Paul E. Piwinski, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 25, 2000
01996268 (E.E.O.C. Aug. 25, 2000)

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).