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

Equal Employment Opportunity CommissionJul 17, 2000
01962665 (E.E.O.C. Jul. 17, 2000)

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.