01996268
08-25-2000
Paul E. Piwinski, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Paul E. Piwinski v. Department of Veterans Affairs
01996268
August 25, 2000
Paul E. Piwinski, )
Complainant, )
) Appeal No. 01996268
v. ) Agency No. 941722
) Hearing No. 260979076x
Hershel W. Gober, )
Acting Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Paul E. Piwinski (complainant) timely initiated an appeal from the
agency's final decision (FAD) 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 Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleges he was discriminated against on the bases of race
(Asian), sex (male) and physical disability (Scleroderma) between May
1992 and July 15, 1994 when:
(1) he was assigned more cases than female attorneys;
he received less supervision than female attorneys;
he was not allowed training which female attorneys received
he was intimidated and harassed by the District Counsel (DC) when DC
said �if you (complainant) s--t on me, I would s--t on you (complainant)
double� and that �I alone am in control of your (complainant's) career
and nobody else can help you advance;� and
he did not get an award for the time period between April 1, 1993
and March 31, 1994, as a result of having received a fully successful
rating instead of the higher rating he deserved.
Complainant also alleged that he was retaliated against for filing
the subject complaint when the agency took an exceedingly long time to
process it. He originally filed a separate complaint on this issue,
but after the agency dismissed it as a �spin-off� complaint, complainant
requested that it be consolidated with the subject complaint.
BACKGROUND
The record reveals that complainant, an out-stationed attorney at the
agency's Lakeside facility in Hines, Illinois,<2> filed a formal EEO
complaint with the agency on July 15, 1994, alleging that the agency had
discriminated against him as referenced above. The agency accepted claim
5 for investigation and dismissed the remaining claims for failure to
contact an EEO Counselor within the required time period. Complainant
appealed this dismissal to this Commission and, on November 14, 1996,
the Commission ordered the agency to accept the dismissed claims for
investigation. See Piwinski v. Department of Veterans Affairs, EEOC
Appeal No. 01962654 (November 14, 1996).
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. The AJ concluded that complainant failed to
establish by a preponderance of the evidence that he was discriminated
against on the bases of race, sex, or disability. In reaching this
conclusion, the AJ found that complainant established that the work
environment at the Hines facility was very �unhealthy� due to the
existence of two �camps� of employees. One camp of employees supported
DC, while the other supported his assistant (ADC). DC and ADC had intense
negative opinions about each other. This situation caused a high level
of animosity among colleagues and led to numerous problems. The AJ
found that complainant, like all the employees within this facility, was
adversely affected by these circumstances, but that there was no evidence
that he was discriminated against based on his race, sex, or disability.
The agency's final decision adopted the AJ's decision.
CONTENTIONS ON APPEAL
Complainant raises a number of contentions on appeal, most of which were
raised below. Complainant raises the new allegation that the AJ was
biased against him, noting, among other things, that the AJ did not have
the appropriate records with her at the hearing and that the AJ never
sanctioned the agency for its numerous violations of EEOC procedures.
Complainant also argues that the AJ refused to hear testimony with regard
to his claim that the agency's failure to process the subject complaint
properly was motivated by retaliatory animus. Complainant argues that
this claim was dismissed by the agency as a spin-off of the subject
complaint and should have been heard by the AJ.
In response, the agency notes that complainant received an exhaustive
hearing after which the AJ properly recommended a finding of no
discrimination. The agency asks that its FAD therefore be affirmed.
ANALYSIS AND FINDINGS
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).
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws in finding that complainant failed to
establish discrimination. For example, DC testified that the female
attorney (CW1) cited by complainant as doing fewer cases than he,
was assigned to a number of cases not listed on the normal assignment
sheets due to their sensitive nature. This testimony was supported by
other witnesses. While still other witnesses provided opposing testimony
in an attempt to establish pretext, it was not unreasonable of the AJ
to find that CW1 did an amount of work equivalent to or greater than
that done by complainant. Similarly, the agency provided legitimate
nondiscriminatory reasons for the other incidents of discrimination
alleged by complainant. Although complainant advanced contradictory
testimony, the AJ's finding that complainant failed to establish that
these explanations were pretextual was based on substantial evidence.
In essence, it appears that this facility was divided into two camps
of employees�those who supported DC and those, like complainant, who
did not. Members of each camp testified and the AJ, after listening to
both sides, credited the testimony of DC and his supporters over that of
complainant. The AJ therefore concluded that complainant failed to prove
that discriminatory animus motivated the agency's behavior. We discern
no basis to disturb this recommended finding of no discrimination.
We note, however, that complainant also alleged that he was subjected
to harassment and that the AJ should have addressed this claim.
Complainant may assert a Title VII cause of action based on harassment
if the discriminatory conduct was so severe or pervasive that it created
a hostile work environment on the basis of his race, color, religion,
sex, national origin or retaliation. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994), at 3, 6; Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). Here, the AJ determined that complainant failed to establish
that the agency's behavior was motivated by discriminatory animus.
As noted above, this determination was based on substantial evidence.
Complainant therefore failed to establish that he was subjected to
harassment on the bases of race, sex, or physical disability.
Finally, we note that complainant alleged that he was subjected to
retaliation when the agency failed to process the subject complaint
properly. Complainant is correct that this spin-off complaint should have
been addressed by the AJ. See Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO-MD-110), as revised November 9,
1999, at 5-25. We agree with complainant that the processing of his
complaint was delayed and, in fact, admonished the agency for this delay
in a prior decision.<3> After a careful review of the record, however,
we find no evidence that this delay was motivated by a desire to retaliate
against complainant for his EEO activity. Moreover, complainant has
not established that the delay affected the outcome of his complaint.
CONCLUSION
Accordingly, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
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:
August 25, 2000
Date Carlton M. Hadden, 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 During the time at issue, the Hines facility was comprised of the
Core Office of District Counsel at Hines, the Lakeside Medical Center
and the Westside Medical Center.
3 See Piwinski v. Department of Veterans Affairs, EEOC Appeal No. 01962654
(November 14, 1996).