0120073698
10-26-2009
Christopher F. Linge, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Christopher F. Linge,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073698
Agency Nos. 200I-0573-2006102307
200I-0573-2007100162
DECISION
JURISDICTION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 26, 2007, final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. For the reasons that
follow, the Commission AFFIRMS the final agency decision.
BACKGROUND
On May 10, 2006, complainant initiated EEO counseling, and, on June 9,
2006, he filed Agency Complaint No. 200I-0573-2006102307 (C1) alleging
discrimination based on sex (male) and national origin (German) when:
(a) the Medical Administration Service (MAS) supervisors filed false
claims with his supervisor against him and harassed him on March 28,
2006; (b) he did not receive a promised pay raise on May 5, 2006; and (c)
Human Resources (HR) refused to upgrade his life insurance in May 2006.
On October 16, 2006, complainant initiated EEO counseling, and, on
November 21, 2006, he filed Agency Complaint No. 200I-0573-2007100162 (C2)
alleging discrimination in reprisal for prior EEO activity when: (d) on
October 13, 2006, his supervisor (SB) informed complainant that three of
his afternoon podiatry clinics would be changed to toenail clinics with
patients scheduled every 15 minutes; (e) SB changed complainant's tour
of duty start time from 7:30 a.m. to 8:00 a.m., beginning October 29,
2006; and (f) he was harassed and treated disparately in regard to (i)
on October 16, 2006, SB indicated that complainant's lunch break should
be 30 minutes, shortened from one hour; (ii) on November 11, 2006, SB
considered complainant's response to issue (d) above to be insubordination
and appropriate for disciplinary action; (iii) on November 6, 2006,
SB implied that complainant was absent without official leave (AWOL) on
two days, because he did not inform SB of his request for sick leave1;
and (iv) for about a week in October 2006, SB increased surveillance
of complainant's activities by walking past his office. Following an
investigation, complainant requested a FAD. The agency issued its FAD,
concluding that it did not discriminate against complainant.
On July 11, 2006, in response to C1, the agency accepted issue (b) for
investigation and dismissed issues (a) and (c). The agency concluded that
issue (a) failed to state a claim, in that complainant did not allege
facts that demonstrated he was aggrieved. The agency also dismissed
the claim of harassment raised in issue (a), because the actions taken
did not rise to the level of illegal harassment.
The agency dismissed issue (c), because complainant did not raise this
allegation with an EEO counselor during counseling. Pursuant to 29
C.F.R. �� 1614.107(b), the agency notified complainant that he had the
right of appeal following final action on his complaint. In its final
agency decision (FAD), the agency affirmed its dismissal of issues (a) and
(c). Complainant, in his appeal statement, did not contest the agency's
dismissal action. Accordingly, we do not address these issues herein.
On December 22, 2006, the agency notified complainant that his allegations
in C2 were accepted for investigation based on his claims of disparate
treatment in issues (d), (e) and (f) and the harassment in issue (f).
On December 22, 2006, the agency consolidated the two complainants at
issue herein for investigation and further processing.
At the time of his complaints, complainant worked as a podiatrist
at the agency's Outpatient Clinic in Daytona Beach, Florida. In C1,
issue (b), complainant claimed that he did not receive a promised pay
raise on May 5, 2006, because of his national origin and sex. However,
complainant asserted that his pay problems began at the time he was hired
in 2002, and that he had never been paid the proper wage for his status.
He asserted that he did not receive the same wage as his predecessor,
although he admitted that he never confirmed the amount of his pay; that
he received a promotion to the next grade (GS-13) in February 2004, but
has to wait three years for a further one; that SB had failed to properly
process his requests for a higher pay, in that SB did not submit his
complete credentials; and that SB was influenced by other supervisors,
including one female, who made false accusations about him.
A regional Specialist from Human Relations (HR) explained that complainant
was hired in 2002, as a GS-12 podiatrist on a part-time basis and later
became full-time; she asserted that he was hired at the proper grade
and step and, at the time, did not meet the requirements for a GS-13
podiatrist. SB asserted that he forwarded information at the time of hire
to support a higher pay level, through HR, but the agency's Professional
Board of Podiatry (Board), which determines the pay for each podiatrist,
denied the request. In 2006, SB forwarded another request to HR, but,
because complainant was not eligible, HR did not send it to the Board.
SB denied that he promised complainant a pay raise, noting that he was
not in a position to do so.
In C2, issues (d) and (e), complainant contended that SB changed his
duties and work schedule in October 2006, in reprisal for filing C1.
Specifically, in issue (d), complainant complained when SB changed
three of his afternoon podiatry sessions to toenail clinics with
patients scheduled every 15 minutes, thus doubling his work load; and,
in issue (e), when SB modified his start time to 30 minutes later,
thus inconveniencing his personal schedule. SB stated that he looked
at the facility's podiatry services and determined that much of the
workload consisted of requests for toenail-related services. In order
to better utilize resources and service the large number of requests for
toenail-related services, he established the toenail clinics, including
hiring an assistant for complainant and providing two rooms for treatment
so that complainant could treat patients in a more efficient manner.
As to the change in complainant's start time, SB stated that the
facility's work hours began at 8:00 a.m. and that complainant now had
an assistant to set up his clinic. SB stated that complainant said the
change was inconvenient for him but did not discuss the situation with
him further.
In issue (f), complainant claimed that he was harassed and treated
disparately with regard to four separate events, contending that SB
acted in reprisal because SB was angry that complainant filed C1. As to
the alleged change of his lunch hour, SB stated he only reiterated that
employees had 30 minutes for lunch with two 15-minute breaks. SB also
stated that, because of complainant's injury, the toenail clinic was not
established. Regarding complainant's interpretation that SB intended
to initiate discipline, SB stated that he only informed complainant
that any refusal to follow a direct order could result in a charge
of insubordination. With regard to complainant's allegations that SB
threatened him with AWOL charges, SB stated that he informed complainant
that, to avoid a charge of AWOL, he must request or otherwise inform SB
about his leave and that complainant was not charged AWOL. Moreover,
SB explained that complainant had been injured at work and received
workers' compensation benefits continuation of pay.
CONTENTIONS ON APPEAL
Complainant submitted a statement with his appeal of the agency's
FAD, contending that he had supplied supportive evidence of email
correspondence with SB, which contradicted the statements made in SB's
investigative affidavit, and that these emails show "malicious intent to
harass him" and discriminate against him during an ongoing EEO process.
He rejected the agency's stated intention to expedite patient care by
increasing his workload and asserted that the proposed workload of 15
minutes was shorter than the Board's standard. Complainant disputed
that he misinterpreted SB's email about possible insubordination and an
AWOL charge. He argued that the change in his start time was because of
hearsay from other staff and "in contrast to union agreements." Also,
he challenged SB's statement that he walks around, noting that SB told
him he had "better be busy back there." He contended that SB had agreed
to grant him leeway for his lunch hours, because his patients' untimely
arrivals often threw him off schedule. Complainant also argued that
he recommended that the investigator interview his assistant, which was
not done.
The agency did not file a response to the appeal.
ANALYSIS and FINDINGS
Standard of Review
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Disparate Treatment Analysis
Generally, claims of disparate treatment are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Once complainant has established a prima facie
case, the burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, the burden reverts to the complainant to demonstrate
by a preponderance of the evidence that the agency's reason for its
action was a pretext for discrimination. At all times, complainant
retains the burden of persuasion, and it is his obligation to show by
a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
715-716 (1983). For purposes of further analysis, we will assume,
arguendo, that complainant established a prima facie case based on sex,
national origin, and reprisal.
The burden of proceeding moves to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). We note
that the agency's burden, while not onerous, must provide a specific,
clear, and individualized explanation for the treatment accorded the
complainant that frames the factual issue "with sufficient clarity so
that [complainant] will have a full and fair opportunity to demonstrate
pretext." Id. The agency explained that it acted in accordance with
agency rules and policies and for the efficiency of the agency's business
operations to provide health services to its patients. The agency stated
that complainant was hired at the appropriate wage as determined by the
Board, that he was not promised a pay raise, and that he was eligible for
promotion as provided by the agency's personnel rules. SB also asserted
that he established the toenail clinic and altered complainant's work
schedule to promote the efficiency of the agency's delivery of medical
services. Regarding the four matters raised in issue (f), SB explained
that complainant misinterpreted his statements and actions and denied
any harassment or disparate treatment. After review, we find that the
agency articulated legitimate, nondiscriminatory reasons for its actions
and has met its burden of proceeding.
In the McDonnell Douglas scheme, supra, once the agency has articulated
legitimate, nondiscriminatory reasons for its actions, the ultimate burden
of persuasion returns to the complainant to demonstrate by preponderant
evidence that the reasons given by the agency for its actions are pretext,
that is, a sham or disguise for discrimination. According to case law,
the complainant must show that the agency more likely than not was
influenced by legally impermissible criteria, i.e., national origin,
sex, and reprisal. Absent a showing that the agency's articulated
reasons were used as a tool or vehicle to discriminate against him,
complainant cannot prevail. After review, we find that complainant has
not demonstrated pretext, in that he has adduced no probative evidence
that the explanations articulated by the agency for its actions were not
its true reasons for its actions but were taken in order to discriminate
against him based on impermissible criteria, e.g., complainant's sex,
national origin, or prior EEO activity. See St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993).
Harassment Analysis
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful. See Coats v. EEOC, EEOC Appeal No. 0120044333 (May 17,
2007); Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans With Disabilities Act (October 17, 2002).2 To
constitute unlawful employment discrimination, the agency's actions
must be sufficiently pervasive or severe to significantly and adversely
affect the conditions of the victim's employment and create an abusive
working environment. Id. Whether agency action constitutes harassment
must be determined by looking at all the circumstances, including
the frequency of the discriminatory conduct, the severity, whether
it was physically threatening or humiliating rather than a single,
simple offensive utterance, and whether it unreasonably interfered with
the employee's work performance. Id; see Rivera v. Department of the
Navy, EEOC Appeal No. 01934156 (July 22, 1994), req. to recon. den.,
EEOC Request No. 05940927 (December 11, 1995). The harasser's conduct
is evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Harris v. Forklift Systems, 510 U.S. 17
(1993); see Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 (March 8, 1994); see also Oncale v. Sundowner
Offshore Services, Inc., 23 U.S. 75 (1998).
To establish a prima facie case of hostile work environment harassment,
complainant must show that: (1) he is a member of a statutorily
protected class; (2) he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving his protected classes;
(3) the harassment complained of was based on the statutorily protected
classes alleged; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. See Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Upon review, we find that complainant has not established a prima facie
case of harassment based on his national origin, sex, or in reprisal for
prior protected EEO activity. While he has asserted that SB acted against
him, he has not shown or alleged that the agency's and SB's actions were
taken because of his protected status, and he has not provided probative
evidence in support of his claim. He has not shown that the agency's
actions were taken for reasons other than its legitimate concerns
to provide efficient and effective medical services. Complainant's
assertions that SB's emails show that he harassed and discriminated
against him is without merit. Although one of SB's emails stated that
he was "initiating appropriate disciplinary actions" regarding what he
viewed as complainant's insubordinate conduct, there is no evidence that
complainant, in fact, was subjected to disciplinary action. Further,
a second email from SB did advise complainant that he must notify his
supervisor (SB) when taking sick leave, and that "[i]n not doing so,
officially you were AWOL" for the two days in question, but again, there
is no evidence that complainant, in fact, was charged AWOL. Complainant's
assertion that the 15-minute appointment schedules were established to
harass him and not for patient care and that this schedule was shorter
than recommended by the Board are without foundation or evidence in the
record. Complainant failed to present or point to any evidence or other
support for his declarations. We note that complainant's assertions,
without probative evidence to support them, do not establish pretext. 3
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the
preponderance of the evidence of record does not establish that
discrimination occurred as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 26, 2009
Date
1 The record shows that this event occurred on November 6, 2006, and
not on November 16, as indicated in the FAD.
2 This Guidance and other information is available on the Commission's
website at www.eeoc.gov.
3 With regard to complainant's contention that the investigator failed
to interview complainant's assistant, as complainant had suggested,
we note complainant was not foreclosed from presenting his assistant's
statement to the investigator or with his appeal.
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0120073698
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073698