaints and failed to institute
any additional disciplinary actions as provided by the Notice. Thus,
we find the agency liable for CW's harassing conduct which took place
after May 10, 1993. Accordingly, we AFFIRM in part and we REVERSE in part
the final agency's decision and REMAND this case for further processing
consistent with this decision and ORDER below.
ORDER
The Commission orders following remedial action:
1. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the Hearings Unit of the Philadelphia District Office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 64 Fed. Reg. 37,644, 37,657 (1999) (to be
codified at 29 C.F.R. � 1614.109), and the agency shall issue a final
action in accordance with 64 Fed. Reg. 37,644, 37,657-58 (1999) (to be
codified at 29 C.F.R. � 1614.110) within forty (40) days of receipt of
the Administrative Judge's decision. The agency shall submit copies of
the Administrative Judge's decision and the final agency action to the
Compliance Officer at the address set forth below.
2. The agency shall provide a minimum of sixteen (16) hours of
training in the obligations and duties imposed by Title VII to the
appropriate agency official(s) at the VAMC who failed to effectively
respond to complainant's complaint. The agency shall address these
employees' responsibilities with respect to eliminating harassment and
discrimination in the workplace, and all other supervisory and managerial
responsibilities under equal employment opportunity law.
3. 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 of the
agency's calculation of compensatory damages due complainant, including
evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post copies of the attached notice at its
Veterans Affairs Medical Center in Wilmington, Delaware. 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.
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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
July 17, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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.
2 Complainant was directly supervised by the Chief of Surgery for
the VAMC. His second-level supervisor was the VAMC's Chief of Staff,
who reported directly to the VAMC director. The Director at the
time complainant filed his first complaint left the VAMC and a new
Director assumed the position in late July 1993. CW was directly
under the supervision of the VAMC's nursing service. Therefore, CW
was administratively supervised by the nursing service but clinically
directed by complainant, who was Chief of Urology Services.