01A04358
09-08-2000
Jeffrey A. Carbajal, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Jeffrey A. Carbajal v. Veterans Affairs
01A04358
September 8, 2000
.
Jeffrey A. Carbajal,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04358
Agency No. 98-1726
Hearing No. 340-99-3072X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) complaint of unlawful
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. <1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The issues presented herein are whether complainant was sexually
harassed when: (1) on April 21, 1998, he was touched on the buttocks
by a VA doctor; and, (2) on May 14, 1998, the VA doctor interrupted a
conversation between complainant and a Nurse Practitioner.
The record reveals that during the relevant time, complainant was employed
as a Medical Supply Technician, WG-5, at the agency's Outpatient Clinic
at the VAMC, Los Angeles, California. Believing he was a victim of
discrimination, complainant sought EEO counseling and subsequently filed
a formal EEO complaint, dated May 25, 1998, claiming that he had been
discriminated against as referenced above.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding no discrimination.
Specifically, the AJ considered three incidents cited by complainant.
First, in late February 1998, complainant contends that while speaking
with a patient, the agency doctor (�Doctor HN�) walked by and grabbed
his buttocks; that complainant told Doctor HN not to do it again, to
which Doctor HN allegedly replied �Sue me; take me to EEO;� and that
because complainant was unable to find any witnesses, he did not report
the incident.<2> Second, on April 21, 1998, complainant claims he was
outside an office talking with someone when Doctor HN walked by and
slapped him on the buttocks. Complainant described the incident to a
Nurse Practitioner, who reported the matter to complainant's supervisor.
Third, complainant contends that on May 14, 1998, while working with a
staff nurse, he heard Doctor HN say �Take my blood pressure.� Complainant
believed the comment was directed at him and viewed the remark as sexual
harassment.
The AJ concluded that complainant failed to establish a prima facie
case of sexual harassment, because �[e]ven assuming the facts are as
complainant asserted, they do not amount to sexual harassment under the
law.� The AJ noted that because complainant did not report the first
incident (February 1998) to agency officials until after the second
incident occurred, the agency could not be held responsible until it
was on notice in April 1998. The AJ determined that in April 1998,
complainant's supervisor spoke to Doctor HN and complainant acknowledges
that he has not been touched again. The AJ determined that although the
May 14, 1998 incident followed the agency's remedial actions, Doctor
HN's request that his blood pressure be taken could not be considered
sexual harassment. Finally, the AJ found that even assuming that Doctor
HN touched complainant's buttocks on April 21, 1998, the AJ found the
incident to be an isolated one that �was not sufficiently severe or
pervasive as to alter complainant's working conditions....�
The agency's final order accepted and fully implemented the AJ's decision.
On appeal, complainant reiterates his contention that the alleged events
occurred as he described them and that they constitute harassment.
In response, the agency argues that the Commission should affirm the
AJ's finding of no discrimination.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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 that discriminatory intent did not exist is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We agree that
complainant failed to establish that he was sexually harassed by the
alleged incidents. We discern no basis to disturb the AJ's decision.
Accordingly, we AFFIRM the agency's final action.
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 (S0400)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 8, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The AJ noted that because complainant did not file a timely complaint
with respect to the February incident and did not report it to management,
it was not actionable.